| |
Delaware
(State or other jurisdiction of incorporation or organization) |
| |
1311
(Primary Standard Industrial Classification Code Number) |
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85-0886382
(I.R.S. Employer Identification Number) |
|
| |
Samantha H. Crispin
M. Preston Bernhisel Adorys Velazquez Baker Botts L.L.P. 2001 Ross Avenue, Suite 900 Dallas, Texas 75201 (214) 953-6500 |
| |
Michael Chambers
Monica E. White Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas 77002 (713) 546-5400 |
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Large accelerated filer
☐
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Accelerated filer
☐
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Non-accelerated filer
☒
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Smaller reporting company
☐
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Emerging growth company
☒
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| | | | | F-1 | | | |
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Project
|
| |
Status(1)
|
| |
Actual or Forecasted
Initiation of Sequestration Operations(2) |
| |
Forecasted Annual
Sequestration Volumes (Mtpy CO2e)(3) |
| |||
|
Barnett Zero
|
| |
Operating
|
| |
November 2023
|
| | | | 0.18 | | |
|
Cotton Cove
|
| |
FID
|
| |
1H 2026
|
| | | | 0.04 | | |
|
8 NGP Projects
|
| |
Pre-FID
|
| |
2025 – 2029
|
| | | | 2.68 | | |
|
3 Industrial Projects
|
| |
Pre-FID
|
| |
2026 – 2027
|
| | | | 11.15 | | |
|
4 Ethanol Projects
|
| |
Pre-FID
|
| |
2027 – 2029
|
| | | | 2.56 | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
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| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| | | |
(in thousands, except per share amounts)
|
| |||||||||||||||||||||||||||
| Revenues and other operating income | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
|
Natural gas revenues
|
| | | $ | 179,175 | | | | | $ | 257,032 | | | | | $ | 509,846 | | | | | $ | 1,310,339 | | | | | $ | 597,050 | | |
|
NGL revenues
|
| | | | 84,632 | | | | | | 91,477 | | | | | | 187,860 | | | | | | 311,542 | | | | | | 225,135 | | |
|
Oil revenues
|
| | | | 3,734 | | | | | | 4,398 | | | | | | 8,445 | | | | | | 11,866 | | | | | | 7,560 | | |
|
Natural gas, NGL, and oil revenues
|
| | | | 267,541 | | | | | | 352,907 | | | | | | 706,151 | | | | | | 1,633,747 | | | | | | 829,745 | | |
|
Midstream revenues
|
| | | | 7,506 | | | | | | 8,428 | | | | | | 16,168 | | | | | | 12,676 | | | | | | 6,917 | | |
|
Derivative gains (losses), net
|
| | | | (11,165) | | | | | | 116,947 | | | | | | 238,743 | | | | | | (629,701) | | | | | | (383,847) | | |
|
Marketing revenues
|
| | | | 6,967 | | | | | | 4,732 | | | | | | 8,710 | | | | | | 11,001 | | | | | | 52,616 | | |
|
Gain on sale of assets
|
| | | | 6,784 | | | | | | 339 | | | | | | — | | | | | | — | | | | | | — | | |
|
Related party and other
|
| | | | 10,479 | | | | | | 3,314 | | | | | | 8,251 | | | | | | 2,799 | | | | | | 251 | | |
|
Total revenues and other operating income
|
| | | | 288,112 | | | | | | 486,667 | | | | | | 978,023 | | | | | | 1,030,522 | | | | | | 505,682 | | |
| Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | | 68,640 | | | | | | 80,723 | | | | | | 150,647 | | | | | | 131,497 | | | | | | 86,831 | | |
|
Taxes other than income
|
| | | | 21,215 | | | | | | 41,496 | | | | | | 72,290 | | | | | | 114,668 | | | | | | 45,650 | | |
|
Gathering and transportation
|
| | | | 113,105 | | | | | | 120,586 | | | | | | 248,990 | | | | | | 208,758 | | | | | | 173,587 | | |
|
Depreciation, depletion, amortization, and accretion(1)
|
| | | | 111,479 | | | | | | 78,354 | | | | | | 223,370 | | | | | | 118,909 | | | | | | 92,277 | | |
|
General and administrative
|
| | | | 39,941 | | | | | | 52,488 | | | | | | 114,688 | | | | | | 148,559 | | | | | | 85,740 | | |
|
Other
|
| | | | 11,276 | | | | | | 8,483 | | | | | | 12,625 | | | | | | 3,567 | | | | | | 1,274 | | |
|
Total operating expenses
|
| | | | 365,656 | | | | | | 382,130 | | | | | | 822,610 | | | | | | 725,958 | | | | | | 485,359 | | |
|
Income (loss) from operations
|
| | | | (77,544) | | | | | | 104,537 | | | | | | 155,413 | | | | | | 304,564 | | | | | | 20,323 | | |
| Other income (expense) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Bargain purchase gain
|
| | | | — | | | | | | — | | | | | | — | | | | | | 170,853 | | | | | | — | | |
|
Gain on settlement of litigation
|
| | | | — | | | | | | — | | | | | | — | | | | | | 16,866 | | | | | | — | | |
|
Gains (losses) on contingent consideration(2)
|
| | | | 6,070 | | | | | | 22,910 | | | | | | 38,375 | | | | | | 6,632 | | | | | | (194,968) | | |
|
Earnings (losses) from equity affiliate
|
| | | | (22,960) | | | | | | (14,275) | | | | | | 16,865 | | | | | | 8,493 | | | | | | 910 | | |
|
Loss on debt extinguishment
|
| | | | (13,877) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Interest income
|
| | | | 3,404 | | | | | | 1,136 | | | | | | 3,138 | | | | | | 1,143 | | | | | | 8 | | |
|
Interest expense
|
| | | | (31,246) | | | | | | (34,377) | | | | | | (69,942) | | | | | | (26,322) | | | | | | — | | |
|
Interest expense, related party
|
| | | | (3,852) | | | | | | (3,083) | | | | | | (7,078) | | | | | | (10,846) | | | | | | (2,134) | | |
|
Other income
|
| | | | 350 | | | | | | 1,851 | | | | | | 8,372 | | | | | | 1,411 | | | | | | 872 | | |
|
Income (loss) before income taxes
|
| | | | (139,655) | | | | | | 78,699 | | | | | | 145,143 | | | | | | 472,794 | | | | | | (174,989) | | |
|
Income tax benefit (expense)
|
| | | | 41,373 | | | | | | (17,885) | | | | | | (28,225) | | | | | | (62,652) | | | | | | 40,526 | | |
|
Net income (loss) attributable to BKV Corporation
|
| | | | (98,282) | | | | | | 60,814 | | | | | | 116,918 | | | | | | 410,142 | | | | | | (134,463) | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
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| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| | | |
(in thousands, except per share amounts)
|
| |||||||||||||||||||||||||||
|
Less accretion of preferred stock to redemption
value |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (3,745) | | |
|
Less preferred stock dividends
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (9,900) | | |
|
Less deemed dividend on redemption of preferred stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (22,606) | | |
|
Net income (loss) attributable to common stockholders
|
| | | | (98,282) | | | | | | 60,814 | | | | | | 116,918 | | | | | | 410,142 | | | | | | (170,714) | | |
| Net income (loss) per common share(3) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | $ | (1.48) | | | | | $ | 1.03 | | | | | $ | 1.93 | | | | | $ | 6.99 | | | | | $ | (2.92) | | |
|
Diluted
|
| | | $ | (1.48) | | | | | $ | 0.97 | | | | | $ | 1.82 | | | | | $ | 6.62 | | | | | $ | (2.92) | | |
|
Weighted average number of common shares outstanding(3)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | | 66,318 | | | | | | 58,779 | | | | | | 60,730 | | | | | | 58,659 | | | | | | 58,496 | | |
|
Diluted
|
| | | | 66,318 | | | | | | 62,434 | | | | | | 64,380 | | | | | | 61,990 | | | | | | 58,496 | | |
| Balance sheet information (at period end): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Cash and cash equivalents
|
| | | $ | 9,197 | | | | | $ | 22,421 | | | | | $ | 25,407 | | | | | $ | 153,128 | | | | | $ | 134,667 | | |
|
Restricted cash(4)
|
| | | $ | — | | | | | $ | — | | | | | $ | 139,662 | | | | | $ | — | | | | | $ | — | | |
|
Total natural gas properties, net
|
| | | $ | 1,911,235 | | | | | $ | 2,237,870 | | | | | $ | 2,125,442 | | | | | $ | 2,209,518 | | | | | $ | 1,176,117 | | |
|
Total assets
|
| | | $ | 2,247,510 | | | | | $ | 2,503,242 | | | | | $ | 2,683,146 | | | | | $ | 2,702,573 | | | | | $ | 1,620,828 | | |
|
Total liabilities
|
| | | $ | 858,480 | | | | | $ | 1,239,558 | | | | | $ | 1,197,979 | | | | | $ | 1,506,649 | | | | | $ | 865,889 | | |
|
Total mezzanine equity
|
| | | $ | 189,888 | | | | | $ | 142,149 | | | | | $ | 186,954 | | | | | $ | 151,883 | | | | | $ | 83,847 | | |
|
Total stockholders’ equity
|
| | | $ | 1,199,142 | | | | | $ | 1,121,535 | | | | | $ | 1,298,213 | | | | | $ | 1,044,041 | | | | | $ | 671,092 | | |
| Statement of cash flows information | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Net cash provided by operating activities
|
| | | $ | 9,782 | | | | | $ | 80,924 | | | | | $ | 123,076 | | | | | $ | 349,194 | | | | | $ | 358,133 | | |
|
Net cash provided by (used in) investing activities
|
| | | $ | 101,633 | | | | | $ | (128,606) | | | | | $ | (177,848) | | | | | $ | (865,566) | | | | | $ | (161,858) | | |
|
Net cash provided by (used in) financing activities
|
| | | $ | (267,287) | | | | | $ | (83,025) | | | | | $ | 66,713 | | | | | $ | 534,833 | | | | | $ | (79,053) | | |
| Other financial data (unaudited)(5) | | | | | | | |||||||||||||||||||||||||
|
Adjusted EBITDAX
|
| | | $ | 108,837 | | | | | $ | 117,045 | | | | | $ | 251,158 | | | | | $ | 575,504 | | | | | $ | 281,024 | | |
|
Upstream capital expenditures (accrued)(6)
|
| | | $ | 25,528 | | | | | $ | 91,522 | | | | | $ | 107,544 | | | | | $ | 253,179 | | | | | $ | 77,634 | | |
|
Upstream Reinvestment Rate(6)
|
| | | | 23% | | | | | | 78% | | | | | | 43% | | | | | | 44% | | | | | | 28% | | |
|
Adjusted Free Cash Flow
|
| | | $ | 67,055 | | | | | $ | (11,389) | | | | | $ | 19,132 | | | | | $ | 169,213 | | | | | $ | 165,090 | | |
|
Adjusted Free Cash Flow Margin
|
| | | | 22% | | | | | | (3)% | | | | | | 3% | | | | | | 10% | | | | | | 19% | | |
|
Adjusted Free Cash Flow, Excluding CCUS
|
| | | $ | 76,866 | | | | | $ | 6,493 | | | | | $ | 83,746 | | | | | $ | 190,160 | | | | | $ | 165,090 | | |
|
Adjusted Free Cash Flow Margin, Excluding CCUS(7)
|
| | | | 26.2% | | | | | | 1.8% | | | | | | 11.3% | | | | | | 11.5% | | | | | | 18.6% | | |
|
Total Net Leverage Ratio
|
| | | | 1.84x | | | | | | 2.69x | | | | | | 1.95x | | | | | | 1.00x | | | | | | 0.11x | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| | | |
(in thousands)
|
| |||||||||||||||||||||||||||
|
Net income (loss) attributable to BKV Corporation
|
| | | $ | (98,282) | | | | | $ | 60,814 | | | | | $ | 116,918 | | | | | $ | 410,142 | | | | | $ | (134,463) | | |
|
Unrealized derivative (gains)
losses |
| | | | 79,100 | | | | | | (46,245) | | | | | | (148,564) | | | | | | (58,815) | | | | | | 115,161 | | |
|
Forward month gas derivative settlement(1)
|
| | | | 83 | | | | | | (2,938) | | | | | | (9,807) | | | | | | (8,826) | | | | | | 15,406 | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 111,650 | | | | | | 79,026 | | | | | | 224,427 | | | | | | 130,038 | | | | | | 98,833 | | |
|
Exploration and impairment expense
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 34 | | |
|
Change in contingent consideration liabilities
|
| | | | (6,070) | | | | | | (22,910) | | | | | | (38,375) | | | | | | (6,632) | | | | | | 194,968 | | |
|
Interest expense
|
| | | | 31,246 | | | | | | 34,377 | | | | | | 69,942 | | | | | | 26,322 | | | | | | — | | |
|
Interest expense, related party
|
| | | | 3,852 | | | | | | 3,083 | | | | | | 7,078 | | | | | | 10,846 | | | | | | 2,134 | | |
|
Loss on debt extinguishment
|
| | | | 13,877 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Income tax expense (benefit)
|
| | | | (41,373) | | | | | | 17,885 | | | | | | 28,225 | | | | | | 62,652 | | | | | | (40,526) | | |
|
Equity-based compensation
expense |
| | | | 2,145 | | | | | | 10,295 | | | | | | 25,756 | | | | | | 31,947 | | | | | | 30,387 | | |
|
Bargain purchase gain
|
| | | | — | | | | | | — | | | | | | — | | | | | | (170,853) | | | | | | — | | |
|
Gain on sales of non-operated interest in proved reserves
|
| | | | (5,451) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
(Earnings) losses from equity affiliate
|
| | | | 22,960 | | | | | | 14,275 | | | | | | (16,865) | | | | | | (8,493) | | | | | | (910) | | |
|
Total settlements paid (received) for early-terminated derivative contracts during the
period(2) |
| | | | (13,250) | | | | | | (39,124) | | | | | | (46,701) | | | | | | 158,448 | | | | | | — | | |
|
Settlements (paid) received for early-terminated derivative contracts related to the period presented(3)
|
| | | | 8,350 | | | | | | 8,507 | | | | | | 39,124 | | | | | | (1,272) | | | | | | — | | |
|
Adjusted EBITDAX
|
| | | $ | 108,837 | | | | | $ | 117,045 | | | | | $ | 251,158 | | | | | $ | 575,504 | | | | | $ | 281,024 | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
|
Total cash settlements paid (received) for early-terminated derivative contracts during the period
|
| | | $ | (13,250) | | | | | $ | (39,124) | | | | | $ | (46,701) | | | | | $ | 158,448 | | | | | $ | — | | |
|
Cash settlements (paid) received for early-terminated
derivative contracts related to the period presented |
| | | | 8,350 | | | | | $ | 8,507 | | | | | | 39,124 | | | | | | (1,272) | | | | | | — | | |
|
Cash settlements paid (received) for early-terminated
derivative contracts related to future periods |
| | | $ | (4,900) | | | | | $ | (30,617) | | | | | $ | (7,577) | | | | | $ | 157,176 | | | | | $ | — | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| | | |
(in thousands)
|
| |||||||||||||||||||||||||||
|
Net cash provided by operating activities
|
| | | $ | 9,782 | | | | | $ | 80,924 | | | | | $ | 123,076 | | | | | $ | 349,194 | | | | | $ | 358,133 | | |
|
Cash paid for contingent consideration(1)
|
| | | | 20,000 | | | | | | 65,000 | | | | | | 65,000 | | | | | | 45,300 | | | | | | — | | |
|
Changes in operating assets and liabilities
|
| | | | 68,395 | | | | | | (32,008) | | | | | | 18,437 | | | | | | 22,816 | | | | | | (126,862) | | |
|
Cash paid for capital expenditures
|
| | | | (31,122) | | | | | | (125,305) | | | | | | (187,381) | | | | | | (248,097) | | | | | | (66,181) | | |
|
Adjusted Free Cash Flow(2)
|
| | | $ | 67,055 | | | | | $ | (11,389) | | | | | $ | 19,132 | | | | | $ | 169,213 | | | | | $ | 165,090 | | |
|
Less net cash used in CCUS operating activities
|
| | | | (8,525) | | | | | | (9,413) | | | | | | (15,402) | | | | | | (15,184) | | | | | | — | | |
|
Less changes in CCUS operating assets and
liabilities |
| | | | 5,828 | | | | | | 2,417 | | | | | | 710 | | | | | | (341) | | | | | | — | | |
|
Less cash paid for CCUS capital expenditures
|
| | | | (7,114) | | | | | | (10,886) | | | | | | (49,922) | | | | | | (5,422) | | | | | | — | | |
|
Adjusted Free Cash Flow, Excluding
CCUS(2) |
| | | $ | 76,866 | | | | | $ | 6,493 | | | | | $ | 83,746 | | | | | $ | 190,160 | | | | | $ | 165,090 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Estimated proved developed reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,443,072 | | | | | | 3,798,019 | | | | | | 2,494,925 | | |
|
Producing
|
| | | | 2,290,025 | | | | | | 3,468,896 | | | | | | 2,346,712 | | |
|
Non-producing
|
| | | | 153,047 | | | | | | 329,123 | | | | | | 148,213 | | |
|
Natural gas liquids (MBbls)
|
| | | | 156,399 | | | | | | 170,840 | | | | | | 151,433 | | |
|
Producing
|
| | | | 129,260 | | | | | | 157,585 | | | | | | 142,961 | | |
|
Non-producing
|
| | | | 27,139 | | | | | | 13,255 | | | | | | 8,472 | | |
|
Oil (MBbls)
|
| | | | 992 | | | | | | 1,111 | | | | | | 867 | | |
|
Producing
|
| | | | 802 | | | | | | 1,111 | | | | | | 867 | | |
|
Non-producing
|
| | | | 190 | | | | | | — | | | | | | — | | |
|
Total estimated proved developed reserves (MMcfe)
|
| | | | 3,387,418 | | | | | | 4,829,733 | | | | | | 3,408,725 | | |
|
Producing
|
| | | | 3,070,397 | | | | | | 4,421,072 | | | | | | 3,209,680 | | |
|
Non-producing
|
| | | | 317,021 | | | | | | 408,653 | | | | | | 199,045 | | |
|
Standardized Measure (millions)
|
| | | $ | 986 | | | | | $ | 5,809 | | | | | $ | 2,119 | | |
|
PV-10 (millions)(2)(3)
|
| | | $ | 1,151 | | | | | $ | 7,389 | | | | | $ | 2,672 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Estimated proved undeveloped reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 539,423 | | | | | | 1,057,657 | | | | | | 950,358 | | |
|
Natural gas liquids (MBbls)
|
| | | | 27,766 | | | | | | 40,660 | | | | | | 13,722 | | |
|
Oil (MBbls)
|
| | | | 59 | | | | | | 758 | | | | | | 58 | | |
|
Total estimated proved undeveloped reserves (MMcfe)(4)(5)
|
| | | | 706,373 | | | | | | 1,306,157 | | | | | | 1,033,038 | | |
|
Standardized Measure (millions)
|
| | | $ | 48 | | | | | $ | 1,185 | | | | | $ | 295 | | |
|
PV-10 (millions)(2)(6)
|
| | | $ | 81 | | | | | $ | 1,566 | | | | | $ | 403 | | |
| Estimated total proved reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,982,495 | | | | | | 4,855,676 | | | | | | 3,445,283 | | |
|
Natural gas liquids (MBbls)
|
| | | | 184,165 | | | | | | 211,500 | | | | | | 165,155 | | |
|
Oil (MBbls)
|
| | | | 1,051 | | | | | | 1,869 | | | | | | 925 | | |
|
Total estimated proved reserves (MMcfe)
|
| | | | 4,093,791 | | | | | | 6,135,890 | | | | | | 4,441,763 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,034 | | | | | $ | 6,994 | | | | | $ | 2,414 | | |
|
PV-10 (millions)(2)(7)
|
| | | $ | 1,232 | | | | | $ | 8,955 | | | | | $ | 3,075 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 1,151 | | | | | $ | 7,389 | | | | | $ | 2,672 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (165) | | | | | | (1,580) | | | | | | (553) | | |
|
Standardized Measure
|
| | | $ | 986 | | | | | $ | 5,809 | | | | | $ | 2,119 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 81 | | | | | $ | 1,566 | | | | | $ | 403 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (33) | | | | | | (381) | | | | | | (108) | | |
|
Standardized Measure
|
| | | $ | 48 | | | | | $ | 1,185 | | | | | $ | 295 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 1,232 | | | | | $ | 8,955 | | | | | $ | 3,074 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (198) | | | | | | (1,961) | | | | | | (661) | | |
|
Standardized Measure
|
| | | $ | 1,034 | | | | | $ | 6,994 | | | | | $ | 2,413 | | |
| | | |
December 31,
2023 |
| |||
| Estimated proved developed reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,984,949 | | |
|
Producing
|
| | | | 2,791,791 | | |
|
Non-producing
|
| | | | 193,158 | | |
|
Natural gas liquids (MBbls)
|
| | | | 164,204 | | |
|
Producing
|
| | | | 134,689 | | |
|
Non-producing
|
| | | | 29,515 | | |
|
Oil (MBbls)
|
| | | | 1,046 | | |
|
Producing
|
| | | | 808 | | |
|
Non-producing
|
| | | | 238 | | |
|
Total estimated proved developed reserves (MMcfe)
|
| | | | 3,976,436 | | |
|
Producing
|
| | | | 3,604,773 | | |
|
Non-producing
|
| | | | 371,663 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,651 | | |
|
PV-10 (millions)(1)
|
| | | $ | 2,015 | | |
| Estimated proved undeveloped reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 790,838 | | |
|
Natural gas liquids (MBbls)
|
| | | | 30,500 | | |
|
Oil (MBbls)
|
| | | | 59 | | |
|
Total estimated proved undeveloped reserves (MMcfe)(2)(3)
|
| | | | 974,192 | | |
|
Standardized Measure (millions)
|
| | | $ | 244 | | |
|
PV-10 (millions)(4)
|
| | | $ | 335 | | |
| Estimated total proved reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 3,775,787 | | |
|
Natural gas liquids (MBbls)
|
| | | | 194,704 | | |
|
Oil (MBbls)
|
| | | | 1,105 | | |
|
Total estimated proved reserves (MMcfe)
|
| | | | 4,950,628 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,895 | | |
|
PV-10 (millions)(5)
|
| | | $ | 2,350 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 2,015 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (364) | | |
|
Standardized Measure
|
| | | $ | 1,651 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 335 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (91) | | |
|
Standardized Measure
|
| | | $ | 244 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 2,350 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (455) | | |
|
Standardized Measure
|
| | | $ | 1,895 | | |
| | | |
As of June 30, 2024
|
| |||||||||
| | | |
Actual
|
| |
As Adjusted
|
| ||||||
|
(in thousands, except shares and par value)
|
| |
(unaudited)
|
| |||||||||
|
Cash and cash equivalents, including restricted cash
|
| | | $ | 9,197 | | | | | $ | | | |
| Debt: | | | | | | | | | | | | | |
|
Notes payable to related party(1)
|
| | | $ | 50,000 | | | | | $ | | | |
|
RBL Credit Agreement
|
| | | | 360,000 | | | | | | | | |
|
Total debt(2)
|
| | | $ | 410,000 | | | | | $ | | | |
| Mezzanine equity(3): | | | | | | | | | | | | | |
|
Common stock – minority ownership puttable shares
|
| | | $ | 60,476 | | | | | $ | | | |
|
Equity-based compensation
|
| | | | 129,412 | | | | | | | | |
|
Total mezzanine equity
|
| | | $ | 189,888 | | | | | $ | | | |
| Stockholders’ equity(4): | | | | | | | | | | | | | |
|
Common stock, par value $0.01 per share; 300,000,000 authorized shares; 63,872,734 shares issued and outstanding, actual; and shares issued and outstanding, as adjusted(5)
|
| | | $ | 1,283 | | | | | $ | | | |
|
Treasury stock, shares at cost; 213,528 shares
|
| | | | (4,582) | | | | | | | | |
|
Additional paid-in capital
|
| | | | 1,033,355 | | | | | | | | |
|
Retained earnings
|
| | | | 169,086 | | | | | | | | |
|
Total stockholders’ equity
|
| | | $ | 1,199,142 | | | | | $ | | | |
|
Total capitalization
|
| | | $ | 1,808,227 | | | | | $ | | | |
| |
Assumed initial public offering price per share
|
| | | | | | | | | $ | | | |
| |
Net tangible book value per share as of June 30, 2024
|
| | | $ | | | | | | | | | |
| |
Increase in pro forma net tangible book value per share attributable to new investors in this offering
|
| | | | | | | | | | | | |
| |
Less: As adjusted net tangible book value per share of common stock after giving effect to this offering
|
| | | | | | | | | | | | |
| |
Dilution in as adjusted net tangible book value per share to new investors from this offering
|
| | | | | | | | | $ | | | |
| | | |
SHARES
|
| |
TOTAL CONSIDERATION
|
| |
AVERAGE
PRICE PER SHARE |
| |||||||||||||||||||||
| | | |
NUMBER
|
| |
PERCENT
|
| |
AMOUNT
|
| |
PERCENT
|
| ||||||||||||||||||
|
Existing investors
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Existing common stock stockholders
|
| | | | | | | | | | % | | | | | $ | | | | | | | % | | | | | $ | | | |
|
Existing mezzanine equity stockholders(1)
|
| | | | | | | | | % | | | | | | | | | | | % | | | |
|
| |||||
|
Total existing stockholders
|
| | | | | | | | | | % | | | | | | | | | | | | % | | | | | | | | |
|
New investors
|
| | | | | | | | | | % | | | | | | | | | | | | % | | | | | | | | |
|
Total
|
| | | | | | | | | | 100% | | | | | $ | | | | | | 100% | | | | | $ | | | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended
December 31, |
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
|
Natural gas sales
|
| | | | 67% | | | | | | 74% | | | | | | 72% | | | | | | 80% | | | | | | 72% | | |
|
NGL sales
|
| | | | 32% | | | | | | 26% | | | | | | 27% | | | | | | 19% | | | | | | 27% | | |
|
Oil sales
|
| | | | 1% | | | | | | 1% | | | | | | 1% | | | | | | 1% | | | | | | 1% | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
|
Production Data
|
| |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
|
Natural gas (MMcf)
|
| | | | 116,756 | | | | | | 126,898 | | | | | | 249,766 | | | | | | 217,585 | | | | | | 186,055 | | |
|
NGLs (MBbls)
|
| | | | 4,987 | | | | | | 5,280 | | | | | | 10,554 | | | | | | 10,187 | | | | | | 9,829 | | |
|
Oil (MBbls)
|
| | | | 52 | | | | | | 63 | | | | | | 119 | | | | | | 140 | | | | | | 123 | | |
|
Total volumes (MMcfe)
|
| | | | 146,990 | | | | | | 158,956 | | | | | | 313,804 | | | | | | 279,547 | | | | | | 245,767 | | |
|
Average daily total volumes (MMcfe/d)
|
| | | | 807.6 | | | | | | 878.2 | | | | | | 859.7 | | | | | | 765.9 | | | | | | 673.3 | | |
| | | |
Six Months Ended
June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| Average prices: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (Mcf):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Average NYMEX Henry Hub price
|
| | | $ | 2.07 | | | | | $ | 2.76 | | | | | $ | 2.74 | | | | | $ | 6.64 | | | | | $ | 3.84 | | |
|
Average natural gas realized price (excluding derivatives)
|
| | | $ | 1.53 | | | | | $ | 2.03 | | | | | $ | 2.04 | | | | | $ | 6.02 | | | | | $ | 3.21 | | |
|
Average natural gas realized price (including derivatives)(1)
|
| | | $ | 1.99 | | | | | $ | 2.29 | | | | | $ | 2.23 | | | | | $ | 3.72 | | | | | $ | 2.29 | | |
|
Differential to NYMEX Henry Hub
|
| | | $ | (0.54) | | | | | $ | (0.73) | | | | | $ | (0.70) | | | | | $ | (0.62) | | | | | $ | (0.63) | | |
|
NGLs (Bbl):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Average NYMEX WTI price
|
| | | $ | 79.69 | | | | | $ | 74.73 | | | | | $ | 77.58 | | | | | $ | 95.03 | | | | | $ | 67.92 | | |
|
Average NGL realized price (excluding
derivatives) |
| | | $ | 16.97 | | | | | $ | 17.32 | | | | | $ | 17.80 | | | | | $ | 30.58 | | | | | $ | 22.90 | | |
|
Average NGL realized price (including derivatives)(1)
|
| | | $ | 17.21 | | | | | $ | 16.98 | | | | | $ | 17.55 | | | | | $ | 27.78 | | | | | $ | 16.03 | | |
|
Differential to NYMEX WTI
|
| | | $ | (62.72) | | | | | $ | (57.41) | | | | | $ | (59.78) | | | | | $ | (64.45) | | | | | $ | (45.02) | | |
|
Oil (Bbl):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Average NYMEX WTI price
|
| | | $ | 79.69 | | | | | $ | 74.73 | | | | | $ | 77.58 | | | | | $ | 95.03 | | | | | $ | 67.92 | | |
|
Average oil realized price (excluding derivatives)
|
| | | $ | 71.81 | | | | | $ | 69.71 | | | | | $ | 70.97 | | | | | $ | 84.76 | | | | | $ | 61.46 | | |
|
Average oil realized price (including derivatives)(1)
|
| | | $ | 71.81 | | | | | $ | 69.71 | | | | | $ | 70.97 | | | | | $ | 84.76 | | | | | $ | 61.46 | | |
|
Differential to NYMEX WTI
|
| | | $ | (7.88) | | | | | $ | (5.02) | | | | | $ | (6.61) | | | | | $ | (10.27) | | | | | $ | (6.46) | | |
| High and low NYMEX prices: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Oil (Bbl):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
High
|
| | | $ | 87.69 | | | | | $ | 83.26 | | | | | $ | 93.67 | | | | | $ | 123.64 | | | | | $ | 84.65 | | |
|
Low
|
| | | $ | 70.62 | | | | | $ | 66.61 | | | | | $ | 66.61 | | | | | $ | 71.05 | | | | | $ | 47.62 | | |
|
Natural gas (Mcf):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
High
|
| | | $ | 13.20 | | | | | $ | 3.78 | | | | | $ | 3.78 | | | | | $ | 9.85 | | | | | $ | 23.86 | | |
|
Low
|
| | | $ | 1.25 | | | | | $ | 1.74 | | | | | $ | 1.74 | | | | | $ | 3.46 | | | | | $ | 2.43 | | |
|
Instrument
|
| |
MMBtu
|
| |
Weighted
Average Price (USD) |
| |
Weighted
Average Price Floor |
| |
Weighted
Average Price Ceiling |
| |
Fair Value as of
June 30, 2024 (in thousands) |
| |||||||||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 45,517,500 | | | | | $ | 3.52 | | | | | | | | | | | | | | | | | $ | 27,577 | | |
| 2025 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 60,800,000 | | | | | $ | 3.53 | | | | | | | | | | | | | | | | | $ | 3,699 | | |
|
Collars
|
| | | | 14,600,000 | | | | | | | | | | | $ | 3.71 | | | | | $ | 4.11 | | | | | $ | 4,994 | | |
| 2026 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 8,550,000 | | | | | $ | 3.53 | | | | | | | | | | | | | | | | | $ | (4,308) | | |
|
Collars
|
| | | | 25,550,000 | | | | | | | | | | | $ | 3.67 | | | | | $ | 4.19 | | | | | $ | 2,171 | | |
|
Call options
|
| | | | 36,500,000 | | | | | | | | | | | | | | | | | $ | 5.00 | | | | | $ | (13,041) | | |
| 2027 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Call options
|
| | | | 36,500,000 | | | | | | | | | | | | | | | | | $ | 5.00 | | | | | $ | (14,306) | | |
|
Instrument
|
| |
Basis Reference Price
|
| |
MMBtu
|
| |
Weighted
Average Basis Differential |
| |
Fair Value as of
June 30, 2024 (in thousands) |
| |||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
NGPL TXOK Basis
|
| | | | 12,300,000 | | | | | $ | (0.54) | | | | | $ | (1,009) | | |
|
Swap
|
| |
Transco Leidy Basis
|
| | | | 16,560,000 | | | | | $ | (0.89) | | | | | $ | 1,554 | | |
|
Instrument
|
| |
Commodity Reference Price
|
| |
Gallons
|
| |
Weighted
Average Price (USD) |
| |
Fair Value as of
June 30, 2024 (in thousands) |
| | |||||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | | | ||
|
Swap
|
| | OPIS Purity Ethane Mont Belvieu | | | | | 96,600,000 | | | | | $ | 0.23 | | | | | $ | 3,296 | | | | ||
|
Swap
|
| | OPIS IsoButane Mont Belvieu Non-TET | | | | | 6,568,800 | | | | | $ | 0.93 | | | | | $ | (1,137) | | | | ||
|
Swap
|
| | OPIS Normal Butane Mont Belvieu Non-TET | | | | | 9,660,000 | | | | | $ | 0.90 | | | | | $ | (1,023) | | | | ||
|
Swap
|
| | OPIS Propane Mont Belvieu Non-TET | | | | | 36,708,000 | | | | | $ | 0.80 | | | | | $ | (2,059) | | | | ||
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 15,456,000 | | | | | $ | 1.47 | | | | | $ | (1,552) | | | | ||
| 2025 | | | | | | | |||||||||||||||||||
|
Swap
|
| | OPIS Purity Ethane Mont Belvieu | | | | | 92,767,500 | | | | | $ | 0.25 | | | | | $ | (67) | | | | ||
|
Swap
|
| | OPIS IsoButane Mont Belvieu Non-TET | | | | | 6,599,250 | | | | | $ | 0.87 | | | | | $ | (644) | | | | ||
|
Swap
|
| | OPIS Normal Butane Mont Belvieu Non-TET | | | | | 9,082,500 | | | | | $ | 0.84 | | | | | $ | (629) | | | | ||
|
Swap
|
| | OPIS Propane Mont Belvieu Non-TET | | | | | 35,385,000 | | | | | $ | 0.74 | | | | | $ | (1,539) | | | | ||
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 13,387,500 | | | | | $ | 1.39 | | | | | $ | (1,552) | | | | ||
| 2026 | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | OPIS Purity Ethane Mont Belvieu | | | | | 6,615,000 | | | | | $ | 0.25 | | | | | $ | (218) | | | | ||
|
Swap
|
| | OPIS IsoButane Mont Belvieu Non-TET | | | | | 472,500 | | | | | $ | 0.83 | | | | | $ | (33) | | | | ||
|
Swap
|
| | OPIS Normal Butane Mont Belvieu Non-TET | | | | | 472,500 | | | | | $ | 0.80 | | | | | $ | (31) | | | | ||
|
Swap
|
| | OPIS Propane Mont Belvieu Non-TET | | | | | 2,835,000 | | | | | $ | 0.69 | | | | | $ | (163) | | | | ||
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 945,000 | | | | | $ | 1.40 | | | | | $ | (35) | | | | ||
| | | |
Six Months Ended June 30,
|
| |||||||||
|
(in thousands)
|
| |
2024
|
| |
2023
|
| ||||||
| Revenues and other operating income | | | | | | | | | | | | | |
|
Natural gas revenues
|
| | | $ | 179,175 | | | | | $ | 257,032 | | |
|
NGL revenues
|
| | | | 84,632 | | | | | | 91,477 | | |
|
Oil revenues
|
| | | | 3,734 | | | | | | 4,398 | | |
|
Midstream revenues
|
| | | | 7,506 | | | | | | 8,428 | | |
|
Derivative gains (losses), net
|
| | | | (11,165) | | | | | | 116,947 | | |
|
Marketing revenues
|
| | | | 6,967 | | | | | | 4,732 | | |
|
Gain on sales of assets
|
| | | | 6,784 | | | | | | 339 | | |
|
Related party and other
|
| | | | 10,479 | | | | | | 3,314 | | |
|
Total revenues and other operating income
|
| | | | 288,112 | | | | | | 486,667 | | |
| Operating expenses | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | | 68,640 | | | | | | 80,723 | | |
|
Taxes other than income
|
| | | | 21,215 | | | | | | 41,496 | | |
|
Gathering and transportation
|
| | | | 113,105 | | | | | | 120,586 | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 111,479 | | | | | | 78,354 | | |
|
General and administrative
|
| | | | 39,941 | | | | | | 52,488 | | |
|
Other
|
| | | | 11,276 | | | | | | 8,483 | | |
|
Total operating expenses
|
| | | | 365,656 | | | | | | 382,130 | | |
|
Income (loss) from operations
|
| | | | (77,544) | | | | | | 104,537 | | |
| Other income (expense) | | | | | | | | | | | | | |
|
Gains on contingent consideration liabilities
|
| | | | 6,070 | | | | | | 22,910 | | |
|
Losses from equity affiliate
|
| | | | (22,960) | | | | | | (14,275) | | |
|
Loss on early extinguishment of debt
|
| | | | (13,877) | | | | | | — | | |
|
Interest income
|
| | | | 3,404 | | | | | | 1,136 | | |
|
Interest expense
|
| | | | (31,246) | | | | | | (34,377) | | |
|
Interest expense, related party
|
| | | | (3,852) | | | | | | (3,083) | | |
|
Other income
|
| | | | 350 | | | | | | 1,851 | | |
|
Income (loss) before income taxes
|
| | | | (139,655) | | | | | | 78,699 | | |
|
Income tax benefit (expense)
|
| | | | 41,373 | | | | | | (17,885) | | |
|
Net income (loss)
|
| | | $ | (98,282) | | | | | $ | 60,814 | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Revenues and other operating income | | | | | | | | | | | | | | | | | | | |
|
Natural gas revenues
|
| | | $ | 509,846 | | | | | $ | 1,310,339 | | | | | $ | 597,050 | | |
|
NGL revenues
|
| | | | 187,860 | | | | | | 311,542 | | | | | | 225,135 | | |
|
Oil revenues
|
| | | | 8,445 | | | | | | 11,866 | | | | | | 7,560 | | |
|
Midstream revenues
|
| | | | 16,168 | | | | | | 12,676 | | | | | | 6,917 | | |
|
Derivative gains (losses), net
|
| | | | 238,743 | | | | | | (629,701) | | | | | | (383,847) | | |
|
Marketing revenues
|
| | | | 8,710 | | | | | | 11,001 | | | | | | 52,616 | | |
|
Related party and other
|
| | | | 8,251 | | | | | | 2,799 | | | | | | 251 | | |
|
Total revenues and other operating income
|
| | | | 978,023 | | | | | | 1,030,522 | | | | | | 505,682 | | |
| Operating expenses | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | | 150,647 | | | | | | 131,497 | | | | | | 86,831 | | |
|
Taxes other than income
|
| | | | 72,290 | | | | | | 114,668 | | | | | | 45,650 | | |
|
Gathering and transportation
|
| | | | 248,990 | | | | | | 208,758 | | | | | | 173,587 | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 223,370 | | | | | | 118,909 | | | | | | 92,277 | | |
|
General and administrative
|
| | | | 114,688 | | | | | | 148,559 | | | | | | 85,740 | | |
|
Other
|
| | | | 12,625 | | | | | | 3,567 | | | | | | 1,274 | | |
|
Total operating expenses
|
| | | | 822,610 | | | | | | 725,958 | | | | | | 485,359 | | |
|
Income from operations
|
| | | | 155,413 | | | | | | 304,564 | | | | | | 20,323 | | |
| Other income (expense) | | | | | | | | | | | | | | | | | | | |
|
Bargain purchase gain
|
| | | | — | | | | | | 170,853 | | | | | | — | | |
|
Gain on settlement of litigation
|
| | | | — | | | | | | 16,866 | | | | | | — | | |
|
Gains (losses) on contingent consideration liabilities
|
| | | | 38,375 | | | | | | 6,632 | | | | | | (194,968) | | |
|
Earnings from equity affiliate
|
| | | | 16,865 | | | | | | 8,493 | | | | | | 910 | | |
|
Interest income
|
| | | | 3,138 | | | | | | 1,143 | | | | | | 8 | | |
|
Interest expense
|
| | | | (69,942) | | | | | | (26,322) | | | | | | — | | |
|
Interest expense, related party
|
| | | | (7,078) | | | | | | (10,846) | | | | | | (2,134) | | |
|
Other income
|
| | | | 8,372 | | | | | | 1,411 | | | | | | 872 | | |
|
Income (loss) before income taxes
|
| | | | 145,143 | | | | | | 472,794 | | | | | | (174,989) | | |
|
Income tax benefit (expense)
|
| | | | (28,225) | | | | | | (62,652) | | | | | | 40,526 | | |
|
Net income (loss) attributable to BKV Corporation
|
| | | $ | 116,918 | | | | | $ | 410,142 | | | | | $ | (134,463) | | |
|
Less accretion of preferred stock to redemption value
|
| | | | — | | | | | | — | | | | | | (3,745) | | |
|
Less preferred stock dividends
|
| | | | — | | | | | | — | | | | | | (9,900) | | |
|
Less deemed dividend on redemption of preferred stock
|
| | | | — | | | | | | — | | | | | | (22,606) | | |
|
Net income (loss) attributable to common stockholders
|
| | | $ | 116,918 | | | | | $ | 410,142 | | | | | $ | (170,714) | | |
| | | |
Six Months Ended June 30,
|
| | | |||||||||||||||||||
|
(in thousands, other than percentages)
|
| |
2024
|
| |
2023
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Revenues | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas revenues
|
| | | $ | 179,175 | | | | | $ | 257,032 | | | | | $ | (77,857) | | | | | | (30)% | | |
|
NGL revenues
|
| | | | 84,632 | | | | | | 91,477 | | | | | | (6,845) | | | | | | (7)% | | |
|
Oil revenues
|
| | | | 3,734 | | | | | | 4,398 | | | | | | (664) | | | | | | (15)% | | |
|
Midstream revenues
|
| | | | 7,506 | | | | | | 8,428 | | | | | | (922) | | | | | | (11)% | | |
|
Derivative gains (losses), net
|
| | | | (11,165) | | | | | | 116,947 | | | | | | (128,112) | | | | | | * | | |
|
Marketing revenues
|
| | | | 6,967 | | | | | | 4,732 | | | | | | 2,235 | | | | | | 47% | | |
|
Gain on sales of assets
|
| | | | 6,784 | | | | | | 339 | | | | | | 6,445 | | | | | | * | | |
|
Related party and other
|
| | | | 10,479 | | | | | | 3,314 | | | | | | 7,165 | | | | | | * | | |
|
Total revenues and other operating income
|
| | | $ | 288,112 | | | | | $ | 486,667 | | | | | | | | | | | | | | |
| | | |
Six Months Ended June 30,
|
| | | | | | | | | | | | | |||||||||
|
(in thousands, other than percentages and average costs)
|
| |
2024
|
| |
2023
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Operating expenses | | | | | | ||||||||||||||||||||
|
Lease operating and workover
|
| | | $ | 68,640 | | | | | $ | 80,723 | | | | | $ | (12,083) | | | | | | (15)% | | |
|
Taxes other than income
|
| | | | 21,215 | | | | | | 41,496 | | | | | | (20,281) | | | | | | (49)% | | |
|
Gathering and transportation
|
| | | | 113,105 | | | | | | 120,586 | | | | | | (7,481) | | | | | | (6)% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 111,479 | | | | | | 78,354 | | | | | | 33,125 | | | | | | 42% | | |
|
General and administrative
|
| | | | 39,941 | | | | | | 52,488 | | | | | | (12,547) | | | | | | (24)% | | |
|
Other
|
| | | | 11,276 | | | | | | 8,483 | | | | | | 2,793 | | | | | | 33% | | |
|
Total operating expenses
|
| | | $ | 365,656 | | | | | $ | 382,130 | | | | | | | | | | | | | | |
| Average costs per Mcfe | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | $ | 0.46 | | | | | $ | 0.51 | | | | | $ | (0.05) | | | | | | (10)% | | |
|
Taxes other than income
|
| | | | 0.14 | | | | | | 0.26 | | | | | | (0.12) | | | | | | (46)% | | |
|
Gathering and transportation
|
| | | | 0.77 | | | | | | 0.76 | | | | | | 0.01 | | | | | | 1% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 0.76 | | | | | | 0.49 | | | | | | 0.27 | | | | | | 55% | | |
|
General and administrative
|
| | | | 0.27 | | | | | | 0.33 | | | | | | (0.06) | | | | | | (18)% | | |
|
Other
|
| | | | 0.08 | | | | | | 0.05 | | | | | | 0.03 | | | | | | 60% | | |
|
Total
|
| | | $ | 2.48 | | | | | $ | 2.40 | | | | | | | | | | | | | | |
| | | |
Six Months Ended June 30,
|
| | | |||||||||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||||||||||||||
|
(in thousands, other than percentages and average costs)
|
| |
Amount
|
| |
Per Mcfe
|
| |
Amount
|
| |
Per Mcfe
|
| | | | | | | | | | | | | ||||||||||||
|
Lease operating expenses
|
| | | $ | 65,351 | | | | | $ | 0.44 | | | | | $ | 76,040 | | | | | $ | 0.48 | | | | | $ | (10,689) | | | | | | (14)% | | |
|
Workover expense
|
| | | | 3,289 | | | | | | 0.02 | | | | | | 4,683 | | | | | | 0.03 | | | | | | (1,394) | | | | | | (30)% | | |
|
Total lease operating and workover expense
|
| | | $ | 68,640 | | | | | $ | 0.46 | | | | | $ | 80,723 | | | | | $ | 0.51 | | | | | $ | (12,083) | | | | | | (15)% | | |
| | | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||
|
(in thousands, other than percentages)
|
| |
2023
|
| |
2022
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Revenues | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas revenues
|
| | | $ | 509,846 | | | | | $ | 1,310,339 | | | | | $ | (800,493) | | | | | | (61)% | | |
|
NGL revenues
|
| | | | 187,860 | | | | | | 311,542 | | | | | | (123,682) | | | | | | (40)% | | |
|
Oil revenues
|
| | | | 8,445 | | | | | | 11,866 | | | | | | (3,421) | | | | | | (29)% | | |
|
Midstream revenues
|
| | | | 16,168 | | | | | | 12,676 | | | | | | 3,492 | | | | | | 28% | | |
|
Derivative gains (losses), net
|
| | | | 238,743 | | | | | | (629,701) | | | | | | 868,444 | | | | | | * | | |
|
Marketing revenues
|
| | | | 8,710 | | | | | | 11,001 | | | | | | (2,291) | | | | | | (21)% | | |
|
Related party and other
|
| | | | 8,251 | | | | | | 2,799 | | | | | | 5,452 | | | | | | * | | |
|
Total revenues and other operating income
|
| | | $ | 978,023 | | | | | $ | 1,030,522 | | | | | | | | | | | | | | |
| | | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||
|
(in thousands, other than percentages and average costs)
|
| |
2023
|
| |
2022
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | $ | 150,647 | | | | | $ | 131,497 | | | | | $ | 19,150 | | | | | | 15% | | |
|
Taxes other than income
|
| | | | 72,290 | | | | | | 114,668 | | | | | | (42,378) | | | | | | (37)% | | |
|
Gathering and transportation
|
| | | | 248,990 | | | | | | 208,758 | | | | | | 40,232 | | | | | | 19% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 223,370 | | | | | | 118,909 | | | | | | 104,461 | | | | | | 88% | | |
|
General and administrative
|
| | | | 114,688 | | | | | | 148,559 | | | | | | (33,871) | | | | | | (23)% | | |
|
Other
|
| | | | 12,625 | | | | | | 3,567 | | | | | | 9,058 | | | | | | * | | |
|
Total operating expenses
|
| | | $ | 822,610 | | | | | $ | 725,958 | | | | | | | | | | | | | | |
| Average costs per Mcfe | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | $ | 0.48 | | | | | $ | 0.47 | | | | | $ | 0.01 | | | | | | 2% | | |
|
Taxes other than income
|
| | | | 0.23 | | | | | | 0.41 | | | | | | (0.18) | | | | | | (44)% | | |
|
Gathering and transportation
|
| | | | 0.79 | | | | | | 0.75 | | | | | | 0.04 | | | | | | 5% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 0.71 | | | | | | 0.43 | | | | | | 0.28 | | | | | | 65% | | |
|
General and administrative
|
| | | | 0.37 | | | | | | 0.53 | | | | | | (0.16) | | | | | | (30)% | | |
|
Other
|
| | | | 0.04 | | | | | | 0.01 | | | | | | 0.03 | | | | | | * | | |
|
Total
|
| | | $ | 2.62 | | | | | $ | 2.60 | | | | | | | | | | | | | | |
| | | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||||||||||||||
| | | |
2023
|
| |
2022
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||||||||||||||
|
(in thousands, other than percentages and average costs)
|
| |
Amount
|
| |
Per Mcfe
|
| |
Amount
|
| |
Per Mcfe
|
| | | | | | | | | | | | | ||||||||||||
|
Lease operating expenses
|
| | | $ | 142,911 | | | | | $ | 0.46 | | | | | | 123,386 | | | | | $ | 0.44 | | | | | | 19,525 | | | | | | 16% | | |
|
Workover expense
|
| | | | 7,736 | | | | | | 0.02 | | | | | | 8,111 | | | | | | 0.03 | | | | | | (375) | | | | | | (5)% | | |
|
Total lease operating and workover expense
|
| | | $ | 150,647 | | | | | $ | 0.48 | | | | | | 131,497 | | | | | $ | 0.47 | | | | | | 19,150 | | | | | | 15% | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||||||||
|
(in thousands, other than percentages)
|
| |
2022
|
| |
2021
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Revenues | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas revenues
|
| | | $ | 1,310,339 | | | | | $ | 597,050 | | | | | $ | 713,289 | | | | | | * | | |
|
NGL revenues
|
| | | | 311,542 | | | | | | 225,135 | | | | | | 86,407 | | | | | | 38% | | |
|
Oil revenues
|
| | | | 11,866 | | | | | | 7,560 | | | | | | 4,306 | | | | | | 57% | | |
|
Midstream revenues
|
| | | | 12,676 | | | | | | 6,917 | | | | | | 5,759 | | | | | | 83% | | |
|
Derivative losses, net
|
| | | | (629,701) | | | | | | (383,847) | | | | | | (245,854) | | | | | | 64% | | |
|
Marketing revenues
|
| | | | 11,001 | | | | | | 52,616 | | | | | | (41,615) | | | | | | (79)% | | |
|
Related party and other
|
| | | | 2,799 | | | | | | 251 | | | | | | 2,548 | | | | | | * | | |
|
Total revenues and other operating income
|
| | | $ | 1,030,522 | | | | | $ | 505,682 | | | | | | | | | | | | | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||||||||
|
(in thousands, other than percentages and average costs)
|
| |
2022
|
| |
2021
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | $ | 131,497 | | | | | $ | 86,831 | | | | | $ | 44,666 | | | | | | 51% | | |
|
Taxes other than income
|
| | | | 114,668 | | | | | | 45,650 | | | | | | 69,018 | | | | | | * | | |
|
Gathering and transportation
|
| | | | 208,758 | | | | | | 173,587 | | | | | | 35,171 | | | | | | 20% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 118,909 | | | | | | 92,277 | | | | | | 26,632 | | | | | | 29% | | |
|
General and administrative
|
| | | | 148,559 | | | | | | 85,740 | | | | | | 62,819 | | | | | | 73% | | |
|
Other
|
| | | | 3,567 | | | | | | 1,274 | | | | | | 2,293 | | | | | | * | | |
|
Total operating expenses
|
| | | $ | 725,958 | | | | | $ | 485,359 | | | | | | | | | | | | | | |
| Average costs per Mcfe | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | $ | 0.47 | | | | | $ | 0.35 | | | | | $ | 0.12 | | | | | | 33% | | |
|
Taxes other than income
|
| | | | 0.41 | | | | | | 0.19 | | | | | | 0.22 | | | | | | * | | |
|
Gathering and transportation
|
| | | | 0.75 | | | | | | 0.71 | | | | | | 0.04 | | | | | | 6% | | |
|
Depreciation, depletion, amortization and accretion
|
| | | | 0.43 | | | | | | 0.37 | | | | | | 0.06 | | | | | | 16% | | |
|
General and administrative
|
| | | | 0.53 | | | | | | 0.35 | | | | | | 0.18 | | | | | | 51% | | |
|
Other
|
| | | | 0.01 | | | | | | 0.01 | | | | | | — | | | | | | * | | |
|
Total
|
| | | $ | 2.60 | | | | | $ | 1.98 | | | | | | | | | | | | | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||||||||||||||||||||
| | | |
2022
|
| |
2021
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||||||||||||||
|
(in thousands, other than percentages and average costs)
|
| |
Amount
|
| |
Per Mcfe
|
| |
Amount
|
| |
Per Mcfe
|
| ||||||||||||||||||||||||
|
Lease operating expenses
|
| | | $ | 123,386 | | | | | $ | 0.44 | | | | | $ | 83,028 | | | | | $ | 0.33 | | | | | $ | 40,358 | | | | | | 49% | | |
|
Workover expense
|
| | | | 8,111 | | | | | | 0.03 | | | | | | 3,802 | | | | | | 0.02 | | | | | | 4,309 | | | | | | * | | |
|
Total lease operating and workover expense
|
| | | $ | 131,497 | | | | | $ | 0.47 | | | | | $ | 86,831 | | | | | $ | 0.35 | | | | | $ | 44,666 | | | | | | 51% | | |
| | | |
Six Months Ended June 30,
|
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
|
Net cash provided by operating activities
|
| | | $ | 9,782 | | | | | $ | 80,924 | | | | | $ | 123,076 | | | | | $ | 349,194 | | | | | $ | 358,133 | | |
|
Net cash provided by (used in) investing activities
|
| | | | 101,633 | | | | | | (128,606) | | | | | | (177,848) | | | | | | (865,566) | | | | | | (161,858) | | |
|
Net cash provided by (used in) financing activities
|
| | | | (267,287) | | | | | | (83,025) | | | | | | 66,713 | | | | | | 534,833 | | | | | | (79,053) | | |
|
Net increase (decrease) in cash, cash equivalents and restricted cash
|
| | | $ | (155,872) | | | | | $ | (130,707) | | | | | $ | 11,941 | | | | | $ | 18,461 | | | | | $ | 117,222 | | |
| | | |
Six Months Ended June 30,
|
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| | | |
(in thousands)
|
| |||||||||||||||||||||||||||
|
Total use of cash and cash equivalents for development of natural gas properties
|
| | | $ | (21,509) | | | | | $ | (113,090) | | | | | $ | (134,428) | | | | | $ | (235,406) | | | | | $ | (63,932) | | |
|
(Increase) decrease in accrued development of
natural gas properties |
| | | | (4,019) | | | | | | 21,568 | | | | | | 26,884 | | | | | | (17,773) | | | | | | (13,702) | | |
|
Upstream capital expenditures (accrued)
|
| | | $ | (25,528) | | | | | $ | (91,522) | | | | | $ | (107,544) | | | | | $ | (253,179) | | | | | $ | (77,634) | | |
|
Project
|
| |
Status(1)
|
| |
Actual or Forecasted
Initiation of Sequestration Operations(2) |
| |
Forecasted
Annual Sequestration Volumes (Mtpy CO2e)(3) |
| |||
|
Barnett Zero
|
| |
Operating
|
| |
November 2023
|
| | | | 0.18 | | |
|
Cotton Cove
|
| |
FID
|
| |
1H 2026
|
| | | | 0.04 | | |
|
8 NGP Projects
|
| |
Pre-FID
|
| |
2025 – 2029
|
| | | | 2.68 | | |
|
3 Industrial Projects
|
| |
Pre-FID
|
| |
2026 – 2027
|
| | | | 11.15 | | |
|
4 Ethanol Projects
|
| |
Pre-FID
|
| |
2027 – 2029
|
| | | | 2.56 | | |
| | | |
December 31, 2023
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | | |
Estimated Total Proved Reserves
|
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||||||||
|
Operating Region
|
| |
Natural Gas
(MMcf) |
| |
Natural
Gas Liquids (MBbls) |
| |
Oil
(MBbls) |
| |
Total
(MMcfe) |
| |
Average
Net Daily Production (MMcfe/d) |
| |
Average
Reserves Life (years) |
| |
Producing
Wells |
| |
Net Acres
|
| ||||||||||||||||||||||||
|
Barnett
|
| | | | 2,557,868 | | | | | | 184,165 | | | | | | 1,051 | | | | | | 3,669,164 | | | | | | 718.2 | | | | | | 15.3 | | | | | | 6,786 | | | | | | 459,912 | | |
|
NEPA
|
| | | | 424,627 | | | | | | — | | | | | | — | | | | | | 424,627 | | | | | | 141.5 | | | | | | 21.7 | | | | | | 427 | | | | | | 36,865 | | |
|
Total
|
| | | | 2,982,495 | | | | | | 184,165 | | | | | | 1,051 | | | | | | 4,093,791 | | | | | | 859.7 | | | | | | 16.2 | | | | | | 7,213 | | | | | | 496,777 | | |
| | | |
December 31, 2022
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | | |
Estimated Total Proved Reserves
|
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||||||||
|
Operating Region
|
| |
Natural Gas
(MMcf) |
| |
Natural
Gas Liquids (MBbls) |
| |
Oil
(MBbls) |
| |
Total
(MMcfe) |
| |
Average
Net Daily Production (MMcfe/d)(1) |
| |
Average
Reserves Life (years) |
| |
Producing
Wells |
| |
Net Acres
|
| ||||||||||||||||||||||||
|
Barnett
|
| | | | 3,955,330 | | | | | | 211,500 | | | | | | 1,868 | | | | | | 5,235,544 | | | | | | 732.7 | | | | | | 19.6 | | | | | | 6,825 | | | | | | 457,787 | | |
|
NEPA
|
| | | | 900,346 | | | | | | — | | | | | | — | | | | | | 900,346 | | | | | | 139.2 | | | | | | 17.7 | | | | | | 397 | | | | | | 36,886 | | |
|
Total
|
| | | | 4,855,676 | | | | | | 211,500 | | | | | | 1,868 | | | | | | 6,135,890 | | | | | | 871.9 | | | | | | 19.3 | | | | | | 7,222 | | | | | | 494,673 | | |
| | | |
December 31, 2023
|
| |||||||||||||||||||||||||||||||||
|
Operating Region
|
| |
Estimated
Total Proved Reserves (MMcfe) |
| |
% Natural
Gas |
| |
% Natural
Gas Liquids |
| |
% Oil
|
| |
Weighted
Average Annual PDP Decline(1) |
| |||||||||||||||||||||
| |
Five
Year |
| |
Ten
Year |
| ||||||||||||||||||||||||||||||||
|
Barnett
|
| | | | 3,669,164 | | | | | | 69.7% | | | | | | 30.1% | | | | | | 0.2% | | | | | | 8.5% | | | | | | 7.7% | | |
|
NEPA
|
| | | | 424,627 | | | | | | 100% | | | | | | — | | | | | | — | | | | | | 12.2% | | | | | | 10.1% | | |
|
Total
|
| | | | 4,093,791 | | | | | | 72.8% | | | | | | 27% | | | | | | 0.2% | | | | | | 9.1% | | | | | | 8.1% | | |
| | | |
December 31, 2022
|
| |||||||||||||||||||||||||||||||||
|
Operating Region
|
| |
Estimated
Total Proved Reserves (MMcfe) |
| |
% Natural
Gas |
| |
% Natural
Gas Liquids |
| |
% Oil
|
| |
Weighted
Average Annual PDP Decline(1) |
| |||||||||||||||||||||
| |
Five
Year |
| |
Ten
Year |
| ||||||||||||||||||||||||||||||||
|
Barnett
|
| | | | 5,235,544 | | | | | | 75.6% | | | | | | 24.2% | | | | | | 0.2% | | | | | | 7.8% | | | | | | 6.7% | | |
|
NEPA
|
| | | | 900,346 | | | | | | 100% | | | | | | — | | | | | | — | | | | | | 13.5% | | | | | | 10.3% | | |
|
Total
|
| | | | 6,135,890 | | | | | | 79.2% | | | | | | 20.6% | | | | | | 0.2% | | | | | | 8.7% | | | | | | 7.3% | | |
| | | |
December 31, 2021
|
| |||||||||||||||||||||||||||||||||
|
Operating Region
|
| |
Estimated
Total Proved Reserves (MMcfe) |
| |
% Natural
Gas |
| |
% Natural
Gas Liquids |
| |
% Oil
|
| |
Weighted Average
Annual PDP Decline(1) |
| |||||||||||||||||||||
| |
Five
Year |
| |
Ten
Year |
| ||||||||||||||||||||||||||||||||
|
Barnett
|
| | | | 3,496,235 | | | | | | 71.5% | | | | | | 28.3% | | | | | | 0.2% | | | | | | 7.0% | | | | | | 6.3% | | |
|
NEPA
|
| | | | 945,528 | | | | | | 100% | | | | | | — | | | | | | — | | | | | | 12.4% | | | | | | 9.9% | | |
|
Total
|
| | | | 4,441,763 | | | | | | 77.6% | | | | | | 22.3% | | | | | | 0.1% | | | | | | 8.3% | | | | | | 7.2% | | |
| | | |
Developed
|
| |
Undeveloped
|
| |
Total
|
| |||||||||||||||||||||||||||
|
Operating Region
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||
| Barnett(1) | | | | | 637,983 | | | | | | 421,479 | | | | | | 40,935 | | | | | | 38,293 | | | | | | 678,918 | | | | | | 459,772 | | |
|
NEPA
|
| | | | 22,173 | | | | | | 19,011 | | | | | | 1,113 | | | | | | 469 | | | | | | 23,286 | | | | | | 19,480 | | |
|
Total
|
| | | | 660,156 | | | | | | 440,490 | | | | | | 42,048 | | | | | | 38,762 | | | | | | 702,204 | | | | | | 479,252 | | |
| | | |
Developed
|
| |
Undeveloped
|
| |
Total
|
| |||||||||||||||||||||||||||
|
Operating Region
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||
| Barnett(1) | | | | | 638,193 | | | | | | 421,491 | | | | | | 41,113 | | | | | | 38,421 | | | | | | 679,306 | | | | | | 459,912 | | |
| NEPA | | | | | 63,739 | | | | | | 29,501 | | | | | | 18,774 | | | | | | 7,364 | | | | | | 82,513 | | | | | | 36,865 | | |
|
Total
|
| | | | 701,932 | | | | | | 450,992 | | | | | | 59,887 | | | | | | 45,785 | | | | | | 761,819 | | | | | | 496,777 | | |
| | | |
Developed
|
| |
Undeveloped
|
| |
Total
|
| |||||||||||||||||||||||||||
|
Operating Region
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||
| Barnett(1) | | | | | 638,099 | | | | | | 418,919 | | | | | | 41,625 | | | | | | 38,868 | | | | | | 679,724 | | | | | | 457,787 | | |
|
NEPA
|
| | | | 62,191 | | | | | | 28,162 | | | | | | 20,823 | | | | | | 8,723 | | | | | | 83,014 | | | | | | 36,885 | | |
|
Total
|
| | | | 700,290 | | | | | | 447,081 | | | | | | 62,448 | | | | | | 47,591 | | | | | | 762,738 | | | | | | 494,672 | | |
| | | |
Developed
|
| |
Undeveloped
|
| |
Total
|
| |||||||||||||||||||||||||||
|
Operating Region
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||
| Barnett(1) | | | | | 453,584 | | | | | | 261,810 | | | | | | 32,120 | | | | | | 30,771 | | | | | | 485,704 | | | | | | 292,581 | | |
|
NEPA
|
| | | | 61,971 | | | | | | 28,162 | | | | | | 20,890 | | | | | | 8,816 | | | | | | 82,861 | | | | | | 36,978 | | |
|
Total
|
| | | | 515,555 | | | | | | 289,972 | | | | | | 53,010 | | | | | | 39,587 | | | | | | 568,565 | | | | | | 329,559 | | |
| | | |
Producing Natural
Gas Wells |
| |
Producing Oil Wells
|
| |
Total
|
| |
Average
Working Interest |
| ||||||||||||||||||||||||||||||
| | | |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||||||||
| Operated Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 5,614 | | | | | | 5,437 | | | | | | 6 | | | | | | 6 | | | | | | 5,620 | | | | | | 5,443 | | | | | | 96.9% | | |
|
NEPA
|
| | | | 142 | | | | | | 127 | | | | | | — | | | | | | — | | | | | | 142 | | | | | | 127 | | | | | | 89.4% | | |
|
Total
|
| | | | 5,756 | | | | | | 5,564 | | | | | | 6 | | | | | | 6 | | | | | | 5,762 | | | | | | 5,570 | | | | | | 96.7% | | |
| Non-operated Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 993 | | | | | | 95 | | | | | | 1 | | | | | | — | | | | | | 994 | | | | | | 95 | | | | | | 9.6% | | |
|
NEPA
|
| | | | 272 | | | | | | 37 | | | | | | — | | | | | | — | | | | | | 272 | | | | | | 37 | | | | | | 13.6% | | |
|
Total
|
| | | | 1,265 | | | | | | 132 | | | | | | 1 | | | | | | — | | | | | | 1,266 | | | | | | 132 | | | | | | 10.4% | | |
| Total Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 6,607 | | | | | | 5,532 | | | | | | 7 | | | | | | 6 | | | | | | 6,614 | | | | | | 5,538 | | | | | | 83.7% | | |
|
NEPA
|
| | | | 414 | | | | | | 164 | | | | | | — | | | | | | — | | | | | | 414 | | | | | | 164 | | | | | | 39.6% | | |
|
Total
|
| | | | 7,021 | | | | | | 5,696 | | | | | | 7 | | | | | | 6 | | | | | | 7,028 | | | | | | 5,702 | | | | | | 81.1% | | |
| | | |
Producing Natural
Gas Wells |
| |
Producing Oil Wells
|
| |
Total
|
| |
Average
Working Interest |
| ||||||||||||||||||||||||||||||
| | | |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||||||||
| Operated Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 5,822 | | | | | | 5,597 | | | | | | 9 | | | | | | 9 | | | | | | 5,831 | | | | | | 5,606 | | | | | | 96.1% | | |
|
NEPA
|
| | | | 142 | | | | | | 126 | | | | | | — | | | | | | — | | | | | | 142 | | | | | | 126 | | | | | | 88.7% | | |
|
Total
|
| | | | 5,964 | | | | | | 5,723 | | | | | | 9 | | | | | | 9 | | | | | | 5,973 | | | | | | 5,732 | | | | | | 96.0% | | |
| Non-operated Wells: | | | | | | | | | |||||||||||||||||||||||||||||||||||
|
Barnett
|
| | | | 1,122 | | | | | | 95 | | | | | | 22 | | | | | | — | | | | | | 1,144 | | | | | | 95 | | | | | | 8.3% | | |
|
NEPA
|
| | | | 266 | | | | | | 36 | | | | | | — | | | | | | — | | | | | | 266 | | | | | | 36 | | | | | | 13.5% | | |
|
Total
|
| | | | 1,388 | | | | | | 131 | | | | | | 22 | | | | | | — | | | | | | 1,410 | | | | | | 131 | | | | | | 9.3% | | |
| Total Wells: | | | | | | | | | |||||||||||||||||||||||||||||||||||
|
Barnett
|
| | | | 6,944 | | | | | | 5,692 | | | | | | 31 | | | | | | 9 | | | | | | 6,975 | | | | | | 5,701 | | | | | | 81.7% | | |
|
NEPA
|
| | | | 408 | | | | | | 162 | | | | | | — | | | | | | — | | | | | | 408 | | | | | | 162 | | | | | | 39.7% | | |
|
Total
|
| | | | 7,352 | | | | | | 5,854 | | | | | | 31 | | | | | | 9 | | | | | | 7,383 | | | | | | 5,863 | | | | | | 79.4% | | |
| | | |
Producing Natural
Gas Wells |
| |
Producing Oil Wells
|
| |
Total
|
| |
Average
Working Interest |
| ||||||||||||||||||||||||||||||
| | | |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| |
Gross
|
| |
Net
|
| ||||||||||||||||||||||||
| Operated Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 3,950 | | | | | | 3,170 | | | | | | 8 | | | | | | 6 | | | | | | 3,958 | | | | | | 3,176 | | | | | | 80.2% | | |
|
NEPA
|
| | | | 138 | | | | | | 101 | | | | | | — | | | | | | — | | | | | | 138 | | | | | | 101 | | | | | | 73.2% | | |
|
Total
|
| | | | 4,088 | | | | | | 3,271 | | | | | | 8 | | | | | | 6 | | | | | | 4,096 | | | | | | 3,277 | | | | | | | | |
| Non-operated Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 838 | | | | | | 672 | | | | | | 8 | | | | | | 6 | | | | | | 846 | | | | | | 678 | | | | | | 80.1% | | |
|
NEPA
|
| | | | 256 | | | | | | 189 | | | | | | — | | | | | | — | | | | | | 256 | | | | | | 189 | | | | | | 73.8% | | |
|
Total
|
| | | | 1,094 | | | | | | 861 | | | | | | 8 | | | | | | 6 | | | | | | 1,102 | | | | | | 867 | | | | | | | | |
| Total Wells: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Barnett
|
| | | | 4,788 | | | | | | 3,842 | | | | | | 16 | | | | | | 12 | | | | | | 4,804 | | | | | | 3,854 | | | | | | 80.2% | | |
|
NEPA
|
| | | | 394 | | | | | | 290 | | | | | | — | | | | | | — | | | | | | 394 | | | | | | 290 | | | | | | 73.6% | | |
|
Total
|
| | | | 5,182 | | | | | | 4,132 | | | | | | 16 | | | | | | 12 | | | | | | 5,198 | | | | | | 4,144 | | | | | | | | |
| | | |
Six Months
Ended June 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||||||
| Sales Volumes | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Barnett: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 93,976.3 | | | | | | 99,829.6 | | | | | | 198,099.4 | | | | | | 166,771.0 | | | | | | 129,960.0 | | |
|
Natural gas liquids (MBbl)
|
| | | | 4,986.7 | | | | | | 5,280.0 | | | | | | 10,553.6 | | | | | | 10,187.0 | | | | | | 9,829.3 | | |
|
Oil (MBbl)
|
| | | | 52.1 | | | | | | 63.1 | | | | | | 118.6 | | | | | | 140.0 | | | | | | 123.0 | | |
|
Total Barnett (Bcfe)
|
| | | | 124.2 | | | | | | 131.9 | | | | | | 262.1 | | | | | | 228.7 | | | | | | 189.7 | | |
| NEPA: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 22,780.1 | | | | | | 27,068.6 | | | | | | 51,666.9 | | | | | | 50,814.0 | | | | | | 56,095.1 | | |
|
Natural gas liquids (MBbl)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Oil (MBbl)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Total NEPA (Bcfe)
|
| | | | 22.8 | | | | | | 27.1 | | | | | | 51.7 | | | | | | 50.8 | | | | | | 56.1 | | |
|
Total Company (Bcfe)
|
| | | | 147.0 | | | | | | 159.0 | | | | | | 313.8 | | | | | | 279.5 | | | | | | 245.8 | | |
|
Average Sales Prices (excluding the impact
of derivative settlements) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Barnett: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (per Mcf)
|
| | | $ | 1.72 | | | | | $ | 2.19 | | | | | $ | 2.28 | | | | | $ | 6.38 | | | | | $ | 3.58 | | |
|
Natural gas liquids (per Bbl)
|
| | | $ | 16.97 | | | | | $ | 17.33 | | | | | $ | 17.80 | | | | | $ | 30.58 | | | | | $ | 22.90 | | |
|
Oil (per Bbl)
|
| | | $ | 71.67 | | | | | $ | 69.70 | | | | | $ | 71.21 | | | | | $ | 84.76 | | | | | $ | 61.46 | | |
| NEPA: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (per Mcf)
|
| | | $ | 0.79 | | | | | $ | 1.42 | | | | | $ | 1.12 | | | | | $ | 4.85 | | | | | $ | 2.34 | | |
|
Natural gas liquids (per Bbl)
|
| | | $ | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | |
|
Oil (per Bbl)
|
| | | $ | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | |
|
Total Company (per Mcfe)
|
| | | $ | 1.82 | | | | | $ | 2.22 | | | | | $ | 2.25 | | | | | $ | 5.84 | | | | | $ | 3.38 | | |
|
Average Sales Prices (including the impact
of derivative prices)(1) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas (per Mcf)
|
| | | $ | 1.99 | | | | | $ | 2.29 | | | | | $ | 2.23 | | | | | $ | 3.72 | | | | | $ | 2.29 | | |
|
Natural gas liquids (per Bbl)
|
| | | $ | 17.21 | | | | | $ | 16.98 | | | | | $ | 17.55 | | | | | $ | 27.78 | | | | | $ | 16.03 | | |
|
Oil (per Bbl)
|
| | | $ | 71.81 | | | | | $ | 69.71 | | | | | $ | 70.97 | | | | | $ | 84.76 | | | | | $ | 61.46 | | |
|
Total Company (per Mcfe)
|
| | | $ | 2.19 | | | | | $ | 2.42 | | | | | $ | 2.39 | | | | | $ | 3.95 | | | | | $ | 2.41 | | |
| Average Production Cost (per Mcfe)(2) | | | | | | | |||||||||||||||||||||||||
|
Barnett
|
| | | $ | 1.43 | | | | | $ | 1.48 | | | | | $ | 1.48 | | | | | $ | 1.43 | | | | | $ | 1.31 | | |
|
NEPA
|
| | | $ | 0.15 | | | | | $ | 0.24 | | | | | $ | 0.24 | | | | | $ | 0.26 | | | | | $ | 0.23 | | |
|
Total Company
|
| | | $ | 1.24 | | | | | $ | 1.27 | | | | | $ | 1.27 | | | | | $ | 1.22 | | | | | $ | 1.06 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Estimated proved developed reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,443,072 | | | | | | 3,798,019 | | | | | | 2,494,925 | | |
|
Producing
|
| | | | 2,290,025 | | | | | | 3,468,896 | | | | | | 2,346,712 | | |
|
Non-producing
|
| | | | 153,047 | | | | | | 329,123 | | | | | | 148,213 | | |
|
Natural gas liquids (MBbls)
|
| | | | 156,399 | | | | | | 170,840 | | | | | | 151,433 | | |
|
Producing
|
| | | | 129,260 | | | | | | 157,585 | | | | | | 142,961 | | |
|
Non-producing
|
| | | | 27,139 | | | | | | 13,255 | | | | | | 8,472 | | |
|
Oil (MBbls)
|
| | | | 992 | | | | | | 1,111 | | | | | | 867 | | |
|
Producing
|
| | | | 802 | | | | | | 1,111 | | | | | | 867 | | |
|
Non-producing
|
| | | | 190 | | | | | | — | | | | | | — | | |
|
Total estimated proved developed reserves (MMcfe)
|
| | | | 3,387,418 | | | | | | 4,829,733 | | | | | | 3,408,725 | | |
|
Producing
|
| | | | 3,070,397 | | | | | | 4,421,072 | | | | | | 3,209,680 | | |
|
Non-producing
|
| | | | 317,021 | | | | | | 408,653 | | | | | | 199,045 | | |
|
Standardized Measure (millions)
|
| | | $ | 986 | | | | | $ | 5,809 | | | | | $ | 2,119 | | |
|
PV-10 (millions)(2)(3)
|
| | | $ | 1,151 | | | | | $ | 7,389 | | | | | $ | 2,672 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Estimated proved undeveloped reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 539,423 | | | | | | 1,057,657 | | | | | | 950,358 | | |
|
Natural gas liquids (MBbls)
|
| | | | 27,766 | | | | | | 40,660 | | | | | | 13,722 | | |
|
Oil (MBbls)
|
| | | | 59 | | | | | | 758 | | | | | | 58 | | |
|
Total estimated proved undeveloped reserves (MMcfe)(4)(5)
|
| | | | 706,373 | | | | | | 1,306,157 | | | | | | 1,033,038 | | |
|
Standardized Measure (millions)
|
| | | $ | 48 | | | | | $ | 1,185 | | | | | $ | 295 | | |
|
PV-10 (millions)(2)(6)
|
| | | $ | 81 | | | | | $ | 1,566 | | | | | $ | 403 | | |
| Estimated total proved reserves: | | | | | | | | | | | | | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,982,495 | | | | | | 4,855,676 | | | | | | 3,445,283 | | |
|
Natural gas liquids (MBbls)
|
| | | | 184,165 | | | | | | 211,500 | | | | | | 165,155 | | |
|
Oil (MBbls)
|
| | | | 1,051 | | | | | | 1,869 | | | | | | 925 | | |
|
Total estimated proved reserves (MMcfe)
|
| | | | 4,093,791 | | | | | | 6,135,890 | | | | | | 4,441,763 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,034 | | | | | $ | 6,994 | | | | | $ | 2,414 | | |
|
PV-10 (millions)(2)(7)
|
| | | $ | 1,232 | | | | | $ | 8,955 | | | | | $ | 3,075 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 1,151 | | | | | $ | 7,389 | | | | | $ | 2,672 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (165) | | | | | | (1,580) | | | | | | (553) | | |
|
Standardized Measure
|
| | | $ | 986 | | | | | $ | 5,809 | | | | | $ | 2,119 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 81 | | | | | $ | 1,566 | | | | | $ | 403 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (33) | | | | | | (381) | | | | | | (108) | | |
|
Standardized Measure
|
| | | $ | 48 | | | | | $ | 1,185 | | | | | $ | 295 | | |
| | | |
December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
PV-10 (millions)
|
| | | $ | 1,232 | | | | | $ | 8,955 | | | | | $ | 3,074 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (198) | | | | | | (1,961) | | | | | | (661) | | |
|
Standardized Measure
|
| | | $ | 1,034 | | | | | $ | 6,994 | | | | | $ | 2,413 | | |
| | | |
December 31,
2023 |
| |||
| Estimated proved developed reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 2,984,949 | | |
|
Producing
|
| | | | 2,791,791 | | |
|
Non-producing
|
| | | | 193,158 | | |
|
Natural gas liquids (MBbls)
|
| | | | 164,204 | | |
|
Producing
|
| | | | 134,689 | | |
|
Non-producing
|
| | | | 29,515 | | |
|
Oil (MBbls)
|
| | | | 1,046 | | |
|
Producing
|
| | | | 808 | | |
|
Non-producing
|
| | | | 238 | | |
|
Total estimated proved developed reserves (MMcfe)
|
| | | | 3,976,436 | | |
|
Producing
|
| | | | 3,604,773 | | |
|
Non-producing
|
| | | | 371,663 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,651 | | |
|
PV-10 (millions)(1)
|
| | | $ | 2,015 | | |
| Estimated proved undeveloped reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 790,838 | | |
|
Natural gas liquids (MBbls)
|
| | | | 30,500 | | |
|
Oil (MBbls)
|
| | | | 59 | | |
|
Total estimated proved undeveloped reserves (MMcfe)(2)(3)
|
| | | | 974,192 | | |
|
Standardized Measure (millions)
|
| | | $ | 244 | | |
|
PV-10 (millions)(4)
|
| | | $ | 335 | | |
| Estimated total proved reserves at NYMEX Strip Pricing: | | | | | | | |
|
Natural gas (MMcf)
|
| | | | 3,775,787 | | |
|
Natural gas liquids (MBbls)
|
| | | | 194,704 | | |
|
Oil (MBbls)
|
| | | | 1,105 | | |
|
Total estimated proved reserves (MMcfe)
|
| | | | 4,950,628 | | |
|
Standardized Measure (millions)
|
| | | $ | 1,895 | | |
|
PV-10 (millions)(5)
|
| | | $ | 2,350 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 2,015 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (364) | | |
|
Standardized Measure
|
| | | $ | 1,651 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 335 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (91) | | |
|
Standardized Measure
|
| | | $ | 244 | | |
| | | |
December 31,
2023 |
| |||
|
PV-10 (millions)
|
| | | $ | 2,350 | | |
|
Present value of future income taxes discounted at 10%
|
| | | | (455) | | |
|
Standardized Measure
|
| | | $ | 1,895 | | |
|
Name
|
| |
Age
|
| |
Current Position(s) with the Company
|
|
| Christopher P. Kalnin | | |
47
|
| |
Chief Executive Officer and Director
|
|
| John T. Jimenez | | |
55
|
| | Chief Financial Officer | |
| Eric S. Jacobsen | | |
54
|
| | Chief Operating Officer | |
| Barry S. Turcotte | | |
54
|
| | Chief Accounting Officer | |
| Lindsay B. Larrick | | |
42
|
| | Chief Legal Officer | |
| Ethan Ngo | | |
42
|
| | Chief Technical Resources Officer | |
| Mary Rita Valois | | |
63
|
| | Chief Information Officer | |
| Chanin Vongkusolkit | | |
70
|
| | Chairman of the Board | |
| Somruedee Chaimongkol | | |
62
|
| | Director | |
| Joseph R. Davis | | |
74
|
| | Director | |
| Akaraphong Dayananda | | |
65
|
| | Director | |
| Kirana Limpaphayom | | |
49
|
| | Director | |
| Carla S. Mashinski | | |
61
|
| | Director | |
| Thiti Mekavichai | | |
62
|
| | Director | |
| Charles C. Miller III | | |
72
|
| | Director | |
| Sunit S. Patel | | |
62
|
| | Director | |
| Anon Sirisaengtaksin | | |
71
|
| | Director | |
| Sinon Vongkusolkit | | |
34
|
| | Director | |
|
Name and Position (as of December 31, 2023)
|
| |
Year
|
| |
Salary
($) |
| |
Bonus
($) |
| |
Stock
awards ($)(1) |
| |
Nonequity
incentive plan compensation ($)(2) |
| |
All other
compensation ($)(3) |
| |
Total
($) |
| |||||||||||||||||||||
|
Christopher Kalnin
Chief Executive Officer |
| | | | 2023 | | | | | | 692,692 | | | | | | — | | | | | | — | | | | | | 772,800 | | | | | | 19,860 | | | | | | 1,485,352 | | |
| | | | 2022 | | | | | | 510,000 | | | | | | — | | | | | | — | | | | | | 800,700 | | | | | | 18,383 | | | | | | 1,329,083 | | | ||
|
John Jimenez
Chief Financial Officer |
| | | | 2023 | | | | | | 398,346 | | | | | | — | | | | | | — | | | | | | 308,016 | | | | | | 19,860 | | | | | | 726,222 | | |
| | | | 2022 | | | | | | 357,000 | | | | | | — | | | | | | — | | | | | | 210,183 | | | | | | 18,376 | | | | | | 585,559 | | | ||
|
Eric Jacobsen
Chief Operating Officer |
| | | | 2023 | | | | | | 424,500 | | | | | | — | | | | | | — | | | | | | 380,052 | | | | | | 17,731 | | | | | | 822,283 | | |
| | | | 2022 | | | | | | 412,000 | | | | | | — | | | | | | — | | | | | | 223,159 | | | | | | 18,383 | | | | | | 653,542 | | | ||
| | | |
Company
401(k) Contribution ($)(a) |
| |
Life Insurance
Premiums ($)(b) |
| ||||||
|
Christopher P. Kalnin
|
| | | | 19,800 | | | | | | 60 | | |
|
John T. Jimenez
|
| | | | 19,800 | | | | | | 60 | | |
|
Eric S. Jacobsen
|
| | | | 17,671 | | | | | | 60 | | |
| | | |
Stock Awards
|
| |||||||||||||||||||||
|
Name
|
| |
Number of
shares or units of stock that have not vested (#) |
| |
Market value of
shares or units of stock that have not vested ($) |
| |
Equity incentive
plan awards: Number of unearned shares, units or other rights that have not vested (#) |
| |
Equity incentive
plan awards: Market or payout value of unearned shares, units or other rights that have not vested ($) |
| ||||||||||||
|
Christopher P. Kalnin
|
| | | | — | | | | | | — | | | | | | 456,260(1) | | | | | | 12,889,345 | | |
|
Christopher P. Kalnin
|
| | | | 36,664(2) | | | | | | 1,035,758 | | | | | | — | | | | | | — | | |
|
Christopher P. Kalnin
|
| | | | 24,442(3) | | | | | | 690,487 | | | | | | — | | | | | | — | | |
|
Christopher P. Kalnin
|
| | | | 12,222(4) | | | | | | 345,272 | | | | | | — | | | | | | — | | |
|
John T. Jimenez
|
| | | | — | | | | | | — | | | | | | 216,300(1) | | | | | | 6,110,475 | | |
|
John T. Jimenez
|
| | | | 17,381(5) | | | | | | 491,014 | | | | | | — | | | | | | — | | |
|
John T. Jimenez
|
| | | | 11,587(6) | | | | | | 327,333 | | | | | | — | | | | | | — | | |
|
John T. Jimenez
|
| | | | 5,794(7) | | | | | | 163,681 | | | | | | — | | | | | | — | | |
|
Eric S. Jacobsen
|
| | | | — | | | | | | — | | | | | | 259,000(1) | | | | | | 7,316,750 | | |
|
Eric S. Jacobsen
|
| | | | 20,812(2) | | | | | | 587,939 | | | | | | — | | | | | | — | | |
|
Eric S. Jacobsen
|
| | | | 13,875(3) | | | | | | 391,969 | | | | | | — | | | | | | — | | |
|
Eric S. Jacobsen
|
| | | | 6,937(4) | | | | | | 195,971 | | | | | | — | | | | | | — | | |
|
Name(1)
|
| |
2023 Fees earned
or paid in cash ($)(2)(3) |
| |
Total
($) |
| ||||||
|
Chanin Vongkusolkit
|
| | | | — | | | | | | — | | |
|
Somruedee Chaimongkol
|
| | | | — | | | | | | — | | |
|
Joseph R. Davis
|
| | | | 266,795 | | | | | | 266,795 | | |
|
Akaraphong Dayananda
|
| | | | — | | | | | | — | | |
|
Kirana Limpaphayom
|
| | | | — | | | | | | — | | |
|
Carla S. Mashinski
|
| | | | 261,795 | | | | | | 261,795 | | |
|
Thiti Mekavichai
|
| | | | — | | | | | | — | | |
|
Charles C. Miller III
|
| | | | 271,795 | | | | | | 271,795 | | |
|
Sunit S. Patel
|
| | | | 261,795 | | | | | | 261,795 | | |
|
Anon Sirisaengtaksin
|
| | | | — | | | | | | — | | |
|
Sinon Vongkusolkit
|
| | | | — | | | | | | — | | |
| | | |
Beneficial Ownership
Before the Offering |
| |
Beneficial Ownership
After the Offering |
| |||||||||||||||||||||
| | | |
Common
Stock |
| |
Total
Voting Power Before the Offering |
| |
Common
Stock |
| |
Total
Voting Power After the Offering |
| |||||||||||||||
|
Name of Beneficial Owner
|
| |
Shares
|
| |
%
|
| |
%
|
| |
Shares
|
| |
%
|
| |
%
|
| |||||||||
| Named Executive Officers and Directors: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Christopher P. Kalnin
|
| | | | 2,234,059(1) | | | | | | 3.2% | | | | | | 3.2% | | | | | | | | | | | |
|
John T. Jimenez
|
| | | | 211,442(2) | | | | | | * | | | | | | * | | | | | | | | | | | |
|
Eric S. Jacobsen
|
| | | | 255,533(3) | | | | | | * | | | | | | * | | | | | | | | | | | |
|
Barry S. Turcotte
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Somruedee Chaimongkol
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Joseph R. Davis
|
| | | | 23,000 | | | | | | * | | | | | | * | | | | | | | | | | | |
|
Akaraphong Dayananda
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Kirana Limpaphayom
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Carla S. Mashinski
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Thiti Mekavichai
|
| | | | 18,500 | | | | | | * | | | | | | * | | | | | | | | | | | |
|
Charles C. Miller III
|
| | | | 87,500 | | | | | | * | | | | | | * | | | | | | | | | | | |
|
Sunit S. Patel
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Anon Sirisaengtaksin
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Chanin Vongkusolkit
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
Sinon Vongkusolkit
|
| | | | — | | | | | | —% | | | | | | —% | | | | | | | | | | | |
|
All executive officers and directors as a group (16 persons)
|
| | | | 3,277,409 | | | | | | 4.8% | | | | | | 4.8% | | | | | | | | | | | |
| 5% Stockholders: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Banpu North America Corporation(4)
|
| | | | 63,877,614 | | | | | | 92.9% | | | | | | 92.9% | | | | | | | | | | | |
|
Underwriter
|
| |
Number
of Shares |
| |||
|
Citigroup Global Markets Inc.
|
| | | | | | |
|
Barclays Capital Inc.
|
| | | | | | |
|
Evercore Group L.L.C.
|
| | | | | | |
|
Jefferies LLC
|
| | | | | | |
|
Mizuho Securities USA LLC
|
| | | | | | |
|
KeyBanc Capital Markets Inc.
|
| | | | | | |
|
Susquehanna Financial Group, LLLP
|
| | | | | | |
|
Tudor, Pickering, Holt & Co. Securities, LLC
|
| | | | | | |
|
Truist Securities, Inc.
|
| | | | | | |
|
Citizens JMP Securities, LLC
|
| |
|
| |||
|
SMBC Nikko Securities America, Inc.
|
| | | | | | |
|
Total
|
| | | | | | |
| | | |
Per Share
|
| |
Total
|
| ||||||||||||||||||
| | | |
Without
Option |
| |
With
Option |
| |
Without
Option |
| |
With
Option |
| ||||||||||||
|
Underwriting discounts and commissions payable by us
|
| | | $ | | | | | $ | | | | | $ | | | | | $ | | | ||||
| | | | | | F-2 | | | |
| | | | | | F-3 | | | |
| | | | | | F-5 | | | |
| | | | | | F-6 | | | |
| | | | | | F-8 | | | |
| | | | | | F-10 | | | |
| | Unaudited Condensed Consolidated Financial Statements | | | | | | | |
| | | | | | F-54 | | | |
| | | | | | F-56 | | | |
| | | | | | F-57 | | | |
| | | | | | F-59 | | | |
| | | | | | F-61 | | |
| | | |
December 31,
|
| |||||||||
| | | |
2023
|
| |
2022
|
| ||||||
| Assets | | | | | | | | | | | | | |
|
Current assets
|
| | | | | | | | | | | | |
|
Cash and cash equivalents
|
| | | $ | 25,407 | | | | | $ | 153,128 | | |
|
Restricted cash
|
| | | | 139,662 | | | | | | — | | |
|
Accounts receivable, net
|
| | | | 48,500 | | | | | | 143,537 | | |
|
Accounts receivable, related parties
|
| | | | 559 | | | | | | 416 | | |
|
Commodity derivative assets, current
|
| | | | 84,039 | | | | | | 2,651 | | |
|
Other current assets
|
| | | | 13,990 | | | | | | 20,408 | | |
|
Total current assets
|
| | | | 312,157 | | | | | | 320,140 | | |
|
Natural gas properties and equipment
|
| | | | | | | | | | | | |
|
Developed properties
|
| | | | 2,370,156 | | | | | | 2,252,681 | | |
|
Undeveloped properties
|
| | | | 15,846 | | | | | | 15,511 | | |
|
Midstream assets
|
| | | | 318,855 | | | | | | 317,109 | | |
|
Accumulated depreciation, depletion, and amortization
|
| | | | (579,415) | | | | | | (375,783) | | |
|
Total natural gas properties, net
|
| | | | 2,125,442 | | | | | | 2,209,518 | | |
|
Other property and equipment, net
|
| | | | 83,935 | | | | | | 39,865 | | |
|
Goodwill
|
| | | | 18,417 | | | | | | 18,417 | | |
|
Investment in joint venture
|
| | | | 104,750 | | | | | | 97,885 | | |
|
Commodity derivative assets
|
| | | | 18,508 | | | | | | 816 | | |
|
Other noncurrent assets
|
| | | | 19,937 | | | | | | 15,932 | | |
|
Total assets
|
| | | $ | 2,683,146 | | | | | $ | 2,702,573 | | |
| Liabilities, mezzanine equity, and stockholders’ equity | | | | | | | | | | | | | |
|
Current liabilities
|
| | | | | | | | | | | | |
|
Accounts payable and accrued liabilities
|
| | | $ | 149,173 | | | | | $ | 272,475 | | |
|
Contingent consideration payable
|
| | | | 20,000 | | | | | | 65,000 | | |
|
Commodity derivative liabilities, current
|
| | | | — | | | | | | 49,484 | | |
|
Income taxes payable to related party
|
| | | | 864 | | | | | | 5,227 | | |
|
Credit facilities
|
| | | | 127,000 | | | | | | 90,000 | | |
|
Current portion of long-term debt, net
|
| | | | 112,373 | | | | | | 112,001 | | |
|
Other current liabilities
|
| | | | 2,849 | | | | | | 2,446 | | |
|
Total current liabilities
|
| | | | 412,259 | | | | | | 596,633 | | |
|
Asset retirement obligations
|
| | | | 193,205 | | | | | | 181,135 | | |
|
Contingent consideration
|
| | | | 29,676 | | | | | | 88,051 | | |
|
Note payable to related party
|
| | | | 75,000 | | | | | | 75,000 | | |
|
Deferred tax liability, net
|
| | | | 136,524 | | | | | | 104,130 | | |
|
Long-term debt, net
|
| | | | 339,663 | | | | | | 452,036 | | |
|
Other noncurrent liabilities
|
| | | | 11,652 | | | | | | 9,664 | | |
|
Total liabilities
|
| | | | 1,197,979 | | | | | | 1,506,649 | | |
| | | |
December 31,
|
| |||||||||
| | | |
2023
|
| |
2022
|
| ||||||
|
Commitments and contingencies (Note 16)
|
| | | | | | | | | | | | |
|
Mezzanine equity
|
| | | | | | | | | | | | |
|
Common stock – Minority ownership puttable shares; 2,403 authorized shares; 2,403 and 2,290 shares issued and outstanding as of December 31, 2023 and 2022, respectively
|
| | | | 59,988 | | | | | | 62,712 | | |
|
Equity-based compensation
|
| | | | 126,966 | | | | | | 89,171 | | |
|
Total mezzanine equity
|
| | | | 186,954 | | | | | | 151,883 | | |
|
Stockholders’ equity
|
| | | | | | | | | | | | |
|
Common stock, $0.01 par value; 300,000 authorized shares; 63,873 and 56,373 shares issued and outstanding as of December 31, 2023 and 2022, respectively
|
| | | | 1,283 | | | | | | 1,132 | | |
|
Treasury stock, shares at cost; 213 shares and 193 shares as of December 31, 2023 and 2022, respectively
|
| | | | (4,582) | | | | | | (3,974) | | |
|
Additional paid-in capital
|
| | | | 1,034,144 | | | | | | 896,433 | | |
|
Retained earnings
|
| | | | 267,368 | | | | | | 150,450 | | |
|
Total stockholders’ equity
|
| | | | 1,298,213 | | | | | | 1,044,041 | | |
|
Total liabilities, mezzanine equity, and stockholders’ equity
|
| | | $ | 2,683,146 | | | | | $ | 2,702,573 | | |
| | |||||||||||||
| | | |
Year Ended December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Revenues and other operating income | | | | | | | | | | | | | | | | | | | |
|
Natural gas, NGL, and oil sales
|
| | | $ | 706,151 | | | | | $ | 1,633,747 | | | | | $ | 829,745 | | |
|
Midstream revenues
|
| | | | 16,168 | | | | | | 12,676 | | | | | | 6,917 | | |
|
Derivative gains (losses), net
|
| | | | 238,743 | | | | | | (629,701) | | | | | | (383,847) | | |
|
Marketing revenues
|
| | | | 8,710 | | | | | | 11,001 | | | | | | 52,616 | | |
|
Related party and other
|
| | | | 8,251 | | | | | | 2,799 | | | | | | 251 | | |
|
Total revenues and other operating income
|
| | | | 978,023 | | | | | | 1,030,522 | | | | | | 505,682 | | |
| Operating expenses | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | | 150,647 | | | | | | 131,497 | | | | | | 86,831 | | |
|
Taxes other than income
|
| | | | 72,290 | | | | | | 114,668 | | | | | | 45,650 | | |
|
Gathering and transportation
|
| | | | 248,990 | | | | | | 208,758 | | | | | | 173,587 | | |
|
Depreciation, depletion, amortization, and accretion
|
| | | | 223,370 | | | | | | 118,909 | | | | | | 92,277 | | |
|
General and administrative
|
| | | | 114,688 | | | | | | 148,559 | | | | | | 85,740 | | |
|
Other
|
| | | | 12,625 | | | | | | 3,567 | | | | | | 1,274 | | |
|
Total operating expenses
|
| | | | 822,610 | | | | | | 725,958 | | | | | | 485,359 | | |
|
Income from operations
|
| | | | 155,413 | | | | | | 304,564 | | | | | | 20,323 | | |
| Other income (expense) | | | | | | | | | | | | | | | | | | | |
|
Bargain purchase gain
|
| | | | — | | | | | | 170,853 | | | | | | — | | |
|
Gain on settlement of litigation
|
| | | | — | | | | | | 16,866 | | | | | | — | | |
|
Gains (losses) on contingent consideration liabilities
|
| | | | 38,375 | | | | | | 6,632 | | | | | | (194,968) | | |
|
Earnings from equity affiliate
|
| | | | 16,865 | | | | | | 8,493 | | | | | | 910 | | |
|
Interest income
|
| | | | 3,138 | | | | | | 1,143 | | | | | | 8 | | |
|
Interest expense
|
| | | | (69,942) | | | | | | (26,322) | | | | | | — | | |
|
Interest expense, related party
|
| | | | (7,078) | | | | | | (10,846) | | | | | | (2,134) | | |
|
Other income
|
| | | | 8,372 | | | | | | 1,411 | | | | | | 872 | | |
|
Income (loss) before income taxes
|
| | | | 145,143 | | | | | | 472,794 | | | | | | (174,989) | | |
|
Income tax benefit (expense)
|
| | | | (28,225) | | | | | | (62,652) | | | | | | 40,526 | | |
|
Net income (loss) attributable to BKV Corporation
|
| | | | 116,918 | | | | | | 410,142 | | | | | | (134,463) | | |
|
Less accretion of preferred stock to redemption value
|
| | | | — | | | | | | — | | | | | | (3,745) | | |
|
Less preferred stock dividends
|
| | | | — | | | | | | — | | | | | | (9,900) | | |
|
Less deemed dividend on redemption of preferred stock
|
| | | | — | | | | | | — | | | | | | (22,606) | | |
|
Net income (loss) attributable to common stockholders
|
| | | $ | 116,918 | | | | | $ | 410,142 | | | | | $ | (170,714) | | |
| Net income (loss) per common share: | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | $ | 1.93 | | | | | $ | 6.99 | | | | | $ | (2.92) | | |
|
Diluted
|
| | | $ | 1.82 | | | | | $ | 6.62 | | | | | $ | (2.92) | | |
| Weighted average number of common shares outstanding: | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | | 60,730 | | | | | | 58,659 | | | | | | 58,496 | | |
|
Diluted
|
| | | | 64,380 | | | | | | 61,990 | | | | | | 58,496 | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Cash flows from operating activities: | | | | | | | | | | | | | | | | | | | |
|
Net income (loss)
|
| | | $ | 116,918 | | | | | $ | 410,142 | | | | | $ | (134,463) | | |
|
Adjustments to reconcile to net cash provided by operating activities:
|
| | | | | | | | | | | | | | | | | | |
|
Depreciation, depletion, amortization, and accretion
|
| | | | 224,427 | | | | | | 130,038 | | | | | | 98,833 | | |
|
Equity-based compensation expense
|
| | | | 25,756 | | | | | | 31,947 | | | | | | 30,387 | | |
|
Deferred income tax (benefit) expense
|
| | | | 32,394 | | | | | | 89,065 | | | | | | (72,753) | | |
|
Unrealized (gains) losses on derivatives, net
|
| | | | (148,564) | | | | | | (58,815) | | | | | | 115,161 | | |
|
(Gains) losses on contingent consideration liabilities
|
| | | | (38,375) | | | | | | (6,632) | | | | | | 194,968 | | |
|
Settlement of contingent consideration
|
| | | | (65,000) | | | | | | (45,300) | | | | | | — | | |
|
Gain on bargain purchase
|
| | | | — | | | | | | (170,853) | | | | | | — | | |
|
Earnings from equity affiliate
|
| | | | (16,865) | | | | | | (8,493) | | | | | | (910) | | |
|
Distribution from equity affiliate
|
| | | | 10,000 | | | | | | — | | | | | | — | | |
|
Other, net
|
| | | | 822 | | | | | | 911 | | | | | | 48 | | |
|
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | | | | | | | |
|
Accounts receivable, net
|
| | | | 86,477 | | | | | | (39,394) | | | | | | (24,689) | | |
|
Accounts receivable, related parties
|
| | | | (143) | | | | | | 3,082 | | | | | | (3,498) | | |
|
Accounts payable and accrued liabilities
|
| | | | (98,238) | | | | | | 62,539 | | | | | | 137,550 | | |
|
Other changes in operating assets and liabilities
|
| | | | (6,533) | | | | | | (49,043) | | | | | | 17,499 | | |
|
Net cash provided by operating activities
|
| | | | 123,076 | | | | | | 349,194 | | | | | | 358,133 | | |
| Cash flows from investing activities: | | | | | | | | | | | | | | | | | | | |
|
Business combination
|
| | | | — | | | | | | (619,437) | | | | | | — | | |
|
Investment in joint venture
|
| | | | — | | | | | | (72) | | | | | | (88,410) | | |
|
Acquisition of natural gas properties
|
| | | | (4,889) | | | | | | — | | | | | | (2,528) | | |
|
Investment in other property and equipment
|
| | | | (52,066) | | | | | | (11,787) | | | | | | (2,249) | | |
|
Development of natural gas properties
|
| | | | (134,428) | | | | | | (235,406) | | | | | | (63,932) | | |
|
Loan advanced to equity affiliate
|
| | | | (8,000) | | | | | | — | | | | | | — | | |
|
Loan repayment from equity affiliate
|
| | | | 8,000 | | | | | | — | | | | | | — | | |
|
Other investing activities
|
| | | | 13,535 | | | | | | 1,136 | | | | | | (4,739) | | |
|
Net cash used in investing activities
|
| | | | (177,848) | | | | | | (865,566) | | | | | | (161,858) | | |
| Cash flows from financing activities: | | | | | | | | | | | | | | | | | | | |
|
Proceeds from notes payable from related party
|
| | | | 17,000 | | | | | | 75,000 | | | | | | 166,000 | | |
|
Payments on notes payable to related party
|
| | | | (17,000) | | | | | | (166,000) | | | | | | (24,000) | | |
|
Proceeds under term loan agreement
|
| | | | — | | | | | | 570,000 | | | | | | — | | |
|
Payment on term loan agreement
|
| | | | (114,000) | | | | | | — | | | | | | — | | |
|
Payment of debt issuance costs
|
| | | | — | | | | | | (7,738) | | | | | | — | | |
|
Proceeds from draws on credit facilities
|
| | | | 375,500 | | | | | | 190,000 | | | | | | — | | |
|
Payments on credit facilities
|
| | | | (338,500) | | | | | | (100,000) | | | | | | — | | |
|
Settlement of contingent consideration
|
| | | | — | | | | | | (19,700) | | | | | | — | | |
|
Payments of deferred offering costs
|
| | | | (2,901) | | | | | | (5,625) | | | | | | — | | |
|
Redemption of minority ownership puttable shares
|
| | | | — | | | | | | — | | | | | | (2,754) | | |
|
Issuance of minority ownership puttable shares
|
| | | | — | | | | | | 78 | | | | | | 3,177 | | |
|
Dividends paid to preferred stock shareholders
|
| | | | — | | | | | | — | | | | | | (10,330) | | |
|
Proceeds from the issuance of common stock
|
| | | | 150,005 | | | | | | — | | | | | | (121,275) | | |
|
Dividends paid to common stock shareholders
|
| | | | — | | | | | | — | | | | | | (88,126) | | |
|
Redemption of common stock
|
| | | | — | | | | | | — | | | | | | (1,106) | | |
|
Redemption of common stock issued upon vesting of equity-based compensation and other
|
| | | | (426) | | | | | | (4) | | | | | | (110) | | |
|
Shares repurchased in conjunction with reverse stock split
|
| | | | (4) | | | | | | — | | | | | | — | | |
|
Net share settlements, equity-based compensation
|
| | | | (2,961) | | | | | | (1,178) | | | | | | (529) | | |
|
Net cash provided by (used in) financing activities
|
| | | | 66,713 | | | | | | 534,833 | | | | | | (79,053) | | |
|
Net increase in cash, cash equivalents, and restricted cash
|
| | | | 11,941 | | | | | | 18,461 | | | | | | 117,222 | | |
|
Cash, cash equivalents, and restricted cash, beginning of period
|
| | | | 153,128 | | | | | | 134,667 | | | | | | 17,445 | | |
|
Cash, cash equivalents, and restricted cash, end of period
|
| | | $ | 165,069 | | | | | $ | 153,128 | | | | | $ | 134,667 | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||
| | | |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Supplemental cash flow information: | | | | | |||||||||||||||
|
Cash payments for:
|
| | | | | | | | | | | | | | | | | | |
|
Interest
|
| | | $ | 68,480 | | | | | $ | 32,086 | | | | | $ | 393 | | |
|
Income tax
|
| | | $ | 1,545 | | | | | $ | 400 | | | | | $ | — | | |
|
Non-cash investing and financing activities:
|
| | | | | | | | | | | | | | | | | | |
|
Increase (decrease) in accrued capital expenditures
|
| | | $ | (23,863) | | | | | $ | 19,247 | | | | | $ | 12,297 | | |
|
Additions to asset retirement obligations
|
| | | $ | 89 | | | | | $ | 302 | | | | | $ | 923 | | |
|
Revisions to asset retirement obligation estimates
|
| | | $ | — | | | | | $ | 36,516 | | | | | $ | — | | |
|
Lease liabilities arising from obtaining right-of-use assets
|
| | | $ | 3,061 | | | | | $ | 1,218 | | | | | $ | 11,249 | | |
|
Increase (decrease) in accrued offering costs
|
| | | $ | (604) | | | | | $ | 945 | | | | | $ | — | | |
|
Fair value of contingent consideration from acquisitions
|
| | | $ | — | | | | | $ | 17,150 | | | | | $ | — | | |
|
Adjustment of minority ownership puttable shares to redemption
value |
| | | $ | 2,722 | | | | | $ | 12,793 | | | | | $ | 7,042 | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | $ | 15,602 | | | | | $ | 24,400 | | | | | $ | 4,236 | | |
|
Impact of redemption of minority interest puttable shares on additional paid-in capital, common stock, and treasury stock
|
| | | $ | 781 | | | | | $ | 4 | | | | | $ | 2,754 | | |
|
Accretion of preferred stock to redemption value
|
| | | $ | — | | | | | $ | — | | | | | $ | 3,745 | | |
| | | |
Stockholders’ Equity
|
| |
Mezzanine Equity
|
| | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | |
Common Stock
|
| |
Treasury
|
| |
Additional
Paid-in Capital |
| |
Retained
Earnings (Deficit) |
| |
Total
Stockholders’ Equity |
| |
Preferred
Stock |
| |
Common Stock
|
| |
Equity-based
Compensation |
| |
Total
Mezzanine Equity |
| | | |||||||||||||||||||||||||||||||||||||||||||
| | | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| | | | | | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Balances, December 31, 2020
|
| | | | 56,428 | | | | | $ | 1,129 | | | | | $ | — | | | | | $ | 968,500 | | | | | $ | (26,773) | | | | | $ | 942,856 | | | | | $ | 94,924 | | | | | | 2,114 | | | | | $ | 42,288 | | | | | $ | — | | | | | $ | 137,212 | | | | | ||||
|
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (134,463) | | | | | | (134,463) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Dividend declared, preferred stock shareholders ($0.50 per share)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (10,330) | | | | | | (10,330) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Accretion of preferred stock to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (3,745) | | | | | | — | | | | | | (3,745) | | | | | | 3,745 | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,745 | | | | | ||||
|
Deemed dividend, preferred stock shareholders
|
| | | | — | | | | | | — | | | | | | — | | | | | | (22,606) | | | | | | — | | | | | | (22,606) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Redemption of preferred stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (98,669) | | | | | | — | | | | | | — | | | | | | — | | | | | | (98,669) | | | | | ||||
|
Redemption of common stock
|
| | | | (50) | | | | | | — | | | | | | (1,106) | | | | | | — | | | | | | — | | | | | | (1,106) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Purchase of vested equity-based compensation
award shares of common stock |
| | | | (5) | | | | | | — | | | | | | (110) | | | | | | — | | | | | | — | | | | | | (110) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Redemption of minority ownership puttable common stock shares
|
| | | | — | | | | | | 3 | | | | | | (2,754) | | | | | | 2,751 | | | | | | — | | | | | | — | | | | | | — | | | | | | (138) | | | | | | (2,754) | | | | | | — | | | | | | (2,754) | | | | | ||||
|
Dividend declared
($1.50 per share) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (88,126) | | | | | | (88,126) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Issuance of common stock from employee stock purchase plan
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 144 | | | | | | 3,265 | | | | | | — | | | | | | 3,265 | | | | | ||||
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (7,042) | | | | | | — | | | | | | (7,042) | | | | | | — | | | | | | — | | | | | | 7,042 | | | | | | — | | | | | | 7,042 | | | | | ||||
|
Issuance of common stock upon vesting of equity-based compensation awards
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 58 | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Impact of modification of equity-based compensation plan
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 25,342 | | | | | | 25,342 | | | | | ||||
|
Capital contribution from modification of equity-based compensation plan
|
| | | | — | | | | | | — | | | | | | — | | | | | | 780 | | | | | | — | | | | | | 780 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,648 | | | | | | 3,648 | | | | | ||||
|
Adjustment of equity-based compensation to
redemption value |
| | | | — | | | | | | — | | | | | | — | | | | | | (5,016) | | | | | | — | | | | | | (5,016) | | | | | | — | | | | | | — | | | | | | — | | | | | | 5,016 | | | | | | 5,016 | | | | | ||||
|
Balances, December 31, 2021
|
| | | | 56,373 | | | | | $ | 1,132 | | | | | $ | (3,970) | | | | | $ | 933,622 | | | | | $ | (259,692) | | | | | $ | 671,092 | | | | | $ | — | | | | | | 2,178 | | | | | $ | 49,841 | | | | | $ | 34,006 | | | | | $ | 83,847 | | | | | ||||
|
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 410,142 | | | | | | 410,142 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Redemption of common stock issued upon vesting of equity-based compensation
|
| | | | — | | | | | | — | | | | | | (4) | | | | | | 4 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4) | | | | | | (4) | | | | | ||||
|
Issuance of common stock from employee stock purchase plan
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2 | | | | | | 78 | | | | | | — | | | | | | 78 | | | | | ||||
|
Issuance of common stock upon vesting of equity-based compensation awards, net of shares withheld for income
taxes |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 110 | | | | | | — | | | | | | (1,178) | | | | | | (1,178) | | | | | ||||
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (12,793) | | | | | | — | | | | | | (12,793) | | | | | | — | | | | | | — | | | | | | 12,793 | | | | | | — | | | | | | 12,793 | | | | | ||||
|
Adjustment of equity-based compensation to
redemption value |
| | | | — | | | | | | — | | | | | | — | | | | | | (24,400) | | | | | | — | | | | | | (24,400) | | | | | | — | | | | | | — | | | | | | — | | | | | | 24,400 | | | | | | 24,400 | | | | | ||||
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 31,947 | | | | | | 31,947 | | | | | ||||
|
Balances, December 31, 2022
|
| | | | 56,373 | | | | | $ | 1,132 | | | | | $ | (3,974) | | | | | $ | 896,433 | | | | | $ | 150,450 | | | | | $ | 1,044,041 | | | | | $ | — | | | | | | 2,290 | | | | | $ | 62,712 | | | | | $ | 89,171 | | | | | $ | 151,883 | | | | | ||||
|
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 116,918 | | | | | | 116,918 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Redemption of common stock issued upon vesting of equity-based compensation
|
| | | | — | | | | | | 1 | | | | | | (604) | | | | | | 736 | | | | | | — | | | | | | 133 | | | | | | — | | | | | | (21) | | | | | | (2) | | | | | | (602) | | | | | | (604) | | | | | ||||
| | | |
Stockholders’ Equity
|
| |
Mezzanine Equity
|
| | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | |
Common Stock
|
| |
Treasury
|
| |
Additional
Paid-in Capital |
| |
Retained
Earnings (Deficit) |
| |
Total
Stockholders’ Equity |
| |
Preferred
Stock |
| |
Common Stock
|
| |
Equity-based
Compensation |
| |
Total
Mezzanine Equity |
| | | |||||||||||||||||||||||||||||||||||||||||||
| | | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| | | | | | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Issuance of common stock upon vesting of equity-based compensation awards, net of shares withheld for income taxes
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 134 | | | | | | — | | | | | | (2,961) | | | | | | (2,961) | | | | | ||||
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,722 | | | | | | — | | | | | | 2,722 | | | | | | — | | | | | | — | | | | | | (2,722) | | | | | | — | | | | | | (2,722) | | | | | ||||
|
Adjustment of equity-based compensation to
redemption value |
| | | | — | | | | | | — | | | | | | — | | | | | | (15,602) | | | | | | — | | | | | | (15,602) | | | | | | — | | | | | | — | | | | | | — | | | | | | 15,602 | | | | | | 15,602 | | | | | ||||
|
Issuance of common stock
|
| | | | 7,500 | | | | | | 150 | | | | | | — | | | | | | 149,855 | | | | | | — | | | | | | 150,005 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | ||||
|
Shares repurchased with reverse stock split
|
| | | | — | | | | | | — | | | | | | (4) | | | | | | — | | | | | | — | | | | | | (4) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | |||||||||
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 25,756 | | | | | | 25,756 | | | | | ||||
|
Balances, December 31, 2023
|
| | | | 63,873 | | | | | $ | 1,283 | | | | | $ | (4,582) | | | | | $ | 1,034,144 | | | | | $ | 267,368 | | | | | $ | 1,298,213 | | | | | $ | — | | | | | | 2,403 | | | | | $ | 59,988 | | | | | $ | 126,966 | | | | | $ | 186,954 | | | | | ||||
| | | |
December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
|
Cash and cash equivalents
|
| | | $ | 25,407 | | | | | $ | 153,128 | | |
|
Restricted cash
|
| | | | 139,662 | | | | | | — | | |
|
Cash, cash equivalents, and restricted cash
|
| | | $ | 165,069 | | | | | $ | 153,128 | | |
| | | |
Useful Life
|
|
|
Buildings
|
| |
39 years
|
|
|
Furniture, fixtures, equipment, vehicles, and other
|
| |
5 years
|
|
|
Computer hardware and software
|
| |
3 – 5 years
|
|
|
Leasehold improvements
|
| |
7 – 10 years
|
|
| |
Cash
|
| | | $ | 619,437 | | |
| |
Contingent consideration
|
| | | | 17,150 | | |
| |
Total consideration
|
| | | $ | 636,587 | | |
| | Assets acquired and liabilities assumed: | | | | | | | |
| |
Inventory
|
| | | $ | 150 | | |
| |
Natural gas properties – developed
|
| | | | 657,935 | | |
| |
Midstream assets
|
| | | | 260,843 | | |
| |
Other property and equipment
|
| | | | 8,856 | | |
| |
Property taxes
|
| | | | (6,296) | | |
| |
Deferred tax liability
|
| | | | (50,569) | | |
| |
Revenues payable
|
| | | | (16,612) | | |
| |
Asset retirement obligations
|
| | | | (46,867) | | |
| |
Total identifiable net assets
|
| | | $ | 807,440 | | |
| |
Bargain purchase gain
|
| | | $ | (170,853) | | |
| | | |
Year Ended December 31,
|
| |||||||||
|
(in thousands)
|
| |
2022
|
| |
2021
|
| ||||||
|
Total revenues and other operating income
|
| | | $ | 1,253,623 | | | | | $ | 820,173 | | |
|
Net income (loss) attributable to BKV Corporation
|
| | | $ | 476,567 | | | | | $ | (113,181) | | |
| | | |
December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
| Credit facilities | | | | ||||||||||
|
OCBC Credit Facility
|
| | | $ | — | | | | | $ | 45,000 | | |
|
SCB Credit Facility
|
| | | | 31,000 | | | | | | — | | |
|
Revolving Credit Agreement
|
| | | | 96,000 | | | | | | 45,000 | | |
| Term loan | | | | ||||||||||
|
Current portion of Term Loan Credit Agreement
|
| | | | 114,000 | | | | | | 114,000 | | |
|
Current portion of unamortized debt issuance costs
|
| | | | (1,627) | | | | | | (1,999) | | |
|
Total current debt, net
|
| | | | 239,373 | | | | | | 202,001 | | |
|
Term Loan Credit Agreement
|
| | | | 342,000 | | | | | | 456,000 | | |
|
Long-term portion of unamortized debt issuance costs
|
| | | | (2,337) | | | | | | (3,964) | | |
|
Total long-term debt, net
|
| | | | 339,663 | | | | | | 452,036 | | |
|
Total debt, net
|
| | | $ | 579,036 | | | | | $ | 654,037 | | |
| | | |
December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
|
Compressor station
|
| | | $ | 37,280 | | | | | $ | 37,130 | | |
|
Meter station
|
| | | | 721 | | | | | | 654 | | |
|
Pipelines
|
| | | | 280,854 | | | | | | 279,325 | | |
|
Total
|
| | | | 318,855 | | | | | | 317,109 | | |
|
Accumulated depreciation
|
| | | | (19,399) | | | | | | (11,951) | | |
|
Midstream assets, net
|
| | | $ | 299,456 | | | | | $ | 305,158 | | |
|
(in thousands)
|
| |
December 31,
|
| |||||||||
| | | |
2023
|
| |
2022
|
| ||||||
|
Carbon capture, utilization, and sequestration
|
| | | $ | 59,142 | | | | | $ | — | | |
|
Buildings
|
| | | | 15,707 | | | | | | 16,788 | | |
|
Furniture, fixtures, equipment, and vehicles
|
| | | | 15,101 | | | | | | 14,368 | | |
|
Computer software
|
| | | | 4,844 | | | | | | 4,844 | | |
|
Land
|
| | | | 3,090 | | | | | | 3,090 | | |
|
Leasehold improvements
|
| | | | 1,685 | | | | | | 1,627 | | |
|
Construction in process
|
| | | | 76 | | | | | | 9,845 | | |
|
Total
|
| | | | 99,645 | | | | | | 50,562 | | |
|
Accumulated depreciation
|
| | | | (15,710) | | | | | | (10,697) | | |
|
Other property and equipment, net
|
| | | $ | 83,935 | | | | | $ | 39,865 | | |
| | | |
As of December 31, 2023
|
| |||||||||||||||
| | | |
Fair Value Measurements Using:
|
| | | | | | | |||||||||
|
(in thousands)
|
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
|
| |||||||||
| Financial assets | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | $ | 102,547 | | | | | $ | — | | | | | $ | 102,547 | | |
| Financial liabilities | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | | — | | | | | | — | | | | | | — | | |
|
Contingent consideration
|
| | | | — | | | | | | 29,676 | | | | | | 29,676 | | |
| Mezzanine equity | | | | | | | | | | | | | | | | | | | |
|
Minority ownership puttable shares
|
| | | | — | | | | | | 59,988 | | | | | | 59,988 | | |
|
Equity-based compensation
|
| | | | — | | | | | | 126,966 | | | | | | 126,966 | | |
| | | |
As of December 31, 2022
|
| |||||||||||||||
| | | |
Fair Value Measurements Using:
|
| | | | | | | |||||||||
|
(in thousands)
|
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
|
| |||||||||
| Financial assets | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | $ | 3,467 | | | | | $ | — | | | | | $ | 3,467 | | |
| Financial liabilities | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | | 49,484 | | | | | | — | | | | | | 49,484 | | |
|
Contingent consideration
|
| | | | — | | | | | | 88,051 | | | | | | 88,051 | | |
| Mezzanine equity | | | | | | | | | | | | | | | | | | | |
|
Minority ownership puttable shares
|
| | | | — | | | | | | 62,712 | | | | | | 62,712 | | |
|
Equity-based compensation
|
| | | | — | | | | | | 89,171 | | | | | | 89,171 | | |
|
(in thousands, except per share amounts)
|
| |
Fair Value
|
| |
Valuation
Technique |
| |
Unobservable
Input |
| |
Range or Actual
|
| |||
|
Market condition equity-based compensation per share, as of December 31, 2022
|
| | | $ | 35.54 | | | |
Monte Carlo
Simulation |
| |
Performance
period dividends |
| |
3.0% equity capital,
annually |
|
|
Common stock – per share value, as of December 31, 2022(1)
|
| | | $ | 29.54 | | | |
Enterprise
value |
| |
Discount rate
|
| |
10.0% – 11.0%
|
|
|
Contingent consideration, as of December 31, 2022
|
| | | $ | 88,051 | | | |
Monte Carlo
Simulation |
| |
Risk free rate(2)
|
| |
4.8%
|
|
| | | | | | | | | | | | |
Credit spread
|
| |
4.8%
|
|
| | | | | | | | | | | | |
Discount rate
|
| |
9.6%
|
|
|
Common stock – per share value, as of December 31, 2023(1)
|
| | | $ | 28.25 | | | |
Enterprise
value |
| |
Discount rate
|
| |
11.5% – 12.5%
|
|
|
Contingent consideration, as of December 31, 2023
|
| | | $ | 29,676 | | | |
Monte Carlo
Simulation |
| |
Risk free rate(2)
|
| |
5.2%
|
|
| | | | | | | | | | | | |
Credit spread
|
| |
4.7%
|
|
| | | | | | | | | | | | |
Discount rate
|
| |
9.9%
|
|
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Balance, as of January 1,
|
| | | $ | 239,934 | | | | | $ | 226,380 | | | | | $ | 54,853 | | |
|
Contingent consideration – additions through acquisitions
|
| | | | — | | | | | | 17,150 | | | | | | — | | |
|
Contingent consideration – settled
|
| | | | (20,000) | | | | | | (65,000) | | | | | | (65,000) | | |
|
Minority ownership puttable share activity
|
| | | | (2) | | | | | | 78 | | | | | | 511 | | |
|
Grant date fair value of equity-based compensation
|
| | | | 22,193 | | | | | | 30,765 | | | | | | 28,990 | | |
|
Change in fair market value (all instruments)
|
| | | | (25,495) | | | | | | 30,561 | | | | | | 207,026 | | |
|
Balance, as of December 31,
|
| | | $ | 216,630 | | | | | $ | 239,934 | | | | | $ | 226,380 | | |
| | | | | | |
As of December 31, 2023
|
| |||||||||||||||
|
(in thousands)
|
| |
Balance Sheet Location
|
| |
Gross
Amounts of Assets and Liabilities |
| |
Offset
Adjustments |
| |
Net Amounts
of Assets and Liabilities |
| |||||||||
|
Current derivative assets
|
| |
Commodity derivative assets, current
|
| | | $ | 90,540 | | | | | $ | (6,501) | | | | | $ | 84,039 | | |
|
Noncurrent derivative assets
|
| |
Commodity derivative assets
|
| | | | 18,615 | | | | | | (107) | | | | | | 18,508 | | |
|
Current derivative liabilities
|
| |
Commodity derivative liabilities, current
|
| | | | 6,501 | | | | | | (6,501) | | | | | | — | | |
|
Noncurrent derivative liabilities
|
| |
Other noncurrent liabilities
|
| | | | 107 | | | | | | (107) | | | | | | — | | |
| | | | | | |
As of December 31, 2022
|
| |||||||||||||||
|
(in thousands)
|
| |
Balance Sheet Location
|
| |
Gross
Amounts of Assets and Liabilities |
| |
Offset
Adjustments |
| |
Net Amounts
of Assets and Liabilities |
| |||||||||
|
Current derivative assets
|
| |
Commodity derivative assets, current
|
| | | $ | 3,719 | | | | | $ | (1,068) | | | | | $ | 2,651 | | |
|
Noncurrent derivative assets
|
| |
Commodity derivative assets
|
| | | | 816 | | | | | | — | | | | | | 816 | | |
|
Current derivative liabilities
|
| |
Commodity derivative liabilities, current
|
| | | | 50,552 | | | | | | (1,068) | | | | | | 49,484 | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Total gain (loss) on settled derivatives
|
| | | $ | 90,179 | | | | | $ | (688,516) | | | | | $ | (268,686) | | |
|
Total gain (loss) on unsettled derivatives
|
| | | | 148,564 | | | | | | 58,815 | | | | | | (115,161) | | |
|
Total gain (loss) on derivatives, net
|
| | | $ | 238,743 | | | | | $ | (629,701) | | | | | $ | (383,847) | | |
|
Instrument
|
| |
MMBtu
|
| |
Weighted
Average Price (USD) |
| |
Weighted
Average Price Floor |
| |
Weighted
Average Price Ceiling |
| |
Fair Value as of
December 31, 2023 (in thousands) |
| |||||||||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 99,662,500 | | | | | $ | 3.52 | | | | | | | | | | | | | | | | | $ | 82,071 | | |
| 2025 | | | | | | | |||||||||||||||||||||||||
|
Collars
|
| | | | 49,275,000 | | | | | | | | | | | $ | 3.73 | | | | | $ | 4.13 | | | | | $ | 16,447 | | |
|
Instrument
|
| |
Basis
Reference Price |
| |
MMBtu
|
| |
Weighted
Average Basis Differential |
| |
Fair Value as of
December 31, 2023 (in thousands) |
| |||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
NGPL TXOK Basis
|
| | | | 21,400,000 | | | | | $ | (0.54) | | | | | $ | (5,059) | | |
|
Swap
|
| |
Transco Leidy Basis
|
| | | | 32,940,000 | | | | | $ | (0.89) | | | | | $ | (795) | | |
|
Instrument
|
| |
Commodity
Reference Price |
| |
Gallons
|
| |
Weighted
Average Price (USD) |
| |
Fair Value
as of December 31, 2023 (in thousands) |
| |||||||||
| 2024 | | | | | | |||||||||||||||||
|
Swap
|
| | OPIS Purity Ethane Mont Belvieu | | | | | 115,290,000 | | | | | $ | 0.25 | | | | | $ | 5,346 | | |
| Swap | | | OPIS IsoButane Mont Belvieu Non-TET | | | | | 7,686,000 | | | | | $ | 0.88 | | | | | $ | (468) | | |
| Swap | | |
OPIS Normal Butane Mont Belvieu Non-TET
|
| | | | 11,529,000 | | | | | $ | 0.87 | | | | | $ | (149) | | |
| Swap | | | OPIS Pentane Mont Belvieu Non-TET | | | | | 19,215,000 | | | | | $ | 1.48 | | | | | $ | 1,163 | | |
| Swap | | | OPIS Propane Mont Belvieu Non-TET | | | | | 23,058,000 | | | | | $ | 0.77 | | | | | $ | 1,930 | | |
|
Instrument
|
| |
Commodity
Reference Price |
| |
Gallons
|
| |
Weighted
Average Price (USD) |
| |
Fair Value
as of December 31, 2023 (in thousands) |
| |||||||||
| 2025 | | | | | | |||||||||||||||||
| Swap | | | OPIS Purity Ethane Mont Belvieu | | | | | 53,655,000 | | | | | $ | 0.27 | | | | | $ | 908 | | |
|
Swap
|
| | OPIS IsoButane Mont Belvieu Non-TET | | | | | 3,832,500 | | | | | $ | 0.84 | | | | | $ | (74) | | |
|
Swap
|
| |
OPIS Normal Butane Mont Belvieu Non-TET
|
| | | | 5,748,750 | | | | | $ | 0.82 | | | | | $ | (34) | | |
|
Swap
|
| | OPIS Pentane Mont Belvieu Non-TET | | | | | 7,665,000 | | | | | $ | 1.37 | | | | | $ | 203 | | |
|
Swap
|
| | OPIS Propane Mont Belvieu Non-TET | | | | | 19,162,500 | | | | | $ | 0.73 | | | | | $ | 1,058 | | |
|
Instrument
|
| |
MMBtu
|
| |
Weighted Average
Price (USD) |
| |
Weighted
Average Price Floor |
| |
Weighted
Average Price Ceiling |
| |
Settlement Value
(in thousands) |
| ||||||||||||
| 2024 | | | | | | | ||||||||||||||||||||||
|
Swap
|
| | 12,000,000 | | | | $ | 3.52 | | | | | | | | | | | | | | | | | $ | 8,350 | | |
| 2025 | | | | | | | ||||||||||||||||||||||
|
Collars
|
| | 34,770,000 | | | | | | | | | | $ | 3.74 | | | | | $ | 4.14 | | | | | $ | 4,900 | | |
|
Instrument
|
| |
Index
|
| |
Daily Volume
|
| |
Weighted Average
Price Ceiling |
| ||||||
| 2026 | | | | | ||||||||||||
|
Collars
|
| |
NYMEX Henry Hub
|
| | | | 100,000 | | | | | $ | 5.00 | | |
| 2027 | | | | | ||||||||||||
|
Collars
|
| |
NYMEX Henry Hub
|
| | | | 100,000 | | | | | $ | 5.00 | | |
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Balance, as of January 1,
|
| | | $ | 182,300 | | | | | $ | 158,968 | | | | | $ | 148,826 | | |
|
Additions through business combination
|
| | | | 640 | | | | | | 46,867 | | | | | | — | | |
|
Liabilities incurred
|
| | | | 89 | | | | | | 303 | | | | | | 923 | | |
|
Liabilities settled
|
| | | | (759) | | | | | | (156) | | | | | | (811) | | |
|
Revision of estimates
|
| | | | — | | | | | | (36,516) | | | | | | — | | |
|
Accretion of discount
|
| | | | 13,206 | | | | | | 12,834 | | | | | | 10,030 | | |
|
Balance, as of December 31,
|
| | | | 195,476 | | | | | | 182,300 | | | | | | 158,968 | | |
|
Less current portion
|
| | | | (2,271) | | | | | | (1,165) | | | | | | — | | |
|
Asset retirement obligations, long-term
|
| | | $ | 193,205 | | | | | $ | 181,135 | | | | | $ | 158,968 | | |
| | | |
Year Ended December 31, 2023
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 57,678 | | | | | $ | 452,168 | | | | | $ | 509,846 | | |
|
NGLs
|
| | | | — | | | | | | 187,860 | | | | | | 187,860 | | |
|
Oil
|
| | | | — | | | | | | 8,445 | | | | | | 8,445 | | |
|
Total natural gas, NGL, and oil sales
|
| | | $ | 57,678 | | | | | $ | 648,473 | | | | | $ | 706,151 | | |
|
Marketing revenues
|
| | | | — | | | | | | 8,710 | | | | | | 8,710 | | |
|
Midstream revenues
|
| | | | 4,635 | | | | | | 11,533 | | | | | | 16,168 | | |
|
Related party and other
|
| | | | — | | | | | | 8,251 | | | | | | 8,251 | | |
|
Total
|
| | | $ | 62,313 | | | | | $ | 676,967 | | | | | $ | 739,280 | | |
| | | |
Year Ended December 31, 2022
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 246,200 | | | | | $ | 1,064,139 | | | | | $ | 1,310,339 | | |
|
NGLs
|
| | | | — | | | | | | 311,542 | | | | | | 311,542 | | |
|
Oil
|
| | | | — | | | | | | 11,866 | | | | | | 11,866 | | |
|
Total natural gas, NGL, and oil sales
|
| | | $ | 246,200 | | | | | $ | 1,387,547 | | | | | $ | 1,633,747 | | |
|
Marketing revenues
|
| | | | — | | | | | | 11,001 | | | | | | 11,001 | | |
|
Midstream revenues
|
| | | | 5,845 | | | | | | 6,831 | | | | | | 12,676 | | |
|
Related party and other
|
| | | | — | | | | | | 2,799 | | | | | | 2,799 | | |
|
Total
|
| | | $ | 252,045 | | | | | $ | 1,408,178 | | | | | $ | 1,660,223 | | |
| | | |
Year Ended December 31, 2021
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 131,207 | | | | | $ | 465,843 | | | | | $ | 597,050 | | |
|
NGLs
|
| | | | — | | | | | | 225,135 | | | | | | 225,135 | | |
|
Oil
|
| | | | — | | | | | | 7,560 | | | | | | 7,560 | | |
|
Total natural gas, NGL, and oil sales
|
| | | $ | 131,207 | | | | | $ | 698,538 | | | | | $ | 829,745 | | |
|
Marketing revenues
|
| | | | — | | | | | | 52,616 | | | | | | 52,616 | | |
|
Midstream revenues
|
| | | | 6,917 | | | | | | — | | | | | | 6,917 | | |
|
Related party and other
|
| | | | — | | | | | | 251 | | | | | | 251 | | |
|
Total
|
| | | $ | 138,124 | | | | | $ | 751,405 | | | | | $ | 889,529 | | |
| | | |
December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
|
Accounts payable
|
| | | $ | 47,504 | | | | | $ | 74,957 | | |
|
Commodity derivative settlements payable
|
| | | | 347 | | | | | | 44,754 | | |
|
Commodity derivative monetizations payable
|
| | | | — | | | | | | 56,972 | | |
|
Oil and gas production and other taxes payable
|
| | | | 48,857 | | | | | | 37,530 | | |
|
Revenues payable
|
| | | | 21,765 | | | | | | 28,976 | | |
|
Other accrued liabilities
|
| | | | 30,700 | | | | | | 29,286 | | |
|
Total
|
| | | $ | 149,173 | | | | | $ | 272,475 | | |
|
(in thousands, except per share amounts)
|
| |
Shares
|
| |
Weighted-Average
Grant Date Fair Value |
| ||||||
|
Unvested PRSUs as of January 1, 2023
|
| | | | 5,910 | | | | | $ | 22.20 | | |
| Adjustment(1) | | | | | (1,673) | | | | | $ | 19.02 | | |
|
Forfeited
|
| | | | (270) | | | | | $ | 21.80 | | |
|
Unvested PRSUs as of December 31, 2023
|
| | | | 3,967 | | | | | $ | 19.02 | | |
|
(in thousands, except per share amounts)
|
| |
Shares
|
| |
Weighted-Average
Grant Date Fair Value |
| ||||||
|
Unvested TRSUs as of January 1, 2023
|
| | | | 1,034 | | | | | $ | 22.32 | | |
| Vested(1) | | | | | (235) | | | | | $ | 22.24 | | |
|
Forfeited
|
| | | | (72) | | | | | $ | 22.12 | | |
|
Unvested TRSUs as of December 31, 2023
|
| | | | 727 | | | | | $ | 22.37 | | |
|
Reconciliation of Equity Method Investment
(in thousands) |
| | | | | | |
|
Balance as of December 31, 2021
|
| | | $ | 89,320 | | |
|
Equity in earnings of Joint Venture
|
| | | | 8,493 | | |
|
Direct transaction costs
|
| | | | 72 | | |
|
Balance as of December 31, 2022
|
| | | | 97,885 | | |
|
Equity in earnings of Joint Venture
|
| | | | 16,865 | | |
|
Dividends from Joint Venture
|
| | | | (10,000) | | |
|
Balance as of December 31, 2023
|
| | | $ | 104,750 | | |
|
Balance Sheet
(in thousands) |
| |
As of December 31,
|
| |||||||||
| |
2023(1)
|
| |
2022(2)
|
| ||||||||
|
Current assets
|
| | | $ | 142,672 | | | | | $ | 45,341 | | |
|
Noncurrent assets
|
| | | | 880,097 | | | | | | 434,455 | | |
|
Total assets
|
| | | $ | 1,022,769 | | | | | $ | 479,796 | | |
|
Current liabilities
|
| | | $ | 122,334 | | | | | $ | 287,432 | | |
|
Noncurrent liabilities
|
| | | | 694,203 | | | | | | — | | |
|
Total liabilities
|
| | | | 816,537 | | | | | | 287,432 | | |
|
Members’ equity
|
| | | | 206,232 | | | | | | 192,364 | | |
|
Total liabilities and members’ equity
|
| | | $ | 1,022,769 | | | | | $ | 479,796 | | |
|
Income Statement
(in thousands) |
| |
Year Ended December 31,
|
| |||||||||||||||
| |
2023(1)
|
| |
2022(2)
|
| |
2021(2)
|
| |||||||||||
|
Total revenues, net
|
| | | $ | 326,604 | | | | | $ | 294,736 | | | | | $ | 23,918 | | |
|
Operating expenses
|
| | | | 243,075 | | | | | | 255,230 | | | | | | 23,140 | | |
|
Income from operations
|
| | | | 83,529 | | | | | | 39,506 | | | | | | 778 | | |
|
Interest expense
|
| | | | (50,524) | | | | | | (19,662) | | | | | | (2,599) | | |
|
Other income
|
| | | | 863 | | | | | | 377 | | | | | | — | | |
|
Net income (loss)
|
| | | $ | 33,868 | | | | | $ | 20,221 | | | | | $ | (1,821) | | |
|
(in thousands)
|
| |
2024
|
| |
2025
|
| |
2026
|
| |
2027
|
| |
2028
|
| |
Thereafter
|
| |
Total
|
| |||||||||||||||||||||
|
Term loan payments
|
| | | $ | 114,000 | | | | | $ | 114,000 | | | | | $ | 114,000 | | | | | $ | 114,000 | | | | | $ | — | | | | | $ | — | | | | | $ | 456,000 | | |
|
Credit facilities
|
| | | | 127,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 127,000 | | |
|
Interest payable
|
| | | | 1,117 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,117 | | |
|
Notes payable to related party
|
| | | | — | | | | | | — | | | | | | — | | | | | | 75,000 | | | | | | — | | | | | | — | | | | | | 75,000 | | |
|
Interest on related party notes
|
| | | | 11,394 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 11,394 | | |
|
Operating lease payments
|
| | | | 1,104 | | | | | | 1,082 | | | | | | 961 | | | | | | 908 | | | | | | 924 | | | | | | 4,608 | | | | | | 9,587 | | |
|
Volume commitments
|
| | | | 53,542 | | | | | | 33,214 | | | | | | 31,376 | | | | | | 23,477 | | | | | | 17,704 | | | | | | 49,566 | | | | | | 208,879 | | |
|
Total
|
| | | $ | 308,157 | | | | | $ | 148,296 | | | | | $ | 146,337 | | | | | $ | 213,385 | | | | | $ | 18,628 | | | | | $ | 54,174 | | | | | $ | 888,977 | | |
| | | |
Year ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
| Current tax (expense) benefit | | | | | | | | | | | | | | | |||||
|
United States federal income tax
|
| | | $ | — | | | | | $ | 30,165 | | | | | $ | (29,051) | | |
|
Various state income taxes
|
| | | | 4,169 | | | | | | (3,752) | | | | | | (3,176) | | |
|
Total current income tax (expense) benefit
|
| | | | 4,169 | | | | | | 26,413 | | | | | | (32,227) | | |
| Deferred tax (expense) benefit | | | | | | | | | | | | | | | |||||
|
United States federal income tax
|
| | | | (29,569) | | | | | | (86,772) | | | | | | 66,362 | | |
|
Various state taxes
|
| | | | (2,825) | | | | | | (2,293) | | | | | | 6,391 | | |
|
Total deferred income tax (expense) benefit
|
| | | | (32,394) | | | | | | (89,065) | | | | | | 72,753 | | |
|
Income tax (expense) benefit
|
| | | $ | (28,225) | | | | | $ | (62,652) | | | | | $ | 40,526 | | |
| | | |
Year ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Income (loss) before income taxes
|
| | | $ | 145,143 | | | | | $ | 472,794 | | | | | $ | (174,989) | | |
|
Federal statutory rate
|
| | | | 21.0% | | | | | | 21.0% | | | | | | 21.0% | | |
|
Income tax (provision) benefit based on statutory rate
|
| | | $ | (30,480) | | | | | $ | (99,287) | | | | | $ | 36,748 | | |
| (Increase) decrease in income taxes resulting from: | | | | | | | | | | | | | | | |||||
|
State tax (expense) benefit, net of federal benefit
|
| | | | (4,002) | | | | | | (9,948) | | | | | | 4,114 | | |
|
Change in state tax rate, net of federal effect
|
| | | | 1,177 | | | | | | 3,005 | | | | | | (227) | | |
|
Deferred tax activity
|
| | | | — | | | | | | — | | | | | | 520 | | |
|
Bargain purchase gain
|
| | | | — | | | | | | 38,139 | | | | | | — | | |
|
Marginal well credit
|
| | | | 94 | | | | | | 6,417 | | | | | | — | | |
|
Payable true-up
|
| | | | 4,067 | | | | | | — | | | | | | — | | |
|
Other, including tax credits
|
| | | | 919 | | | | | | (978) | | | | | | (629) | | |
|
Income tax (expense) benefit
|
| | | $ | (28,225) | | | | | $ | (62,652) | | | | | $ | 40,526 | | |
| | | |
As of December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
| Deferred tax assets | | | | | | | | | | | | | |
|
Fair value of derivative financial instruments
|
| | | $ | — | | | | | $ | 49,869 | | |
|
Asset retirement obligations
|
| | | | 43,578 | | | | | | 41,315 | | |
|
Equity-based compensation
|
| | | | 17,220 | | | | | | 13,002 | | |
|
Contingent consideration
|
| | | | 12,338 | | | | | | 36,203 | | |
|
Interest expense carryforward
|
| | | | 21,769 | | | | | | 4,959 | | |
|
Net operating loss carryforward
|
| | | | 27,583 | | | | | | 4,231 | | |
|
Other(1)
|
| | | | 10,387 | | | | | | 6,345 | | |
|
Total deferred tax asset
|
| | | $ | 132,875 | | | | | $ | 155,924 | | |
| Deferred tax liabilities | | | | | | | | | | | | | |
|
Property and equipment
|
| | | $ | (206,576) | | | | | $ | (211,892) | | |
|
Investment in joint venture
|
| | | | (37,283) | | | | | | (47,215) | | |
|
Fair value of derivative financial instruments
|
| | | | (24,307) | | | | | | — | | |
|
Other(1)
|
| | | | (1,233) | | | | | | (947) | | |
|
Total deferred tax liability
|
| | | $ | (269,399) | | | | | $ | (260,054) | | |
|
Deferred tax liability, net
|
| | | $ | (136,524) | | | | | $ | (104,130) | | |
| | | |
Year Ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Basic weighted average common shares outstanding
|
| | | | 60,730 | | | | | | 58,659 | | | | | | 58,496 | | |
|
Add: dilutive effect of TRSUs
|
| | | | 172 | | | | | | 351 | | | | | | — | | |
|
Add: dilutive effect of PRSUs
|
| | | | 3,478 | | | | | | 2,980 | | | | | | — | | |
|
Diluted weighted average of common shares outstanding
|
| | | | 64,380 | | | | | | 61,990 | | | | | | 58,496 | | |
|
Weighted average number of outstanding securities excluded from the calculation of diluted loss per share
|
| | | | | | | | | | | | | | | | | | |
|
TRSUs
|
| | | | — | | | | | | — | | | | | | 237 | | |
|
PRSUs
|
| | | | — | | | | | | — | | | | | | 711 | | |
| | | |
As of December 31,
|
| |||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| ||||||
|
Developed properties
|
| | | $ | 2,370,156 | | | | | $ | 2,252,681 | | |
|
Undeveloped properties
|
| | | | 15,846 | | | | | | 15,511 | | |
|
Total capitalized costs
|
| | | | 2,386,002 | | | | | | 2,268,192 | | |
|
Less: Accumulated depreciation, depletion, and amortization
|
| | | | (560,016) | | | | | | (363,832) | | |
|
Net capitalized costs
|
| | | $ | 1,825,986 | | | | | $ | 1,904,360 | | |
| | | |
For the year ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Undeveloped property acquisition costs
|
| | | $ | 335 | | | | | $ | 290 | | | | | $ | 3,569 | | |
| Acquisitions(1) | | | | | 9,885 | | | | | | 431,897 | | | | | | 2,928 | | |
|
Development costs
|
| | | | 107,544 | | | | | | 253,179 | | | | | | 77,634 | | |
|
Total cost incurred
|
| | | | 117,764 | | | | | | 685,366 | | | | | | 84,131 | | |
|
Asset retirement obligations(2)
|
| | | | 89 | | | | | | 38,337 | | | | | | 923 | | |
|
Total costs incurred, including asset retirement obligations
|
| | | $ | 117,853 | | | | | $ | 723,703 | | | | | $ | 85,054 | | |
| | | |
Natural Gas
(MMcf) |
| |
NGL
(MBbls) |
| |
Oil
(MBbls) |
| |
Total
(MMcfe) |
| ||||||||||||
|
January 1, 2021
|
| | | | 1,985,532 | | | | | | 107,234 | | | | | | 723 | | | | | | 2,633,274 | | |
|
Revision of previous estimates
|
| | | | 828,360 | | | | | | 45,234 | | | | | | 258 | | | | | | 1,101,312 | | |
|
Extensions and discoveries
|
| | | | 645,338 | | | | | | 13,722 | | | | | | 58 | | | | | | 728,018 | | |
|
Purchase of minerals in place
|
| | | | 19,511 | | | | | | — | | | | | | — | | | | | | 19,511 | | |
|
Improved recoveries
|
| | | | 152,597 | | | | | | 8,794 | | | | | | 9 | | | | | | 205,415 | | |
|
Production
|
| | | | (186,055) | | | | | | (9,829) | | | | | | (123) | | | | | | (245,767) | | |
|
December 31, 2021
|
| | | | 3,445,283 | | | | | | 165,155 | | | | | | 925 | | | | | | 4,441,763 | | |
|
Revision of previous estimates
|
| | | | (119,200) | | | | | | (388) | | | | | | 43 | | | | | | (121,270) | | |
|
Extensions and discoveries
|
| | | | 364,494 | | | | | | 30,037 | | | | | | 786 | | | | | | 549,432 | | |
|
Purchase of minerals in place
|
| | | | 1,323,059 | | | | | | 23,406 | | | | | | 255 | | | | | | 1,465,025 | | |
|
Improved recoveries
|
| | | | 59,625 | | | | | | 3,477 | | | | | | — | | | | | | 80,487 | | |
|
Production
|
| | | | (217,585) | | | | | | (10,187) | | | | | | (140) | | | | | | (279,547) | | |
|
December 31, 2022
|
| | | | 4,855,676 | | | | | | 211,500 | | | | | | 1,869 | | | | | | 6,135,890 | | |
|
Revision of previous estimates
|
| | | | (1,828,619) | | | | | | (25,570) | | | | | | (704) | | | | | | (1,986,263) | | |
|
Extensions and discoveries
|
| | | | 188,572 | | | | | | 6,539 | | | | | | — | | | | | | 227,806 | | |
|
Improved recoveries
|
| | | | 16,632 | | | | | | 2,250 | | | | | | 5 | | | | | | 30,162 | | |
|
Production
|
| | | | (249,766) | | | | | | (10,554) | | | | | | (119) | | | | | | (313,804) | | |
|
December 31, 2023
|
| | | | 2,982,495 | | | | | | 184,165 | | | | | | 1,051 | | | | | | 4,093,791 | | |
| Proved developed reserves as of: | | | | | | | | | | | | | | | | | | | | | | | | | |
|
January 1, 2022
|
| | | | 2,494,925 | | | | | | 151,433 | | | | | | 867 | | | | | | 3,408,725 | | |
|
December 31, 2022
|
| | | | 3,798,027 | | | | | | 170,840 | | | | | | 1,111 | | | | | | 4,829,733 | | |
|
December 31, 2023
|
| | | | 2,443,072 | | | | | | 156,399 | | | | | | 992 | | | | | | 3,387,418 | | |
| Proved undeveloped reserves as of: | | | | | | | | | | | | | | | | | | | | | | | | | |
|
January 1, 2022
|
| | | | 950,358 | | | | | | 13,722 | | | | | | 58 | | | | | | 1,033,038 | | |
|
December 31, 2022
|
| | | | 1,057,649 | | | | | | 40,660 | | | | | | 758 | | | | | | 1,306,157 | | |
|
December 31, 2023
|
| | | | 539,423 | | | | | | 27,766 | | | | | | 59 | | | | | | 706,373 | | |
| | | |
Developed
|
| |
Undeveloped
|
| |
Total
|
| |||||||||
| | | |
(MMcfe)
|
| |||||||||||||||
|
January 1, 2021
|
| | | | 2,540,900 | | | | | | 92,374 | | | | | | 2,633,274 | | |
|
Revision of previous estimates
|
| | | | 855,750 | | | | | | 245,562 | | | | | | 1,101,312 | | |
|
Extensions and discoveries
|
| | | | 15,399 | | | | | | 712,619 | | | | | | 728,018 | | |
|
Purchase of minerals in place
|
| | | | 17,664 | | | | | | 1,847 | | | | | | 19,511 | | |
|
Improved recoveries
|
| | | | 205,415 | | | | | | — | | | | | | 205,415 | | |
|
Production
|
| | | | (245,767) | | | | | | — | | | | | | (245,767) | | |
|
Undeveloped reserves converted to developed
|
| | | | 19,364 | | | | | | (19,364) | | | | | | — | | |
|
December 31, 2021
|
| | | | 3,408,725 | | | | | | 1,033,038 | | | | | | 4,441,763 | | |
|
Revision of previous estimates
|
| | | | 234,914 | | | | | | (356,184) | | | | | | (121,270) | | |
|
Extensions and discoveries
|
| | | | 74,094 | | | | | | 475,338 | | | | | | 549,432 | | |
|
Purchase of minerals in place
|
| | | | 1,237,142 | | | | | | 227,883 | | | | | | 1,465,025 | | |
|
Improved recoveries
|
| | | | 80,487 | | | | | | — | | | | | | 80,487 | | |
|
Production
|
| | | | (279,547) | | | | | | — | | | | | | (279,547) | | |
|
Undeveloped reserves converted to developed
|
| | | | 73,918 | | | | | | (73,918) | | | | | | — | | |
|
December 31, 2022
|
| | | | 4,829,733 | | | | | | 1,306,157 | | | | | | 6,135,890 | | |
|
Revision of previous estimates
|
| | | | (1,191,886) | | | | | | (794,377) | | | | | | (1,986,263) | | |
|
Extensions and discoveries
|
| | | | 1,289 | | | | | | 226,517 | | | | | | 227,806 | | |
|
Improved recoveries
|
| | | | 30,162 | | | | | | — | | | | | | 30,162 | | |
|
Production
|
| | | | (313,804) | | | | | | — | | | | | | (313,804) | | |
|
Undeveloped reserves converted to developed
|
| | | | 31,924 | | | | | | (31,924) | | | | | | — | | |
|
December 31, 2023
|
| | | | 3,387,418 | | | | | | 706,373 | | | | | | 4,093,791 | | |
|
Future cash flows
(in thousands) |
| |
As of December 31,
|
| |||||||||||||||
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||||
|
Future cash inflows
|
| | | $ | 9,691,057 | | | | | $ | 34,992,383 | | | | | $ | 15,029,839 | | |
|
Future production costs
|
| | | | (5,799,209) | | | | | | (11,967,176) | | | | | | (6,840,969) | | |
|
Future development costs(1)
|
| | | | (977,333) | | | | | | (1,859,661) | | | | | | (1,051,911) | | |
|
Income tax expense
|
| | | | (406,937) | | | | | | (4,572,275) | | | | | | (1,501,984) | | |
|
Future net cash flows
|
| | | | 2,507,578 | | | | | | 16,593,271 | | | | | | 5,634,975 | | |
|
10% annual discount for estimated timing of cash flows
|
| | | | (1,445,245) | | | | | | (9,599,669) | | | | | | (3,222,086) | | |
|
Standardized measure of discounted future net cash flows related to proved reserves
|
| | | $ | 1,062,333 | | | | | $ | 6,993,602 | | | | | $ | 2,412,889 | | |
| | | |
For the Year Ended December 31,
|
| |||||||||||||||
|
(in thousands)
|
| |
2023
|
| |
2022
|
| |
2021
|
| |||||||||
|
Balance, beginning of period
|
| | | $ | 6,993,602 | | | | | $ | 2,412,889 | | | | | $ | 510,410 | | |
|
Net change in sales and transfer prices and in production (lifting)
costs related to future production |
| | | | (5,386,961) | | | | | | 4,656,150 | | | | | | 1,768,893 | | |
|
Changes in estimated future development costs
|
| | | | 91,657 | | | | | | 43,101 | | | | | | (393,235) | | |
|
Sales and transfers of natural gas, NGLs, and oil produced during the period
|
| | | | (201,884) | | | | | | (1,293,492) | | | | | | (522,403) | | |
|
Net change due to extensions, discoveries, and improved
recoveries |
| | | | 36,107 | | | | | | 824,295 | | | | | | 183,332 | | |
|
Purchase of minerals in place
|
| | | | — | | | | | | 1,649,737 | | | | | | 19,050 | | |
|
Net change due to revisions in quantity estimates
|
| | | | (3,058,900) | | | | | | (86,088) | | | | | | 1,266,086 | | |
|
Previously estimated development costs incurred during the
period |
| | | | 27,598 | | | | | | 37,784 | | | | | | 60,406 | | |
|
Net change in future income taxes
|
| | | | 1,790,684 | | | | | | (1,299,320) | | | | | | (611,031) | | |
|
Accretion of discount
|
| | | | 861,914 | | | | | | 322,498 | | | | | | 56,096 | | |
|
Changes in timing and other
|
| | | | (91,484) | | | | | | (273,952) | | | | | | 75,285 | | |
|
Total discounted cash flow as end of period
|
| | | $ | 1,062,333 | | | | | $ | 6,993,602 | | | | | $ | 2,412,889 | | |
| | | |
June 30, 2024
|
| |
December 31, 2023
|
| ||||||
| Assets | | | | | | | | | | | | | |
|
Current assets
|
| | | | | | | | | | | | |
|
Cash and cash equivalents
|
| | | $ | 9,197 | | | | | $ | 25,407 | | |
|
Restricted cash
|
| | | | — | | | | | | 139,662 | | |
|
Accounts receivable, net
|
| | | | 57,557 | | | | | | 48,500 | | |
|
Accounts receivable, related parties
|
| | | | 7,790 | | | | | | 559 | | |
|
Commodity derivative assets, current
|
| | | | 32,828 | | | | | | 84,039 | | |
|
Other current assets
|
| | | | 13,599 | | | | | | 13,990 | | |
|
Total current assets
|
| | | | 120,971 | | | | | | 312,157 | | |
|
Natural gas properties and equipment
|
| | | | | | | | | | | | |
|
Developed properties
|
| | | | 2,245,194 | | | | | | 2,370,156 | | |
|
Undeveloped properties
|
| | | | 10,468 | | | | | | 15,846 | | |
|
Midstream assets
|
| | | | 275,997 | | | | | | 318,855 | | |
|
Accumulated depreciation, depletion, and amortization
|
| | | | (620,424) | | | | | | (579,415) | | |
|
Total natural gas properties, net
|
| | | | 1,911,235 | | | | | | 2,125,442 | | |
|
Other property and equipment, net
|
| | | | 86,876 | | | | | | 83,935 | | |
|
Goodwill
|
| | | | 18,417 | | | | | | 18,417 | | |
|
Investment in joint venture
|
| | | | 81,790 | | | | | | 104,750 | | |
|
Commodity derivative assets
|
| | | | — | | | | | | 18,508 | | |
|
Other noncurrent assets
|
| | | | 28,221 | | | | | | 19,937 | | |
|
Total assets
|
| | | $ | 2,247,510 | | | | | $ | 2,683,146 | | |
| Liabilities, mezzanine equity, and stockholders’ equity | | | | | | | | | | | | | |
|
Current liabilities
|
| | | | | | | | | | | | |
|
Accounts payable and accrued liabilities
|
| | | $ | 88,805 | | | | | $ | 149,173 | | |
|
Contingent consideration payable
|
| | | | 23,606 | | | | | | 20,000 | | |
|
Income taxes payable to related party
|
| | | | 1,292 | | | | | | 864 | | |
|
Credit facilities
|
| | | | — | | | | | | 127,000 | | |
|
Current portion of long-term debt, net
|
| | | | — | | | | | | 112,373 | | |
|
Other current liabilities
|
| | | | 3,320 | | | | | | 2,849 | | |
|
Total current liabilities
|
| | | | 117,023 | | | | | | 412,259 | | |
|
Asset retirement obligations
|
| | | | 191,770 | | | | | | 193,205 | | |
|
Contingent consideration
|
| | | | — | | | | | | 29,676 | | |
|
Note payable to related party
|
| | | | 50,000 | | | | | | 75,000 | | |
|
Deferred tax liability, net
|
| | | | 94,724 | | | | | | 136,524 | | |
|
Long-term debt, net
|
| | | | 360,000 | | | | | | 339,663 | | |
|
Other noncurrent liabilities
|
| | | | 44,963 | | | | | | 11,652 | | |
|
Total liabilities
|
| | | | 858,480 | | | | | | 1,197,979 | | |
| | | |
June 30, 2024
|
| |
December 31, 2023
|
| ||||||
|
Commitments and contingencies (Note 10)
|
| | | | | | | | | | | | |
|
Mezzanine equity
|
| | | | | | | | | | | | |
|
Common stock – minority ownership puttable shares; 2,481 authorized shares; 2,481 and 2,403 shares issued and outstanding as of June 30, 2024 and December 31, 2023, respectively
|
| | | | 60,476 | | | | | | 59,988 | | |
|
Equity-based compensation
|
| | | | 129,412 | | | | | | 126,966 | | |
|
Total mezzanine equity
|
| | | | 189,888 | | | | | | 186,954 | | |
|
Stockholders’ equity
|
| | | | | | | | | | | | |
|
Common stock, $0.01 par value; 300,000 authorized shares; 63,873 shares issued and outstanding as of June 30, 2024 and December 31, 2023
|
| | | | 1,283 | | | | | | 1,283 | | |
|
Treasury stock, shares at cost; 213 shares as of June 30, 2024 and December 31, 2023
|
| | | | (4,582) | | | | | | (4,582) | | |
|
Additional paid-in capital
|
| | | | 1,033,355 | | | | | | 1,034,144 | | |
|
Retained earnings
|
| | | | 169,086 | | | | | | 267,368 | | |
|
Total stockholders’ equity
|
| | | | 1,199,142 | | | | | | 1,298,213 | | |
|
Total liabilities, mezzanine equity, and stockholders’ equity
|
| | | $ | 2,247,510 | | | | | $ | 2,683,146 | | |
| | |||||||||||||
| | | |
Three Months Ended
June 30, |
| |
Six Months Ended
June 30, |
| ||||||||||||||||||
| | | |
2024
|
| |
2023
|
| |
2024
|
| |
2023
|
| ||||||||||||
| Revenues and other operating income | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Natural gas, NGL, and oil sales
|
| | | $ | 125,854 | | | | | $ | 142,502 | | | | | $ | 267,541 | | | | | $ | 352,907 | | |
|
Midstream revenues
|
| | | | 3,378 | | | | | | 4,506 | | | | | | 7,506 | | | | | | 8,428 | | |
|
Derivative gains (losses), net
|
| | | | (7,486) | | | | | | 19,579 | | | | | | (11,165) | | | | | | 116,947 | | |
|
Marketing revenues
|
| | | | 2,046 | | | | | | 2,097 | | | | | | 6,967 | | | | | | 4,732 | | |
|
Gain on sales of assets
|
| | | | 6,084 | | | | | | 294 | | | | | | 6,784 | | | | | | 339 | | |
|
Related party and other
|
| | | | 6,322 | | | | | | 1,540 | | | | | | 10,479 | | | | | | 3,314 | | |
|
Total revenues and other operating income
|
| | | | 136,198 | | | | | | 170,518 | | | | | | 288,112 | | | | | | 486,667 | | |
| Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Lease operating and workover
|
| | | | 34,172 | | | | | | 37,557 | | | | | | 68,640 | | | | | | 80,723 | | |
|
Taxes other than income
|
| | | | 9,850 | | | | | | 17,327 | | | | | | 21,215 | | | | | | 41,496 | | |
|
Gathering and transportation
|
| | | | 53,714 | | | | | | 62,302 | | | | | | 113,105 | | | | | | 120,586 | | |
|
Depreciation, depletion, amortization, and
accretion |
| | | | 59,313 | | | | | | 41,607 | | | | | | 111,479 | | | | | | 78,354 | | |
|
General and administrative
|
| | | | 19,296 | | | | | | 26,202 | | | | | | 39,941 | | | | | | 52,488 | | |
|
Other
|
| | | | 3,034 | | | | | | 5,983 | | | | | | 11,276 | | | | | | 8,483 | | |
|
Total operating expenses
|
| | | | 179,379 | | | | | | 190,978 | | | | | | 365,656 | | | | | | 382,130 | | |
|
Income (loss) from operations
|
| | | | (43,181) | | | | | | (20,460) | | | | | | (77,544) | | | | | | 104,537 | | |
| Other income (expense) | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Gains (losses) on contingent consideration
liabilities |
| | | | (524) | | | | | | 16 | | | | | | 6,070 | | | | | | 22,910 | | |
|
Losses from equity affiliate
|
| | | | (15,253) | | | | | | (8,876) | | | | | | (22,960) | | | | | | (14,275) | | |
|
Loss on early extinguishment of debt
|
| | | | (13,877) | | | | | | — | | | | | | (13,877) | | | | | | — | | |
|
Interest income
|
| | | | 1,771 | | | | | | 488 | | | | | | 3,404 | | | | | | 1,136 | | |
|
Interest expense
|
| | | | (15,163) | | | | | | (16,607) | | | | | | (31,246) | | | | | | (34,377) | | |
|
Interest expense, related party
|
| | | | (1,879) | | | | | | (1,591) | | | | | | (3,852) | | | | | | (3,083) | | |
|
Other income
|
| | | | 15 | | | | | | 260 | | | | | | 350 | | | | | | 1,851 | | |
|
Income (loss) before income taxes
|
| | | | (88,091) | | | | | | (46,770) | | | | | | (139,655) | | | | | | 78,699 | | |
|
Income tax benefit (expense)
|
| | | | 28,394 | | | | | | 11,422 | | | | | | 41,373 | | | | | | (17,885) | | |
|
Net income (loss)
|
| | | $ | (59,697) | | | | | $ | (35,348) | | | | | $ | (98,282) | | | | | $ | 60,814 | | |
| Net income (loss) per common share: | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | $ | (0.90) | | | | | $ | (0.60) | | | | | $ | (1.48) | | | | | $ | 1.03 | | |
|
Diluted
|
| | | $ | (0.90) | | | | | $ | (0.60) | | | | | $ | (1.48) | | | | | $ | 0.97 | | |
| Weighted average number of common shares outstanding: | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Basic
|
| | | | 66,349 | | | | | | 58,776 | | | | | | 66,318 | | | | | | 58,779 | | |
|
Diluted
|
| | | | 66,349 | | | | | | 58,776 | | | | | | 66,318 | | | | | | 62,434 | | |
| | | |
Six Months
Ended June 30, |
| |||||||||
| | | |
2024
|
| |
2023
|
| ||||||
| Cash flows from operating activities: | | | | | | | | | | | | | |
|
Net income (loss)
|
| | | $ | (98,282) | | | | | $ | 60,814 | | |
|
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
|
| | | | | | | | | | | | |
|
Depreciation, depletion, amortization, and accretion
|
| | | | 111,650 | | | | | | 79,026 | | |
|
Equity-based compensation expense
|
| | | | 2,145 | | | | | | 10,295 | | |
|
Deferred income tax (benefit) expense
|
| | | | (41,800) | | | | | | 17,435 | | |
|
Unrealized (gains) losses on derivatives, net
|
| | | | 79,100 | | | | | | (46,245) | | |
|
Gains on contingent consideration liabilities
|
| | | | (6,070) | | | | | | (22,910) | | |
|
Settlement of contingent consideration
|
| | | | (20,000) | | | | | | (65,000) | | |
|
Proceeds from the sale of call options
|
| | | | 23,502 | | | | | | — | | |
|
Gain on sales of assets
|
| | | | (6,784) | | | | | | (339) | | |
|
Transaction costs from sales of assets
|
| | | | (3,898) | | | | | | — | | |
|
Losses from equity affiliate
|
| | | | 22,960 | | | | | | 14,275 | | |
|
Loss on extinguishment of debt
|
| | | | 13,877 | | | | | | — | | |
|
Other, net
|
| | | | 1,778 | | | | | | 1,565 | | |
|
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
|
Accounts receivable, net
|
| | | | (11,756) | | | | | | 103,952 | | |
|
Accounts payable and accrued liabilities
|
| | | | (48,891) | | | | | | (68,275) | | |
|
Other changes in operating assets and liabilities
|
| | | | (7,748) | | | | | | (3,669) | | |
|
Net cash provided by operating activities
|
| | | | 9,782 | | | | | | 80,924 | | |
| Cash flows from investing activities: | | | | | | | | | | | | | |
|
Acquisition of natural gas properties
|
| | | | — | | | | | | (4,889) | | |
|
Investment in other property and equipment
|
| | | | (8,233) | | | | | | (12,365) | | |
|
Development of natural gas properties
|
| | | | (21,509) | | | | | | (113,090) | | |
|
Proceeds from sales of assets
|
| | | | 133,264 | | | | | | — | | |
|
Loan advanced to equity affiliate
|
| | | | — | | | | | | (8,000) | | |
|
Other investing activities, net
|
| | | | (1,889) | | | | | | 9,738 | | |
|
Net cash provided by (used in) investing activities
|
| | | | 101,633 | | | | | | (128,606) | | |
| Cash flows from financing activities: | | | | | | | | | | | | | |
|
Payments on notes payable to related party
|
| | | | (25,000) | | | | | | — | | |
|
Payment on term loan agreement
|
| | | | (456,000) | | | | | | (114,000) | | |
|
Proceeds from draws on credit facilities
|
| | | | 44,000 | | | | | | 168,500 | | |
|
Payments on credit facilities
|
| | | | (171,000) | | | | | | (132,500) | | |
|
Proceeds under RBL Credit Agreement
|
| | | | 425,000 | | | | | | — | | |
|
Payment on RBL Credit Agreement
|
| | | | (65,000) | | | | | | — | | |
|
Payment of debt issuance costs
|
| | | | (8,054) | | | | | | — | | |
|
Debt extinguishment costs
|
| | | | (10,213) | | | | | | — | | |
|
Payments of deferred offering costs
|
| | | | (1,020) | | | | | | (1,721) | | |
|
Redemption of common stock issued upon vesting of equity-based compensation and other
|
| | | | — | | | | | | (349) | | |
|
Net share settlements, equity-based compensation
|
| | | | — | | | | | | (2,955) | | |
|
Net cash used in financing activities
|
| | | | (267,287) | | | | | | (83,025) | | |
|
Net decrease in cash, cash equivalents, and restricted cash
|
| | | | (155,872) | | | | | | (130,707) | | |
|
Cash, cash equivalents, and restricted cash, beginning of period
|
| | | | 165,069 | | | | | | 153,128 | | |
|
Cash and cash equivalents, end of period
|
| | | $ | 9,197 | | | | | $ | 22,421 | | |
| | | |
Six Months Ended June 30,
|
| |||||||||
|
Supplemental cash flow information:
|
| |
2024
|
| |
2023
|
| ||||||
| Cash payments for: | | | | | | | | | | | | | |
|
Interest
|
| | | $ | 44,414 | | | | | $ | 33,544 | | |
|
Income tax
|
| | | $ | 6 | | | | | $ | 100 | | |
| Non-cash investing and financing activities: | | | | | | | | | | | | | |
|
Increase (decrease) in accrued capital expenditures
|
| | | $ | 1,296 | | | | | $ | (11,552) | | |
|
Additions to asset retirement obligations
|
| | | $ | 21 | | | | | $ | 62 | | |
|
Lease liabilities arising from obtaining right-of-use assets
|
| | | $ | 494 | | | | | $ | — | | |
|
Decrease in accrued offering costs
|
| | | $ | (341) | | | | | $ | (200) | | |
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | $ | 488 | | | | | $ | 6,785 | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | $ | 301 | | | | | $ | 9,762 | | |
|
Impact of redemption of shares issued in settlement of equity-based compensation and other on additional paid-in capital, common stock, and treasury stock
|
| | | $ | — | | | | | $ | 527 | | |
| | | |
Stockholders’ Equity
|
| |
Mezzanine Equity
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | |
Common Stock
|
| |
Treasury
|
| |
Additional
Paid-In Capital |
| |
Retained
Earnings |
| |
Total
Stock-holders’ Equity |
| |
Common Stock
|
| |
Equity-based
Compensation |
| |
Total
Mezzanine Equity |
| ||||||||||||||||||||||||||||||||||||
| | | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
|
Balance, December 31, 2023
|
| | | | 63,873 | | | | | $ | 1,283 | | | | | $ | (4,582) | | | | | $ | 1,034,144 | | | | | $ | 267,368 | | | | | $ | 1,298,213 | | | | | | 2,403 | | | | | $ | 59,988 | | | | | $ | 126,966 | | | | | $ | 186,954 | | |
|
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (38,585) | | | | | | (38,585) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (1,548) | | | | | | — | | | | | | (1,548) | | | | | | — | | | | | | 1,548 | | | | | | — | | | | | | 1,548 | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (495) | | | | | | — | | | | | | (495) | | | | | | — | | | | | | — | | | | | | 495 | | | | | | 495 | | |
|
Common stock issued upon settlement of RSUs
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 69 | | | | | | — | | | | | | — | | | | | | — | | |
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,073 | | | | | | 1,073 | | |
|
Balance, March 31, 2024
|
| | | | 63,873 | | | | | $ | 1,283 | | | | | $ | (4,582) | | | | | $ | 1,032,101 | | | | | $ | 228,783 | | | | | $ | 1,257,585 | | | | | | 2,472 | | | | | $ | 61,536 | | | | | $ | 128,354 | | | | | $ | 190,070 | | |
|
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (59,697) | | | | | | (59,697) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Adjustment of minority ownership puttable shares to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,060 | | | | | | — | | | | | | 1,060 | | | | | | — | | | | | | (1,060) | | | | | | — | | | | | | (1,060) | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | 194 | | | | | | — | | | | | | 194 | | | | | | — | | | | | | — | | | | | | (194) | | | | | | (194) | | |
|
Common stock issued upon settlement of RSUs
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 9 | | | | | | — | | | | | | — | | | | | | — | | |
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,072 | | | | | | 1,072 | | |
|
Balance, June 30, 2024
|
| | | | 63,873 | | | | | $ | 1,283 | | | | | $ | (4,582) | | | | | $ | 1,033,355 | | | | | $ | 169,086 | | | | | $ | 1,199,142 | | | | | $ | 2,481 | | | | | $ | 60,476 | | | | | $ | 129,412 | | | | | $ | 189,888 | | |
| | | |
Stockholders’ Equity
|
| |
Mezzanine Equity
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | |
Common Stock
|
| |
Treasury
|
| |
Additional
Paid-In Capital |
| |
Retained
Earnings |
| |
Total
Stock-holders’ Equity |
| |
Common Stock
|
| |
Equity-based
Compensation |
| |
Total
Mezzanine Equity |
| ||||||||||||||||||||||||||||||||||||
| | | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
|
Balance, December 31, 2022
|
| | | | 56,373 | | | | | $ | 1,132 | | | | | $ | (3,974) | | | | | $ | 896,433 | | | | | $ | 150,450 | | | | | $ | 1,044,041 | | | | | | 2,290 | | | | | $ | 62,712 | | | | | $ | 89,171 | | | | | $ | 151,883 | | |
|
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 96,162 | | | | | | 96,162 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Redemption of common stock issued upon vesting of
equity-based compensation and other |
| | | | — | | | | | | 1 | | | | | | (527) | | | | | | 659 | | | | | | — | | | | | | 133 | | | | | | (18) | | | | | | (2) | | | | | | (525) | | | | | | (527) | | |
|
Issuance of common stock upon vesting of equity-
based compensation awards, net of shares withheld for income taxes |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 122 | | | | | | — | | | | | | (2,736) | | | | | | (2,736) | | |
|
Adjustment of minority ownership puttable shares to
redemption value |
| | | | — | | | | | | — | | | | | | — | | | | | | 6,871 | | | | | | — | | | | | | 6,871 | | | | | | — | | | | | | (6,871) | | | | | | — | | | | | | (6,871) | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | 10,346 | | | | | | — | | | | | | 10,346 | | | | | | — | | | | | | — | | | | | | (10,346) | | | | | | (10,346) | | |
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,797 | | | | | | 3,797 | | |
|
Balance, March 31, 2023
|
| | | | 56,373 | | | | | $ | 1,133 | | | | | $ | (4,501) | | | | | $ | 914,309 | | | | | $ | 246,612 | | | | | $ | 1,157,553 | | | | | | 2,394 | | | | | $ | 55,839 | | | | | $ | 79,361 | | | | | $ | 135,200 | | |
|
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (35,348) | | | | | | (35,348) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
|
Issuance of common stock upon vesting of equity-
based compensation awards, net of shares withheld for income taxes |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 11 | | | | | | — | | | | | | (219) | | | | | | (219) | | |
|
Adjustment of minority ownership puttable shares to
redemption value |
| | | | — | | | | | | — | | | | | | — | | | | | | (86) | | | | | | — | | | | | | (86) | | | | | | — | | | | | | 86 | | | | | | — | | | | | | 86 | | |
|
Adjustment of equity-based compensation to redemption value
|
| | | | — | | | | | | — | | | | | | — | | | | | | (584) | | | | | | — | | | | | | (584) | | | | | | — | | | | | | — | | | | | | 584 | | | | | | 584 | | |
|
Equity-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 6,498 | | | | | | 6,498 | | |
|
Balance, June 30, 2023
|
| | | | 56,373 | | | | | $ | 1,133 | | | | | $ | (4,501) | | | | | $ | 913,639 | | | | | $ | 211,264 | | | | | $ | 1,121,535 | | | | | $ | 2,405 | | | | | $ | 55,925 | | | | | $ | 86,224 | | | | | $ | 142,149 | | |
|
(in thousands)
|
| |
December 31,
2023 |
| |||
|
Cash and cash equivalents
|
| | | $ | 25,407 | | |
|
Restricted cash
|
| | | | 139,662 | | |
|
Cash, cash equivalents, and restricted cash
|
| | | $ | 165,069 | | |
|
(in thousands)
|
| |
June 30, 2024
|
| |
December 31, 2023
|
| ||||||
| Credit facilities | | | | | | | | | | | | | |
|
SCB Credit Facility
|
| | | $ | — | | | | | $ | 31,000 | | |
|
Revolving Credit Agreement
|
| | | | — | | | | | | 96,000 | | |
| Term loan | | | | | | | | | | | | | |
|
Current portion of Term Loan Credit Agreement
|
| | | | — | | | | | | 114,000 | | |
|
Current portion of unamortized debt issuance costs
|
| | | | — | | | | | | (1,627) | | |
|
Total current debt, net
|
| | | | — | | | | | | 239,373 | | |
|
RBL Credit Agreement
|
| | | | 360,000 | | | | | | — | | |
|
Term Loan Credit Agreement
|
| | | | — | | | | | | 342,000 | | |
|
Long-term portion of unamortized debt issuance costs
|
| | | | — | | | | | | (2,337) | | |
|
Total long-term debt, net
|
| | | | 360,000 | | | | | | 339,663 | | |
|
Total debt, net
|
| | | $ | 360,000 | | | | | $ | 579,036 | | |
|
(in thousands)
|
| |
June 30, 2024
|
| |
December 31, 2023
|
| ||||||
|
Carbon capture, utilization, and sequestration
|
| | | $ | 63,836 | | | | | $ | 59,142 | | |
| Buildings | | | | | 15,707 | | | | | | 15,707 | | |
|
Furniture, fixtures, equipment, and vehicles
|
| | | | 15,175 | | | | | | 15,101 | | |
|
Computer software
|
| | | | 5,030 | | | | | | 4,844 | | |
|
Land
|
| | | | 3,090 | | | | | | 3,090 | | |
|
Leasehold improvements
|
| | | | 1,685 | | | | | | 1,685 | | |
|
Construction in process
|
| | | | 909 | | | | | | 76 | | |
|
Total
|
| | | | 105,432 | | | | | | 99,645 | | |
|
Accumulated depreciation
|
| | | | (18,556) | | | | | | (15,710) | | |
|
Other property and equipment, net
|
| | | $ | 86,876 | | | | | $ | 83,935 | | |
| | | |
As of June 30, 2024
|
| |||||||||||||||
| | | |
Fair Value Measurements Using:
|
| | | | | | | |||||||||
|
(in thousands)
|
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
|
| |||||||||
| Financial assets | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | $ | 32,828 | | | | | $ | — | | | | | $ | 32,828 | | |
| Financial liabilities | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | | 32,883 | | | | | | — | | | | | | 32,883 | | |
|
Contingent consideration
|
| | | | — | | | | | | 23,606 | | | | | | 23,606 | | |
| Mezzanine equity | | | | | | | | | | | | | | | | | | | |
|
Minority ownership puttable shares
|
| | | | — | | | | | | 60,476 | | | | | | 60,476 | | |
|
Equity-based compensation
|
| | | | — | | | | | | 129,412 | | | | | | 129,412 | | |
| | | |
As of December 31, 2023
|
| |||||||||||||||
| | | |
Fair Value Measurements Using:
|
| | | | | | | |||||||||
|
(in thousands)
|
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
|
| |||||||||
| Financial assets | | | | | | | | | | | | | | | | | | | |
|
Derivative instruments
|
| | | $ | 102,547 | | | | | $ | — | | | | | $ | 102,547 | | |
| Financial liabilities | | | | | | | | | | | | | | | | | | | |
|
Contingent consideration
|
| | | | — | | | | | | 29,676 | | | | | | 29,676 | | |
| Mezzanine equity | | | | | | | | | | | | | | | | | | | |
|
Minority ownership puttable shares
|
| | | | — | | | | | | 59,988 | | | | | | 59,988 | | |
|
Equity-based compensation
|
| | | | — | | | | | | 126,966 | | | | | | 126,966 | | |
|
(in thousands, except per share amounts)
|
| |
Fair Value
|
| |
Valuation
Technique |
| |
Unobservable
Input |
| |
Range or
Actual |
| |||
|
Common stock – per share value, as
of December 31, 2023(1) |
| | | $ | 28.25 | | | |
Enterprise value
|
| |
Discount rate
|
| |
11.5% – 12.5%
|
|
| Contingent consideration, as of December 31, 2023 | | | | $ | 29,676 | | | |
Monte Carlo
Simulation |
| |
Risk free rate(2)
|
| |
5.2%
|
|
| | | | | | | | | | | | |
Credit spread
|
| |
4.7%
|
|
| | | | | | | | | | | | |
Discount rate
|
| |
9.9%
|
|
|
Common stock – per share value, as
of March 31, 2024(1) |
| | | $ | 28.98 | | | |
Enterprise value
|
| |
Discount rate
|
| |
11.5% – 12.5%
|
|
| Contingent consideration, as of March 31, 2024 | | | | $ | 23,082 | | | |
Monte Carlo
Simulation |
| |
Risk free rate(2)
|
| |
5.4%
|
|
| | | | | | | | | | | | |
Credit spread
|
| |
4.8%
|
|
| | | | | | | | | | | | |
Discount rate
|
| |
10.2%
|
|
|
Common stock – per share value, as
of June 30, 2024(1) |
| | | $ | 28.48 | | | |
Enterprise value
|
| |
Discount rate
|
| |
11.5 – 12.5%
|
|
| Contingent consideration, as of June 30, 2024 | | | | $ | 23,606 | | | |
Monte Carlo
Simulation |
| |
Risk free rate(2)
|
| |
5.2%
|
|
| | | | | | | | | | | | |
Credit spread
|
| |
4.8%
|
|
| | | | | | | | | | | | |
Discount rate
|
| |
10.0%
|
|
| | | |
Three Months Ended June 30,
|
| |
Six Months Ended
June 30, |
| ||||||||||||||||||
|
(in thousands)
|
| |
2024
|
| |
2023
|
| |
2024
|
| |
2023
|
| ||||||||||||
|
Balance, beginning of period
|
| | | $ | 213,152 | | | | | $ | 200,358 | | | | | $ | 16,630 | | | | | $ | 39,934 | | |
|
Grant date fair value of equity-based compensation
|
| | | | 1,072 | | | | | | 6,279 | | | | | | 2,145 | | | | | | 6,815 | | |
|
Change in fair market value (all instruments)
|
| | | | (730) | | | | | | 653 | | | | | | (5,281) | | | | | | (39,459) | | |
|
Balance, end of period
|
| | | $ | 213,494 | | | | | $ | 207,290 | | | | | $ | 13,494 | | | | | $ | 207,290 | | |
| | | | | | |
As of June 30, 2024
|
| |||||||||||||||
|
(in thousands)
|
| |
Balance Sheet Location
|
| |
Gross
Amounts of Assets and Liabilities |
| |
Offset
Adjustments |
| |
Net
Amounts of Assets and Liabilities |
| |||||||||
|
Current derivative assets
|
| |
Commodity derivative assets, current
|
| | | $ | 43,057 | | | | | $ | (10,229) | | | | | $ | 32,828 | | |
|
Noncurrent derivative assets
|
| |
Commodity derivative assets
|
| | | | 3,976 | | | | | | (3,976) | | | | | | — | | |
|
Current derivative liabilities
|
| |
Other current liabilities
|
| | | | 10,229 | | | | | | (10,229) | | | | | | — | | |
|
Noncurrent derivative liabilities
|
| |
Other noncurrent liabilities
|
| | | | 36,859 | | | | | | (3,976) | | | | | | 32,883 | | |
| | | | | | |
As of December 31, 2023
|
| |||||||||||||||
|
(in thousands)
|
| |
Balance Sheet Location
|
| |
Gross
Amounts of Assets and Liabilities |
| |
Offset
Adjustments |
| |
Net
Amounts of Assets and Liabilities |
| |||||||||
|
Current derivative assets
|
| |
Commodity derivative assets, current
|
| | | $ | 90,540 | | | | | $ | (6,501) | | | | | $ | 84,039 | | |
|
Noncurrent derivative assets
|
| |
Commodity derivative assets
|
| | | | 18,615 | | | | | | (107) | | | | | | 18,508 | | |
|
Current derivative liabilities
|
| |
Other current liabilities
|
| | | | 6,501 | | | | | | (6,501) | | | | | | — | | |
|
Noncurrent derivative liabilities
|
| |
Other noncurrent liabilities
|
| | | | 107 | | | | | | (107) | | | | | | — | | |
| | | |
Three Months Ended
June 30, |
| |
Six Months Ended
June 30, |
| ||||||||||||||||||
|
(in thousands)
|
| |
2024
|
| |
2023
|
| |
2024
|
| |
2023
|
| ||||||||||||
|
Total gain (loss) on settled derivatives
|
| | | $ | 31,471 | | | | | $ | 52,681 | | | | | $ | 67,935 | | | | | $ | 70,702 | | |
|
Total gain (loss) on unsettled derivatives
|
| | | | (38,957) | | | | | | (33,102) | | | | | | (79,100) | | | | | | 46,245 | | |
|
Total gain (loss) on derivatives, net
|
| | | $ | (7,486) | | | | | $ | 19,579 | | | | | $ | (11,165) | | | | | $ | 116,947 | | |
|
Instrument
|
| |
MMBtu
|
| |
Weighted
Average Price (USD) |
| |
Weighted
Average Price Floor |
| |
Weighted
Average Price Ceiling |
| |
Fair Value as of
June 30, 2024 (in thousands) |
| |||||||||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 45,517,500 | | | | | $ | 3.52 | | | | | | | | | | | | | | | | | $ | 27,577 | | |
| 2025 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 60,800,000 | | | | | $ | 3.53 | | | | | | | | | | | | | | | | | $ | 3,699 | | |
|
Collars
|
| | | | 14,600,000 | | | | | | | | | | | $ | 3.71 | | | | | $ | 4.11 | | | | | $ | 4,994 | | |
| 2026 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| | | | 8,550,000 | | | | | $ | 3.53 | | | | | | | | | | | | | | | | | $ | (4,308) | | |
|
Collars
|
| | | | 25,550,000 | | | | | | | | | | | $ | 3.67 | | | | | $ | 4.19 | | | | | $ | 2,171 | | |
|
Call options
|
| | | | 36,500,000 | | | | | | | | | | | | | | | | | $ | 5.00 | | | | | $ | (13,041) | | |
| 2027 | | | | | | | |||||||||||||||||||||||||
|
Call options
|
| | | | 36,500,000 | | | | | | | | | | | | | | | | | $ | 5.00 | | | | | $ | (14,306) | | |
|
Instrument
|
| |
Basis Reference Price
|
| |
MMBtu
|
| |
Weighted
Average Basis Differential |
| |
Fair Value as of
June 30, 2024 (in thousands) |
| |||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
NGPL TXOK Basis
|
| | | | 12,300,000 | | | | | $ | (0.54) | | | | | $ | (1,009) | | |
|
Swap
|
| |
Transco Leidy Basis
|
| | | | 16,560,000 | | | | | $ | (0.89) | | | | | $ | 1,554 | | |
|
Instrument
|
| |
Commodity Reference Price
|
| |
Gallons
|
| |
Weighted
Average Price (USD) |
| |
Fair
Value as of June 30, 2024 (in thousands) |
| |||||||||
| 2024 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
OPIS Purity Ethane Mont Belvieu
|
| | | | 96,600,000 | | | | | $ | 0.23 | | | | | $ | 3,296 | | |
|
Swap
|
| |
OPIS IsoButane Mont Belvieu Non-TET
|
| | | | 6,568,800 | | | | | $ | 0.93 | | | | | $ | (1,137) | | |
|
Swap
|
| |
OPIS Normal Butane Mont Belvieu Non-TET
|
| | | | 9,660,000 | | | | | $ | 0.90 | | | | | $ | (1,023) | | |
|
Swap
|
| |
OPIS Propane Mont Belvieu Non-TET
|
| | | | 36,708,000 | | | | | $ | 0.80 | | | | | $ | (2,059) | | |
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 15,456,000 | | | | | $ | 1.47 | | | | | $ | (1,552) | | |
| 2025 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
OPIS Purity Ethane Mont Belvieu
|
| | | | 92,767,500 | | | | | $ | 0.25 | | | | | $ | (67) | | |
|
Swap
|
| |
OPIS IsoButane Mont Belvieu Non-TET
|
| | | | 6,599,250 | | | | | $ | 0.87 | | | | | $ | (644) | | |
|
Swap
|
| |
OPIS Normal Butane Mont Belvieu Non-TET
|
| | | | 9,082,500 | | | | | $ | 0.84 | | | | | $ | (629) | | |
|
Swap
|
| |
OPIS Propane Mont Belvieu Non-TET
|
| | | | 35,385,000 | | | | | $ | 0.74 | | | | | $ | (1,539) | | |
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 13,387,500 | | | | | $ | 1.39 | | | | | $ | (1,552) | | |
| 2026 | | | | | | | | | | | | | | | | | | | | | | |
|
Swap
|
| |
OPIS Purity Ethane Mont Belvieu
|
| | | | 6,615,000 | | | | | $ | 0.25 | | | | | $ | (218) | | |
|
Swap
|
| |
OPIS IsoButane Mont Belvieu Non-TET
|
| | | | 472,500 | | | | | $ | 0.83 | | | | | $ | (33) | | |
|
Swap
|
| |
OPIS Normal Butane Mont Belvieu Non-TET
|
| | | | 472,500 | | | | | $ | 0.80 | | | | | $ | (31) | | |
|
Swap
|
| |
OPIS Propane Mont Belvieu Non-TET
|
| | | | 2,835,000 | | | | | $ | 0.69 | | | | | $ | (163) | | |
|
Swap
|
| |
OPIS Natural Gasoline Mont Belvieu Non-TET
|
| | | | 945,000 | | | | | $ | 1.40 | | | | | $ | (35) | | |
| | | |
Three Months Ended June 30, 2024
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 5,453 | | | | | $ | 77,387 | | | | | $ | 82,840 | | |
|
NGLs
|
| | | | — | | | | | | 41,216 | | | | | | 41,216 | | |
|
Oil
|
| | | | — | | | | | | 1,798 | | | | | | 1,798 | | |
|
Total natural gas, NGL, and oil sales
|
| | | | 5,453 | | | | | | 120,401 | | | | | | 125,854 | | |
|
Marketing revenues
|
| | | | — | | | | | | 2,046 | | | | | | 2,046 | | |
|
Midstream revenues
|
| | | | 771 | | | | | | 2,607 | | | | | | 3,378 | | |
|
Related party and other
|
| | | | — | | | | | | 6,322 | | | | | | 6,322 | | |
|
Total
|
| | | $ | 6,224 | | | | | $ | 131,376 | | | | | $ | 137,600 | | |
| | | |
Three Months Ended June 30, 2023
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 11,255 | | | | | $ | 88,009 | | | | | $ | 99,264 | | |
|
NGLs
|
| | | | — | | | | | | 41,437 | | | | | | 41,437 | | |
|
Oil
|
| | | | — | | | | | | 1,801 | | | | | | 1,801 | | |
|
Total natural gas, NGL, and oil sales
|
| | | | 11,255 | | | | | | 131,247 | | | | | | 142,502 | | |
|
Marketing revenues
|
| | | | — | | | | | | 2,097 | | | | | | 2,097 | | |
|
Midstream revenues
|
| | | | 939 | | | | | | 3,567 | | | | | | 4,506 | | |
|
Related party and other
|
| | | | — | | | | | | 1,540 | | | | | | 1,540 | | |
|
Total
|
| | | $ | 12,194 | | | | | $ | 138,451 | | | | | $ | 150,645 | | |
| | | |
Six Months Ended June 30, 2024
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 17,945 | | | | | $ | 161,230 | | | | | $ | 179,175 | | |
|
NGLs
|
| | | | — | | | | | | 84,632 | | | | | | 84,632 | | |
|
Oil
|
| | | | — | | | | | | 3,734 | | | | | | 3,734 | | |
|
Total natural gas, NGL, and oil sales
|
| | | | 17,945 | | | | | | 249,596 | | | | | | 267,541 | | |
|
Marketing revenues
|
| | | | — | | | | | | 6,967 | | | | | | 6,967 | | |
|
Midstream revenues
|
| | | | 2,014 | | | | | | 5,492 | | | | | | 7,506 | | |
|
Related party and other
|
| | | | — | | | | | | 10,479 | | | | | | 10,479 | | |
|
Total
|
| | | $ | 19,959 | | | | | $ | 272,534 | | | | | $ | 292,493 | | |
| | | |
Six Months Ended June 30, 2023
|
| |||||||||||||||
|
(in thousands)
|
| |
Pennsylvania
|
| |
Texas
|
| |
Total
|
| |||||||||
|
Natural gas
|
| | | $ | 38,526 | | | | | $ | 218,506 | | | | | $ | 257,032 | | |
|
NGLs
|
| | | | — | | | | | | 91,477 | | | | | | 91,477 | | |
|
Oil
|
| | | | — | | | | | | 4,398 | | | | | | 4,398 | | |
|
Total natural gas, NGL, and oil sales
|
| | | | 38,526 | | | | | | 314,381 | | | | | | 352,907 | | |
|
Marketing revenues
|
| | | | — | | | | | | 4,732 | | | | | | 4,732 | | |
|
Midstream revenues
|
| | | | 2,285 | | | | | | 6,143 | | | | | | 8,428 | | |
|
Related party and other
|
| | | | — | | | | | | 3,314 | | | | | | 3,314 | | |
|
Total
|
| | | $ | 40,811 | | | | | $ | 328,570 | | | | | $ | 369,381 | | |
|
(in thousands)
|
| |
June 30, 2024
|
| |
December 31, 2023
|
| ||||||
|
Accounts payable
|
| | | $ | 38,080 | | | | | $ | 47,504 | | |
|
Accrued payroll
|
| | | | 12,787 | | | | | | 18,189 | | |
|
Oil and gas production and other taxes payable
|
| | | | 14,364 | | | | | | 48,857 | | |
|
Revenues payable
|
| | | | 19,840 | | | | | | 21,765 | | |
|
Other accrued liabilities
|
| | | | 3,734 | | | | | | 12,858 | | |
|
Total
|
| | | $ | 88,805 | | | | | $ | 149,173 | | |
|
(in thousands, except per share amounts)
|
| |
Shares
|
| |
Weighted-Average
Grant Date Fair Value |
| ||||||
|
Unvested PRSUs as of December 31, 2023
|
| | | | 3,967 | | | | | $ | 19.02 | | |
|
Vested
|
| | | | (3,963) | | | | | $ | 19.02 | | |
| Forfeited | | | | | (4) | | | | | $ | 19.02 | | |
|
Unvested PRSUs as of June 30, 2024
|
| | | | — | | | | | $ | — | | |
|
(in thousands, except per share amounts)
|
| |
Shares
|
| |
Weighted-Average
Grant Date Fair Value |
| ||||||
|
Unvested TRSUs as of December 31, 2023
|
| | | | 727 | | | | | $ | 22.37 | | |
| Vested(1) | | | | | (277) | | | | | $ | 22.12 | | |
|
Forfeited
|
| | | | (20) | | | | | $ | 22.12 | | |
|
Unvested TRSUs as of June 30, 2024
|
| | | | 430 | | | | | $ | 22.37 | | |
| | | |
Three Months Ended June 30,
|
| |
Six Months Ended
June 30, |
| ||||||||||||||||||
|
(in thousands)
|
| |
2024
|
| |
2023
|
| |
2024
|
| |
2023
|
| ||||||||||||
| | | |
(unaudited)
|
| |
(unaudited)
|
| ||||||||||||||||||
|
Total revenues, net
|
| | | $ | 86,801 | | | | | $ | 28,571 | | | | | $ | 171,771 | | | | | $ | 63,021 | | |
|
Operating expenses
|
| | | | 99,382 | | | | | | 41,670 | | | | | | 182,584 | | | | | | 80,545 | | |
|
Income (loss) from operations
|
| | | | (12,581) | | | | | | (13,099) | | | | | | (10,813) | | | | | | (17,524) | | |
|
Interest expense
|
| | | | (18,768) | | | | | | (6,910) | | | | | | (36,949) | | | | | | (13,370) | | |
|
Other income
|
| | | | 843 | | | | | | 2,255 | | | | | | 1,842 | | | | | | 2,343 | | |
|
Net loss
|
| | | $ | (30,506) | | | | | $ | (17,754) | | | | | $ | (45,920) | | | | | $ | (28,551) | | |
|
(in thousands)
|
| |
2024
|
| |
2025
|
| |
2026
|
| |
2027
|
| |
2028
|
| |
Thereafter
|
| |
Total
|
| |||||||||||||||||||||
|
RBL Credit Agreement
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 360,000 | | | | | $ | — | | | | | $ | 360,000 | | |
|
Interest payable
|
| | | | 1,783 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,783 | | |
|
Notes payable to related party
|
| | | | — | | | | | | — | | | | | | — | | | | | | 50,000 | | | | | | — | | | | | | — | | | | | | 50,000 | | |
|
Interest on related party notes
|
| | | | 188 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 188 | | |
|
Operating lease payments
|
| | | | 623 | | | | | | 1,253 | | | | | | 1,047 | | | | | | 908 | | | | | | 924 | | | | | | 4,608 | | | | | | 9,363 | | |
|
Volume commitments
|
| | | | 34,512 | | | | | | 68,228 | | | | | | 66,356 | | | | | | 58,639 | | | | | | 53,144 | | | | | | 73,185 | | | | | | 354,064 | | |
|
Total
|
| | | $ | 37,106 | | | | | $ | 69,481 | | | | | $ | 67,403 | | | | | $ | 109,547 | | | | | $ | 414,068 | | | | | $ | 77,793 | | | | | $ | 775,398 | | |
| | | |
Three Months Ended June 30,
|
| |
Six Months Ended June 30,
|
| ||||||||||||||||||
|
(in thousands)
|
| |
2024
|
| |
2023
|
| |
2024
|
| |
2023
|
| ||||||||||||
|
Basic weighted average common shares outstanding
|
| | | | 66,349 | | | | | | 58,776 | | | | | | 66,318 | | | | | | 58,779 | | |
|
Add: dilutive effect of TRSUs
|
| | | | — | | | | | | — | | | | | | — | | | | | | 156 | | |
|
Add: dilutive effect of PRSUs
|
| | | | — | | | | | | — | | | | | | — | | | | | | 3,499 | | |
|
Diluted weighted average of common shares outstanding
|
| | | | 66,349 | | | | | | 58,776 | | | | | | 66,318 | | | | | | 62,434 | | |
|
Weighted average number of outstanding securities excluded from the calculation of diluted loss per share:
|
| | | | | | | | | | | | | | | | | | | | | | | | |
|
TRSUs
|
| | | | 302 | | | | | | 130 | | | | | | 292 | | | | | | — | | |
|
PRSUs
|
| | | | 3,890 | | | | | | 3,227 | | | | | | 3,895 | | | | | | — | | |
| |
SEC registration fee
|
| | | $ | 11,020 | | |
| |
FINRA filing fee
|
| | | | 15,500 | | |
| |
NYSE listing fees
|
| | | | * | | |
| |
Transfer agent and registrar fees and expenses
|
| | | | * | | |
| |
Printing fees and expenses
|
| | | | * | | |
| |
Legal fees and expenses
|
| | | | * | | |
| |
Accounting fees and expenses
|
| | | | * | | |
| |
Engineering expenses
|
| | | | * | | |
| |
Miscellaneous
|
| | | | * | | |
| |
Total
|
| | | $ | * | | |
| |
Exhibit
Number |
| |
Description
|
|
| | 99.9** | | | | |
| | 99.10** | | | | |
| | 99.11** | | | | |
| | 99.12** | | | | |
| | 99.13** | | | | |
| | 99.14** | | | | |
| | 99.15** | | | | |
| | 107** | | | |
| |
Name
|
| |
Title
|
| |
Date
|
|
| |
/s/ Christopher P. Kalnin
Christopher P. Kalnin
|
| |
Chief Executive Officer and Director
(Principal Executive Officer) |
| |
August 28, 2024
|
|
| |
*
John T. Jimenez
|
| |
Chief Financial Officer
(Principal Financial Officer) |
| |
August 28, 2024
|
|
| |
*
Barry S. Turcotte
|
| |
Chief Accounting Officer
(Principal Accounting Officer) |
| |
August 28, 2024
|
|
| |
*
Chanin Vongkusolkit
|
| |
Chairman of the Board
|
| |
August 28, 2024
|
|
| |
*
Somruedee Chaimongkol
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Joseph R. Davis
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Akaraphong Dayananda
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Kirana Limpaphayom
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Carla S. Mashinski
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Thiti Mekavichai
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Charles C. Miller III
|
| |
Director
|
| |
August 28, 2024
|
|
| |
Name
|
| |
Title
|
| |
Date
|
|
| |
*
Sunit S. Patel
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Anon Sirisaengtaksin
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*
Sinon Vongkusolkit
|
| |
Director
|
| |
August 28, 2024
|
|
| |
*By:
/s/ Christopher P. Kalnin
Christopher P. Kalnin
Attorney-in-fact |
| | | ||||
Exhibit 1.1
[ · ] Shares
BKV CORPORATION
Common Stock
UNDERWRITING AGREEMENT
[ · ], 2024
Citigroup Global Markets Inc.,
Barclays Capital Inc.
As Representatives of the Several Underwriters,
| c/o | Citigroup Global Markets Inc. |
| 388 Greenwich Street | |
| New York, New York 10013 |
| c/o | Barclays Capital Inc. 745 Seventh Avenue New York, New York 10019 |
Ladies and Gentlemen:
1. Introductory. BKV Corporation, a Delaware corporation (the “Company”), agrees with Citigroup Global Markets Inc. (“Citigroup”) and Barclays Capital Inc. as representatives (collectively, the “Representatives”) of the several underwriters named in Schedule A (the “Underwriters”) to this agreement (this “Agreement”), to issue and sell to the several Underwriters [ · ] shares of its common stock, par value $0.01 per share (the “Securities”) (such shares of Securities being hereinafter referred to as the “Firm Securities”). The Company also agrees to issue and sell to the Underwriters, at the option of the Underwriters, an aggregate of not more than [ · ] additional shares of its Securities (the “Optional Securities”), as set forth below. The Firm Securities and the Optional Securities are herein collectively called the “Offered Securities.”
The Company and Citigroup agree that up to 5% of the Firm Shares to be purchased by the Underwriters (the “Reserved Securities”) shall be reserved for sale by Citigroup to certain persons designated by the Company (the “Invitees”), as part of the distribution of the Shares by the Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and interpretations of FINRA and all other applicable laws, rules and regulations. The Company has solely determined, without any direct or indirect participation by the Underwriters or Citigroup, the Invitees who will purchase Reserved Securities (including the amount to be purchased by such persons) sold by Citigroup. To the extent that such Reserved Securities are not orally confirmed for purchase by Invitees by 11:59 PM. (New York City time) on the date of this Agreement, such Reserved Securities may be offered to the public as part of the public offering contemplated hereby.
2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration statement on Form S-1 (No. 333-268469) covering the registration of the Offered Securities under the Act, including a related preliminary prospectus or prospectuses. At any particular time, this initial registration statement, in the form then on file with the Commission, including all information contained in the registration statement (if any) pursuant to Rule 462(b) and then deemed to be a part of the initial registration statement, and all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the “Initial Registration Statement.” The Company may also have filed, or may file, with the Commission, a Rule 462(b) registration statement covering the registration of the Offered Securities. At any particular time, this Rule 462(b) registration statement, in the form then on file with the Commission, including the contents of the Initial Registration Statement incorporated by reference therein and including all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the “Additional Registration Statement.”
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As of the time of execution and delivery of this Agreement, the Initial Registration Statement has been declared effective under the Act and is not proposed to be amended. Any Additional Registration Statement has or will become effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered Securities all have been or will be duly registered under the Act pursuant to the Initial Registration Statement and, if applicable, the Additional Registration Statement.
For purposes of this Agreement:
“430A Information,” with respect to any registration statement, means information included in a prospectus and retroactively deemed to be a part of such registration statement pursuant to Rule 430A(b).
“430C Information,” with respect to any registration statement, means information included in a prospectus then deemed to be a part of such registration statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means [ · ] P.M. (New York time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” with respect to the Initial Registration Statement or, if filed prior to the execution and delivery of this Agreement, the Additional Registration Statement means the date and time as of which such Registration Statement was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), as the case may be. If an Additional Registration Statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, “Effective Time” with respect to such Additional Registration Statement means the date and time as of which such Additional Registration Statement is filed and becomes effective pursuant to Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price, other 430A Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
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“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and any Additional Registration Statement, after the filing thereof, are referred to collectively as the “Registration Statements” and each is individually referred to as a “Registration Statement.” A “Registration Statement” with reference to a particular time means the Initial Registration Statement and any Additional Registration Statement as of such time. A “Registration Statement” without reference to a time means such Registration Statement as of its Effective Time. For purposes of the foregoing definitions, 430A Information with respect to a Registration Statement shall be considered to be included in such Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002, as amended and all rules and regulations promulgated thereunder or implementing the provisions thereof (“Sarbanes-Oxley”), the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of The New York Stock Exchange (“Exchange Rules”).
“Statutory Prospectus” with reference to a particular time means the prospectus included in a Registration Statement immediately prior to that time, including any 430A Information or 430C Information with respect to such Registration Statement. For purposes of the foregoing definition, 430A Information shall be considered to be included in the Statutory Prospectus as of the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b) or Rule 462(c) and not retroactively.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on either Section 5(d) of, or Rule 163B under, the Act.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
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(b) Compliance with Securities Act Requirements. (i) (A) At their respective Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of the Initial Registration Statement and the Additional Registration Statement (if any) conformed and will conform in all material respects to the requirements of the Act and the Rules and Regulations, and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) on its date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Time of the Additional Registration Statement in which the Final Prospectus is included, and on each Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any such document based upon written information furnished to the Company by any Underwriter through any Representative specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(c) Ineligible Issuer Status. (i) At the time of the initial filing of the Initial Registration Statement and (ii) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (A) the Company or any subsidiary of the Company in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (B) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Offered Securities, all as described in Rule 405.
(d) Emerging Growth Company Status. From the time of the initial confidential submission of the Initial Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is (or is entitled to be treated, in accordance with applicable interpretations of the Commission, as) an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”).
(e) General Disclosure Package. As of the Applicable Time, none of (i) the General Use Issuer Free Writing Prospectus(es), if any, issued at or prior to the Applicable Time, the preliminary prospectus, dated [ · ], 2024 (which is the most recent Statutory Prospectus distributed to investors generally) and the other information, if any, stated in Schedule B to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the “General Disclosure Package”), (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, or (iii) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Statutory Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication in reliance upon and in conformity with written information furnished to the Company by any Underwriter through any Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
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(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus, at a time when a prospectus relating to the Offered Securities is (or but for the exemption of Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly amended or supplemented or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(g) Testing-the-Waters Communication. The Company (a) has not alone engaged in any Testing-the-Waters Communication, other than Testing-the-Waters Communications with the consent of the Representatives, and (b) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on the Company’s behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communication.
(h) Good Standing of the Company. The Company (i) has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and to conduct its business in all material respects as described in the Registration Statement, the General Disclosure Package and the Final Prospectus and to enter into and perform its obligations under this Agreement and (ii) is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except, in the case of clause (ii), where such failure to be so qualified and in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(i) Subsidiaries. Each subsidiary (as such term is defined in Rule 1-02 of Regulation S-X) of the Company has been duly incorporated or organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate or limited liability company, as applicable) to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Final Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation or foreign limited liability company, as applicable, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; all of the issued and outstanding capital stock or limited liability company interests, as applicable, of each subsidiary of the Company have been duly authorized and validly issued and is fully paid and nonassessable (except, in the case of subsidiaries of the Company that are limited liability companies, as such non-assessability may be limited by applicable state law) and are owned by the Company, directly or through subsidiaries, free from liens, encumbrances and defects, except as disclosed in the General Disclosure Package and the Final Prospectus.
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(j) Offered Securities. The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; the authorized equity capitalization of the Company is as set forth in the Registration Statement, the General Disclosure Package and the Final Prospectus; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on each Closing Date, such Offered Securities will have been, validly issued, fully paid and nonassessable, and will conform, in all material respects, to the information in the General Disclosure Package and to the description of such Offered Securities contained in the Final Prospectus; the stockholders of the Company have no preemptive rights with respect to the Offered Securities; and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive or similar rights of any security holder of the Company. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there are no outstanding (A) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (B) warrants, rights or options to subscribe for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations or (C) obligations of the Company to issue or sell any shares of capital stock, any such convertible or exchangeable securities or obligations or any such warrants, rights or options. The Company has not, directly or indirectly, offered or sold any of the Offered Securities by means of any “prospectus” (within the meaning of the Act and the Rules and Regulations) or used any “prospectus” or made any offer (within the meaning of the Act and the Rules and Regulations) in connection with the offer or sale of the Offered Securities, in each case other than the preliminary prospectus referred to in Section 2(e) hereof, the General Disclosure Package and the Final Prospectus.
(k) No Finder’s Fee. Except as disclosed in the Registration Statement, the General Disclosure Package, the Final Prospectus and as contemplated by this Agreement, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the offering and sale of the Offered Securities.
(l) Listing. The Offered Securities have been approved for listing on The New York Stock Exchange, subject to official notice of issuance.
(m) Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Offered Securities, except (i) such as have been obtained or made, including under the laws and regulations of jurisdictions outside the United States in which the Reserved Securities were offered, (ii) such as may be required under state securities laws or by the Financial Industry Regulatory Authority (“FINRA”), or (iii) those that, if not obtained, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(n) Title to Property. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries have (i) defensible title to all of their interests in the oil and gas properties underlying the Company’s estimate of its net proved reserves contained in the Registration Statement, General Disclosure Package and the Final Prospectus and (ii) good and marketable title to, or have valid rights to lease or otherwise use, all other real property and all personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except (A) royalties, overriding royalties and other burdens under oil and gas leases, (B) those that are described or referenced in the Registration Statement, the General Disclosure Package or the Final Prospectus, (C) those that do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries and (D) those that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(o) Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of this Agreement, and the issuance and sale of the Offered Securities will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter, certificate of formation, by-laws or limited liability company agreement or similar organizational documents of the Company or any of its subsidiaries, (ii) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(p) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (i) in violation of its respective charter, certificate of formation, by-laws or limited liability company agreement or similar organizational documents; (ii) in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except in the case of clauses (ii) and (iii) above, for any such defaults or violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(q) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(r) Possession of Licenses and Permits. The Company and its subsidiaries possess, and are in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits issued by appropriate federal, state, local or foreign regulatory bodies (collectively, “Licenses”) necessary or material to the conduct of the business now conducted or proposed to be conducted in the Registration Statement, the General Disclosure Package and the Final Prospectus, except (i) as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus and (ii) for any of the foregoing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and each of its subsidiaries have not received any notice of proceedings relating to the revocation or modification of any Licenses that, in each case, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(s) Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company or any of its subsidiaries, is imminent that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) Possession of Intellectual Property. The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(u) Environmental Laws. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, (i) neither the Company nor any of its subsidiaries (A) is or has been in violation of any foreign, federal, state or local statute, law, rule, regulation, judgment, order, decree, decision, ordinance, code or other legally binding requirement (including common law) relating to the pollution, protection or restoration of the environment, wildlife or natural resources; human health or safety; or the generation, use, handling, transportation, treatment, storage, discharge, disposal or release of, or exposure to, any Hazardous Substance (as defined below) (collectively, “Environmental Laws”), (B) is conducting or funding, in whole or in part, any investigation, remediation, monitoring or other corrective action pursuant to any Environmental Law, including to address any actual or suspected Hazardous Substance, (C) has received notice of, or is subject to any action, suit, claim or proceeding alleging, any actual or potential liability under, or violation of, any Environmental Law, including with respect to any Hazardous Substance, (D) is party to any order, decree or agreement that imposes any obligation or liability under any Environmental Law, or (E) is or has been in violation of, or has failed to obtain and maintain, any permit, license, authorization, identification number or other approval required under applicable Environmental Laws; (ii) to the knowledge of the Company and its subsidiaries, there are no facts or circumstances that would reasonably be expected to result in any violation of or liability under any Environmental Law, including with respect to any Hazardous Substance; and (iii) neither the Company nor any of its subsidiaries (A) is subject to any pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company or any of its subsidiaries in which a governmental entity is also a party that would reasonably be expected to result in a fine or penalty of $300,000 or more, nor does the Company or any of its subsidiaries know any such proceeding is contemplated or (B) reasonably anticipates any capital expenditures relating to any Environmental Laws, except in the case of clauses (i), (ii) and (iii)(B) above, for such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. For purposes of this subsection, “Hazardous Substance” means (y) any pollutant, contaminant, petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos, asbestos-containing materials, polychlorinated biphenyls or toxic mold, and (z) any other toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous chemical, material, waste or substance.
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(v) Accurate Disclosure. The statements in the Registration Statement, the General Disclosure Package and the Final Prospectus under the heading “Description of the Securities,” “Certain Relationships and Related Party Transactions,” “Business—Legal Proceedings,” “Business—Government Regulation and Environmental Matters,” “Certain ERISA Considerations,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Loan Agreements and Credit Facilities” and “Material U.S. Federal Income Tax Consequences to Non-U.S. Holders of Our Common Stock,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be shown in all material respects, subject to the assumptions and qualifications set forth therein.
(w) Absence of Manipulation. None of the Company, its subsidiaries or, to the Company’s knowledge, any other affiliate of the Company has taken, directly or indirectly, any action that is designed, or would reasonably be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities or to result in a violation of Regulation M under the Exchange Act.
(x) Statistical and Market-Related Data. Any third-party statistical and market-related data included in a Registration Statement, a Statutory Prospectus, the General Disclosure Package, the Final Prospectus or any Written Testing-the Waters-Communication is based on or derived from sources that the Company believes to be reliable and accurate in all material respects.
(y) Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance with all applicable provisions of Sarbanes-Oxley that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement.
(z) Internal Controls. The Company maintains a system of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls (collectively, “Internal Controls”) that comply with applicable Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls are, or upon consummation of the offering of the Offered Securities will be, overseen by the Audit & Risks Committee (the “Audit & Risks Committee”) of the Company’s Board of Directors (the “Board”) in accordance with Exchange Rules. Except as set forth in the Registration Statement, General Disclosure Package and the Final Prospectus, the Company has not publicly disclosed or reported to the Audit & Risks Committee or the Board a “significant deficiency” or “material weakness” (each, as defined in Rule 12b-2 of the Exchange Act), a change in Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls.
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(aa) Litigation. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement. To the Company’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened.
(bb) Financial Statements. The historical financial statements and the related notes thereto of the Company and its consolidated subsidiaries included in each of the Registration Statement, the General Disclosure Package and the Final Prospectus present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations, stockholders’ equity and cash flows for the periods shown, and such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods covered thereby; the other financial information of the Company and its consolidated subsidiaries included in each of the Registration Statement, the General Disclosure Package and the Final Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby.
(cc) No Material Adverse Change in Business. Except as disclosed in or contemplated by the Registration Statement, the General Disclosure Package and the Final Prospectus, since the end of the period covered by the latest audited financial statements included in the Registration Statement, the General Disclosure Package and the Final Prospectus, (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, that is material and adverse, (ii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock, (iii) there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company or any of its subsidiaries, (iv) there has been no material transaction entered into by the Company or any of its subsidiaries other than transactions in the ordinary course of business, (v) there has been no obligation, direct or contingent, that is material to the Company or any of its subsidiaries taken as a whole, incurred by the Company or any of its subsidiaries, except obligations incurred in the ordinary course of business and (vi) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority.
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(dd) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Registration Statement, the General Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ee) Taxes. The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement, subject to permitted extensions, and have paid all taxes required to be paid thereon (except as currently being contested in good faith and for which adequate reserves required by GAAP have been created in the financial statements of the Company), in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as would not reasonably be expected to have a Material Adverse Effect, no material tax deficiency has been, or would reasonably be expected to be, asserted against the Company or any of its subsidiaries.
(ff) Insurance. Except as would not reasonably be expected to have a Material Adverse Effect or as disclosed in the Registration Statement, General Disclosure Package and the Final Prospectus, the Company and its subsidiaries are insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are adequate and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any material insurance coverage sought or applied for; neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Final Prospectus and the Company will obtain directors’ and officers’ insurance in such amounts as is customary for an initial public offering.
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(gg) No Unlawful Payments. Neither the Company nor any of its subsidiaries, nor any director, officer or employee, nor, to the knowledge of the Company or any of its subsidiaries, any affiliate of the Company, agent or other person acting on behalf of the Company or of any of its subsidiaries or affiliates, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any government official, including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office (“Governmental Official”) to influence official action or secure an improper advantage; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit, to any Government Official or other person or entity. The Company and its subsidiaries and, to the Company’s knowledge, the Company’s other affiliates have conducted their businesses in compliance with applicable anti-bribery and anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(hh) Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of all jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company and its subsidiaries, threatened.
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(ii) Economic Sanctions. Neither the Company nor any of its subsidiaries, nor any director, officer, or employee thereof, nor, to the knowledge of the Company or any of its subsidiaries, any agent, affiliate or other person acting on behalf of the Company or of any of its subsidiaries or affiliates, is currently in breach or violation of any Sanctions (as defined below) or is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is: the subject or target of any U.S. sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury, the Swiss Secretariat of Economic Affairs, the Hong Kong Monetary Authority, the Monetary Authority of Singapore, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions including, without limitation, Cuba, Iran, North Korea, Sudan, Syria, Russia, Belarus, the so-called People’s Republic of Donetsk, the so-called People’s Republic of Luhansk, Crimea and any other covered region of Ukraine identified pursuant to Executive Order 14065 (each a “Sanctioned Country”); and the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject or target of any Sanctions; (ii) to fund or facilitate any activities of or business in any Sanctioned Country; or (iii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). For the past ten years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
(jj) Other Offerings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company has not sold, issued or distributed any Securities during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or Regulation S of, the Act, other than Securities issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(kk) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Final Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and, if applicable, filed as required, except as otherwise would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ll) Cybersecurity. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, (i)(A) to the knowledge of the Company, there has been no material security breach or incident, or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data and data-bases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the Company or its subsidiaries), equipment or technology (collectively, “IT Systems and Data”) and (B) the Company and its subsidiaries have not been notified of, and have no knowledge of, any event or condition that would reasonably be expected to result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as, in the case of this clause (ii), would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards.
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(mm) Reserve Engineer. Ryder Scott Company, L.P. (“Ryder Scott”), whose reports appear or are incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus and who has delivered the letter referred to in Section 7(h) hereof, was, as of the date of such report, and is, as of the date hereof, an independent petroleum engineer with respect to the Company and its subsidiaries.
(nn) Reserve Report Information. The information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus regarding estimated proved reserves of the Company and its subsidiaries is based upon the reserve reports prepared by Ryder Scott. The information provided to Ryder Scott by the Company and its subsidiaries was true and correct in all material respects on the dates the reports were made. Such information was provided to Ryder Scott in accordance with all customary industry practices.
(oo) Reserve Reports; Production Estimates. The factual information underlying the estimates of reserves of the Company and its subsidiaries included in the General Disclosure Package and the Final Prospectus, including, without limitation, production, costs of operation and development, current prices for production, agreements relating to current and future operations and sales of production, was true and correct in all material respects on the dates such estimates were made and such information was supplied and was prepared in accordance with customary industry practices. Other than normal production of reserves, intervening market commodity price fluctuations, fluctuations in demand for such products, adverse weather conditions, unavailability or increased costs of rigs, equipment, supplies or personnel, the timing of third-party operations and other factors, in each case in the ordinary course of business, and except as described in the General Disclosure Package and the Final Prospectus, neither of the Company nor any of its subsidiaries is aware of any facts or circumstances that would result in a material adverse change in the aggregate net reserves, or the aggregate present value of future net cash flows therefrom, as described in the General Disclosure Package and the Final Prospectus.
(pp) No Ratings. There are (and prior to the Closing Date, will be) no debt securities, convertible securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) under the Exchange Act.
(qq) Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries do not have any material lending or other relationship with any bank or lending affiliate of any Underwriter.
(rr) Reserved Securities Compliance. In connection with any offer and sale of Reserved Securities outside the United States, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, complied and will comply in all material respects with any applicable laws or regulations of foreign jurisdictions in which the same is distributed. The Company has not offered, or caused Citigroup to offer, Reserved Securities to any person pursuant to the Reserved Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company or any of its affiliates to alter the customer’s or supplier’s level or type of business with any such entity or (ii) a trade journalist or publication to write or publish favorable information about the Company or any of its affiliates, or their respective businesses or products.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of $[ · ] per share, the number of Firm Securities set forth opposite the name of such Underwriter in Schedule A hereto.
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The Company will deliver the Firm Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company, at the office of Latham & Watkins LLP, 811 Main Street, Suite 3700, Houston, Texas 77002, at 9:00 A.M., New York time, on [ · ], 2024, or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “First Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Firm Securities so to be delivered or evidence of their issuance will be made available for checking at the above office of Latham & Watkins LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company from time to time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per share to be paid for the Firm Securities. The Company agrees to sell to the Underwriters the respective numbers of Optional Securities obtained by multiplying the number of shares specified in such notice by a fraction the numerator of which is [ · ] and the denominator of which is the total number of Optional Securities (subject to adjustment by the Representatives to eliminate fractions). Such Optional Securities shall be purchased from the Company for the account of each Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite such Underwriter’s name bears to the total number of shares of Firm Securities (subject to adjustment by the Representatives to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred to as an “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to or as instructed by the Representatives for the accounts of the several Underwriters, in a form reasonably acceptable to the Representatives against payment of the purchase price therefore in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company, at the above office of Latham & Watkins LLP. The certificates for the Optional Securities being purchased on each Optional Closing Date or evidence of their issuance will be made available for checking at the above office of Latham & Watkins LLP at a reasonable time in advance of such Optional Closing Date.
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4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as part of the Additional Registration Statement in accordance with the next sentence, the Company will file the Final Prospectus, in a form approved by the Representatives, with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by the Representatives, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the second business day following the execution and delivery of this Agreement or (B) the fifteenth business day after the Effective Time of the Initial Registration Statement. The Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b) and provide satisfactory evidence to the Representatives of such timely filing. If an Additional Registration Statement is necessary to register a portion of the Offered Securities under the Act but the Effective Time thereof has not occurred as of the execution and delivery of this Agreement, the Company will file the Additional Registration Statement or, if filed, will file a post-effective amendment thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the time the Final Prospectus is finalized and distributed to any Underwriter, or will make such filing at such later date as shall have been consented to by the Representatives.
(b) Filing of Amendments: Response to Commission Requests. The Company will promptly advise the Representatives of any proposal to amend or supplement at any time the Initial Registration Statement, any Additional Registration Statement or any Statutory Prospectus and will not effect such amendment or supplementation without the Representatives’ consent; and the Company will also advise the Representatives promptly of (i) the effectiveness of any Additional Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement), (ii) any amendment or supplementation of a Registration Statement or any Statutory Prospectus, (iii) any request by the Commission or its staff for any amendment to any Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iv) the institution by the Commission of any stop order proceedings in respect of a Registration Statement or the threatening of any proceeding for that purpose, and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
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(d) Testing-the-Waters Communication. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such statement or omission.
(e) Rule 158. As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the Effective Time of the Initial Registration Statement (or, if later, the Effective Time of the Additional Registration Statement), which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. For the purpose of the preceding sentence, “Availability Date” means the day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Time on which the Company is required to file its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the day after the end of such fourth fiscal quarter on which the Company is required to file its Form 10-K.
(f) Furnishing of Prospectuses. The Company will furnish, upon request, to the Representatives copies of each Registration Statement (three of which will be signed and will include all exhibits), each related Statutory Prospectus, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act, the Final Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives request. The Final Prospectus shall be so furnished within two business days following the execution and delivery of this Agreement, unless otherwise agreed by the Company and the Representatives. All other such documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(g) Blue Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(h) Reporting Requirements. During the period of five years hereafter, the Company will, upon request, furnish to the Representatives and to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, upon request, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) or any successor system to EDGAR, it is not required to furnish such reports or statements to the Underwriters.
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(i) Payment of Expenses. The Company agrees with the several Underwriters that the Company will pay all expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to any filing fees and other expenses (including reasonable fees and disbursements of counsel to the Underwriters) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the preparation and printing of memoranda relating thereto, costs and expenses related to the review by FINRA of the Offered Securities (including filing fees and the reasonable fees and expenses of counsel for the Underwriters not to exceed $20,000 relating to such review), costs and expenses relating to investor presentations or any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees (provided, however, that the Underwriters shall be responsible for 50% of the costs of any private aircraft chartered by or on behalf of the Company in connection with such presentations) and any other expenses of the Company including fees and expenses incident to listing the Offered Securities on The New York Stock Exchange, fees and expenses in connection with the registration of the Offered Securities under the Exchange Act, any transfer taxes or similar taxes payable in connection with the issuance, sale, preparation and delivery of the Offered Securities to the Underwriters and expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters, all costs and expenses of Citigroup, including the fees and disbursements of counsel for Citigroup, in connection with matters related to the Reserved Securities which are designated by the Company for sale to Invitees; and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors. It is understood, however, that except as provided herein, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel and any road show expenses incurred by them (other than costs and expenses incurred by the Underwriters on behalf of the Company).
(j) Use of Proceeds. The Company will use the net proceeds received by it in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package and the Final Prospectus and, except as disclosed in the General Disclosure Package and the Final Prospectus, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any Underwriter or affiliate of any Underwriter.
(k) Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.
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(l) (i) Restriction on Sale of Securities by the Company. For the period specified below (the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the following actions with respect to its Securities or any securities convertible into or exchangeable or exercisable for any of its Securities (the “Lock-Up Securities”): (A) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (B) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (C) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (D) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (E) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, without the prior written consent of the Representatives, except (1) the sale of Securities to the Underwriters as contemplated by this Agreement, (2) issuances of Lock-Up Securities pursuant to the conversion, exchange or redemption of convertible, exchangeable or redeemable securities or the exercise of warrants or options, in each case outstanding on the date hereof, (3) grants of employee stock options or other compensatory awards pursuant to the terms of a plan in effect on the date hereof or otherwise described in the General Disclosure Package and the Final Prospectus, or issuances of Lock-Up Securities pursuant to the exercise or vesting of such options or other compensatory awards, (4) the filing of a registration statement on Form S-8 relating to issuances of Lock-Up Securities pursuant to the terms of a plan described in the General Disclosure Package and the Final Prospectus, (5) issuances of Lock-Up Securities pursuant to the Company’s dividend reinvestment plan or (6) issuances of Lock-Up Securities issued as consideration for the acquisition of equity interests or assets of any person, or the acquiring by the Company by any other manner of any business, properties, assets, or persons, in one transaction or a series of related transactions or the filing of a registration statement related to such Lock-Up Securities (and the inclusion of other Lock-Up Securities pursuant to the piggyback registration rights in existence on the date of this Agreement and described in the General Disclosure Package and Final Prospectus); provided, however, that (x) no more than an aggregate of 10% of the number of shares of the Company’s capital stock outstanding as of the First Closing Date are issued as consideration in connection with all such acquisitions and (y) prior to the issuance of such shares of the Company’s capital stock, each recipient of such shares agrees in writing to be subject to the “lock-up” described in this Section 5(l)(A). The initial Lock-Up Period will commence on the date hereof and continue for 180 days after the date hereof or such earlier date that the Representatives consent to in writing.
(ii) Agreement to Announce Lock-Up Waiver. If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 7(g) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A hereto through a major news service or through other means permitted by FINRA at least two business days before the effective date of the release or waiver.
(m) Reserved Securities Restrictions. The Company hereby agrees that it will ensure that the Reserved Securities will be restricted to the extent required by FINRA or the FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. Citigroup will notify the Company as to which persons will need to be so restricted. At the request of the Underwriters, the Company will direct the transfer agent to place a stop transfer restriction upon such securities for such period of time. Should the Company release, or seek to release, from such restrictions any of the Reserved Securities, the Company agrees to reimburse Citigroup for any reasonable expenses (including, without limitation, legal expenses) they incur in connection with such release.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
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7. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties of the Company herein (as though made on such Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letters. The Representatives shall have received a “comfort letter,” dated the date hereof, of PricewaterhouseCoopers LLP (“PwC”) in form and substance reasonably satisfactory to the Representatives, covering the financial information of the Company included or incorporated by reference in the Registration Statements and the General Disclosure Package and other customary matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. In addition, on each Closing Date, the Underwriters shall have received from PwC a “bring-down comfort letter” dated such Closing Date addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, in the form of the “comfort letters” delivered on the date hereof, except that (A) such letter shall state the conclusions and findings of PwC with respect to the financial information of the Company included or incorporated by reference in the Registration Statements and the Final Prospectus and any amendment or supplement thereto and other customary matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings and (B) procedures shall be brought down to a date no more than three business days prior to such Closing Date, except as otherwise agreed by the Representatives.
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is finalized and distributed to any Underwriter, or shall have occurred at such later time as shall have been consented to by the Representatives. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission.
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(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in either U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical or inadvisable to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the Nasdaq Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) Opinion and 10b-5 Statement of Counsel for the Company. The Representatives shall have received an opinion and 10b-5 statement, dated such Closing Date, of Baker Botts L.L.P., counsel for the Company, in form and substance reasonably satisfactory to the Representatives.
(e) Opinion and 10b-5 Statement of Counsel for Underwriters. The Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions and 10b-5 statement, dated such Closing Date, with respect to such matters as the Representatives may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) Officers’ Certificate. The Representatives shall have received a certificate, dated such Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 456(a) or (b); and, subsequent to the date of the most recent financial statements in the General Disclosure Package and the Final Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package and the Final Prospectus or as described in such certificate.
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(g) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall have received lock-up agreements in the form set forth on Exhibit B hereto from each executive officer, director, stockholder and other equity holder of the Company specified in Schedule C hereto.
(h) Reserve Engineer Letters. The Representatives shall have received “comfort letters,” dated the date hereof, of Ryder Scott, independent petroleum engineers, in form and substance reasonably satisfactory to the Representatives, covering the oil and gas reserves information of the Company included or incorporated by reference in the Registration Statements and the General Disclosure Package and other customary matters. In addition, on each Closing Date, the Underwriters shall have received from Ryder Scott “bring-down comfort letters” dated such Closing Date addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, in the form of the “comfort letters” delivered on the date hereof, except that (i) they shall cover the oil and gas reserves information of the Company included or incorporated by reference in the Registration Statements and the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three business days prior to the Closing Date, except as otherwise agreed by the Representatives.
(i) CFO Certificate. On the date of this Agreement and on each Closing Date, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in the General Disclosure Package and the Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.
The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. Citigroup may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise.
8. Indemnification and Contribution.
(a) Indemnification of Underwriters by Company. The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through any Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (c) below.
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In connection with the offer and sale of the Reserved Securities, the Company agrees to indemnify and hold harmless Citigroup, its Affiliates and selling agents and each person, if any, who controls Citigroup within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities insofar as such losses, claims, damages or liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending, investigating or settling any such action or claim), (i) arising out of any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to Invitees in connection with the offering of the Reserved Securities or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) caused by the failure of any Invitee to pay for and accept delivery of Reserved Securities which have been orally confirmed for purchase by any Invitee by 11:59 P.M. (New York City time) on the date of the Agreement or (iii) related to, or arising out of or in connection with, the offering of the Reserved Securities, other than losses, claims, damages or liabilities that are finally judicially determined to have resulted from the bad faith or gross negligence of Citigroup.
(b) Indemnification of Company. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”) against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through any Representative specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Final Prospectus furnished on behalf of each Underwriter: the concession figure appearing in the fifth paragraph in the “Underwriting” section and the information contained in the 15th and 16th paragraphs in the “Underwriting” section.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or (c) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such action is brought against any indemnified party and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
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(d) Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a), (b) or (c) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date, Citigroup may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements satisfactory to Citigroup and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 10 (provided that if such default occurs with respect to Optional Securities after the First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior to such termination). As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
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10. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, The New York Stock Exchange, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred and shall be continuing, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the judgment of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Offered Securities on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package or the Final Prospectus.
11. Survival of Certain Representations and Obligations. The respective indemnities, rights of contribution, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 or Section 10 or the occurrence of any event specified in Section 7(c)(iv), (vi), (vii) or (viii) hereof, the Company will reimburse the Underwriters for all accountable out-of-pocket expenses (including reasonable, documented fees and disbursements of counsel) actually and reasonably incurred by them in connection with the offering of the Offered Securities, and the respective obligations of the Company and the Underwriters pursuant to Section 8 hereof shall remain in effect; provided, however, in the case of a defaulting Underwriter pursuant to Section 9 hereof, the Company shall not be obligated to reimburse such defaulting Underwriter. In addition, if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect.
12. Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives, c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, Attention: General Counsel (facsimile: 646-291-1469), c/o Barclays Capital Inc., 745 7th Avenue, New York, NY 10019, Attn: Syndicate Registration, Fax: 646-834-8133; or, if sent to the Company, will be mailed, delivered or sent and confirmed to it at BKV Corporation, 1200 17th Street, Suite 2100, Denver, CO 80202, Attention: Chief Legal Officer, with copies to Baker Botts L.L.P., 2001 Ross Avenue, Suite 900, Dallas, Texas 75201, Attention: Samantha H. Crispin and M. Preston Bernhisel; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
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13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder.
14. Representation of Underwriters. The Representatives will act for the several Underwriters in connection with the transactions contemplated by this Agreement, and any action under this Agreement taken by the Representatives jointly or by Citigroup will be binding upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. The words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
16. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representatives have been retained solely to act as underwriters in connection with the sale of the Offered Securities and that no fiduciary, advisory or agency relationship between the Company, on the one hand, and the Representatives, on the other, has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised or are advising the Company on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representatives, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representatives and their affiliates are engaged in a broad range of transactions, which may involve interests that differ from those of the Company and that the Representatives have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
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(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
17. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
18. Waiver of Jury Trial. Each of the Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 19:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
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| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Pages Follow]
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If the foregoing is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||
| BKV Corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Underwriting Agreement]
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. |
| Citigroup Global Markets Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Barclays Capital Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Acting on behalf of themselves and as the Representatives of the several Underwriters. |
[Signature Page to Underwriting Agreement]
SCHEDULE A
| Underwriter | Total Number of Firm Securities to be Purchased | |
| Citigroup Global Markets Inc. | ||
| Barclays Capital Inc. | ||
| Evercore Group L.L.C. | ||
| Jefferies LLC | ||
| Mizuho Securities USA LLC | ||
| KeyBanc Capital Markets Inc. | ||
| Susquehanna Financial Group, LLLP | ||
| Tudor, Pickering, Holt & Co. Securities, LLC | ||
| Truist Securities, Inc. | ||
| Citizens JMP Securities, LLC | ||
| SMBC Nikko Securities America, Inc. | ||
| Total |
Schedule A-1
SCHEDULE B
1. General Use Free Writing Prospectuses (included in the General Disclosure Package)
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
1. [None.]
2. Other Information Included in the General Disclosure Package
The following information is also included in the General Disclosure Package:
1. [The initial price to the public of the Offered Securities.]
Schedule B-1
SCHEDULE C
List of Individuals and Entities Subject to Lock-Up Agreement
Christopher P. Kalnin
John T. Jimenez
Eric S. Jacobsen
Barry S. Turcotte
Lindsay B. Larrick
Ethan Ngo
Chanin Vongkusolkit
Somruedee Chaimongkol
Joseph R. Davis
Akaraphong Dayananda
Kirana Limpaphayom
Carla S. Mashinski
Thiti Mekavichai
Charles C. Miller III
Sunit S. Patel
Anon Sirisaengtaksin
Sinon Vongkusolkit
David Tameron
Lauren Read
Sam French
Brad Birkelo
Matthew J. Johnson
Rebecca A. Kalnin
Simon Bowman
Travis Lauer
Mary Rita Valois
Samid Hoda
Banpu North America Corporation
Schedule C-1
Exhibit A
Form of Press Release
BKV Corporation
[Date]
BKV Corporation (the “Company”) announced today that Citigroup Global Markets Inc. and Barclays Capital Inc, the active book-running managers in the Company’s recent public sale of [ · ] shares of common stock, are [waiving][releasing] a lock-up restriction with respect to [ · ] shares of the Company’s common stock held by [certain officers or directors][an officer or director] of the Company. The [waiver][release] will take effect on [ · ], and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
A-1
Exhibit B
Form of Lock-Up Agreement
[Insert date]
BKV Corporation
1200 17th Street, Suite 2100
Denver, Colorado 80202
Citigroup Global Markets Inc.
Barclays Capital Inc.
| As Representatives of the several Underwriters |
| c/o | Citigroup Global Markets Inc. | |
| 388 Greenwich Street | ||
| New York, New York 10013 |
| c/o | Barclays Capital Inc. | |
| 745 Seventh Avenue | ||
| New York, New York 10019 |
Ladies and Gentlemen:
As an inducement to the underwriters to execute the Underwriting Agreement (the “Underwriting Agreement”), pursuant to which an offering (the “Offering”) will be made that is intended to result in the establishment of a public market for the common stock, par value $0.01 per share (the “Securities”), of BKV Corporation, a Delaware corporation, and any successor (by merger or otherwise) thereto (the “Company”), the undersigned hereby agrees that during the period commencing on the date hereof and ending 180 days after the public offering date set forth on the final prospectus used to sell the Securities pursuant to the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any Securities or securities convertible into or exchangeable or exercisable for any Securities, enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities, whether any such aforementioned transaction is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of Citigroup Global Markets Inc. and Barclays Capital Inc. (collectively, the “Representatives”). In addition, the undersigned agrees that, without the prior written consent of the Representatives, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any Securities or any security convertible into or exercisable or exchangeable for the Securities. Capitalized terms not defined but otherwise used herein shall have the meanings set forth in the Underwriting Agreement.
B-1
Any Securities received upon exercise of options granted to the undersigned will also be subject to this Lock-Up Agreement. Any Securities acquired by the undersigned in the open market will not be subject to this Lock-Up Agreement. Notwithstanding the foregoing, and subject to the conditions below, as applicable, the undersigned may transfer Securities without the prior written consent of the Representatives as follows:
| (i) | as a bona fide gift or gifts, including a charitable contribution; |
| (ii) | by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a family member of the undersigned; |
| (iii) | by operation of law, such as pursuant to a qualified domestic order or as required by a divorce settlement; |
| (iv) | to a family member of the undersigned or any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or a family member of the undersigned; |
| (v) | if the undersigned is a corporation, limited liability company, partnership, trust or other entity, to its stockholders, members, partners or trust beneficiaries as part of a distribution, or to any corporation, partnership or other entity that is its affiliate; |
| (vi) | to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase Securities (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement or exercise of such restricted stock units, options, warrants or rights, provided that any such Securities received upon such exercise, vesting or settlement shall be subject to the terms of this Lock-Up Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the General Disclosure Package and the Final Prospectus; or |
| (vii) | pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock; provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Securities shall remain subject to the provisions of this Lock-Up Agreement, |
provided that (A) in the case of any transfer or distribution pursuant to clause (i), (ii), (iii), (iv) or (v), the donee, transferee, devisee or distributee agrees to be bound in writing by the terms of this Lock-Up Agreement prior to such transfer, (B) in the case of any transfer or distribution pursuant to clause (i), (ii) or (iv), such transfer shall not involve a disposition for value and (C) in the case of any transfer or distribution pursuant to clause (i), (ii) or (iv), no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), reporting a reduction in beneficial ownership of Securities shall be required or shall be voluntarily made in connection with such transfer (other than a filing on a Form 5 made after the expiration of the Lock-Up Period). For purposes of this Lock-Up Agreement, a “family member” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin.
B-2
Notwithstanding anything herein to the contrary, the undersigned may enter into or amend a written trading plan established pursuant to Rule 10b5-1 of the Exchange Act during the Lock-Up Period; provided that no direct or indirect offers, pledges, sales, contracts to sell, sales of any option or contract to purchase, purchases of any option or contract to sell, grants of any option, right or warrant to purchase, loans, or other transfers or disposals of any Securities or any securities convertible into or exercisable or exchangeable for Securities may be effected pursuant to such plan during the Lock-Up Period; and provided that no public announcement or filing under the Exchange Act regarding the establishment or amendment of such plan shall be required of or voluntarily made by or on behalf of the undersigned or the Company during the Lock-Up Period.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Securities if such transfer would constitute a violation or breach of this Lock-Up Agreement.
If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing restrictions in this Lock-Up Agreement shall be equally applicable to any issuer-directed Securities the undersigned may purchase in the Offering.
If the undersigned is an officer or director of the Company, (i) the Representatives agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Securities, the Representatives will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
This Lock-Up Agreement shall be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.
Notwithstanding anything to the contrary contained herein, this Lock-Up Agreement will automatically terminate and the undersigned will be released from all obligations hereunder upon the earliest to occur, if any, of: (i) the Representatives, on the one hand, or the Company, on the other hand, informs the other in writing that it has determined not to proceed with the Offering; (ii) the date the Company files an application with the Commission to withdraw the registration statement related to the Offering; or (iii) the date the Underwriting Agreement is terminated (other than the provisions thereof which survive termination) prior to payment for and delivery of the shares of Common Stock to be sold thereunder.
B-3
This Lock-Up Agreement shall not be amended without the prior written consent of the undersigned.
This Lock-Up Agreement and any claim, controversy or dispute arising under or related to this Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The undersigned hereby consents to receipt of this Lock-Up Agreement in electronic form and understands and agrees that this Lock-Up Agreement may be signed electronically. In the event that any signature is delivered by facsimile transmission, electronic mail or otherwise by electronic transmission evidencing an intent to sign this Lock-Up Agreement, such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original. Execution and delivery of this Lock-Up Agreement by facsimile transmission, electronic mail or other electronic transmission is legal, valid and binding for all purposes.
[Signature page follows]
B-4
Very truly yours,
| IF AN INDIVIDUAL: | IF AN ENTITY: | |||
| (please print complete name of entity) | ||||
| By: | By: | |||
| (duly authorized signature) | (duly authorized signature) | |||
| Name: | Name: | |||
| (please print full name) | (please print full name) | |||
| Address: | Address: | |||
[Signature Page to Lock-Up Agreement]
Exhibit 5.1
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2001 Ross Avenue
TEL +1 214.953.6500 FAX +1 214.953.6503 BakerBotts.com |
AUSTIN BRUSSELS DALLAS DUBAI HOUSTON london
|
NEW YORK PALO ALTO RIYADH SAN FRANCISCO Singapore WASHINGTON
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, 2024
BKV Corporation
1200 17th Street, Suite 2100
Denver, Colorado 80202
Ladies and Gentlemen:
We have acted as counsel for BKV Corporation, a Delaware corporation (the “Company”), in connection with the proposed offer and sale (the “Offering”) by the Company of up to shares of its Common Stock, par value $0.01 per share (the “Common Stock”), including up to shares of Common Stock issuable upon exercise by the underwriters of an option to purchase additional shares of Common Stock, pursuant to a prospectus (the “Prospectus”) forming a part of a registration statement on Form S-1 (File No. 333-268469) (such Registration Statement, as amended at the effective date thereof, being referred to herein as the “Registration Statement”), originally filed with the Securities and Exchange Commission (the “Commission”) on November 18, 2022 under the Securities Act of 1933, as amended (the “Securities Act”), as described in the Registration Statement. At your request, this opinion letter is being furnished to you for filing as Exhibit 5.1 to the Registration Statement.
The term “Common Stock” shall include any additional shares of common stock of the Company registered pursuant to Rule 462(b) under the Securities Act in connection with the offering contemplated by the Registration Statement.
In our capacity as your counsel in the connection referred to above and as a basis for the opinion hereinafter expressed, we have examined (i) the form of underwriting agreement filed as an exhibit to the Registration Statement, (ii) the form of Second Amended and Restated Certificate of Incorporation of the Company, filed as an exhibit to the Registration Statement, (iii) the form of Second Amended and Restated Bylaws of the Company, filed as an exhibit to the Registration Statement, (iv) records of proceedings of the Company’s Board of Directors, including committees thereof, with respect to the filing of the Registration Statement and the issuance of the Common Stock, (v) originals, or copies certified or otherwise identified, of certificates of public officials and of representatives of the Company, (vi) the Registration Statement and the Prospectus and (vii) statutes and other instruments and documents as we have deemed necessary or advisable for the purpose of rendering the opinion hereinafter expressed.
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| BKV Corporation | - 2 - | , 2024 |
In connection with the opinion hereinafter expressed, we have assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective; (ii) the Second Amended and Restated Certificate of Incorporation and the Second Amended and Restated Bylaws of the Company, in the forms filed as exhibits to the Registration Statement, will have become effective; (iii) all Common Stock will be issued and sold in the manner stated in the Registration Statement and the Prospectus; (iv) a definitive underwriting agreement, in the form filed as an exhibit to the Registration Statement, with respect to the sale of shares of Common Stock offered in the Offering will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and (v) the certificates, if any, for the Common Stock will conform to the specimens thereof examined by us and will have been duly countersigned by a transfer agent and duly registered by a registrar of the Common Stock, or, if uncertificated, valid book-entry notations will have been made in the stock register of the Company in accordance with the provisions of the governing documents of the Company.
In addition, in giving the opinion hereinafter expressed, we have relied, to the extent we deemed proper, without independent investigation, upon certificates, statements and other representations of officers and other representatives of the Company and of governmental and public officials with respect to the accuracy and completeness of the material factual matters contained therein or covered thereby, and we have assumed, without independent investigation, that the signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof, that such original copies are authentic and complete and that all information submitted to us was accurate and complete.
Based upon and subject to the foregoing, we are of the opinion that when such Common Stock has been issued and delivered in accordance with the terms of a definitive underwriting agreement approved by the Board of Directors of the Company upon payment of the consideration therefor provided for therein, such Common Stock will be duly authorized, validly issued, fully paid and nonassessable.
The opinion set forth above is limited in all respects to matters of the General Corporation Law of the State of Delaware, and applicable reported judicial decisions, rules and regulations interpreting and implementing those laws, in each case, as in effect on the date hereof. We express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our Firm under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
Exhibit 10.14
BKV Corporation
FORM OF
2024 EQUITY and INCENTIVE Compensation PLAN
1. Purpose. The purpose of this Plan is to permit award grants to non-employee Directors, officers and other employees of the Company and its Subsidiaries, and to provide to such persons incentives and rewards for service and/or performance.
2. Definitions. As used in this Plan:
(a) “Appreciation Right” means a right granted pursuant to Section 5 of this Plan.
(b) “Base Price” means the price, determined by the Committee in its sole discretion, to be used as the basis for determining the Spread upon the exercise of an Appreciation Right.
(c) “Board” means the Board of Directors of the Company.
(d) “Cash Incentive Award” means a cash award granted pursuant to Section 8 of this Plan.
(e) “Change in Control” has the meaning set forth in Section 12 of this Plan.
(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations thereunder, as such law and regulations may be amended from time to time.
(g) “Committee” means the Compensation Committee of the Board (or its successor(s)), or any other committee of the Board designated by the Board to administer this Plan pursuant to Section 10 of this Plan.
(h) “Common Shares” means the shares of common stock, par value $0.01 per share, of the Company or any security into which such common shares may be changed by reason of any transaction or event of the type referred to in Section 11 or Section 12 of this Plan.
(i) “Company” means BKV Corporation, a Delaware corporation, and its successors.
(j) “Company Voting Securities” means the voting securities of the Company entitled to vote generally in the election of Directors.
(k) “Date of Grant” means the date provided for by the Committee on which a grant of Option Rights, Appreciation Rights, Performance Shares, Performance Units, Cash Incentive Awards, or other awards contemplated by Section 9 of this Plan, or a grant or sale of Restricted Shares, Restricted Stock Units, or other awards contemplated by Section 9 of this Plan, will become effective (which date will not be earlier than the date on which the Committee takes action with respect thereto).
(l) “Director” means a member of the Board.
(m) “Effective Date” has the meaning set forth in Section 20 of this Plan.
(n) “Evidence of Award” means an agreement, certificate, resolution or other type or form of writing or other evidence approved by the Committee that sets forth the terms and conditions of the awards granted under this Plan. An Evidence of Award may be in an electronic medium, may be limited to notation on the books and records of the Company and, unless otherwise determined by the Committee, need not be signed by a representative of the Company or a Participant.
(o) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time.
(p) “Exempt Person” means each of Banpu Public Company Limited, a public company incorporated in and existing under the Laws of Thailand, and any corporation, company or other entity that is wholly-owned by Banpu Public Company Limited, as of the relevant time.
(q) “Management Objectives” means the measurable performance objective or objectives established pursuant to this Plan for Participants who have received grants of Performance Shares, Performance Units or Cash Incentive Awards or, when so determined by the Committee, Option Rights, Appreciation Rights, Restricted Shares, Restricted Stock Units, dividend equivalents or other awards pursuant to this Plan. If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which it conducts its business, or other events or circumstances render the Management Objectives unsuitable, the Committee may in its discretion modify such Management Objectives or the goals or actual levels of achievement regarding the Management Objectives, in whole or in part, as the Committee deems appropriate and equitable.
(r) “Market Value per Share” means, as of any particular date, (i) for the purpose of determining the tax withholding due upon the vesting or settlement of Restricted Shares, Restricted Stock Units, Performance Shares and Performance Units and the related purpose of valuing Common Shares withheld from such awards to satisfy tax withholding obligations, the closing price of a Common Share as reported on the New York Stock Exchange on the trading day immediately preceding the day that such award vests as reported for that date (or, if there are no sales on such date, on the next preceding trading day during which a sale occurred); or (ii) for all other purposes under this Plan, the closing price of a Common Share as reported for that date on the New York Stock Exchange (or, if there are no sales on such date, on the next preceding trading day during which a sale occurred); provided, that in each case of (i) and (ii), if the Common Shares are not then listed on the New York Stock Exchange, then as reported on the principal U.S. national or regional securities exchange on which such securities are so listed or quoted, or if such securities are not so listed or quoted on a U.S. national or regional securities exchange or if for any date the Market Value per Share is not determinable by any of the foregoing means, including if there is no regular public trading market for the Common Shares, the per share fair market value of the Common Shares as determined in good faith by the Board.
(s) “Optionee” means the optionee named in an Evidence of Award evidencing an outstanding Option Right.
(t) “Option Price” means the purchase price payable on exercise of an Option Right.
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(u) “Option Right” means the right to purchase Common Shares upon exercise of an award granted pursuant to Section 4 of this Plan.
(v) “Participant” means a person who is selected by the Committee to receive benefits under this Plan and who is at the time (i) a non-employee Director, or (ii) an officer or other employee of the Company or any Subsidiary.
(w) “Performance Period” means, in respect of a Cash Incentive Award, Performance Share or Performance Unit, a period of time established pursuant to Section 8 of this Plan within which the Management Objectives relating to such Cash Incentive Award, Performance Share or Performance Unit are to be achieved.
(x) “Performance Share” means a bookkeeping entry that records the equivalent of one Common Share awarded pursuant to Section 8 of this Plan.
(y) “Performance Unit” means a bookkeeping entry awarded pursuant to Section 8 of this Plan that records a unit equivalent to $1.00 or such other value as is determined by the Committee.
(z) “Plan” means this BKV Corporation 2024 Equity and Incentive Compensation Plan, as may be amended or amended and restated from time to time.
(aa) “Predecessor Plan” means the BKV Corporation 2021 Long Term Incentive Plan, adopted January 1, 2021, as amended.
(bb) “Restricted Shares” means Common Shares granted or sold pursuant to Section 6 of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers has expired.
(cc) “Restricted Stock Units” means an award made pursuant to Section 7 of this Plan of the right to receive Common Shares, cash or a combination thereof at the end of the applicable Restriction Period.
(dd) “Restriction Period” means the period of time during which Restricted Stock Units are subject to restrictions set forth in an Evidence of Award (including the relevant vesting schedules therein), as provided in Section 7 of this Plan.
(ee) “Shareholder” means an individual or entity that owns one or more Common Shares.
(ff) “Spread” means the excess of the Market Value per Share on the date when an Appreciation Right is exercised over the Base Price provided for with respect to the Appreciation Right.
(gg) “Subsidiary” means a corporation, company or other entity (i) more than 60% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture, limited liability company, unincorporated association or other similar entity), but more than 60% of whose ownership interest representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company.
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(hh) “Voting Power” means, at any time, the combined voting power of the then-outstanding securities entitled to vote generally in the election of Directors in the case of the Company or members of the board of directors or similar body in the case of another entity.
3. Shares Available Under this Plan.
| (a) | Maximum Shares Available Under this Plan. |
| (i) | Subject to adjustment as provided in Section 11 of this Plan and the share counting rules set forth in Section 3(b) of this Plan, the number of Common Shares available under this Plan for awards of (A) Option Rights or Appreciation Rights, (B) Restricted Shares, (C) Restricted Stock Units, (D) Performance Shares or Performance Units, (E) awards contemplated by Section 9 of this Plan, or (F) dividend equivalents paid with respect to awards made under this Plan will not exceed in the aggregate 5,000,000 Common Shares. Such shares may be shares of original issuance or treasury shares or a combination of the foregoing. |
| (ii) | Subject to the share counting rules set forth in Section 3(b) of this Plan, the aggregate number of Common Shares available under Section 3(a)(i) of this Plan will be reduced by one Common Share for every one Common Share subject to an award granted under this Plan. |
(b) Share Counting Rules.
| (i) | Except as provided in Section 22 of this Plan, if any award granted under this Plan (in whole or in part) is cancelled or forfeited, expires, is settled for cash, or is unearned, the Common Shares subject to such award will, to the extent of such cancellation, forfeiture, expiration, cash settlement, or unearned amount, again be available under Section 3(a)(i) above. |
| (ii) | Notwithstanding anything to the contrary contained in this Plan: (A) Common Shares withheld by the Company, tendered or otherwise used in payment of the Option Price of an Option Right will not be added (or added back, as applicable) to the aggregate number of Common Shares available under Section 3(a)(i) of this Plan; (B) Common Shares withheld by the Company, tendered or otherwise used to satisfy tax withholding will not be added (or added back, as applicable) to the aggregate number of Common Shares available under Section 3(a)(i) of this Plan; (C) Common Shares subject to a share-settled Appreciation Right that are not actually issued in connection with the settlement of such Appreciation Right on the exercise thereof will not be added (or added back, as applicable) to the aggregate number of Common Shares available under Section 3(a)(i) of this Plan; and (D) Common Shares reacquired by the Company on the open market or otherwise using cash proceeds from the exercise of Option Rights will not be added (or added back, as applicable) to the aggregate number of Common Shares available under Section 3(a)(i) of this Plan. |
| (iii) | If, under this Plan, a Participant has elected to give up the right to receive compensation in exchange for Common Shares based on fair market value, such Common Shares will not count against the aggregate limit under Section 3(a)(i) of this Plan. |
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(c) Non-Employee Director Compensation Limit. Notwithstanding anything to the contrary contained in this Plan, in no event will any non-employee Director in any one calendar year be granted compensation for such service having an aggregate maximum value (measured at the Date of Grant as applicable, and calculating the value of any awards based on the grant date fair value for financial reporting purposes) in excess of $750,000.
4. Option Rights. The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Participants of Option Rights. Each such grant may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:
(a) Each grant will specify the number of Common Shares to which it pertains subject to the limitations set forth in Section 3 of this Plan.
(b) Each grant will specify an Option Price per Common Share, which Option Price (except with respect to awards under Section 22 of this Plan) may not be less than the Market Value per Share on the Date of Grant.
(c) Each grant will specify whether the Option Price will be payable (i) in cash, by check acceptable to the Company or by wire transfer of immediately available funds, (ii) by the actual or constructive transfer to the Company of Common Shares owned by the Optionee having a value at the time of exercise equal to the total Option Price, (iii) subject to any conditions or limitations established by the Committee, by the withholding of Common Shares otherwise issuable upon exercise of an Option Right pursuant to a “net exercise” arrangement (it being understood that, solely for purposes of determining the number of treasury shares held by the Company, the Common Shares so withheld will not be treated as issued and acquired by the Company upon such exercise), (iv) by a combination of such methods of payment, or (v) by such other methods as may be approved by the Committee.
(d) To the extent permitted by law, any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of some or all of the Common Shares to which such exercise relates.
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(e) Each grant will specify the period or periods of continuous service by the Optionee with the Company or any Subsidiary, if any, that is necessary before any Option Rights or installments thereof will vest. Option Rights may provide for continued vesting or the earlier vesting of such Option Rights, including in the event of the retirement, death, disability or termination of employment or service of a Participant or in the event of a Change in Control.
(f) Any grant of Option Rights may specify Management Objectives regarding the vesting of such rights.
(g) Option Rights granted under this Plan are not intended to qualify under Section 422 of the Code or any successor provision.
(h) No Option Right will be exercisable more than 10 years from the Date of Grant. The Committee may provide in any Evidence of Award for the automatic exercise of an Option Right upon such terms and conditions as established by the Committee.
(i) Option Rights granted under this Plan shall not provide for any dividends or dividend equivalents thereon.
(j) Each grant of Option Rights will be evidenced by an Evidence of Award. Each Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve.
5. Appreciation Rights.
(a) The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting to any Participant of Appreciation Rights. An Appreciation Right will be the right of the Participant to receive from the Company an amount determined by the Committee, which will be expressed as a percentage of the Spread (not exceeding 100%) at the time of exercise.
(b) Each grant of Appreciation Rights may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:
| (i) | Each grant may specify that the amount payable on exercise of an Appreciation Right will be paid by the Company in cash, Common Shares or any combination thereof. |
| (ii) | Each grant will specify the period or periods of continuous service by the Participant with the Company or any Subsidiary, if any, that is necessary before the Appreciation Rights or installments thereof will vest. Appreciation Rights may provide for continued vesting or the earlier vesting of such Appreciation Rights, including in the event of the retirement, death, disability or termination of employment or service of a Participant or in the event of a Change in Control. |
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| (iii) | Any grant of Appreciation Rights may specify Management Objectives regarding the vesting of such Appreciation Rights. |
| (iv) | Appreciation Rights granted under this Plan shall not provide for any dividends or dividend equivalents thereon. |
| (v) | Each grant of Appreciation Rights will be evidenced by an Evidence of Award. Each Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve. |
(c) Also, regarding Appreciation Rights:
| (i) | Each grant will specify in respect of each Appreciation Right a Base Price, which (except with respect to awards under Section 22 of this Plan) may not be less than the Market Value per Share on the Date of Grant; and |
| (ii) | No Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant. The Committee may provide in any Evidence of Award for the automatic exercise of an Appreciation Right upon such terms and conditions as established by the Committee. |
6. Restricted Shares. The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the grant or sale of Restricted Shares to Participants. Each such grant or sale may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:
(a) Each such grant or sale will constitute an immediate transfer of the ownership of Common Shares to the Participant in consideration of the performance of services, entitling such Participant to voting, dividend and other ownership rights, but subject to the substantial risk of forfeiture and restrictions on transfer hereinafter described.
(b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share on the Date of Grant.
(c) Each such grant or sale will provide that the Restricted Shares covered by such grant or sale will be subject to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code for a period to be determined by the Committee on the Date of Grant or until achievement of Management Objectives referred to in Section 6(e) of this Plan.
(d) Each such grant or sale will provide that during or after the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Shares will be prohibited or restricted in the manner and to the extent prescribed by the Committee on the Date of Grant (which restrictions may include rights of repurchase or first refusal of the Company or provisions subjecting the Restricted Shares to a continuing substantial risk of forfeiture while held by any transferee).
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(e) Any grant of Restricted Shares may specify Management Objectives regarding the vesting of such Restricted Shares.
(f) Notwithstanding anything to the contrary contained in this Plan, Restricted Shares may provide for continued vesting or the earlier vesting of such Restricted Shares, including in the event of the retirement, death, disability or termination of employment or service of a Participant or in the event of a Change in Control.
(g) Any such grant or sale of Restricted Shares may require that any and all dividends or other distributions paid thereon during the period of such restrictions be automatically deferred and/or reinvested in additional Restricted Shares, which will be subject to the same restrictions as the underlying award. For the avoidance of doubt, any such dividends or other distributions on Restricted Shares shall be deferred until, and paid contingent upon, the vesting of such Restricted Shares.
(h) Each grant or sale of Restricted Shares will be evidenced by an Evidence of Award. Each Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve. Unless otherwise directed by the Committee, (i) all certificates representing Restricted Shares will be held in custody by the Company until all restrictions thereon will have lapsed, together with a stock power or powers executed by the Participant in whose name such certificates are registered, endorsed in blank and covering such shares or (ii) all Restricted Shares will be held at the Company’s transfer agent in book entry form with appropriate restrictions relating to the transfer of such Restricted Shares.
7. Restricted Stock Units. The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting or sale of Restricted Stock Units to Participants. Each such grant or sale may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:
(a) Each such grant or sale will constitute the agreement by the Company to deliver Common Shares or cash, or a combination thereof, to the Participant in the future in consideration of the performance of services, but subject to the fulfillment of such conditions (which may include achievement regarding Management Objectives) during the Restriction Period as the Committee may specify.
(b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Market Value per Share on the Date of Grant.
(c) Notwithstanding anything to the contrary contained in this Plan, Restricted Stock Units may provide for continued vesting or the earlier lapse or other modification of the Restriction Period, including in the event of the retirement, death, disability or termination or employment of service of a Participant or in the event of a Change in Control, in each case as determined by the Committee.
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(d) During the Restriction Period, the Participant will have no right to transfer any rights under his or her award and will have no rights of ownership in the Common Shares deliverable upon payment of the Restricted Stock Units and will have no right to vote them, but the Board may, at or after the Date of Grant, authorize the payment of dividend equivalents on such Restricted Stock Units, on a deferred and contingent basis, either in cash or in additional Common Shares; provided, however, that dividend equivalents or other distributions on Common Shares underlying Restricted Stock Units shall be deferred until and paid contingent upon the vesting of such Restricted Stock Units.
(e) Each grant or sale of Restricted Stock Units will specify the time and manner of payment of the Restricted Stock Units that have been earned. Each grant or sale will specify that the amount payable with respect thereto will be paid by the Company in Common Shares or cash, or a combination thereof.
(f) Each grant or sale of Restricted Stock Units will be evidenced by an Evidence of Award. Each Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve.
8. Cash Incentive Awards, Performance Shares and Performance Units. The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting of Cash Incentive Awards, Performance Shares and Performance Units. Each such grant may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:
(a) Each grant will specify the number or amount of Performance Shares or Performance Units, or amount payable with respect to a Cash Incentive Award, to which it pertains, which number or amount may be subject to adjustment to reflect changes in compensation or other factors.
(b) The Performance Period with respect to each Cash Incentive Award or grant of Performance Shares or Performance Units will be such period of time as will be determined by the Committee, which may be subject to continued vesting or earlier lapse or other modification, including in the event of the retirement, death, disability or termination of employment or service of a Participant or in the event of a Change in Control, in each case as determined by the Committee.
(c) Each grant of a Cash Incentive Award, Performance Shares or Performance Units will specify Management Objectives regarding the earning of the award.
(d) Each grant will specify the time and manner of payment of a Cash Incentive Award, Performance Shares or Performance Units that have been earned.
(e) The Board may, on the Date of Grant of Performance Shares or Performance Units, provide for the payment of dividend equivalents to the holder thereof either in cash or in additional Common Shares, which dividend equivalents shall be subject to deferral and payment on a contingent basis based on the Participant’s earning and vesting of the Performance Shares or Performance Units, as applicable, with respect to which such dividend equivalents are paid.
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(f) Each grant of a Cash Incentive Award, Performance Shares or Performance Units will be evidenced by an Evidence of Award. Each Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve.
9. Other Awards.
(a) Subject to applicable law and the applicable limits set forth in Section 3 of this Plan, the Committee may authorize the grant to any Participant of Common Shares or such other awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of such shares, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, awards with value and payment contingent upon performance of the Company or specified subsidiaries, affiliates or other business units thereof or any other factors designated by the Committee, and awards valued by reference to the book value of the Common Shares or the value of securities of, or the performance of specified subsidiaries or affiliates or other business units of the Company. The Committee will determine the terms and conditions of such awards. Common Shares delivered pursuant to an award in the nature of a purchase right granted under this Section 9 will be purchased for such consideration, paid for at such time, by such methods, and in such forms, including, without limitation, Common Shares, other awards, notes or other property, as the Committee determines.
(b) Cash awards, as an element of or supplement to any other award granted under this Plan, may also be granted pursuant to this Section 9.
(c) The Committee may authorize the grant of Common Shares as a bonus, or may authorize the grant of other awards in lieu of obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, subject to such terms as will be determined by the Committee in a manner that complies with Section 409A of the Code.
(d) The Committee may, at or after the Date of Grant, authorize the payment of dividends or dividend equivalents on awards granted under this Section 9 on a deferred and contingent basis, either in cash or in additional Common Shares; provided, however, that dividend equivalents or other distributions on Common Shares underlying awards granted under this Section 9 shall be deferred until and paid contingent upon the earning and vesting of such awards.
(e) Each grant of an award under this Section 9 will be evidenced by an Evidence of Award. Each such Evidence of Award will be subject to this Plan and will contain such terms and provisions, consistent with this Plan, as the Committee may approve, and will specify the time and terms of delivery of the applicable award.
(f) Notwithstanding anything to the contrary contained in this Plan, awards under this Section 9 may provide for the earning or vesting of, or earlier elimination of restrictions applicable to, such award, including in the event of the retirement, death, disability or termination of employment or service of a Participant or in the event of a Change in Control.
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10. Administration of this Plan.
(a) This Plan will be administered by the Committee; provided, that, with respect to awards to non-employee Directors, the Board shall have the same powers and authorities as the Committee and may, in its discretion, exercise such powers in lieu of the Committee.
(b) The interpretation and construction by the Board or the Committee, as applicable, of any provision of this Plan (including, without limitation, Section 11 and Section 18) or of any Evidence of Award (or related documents) and any determination by the Board or the Committee pursuant to any provision of this Plan or of any such agreement, notification or document will be final and conclusive. No member of the Board or the Committee shall be liable for any such action or determination made in good faith. In addition, each of the Board and Committee is authorized to take any action it determines in its sole discretion to be appropriate subject only to the express limitations contained in this Plan, and no authorization in any Plan section or other provision of this Plan is intended or may be deemed to constitute a limitation on the authority of the Board or the Committee.
(c) To the extent permitted by law, the Committee may delegate to one or more officers of the Company such administrative duties or powers as it may deem advisable, and the Committee or any officer of the Company to whom duties or powers have been delegated as aforesaid, may employ, at the Company's cost and expense, one or more persons to render advice with respect to any responsibility the Committee or such officer may have under this Plan. The Committee may, by resolution, authorize one or more officers of the Company to do one or both of the following on the same basis as the Committee: (i) designate employees to be recipients of awards under this Plan; and (ii) determine the size of any such awards; provided, however, that (A) the Committee will not delegate such responsibilities to any such officer for awards granted to an employee who is an officer (for purposes of Section 16 of the Exchange Act), a Director, or a more than 10% “beneficial owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of any class of the Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act, as determined by the Committee in accordance with Section 16 of the Exchange Act; (B) the resolution providing for such authorization shall set forth the total number of Common Shares such officer(s) may grant; and (C) the officer(s) will report periodically to the Committee regarding the nature and scope of the awards granted pursuant to the authority delegated.
11. Adjustments. The Committee shall make or provide for such adjustments in the number of and kind of Common Shares covered by outstanding Option Rights, Appreciation Rights, Restricted Shares, Restricted Stock Units, Performance Shares and Performance Units granted hereunder and, if applicable, in the number of and kind of Common Shares covered by other awards granted pursuant to Section 9 of this Plan, in the Option Price and Base Price provided in outstanding Option Rights and Appreciation Rights, respectively, in Cash Incentive Awards, and in other award terms, as the Committee, in its sole discretion, exercised in good faith, determines is equitably required to prevent dilution or enlargement of the rights of Participants that otherwise would result from (a) any extraordinary cash dividend, stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (b) any merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or event , the Committee may provide in substitution for any or all outstanding awards under this Plan such alternative consideration (including cash), if any, as it, in good faith, may determine to be equitable in the circumstances and shall require in connection therewith the surrender of all awards so replaced in a manner that complies with Section 409A of the Code. In addition, for each Option Right or Appreciation Right with an Option Price or Base Price, respectively, greater than the consideration offered in connection with any such transaction or event, the Committee may in its discretion elect to cancel such Option Right or Appreciation Right without any payment to the person holding such Option Right or Appreciation Right. The Committee shall also make or provide for such adjustments in the number of Common Shares specified in Section 3 of this Plan as the Committee in its sole discretion, exercised in good faith, determines is appropriate to reflect any transaction or event described in this Section 11.
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12. Change in Control.
(a) Upon a Change in Control, the Committee, acting in its sole discretion without the consent or approval of any Participant, may (i) provide that an outstanding Award shall be assumed by, or a substitute award shall be granted by the surviving entity resulting from a transaction described in Section 12(b)(iii), (ii) provide for acceleration of the vesting and exercisability of, or lapse of restrictions, in whole or in part, with respect to, an Award and, if the transaction is a cash merger, provide for the termination of any portion of the Award that remains unexercised at the time of such transaction, (iii) cancel an Award in exchange for a cash payment in an amount that the Committee shall determine in its sole discretion is equal to the fair market value of such Award on the date of such event, which in the case of Option Rights or Appreciation Rights shall be the excess of the Market Value of Shares on such date over the Option Price or Base Price, as applicable, of such Award (it being understood that, for each Option Right or Appreciation Right with an Option Price or Base Price, respectively, greater than the consideration offered in connection with the Change in Control, the Committee may in its discretion elect to cancel such Option Right or Appreciation Right without any payment to the person holding such Option Right or Appreciation Right), or (iv) make such adjustments, if any, to the Awards then outstanding as the Committee deems appropriate to reflect such Change in Control. The Committee may effect one or more of such alternatives, which may vary among individual Participants and which may vary among Awards held by any individual Participant:
(b) For purposes of this Plan, except as may be otherwise prescribed by the Committee in an Evidence of Award made under this Plan, a “Change in Control” will be deemed to have occurred upon the occurrence (after the Effective Date) of any of the following events:
| (i) | the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of Company Voting Securities where such acquisition causes such Person to own 40% or more of the combined voting power of the then outstanding Company Voting Securities; provided, however, that for purposes of this subsection (a), the following acquisitions shall not be deemed to result in a Change in Control: (i) any acquisition by the Company or a wholly-owned subsidiary of the Company, (ii) any acquisition directly from the Company that is approved by the Board prior to the transaction, (iii) any acquisition by any Exempt Person or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a transaction that complies with clauses (A) and (B) of Section 12(b)(iii) below; |
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| (ii) | the replacement of a majority of the Board over a two–year period of the directors who constituted the Board at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the Board then still in office who either were members of such Board at the beginning of such period or whose election as a member of such Board was previously so approved; provided, that any such person whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of members of the Board or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered to have been so approved; |
| (iii) | the consummation of a reorganization, merger or consolidation or the sale or other disposition of all or substantially all of the assets of the Company, whether in one or a series of related transactions, (“Business Combination”) excluding, however, such a Business Combination pursuant to which (A) the individuals and entities who were the beneficial owners of the outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the entity resulting from such Business Combination in substantially the same proportions as their ownership of the Common Shares and Company Voting Securities immediately prior to such Business Combination (including, without limitation, an entity that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), and (B) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or |
| (iv) | approval by the Shareholders of a complete liquidation or dissolution of the Company except pursuant to a Business Combination that complies with clauses (A) and (B) of Section 12(b)(iii) above. |
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13. Detrimental Activity and Recapture Provisions. Any Evidence of Award may reference a clawback policy of the Company or provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any gain related to an award, or other provisions intended to have a similar effect, upon such terms and conditions as may be determined by the Committee from time to time, if a Participant, either (a) during employment or other service with the Company or a subsidiary, or (b) within a specified period after termination of such employment or service, engages in any detrimental activity, as described in the applicable Evidence of Award or such clawback policy. In addition, notwithstanding anything in this Plan to the contrary, any Evidence of Award or such clawback policy may also provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any Common Shares issued under and/or any other benefit related to an award, or other provisions intended to have a similar effect, including upon such terms and conditions as may be required by the Committee or under Section 10D of the Exchange Act and any applicable rules or regulations promulgated by the Securities and Exchange Commission or any national securities exchange or national securities association on which the Common Shares may be traded.
14. Non-U.S. Participants. In order to facilitate the making of any grant or combination of grants under this Plan, the Committee may provide for such special terms for awards to Participants who are foreign nationals or who are employed by the Company or any Subsidiary outside of the United States of America or who provide services to the Company or any Subsidiary under an agreement with a foreign nation or agency, as the Committee may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Committee may approve such supplements to or amendments, restatements or alternative versions of this Plan (including sub-plans) as it may consider necessary or appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for any other purpose, and the secretary or other appropriate officer of the Company may certify any such document as having been approved and adopted in the same manner as this Plan. No such special terms, supplements, amendments or restatements, however, will include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the Shareholders.
15. Transferability.
(a) Except as otherwise determined by the Committee, and subject to compliance with Section 17(b) of this Plan and Section 409A of the Code, no Option Right, Appreciation Right, Restricted Share, Restricted Stock Unit, Performance Share, Performance Unit, Cash Incentive Award, award contemplated by Section 9 of this Plan or dividend equivalents paid with respect to awards made under this Plan will be transferable by the Participant except by will or the laws of descent and distribution. In no event will any such award granted under this Plan be transferred for value. Where transfer is permitted, references to “Participant” shall be construed, as the Committee deems appropriate, to include any permitted transferee to whom such award is transferred. Except as otherwise determined by the Committee, Option Rights and Appreciation Rights will be exercisable during the Participant’s lifetime only by him or her or, in the event of the Participant’s legal incapacity to do so, by his or her guardian or legal representative acting on behalf of the Participant in a fiduciary capacity under state law or court supervision.
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(b) The Committee may specify on the Date of Grant that part or all of the Common Shares that are (i) to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights, upon the termination of the Restriction Period applicable to Restricted Stock Units or upon payment under any grant of Performance Shares or Performance Units or (ii) no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 6 of this Plan, will be subject to further restrictions on transfer, including minimum holding periods.
16. Withholding Taxes. To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other person make arrangements satisfactory to the Company for payment of the balance of such taxes or other amounts required to be withheld, which arrangements (in the discretion of the Board) may include relinquishment of a portion of such benefit. If a Participant’s benefit is to be received in the form of Common Shares, and such Participant fails to make arrangements satisfactory to the Company for the payment of taxes or other amounts, then, unless otherwise determined by the Board, the Company may (a) require the Participant to satisfy such requirements by a broker-assisted sale, and/or (b) withhold Common Shares having a value equal to the amount required to be withheld, and/or (c) deduct from any amount otherwise payable in cash (whether related to the award or otherwise) to the Participant (or the Participant’s personal representative or beneficiary, as the case may be) the minimum amount required to be withheld with respect to such award event or payment; provided, however, that the deduction or action set forth in clause (c) shall occur only if there is a good faith determination by the Board that both (I) a broker-assisted sale is not reasonably or sufficiently available and (II) the Company’s payment of the amount required to be withheld, absent the deduction from an amount payable in cash to the Participant, would adversely and materially affect the Company’s liquidity position. Notwithstanding the foregoing, when a Participant is required to pay the Company an amount required to be withheld under applicable income, employment, tax or other laws, the Participant may elect, unless otherwise determined by the Board, to satisfy the obligation, in whole or in part, by having withheld, from the Common Shares required to be delivered to the Participant, Common Shares having a value equal to the amount required to be withheld or by delivering to the Company other Common Shares held by such Participant. In no event will the Market Value per Share of the Common Shares to be withheld and delivered pursuant to this Section 16 exceed the minimum amount required to be withheld, unless (i) an additional amount can be withheld and not result in adverse accounting consequences, (ii) such additional withholding amount is authorized by the Board, and (iii) the total amount withheld does not exceed the Participant’s estimated tax obligations attributable to the applicable transaction; provided, further, that in no event will the Market Value per Share of the Common Shares directed to be sold in a broker-assisted sale pursuant to this Section 16 exceed the minimum amount required to be withheld, unless otherwise directed by the Participant. Participants will also make such arrangements as the Company may require for the payment of any withholding tax or other obligation that may arise in connection with the disposition of Common Shares acquired upon the exercise of Option Rights.
17. Compliance with Section 409A of the Code.
(a) To the extent applicable, it is intended that this Plan and any grants made hereunder be exempt from the provisions of Section 409A of the Code or, if not so exempt, that this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the Participants. This Plan and any grants made hereunder will be administered in a manner consistent with this intent. Any reference in this Plan to Section 409A of the Code will also include any regulations or any other formal guidance promulgated with respect to such section by the U.S. Department of the Treasury or the Internal Revenue Service.
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(b) Neither a Participant nor any of a Participant’s creditors or beneficiaries will have the right to subject any deferred compensation (within the meaning of Section 409A of the Code) payable under this Plan and grants hereunder to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to a Participant or for a Participant’s benefit under this Plan and grants hereunder may not be reduced by, or offset against, any amount owed by a Participant to the Company or any of its subsidiaries.
(c) If, at the time of a Participant’s separation from service (within the meaning of Section 409A of the Code), (i) the Participant will be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it, without interest, on the tenth business day of the seventh month after such separation from service.
(d) Solely with respect to any award that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that is payable on account of a Change in Control (including any installments or stream of payments that are accelerated on account of a Change in Control), a Change in Control shall occur only if such event also constitutes a “change in the ownership,” “change in effective control,” and/or a “change in the ownership of a substantial portion of assets” of the Company as those terms are defined under Treasury Regulation §1.409A-3(i)(5), but only to the extent necessary to establish a time and form of payment that complies with Section 409A of the Code, without altering the definition of Change in Control for any purpose in respect of such award.
(e) Notwithstanding any provision of this Plan and grants hereunder to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Plan and grants hereunder as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the Code. In any case, a Participant will be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s account in connection with this Plan and grants hereunder (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties.
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18. Amendments.
(a) The Board may at any time and from time to time amend this Plan in whole or in part; provided, however, that if an amendment to this Plan, for purposes of applicable stock exchange rules and except as permitted under Section 11 of this Plan, (i) would materially increase the benefits accruing to Participants under this Plan, (ii) would materially increase the number of securities which may be issued under this Plan, (iii) would materially modify the requirements for participation in this Plan, or (iv) must otherwise be approved by the Shareholders in order to comply with applicable law or the rules of the New York Stock Exchange or, if the Common Shares are not traded on the New York Stock Exchange, the principal national securities exchange upon which the Common Shares are traded or quoted, all as determined by the Board, then, such amendment will be subject to the applicable Shareholder approval and will not be effective unless and until such approval has been obtained.
(b) Except in connection with a corporate transaction or event described in Section 11 of this Plan or in connection with a Change in Control, the terms of outstanding awards may not be amended to reduce the Option Price of outstanding Option Rights or the Base Price of outstanding Appreciation Rights, or cancel outstanding “underwater” Option Rights or Appreciation Rights (including following a Participant’s voluntary surrender of “underwater” Option Rights or Appreciation Rights) in exchange for cash, other awards or Option Rights or Appreciation Rights with an Option Price or Base Price, as applicable, that is less than the Option Price of the original Option Rights or Base Price of the original Appreciation Rights, as applicable, without Shareholder approval. This Section 18(b) is intended to prohibit the repricing of “underwater” Option Rights and Appreciation Rights and will not be construed to prohibit the adjustments provided for in Section 11 or Section 12 of this Plan. Notwithstanding any provision of this Plan to the contrary, this Section 18(b) may not be amended without approval by the Shareholders.
(c) If permitted by Section 409A of the Code, but subject to the paragraph that follows, including in the case of termination of employment or service, or in the case of unforeseeable emergency or other circumstances or in the event of a Change in Control, to the extent a Participant holds an Option Right or Appreciation Right not immediately exercisable in full, or any Restricted Shares as to which the substantial risk of forfeiture or the prohibition or restriction on transfer has not lapsed, or any Restricted Stock Units as to which the Restriction Period has not been completed, or any Cash Incentive Awards, Performance Shares or Performance Units which have not been fully earned, or any dividend equivalents or other awards made pursuant to Section 9 of this Plan subject to any vesting schedule or transfer restriction, or who holds Common Shares subject to any transfer restriction imposed pursuant to Section 15(b) of this Plan, the Committee may, in its sole discretion, provide for continued vesting or accelerate the time at which such Option Right, Appreciation Right or other award may vest or be exercised or the time at which such substantial risk of forfeiture or prohibition or restriction on transfer will lapse or the time when such Restriction Period will end or the time at which such Cash Incentive Awards, Performance Shares or Performance Units will be deemed to have been earned or the time when such transfer restriction will terminate or may waive any other limitation or requirement under any such award.
(d) Subject to Section 18(b) of this Plan, the Committee may amend the terms of any award theretofore granted under this Plan prospectively or retroactively. Except for adjustments made pursuant to Section 11 of this Plan, no such amendment will materially impair the rights of any Participant without his or her consent. The Board may, in its discretion, terminate this Plan at any time. Termination of this Plan will not affect the rights of Participants or their successors under any awards outstanding hereunder and not exercised in full on the date of termination.
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19. Governing Law. This Plan and all grants and awards and actions taken hereunder will be governed by and construed in accordance with the internal substantive laws of the State of Delaware.
20. Effective Date/Termination. This Plan will be effective as of immediately prior to the time at which the registration statement covering the initial public offering of the Common Shares is declared effective by the Securities and Exchange Commission, (the date on which the Plan becomes effective, the “Effective Date”). No grants will be made on or after the Effective Date under the Predecessor Plan, provided that outstanding awards granted under the Predecessor Plan will continue unaffected following the Effective Date. No grant will be made under this Plan on or after the tenth anniversary of the Effective Date, but all grants made prior to such date will continue in effect thereafter subject to the terms thereof and of this Plan. For clarification purposes, the terms and conditions of this Plan shall not apply to or otherwise impact previously granted and outstanding awards under the Predecessor Plan, as applicable.
21. Miscellaneous Provisions.
(a) The Company will not be required to issue any fractional Common Shares pursuant to this Plan. The Committee may provide for the elimination of fractions or for the settlement of fractions in cash.
(b) This Plan will not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate such Participant’s employment or other service at any time.
(c) No award under this Plan may be exercised by the holder thereof if such exercise, and the receipt of cash or shares thereunder, would be, in the opinion of counsel selected by the Company, contrary to law or the regulations of any duly constituted authority having jurisdiction over this Plan.
(d) Absence on leave approved by a duly constituted officer of the Company or any of its Subsidiaries will not be considered interruption or termination of service of any employee for any purposes of this Plan or awards granted hereunder.
(e) No Participant will have any rights as a Shareholder with respect to any Common Shares subject to awards granted to him or her under this Plan prior to the date as of which he or she is actually recorded as the holder of such Common Shares upon the share records of the Company.
(f) The Committee may condition the grant of any award or combination of awards authorized under this Plan on the surrender or deferral by the Participant of his or her right to receive a cash bonus or other compensation otherwise payable by the Company or a Subsidiary to the Participant.
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(g) Except with respect to Option Rights and Appreciation Rights, the Committee may permit Participants to elect to defer the issuance of Common Shares under this Plan pursuant to such rules, procedures or programs as it may establish for purposes of this Plan and which are intended to comply with the requirements of Section 409A of the Code. The Committee also may provide that deferred issuances and settlements include the crediting of dividend equivalents or interest on the deferral amounts.
(h) If any provision of this Plan is or becomes invalid or unenforceable in any jurisdiction, or would disqualify this Plan or any award under any law deemed applicable by the Committee, such provision will be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Committee, it will be stricken and the remainder of this Plan will remain in full force and effect. Notwithstanding anything in this Plan or an Evidence of Award to the contrary, nothing in this Plan or in an Evidence of Award prevents a Participant from providing, without prior notice to the Company, information to governmental authorities regarding possible legal violations or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations, and for purpose of clarity a Participant is not prohibited from providing information voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.
22. Share-Based Awards in Substitution for Awards Granted by Another Company. Notwithstanding anything in this Plan to the contrary:
(a) Awards may be granted under this Plan in substitution for or in conversion of, or in connection with an assumption of, stock options, stock appreciation rights, restricted shares, restricted stock units or other share or share-based awards held by awardees of an entity engaging in a corporate acquisition or merger transaction with the Company or any subsidiary. Any conversion, substitution or assumption will be effective as of the close of the merger or acquisition, and, to the extent applicable, will be conducted in a manner that complies with Section 409A of the Code. The awards so granted may reflect the original terms of the awards being assumed or substituted or converted for and need not comply with other specific terms of this Plan, and may account for Common Shares substituted for the securities covered by the original awards and the number of shares subject to the original awards, as well as any exercise or purchase prices applicable to the original awards, adjusted to account for differences in stock prices in connection with the transaction.
(b) In the event that a company acquired by the Company or any subsidiary or with which the Company or any subsidiary merges has shares available under a pre-existing plan previously approved by shareholders and not adopted in contemplation of such acquisition or merger, the shares available for grant pursuant to the terms of such plan (as adjusted, to the extent appropriate, to reflect such acquisition or merger) may be used for awards made after such acquisition or merger under this Plan; provided, however, that awards using such available shares may not be made after the date awards or grants could have been made under the terms of the pre-existing plan absent the acquisition or merger, and may only be made to individuals who were not employees or directors of the Company or any subsidiary prior to such acquisition or merger.
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(c) Any Common Shares that are issued or transferred by, or that are subject to any awards that are granted by, or become obligations of, the Company under Sections 22(a) or 22(b) of this Plan will not reduce the Common Shares available for issuance or transfer under this Plan or otherwise count against the limits contained in Section 3 of this Plan. In addition, no Common Shares subject to an award that is granted by, or becomes an obligation of, the Company under Sections 22(a) or 22(b) of this Plan, will be added to the aggregate limit contained in Section 3(a)(i) of this Plan.
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Exhibit 10.15
Portions of this document have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and is the type that the registrant treats as private or confidential. Redacted portions are indicated with the notation “[***]”.
Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice (CEO)
BKV CORPORATION
TIME RESTRICTED STOCK UNIT AWARD AND PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD NOTICE
2024 EQUITY AND INCENTIVE COMPENSATION PLAN
BKV Corporation, a Delaware corporation (the “Company”), pursuant to its 2024 Equity and Incentive Compensation Plan, as amended from time to time (the “Plan”), hereby grants to the Participant the number of Restricted Stock Units (as defined in the Plan) subject to service-based vesting requirements as set forth below (the “Time Restricted Stock Units” or “TRSUs”) and the number of Restricted Stock Units (as defined in the Plan) subject to performance-based vesting requirements as set forth below (the “Performance-based Restricted Stock Units” or “PRSUs”). The Time Restricted Stock Units and the Performance-based Restricted Stock Units are subject to all of the terms and conditions as set forth in this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice (this “Award Notice”) and in the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement (the “Agreement”) and the Plan, both of which are attached hereto and incorporated herein in their entirety.
| Participant: | [ ] | |
| Date of Grant: | [ ] | |
| Number of Time Restricted Stock Units: | [ ] | |
| TRSU Vesting Schedule: | One-third of the TRSUs vest on each of the first three anniversaries of January 1, 2024 | |
| Number of Performance-based Restricted Stock Units at the Target Payout (as defined in Exhibit A attached to the Agreement the “Target Payout”): | [ ] | |
| PRSU Vesting Schedule: | As set forth in Exhibit A attached to the Agreement. | |
| Performance Period: | As set forth in Exhibit A attached to the Agreement. |
The undersigned Participant acknowledges that the Participant has received a copy of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement and the Plan. As an express condition to the grant of the Award hereunder, the Participant agrees to be bound by the terms of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement and the Plan. The undersigned Participant further acknowledges that as of the Date of Grant, this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement, and the Plan set forth the entire understanding between the Participant and the Company regarding the Award and supersede all prior oral and written agreements on that subject with the exception of (i) Awards previously granted and delivered to the Participant by the Company, and (ii) any agreements referenced in this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice. This Award Notice may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
| BKV CORPORATION: | PARTICIPANT: | |||
| By: | ||||
| Name: | Date: | |||
| Title: | Address: | |||
Time Restricted Stock Unit Award and Performance-based Unit Award Agreement (CEO)
TIME RESTRICTED STOCK UNIT AWARD AND PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE
BKV CORPORATION 2024 EQUITY AND INCENTIVE COMPENSATION PLAN
Pursuant to the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice attached hereto (the “Award Notice”), and subject to the terms of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement (this “Agreement”) and the BKV Corporation 2024 Equity and Incentive Compensation Plan (the “Plan”), BKV Corporation, a Delaware corporation (the “Company”), and the Participant agree as follows. Capitalized terms not otherwise defined in this Agreement or in the Award Notice will have the same meanings as set forth in the Plan.
| 1. | Award. |
| a. | Award of Time Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Time Restricted Stock Units, as set forth in the Award Notice, subject to adjustment as provided in the Plan, and each of which, if vested pursuant to this Agreement, will be settled in one (1) Common Share, at the time and subject to the terms, conditions and restrictions set forth in this Agreement and the Plan. Unless and until the Time Restricted Stock Units vest in accordance with this Agreement, Participant will have no right to receive any Common Shares or other payment in respect of the Time Restricted Stock Units. Prior to settlement of the Time Restricted Stock Units, the Time Restricted Stock Units and this Agreement represent an unsecured obligation of the Company, payable only from the general assets of the Company. |
| b. | Award of Performance-based Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Performance-based Restricted Stock Units, as set forth in the Award Notice, subject to adjustment as provided in the Plan, and each of which, if vested and earned pursuant to this Agreement, will be settled in one (1) Common Share, at the time and subject to the terms, conditions and restrictions set forth in this Agreement and the Plan. Unless and until the Performance-based Restricted Stock Units are earned and vest in accordance with this Agreement, Participant will have no right to receive any Common Shares or other payment in respect of the Performance-based Restricted Stock Units. Prior to settlement of the Performance-based Restricted Stock Units, the Performance-based Restricted Stock Units and this Agreement represent an unsecured obligation of the Company, payable only from the general assets of the Company. |
| 2. | Vesting. |
| a. | Time Restricted Stock Units. Except as otherwise provided in this Agreement or the Plan, the Time Restricted Stock Units will vest in the amounts and on the date(s) as indicated in the TRSU Vesting Schedule set forth in the Award Notice (each a “TRSU Vesting Date”), provided the Participant remains in the Service of the Company or a Subsidiary through the applicable TRSU Vesting Date. Except as otherwise provided in this Agreement or the Plan, or as otherwise determined by the Committee, any Time Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service shall be forfeited and terminate. |
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| b. | Performance-based Vesting; Determination of Amount of Performance-based Restricted Stock Units. Except as otherwise provided in this Agreement or the Plan, the Performance-based Restricted Stock Units will be earned and vested and the number of Common Shares payable in settlement of such earned and vested Performance-based Restricted Stock Units will be based on the level of achievement of the PRSU KPIs during the Performance Period as determined by the Board in good faith in accordance with Exhibit A attached to this Agreement, which determination shall be made as soon as practicable and, in any event, within 90 days following the end of the Performance Period, provided the Participant remains in the Service of the Company or a Subsidiary through the day following the last day of the Performance Period. Except as otherwise provided in this Agreement or the Plan, or as otherwise determined by the Committee, any Performance-based Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service shall be forfeited and terminate. |
| c. | Death or Disability. |
| i. | Time Restricted Stock Units. Notwithstanding Section 2(a), if the Participant dies while employed by the Company or a Subsidiary or the Company terminates the Participant’s Service due to the Participant’s Disability, subject to the Participant’s (or the Participant’s legal representative’s, heir’s, legatee’s or distributee’s, as applicable) (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release, in each case, during the period to execute and revoke such release of claims (such period, the “Consideration Period”), the Time Restricted Stock Units shall vest. |
| ii. | Performance-based Restricted Stock Units. Notwithstanding Section 2(b), if the Participant dies while employed by the Company or a Subsidiary or the Company terminates the Participant’s Service due to the Participant’s Disability prior to the day following the last day of the Performance Period, then subject to the Participant’s (or the Participant’s legal representative’s, heir’s, legatee’s or distributee’s, as applicable) (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release during the Consideration Period, the Performance-based Restricted Stock Units shall vest at the Target Payout. |
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| d. | Termination without Cause or for Good Reason. |
| i. | Time Restricted Stock Units. Notwithstanding Section 2(a), if the Participant’s Service with the Company or a Subsidiary is terminated prior to the TRSU Vesting Date pursuant to a Qualifying Termination, subject to the Participant’s (or the Participant’s legal representative’s, heir’s, legatee’s or distributee’s, as applicable) (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release, in each case, during the Consideration Period, the Time Restricted Stock Units shall vest. |
| ii. | Performance-based Restricted Stock Units. Notwithstanding Section 2(b), and subject to Section 5 of this Agreement, if the Participant’s Service with the Company or a Subsidiary is terminated pursuant to a Qualifying Termination prior to the day following the last day of the Performance Period, subject to the Participant’s (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release during the Consideration Period, (1) if such termination of Service occurs in the final six (6) months of the Performance Period, the Performance-based Restricted Stock Units will remain outstanding and will thereafter vest in accordance with Section 2(b) as if the Participant had remained in the Service of the Company or a Subsidiary from the Date of Grant through the day following the last day of the Performance Period , or (2) if such termination of Service occurs prior to the final six (6) months of the Performance Period, the Performance-based Restricted Stock Units will vest at the Target Payout. |
| e. | Termination for Cause. For the avoidance of doubt, if the Participant’s employment is terminated for Cause, any Time Restricted Stock Units or Performance-based Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service by the Company for Cause shall be forfeited and terminate automatically. This Section 2(e) applies regardless of whether such termination for Cause occurs prior to or after any Change in Control. |
| f. | Forfeiture Events. If, prior to a Change in Control, the Participant is determined by the Committee, acting in its sole discretion, to have taken any action that would constitute Cause or an Adverse Action, irrespective of whether such action or the Committee’s determination occurs before or after termination of the Participant’s Service and irrespective of whether or not the Participant was terminated for Cause, (i) all rights of the Participant under this Agreement and the Plan will terminate and be forfeited without notice of any kind; and (ii) the Committee, in its sole discretion, may require the Participant to surrender and return to the Company all or any Common Shares received in connection with the vesting of the Time Restricted Stock Units or Performance-based Restricted Stock Units, or to disgorge all or any profits or any other economic value (however defined by the Committee) made or realized by the Participant on the sale of such Common Shares, during the period beginning one year prior to the Participant’s termination of Service. This Section 2(f) applies only to any such determinations made prior to a Change in Control and shall not apply following a Change in Control. |
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| 3. | Settlement; Issuance of Common Stock. |
| a. | Time Restricted Stock Units. |
| i. | Timing and Manner of Settlement. As soon as practicable and, in any event, no later than 15 days, following the vesting of Time Restricted Stock Units, such vested Time Restricted Stock Units will be converted to Common Shares which the Company will issue and deliver to the Participant (either by delivering one or more certificates for such shares or by entering such shares in book entry form in the name of the Participant or depositing such shares for the Participant’s benefit with any broker with which the Participant has an account relationship or the Company has engaged to provide such services under the Plan) and record such shares on the records of the Company, except to the extent that Common Shares are withheld to pay tax withholding obligations pursuant to Section 3(c) of this Agreement. For Time Restricted Stock Units that vest pursuant to Section 2(c), if the Consideration Period spans two calendar years, then notwithstanding this Section 3(a), the Time Restricted Stock Units shall be settled in Common Shares in the second calendar year. |
| b. | Performance-based Restricted Stock Units. |
| i. | Timing and Manner of Settlement. As soon as practicable and, in any event, no later than 15 days following determination by the Board of the level of achievement of the PRSU KPIs of the Performance-based Restricted Stock Units, the number of Performance-based Restricted Stock Units determined by the Committee to have been earned will be converted to Common Shares which the Company will issue and deliver to the Participant (either by delivering one or more certificates for such shares or by entering such shares in book entry form in the name of the Participant or depositing such shares for the Participant’s benefit with any broker with which the Participant has an account relationship or the Company has engaged to provide such services under the Plan), except to the extent that Common Shares are withheld to pay tax withholding obligations pursuant to Section 3(c) of this Agreement. For Performance-based Restricted Stock Units that vest pursuant to Section 2(c), if the Consideration Period spans two calendar years, then notwithstanding this Section 3(b), the Performance-based Restricted Stock Units shall be settled in the second calendar year. |
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| c. | Withholding Taxes. Whenever any Time Restricted Stock Units vest or Performance-based Restricted Stock Units granted under the terms of this Agreement are earned and vest and Common Shares are issued in settlement thereof, the Participant is responsible to provide to the Company when due, the minimum amount necessary for the Company to satisfy all of the federal, state and local withholding (including FICA) tax requirements relating to such taxable event. The Board may, in its sole discretion and upon terms and conditions established by the Board, permit or require the Participant to satisfy these minimum withholding tax obligations in connection with the settlement of the vested Time Restricted Stock Units and/or earned and vested Performance-based Restricted Stock Units by a broker-assisted sale and/or the Company withholding Common Shares issuable upon settlement of the Time Restricted Stock Units or Performance-based Restricted Stock Units and/or take other actions specified in the Plan. When either selling Common Shares in a broker-assisted sale or withholding Common Shares for taxes is effected under this Agreement and the Plan, the broker shall be directed to sell (in the case of a broker-assisted sale) or the Company may withhold (in the case of net-settlement), in each case, Common Shares with a fair market value equal to the minimum amount it reasonably determines is necessary to satisfy any tax withholding obligation in the Participant’s applicable tax jurisdiction. |
| 4. | Rights of Participant; Transferability. |
| a. | No Right to Continued Service or Future Awards. Nothing in the Plan or in this Agreement confers upon the Participant any right to continue in the Service of the Company or any Subsidiary or interferes with or limits in any way the right of the Company or any Subsidiary to terminate the Service of the Participant at any time, with or without notice and with or without Cause. The grant of Time Restricted Stock Units and Performance-based Restricted Stock Units under this Agreement to the Participant is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards. |
| b. | Rights as a Shareholder. The Participant shall have no rights as a Shareholder with respect to any Common Shares subject to the Time Restricted Stock Units or Performance-based Restricted Stock Units prior to the date as of which the Participant is actually recorded as the holder of such Common Shares upon the share records of the Company pursuant to Section 3 above. |
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| d. | Non-Transferability. Except as otherwise expressly permitted by the Plan, no Time Restricted Stock Units or Performance-based Restricted Stock Units may be assigned or transferred, or subjected to any lien or encumbrance, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise. Except to the extent expressly permitted by the Plan, any purported sale, pledge, lien, assignment, transfer, attachment or encumbrance of such Restricted Stock Units shall be null, void and unenforceable against the Company. |
| 5. | Change in Control. Notwithstanding anything to the contrary in this Agreement, in the event of a Change in Control, if the Time Restricted Stock Units or Performance-based Restricted Stock Units do not continue or are not assumed, substituted or replaced with an award with respect to cash or shares of the acquiror or surviving entity in such Change in Control, in each case, with substantially equivalent terms and value as the Time Restricted Stock Units or Performance-based Restricted Stock Units, as applicable, any unvested Time Restricted Stock Units shall vest and any Performance-based Restricted Stock Units shall vest immediately prior to the Change in Control at the greater of the Target Payout or, if determinable, the level of achievement of the PRSU KPIs during the Performance Period through the latest practicable date prior to the Change in Control, as determined by the Board. In the event of a Change in Control in which the Time Restricted Stock Units and Performance-based Restricted Stock Units continue or are assumed, substituted or replaced with an award with respect to cash or shares of the acquiror or surviving entity in such Change in Control: |
| a. | the Time Restricted Stock Units, as so continued, assumed, substituted or replaced, shall remain subject to the terms and conditions of this Agreement; and |
| b. | the PRSU KPIs for any Performance-based Restricted Stock Units shall be deemed to have been met at the greater of the Target Payout or, if determinable, the level of achievement of the PRSU KPIs during the Performance Period through the latest practicable date prior to the Change in Control, as determined by the Board in good faith, and the Performance-based Restricted Stock Units, as so scored and continued, assumed, substituted or replaced, shall otherwise remain subject to the terms and conditions of this Agreement, including the requirement that the Participant remain in the Service of the Company or a Subsidiary through the day following the last day of the Performance Period. |
| 6. | Securities Laws Restrictions. Notwithstanding any other provision of the Plan or this Agreement, the Company will not be required to issue any Common Shares pursuant to the vesting of the Time Restricted Stock Units or Performance-based Restricted Stock Units if such issuance would constitute a violation of any applicable law or regulation or the requirements of any securities exchange or market system upon which the Common Shares may then be listed. In addition, Common Shares will not be issued hereunder unless (a) there is in effect with respect to such Common Shares a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), or (b) in the opinion of legal counsel to the Company, the Common Shares are permitted to be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary for the lawful issuance and sale of any Common Shares hereunder will relieve the Company of any liability in respect of the failure to issue such Common Shares as to which such requisite authority has not been obtained. As a condition to the issuance of any Common Shares hereunder, the Company may require the Participant to satisfy any requirements that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. |
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| 7. | Certain Definitions. |
| a. | “Adverse Action” means any Participant, during or within one year after the termination of Service, (a) being employed or retained by or rendering services to any organization that, directly or indirectly, competes with or becomes competitive with the Company or any Subsidiary, or otherwise violating any non-compete or non-solicitation agreement with the Company or any Subsidiary as determined by the Committee, (b) violating any confidentiality agreement or agreement governing the ownership or assignment of intellectual property rights of the Company or any Subsidiary as determined by the Committee, or (c) engaging in any other conduct or act during the Participant’s Service that is determined by the Committee to be materially injurious, detrimental or prejudicial to any interest of the Company or any Subsidiary. |
| b. | “Cause” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participant’s employment with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean (i) the Participant’s commission of a felony or any crime of moral turpitude, in each case, relating to the Company or any of its Subsidiaries or that is materially injurious to the Company or any of its Subsidiaries’ reputation; (ii) commission of an act of dishonesty, fraud, misrepresentation, embezzlement, breach of fiduciary duty or deliberate injury or attempted injury, in each case relating to the Company or any of its Subsidiaries; (iii) the Participant’s repeated failure to perform the Participant’s duties in accordance with the Participant’s job description, employment agreement or service contract with the Company or any of its Subsidiaries, or the Participant’s material or repeated insubordination; (iv) a material or repeated breach by the Participant of any material provision of this Agreement or any material provision of any other agreement between the Participant and the Company or any of its Subsidiaries; or (v) the Participant’s material or repeated failure to comply with or the Participant’s material breach of the established work rules or internal policies of the Company or any of its Subsidiaries. In each case, the Committee has the sole discretion to determine in its reasonable judgment whether Cause exists. |
| c. | “Change in Control” shall have the meaning ascribed thereto in the Plan. |
| d. | “Disability” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participant’s Service with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean the Participant’s inability due to physical or mental incapacity, to perform the essential functions of the Participant’s job, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty consecutive days. |
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| e. | “Good Reason” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participants Service with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean (i) a reduction in the Participant’s base salary or target bonus; (ii) a material breach by the Company of any material provision of this Agreement; (iii) a material, adverse change in the Participant’s authority, duties or responsibilities (other than temporarily while the Participant is physically or mentally incapacitated); or (iv) a relocation of the Participant’s principal place of employment by more than 50 miles. Notwithstanding the foregoing, the Participant shall not be considered to have terminated the Participant’s Service for Good Reason unless, within sixty (60) days following the occurrence of an event described in clause (i), (ii), (iii) or (iv) above, the Participant gives the Company written notice of the existence of an such event, the Company does not remedy such event within sixty (60) days of receiving such notice and the Participant terminates the Participant’s Service within thirty (30) days of the end of the Company’s cure period. |
| f. | “Qualifying Termination” shall mean a termination by the Company other than for Cause (other than by reason of death or Disability) or a termination by the Participant for Good Reason. |
| g. | “Service” means a Participant’s employment with the Company or any Subsidiary, whether in the capacity of an employee, Director or consultant, agent, advisor or independent contractor who renders services to the Company or a Subsidiary (and which services are not in connection with the offer and sale of the Company’s securities in a capital raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities. A change in the capacity in which the Participant renders service to the Company or a Subsidiary as an employee, Director or consultant, agent, advisor or independent contractor, shall be treated as a termination of the Participant’s Service, unless the Committee otherwise determines in its sole discretion, except that continuous Service shall not be considered interrupted in the case of transfers between locations of the Company and its Subsidiaries. A Participant’s Service will be deemed to have terminated either upon an actual termination of Service or upon the Subsidiary for which the Participant performs Service ceasing to be a Subsidiary of the Company (unless the Participant continues to be employed by the Company or another Subsidiary). |
| 8. | Miscellaneous. |
| a. | Relation to the Plan. This Agreement is subject to the terms of the Plan, the terms of which are incorporated by reference in this Agreement in their entirety. In the event of any inconsistency between the provisions of this Agreement and the Plan, the terms of the Plan will prevail. |
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| b. | Section 409A. The Time Restricted Stock Units and Performance-based Restricted Stock Units are intended to be exempt from the provisions of Section 409A of the Code or, if not so exempt, to comply with Section 409A of the Code and, wherever possible, this Agreement and the Plan shall be construed and administered to the fullest extent possible to reflect such intent. To the extent that any payment or benefit hereunder constitutes non-exempt “nonqualified deferred compensation” for purposes of Section 409A of the Code, and such payment or benefit would otherwise be payable or distributable hereunder by reason of the Participant’s termination of Service, all references to the Participant’s termination of Service shall be construed to mean a “separation from service” as defined in Section 409A of the Code (a “Section 409A Separation from Service”), and the Participant shall not be considered to have a termination of Service unless such termination constitutes a Section 409A Separation from Service. If, at the time of a Participant’s Section 409A Separation from Service, (i) the Participant will be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it, without interest, on the tenth business day of the seventh month after such separation from service. In any case, a Participant will be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s account in connection with the Plan and this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties. |
| c. | Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement will be binding upon the Participant and the Participant’s beneficiaries, executors and administrators. |
| d. | Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws provisions thereof. Any legal proceeding related to this Agreement will be brought in an appropriate Delaware court, and the parties to this Agreement consent to the exclusive jurisdiction of the court for this purpose. |
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| e. | Entire Agreement. This Agreement, the Award Notice and the Plan set forth the entire agreement and understanding of the parties to this Agreement with respect to the award of the Time Restricted Stock Units and Performance-based Restricted Stock Units and supersedes all prior agreements, arrangements, plans and understandings relating to the award of the Time Restricted Stock Units and Performance-based Restricted Stock Units (including, for the avoidance of doubt, the Employment Agreement) and administration of the Plan. For the avoidance of doubt, in the event of an inconsistency between the terms of this Agreement and any other agreement, arrangement, plan or understanding (including, for the avoidance of doubt, the terms of the Employment Agreement), the terms of this Agreement will control. |
| f. | Amendment and Waiver. The Committee may, in its sole discretion, amend this Agreement from time to time in any manner that is not inconsistent with the Plan; provided, however, that (a) no amendment shall materially impair the rights of the Participant under this Agreement without the Participant’s consent, and (b) the Participant’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code. |
| g. | Construction; Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of such provision shall not affect the validity or enforceability of any other provision of this Agreement and all other provisions shall remain in full force and effect. |
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EXHIBIT A
PRSU KPIs
The Performance-based Restricted Stock Units may be earned based upon the achievement of the following PRSU KPIs over the TSR Performance Period or ROACE Performance Period, as applicable, as described below and shall be subject to the determination of the Board, in accordance with this Exhibit A.
| PRSU KPI | Minimum | Target | Maximum | Weighting |
| Annualized Total Shareholder Return | [***] | [***] | [***] | 30% |
| Relative Annualized Total Shareholder Return | [***] | [***] | [***] | 30% |
| Average Annual Return on Average Capital Employed (ROACE) | [***] | [***] | [***] | 40% |
| Payout Percentage | 0% | 100% (the “Target Payout”) | 200% |
If a particular PRSU KPI is earned at an amount that exceeds the Minimum and that is at a point between two adjacent performance levels (that is, between the Minimum and Target or between Target and Maximum), the level at which such PRSU KPI shall be earned and the number of PRSUs earned for such PRSU KPI shall be determined by straight line interpolation between such points. For the avoidance of doubt, no Performance-based Restricted Stock Units will be earned for a particular PRSU KPI that is not determined to have been met at a level at least equal to Minimum.
All determinations as to the achievement of the PRSU KPIs and the amount of Performance-based Restricted Stock Units that have been earned will be made by the Board in good faith in its sole discretion and such determinations shall be final and binding. The Board may, in its sole discretion and in good faith, make equitable adjustments to the amount of Performance-based Restricted Units that have been earned in the event of, and to take into consideration, unanticipated, significant and non-recurring circumstances or factors that occurred during the applicable performance period that the Board, acting in good faith, considers to be appropriate at such time and any such determination of the Board shall be final and binding.
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Total Shareholder Return
The portion of the Performance-based Restricted Stock Units subject to the Annualized Total Shareholder Return PRSU KPI may be earned based upon the achievement of the annualized TSR of the Company from January 1, 2024 and ending on the day on which the ROACE Performance Period (as defined below) ends (such period, the “TSR Performance Period”). Annualized TSR shall be determined based on the following formula:

Ending Average Share Price means the average of the Company’s closing stock prices of the last 20 trading days of the TSR Performance Period (including the last day of the TSR Performance Period); provided, that, if a dividend has an ex-dividend date during this 20-day averaging period, Adjusted Close Prices (as described below) will be used. If there is no regular public trading market for the Common Shares, the Ending Average Share Price shall be determined in accordance with the last sentence of the definition of Market Value per Share set forth in the Plan.
Beginning Average Share Price means $28.25 for purposes of determining Annualized TSR of the Company and, for purposes of determining the Annualized TSR of members of the Benchmark Group for the Relative Annualized Total Shareholder Return PRSU KPI, shall equal the average of the “Adjusted Close Price” or its equivalent (which assumes reinvested dividends throughout the performance period) as per FactSet (or its successor) for the company’s common stock for the first 20 trading days of the TSR Performance Period (including the first day of the TSR Performance Period). For clarity, FactSet currently utilizes the term “Total Return (Gross)” in place of “Adjusted Close Price.”
Relative Total Shareholder Return
The portion of the Performance-based Restricted Stock Units subject to the Relative Annualized Total Shareholder Return PRSU KPI may be earned based upon the achievement of the annualized TSR of the Company over the TSR Performance Period relative to the annualized TSR of the Benchmark Group over the TSR Performance Period.
| 1. | Benchmark Group. |
| a. | The Benchmark Group. The Benchmark Group shall include the companies in the Oil & Gas Exploration & Production sub-industry of the S&P Oil & Gas Exploration & Production Select Industry (Bloomberg Ticker: SPSIOP), whereby the Oil & Gas Exploration & Production sub-industry classification utilizes the GICS (Global Industry Classification Standard). |
| b. | Effect of Changes to Benchmark Group. |
| i. | The Benchmark Group utilized for percentile ranking purposes will include only companies that are included in the Benchmark Group on the IPO Effective Date. |
| ii. | If a company in the Benchmark Group is acquired and ceases to have its primary common equity security listed or traded prior to the end of the TSR Performance Period, such company will be omitted from the ranking of the Annualized TSR of companies in the Benchmark Group. |
| iii. | If a company in the Benchmark Group is forced to delist from the securities exchange upon which it was traded due to low stock price or other reasons or files for bankruptcy, such company shall be included in the ranking of the Annualized TSR of companies in the Benchmark Group but will be ranked last. |
| 2. | Ranking Benchmark Group for Purposes of Percentile Determination. The results of the Annualized TSR for each of the companies in the Benchmark Group (for the avoidance of doubt, excluding the Company) shall be ranked from highest to lowest Annualized TSR (rounded, if necessary, to one-tenth of a percentage point by application of regular rounding) and the Company’s Annualized TSR shall be compared to such ranking to determine the Company’s relative TSR percentile ranking. |
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Average Annual Return on Average Capital Employed
The portion of the Performance-based Restricted Stock Units subject to the Return on Average Capital Employed (“ROACE”) PRSU KPI may be earned based upon the achievement of the average annual return on capital (“Average Annual ROACE”) of the Company for each Intermediate Measurement Period during the ROACE Performance Period (as defined below).

The ROACE Performance Period shall begin on the first day of the First Intermediate Measurement Period (as defined below) and end on the last day of the Third Intermediate Measurement Period (as defined below).
An Intermediate Measurement Period means each of:
| · | The First Intermediate Measurement Period (or the “First IM Period”): The period beginning on the first day of the calendar year in which the IPO Effective Date occurs and ending on the last day of such calendar year; |
| · | The Second Intermediate Measurement Period (or the “Second IM Period”): The period beginning on the first day of the calendar year immediately following the last day of the First IM Period and ending on the last day of such calendar year; and |
| · | The Third Intermediate Measurement Period (or the “Third IM Period”): The period beginning on the first day of the calendar year immediately following the last day of the Second IM Period and ending on the last day of such calendar year. |
Applicable Year End Adjusted EBIT means Adjusted EBITDAX as defined in the Company’s 10-K that includes the applicable Intermediate Measurement Period (or, if no 10-K, as such term was defined in the most recently filed 10-K or 10-Q), less depreciation, depletion, amortization and accretion, less exploration expense, in each case, starting from the first day of the applicable Intermediate Measurement Period and ending on the last day of the applicable Intermediate Measurement Period.
Total Assets shall mean the Company’s total assets, excluding unrealized derivative assets, if any, and contingent consideration assets, if any, as each is set forth in the Company’s 10-K or 10-Q that includes the applicable measurement date (or, if no 10-K or 10-Q is on file for such period, as such term was defined in the most recently filed 10-K or 10-Q).
Applicable Total Assets shall mean, for each Intermediate Measurement Period, (1) the sum of the Total Assets as of the last day of the quarter immediately preceding the first day of the applicable Intermediate Measurement Period plus the Total Assets as of the last day of each of the first four quarters of the applicable Intermediate Measurement Period, divided by (2) five, which for the avoidance of doubt, uses five balance sheet positions to calculate the average for Total Assets.
Current Liabilities shall mean the Company’s current liabilities, excluding unrealized current derivative liabilities, if any, and current contingent consideration liabilities, if any, as each is set forth in the Company’s 10-K or 10-Q that includes the applicable measurement date (or, if no 10-K or 10-Q is on file for such period, as such term was defined in the most recently filed 10-K or 10-Q).
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Applicable Current Liabilities shall mean, for each Intermediate Measurement Period, (1) the sum of the Current Liabilities as of the last day of the quarter immediately preceding the first day of the applicable Intermediate Measurement Period plus the Current Liabilities as of the last day of each of the first four quarters of the applicable Intermediate Measurement Period, divided by (2) five, which for the avoidance of doubt, uses five balance sheet positions to calculate the average for Current Liabilities.

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Exhibit 10.16
Portions of this document have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and is the type that the registrant treats as private or confidential. Redacted portions are indicated with the notation “[***]”.
Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice (Employee)
BKV CORPORATION
TIME RESTRICTED STOCK UNIT AWARD AND PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD NOTICE
2024 EQUITY AND COMPENATION INCENTIVE PLAN
BKV Corporation, a Delaware corporation (the “Company”), pursuant to its 2024 Equity and Incentive Compensation Plan, as amended from time to time (the “Plan”), hereby grants to the Participant the number of Restricted Stock Units (as defined in the Plan) subject to service-based vesting requirements as set forth below (the “Time Restricted Stock Units” or “TRSUs”) and the number of Restricted Stock Units (as defined in the Plan) subject to performance-based vesting requirements as set forth below (the “Performance-based Restricted Stock Units” or “PRSUs”). The Time Restricted Stock Units and the Performance-based Restricted Stock Units are subject to all of the terms and conditions as set forth in this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice (this “Award Notice”) and in the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement (the “Agreement”) and the Plan, both of which are attached hereto and incorporated herein in their entirety.
| Participant: | [ ] | |
| Date of Grant: | [ ] | |
| Number of Time Restricted Stock Units: | [ ] | |
| TRSU Vesting Schedule: | One-third of the TRSUs vest on each of the first three anniversaries of January 1, 2024 | |
| Number of Performance-based Restricted Stock Units at the Target Payout (as defined in Exhibit A attached to the Agreement the “Target Payout”): | [ ] | |
| PRSU Vesting Schedule: | As set forth in Exhibit A attached to the Agreement. | |
| Performance Period: | As set forth in Exhibit A attached to the Agreement. |
The undersigned Participant acknowledges that the Participant has received a copy of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement and the Plan. As an express condition to the grant of the Award hereunder, the Participant agrees to be bound by the terms of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement and the Plan. The undersigned Participant further acknowledges that as of the Date of Grant, this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice, the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement, and the Plan set forth the entire understanding between the Participant and the Company regarding the Award and supersede all prior oral and written agreements on that subject with the exception of (i) Awards previously granted and delivered to the Participant by the Company, and (ii) any agreements referenced in this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice. This Award Notice may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
| BKV CORPORATION: | PARTICIPANT: | |||
| By: | ||||
| Name: | Date: | |||
| Title: | Address: | |||
Time Restricted Stock Unit Award and Performance-based Unit Award Agreement (Employee)
TIME RESTRICTED STOCK UNIT AWARD AND PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE
BKV CORPORATION 2024 EQUITY AND INCENTIVE COMPENATION PLAN
Pursuant to the Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Notice attached hereto (the “Award Notice”), and subject to the terms of this Time Restricted Stock Unit Award and Performance-based Restricted Stock Unit Award Agreement (this “Agreement”) and the BKV Corporation 2024 Equity and Incentive Compensation Plan (the “Plan”), BKV Corporation, a Delaware corporation (the “Company”), and the Participant agree as follows. Capitalized terms not otherwise defined in this Agreement or in the Award Notice will have the same meanings as set forth in the Plan.
| 1. | Award. |
| a. | Award of Time Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Time Restricted Stock Units, as set forth in the Award Notice, subject to adjustment as provided in the Plan, and each of which, if vested pursuant to this Agreement, will be settled in one (1) Common Share, at the time and subject to the terms, conditions and restrictions set forth in this Agreement and the Plan. Unless and until the Time Restricted Stock Units vest in accordance with this Agreement, Participant will have no right to receive any Common Shares or other payment in respect of the Time Restricted Stock Units. Prior to settlement of the Time Restricted Stock Units, the Time Restricted Stock Units and this Agreement represent an unsecured obligation of the Company, payable only from the general assets of the Company. |
| b. | Award of Performance-based Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Performance-based Restricted Stock Units, as set forth in the Award Notice, subject to adjustment as provided in the Plan, and each of which, if vested and earned pursuant to this Agreement, will be settled in one (1) Common Share, at the time and subject to the terms, conditions and restrictions set forth in this Agreement and the Plan. Unless and until the Performance-based Restricted Stock Units are earned and vest in accordance with this Agreement, Participant will have no right to receive any Common Shares or other payment in respect of the Performance-based Restricted Stock Units. Prior to settlement of the Performance-based Restricted Stock Units, the Performance-based Restricted Stock Units and this Agreement represent an unsecured obligation of the Company, payable only from the general assets of the Company. |
| 2. | Vesting. |
| a. | Time Restricted Stock Units. Except as otherwise provided in this Agreement or the Plan, the Time Restricted Stock Units will vest in the amounts and on the date(s) as indicated in the TRSU Vesting Schedule set forth in the Award Notice (each a “TRSU Vesting Date”), provided the Participant remains in the Service of the Company or a Subsidiary through the applicable TRSU Vesting Date. Except as otherwise provided in this Agreement or the Plan, or as otherwise determined by the Committee, any Time Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service shall be forfeited and terminate. |
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| b. | Performance-based Vesting; Determination of Amount of Performance-based Restricted Stock Units. Except as otherwise provided in this Agreement or the Plan, the Performance-based Restricted Stock Units will be earned and vested and the number of Common Shares payable in settlement of such earned and vested Performance-based Restricted Stock Units will be based on the level of achievement of the PRSU KPIs during the Performance Period as determined by the Board in good faith in accordance with Exhibit A attached to this Agreement, which determination shall be made as soon as practicable and, in any event, within 90 days following the end of the Performance Period, provided the Participant remains in the Service of the Company or a Subsidiary through the day following the last day of the Performance Period. Except as otherwise provided in this Agreement or the Plan, or as otherwise determined by the Committee, any Performance-based Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service shall be forfeited and terminate. |
| c. | Death or Disability. |
| i. | Time Restricted Stock Units. Notwithstanding Section 2(a), if the Participant dies while employed by the Company or a Subsidiary or the Company terminates the Participant’s Service due to the Participant’s Disability, subject to the Participant’s (or the Participant’s legal representative’s, heir’s, legatee’s or distributee’s, as applicable) (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release, in each case, during the period to execute and revoke such release of claims (such period, the “Consideration Period”), the Time Restricted Stock Units shall vest. |
| ii. | Performance-based Restricted Stock Units. Notwithstanding Section 2(b), if the Participant dies while employed by the Company or a Subsidiary or the Company terminates the Participant’s Service due to the Participant’s Disability prior to the day following the last day of the Performance Period, then subject to the Participant’s (or the Participant’s legal representative’s, heir’s, legatee’s or distributee’s, as applicable) (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release during the Consideration Period, the Performance-based Restricted Stock Units shall vest at the Target Payout. |
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| d. | Termination without Cause. |
| i. | Time Restricted Stock Units. If the Participant’s Service with the Company or a Subsidiary is terminated by the Company other than for Cause (other than by reason of death or Disability) prior to the TRSU Vesting Date, the Time Restricted Stock Units shall be forfeited and terminate. |
| ii. | Performance-based Restricted Stock Units. Notwithstanding Section 2(b), and subject to Section 5 of this Agreement, if the Participant’s Service with the Company or a Subsidiary is terminated by the Company other than for Cause and other than by reason of death or Disability prior to the day following the last day of the Performance Period, subject to the Participant’s (i) timely execution of a general release of claims in a form satisfactory to the Company and (ii) if applicable, failure to revoke such execution or signature in accordance with the terms of such release during the Consideration Period, (1) if such termination of Service occurs in the final six (6) months of the Performance Period, the Performance-based Restricted Stock Units will remain outstanding and will thereafter vest in accordance with Section 2(b) as if the Participant had remained in the Service of the Company or a Subsidiary from the Date of Grant through the day following the last day of the Performance Period, or (2) if such termination of Service occurs prior to the final six (6) months of the Performance Period, the Performance-based Restricted Stock Units will vest at Target Payout. In either case of (1) or (2) above, the number of Performance-based Restricted Stock Units in which the Participant so vests shall be prorated based on a fraction, the numerator of which is the number of calendar days that have elapsed from the first day of the Performance Period through the date of the Participant’s termination, and the denominator of which is the number of calendar days from the first day of the Performance Period through the last day of the Performance Period. |
| e. | Termination for Cause. For the avoidance of doubt, if the Participant’s employment is terminated for Cause, any Time Restricted Stock Units or Performance-based Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service by the Company for Cause shall be forfeited and terminate automatically. This Section 2(e) applies regardless of whether such termination for Cause occurs prior to or after any Change in Control. |
| f. | Forfeiture Events. If, prior to a Change in Control, the Participant is determined by the Committee, acting in its sole discretion, to have taken any action that would constitute Cause or an Adverse Action, irrespective of whether such action or the Committee’s determination occurs before or after termination of the Participant’s Service and irrespective of whether or not the Participant was terminated for Cause, (i) all rights of the Participant under this Agreement and the Plan will terminate and be forfeited without notice of any kind; and (ii) the Committee, in its sole discretion, may require the Participant to surrender and return to the Company all or any Common Shares received in connection with the vesting of the Time Restricted Stock Units or Performance-based Restricted Stock Units, or to disgorge all or any profits or any other economic value (however defined by the Committee) made or realized by the Participant on the sale of such Common Shares, during the period beginning one year prior to the Participant’s termination of Service. This Section 2(f) applies only to any such determinations made prior to a Change in Control and shall not apply following a Change in Control. |
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| 3. | Settlement; Issuance of Common Stock. |
| a. | Time Restricted Stock Units. |
| i. | Timing and Manner of Settlement. As soon as practicable and, in any event, no later than 15 days, following the vesting of Time Restricted Stock Units, such vested Time Restricted Stock Units will be converted to Common Shares which the Company will issue and deliver to the Participant (either by delivering one or more certificates for such shares or by entering such shares in book entry form in the name of the Participant or depositing such shares for the Participant’s benefit with any broker with which the Participant has an account relationship or the Company has engaged to provide such services under the Plan) and record such shares on the records of the Company, except to the extent that Common Shares are withheld to pay tax withholding obligations pursuant to Section 3(c) of this Agreement. For Time Restricted Stock Units that vest pursuant to Section 2(c), if the Consideration Period spans two calendar years, then notwithstanding this Section 3(a), the Time Restricted Stock Units shall be settled in Common Shares in the second calendar year. |
| b. | Performance-based Restricted Stock Units. |
| i. | Timing and Manner of Settlement. As soon as practicable and, in any event, no later than 15 days following determination by the Board of the level of achievement of the PRSU KPIs of the Performance-based Restricted Stock Units, the number of Performance-based Restricted Stock Units determined by the Committee to have been earned will be converted to Common Shares which the Company will issue and deliver to the Participant (either by delivering one or more certificates for such shares or by entering such shares in book entry form in the name of the Participant or depositing such shares for the Participant’s benefit with any broker with which the Participant has an account relationship or the Company has engaged to provide such services under the Plan), except to the extent that Common Shares are withheld to pay tax withholding obligations pursuant to Section 3(c) of this Agreement. For Performance-based Restricted Stock Units that vest pursuant to Section 2(c), if the Consideration Period spans two calendar years, then notwithstanding this Section 3(b), the Performance-based Restricted Stock Units shall be settled in the second calendar year. |
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| c. | Withholding Taxes. Whenever any Time Restricted Stock Units vest or Performance-based Restricted Stock Units granted under the terms of this Agreement are earned and vest and Common Shares are issued in settlement thereof, the Participant is responsible to provide to the Company when due, the minimum amount necessary for the Company to satisfy all of the federal, state and local withholding (including FICA) tax requirements relating to such taxable event. The Board may, in its sole discretion and upon terms and conditions established by the Board, permit or require the Participant to satisfy these minimum withholding tax obligations in connection with the settlement of the vested Time Restricted Stock Units and/or earned and vested Performance-based Restricted Stock Units by a broker-assisted sale and/or the Company withholding Common Shares issuable upon settlement of the Time Restricted Stock Units or Performance-based Restricted Stock Units and/or take other actions specified in the Plan. When either selling Common Shares in a broker-assisted sale or withholding Common Shares for taxes is effected under this Agreement and the Plan, the broker shall be directed to sell (in the case of a broker-assisted sale) or the Company may withhold (in the case of net-settlement), in each case, Common Shares with a fair market value equal to the minimum amount it reasonably determines is necessary to satisfy any tax withholding obligation in the Participant’s tax jurisdiction. |
| 4. | Rights of Participant; Transferability. |
| a. | No Right to Continued Service or Future Awards. Nothing in the Plan or in this Agreement confers upon the Participant any right to continue in the Service of the Company or any Subsidiary or interferes with or limits in any way the right of the Company or any Subsidiary to terminate the Service of the Participant at any time, with or without notice and with or without Cause. The grant of Time Restricted Stock Units and Performance-based Restricted Stock Units under this Agreement to the Participant is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards. |
| b. | Rights as a Shareholder. The Participant shall have no rights as a Shareholder with respect to any Common Shares subject to the Time Restricted Stock Units or Performance-based Restricted Stock Units prior to the date as of which the Participant is actually recorded as the holder of such Common Shares upon the share records of the Company pursuant to Section 3 above. |
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| d. | Non-Transferability. Except as otherwise expressly permitted by the Plan, no Time Restricted Stock Units or Performance-based Restricted Stock Units may be assigned or transferred, or subjected to any lien or encumbrance, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise. Except to the extent expressly permitted by the Plan, any purported sale, pledge, lien, assignment, transfer, attachment or encumbrance of such Restricted Stock Units shall be null, void and unenforceable against the Company. |
| 5. | Change in Control. Notwithstanding anything to the contrary in this Agreement, in the event of a Change in Control, if the Time Restricted Stock Units or Performance-based Restricted Stock Units do not continue or are not assumed, substituted or replaced with an award with respect to cash or shares of the acquiror or surviving entity in such Change in Control, in each case, with substantially equivalent terms and value as the Time Restricted Stock Units or Performance-based Restricted Stock Units, as applicable, any unvested Time Restricted Stock Units shall vest and any Performance-based Restricted Stock Units shall vest immediately prior to the Change in Control at the greater of the Target Payout or, if determinable, the level of achievement of the PRSU KPIs during the Performance Period through the latest practicable date prior to the Change in Control, as determined by the Board. In the event of a Change in Control in which the Time Restricted Stock Units and Performance-based Restricted Stock Units continue or are assumed, substituted or replaced with an award with respect to cash or shares of the acquiror or surviving entity in such Change in Control: |
| a. | the Time Restricted Stock Units, as so continued, assumed, substituted or replaced, shall remain subject to the terms and conditions of this Agreement; provided, that, notwithstanding Section 2(a), Section 2(c) or Section 2(d), if the Participant’s Service with the Company or a Subsidiary is terminated pursuant to a Qualifying Termination within the 24-month period beginning on the Change in Control and ending at the end of the second anniversary of the Change in Control, the Time Restricted Stock Units, as so continued, assumed, substituted or replaced, will vest, and |
| b. | the PRSU KPIs for any Performance-based Restricted Stock Units shall be deemed to have been met at the greater of the Target Payout or, if determinable, the level of achievement of the PRSU KPIs during the Performance Period through the latest practicable date prior to the Change in Control, as determined by the Board in good faith, and the Performance-based Restricted Stock Units, as so scored and continued, assumed, substituted or replaced, shall otherwise remain subject to the terms and conditions of this Agreement, including the requirement that the Participant remain in the Service of the Company or a Subsidiary through the day following the last day of the Performance Period; provided that, notwithstanding Section 2(b), Section 2(c) or Section 2(d), if the Participant’s Service with the Company or a Subsidiary is terminated prior to the day following the last day of the Performance Period pursuant to a Qualifying Termination within the 24-month period beginning on the Change in Control and ending at the end of the second anniversary of the Change in Control, the Performance-based Restricted Stock Units, as so scored and continued, assumed, substituted or replaced, will vest. |
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| 6. | Securities Laws Restrictions. Notwithstanding any other provision of the Plan or this Agreement, the Company will not be required to issue any Common Shares pursuant to the vesting of the Time Restricted Stock Units or Performance-based Restricted Stock Units if such issuance would constitute a violation of any applicable law or regulation or the requirements of any securities exchange or market system upon which the Common Shares may then be listed. In addition, Common Shares will not be issued hereunder unless (a) there is in effect with respect to such Common Shares a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), or (b) in the opinion of legal counsel to the Company, the Common Shares are permitted to be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary for the lawful issuance and sale of any Common Shares hereunder will relieve the Company of any liability in respect of the failure to issue such Common Shares as to which such requisite authority has not been obtained. As a condition to the issuance of any Common Shares hereunder, the Company may require the Participant to satisfy any requirements that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. |
| 7. | Certain Definitions. |
| a. | “Adverse Action” means any Participant, during or within one year after the termination of Service, (a) being employed or retained by or rendering services to any organization that, directly or indirectly, competes with or becomes competitive with the Company or any Subsidiary, or otherwise violating any non-compete or non-solicitation agreement with the Company or any Subsidiary as determined by the Committee, (b) violating any confidentiality agreement or agreement governing the ownership or assignment of intellectual property rights of the Company or any Subsidiary as determined by the Committee, or (c) engaging in any other conduct or act during the Participant’s Service that is determined by the Committee to be materially injurious, detrimental or prejudicial to any interest of the Company or any Subsidiary. |
| b. | “Cause” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participant’s employment with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean (i) the Participant’s commission of a felony or any crime of moral turpitude, in each case, relating to the Company or any of its Subsidiaries or that is materially injurious to the Company or any of its Subsidiaries’ reputation; (ii) commission of an act of dishonesty, fraud, misrepresentation, embezzlement, breach of fiduciary duty or deliberate injury or attempted injury, in each case relating to the Company or any of its Subsidiaries; (iii) the Participant’s repeated failure to perform the Participant’s duties in accordance with the Participant’s job description, employment agreement or service contract with the Company or any of its Subsidiaries, or the Participant’s material or repeated insubordination; (iv) a material or repeated breach by the Participant of any material provision of this Agreement or any material provision of any other agreement between the Participant and the Company or any of its Subsidiaries; or (v) the Participant’s material or repeated failure to comply with or the Participant’s material breach of the established work rules or internal policies of the Company or any of its Subsidiaries. In each case, the Committee has the sole discretion to determine in its reasonable judgment whether Cause exists. |
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| c. | “Disability” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participant’s Service with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean the Participant’s inability due to physical or mental incapacity, to perform the essential functions of the Participant’s job, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty consecutive days. |
| d. | “Good Reason” shall have the meaning ascribed thereto in any employment or other agreement or policy applicable to the Participants Service with the Company or any of its Subsidiaries as may be in effect, or if no such agreement or policy exists, shall mean (i) a reduction in the Participant’s base salary or target bonus; (ii) a material breach by the Company of any material provision of this Agreement; (iii) a material, adverse change in the Participant’s authority, duties or responsibilities (other than temporarily while the Participant is physically or mentally incapacitated); or (iv) a relocation of the Participant’s principal place of employment by more than 50 miles. Notwithstanding the foregoing, the Participant shall not be considered to have terminated the Participant’s Service for Good Reason unless, within sixty (60) days following the occurrence of an event described in clause (i), (ii), (iii) or (iv) above, the Participant gives the Company written notice of the existence of an such event, the Company does not remedy such event within sixty (60) days of receiving such notice and the Participant terminates the Participant’s Service within thirty (30) days of the end of the Company’s cure period. |
| e. | “Qualifying Termination” shall mean a termination by the Company other than for Cause (other than by reason of death or Disability) or a termination by the Participant for Good Reason. |
| f. | “Service” means a Participant’s employment with the Company or any Subsidiary, whether in the capacity of an employee, Director or consultant, agent, advisor or independent contractor who renders services to the Company or a Subsidiary (and which services are not in connection with the offer and sale of the Company’s securities in a capital raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities. A change in the capacity in which the Participant renders service to the Company or a Subsidiary as an employee, Director or consultant, agent, advisor or independent contractor, shall be treated as a termination of the Participant’s Service, unless the Committee otherwise determines in its sole discretion, except that continuous Service shall not be considered interrupted in the case of transfers between locations of the Company and its Subsidiaries. A Participant’s Service will be deemed to have terminated either upon an actual termination of Service or upon the Subsidiary for which the Participant performs Service ceasing to be a Subsidiary of the Company (unless the Participant continues to be employed by the Company or another Subsidiary). |
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| 8. | Miscellaneous. |
| a. | Relation to the Plan. This Agreement is subject to the terms of, the Plan, the terms of which are incorporated by reference in this Agreement in their entirety. In the event of any inconsistency between the provisions of this Agreement and the Plan, the terms of the Plan will prevail. |
| b. | Section 409A. The Time Restricted Stock Units and Performance-based Restricted Stock Units are intended to be exempt from the provisions of Section 409A of the Code or, if not so exempt, to comply with Section 409A of the Code and, wherever possible, this Agreement and the Plan shall be construed and administered to the fullest extent possible to reflect such intent. To the extent that any payment or benefit hereunder constitutes non-exempt “nonqualified deferred compensation” for purposes of Section 409A of the Code, and such payment or benefit would otherwise be payable or distributable hereunder by reason of the Participant’s termination of Service, all references to the Participant’s termination of Service shall be construed to mean a “separation from service” as defined in Section 409A of the Code (a “Section 409A Separation from Service”), and the Participant shall not be considered to have a termination of Service unless such termination constitutes a Section 409A Separation from Service. If, at the time of a Participant’s Section 409A Separation from Service, (i) the Participant will be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it, without interest, on the tenth business day of the seventh month after such separation from service. In any case, a Participant will be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s account in connection with the Plan and this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties. |
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| c. | Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement will be binding upon the Participant and the Participant’s beneficiaries, executors and administrators. |
| d. | Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws provisions thereof. Any legal proceeding related to this Agreement will be brought in an appropriate Delaware court, and the parties to this Agreement consent to the exclusive jurisdiction of the court for this purpose. |
| e. | Entire Agreement. This Agreement, the Award Notice and the Plan set forth the entire agreement and understanding of the parties to this Agreement with respect to the award of the Time Restricted Stock Units and Performance-based Restricted Stock Units and supersedes all prior agreements, arrangements, plans and understandings relating to the award of the Time Restricted Stock Units and Performance-based Restricted Stock Units and administration of the Plan. |
| f. | Amendment and Waiver. The Committee may, in its sole discretion, amend this Agreement from time to time in any manner that is not inconsistent with the Plan; provided, however, that (a) no amendment shall materially impair the rights of the Participant under this Agreement without the Participant’s consent, and (b) the Participant’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code. |
| g. | Construction; Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of such provision shall not affect the validity or enforceability of any other provision of this Agreement and all other provisions shall remain in full force and effect. |
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EXHIBIT A
PRSU KPIs
The Performance-based Restricted Stock Units may be earned based upon the achievement of the following PRSU KPIs over the TSR Performance Period or ROACE Performance Period, as applicable, as described below and shall be subject to the determination of the Board, in accordance with this Exhibit A.
| PRSU KPI | Minimum | Target | Maximum | Weighting |
| Annualized Total Shareholder Return | [***] | [***] | [***] | 30% |
| Relative Annualized Total Shareholder Return | [***] | [***] | [***] | 30% |
| Average Annual Return on Average Capital Employed (ROACE) | [***] | [***] | [***] | 40% |
| Payout Percentage | 0% | 100% (the “Target Payout”) | 200% |
If a particular PRSU KPI is earned at an amount that exceeds the Minimum and that is at a point between two adjacent performance levels (that is, between the Minimum and Target or between Target and Maximum), the level at which such PRSU KPI shall be earned and the number of PRSUs earned for such PRSU KPI shall be determined by straight line interpolation between such points. For the avoidance of doubt, no Performance-based Restricted Stock Units will be earned for a particular PRSU KPI that is not determined to have been met at a level at least equal to Minimum.
All determinations as to the achievement of the PRSU KPIs and the amount of Performance-based Restricted Stock Units that have been earned will be made by the Board in good faith in its sole discretion and such determinations shall be final and binding. The Board may, in its sole discretion and in good faith, make equitable adjustments to the amount of Performance-based Restricted Units that have been earned in the event of, and to take into consideration, unanticipated, significant and non-recurring circumstances or factors that occurred during the applicable performance period that the Board, acting in good faith, considers to be appropriate at such time and any such determination of the Board shall be final and binding.
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Total Shareholder Return
The portion of the Performance-based Restricted Stock Units subject to the Annualized Total Shareholder Return PRSU KPI may be earned based upon the achievement of the annualized TSR of the Company from January 1, 2024 and ending on the day on which the ROACE Performance Period (as defined below) ends (such period, the “TSR Performance Period”). Annualized TSR shall be determined based on the following formula:

Ending Average Share Price means the average of the Company’s closing stock prices of the last 20 trading days of the TSR Performance Period (including the last day of the TSR Performance Period); provided, that, if a dividend has an ex-dividend date during this 20-day averaging period, Adjusted Close Prices (as described below) will be used. If there is no regular public trading market for the Common Shares, the Ending Average Share Price shall be determined in accordance with the last sentence of the definition of Market Value per Share set forth in the Plan.
Beginning Average Share Price means $28.25 for purposes of determining Annualized TSR of the Company and, for purposes of determining the Annualized TSR of members of the Benchmark Group for the Relative Annualized Total Shareholder Return PRSU KPI, shall equal the average of the “Adjusted Close Price” or its equivalent (which assumes reinvested dividends throughout the performance period) as per FactSet (or its successor) for the company’s common stock for the first 20 trading days of the TSR Performance Period (including the first day of the TSR Performance Period). For clarity, FactSet currently utilizes the term “Total Return (Gross)” in place of “Adjusted Close Price.”
Relative Total Shareholder Return
The portion of the Performance-based Restricted Stock Units subject to the Relative Annualized Total Shareholder Return PRSU KPI may be earned based upon the achievement of the annualized TSR of the Company over the TSR Performance Period relative to the annualized TSR of the Benchmark Group over the TSR Performance Period.
| 1. | Benchmark Group. |
| a. | The Benchmark Group. The Benchmark Group shall include the companies in the Oil & Gas Exploration & Production sub-industry of the S&P Oil & Gas Exploration & Production Select Industry (Bloomberg Ticker: SPSIOP), whereby the Oil & Gas Exploration & Production sub-industry classification utilizes the GICS (Global Industry Classification Standard). |
| b. | Effect of Changes to Benchmark Group. |
| i. | The Benchmark Group utilized for percentile ranking purposes will include only companies that are included in the Benchmark Group on the IPO Effective Date. |
| ii. | If a company in the Benchmark Group is acquired and ceases to have its primary common equity security listed or traded prior to the end of the TSR Performance Period, such company will be omitted from the ranking of the Annualized TSR of companies in the Benchmark Group. |
| iii. | If a company in the Benchmark Group is forced to delist from the securities exchange upon which it was traded due to low stock price or other reasons or files for bankruptcy, such company shall be included in the ranking of the Annualized TSR of companies in the Benchmark Group but will be ranked last. |
| 2. | Ranking Benchmark Group for Purposes of Percentile Determination. The results of the Annualized TSR for each of the companies in the Benchmark Group (for the avoidance of doubt, excluding the Company) shall be ranked from highest to lowest Annualized TSR (rounded, if necessary, to one-tenth of a percentage point by application of regular rounding) and the Company’s Annualized TSR shall be compared to such ranking to determine the Company’s relative TSR percentile ranking. |
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Average Annual Return on Average Capital Employed
The portion of the Performance-based Restricted Stock Units subject to the Return on Average Capital Employed (“ROACE”) PRSU KPI may be earned based upon the achievement of the average annual return on capital (“Average Annual ROACE”) of the Company for each Intermediate Measurement Period during the ROACE Performance Period (as defined below).
The ROACE Performance Period shall begin on the first day of the First Intermediate Measurement Period (as defined below) and end on the last day of the Third Intermediate Measurement Period (as defined below).
An Intermediate Measurement Period means each of:
| · | The First Intermediate Measurement Period (or the “First IM Period”): The period beginning on the first day of the calendar year in which the IPO Effective Date occurs and ending on the last day of such calendar year; |
| · | The Second Intermediate Measurement Period (or the “Second IM Period”): The period beginning on the first day of the calendar year immediately following the last day of the First IM Period and ending on the last day of such calendar year; and |
| · | The Third Intermediate Measurement Period (or the “Third IM Period”): The period beginning on the first day of the calendar year immediately following the last day of the Second IM Period and ending on the last day of such calendar year. |
Applicable Year End Adjusted EBIT means Adjusted EBITDAX as defined in the Company’s 10-K that includes the applicable Intermediate Measurement Period (or, if no 10-K, as such term was defined in the most recently filed 10-K or 10-Q), less depreciation, depletion, amortization and accretion, less exploration expense, in each case, starting from the first day of the applicable Intermediate Measurement Period and ending on the last day of the applicable Intermediate Measurement Period.
Total Assets shall mean the Company’s total assets, excluding unrealized derivative assets, if any, and contingent consideration assets, if any, as each is set forth in the Company’s 10-K or 10-Q that includes the applicable measurement date (or, if no 10-K or 10-Q is on file for such period, as such term was defined in the most recently filed 10-K or 10-Q).
Applicable Total Assets shall mean, for each Intermediate Measurement Period, (1) the sum of the Total Assets as of the last day of the quarter immediately preceding the first day of the applicable Intermediate Measurement Period plus the Total Assets as of the last day of each of the first four quarters of the applicable Intermediate Measurement Period, divided by (2) five, which for the avoidance of doubt, uses five balance sheet positions to calculate the average for Total Assets.
Current Liabilities shall mean the Company’s current liabilities, excluding unrealized current derivative liabilities, if any, and current contingent consideration liabilities, if any, as each is set forth in the Company’s 10-K or 10-Q that includes the applicable measurement date (or, if no 10-K or 10-Q is on file for such period, as such term was defined in the most recently filed 10-K or 10-Q).
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Applicable Current Liabilities shall mean, for each Intermediate Measurement Period, (1) the sum of the Current Liabilities as of the last day of the quarter immediately preceding the first day of the applicable Intermediate Measurement Period plus the Current Liabilities as of the last day of each of the first four quarters of the applicable Intermediate Measurement Period, divided by (2) five, which for the avoidance of doubt, uses five balance sheet positions to calculate the average for Current Liabilities.

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Exhibit 10.17
Restricted Stock Unit Award (Director)
BKV CORPORATION
RESTRICTED STOCK UNIT AWARD NOTICE
2024 EQUITY AND INCENTIVE COMPENSATION PLAN
BKV Corporation, a Delaware corporation (the “Company”), pursuant to its 2024 Equity and Incentive Compensation Plan, as amended from time to time (the “Plan”), hereby grants to the Participant the number of Restricted Stock Units (as defined in the Plan) subject to vesting requirements as set forth below (the “Restricted Stock Units” or “RSUs”). The Restricted Stock Units are subject to all of the terms and conditions as set forth in this Restricted Stock Unit Award Notice (the “Award Notice”) and in the Restricted Stock Unit Agreement and the Plan, both of which are attached hereto and incorporated herein in their entirety.
| Participant: | [ ] |
| Date of Grant: | [ ] |
| Number of Restricted Stock Units: | [ ] |
| RSU Vesting Schedule: | 100% of the RSUs shall vest on the day prior to the Company’s first annual meeting of shareholders following the Date of Grant |
The undersigned Participant acknowledges that the Participant has received a copy of this Restricted Stock Unit Award Notice, the Restricted Stock Unit Award Agreement and the Plan. As an express condition to the grant of the Award hereunder, the Participant agrees to be bound by the terms of this Restricted Stock Unit Award Notice, the Restricted Stock Unit Award Agreement and the Plan. The undersigned Participant further acknowledges that as of the Date of Grant, this Restricted Stock Unit Award Notice, the Restricted Stock Unit Award Agreement, and the Plan set forth the entire understanding between the Participant and the Company regarding the Award and supersede all prior oral and written agreements on that subject with the exception of (i) Awards previously granted and delivered to the Participant by the Company, and (ii) any agreements referenced in this Restricted Stock Unit Award Notice. This Award Notice may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
| BKV CORPORATION: | PARTICIPANT: | |||
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By: |
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Name: |
Date: | |||
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Title: |
Address: |
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Restricted Stock Unit Award Agreement (Director)
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE
BKV CORPORATION 2022 EQUITY AND INCENTIVE PLAN
Pursuant to the Restricted Stock Unit Award Notice attached hereto (the “Award Notice”), and subject to the terms of this Restricted Stock Unit Award Agreement (this “Agreement”) and the BKV Corporation 2022 Equity and Incentive Plan (the “Plan”), BKV Corporation, a Delaware corporation (the “Company”), and the Participant agree as follows. Capitalized terms not otherwise defined in this Agreement or in the Award Notice will have the same meanings as set forth in the Plan.
| 1. | Award of Restricted Stock Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Restricted Stock Units, as set forth in the Award Notice, subject to adjustment as provided in the Plan, and each of which, if vested pursuant to this Agreement, will be settled in one (1) Common Share, at the time and subject to the terms, conditions and restrictions set forth in this Agreement and the Plan. Unless and until the Restricted Stock Units vest in accordance with this Agreement, Participant will have no right to receive any Common Shares or other payment in respect of the Restricted Stock Units. Prior to settlement of the Restricted Stock Units, the Restricted Stock Units and this Agreement represent an unsecured obligation of the Company, payable only from the general assets of the Company. |
| 2. | Vesting. |
| a. | Vesting Schedule. Except as otherwise provided in this Agreement or the Plan, the Restricted Stock Units will vest in the amounts and on the date as indicated in the RSU Vesting Schedule set forth in the Award Notice (the “RSU Vesting Date”), provided the Participant remains in the Service of the Company or a Subsidiary through the RSU Vesting Date. Except as otherwise provided in this Agreement or the Plan, or as otherwise determined by the Committee, any Restricted Stock Units that have not vested as of the date of the Participant’s termination of Service, including by removal in accordance with the Company’s Certificate of Incorporation, as then in effect, or by resignation of the Participant, shall be forfeited and terminate. |
| b. | Death or Termination by the Company due to Disability. Notwithstanding Section 2(a), if the Participant (i) dies while employed by the Company or a Subsidiary or (ii) the Company terminates the Participant’s Service due to the Participant’s Disability, the Restricted Stock Units shall vest. |
| 3. | Timing and Manner of Settlement; Issuance of Common Shares. As soon as practicable and, in any event, no later than 15 days, following the vesting of Restricted Stock Units, such vested Restricted Stock Units will be converted to Common Shares which the Company will issue and deliver to the Participant (either by delivering one or more certificates for such shares or by entering such shares in book entry form in the name of the Participant or depositing such shares for the Participant’s benefit with any broker with which the Participant has an account relationship or the Company has engaged to provide such services under the Plan) and record such shares on the records of the Company. The Participant is responsible to pay all required taxes associated with the Restricted Stock Units (including the issuance of the Common Shares, the subsequent sale of the Common Shares and the receipt of dividend equivalents or dividends, if any). |
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| 4. | Rights of Participant; Transferability. |
| a. | No Right to Continued Service or Future Awards. Nothing in the Plan or in this Agreement confers upon the Participant any right to continue in the Service of the Company or any Subsidiary or interferes with or limits in any way the right of the Company or any Subsidiary to terminate the Service of the Participant in accordance with the Company’s Certificate of Incorporation, as then in effect. The grant of Restricted Stock Units under this Agreement to the Participant is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards. |
| b. | Rights as a Shareholder. The Participant shall have no rights as a Shareholder with respect to any Common Shares subject to the Restricted Stock Units prior to the date as of which the Participant is actually recorded as the holder of such Common Shares upon the share records of the Company pursuant to Section 3 above. |
| c. | Dividend Equivalents. Notwithstanding Section 4(b), from and after the Date of Grant and until the earlier of the time when (i) Common Shares are issued in accordance with Section 3 above or (ii) the Participant’s right to receive Common Shares in payment of the Restricted Stock Units is forfeited in accordance with Section 2 of this Agreement, on the date that the Company pays a cash dividend (if any) to holders of Common Shares generally, the Participant shall be credited with an amount per Restricted Stock Unit equal to the amount of such dividend. Any amounts credited pursuant to the immediately preceding sentence shall be subject to the same applicable terms and conditions (including vesting, payment and forfeitability) as the Restricted Stock Units on which the dividend equivalents were credited, and such amounts shall be paid without interest at the same time the Common Shares are issued for the Restricted Stock Units to which they relate. |
| d. | Non-Transferability. Except as otherwise expressly permitted by the Plan, no Restricted Stock Units may be assigned or transferred, or subjected to any lien, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise. Except to the extent permitted by the Plan, any purported sale, pledge, assignment, transfer, attachment or encumbrance of such Restricted Stock Units shall be null, void and unenforceable against the Company. |
| 5. | Change in Control. Notwithstanding anything to the contrary in this Agreement, in the event of a Change in Control, if the Restricted Stock Units are not continued or assumed, or substituted or replaced with an award with respect to cash or shares of the acquiror or surviving entity in such Change in Control, in each case, with substantially equivalent terms and value as the Restricted Stock Units (“Assumed”) or if the Participant’s Service is terminated in connection with the Change in Control, any unvested Restricted Stock Units shall vest immediately prior to the Change in Control. In the event of a Change in Control in which the Restricted Stock Units are Assumed and the Participant’s Service is not terminated in connection with the Change in Control, the Restricted Stock Units shall remain subject to the terms and conditions of this Agreement. |
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| 6. | Securities Laws Restrictions. Notwithstanding any other provision of the Plan or this Agreement, the Company will not be required to issue any Common Shares pursuant to the vesting of the Restricted Stock Units if such issuance would constitute a violation of any applicable law or regulation or the requirements of any securities exchange or market system upon which the Common Shares may then be listed. In addition, Common Shares will not be issued hereunder unless (a) there is in effect with respect to such Common Shares a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), or (b) in the opinion of legal counsel to the Company, the Common Shares are permitted to be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary for the lawful issuance and sale of any Common Shares hereunder will relieve the Company of any liability in respect of the failure to issue such Common Shares as to which such requisite authority has not been obtained. As a condition to the issuance of any Common Shares hereunder, the Company may require the Participant to satisfy any requirements that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. |
| 7. | Certain Definitions. |
| a. | “Disability” shall mean the Participant’s inability due to physical or mental incapacity, to perform the essential functions of the Participant’s job, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty consecutive days. |
| b. | “Service” means a Participant’s service to the Company as a Director. A change in the capacity in which the Participant renders service to the Company as a Director shall be treated as a termination of the Participant’s Service, unless the Committee otherwise determines in its sole discretion. |
| 8. | Miscellaneous. |
| a. | Relation to the Plan. This Agreement is subject to the terms of, the Plan, the terms of which are incorporated by reference in this Agreement in their entirety. In the event of any inconsistency between the provisions of this Agreement and the Plan, the terms of the Plan will prevail. |
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| b. | Section 409A. The Restricted Stock Units are intended to be exempt from the provisions of Section 409A of the Code or, if not so exempt, to comply with Section 409A of the Code and, wherever possible, this Agreement and the Plan shall be construed and administered to the fullest extent possible to reflect such intent. To the extent that any payment or benefit hereunder constitutes non-exempt “nonqualified deferred compensation” for purposes of Section 409A of the Code, and such payment or benefit would otherwise be payable or distributable hereunder by reason of the Participant’s termination of Service, all references to the Participant’s termination of Service shall be construed to mean a “separation from service” as defined in Section 409A of the Code (a “Section 409A Separation from Service”), and the Participant shall not be considered to have a termination of Service unless such termination constitutes a Section 409A Separation from Service. If, at the time of a Participant’s Section 409A Separation from Service, (i) the Participant will be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it, without interest, on the tenth business day of the seventh month after such separation from service. In any case, a Participant will be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s account in connection with the Plan and this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties. |
| c. | Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement will be binding upon the Participant and the Participant’s beneficiaries, executors and administrators. |
| d. | Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws provisions thereof. Any legal proceeding related to this Agreement will be brought in an appropriate Delaware court, and the parties to this Agreement consent to the exclusive jurisdiction of the court for this purpose. |
| e. | Entire Agreement. This Agreement, the Award Notice and the Plan set forth the entire agreement and understanding of the parties to this Agreement with respect to the award of the Restricted Stock Units and supersedes all prior agreements, arrangements, plans and understandings relating to the award of the Restricted Stock Units and administration of the Plan. |
| f. | Amendment and Waiver. The Committee may, in its sole discretion, amend this Agreement from time to time in any manner that is not inconsistent with the Plan; provided, however, that (a) no amendment shall materially impair the rights of the Participant under this Agreement without the Participant’s consent, and (b) the Participant’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code. |
| g. | Construction; Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of such provision shall not affect the validity or enforceability of any other provision of this Agreement and all other provisions shall remain in full force and effect. |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form S-1 of BKV Corporation of our report dated April 29, 2024, relating to the financial statements of BKV Corporation, which appears in this Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
August 28, 2024
Exhibit 23.2
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| TBPELS REGISTERED ENGINEERING FIRM F-1580 | |||
| 633 17TH STREET SUITE 1700 | DENVER, COLORADO 80202 | TELEPHONE (303) 339-8110 | |
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the references to our firm in this Registration Statement on Form S-1 for BKV Corporation, and to the use of information from, and the inclusion of, our reports, (i) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the Barnett Assets as of December 31, 2021, (ii) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold interests of BKV Corporation referred to as the Chaffee Corners Assets as of December 31, 2021, (iii) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold interests of BKV Corporation referred to as the Chelsea Assets as of December 31, 2021, (iv) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold interests of BKV Corporation referred to as the BKV Assets as of December 31, 2021, (v) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the Barnett Assets as of December 31, 2022, (vi) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold interests of BKV Corporation referred to as the Chaffee Corners Assets as of December 31, 2022, (vii) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the Chelsea Assets as of December 31, 2022, (viii) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the BKV Assets as of December 31, 2022, (ix) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the North Texas Assets as of December 31, 2022, (x) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the Total Company Assets as of December 31, 2023, and (xi) dated August 7, 2024, with respect to the estimates of proved reserves, future production and income attributable to certain leasehold and royalty interests of BKV Corporation referred to as the Total Company Assets, using a NYMEX Alternate Pricing Scheme, as of December 31, 2023, each in this Registration Statement. We further consent to the reference to our firm under the heading “Experts” in this Registration Statement and related prospectus.
| /s/ Ryder Scott Company | |
| RYDER SCOTT COMPANY, L.P. | |
| TBPELS Firm Registration No. F-1580 |
Denver, Colorado
August 28, 2024
| 1100 LOUISIANA, SUITE 4600 | HOUSTON, TEXAS 77002-5294 | TEL (713) 651-9191 | FAX (713) 651-0849 |
| SUITE 2800, 350 7TH AVENUE, S.W. | CALGARY, ALBERTA T2P 3N9 | TEL (403) 262-2799 |