As filed with the Securities and Exchange Commission on April 20, 2018
Registration
No. 333-218579
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM
S-1
ON FORM
S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Chaparral Energy, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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1311
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73-1590941
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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701 Cedar Lake Boulevard
Oklahoma City, Oklahoma 73114
(405)
478-8770
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
K. Earl Reynolds
Chief
Executive Officer
701 Cedar Lake Boulevard
Oklahoma City, Oklahoma 73114
(405)
478-8770
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Wesley P. Williams
Jessica W. Hammons
Thompson & Knight LLP
One Arts Plaza
1722
Routh Street, Suite 1500
Dallas, Texas 75201
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
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 being 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. ☐
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, 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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒ (Do not check if smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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 to Section 7(a)(2)(B) of the 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 of 1933 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.
EXPLANATORY NOTE
On June 7, 2017, Chaparral Energy, Inc. (the Company) filed with the Securities and Exchange Commission (the SEC)
a registration statement on Form
S-1
(File
No. 333-218579)
(the Registration Statement), which became effective on June 22, 2017. The prospectus
included in such registration statement was supplemented from time to time, with the most recent prospectus supplement (no. 7) filed on March 9, 2018. The registration statement was filed to register the resale of the securities registered
thereunder by the selling stockholders referenced therein.
This Post-Effective Amendment No. 1 on Form
S-3
is being filed by the Company to convert the registration statement on Form
S-1
into a registration statement on Form
S-3.
This
Post-Effective Amendment No. 1 also contains an updated prospectus so that the information contained or incorporated therein is current as of the date of filing.
All applicable registration fees were paid at the time of the original filing of the Registration Statement.
The information in this prospectus is not complete and may be changed. The securities
described herein may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell such securities, and it is not soliciting an offer to buy such securities, in
any state or jurisdiction where such offer or sale is not permitted.
Subject to Completion, dated
April 20, 2018
PROSPECTUS
Chaparral Energy, Inc.
Up to 18,918,552 Shares of Class A Common Stock
3,441,217 Shares of Class B Common Stock
This prospectus
relates to the resale of an aggregate of up to 18,918,552 shares of our Class A common stock and 3,441,217 shares of our Class B common stock, which may be offered for sale from time to time by the selling stockholders named in this
prospectus. The number of shares the selling stockholders may sell consists of 15,337,312 shares of Class A common stock and 3,441,217 shares of Class B common stock that are currently issued and outstanding as well as up to 3,441,217
shares of Class A common stock issuable upon the conversion of shares of Class B common stock and 140,023 shares of Class A common stock that a selling stockholder may receive if it exercises its warrants. Except for 154,620 shares of
common stock, the selling stockholders acquired all of the shares of common stock covered by this prospectus in a distribution pursuant to Section 1145 under the United States Bankruptcy Code in connection with our plan of reorganization that
became effective on March 21, 2017. The 154,620 shares of common stock were issued and sold pursuant to an exemption from the registration requirements under Section 4(a)(2) of the Securities Act of 1933, as amended (the Securities
Act). We are registering the offer and sale of the shares of common stock to satisfy registration rights we have granted to the selling stockholders.
We are not selling any shares of common stock under this prospectus and will not receive any proceeds from the sale of common stock by the
selling stockholders. The shares of common stock to which this prospectus relates may be offered and sold from time to time directly by the selling stockholders or alternatively through underwriters, broker-dealers or agents. The shares of common
stock may be sold in one or more transactions, at fixed prices, at prevailing market prices at the time of sale or at negotiated prices. The selling stockholders will be responsible for any underwriting fees, discounts and commissions due to
underwriters, brokers-dealers or agents. Please see the section titled Plan of Distribution of this prospectus for a more complete description of how the offered common stock may be sold.
You should carefully read this prospectus and any prospectus supplement before you invest. You also should read the documents we have referred
you to in the Where You Can Find More Information section of this prospectus for information about us and our financial statements.
Our Class A common stock is quoted on the OTCQB tier of the OTC Markets Group Inc. under the symbol CHPE. Although our
Class A common stock is quoted on the OTCQB, trading and quotations of our Class A common stock have been limited and sporadic. On April 19, 2018, the closing price of our Class A common stock on the OTCQB was $20.00 per share.
Our Class B common stock is not listed or quoted on the OTCQB or any other stock exchange or quotation system, and we do not intend to seek such listing. In the event we were to seek such listing, there is no guarantee that any established
securities exchange or quotation system would accept any of our Class B common stock for listing.
Investing in our common stock involves risks. See
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 , 2018.
Contents
You should rely only on the information contained in this prospectus or any prospectus supplement or
amendment. Neither we nor the selling stockholders have authorized any dealer, salesman or other person to provide you with information other than the information contained in this prospectus. This prospectus does not constitute, and may not be used
in connection with, an offer to sell, or a solicitation of an offer to buy, the common stock offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation. You should not
assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of the prospectus, regardless of the time of delivery of this prospectus or any sale of a security. Our business, financial
condition, results of operations and prospects may have changed since those dates. Neither the delivery of this prospectus nor any sale made in connection with this prospectus shall, under any circumstances, create any implication that there has
been no change in our affairs since the date of this prospectus or that the information contained by reference in this prospectus is correct as of any time after its date. Information contained on our website, or any other website operated by us, is
not part of this prospectus.
This prospectus contains forward-looking statements that are subject to a number of risks and
uncertainties, many of which are beyond our control. See Risk Factors and Cautionary Statement Regarding Forward-Looking Statements.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes statements of our expectations, intentions, plans and beliefs that constitute 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), and are intended to come within
the safe harbor protection provided by those sections. These statements relate to future events or our future financial performance, including, without limitation, in Item 7 Managements Discussion and Analysis of Financial
Condition and Results of Operations 2018 Outlook contained in our Annual Report on Form
10-K
for the year ended December 31, 2017 and incorporated by reference herein. We use words such as
anticipate, believe, expect, may, forecast, project, should, estimate, plan, outlook, target, likely,
will, to be or other similar words to identify forward-looking statements.
Without limiting the foregoing, all
statements relating to our future operating results, anticipated capital expenditures, future cash flows and borrowings, and sources of funding are forward-looking statements and speak only as of the date of this prospectus. These forward-looking
statements are based on numerous assumptions that we believe are reasonable, but are subject to a wide range of uncertainties and business risks, and actual results may differ materially from those discussed in these statements. These factors are
difficult to accurately predict and may be beyond our control. Factors that could affect our results or an investment in our securities include, but are not limited to:
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fluctuations in demand or the prices received for oil and natural gas;
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the amount, nature and timing of capital expenditures;
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drilling, completion and performance of wells;
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competition and government regulations;
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timing and amount of future production of oil and natural gas;
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costs of exploiting and developing properties and conducting other operations, in the aggregate and on a
per-unit
equivalent basis;
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changes in proved reserves;
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operating costs and other expenses;
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our future financial condition, results of operations, revenue, cash flows and expenses;
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estimates of proved reserves;
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exploitation of property acquisitions; and
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marketing of oil and natural gas.
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These forward-looking statements represent intentions,
plans, expectations, assumptions and beliefs about future events and are subject to risks, uncertainties and other factors. Many of those factors are outside of our control and could cause actual results to differ materially from the results
expressed or implied by those forward-looking statements. In addition to the risk factors and other cautionary statements described under the heading Risk Factors, included in this prospectus, the factors include:
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the ability to operate our business following emergence from bankruptcy;
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worldwide supply of and demand for oil and natural gas;
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volatility and declines in oil and natural gas prices;
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drilling plans (including scheduled and budgeted wells);
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our new capital structure and the adoption of fresh start accounting, including the risk that assumptions and factors used in estimating enterprise value vary significantly from current values;
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the number, timing or results of any wells;
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changes in wells operated and in reserve estimates;
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future growth and expansion;
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integration of existing and new technologies into operations;
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future capital expenditures (or funding thereof) and working capital;
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risks related to the concentration of our operations in the
mid-continent
geographic area;
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borrowings and capital resources and liquidity;
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changes in strategy and business discipline, including our post-emergence business strategy;
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any loss of key personnel;
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geopolitical events affecting oil and natural gas prices;
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outcome, effects or timing of legal proceedings;
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the effect of litigation and contingencies;
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the ability to generate additional prospects; and
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the ability to successfully complete merger, acquisition or divestiture plans, regulatory or other limitations imposed as a result of a merger, acquisition or divestiture, and the success of the business following a
merger, acquisition or divestiture.
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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 price and cost assumptions made by 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 may change the schedule of any future production and development drilling. Accordingly, reserve estimates may
differ significantly from the quantities of oil and natural gas that are ultimately recovered.
Should one or more of these risks or
uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in the forward-looking statements contained herein. These forward-looking statements speak only as of the
date of this report, or if earlier, as of the date they were made. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under
applicable securities laws. All forward-looking statements included herein are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
iii
GLOSSARY OF CERTAIN DEFINED TERMS
The terms defined in this section are used throughout this prospectus:
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CO
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Carbon dioxide.
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Natural gas liquids (NGLs)
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Those hydrocarbons in natural gas that are separated from the gas as liquids through the process of absorption, condensation, adsorption or other methods in gas processing or cycling plants. Natural gas liquids primarily include
propane, butane, isobutane, pentane, hexane and natural gasoline.
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Credit Facility
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Tenth Restated Credit Agreement, dated as of December 21, 2017, by and among us, Chaparral Energy, Inc., as Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent and The Lenders and Prepetition Borrowers Party
Hereto.
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Play
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A term describing an area of land following the identification by geologists and geophysicists of reservoirs with potential oil and natural gas reserves.
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Reorganization Plan
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First Amended Joint Plan of Reorganization for Chaparral Energy, Inc. and its Affiliate Debtors under Chapter 11 of the Bankruptcy Code.
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SEC
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The Securities and Exchange Commission.
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STACK
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An acronym standing for Sooner Trend Anadarko Canadian Kingfisher. A play in the Anadarko Basin of Oklahoma in which we operate.
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PROSPECTUS SUMMARY
This summary description about us and our business highlights selected information contained elsewhere in this prospectus or incorporated
by reference into this prospectus. It does not contain all the information you should consider before investing in our common stock. Important information is incorporated by reference into this prospectus. To understand this offering fully, you
should read carefully the entire prospectus, including Risk Factors, together with the additional information described under Incorporation by Reference.
Unless the context requires otherwise, references in this prospectus to the Company, Chaparral, we,
our and us refer to Chaparral Energy, Inc. and its subsidiaries on a consolidated basis. We have provided definitions of terms commonly used in the oil and natural gas industry or otherwise in this prospectus in the
Glossary of Certain Defined Terms at the beginning of this prospectus. Unless otherwise noted or suggested by context, all financial information and data and accompanying financial statements and corresponding notes, as of and prior to
the Effective Date (as defined below) of the Reorganization Plan, as contained in this prospectus or other documents incorporated herein by reference, reflect the actual historical consolidated results of operations and financial condition of the
Company for the periods presented and do not give effect to the Reorganization Plan or any of the transactions contemplated thereby, including the adoption of fresh start accounting. Accordingly, such financial information may not be representative
of our performance or financial condition after the Effective Date. Except with respect to such historical financial information and data and accompanying financial statements and corresponding notes or as otherwise noted or suggested by the
context, all other information contained in this prospectus or other documents incorporated herein by reference relates to the Company following the Effective Date. The Company filed its Quarterly Report on Form
10-Q
for the quarter ended March 31, 2017 on May 15, 2017, which reflected the adoption of fresh start accounting. References to Predecessor or Predecessor Company in this
prospectus or other documents incorporated herein by reference relate to the Company prior to, and including, the Effective Date. References to Successor or Successor Company in this prospectus or other documents incorporated
herein by reference relate to the Company subsequent to the Effective Date.
Our Company
Chaparral Energy, Inc. is a Delaware corporation headquartered in Oklahoma City which has been engaged in the onshore oil and natural gas
acquisition, exploitation, exploration and production business in the United States since 1988. We have transitioned from operating a diversified asset base in the
Mid-Continent,
which previously included CO
2
enhanced oil recovery assets, to a dedicated focus on the development and acquisition of unconventional oil and natural gas reserves in the STACK. We have capitalized on our sustained success in
the
Mid-Continent
area in recent years by expanding our holdings to become a leading player in the liquids-rich STACK play, which is home to multiple
oil-rich
reservoirs
including the Oswego, Meramec, Osage and Woodford formations.
Chapter 11 Plan of Reorganization
On May 9, 2016, the Company and its subsidiaries filed voluntary petitions seeking relief under Title 11 of the United States Code (the
Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) commencing cases for relief under chapter 11 of the Bankruptcy Code (the Chapter 11 Cases). On
March 10, 2017, the Bankruptcy Court confirmed our Reorganization Plan, and on March 21, 2017 (the Effective Date), the Reorganization Plan became effective and we emerged from bankruptcy.
For more information on the events that occurred and the securities issued in connection with our emergence from the Chapter 11 Cases, see our
Current Report on Form
8-K
that was filed with the SEC on March 27, 2017.
Principal
Executive Offices
Our principal executive offices are located at 701 Cedar Lake Boulevard, Oklahoma City, Oklahoma 73114, and our
telephone number at that address is (405)
478-8770.
Information contained on our website,
www.chaparralenergy.com
, does not constitute a part of this prospectus.
1
The Offering
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Issuer:
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Chaparral Energy, Inc.
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Common Stock Offered
by the Selling Stockholders:
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Up to 18,918,552 shares of our Class A common stock, including up to 3,441,217 shares of Class A common stock issuable upon the conversion of shares of Class B common stock and 140,023 shares of Class A common
stock issuable upon exercise of warrants, and 3,441,217 shares of our Class B common stock.
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Common Stock
Outstanding:
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38,626,615 shares of Class A common stock outstanding as of April 17, 2018 and 7,871,512 shares of Class B common stock outstanding as of April 17, 2018.
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Use of Proceeds:
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We will not receive any of the proceeds from the sale of any shares of common stock by the selling stockholders.
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Dividend Policy:
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We have not paid any dividends on our common stock in either of the last two years and we do not currently anticipate paying any cash dividends on our common stock in the foreseeable future. We are also restricted in our ability to
pay dividends under our Credit Facility. Please read Dividend Policy.
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Listing and Trading Symbols:
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Our Class A common stock is quoted on the OTCQB tier of the OTC Markets Group Inc. under the symbol CHPE. Due to its
relatively small trading volume, it may be difficult for holders to resell their shares of Class A common stock at prices they find attractive, or at all.
Our Class B common stock is not listed or quoted on the OTCQB or any other stock exchange or quotation system, and we do not intend to seek such listing.
In the event we were to seek such listing, there is no guarantee that any established securities exchange or quotation system would accept any of our Class B common stock for listing.
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Risk Factors:
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Investing in our common stock involves a high degree of risk. See Risk Factors for a discussion of factors you should carefully consider before deciding to invest in our common stock.
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RISK FACTORS
An investment in our common stock involves a high degree of risk. In addition to the other information included in this prospectus, you should
carefully consider each of the risk factors set forth in our most recent Annual Report on Form
10-K,
our subsequent Quarterly Reports on Form
10-Q
and our other filings
with the SEC, all of which are incorporated by reference into this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus and
any prospectus supplement. Any of these risks and uncertainties could have a material adverse effect on our business, financial condition, cash flows and results of operations. If that occurs, the trading price of our common stock could decline
materially and you could lose all or part of your investment.
The risks included in the documents we have incorporated by reference into
this prospectus are not the only risks we face. We may experience additional risks and uncertainties not currently known to us or that result from developments occurring in the future. Conditions that we currently deem to be immaterial may also
materially and adversely affect our business, financial condition, cash flows and results of operations. Past financial and operational performance may not be a reliable indicator of future performance and historical trends should not be used to
anticipate results or trends in future periods
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USE OF PROCEEDS
The common stock to be offered and sold using this prospectus will be offered and sold by the selling stockholders named in this prospectus.
See Selling Stockholders. Accordingly, we will not receive any proceeds from the sale of shares of our common stock in this offering.
DETERMINATION OF OFFERING PRICE
The selling stockholders will determine at what price they may sell the common stock offered by this prospectus, and such sales may be
made at fixed prices, prevailing market prices at the time of the sale, varying prices determined at the time of sale, or negotiated prices.
MARKET PRICE OF OUR COMMON STOCK
In connection with the Reorganization Plan, on the Effective Date, all shares of Predecessor common stock were cancelled, extinguished and
discharged. Simultaneously with the cancellation of Predecessor common stock, we issued, or reserved for issuance, 44,982,142 shares of New Common Stock primarily to holders of certain classes of claims in the Chapter 11 Cases. Our Class A
common stock is quoted on the OTCQB tier of the OTC Markets Group Inc. under the symbol CHPE. Our Class A common stock began quoting on the OTCQB on May 26, 2017. From May 18, 2017 through May 25, 2017, our
Class A common stock was quoted on the OTC Pink market place under the symbol CHHP. No established public trading market existed for our Class A common stock prior to that date. Our Class B common stock is not listed or
quoted on the OTCQB or any other stock exchange or quotation system, and we have not applied for such listing. Further, in the event we were to seek such listing, there is no guarantee that any established securities exchange or quotation system
would accept any of our Class B common stock for listing. Although our Class A common stock is quoted on the OTCQB, trading and quotations of our Class A common stock have been limited and sporadic.
Over-the-counter
market quotations reflect interdealer prices, without retailer markup, markdown, or commission and may not necessarily represent actual transactions. The following table sets forth the high
and low last reported sales prices per share of our Class A common stock, as
3
reported on the OTCQB or OTC Pink, of which we are aware for the period indicated. Based on information available to us, we believe transactions in our Class A common stock can be fairly
summarized as follows for the period indicated:
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High
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Low
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2018:
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Second Quarter (through April 19, 2018)
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$
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20.00
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$
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16.75
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First Quarter
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$
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25.85
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$
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16.65
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2017:
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Fourth Quarter
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$
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25.50
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$
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23.00
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Third Quarter
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$
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23.25
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$
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19.50
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Second Quarter (1)
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$
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26.00
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$
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12.00
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(1)
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Represents the period from May 18, 2017, the date on which our Class A common stock began quoting on the OTC Pink, through June 30, 2017.
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The closing sale price of our Class A common stock on the OTCQB tier of the OTC Markets Group Inc. on April 19, 2018 was $20.00 per
share. As of April 17, 2018, we had 210 holders of record of our common stock, based on information provided by our transfer agent. In addition, as of April 17, 2018, we had outstanding warrants for the purchase of 140,023 shares of
Class A common stock with an exercise price of $36.78 which are immediately exercisable and will expire on June
30, 2018.
DIVIDEND POLICY
We have not paid any dividends on our common stock in either of the last two years and we do not currently anticipate paying any cash
dividends on our common stock in the foreseeable future. We currently intend to retain all future earnings to fund the development and growth of our business. Any future determination relating to our dividend policy will be at the discretion of our
board of directors and will depend on our results of operations, financial condition, capital requirements and other factors deemed relevant by our board. We are also restricted in our ability to pay dividends under our Credit Facility.
4
SELLING STOCKHOLDERS
This prospectus relates to the offer and sale from time to time by the selling stockholders identified below of up to an aggregate of
18,778,529 shares of our common stock (15,337,312 shares of Class A and 3,441,217 shares of Class B) as well as up to 3,441,217 shares of Class A common stock issuable upon the conversion of shares of Class B common stock and
140,023 shares issuable upon the exercise of warrants to purchase shares of our Class A common stock. This prospectus will not cover subsequent sales of common stock purchased from a selling stockholder named in this prospectus.
No offer or sale under this prospectus may be made by a stockholder unless that holder is listed in the table below, in a supplement to this
prospectus or in an amendment to the related registration statement that has become effective. We will supplement or amend this prospectus to include additional selling stockholders upon provision of all required information to us and subject to the
terms of the relevant agreement between us and the selling stockholders. The table below sets forth the maximum number of shares of our common stock, inclusive of the shares of common stock underlying the warrants, to be sold by the selling
stockholders.
The selling stockholders acquired the common stock pursuant to our emergence from Chapter 11 bankruptcy on March 21,
2017. On March 21, 2017, we entered into an agreement containing registration rights with the selling stockholders pursuant to which we were obligated to prepare and file a registration statement to permit the resale of certain common stock
held by the selling stockholders from time to time as permitted by Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. We are registering the common stock described in this prospectus pursuant to this agreement.
The selling stockholders identified below may currently hold or acquire at any time shares of common stock in addition to those
registered hereby. In addition, the selling stockholders identified below may sell, transfer or otherwise dispose of some or all of their common stock included in this registration statement in private placement or other transactions exempt from or
not subject to the registration requirements of the Securities Act. They may also acquire additional shares of common stock. Accordingly, we cannot give an estimate as to the amount of common stock that will be held by the selling stockholders upon
completion or termination of this offering.
Information concerning the selling stockholders may change from time to time, including by
addition of additional selling stockholders, and, if necessary, we will amend or supplement this prospectus accordingly. The selling stockholders are party to that certain Stockholders Agreement, dated March 21, 2017 (the Stockholders
Agreement), which grants them certain governance rights with respect to us.
We have prepared the table, the paragraph immediately
following this paragraph, and the related notes based on information supplied to us by the selling stockholders on or prior to April 17, 2018. We have not sought to verify such information. Additionally, some or all of the selling stockholders
may have sold or transferred some or all of the common stock listed below in exempt or
non-exempt
transactions since the date on which the information was provided to us. Other information about the selling
stockholders may change over time.
Certain selling stockholders are affiliates of broker-dealers (but are not themselves broker-dealers).
Each of these broker-dealer affiliates purchased the securities identified in the table as beneficially owned by it in the ordinary course of business and, at the time of that purchase, had no agreements or understandings, directly or indirectly,
with any person to distribute those securities. These broker-dealer affiliates did not receive the securities to be sold in the offering as underwriting compensation.
The selling stockholders, or their partners, pledgees, donees, transferees or other successors that receive the shares and their corresponding
registration in accordance with the registration rights agreement to which the selling stockholders is party (each also a selling stockholders for purposes of this prospectus), may sell up to all of the shares of common stock shown in the table
below under the heading Offered Hereby pursuant to this prospectus in one or more transactions from time to time as described below under Plan of Distribution. However, the selling stockholders are not obligated to sell any
of the common stock offered by this prospectus.
Except as otherwise indicated, each selling stockholder has sole voting and dispositive
power with respect to such shares.
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of Common Stock
|
Name
|
|
Class
|
|
Beneficially
Owned Prior to
the Offering
|
|
|
Offered
Hereby**
|
|
|
Beneficially
Owned After
the Offering***
|
|
|
As a Percent of
Total Outstanding
After the Offering
|
CCM
Pension-A,
L.L.C. (1)
|
|
A
B
|
|
|
88,197
18,407
|
|
|
|
88,197
18,407
|
|
|
|
0
0
|
|
|
*
|
CCM
Pension-B,
L.L.C. (1)
|
|
A
B
|
|
|
16,898
3,525
|
|
|
|
16,898
3,525
|
|
|
|
0
0
|
|
|
*
|
Contrarian
Advantage-B,
LP (1)
|
|
A
B
|
|
|
27,219
5,679
|
|
|
|
27,219
5,679
|
|
|
|
0
0
|
|
|
*
|
Contrarian Capital Fund I, L.P. (1)
|
|
A
B
|
|
|
1,551,633
322,353
|
|
|
|
1,544,554
322,353
|
|
|
|
7,079
0
|
|
|
*
|
Contrarian Capital Senior Secured, L.P. (1)
|
|
A
B
|
|
|
44,575
9,302
|
|
|
|
44,575
9,302
|
|
|
|
0
0
|
|
|
*
|
Contrarian Capital Trade Claims, L.P. (1)
|
|
A
B
|
|
|
81,346
16,976
|
|
|
|
81,346
16,976
|
|
|
|
0
0
|
|
|
*
|
Contrarian Centre Street Partnership, L.P. (1)
|
|
A
B
|
|
|
313,366
52,559
|
|
|
|
270,645
52,559
|
|
|
|
42,721
0
|
|
|
*
|
Contrarian Dome du Gouter Master Fund, LP (1)
|
|
A
B
|
|
|
314,230
65,576
|
|
|
|
314,230
65,576
|
|
|
|
0
0
|
|
|
*
|
Contrarian Opportunity Fund, L.P. (1)
|
|
A
B
|
|
|
499,064
80,402
|
|
|
|
441,485
80,402
|
|
|
|
57,579
0
|
|
|
*
|
Corre Opportunities II Master Fund, LP (2)
|
|
A
B
|
|
|
198,903
33,345
|
|
|
|
141,491
29,247
|
|
|
|
57,412
4,098
|
|
|
*
|
Corre Opportunities Qualified Master Fund, LP (2)
|
|
A
B
|
|
|
449,591
66,864
|
|
|
|
308,020
63,668
|
|
|
|
141,571
3,196
|
|
|
*
|
Eastspring Investments - U.S. High Yield Bond Fund (3)
|
|
A
B
|
|
|
454,576
94,864
|
|
|
|
454,576
94,864
|
|
|
|
0
0
|
|
|
*
|
Eastspring Investments - U.S. Strategic Income Bond Fund (3)
|
|
A
B
|
|
|
6,929
1,446
|
|
|
|
6,929
1,446
|
|
|
|
0
0
|
|
|
*
|
Franklin High Income Trust - Franklin High Income Fund (4)
|
|
A
B
|
|
|
119,034
43,062
|
|
|
|
119,034
43,062
|
|
|
|
0
0
|
|
|
*
|
Franklin Strategic Series - Franklin Strategic Income Fund (4)
|
|
A
B
|
|
|
286,935
94,305
|
|
|
|
286,935
94,305
|
|
|
|
0
0
|
|
|
*
|
Franklin Templeton Investment Funds - Franklin Strategic Income Fund (4)
|
|
A
B
|
|
|
80,306
22,832
|
|
|
|
80,306
22,832
|
|
|
|
0
0
|
|
|
*
|
Franklin Universal Trust (4)
|
|
A
B
|
|
|
21,117
5,868
|
|
|
|
21,117
5,868
|
|
|
|
0
0
|
|
|
*
|
Goldman Sachs Assets Management, L.P. on behalf of certain funds and accounts (5)
|
|
A
B
|
|
|
1,224,637
393,609
|
|
|
|
1,224,637
393,609
|
|
|
|
0
0
|
|
|
*
|
J.P. Morgan Securities LLC (6)
|
|
A
B
|
|
|
1,226,200
287,036
|
|
|
|
1,201,200
286,901
|
|
|
|
25,000
135
|
|
|
*
|
Jackson National Life Insurance Company (3)
|
|
A
B
|
|
|
140,458
29,320
|
|
|
|
140,458
29,320
|
|
|
|
0
0
|
|
|
*
|
Jackson National Life Insurance Company of New York (3)
|
|
A
B
|
|
|
15,567
3,249
|
|
|
|
15,567
3,249
|
|
|
|
0
0
|
|
|
*
|
JNL/PPM America High Yield Bond Fund, a series of JNL Series Trust (3)
|
|
A
B
|
|
|
569,340
118,813
|
|
|
|
569,340
118,813
|
|
|
|
0
0
|
|
|
*
|
JNL/PPM America Long Short Credit Fund (3)
|
|
A
B
|
|
|
20,406
4,261
|
|
|
|
20,406
4,261
|
|
|
|
0
0
|
|
|
*
|
JNL/PPM America Strategic Income Fund (3)
|
|
A
B
|
|
|
15,398
3,213
|
|
|
|
15,398
3,213
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Bond-Debenture Fund, Inc. (7)
|
|
A
B
|
|
|
480,548
108,764
|
|
|
|
480,548
108,764
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Investment Trust - Lord Abbett High Yield Fund (7)
|
|
A
B
|
|
|
243,918
65,395
|
|
|
|
243,918
65,395
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Investment Trust - Lord Abbett Income Fund (8)
|
|
A
B
|
|
|
63,668
13,287
|
|
|
|
63,668
13,287
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Investment Trust - Lord Abbett Short Duration Income Fund (8)
|
|
A
B
|
|
|
1,576,917
329,100
|
|
|
|
1,576,917
329,100
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Passport Portfolios plc - Lord Abbett High Yield Fund (7)
|
|
A
B
|
|
|
10,940
2,956
|
|
|
|
10,940
2,956
|
|
|
|
0
0
|
|
|
*
|
Lord Abbett Passport Portfolios plc - Lord Abbett
Multi-Sector Income Fund (7)
|
|
A
B
|
|
|
9,455
616
|
|
|
|
2,955
616
|
|
|
|
6,500
0
|
|
|
*
|
Lord Abbett Series Fund, Inc. - Bond Debenture Portfolio (7)
|
|
A
B
|
|
|
52,255
12,311
|
|
|
|
52,255
12,311
|
|
|
|
0
0
|
|
|
*
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark Fischer (9)
|
|
A
B
|
|
|
140,023
|
|
|
|
140,023
|
|
|
|
0
0
|
|
|
*
|
Principal Funds Inc. Core Plus Bond Fund (10)
|
|
A
B
|
|
|
60,614
12,649
|
|
|
|
60,614
12,649
|
|
|
|
0
0
|
|
|
*
|
Principal Funds Inc. Global Diversified Income Fund(10)
|
|
A
B
|
|
|
254,842
53,185
|
|
|
|
254,842
53,185
|
|
|
|
0
0
|
|
|
*
|
Principal Funds Inc. High Yield Fund(10)
|
|
A
B
|
|
|
816,286
170,356
|
|
|
|
816,286
170,356
|
|
|
|
0
0
|
|
|
*
|
Principal Global Investors Funds High Yield Fund (10)
|
|
A
B
|
|
|
21,003
4,383
|
|
|
|
21,003
4,383
|
|
|
|
0
0
|
|
|
*
|
Principal Life Insurance Company d/b/a Principal Core Plus Bond Separate Account (10)
|
|
A
B
|
|
|
57,758
12,053
|
|
|
|
57,758
12,053
|
|
|
|
0
0
|
|
|
*
|
Silver Point Capital Fund, L.P. (11)
|
|
A
B
|
|
|
2,105,271
443,637
|
|
|
|
2,105,271
443,637
|
|
|
|
0
0
|
|
|
*
|
Silver Point Capital Offshore Master Fund, L.P. (11)
|
|
A
B
|
|
|
1,291,390
262,696
|
|
|
|
1,291,390
262,696
|
|
|
|
0
0
|
|
|
*
|
The Prudential Assurance Company Limited (3)
|
|
A
B
|
|
|
864,384
180,392
|
|
|
|
864,384
180,392
|
|
|
|
0
0
|
|
|
*
|
*
|
Represents less than 1%.
|
**
|
The amounts and percentages of common stock beneficially owned are reported on the bases of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person
is deemed to be a beneficial owner of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct
the disposition of such security. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which such person has no economic
interest. The number of shares beneficially owned by a person includes shares of common stock underlying warrants, stock options, convertible preferred stock, and any other derivative securities to acquire common stock held by that person that are
currently exercisable or convertible within 60 days after the date of this prospectus. The shares issuable under any such securities are treated as outstanding for computing the percentage ownership of the person holding these securities, but are
not treated as outstanding for the purposes of computing the percentage ownership of any other person.
|
***
|
Assumes the exercise of all warrants and the sale of all shares of common stock shown under Offered Hereby held by the selling stockholders and assumes the selling stockholders do not acquire beneficial
ownership of any additional shares of our common stock. The selling stockholders are not obligated to sell any of the shares of our common stock covered by this prospectus.
|
(1)
|
Jon R. Bauer, managing member of Contrarian Capital Management, L.L.C., the selling stockholders investment manager, has voting and investment control over the securities.
|
(2)
|
Eric Soderlund and John Barrett, managing members of Corre Partners Management, LLC, the selling stockholders investment manager, have voting and investment control over the securities.
|
(3)
|
Joel Klein, Executive Vice President of PPM America Inc., the selling stockholders investment manager, exercises voting and investment control over the securities as the
attorney-in-fact
for the selling stockholder.
|
(4)
|
Franklin Advisers, Inc. (FAV) is the investment manager for each of the funds and accounts that are the registered holders of these securities. FAV is an indirect wholly owned subsidiary of Franklin
Resources, Inc. (FRI) and may be deemed to be the beneficial owner of these securities for purposes of Rule
13d-3
under the Exchange Act in its capacity as the investment adviser to various
investment companies registered under Section 8 of the Investment Company Act of 1940 and other accounts. When an investment management contract (including a
sub-advisory
agreement) delegates to FAV
investment discretion or voting power over the securities held in the investment advisory accounts that are subject to that agreement, FRI treats FAV as having sole investment discretion or voting authority, as the case may be, unless the agreement
specifies otherwise. Accordingly, FAV reports for purposes of section 13(d) of the Exchange Act that it has sole investment discretion and voting authority over the securities covered by any such investment management agreement, unless otherwise
specifically noted. FAV disclaims beneficial ownership of the securities.
|
7
(5)
|
Goldman Sachs Asset Management, L.P. serves as the investment advisor to certain funds and accounts and holds voting and investment power with respect to the securities held by such funds and accounts, subject to the
oversight of the portfolio management team of Goldman Sachs Asset Management, L.P.
|
(6)
|
The selling stockholder is a wholly owned subsidiary of JPMorgan Chase & Co., which, in its capacity as parent holding company, disclaims beneficial ownership of these shares. Each of Christopher L. Harvey,
Eric J. Stein, Eric D. Tepper, Kelly Cesare Coffey, Jason Edwin Sippel, Matthew Cherwin, Patrick C. Kirby and Robert C. Holmes is a manager of J.P. Morgan Securities LLC, and as such, may be deemed to have voting and dispositive power over the
shares held by J.P. Morgan Securities LLC. Each Christopher L. Harvey, Eric J. Stein, Eric D. Tepper, Kelly Cesare Coffey, Jason Edwin Sippel, Matthew Cherwin, Patrick C. Kirby and Robert C. Holmes disclaims beneficial ownership of the shares.
|
(7)
|
Steven F. Rocco, partner and portfolio manager of Lord, Abbett & Co. LLC, the selling stockholders investment advisor, exercises voting and investment control over the securities.
|
(8)
|
Andrew H. OBrian, partner and portfolio manager of Lord, Abbett & Co. LLC, the selling stockholders investment advisor, exercises voting and investment control over the securities.
|
(9)
|
Shares issuable upon the exercise of warrants. Mr. Fischer
co-founded
the Company in 1988 and served as its chief executive officer and chairman of the board from 1988
through 2016. Mr. Fischer retired from the Company and the board of directors on January 5, 2017 pursuant to our Reorganization Plan.
|
(10)
|
Principal Global Investors, LLC, the selling stockholders investment advisor, exercises voting and investment control over the securities.
|
(11)
|
Silver Point Capital, L.P. is the investment manager of the selling stockholder and, by reason of such status, may be deemed to be the beneficial owner of the securities held by the selling stockholder. Silver Point
Capital Management, LLC is the general partner of Silver Point Capital, L.P. and as a result, may be deemed to be the beneficial owner of the securities held by the selling stockholder. Edward A. Mulé and Robert J. OShea are each
members of Silver Point Capital Management, LLC and as a result, may be deemed to be the beneficial owner of the securities held by the selling stockholder.
|
8
DESCRIPTION OF CAPITAL STOCK
Below, we have summarized the material terms of our Third Amended and Restated Certificate of Incorporation (Certificate of
Incorporation), and our Amended and Restated Bylaws (Bylaws) and relevant sections of the Delaware General Corporation Law (the DGCL). The summaries below are not intended to be complete and are subject to and qualified
in their entirety by our full Certificate of Incorporation and Bylaws, copies of which have been filed as exhibits to our registration statement on our Companys Current Report on Form
8-K
filed on
March 27, 2017 and are incorporated by reference into the Registration Statement of which this prospectus is a part, and by the applicable provisions of the DGCL.
Authorized Capitalization
The Companys authorized capital stock consists of 205,000,000 shares, which include (i) 180,000,000 shares of Class A common stock,
par value $0.01 per share, (ii) 20,000,000 shares of Class B common stock, par value $0.01 per share, and (iii) 5,000,000 shares of preferred stock, par value $0.01 per share.
Class A and Class B Common Stock
The Class A shares and Class B shares have identical economic and voting rights, except that the Class B shares are subject to
certain redemption provisions in the event the Company undertakes an underwritten public offering. The holders of Class A shares and Class B shares at all times vote together as one class on all matters submitted to a vote or for the
consent of the stockholders of the Company. Except as provided by law or in a preferred stock designation, holders of Class A shares and Class B shares 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 the Certificate of Incorporation (including any certificate of designations relating to any series of preferred stock) or pursuant to the
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. Dividends on Class A common stock and Class B common stock in the
form of common stock or the right to receive common stock may be paid only in the form of Class A common stock and Class B common stock, respectively. All outstanding shares of common stock are fully paid and
non-assessable.
Except as described under Stockholders Agreement below, 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 the 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.
Redemption and Conversion of Class B Common Stock
In connection with a demand for an underwritten offering pursuant to the Registration Rights Agreement by holders of at least 20% of the
Companys initial Registrable Securities (an Underwritten Takedown), Class B shares will be subject to redemption by the Company if there is an insufficient number of shares (such insufficient amount, the Shortfall
Number) being offered for sale to successfully consummate the Underwritten Takedown or to create sufficient liquidity for optimal trading of Class A common stock. In such an event, holders of at least 20% of the issued and outstanding
Class B common stock may cause the Company to (i) issue for sale in the Underwritten Takedown a number of Class A shares equal to the Shortfall Number and (ii) redeem a number of Class B shares equal to the Shortfall Number,
on a pro rata basis, subject to certain conditions and limitations (a Redemption). If a Redemption occurs, the issuance of Class A shares and redemption of Class B shares will occur and be effective on the date that the
Underwritten Takedown is consummated and the Company will promptly pay to holders whose Class B shares were redeemed a purchase price per share equal to the public offering price in the Underwritten Takedown, less fees and discounts. Any
Class B shares so redeemed will be retired and not available for reissuance.
9
All Class B shares will automatically be converted into Class A shares on a
one-for-one
basis upon the earliest to occur of (i) December 15, 2018, (ii) a Redemption or (iii) a Public Listing (as defined below) in connection with an
Underwritten Takedown or an initial public offering (any such case, a Conversion). Any Class B shares so converted will be retired and not available for reissuance.
The Company will maintain a number of authorized but unissued Class A shares sufficient to effect a Redemption or Conversion of all
Class B shares.
Drag-Along Rights
At any time prior to the listing of our common stock on a national securities exchange in the United States, whether in connection with an
initial public offering of our common stock or otherwise (a Public Listing), when a holder or group of holders of our common stock (the Approving Stockholder) propose to sell or otherwise dispose of more than 50% of our
common stock to a third party, each holder of our common stock who is not an Approving Stockholder must vote in favor of, consent to and raise no objections to the proposed sale.
Tag-Along
Rights
At any time prior to a Public Listing, a holder or group of holders of our common stock (the Prospective Selling Stockholders) who
propose to sell or otherwise dispose of 25% or more of our common stock to a third party (other than in connection with an underwritten initial public offering that results in either: (1) aggregate cash proceeds over $75 million dollars or
(2) at least 20% of our outstanding common stock being issued and sold to the public) must allow holders of our common stock who are not Prospective Selling Stockholders to participate in the proposed sale.
Stockholders Agreement
In connection with our emergence from bankruptcy in March 2017, we entered into the Stockholders Agreement with certain stockholders, providing
for certain stockholders rights, including minority stockholder protections (including amendment provisions relating to such minority stockholder protections). Among other things, the Stockholders Agreement provides for the following:
|
|
|
Restrictions on Authority of the Board
. Subject to specified exceptions, the Stockholders Agreement provides that we may not, and may not permit our subsidiaries to, take certain actions including but not limited
to entering into (i) a merger, consolidation, or sale of all or substantially all of the Companys assets; (ii) an acquisition outside the ordinary course of business or exceeding $125,000,000; (iii) any issuance of preferred stock or
other capital stock of the Company senior to the Company common stock; (iv) an amendment, waiver or modification of the certificate of incorporation or bylaws of the Company; (v) an incurrence of new indebtedness that would result in the
aggregate indebtedness of the Company exceeding $650,000,000; and (vi) with certain exceptions, an initial public offering on or prior to December 15, 2018, in each case without the approval of holders of at least
two-thirds
of the Companys outstanding common stock.
|
|
|
|
Affiliate Transactions
. The Stockholders Agreement provides restrictions on the authority of the board to enter into or terminate affiliate transactions without the approval of a majority of disinterested members
of the board.
|
|
|
|
Information Rights
. The Stockholders Agreement provides stockholders party to the Stockholders Agreement with certain information rights with respect to the Company.
|
|
|
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Preemptive Rights
. The Stockholders Agreement provides preemptive rights to stockholders holding at least 0.5% of our outstanding common stock, exercisable under certain circumstances upon the issuance of new
capital stock or convertible securities, options or warrants to purchase new capital stock.
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10
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Drag-Along and
Tag-Along
Rights
. The stockholders party to the Stockholders Agreement acknowledge therein that they are subject to the drag-along and
tag-along
provisions set forth in the our Certificate of Incorporation, as described under Drag-Along Rights and
Tag-Along
Rights
above.
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Registration Rights
. The Stockholders Agreement provides registration rights as described in the Registration Rights Agreement.
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Amendment
. Generally, amendments to the Stockholders Agreement must be approved by at least
two-thirds
of the outstanding shares of common stock subject to the Stockholders
Agreement. However, amendments to certain provisions of the Stockholders Agreement require the approval of all stockholders who may be adversely affected by the amendment to such provisions or who would be disproportionately adversely affected
relative to other stockholders by the amendment.
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Termination
. The Stockholders Agreement will terminate upon the earliest to occur of (i) the termination of the agreement by the unanimous written consent of all stockholders of the Company; (ii) the
dissolution, liquidation or winding up of the Company; or (iii) a Public Listing.
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On March 6, 2018, we held a
special meeting of stockholders where the stockholders approved and adopted an amendment to the Stockholders Agreement which (i) removed the restriction on the Companys ability to become subject to Section 13 of the Exchange Act on
or prior to December 15, 2018 without the affirmative approval of the holders of
two-thirds
of the Companys outstanding common stock and (ii) eliminated preemptive rights currently existing
under the Stockholders Agreement which would be applicable to the issuance or sale of Company securities pursuant to a private placement or other transaction exempt from or not subject to the registration requirements of the Securities Act to the
extent such transaction does not result in the issuance of more than 100,000 shares of the Companys common stock and does not result in more than 100 new holders of the Companys common stock.
Preferred Stock
Our Certificate of Incorporation authorizes our board of directors, subject to any limitations prescribed by law, and subject to the
Restrictions set forth in the Stockholders Agreement, to establish and to issue from time to time one or more classes or series of preferred stock, par value $0.01 per share, covering up to an aggregate of 5,000,000 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.
Warrants
On the Effective Date, the Company issued warrants to purchase up to 140,203 Class A shares. The warrants are exercisable until
June 30, 2018 and are initially exercisable for one Class A share per warrant at an initial exercise price of $36.78 per share. The warrant holder will not, by virtue of holding or having a beneficial interest in a warrant, have the right
to vote, to receive dividends, to consent, to receive notice as a stockholder of the Company in respect of any meeting of stockholders of the Company, or to exercise any rights whatsoever as a stockholder of the Company unless, until and only to the
extent the warrant holder becomes a holder of record of Class A shares issued upon exercise of the warrants. Upon the occurrence of certain events constituting a recapitalization, reorganization, reclassification, consolidation, merger, sale of
all or substantially all of the Companys equity securities or assets or other transaction, the warrant holder will have the right to receive, upon exercise of a warrant, the kind and amount of consideration that a holder of one share of common
stock would have owned or been entitled to receive in connection with such event. The warrant holder may elect to exercise a warrant on a cashless basis such that no payment of cash will be required in connection with such exercise.
11
Anti-Takeover Effects of Provisions of our Certificate of Incorporation, our Amended and
Restated Bylaws and Delaware Law
Some provisions of Delaware law, our Certificate of Incorporation and our Bylaws described below
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, summarized below, 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
We are not subject to the provisions of Section 203 of the DGCL, regulating corporate takeovers. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a three-year period following the time that such stockholder becomes an interested stockholder, unless the business
combination is approved in a prescribed manner. A business combination includes, among other things, a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An interested
stockholder is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporations outstanding voting stock. Under
Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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the transaction is approved by the board of directors before the date the interested stockholder attained that status;
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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, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances; or
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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.
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We elected to opt out of the provisions of
Section 203 in our Certificate of Incorporation filed in connection with our emergence from bankruptcy.
Certificate of
Incorporation and Bylaws
Provisions of our Certificate of Incorporation and 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 common stock.
Among other things, our Certificate of
Incorporation and Bylaws:
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permit our board of directors to issue up to 5,000,000 shares of preferred stock, with any rights, preferences and privileges as they may designate;
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12
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provide that the authorized number of directors may be changed only by resolution of the board of directors;
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provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum (prior
to such time, vacancies may also be filled by the affirmative vote of the holders of a majority of our then outstanding common stock);
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provide that our Bylaws may only be amended by the affirmative vote of the holders of a majority of our then outstanding common stock or by resolution adopted by a majority of the directors;
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provide that special meetings of our stockholders may only be called by the board of directors, the chairman of the board of directors, or the holders of a majority of the total voting power of all the shares of our
then outstanding stock entitled to vote generally in the election of directors;
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eliminate the personal liability of our directors for monetary damages resulting from breaches of their fiduciary duty to the extent permitted by the DGCL and indemnify our directors and officers to the fullest extent
permitted by Section 145 of the DGCL;
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provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide notice in writing in a timely manner,
and also specify requirements as to the form and content of a stockholders notice; and
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do not provide for cumulative voting rights, therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election,
if they should so choose.
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Limitation of Liability and Indemnification Matters
Our Certificate of Incorporation limits the liability of our directors for monetary damages for breach of their fiduciary duty as directors,
except for liability that cannot be eliminated under the DGCL. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities:
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for any breach of their duty of loyalty to us or our stockholders;
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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for unlawful payment of dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or
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for any transaction from which the director derived an improper personal benefit.
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Any
amendment, repeal or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal or modification.
Our Certificate of Incorporation and Bylaws also provide that we will indemnify our directors and officers to the fullest extent permitted by
Delaware law. Our Certificate of Incorporation and Bylaws also permit us to purchase insurance on behalf of any officer, director, employee or other agent for any liability arising out of that persons actions as our officer, director, employee
or agent, regardless of whether Delaware law would permit indemnification. We have entered into indemnification agreements with each of our current directors and officers. These agreements require us to indemnify these individuals to the fullest
extent permitted under Delaware law against liability that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We believe that the limitation
of liability provision in our Certificate of Incorporation and the indemnification agreements will facilitate our ability to continue to attract and retain qualified individuals to serve as directors and officers.
13
Other Rights
Under the terms of our Certificate of Incorporation and the Bylaws, we are prohibited from issuing any
non-voting
equity securities to the extent required under Section 1123(a)(6) of the Bankruptcy Code and only for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the
Company.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
14
PLAN OF DISTRIBUTION
As of the date of this prospectus, we have not been advised by the selling stockholders as to any plan of distribution. Distributions of the
common stock by the selling stockholders, or by their partners, pledgees, donees (including charitable organizations), transferees or other successors in interest, may from time to time be offered for sale either directly by such individual, or
through underwriters, dealers or agents or on any exchange on which the common stock may from time to time be traded, in the
over-the-counter
market, or in independently
negotiated transactions or otherwise. The methods by which the common stock may be sold include:
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privately negotiated transactions;
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underwritten transactions;
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exchange distributions and/or secondary distributions;
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sales in the
over-the-counter
market;
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ordinary brokerage transactions and transactions in which the broker solicits purchasers;
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broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
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a block trade (which may involve crosses) in which the broker or dealer so engaged will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the
transaction;
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purchases by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus;
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through the writing of options on the shares, whether or not the options are listed on an options exchange;
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through the distributions of the shares by any selling stockholder to its partners, members or stockholders;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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The selling stockholders may also sell
common stock pursuant to Section 4(a)(2) of the Securities Act or under Rule 144 under the Securities Act, in each case if available, rather than under this prospectus.
The prices at which the common stock offered by this prospectus is sold may include:
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a fixed price or prices, which may be changed;
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prevailing market prices at the time of sale;
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prices related to prevailing market prices, including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents;
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varying prices determined at the time of sale; or
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15
The selling stockholders may effect such transactions by selling the securities to underwriters
or to or through broker-dealers, and such underwriters or broker-dealers may receive compensations in the form of discounts or commissions from the selling stockholders and may receive commissions from the purchasers of the securities for whom they
may act as agent. The selling stockholders may agree to indemnify any underwriter, broker-dealer or agent that participates in transactions involving sales of the common stock against certain liabilities, including liabilities arising under the
Securities Act. We have agreed to register the common stock for sale under the Securities Act and to indemnify the selling stockholders and each person who participates as an underwriter in the offering of the common stock against certain civil
liabilities, including certain liabilities under the Securities Act.
In connection with sales of the securities under this prospectus,
the selling stockholders may enter into hedging transactions with broker-dealers, who may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling stockholders also may sell securities short and
deliver them to close their short positions, or loan or pledge the securities to broker-dealers that in turn may sell them.
The selling
stockholders may from time to time pledge or grant a security interest in some or all of the 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 under an amendment to this prospectus under Rule 424 or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.
The selling stockholders and any underwriters, dealers or agents
that participate in distribution of the securities may be deemed to be underwriters, and any profit on sale of the securities by them and any discounts, commissions or concessions received by any underwriter, dealer or agent may be deemed to be
underwriting discounts and commissions under the Securities Act.
There can be no assurances that the selling stockholders will sell any
or all of the securities offered under this prospectus.
16
LEGAL MATTERS
Certain legal matters in connection with our common stock offered hereby will be passed upon for us by Thompson & Knight LLP, Dallas,
Texas.
EXPERTS
The audited consolidated financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have
been so incorporated by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
Certain estimates of our net oil and natural gas reserves and related information included or incorporated by reference in this prospectus
have been derived from reports prepared by Cawley, Gillespie & Associates, Inc. and Ryder Scott Company, L.P. All such information has been so included or incorporated by reference on the authority of such firms as experts regarding
the matters contained in their reports.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a post-effective amendment on Form
S-3
to the registration statement on
Form
S-1
(the Registration Statement) relating to the shares of common stock offered by this prospectus. This prospectus, which constitutes a part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement or the exhibits and schedules filed with it. For further information about us and the Common Stock, reference is made to the Registration Statement and the exhibits and schedules filed
with it. Statements contained in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the Registration Statement are not necessarily complete, and each such statement is qualified in all
respects by reference to the full text of such contract or other document filed as an exhibit to the Registration Statement. We file annual, quarterly and current reports, proxy and registration statements and other information with the SEC. You may
read and copy any reports, statements or other information that we file, including the Registration Statement, of which this prospectus forms a part, and the exhibits and schedules filed with it, without charge at the Public Reference Room
maintained by the SEC, located at 100 F Street NE, Washington D.C. 20549, and copies of all or any part of the Registration Statement may be obtained from the SEC upon the payment of the fees prescribed by the SEC. Please call the SEC at
1-800-SEC-0330
for further information about the Public Reference Room, including information about the operation of the Public
Reference Room. The SEC also maintains an Internet website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the site is
www.sec.gov
.
We file with or furnish to the SEC periodic reports and other information. These reports and other information may be inspected and copied at
the Public Reference Room maintained by the SEC or obtained from the SECs website as provided above. Our website is located at
www.chaparralenergy.com
. We intend to make our Annual Reports on Form
10-K,
Quarterly Reports on Form
10-Q,
Current Reports on Form
8-K,
amendments to those 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. Information on our website or any other
website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.
We intend to furnish or
make available to our stockholders annual reports containing our audited financial statements prepared in accordance with GAAP. We also intend to furnish or make available to our stockholders quarterly reports containing our unaudited interim
financial information, including the information required by Form
10-Q,
for the first three fiscal quarters of each fiscal year.
17
INCORPORATION BY REFERENCE
We are incorporating by reference specified documents that we file with the SEC, which means that we can disclose important information to you
by referring you to those documents that are considered part of this prospectus. We incorporate by reference into this prospectus the documents listed below (other than portions of those documents that have been furnished pursuant to
Item 2.02 or Item 7.01 in any Current Report on Form
8-K
or other information deemed to have been furnished rather than filed in accordance with the SECs rules):
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Annual Report on Form
10-K
for the year ended December 31, 2017, as filed on March 29, 2018; and
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Current Report on Form
8-K
filed with the SEC on March 9, 2018.
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We are also incorporating by reference all other reports that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of the Registration Statement and prior to effectiveness of the Registration Statement, and all such documents filed after the date of this prospectus and prior to the date of the completion of the offerings to which this
prospectus relates; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form
8-K.
Any statement contained in a document
incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement that is modified or superseded will not be deemed, except as so modified or superseded, to constitute a part
of this prospectus.
Our filings with the SEC, including our Annual Reports on Form
10-K,
Quarterly Reports on Form
10-Q,
Current Reports on Form
8-K
and exhibits incorporated in and amendments to those reports, are available free of charge on our website
(
www.chaparralenergy.com
) as soon as reasonably practicable after they are filed with, or furnished to, the SEC. Our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part
of this prospectus. You may also obtain a copy of these filings (including exhibits incorporated therein by reference) at no cost by writing or telephoning us at the following address or telephone number:
Attention: Investor Relations
Chaparral Energy, Inc.
701 Cedar
Lake Blvd.
Oklahoma City, OK 73114
405-426-6700
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth an itemized
statement of the amounts of all expenses payable by us in connection with the registration of the common stock offered hereby. With the exception of the SEC Registration Fee, the amounts set forth below are estimates.
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SEC Registration Fee
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$
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51,716
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*
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Accountants fees and expenses
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$
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25,000
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Legal fees and expenses
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$
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140,000
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Printing and engraving expenses
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$
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45,000
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Miscellaneous
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$
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50,000
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Total
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$
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311,716
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Item 15.
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Indemnification of Directors and Officers
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Section 145(a) of Delaware General
Corporation Law (DGCL) provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit, or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL
provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its
favor because the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against expenses (including attorneys fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem proper.
Section 145(e) of the DGCL
provides that expenses (including attorneys fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation
as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such expenses (including attorneys fees) incurred by former directors and officers or other employees or agents of the corporation may be so
paid upon such terms and conditions as the corporation deems appropriate.
Section 145(g) of the DGCL provides, in general, that a
corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint
II-1
venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify the person against such liability under Section 145 of the DGCL.
The
Registrants Amended and Restated Bylaws provide that the Registrant will indemnify and hold harmless, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party or is otherwise involved in
any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she is or was one of the Registrants directors or officers or is or was serving at
the Registrants request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrants Third Amended and Restated Certificate of Incorporation (the Certificate of
Incorporation) further provide for the advancement of expenses to each of its officers and directors.
The Registrants
Certificate of Incorporation provides that, to the fullest extent permitted by the DGCL, the Registrants directors shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a
director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (1) for any breach of the
directors duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (relating to
unlawful payment of dividend or unlawful stock purchase or redemption); or (4) for any transaction from which the director derived an improper personal benefit.
The Registrant also maintains a general liability insurance policy which covers certain liabilities of directors and officers of the
Registrant arising out of claims based on acts or omissions in their capacities as directors or officers, whether or not the Registrant would have the power to indemnify such person against such liability under the DGCL or the provisions of the
Registrants certificate of incorporation.
The Registrant has also entered into indemnification agreements with each of the
Registrants directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by the Registrants certificate of incorporation
or bylaws.
Item 16.
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Exhibits and Financial Statement Schedules
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The following documents are filed as
exhibits to this registration statement:
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Exhibit
No.
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Description
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2.1*
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First Amended Joint Plan of Reorganization for Chaparral Energy, Inc. and its Affiliate Debtors Under Chapter 11 of the Bankruptcy Code, dated
March 7, 2017 (Incorporated by reference to Exhibit 1 of Exhibit 99.1 of the Companys Current Report on Form
8-K
filed on March 14, 2017).
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2.2*
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Asset Purchase and Sale Agreement dated October
13, 2017, by and among Chaparral Energy, L.L.C., Chaparral CO2, L.L.C., Chaparral Real Estate, L.L.C., and Perdure Petroleum, L.L.C. (Incorporated by reference to Exhibit 2.1 of the Companys Current Report on Form
8-K
filed on November 21, 2017).
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2.3*
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Purchase and Sale Agreement dated December
22, 2017, by and among Blake Production Company, Inc., Fairway Energy L.L.C., Vernon Resources L.L.C., ABV Ventures L.L.C., and Chaparral Energy, L.L.C. (Incorporated by reference to Exhibit 2.1 of the Companys Current Report on Form
8-K
filed on December 27, 2017).
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2.4*
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First Amendment to Purchase and Sale Agreement dated January
2, 2018, by and among Blake Production Company, Inc., Fairway Energy L.L.C., Vernon Resources LLC, ABV Ventures LLC and Chaparral Energy, L.L.C. (Incorporated by reference to Exhibit 2.4 of the Companys Annual Report on Form
10-K
filed on March 29, 2018).
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II-2
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Exhibit
No.
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Description
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2.5*
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Purchase and Sale Agreement dated December
22, 2017, by and between BVD INC. and Chaparral Energy, L.L.C. (Incorporated by reference to Exhibit 2.2 of the Companys Current Report on Form
8-K
filed on December 27, 2017).
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4.1*
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Third Amended and Restated Certificate of Incorporation of Chaparral Energy, Inc., dated as of March
21, 2017 (Incorporated by reference to Exhibit 3.1 of the Companys Current Report on Form
8-K
filed on March 27, 2017).
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4.2*
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Amended and Restated Bylaws of Chaparral Energy, Inc., dated as of March
21, 2017 (Incorporated by reference to Exhibit 3.2 of the Companys Current Report on Form
8-K
filed on March 27, 2017).
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4.3*
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Registration Rights Agreement, dated as of March
21, 2017, by and among Chaparral Energy, Inc. and the Stockholders named therein (Incorporated by reference to Exhibit 10.2 of the Companys Current Report on Form
8-K
filed on March 27, 2017).
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4.4*
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Warrant Agreement dated as of March
21, 2017, among Chaparral Energy, Inc. and Computershare Inc. as warrant agent (Incorporated by reference to Exhibit 10.3 of the Companys Current Report on Form
8-K
filed on March 27, 2017).
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4.5*
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Stockholders Agreement, dated as of March
21, 2017, by and among Chaparral Energy, Inc. and the Stockholders named therein (Incorporated by reference to Exhibit 10.4 of the Companys Current Report on Form
8-K
filed on March 27, 2017).
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4.6*
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First Amendment to Stockholders Agreement, dated as of March
6, 2018, by and among Chaparral Energy, Inc. and the Stockholders named therein (Incorporated by reference to Exhibit 4.1 of the Companys Current Report on Form
8-K
filed on March 9, 2018).
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5.1
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Opinion of Thompson & Knight LLP regarding the validity of the securities being registered.
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23.1
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Consent of Thompson & Knight LLP (contained in Exhibit 5.1).
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23.2
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Consent of Grant Thornton LLP.
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23.3
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Consent of Cawley, Gillespie & Associates, Inc.
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23.4
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Consent of Ryder Scott Company, L.P.
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24.1*
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Powers of Attorney (included on signature pages of the Registration Statement on Form
S-1
of Chaparral Energy,
Inc. filed on June 7, 2017).
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99.1*
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Report of Cawley, Gillespie
& Associates, Inc. (Incorporated by reference to Exhibit 99.1 of the Companys Annual Report on Form
10-K
filed on March 29, 2018).
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99.2*
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Findings of Fact, Conclusions of Law and Order Confirming the First Amended Joint Plan of Reorganization for Chaparral Energy, Inc. and its Affiliate
Debtors Under Chapter 11 of the Bankruptcy Code, as entered by the Bankruptcy Court on March 10, 2017 (Incorporated by reference to Exhibit 99.1 of the Companys Current Report on Form
8-K
filed on
March 14, 2017).
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*
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Incorporated by reference.
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The schedules and exhibits to this agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation
S-K.
Chaparral Energy, Inc. will furnish copies of such
schedules to the Securities and Exchange Commission upon request.
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II-3
(a)
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The undersigned registrant hereby undertakes:
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1.
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 Commission 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 Registration Fee table in the effective registration statement; and
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(iii)
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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;
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provided,
however, that paragraphs (a)(1)(i), (ii) and (iii) 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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 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.
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2.
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That, for the purpose of determining any liability under the Securities Act of 1933, 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.
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3.
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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.
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4.
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration
statement; and
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(ii)
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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 of 1933 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; p
rovided, however
, that no
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II-4
|
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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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma City, State of Oklahoma, on April 20, 2018.
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Chaparral Energy, Inc.
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By:
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/s/ K. Earl Reynolds
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Name: K. Earl Reynolds
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Title:
Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
by the following persons in the capacities indicated on April 20, 2018.
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Signature
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Title
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/s/ K. Earl Reynolds
K. Earl Reynolds
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Chief Executive Officer and Director
(Principal Executive Officer)
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*
Joseph O. Evans
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Chief Financial Officer and Executive Vice President
(Principal Financial Officer and
Principal Accounting Officer)
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*
Robert F. Heinemann
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Director
(Chairman)
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*
Douglas E. Brooks
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Director
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*
Matthew D. Cabell
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Director
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*
Samuel Langford
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Director
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*
Kenneth W. Moore
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Director
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*
Gysle Shellum
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Director
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K. Earl Reynolds hereby signs this Post-Effective Amendment No. 1 to the Registration Statement on behalf
of the indicated person for whom he is
attorney-in-fact
on April 20, 2018, pursuant to powers of attorney previously included with the Registration Statement on
Form
S-1
of Chaparral Energy, Inc. filed on June 7, 2017 with the Securities and Exchange Commission.
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*By:
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/s/ K. Earl Reynolds
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K. Earl Reynolds
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Attorney-in-Fact
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II-6