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TABLE OF CONTENTS
INDEX TO FINANCIAL STATEMENTS
As filed with the Securities and Exchange Commission on August 1, 2017
Registration No. 333-218139
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ranger Energy Services, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
1389
(Primary Standard Industrial Classification Code Number) |
81-5449572
(IRS Employer Identification No.) |
800 Gessner Street, Suite 1000
Houston, Texas 77024
(713) 935-8900
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
Darron M. Anderson
Ranger Energy Services, Inc.
800 Gessner, Suite 1000
Houston, Texas 77024
(713) 935-8900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale of the securities to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer
ý
(Do not check if a smaller reporting company) |
Smaller reporting company o | Emerging growth company ý |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ý
|
||||||||
Title of Each Class of Securities
to be Registered |
Amount to be
Registered(1) |
Proposed Maximum
Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering
Price(1)(2) |
Amount of
Registration Fee(3) |
||||
---|---|---|---|---|---|---|---|---|
Class A common stock, par value $0.01 per share |
5,750,000 | $18.00 | $103,500,000 | $11,995.65 | ||||
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 1, 2017
5,000,000 Shares
Ranger Energy Services, Inc.
Class A Common Stock
We are selling 5,000,000 shares of our Class A common stock. Prior to this offering, there has been no public market for our Class A common stock. We anticipate that the initial public offering price for our Class A common stock will be between $16.00 and $18.00 per share. We have been authorized to list our Class A common stock on the New York Stock Exchange (the "NYSE") under the symbol "RNGR."
CSL Capital Management ("CSL"), Bayou Well Holdings Company, LLC ("Bayou Holdings") and their respective affiliates have indicated that they or one or more of them may collectively purchase in this offering an aggregate of up to $30.0 million, or 1,764,706 shares (based on the midpoint of the price range set forth above), of our Class A common stock at the price to the public. The underwriters will not receive any underwriting discounts or commissions on any shares sold to such potential purchasers. The number of shares available for sale to the general public will be reduced to the extent such potential purchasers purchase such shares. There can be no assurance that any such purchasers will purchase shares in this offering, and, unless otherwise indicated herein, the information presented in this prospectus assumes that no such purchaser purchases shares of our Class A common stock in this offering, and when so indicated, assumes that CSL and its affiliates purchase all such shares. See "Underwriting."
The underwriters will have an option to purchase a maximum of 750,000 additional shares of Class A common stock from us to cover any over-allotment of shares.
We are an "emerging growth company" under federal securities laws and are subject to reduced public company disclosure standards. Please see "Risk Factors" and "Prospectus SummaryEmerging Growth Company Status."
Investing in our Class A common stock involves risks. See "Risk Factors" beginning on page 24.
|
Price to
Public |
Underwriting
Discounts and Commissions |
Proceeds to
Ranger Energy Services, Inc. (before expenses)(1) |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Per Share |
$ | $ | $ | |||||||
Total |
$ | $ | $ |
Delivery of the shares of Class A common stock will be made on or about , 2017.
Neither the Securities and Exchange Commission ("SEC") nor any state securities commission has approved or disapproved of these securities or passed on the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Credit Suisse | Simmons & Company International | Wells Fargo Securities | ||
Energy Specialists of Piper Jaffray |
Barclays | Evercore ISI |
Capital One Securities | Johnson Rice & Company L.L.C. | Raymond James | Scotia Howard Weil |
The date of this prospectus is , 2017.
Neither we nor the underwriters have authorized anyone to provide you with information different from that contained in this prospectus and any free writing prospectus we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the underwriters are offering to sell shares of Class A common stock and seeking offers to buy shares of Class A common stock only in jurisdictions where offers and sales are permitted. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of any sale of the Class A common stock. Our business, liquidity position, financial condition, prospects or results of operations may have changed since the date of this prospectus.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. See "Risk Factors" and "Cautionary Note Regarding Forward-Looking Statements."
Dealer Prospectus Delivery Obligation
Until , 2017 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer's obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
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Presentation of Financial and Operating Data
Unless otherwise indicated, the historical financial and operating information presented in this prospectus is that of Ranger Energy Services, LLC ("Ranger Services") and Torrent Energy Services, LLC ("Torrent Services") on a combined consolidated basis, and these entities on a combined consolidated basis are our predecessor for financial reporting purposes. Further, unless otherwise indicated or the context otherwise requires, the operating information presented in this prospectus gives effect to the anticipated consummation of the ESCO Acquisition (as defined herein) as described under "Prospectus SummaryRecent DevelopmentsESCO Acquisition." As a result of ESCO (as defined herein) having a different fiscal year end than our predecessor, certain of the operating information presented in this prospectus gives effect to the anticipated consummation of the ESCO Acquisition by adjusting the historical operating information of our predecessor (i) for the year ended December 31, 2016 to include ESCO's historical operating results for the twelve months ended January 31, 2017 and (ii) for the three months ended March 31, 2017 to include ESCO's historical operating results for the three months ended April 30, 2017. Except as otherwise specifically indicated, statistics presented in this prospectus about our current well service rig fleet include the well service rigs we will acquire as part of the ESCO Acquisition. Consummation of this offering is contingent on the consummation of the ESCO Acquisition.
Certain amounts and percentages included in this prospectus have been rounded. Accordingly, in certain instances, the sum of the numbers in a column of a table may not exactly equal the total figure for that column.
The market data and certain other statistical information used throughout this prospectus are based on independent industry publications, government publications and other published sources, including industry reports from Coras Oilfield Research ("Coras"), including "Workover Rig StudyCyclical Downturn Meets A Structural Shift" and "Coras Oilfield TrendsPreparing for the upcoming frac season," Spears and Associates ("Spears"), including "Drilling and Production OutlookDecember 2016," "Drilling and Production OutlookMarch 2017," "Well Servicing: Market Evaluation ExcerptsDecember 2016" and "Well Servicing: Market EvaluationQ1 2017," and data from Qittitut Consulting ("Qittitut"), including its "US Land Drill Out Jobs Market ModelFive-Year History (2012-2016) and One-Year Forecast (2017)," and HPDI/Drillinginfo ("Drillinginfo"), including data available through its online database. Some data are also based on our good faith estimates. Although we believe these third-party sources are reliable as of their respective dates, neither we nor the underwriters have independently verified the accuracy or completeness of this information. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section entitled "Risk Factors." These and other factors could cause results to differ materially from those expressed in these publications.
We own or have rights to various trademarks, service marks and trade names that we use in connection with the operation of our business. This prospectus may also contain trademarks, service marks and trade names of third parties, which are the property of their respective owners. Our use or display of third parties' trademarks, service marks, trade names or products in this prospectus is not intended to, and does not imply a relationship with, or endorsement or sponsorship by us. Solely for convenience, the trademarks, service marks and trade names referred to in this prospectus may appear without the ®, TM or SM symbols, but the omission of such references is not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable owner of these trademarks, service marks and trade names.
ii
This summary contains basic information about us and the offering. Because it is a summary, it does not contain all the information that you should consider before investing in our Class A common stock. You should read and carefully consider this entire prospectus before making an investment decision, especially the information presented under the heading "Risk Factors," "Cautionary Note Regarding Forward-Looking Statements," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the historical combined consolidated and unaudited pro forma condensed financial statements and the related notes thereto appearing elsewhere in this prospectus.
Except as otherwise indicated or required by the context, all references in this prospectus to the "Company," "we," "us" or "our" relate, prior to the corporate reorganization described in this prospectus, to Ranger Services and Torrent Services on a combined basis (as combined, our "Predecessor," and each, a "Predecessor Company"), and following the corporate reorganization described in this prospectus, to Ranger Energy Services, Inc. ("Ranger Inc.") and its consolidated subsidiaries. References in this prospectus to "Ranger LLC" refer to RNGR Energy Services, LLC, which, following the corporate reorganization described in this prospectus, will own our operating subsidiaries, including Ranger Services and Torrent Services. References in this prospectus to the "Existing Owners" refer to Ranger Energy Holdings, LLC ("Ranger Holdings"), Ranger Energy Holdings II, LLC ("Ranger Holdings II"), Torrent Energy Holdings, LLC ("Torrent Holdings") and Torrent Energy Holdings II, LLC ("Torrent Holdings II"), the entities through which our existing investors, including CSL, certain members of our management and other investors, will, following the corporate reorganization described in this prospectus, own their retained interest in us and Ranger LLC. We have provided definitions for certain of the industry terms used in this prospectus in the "Glossary."
Except as otherwise indicated, all information contained in this prospectus assumes or reflects no exercise of the underwriters' option to purchase additional shares of Class A common stock and no purchase of shares of Class A common stock in this offering by CSL, Bayou Holdings and their respective affiliates, and excludes shares of Class A common stock reserved for issuance under our long-term incentive plan and shares of Class A common stock that may be issued to CSL Energy Holdings I, LLC ("CSL Holdings I") and CSL Energy Holdings II, LLC ("CSL Holdings II") on or prior to the 18-month anniversary of the consummation of this offering, as described further under "Our History and Corporate Reorganization." However, except as otherwise indicated, all information contained in this prospectus assumes or reflects the issuance of (i) 294,118 shares of our Class A common stock as partial consideration for the ESCO Acquisition, as described further under "Recent DevelopmentsESCO Acquisition," and (ii) 484,381 shares of our Class A common stock and 1,061,625 Ranger Units (as defined herein) (and a corresponding number of shares of our Class B common stock) to the Bridge Loan Lenders (as defined herein), as described further under "Our History and Corporate Reorganization."
We are one of the largest independent providers of high-specification ("high-spec") well service rigs and associated services in the United States, with a focus on technically demanding unconventional horizontal well completion and production operations. We believe that our fleet of 123 well service rigs (including 49 well service rigs to be acquired from ESCO) is among the newest and most advanced in the industry and, based on our historical rig utilization and feedback from our customers, we believe that we are an operator of choice for U.S. onshore exploration and production ("E&P") companies that require completion and production services at increasing lateral lengths. Our high-spec well service rigs facilitate operations throughout the lifecycle of a well, including (i) well completion support, such as milling out composite plugs used during hydraulic fracturing; (ii) workover, including retrieval and replacement of existing production tubing; (iii) well maintenance, including replacement of downhole artificial lift components; and (iv) decommissioning, such as plugging and abandonment operations. We also provide rental equipment, including well control packages, hydraulic catwalks and other equipment that are often deployed with our well service rigs. In addition, we own and operate a fleet of
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proprietary, modular natural gas processing equipment that processes rich natural gas streams at the wellhead or central gathering points. We have operations in most of the active oil and natural gas basins in the United States, including the Permian Basin, the Denver-Julesburg Basin, the Bakken Shale, the Eagle Ford Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays.
We have invested in a premier fleet of well service rigs. Our customers, which include many of the leading U.S. onshore E&P operators such as Devon Energy Corporation (which is an ESCO customer), EOG Resources, Inc., Noble Energy, Inc., Oasis Petroleum Inc., PDC Energy Inc. and Statoil ASA, are increasingly utilizing modern horizontal well designs characterized by long lateral lengths that can extend in excess of 12,000 feet. Long lateral length wellbores require increased amounts of completion tubing, which, in turn, require well service rigs with higher operating horsepower ("HP") to pull longer tubing strings from the wellbore. Furthermore, long lateral horizontal wells generally utilize taller stacks of wellhead equipment, which drives demand for well service rigs that have taller mast heights capable of accommodating an elevated work floor. These modern horizontal well designs are ideally serviced by "high-spec" well service rigs with high operating HP (450 HP or greater) and tall mast heights (102 feet or higher) rather than competing coiled tubing units and older or lower-spec well service rigs. As of July 28, 2017, all but one of our well service rigs meets these specifications, and approximately 82% of our well service rigs exceed these specifications with HP ratings of at least 500 HP and mast heights of at least 104 feet, making our fleet particularly well-suited to perform high-margin, horizontal well completion and production operations. The only rig in our fleet that is not high-spec is generally deployed only for plugging and abandonment operations on conventional vertical wells.
The high-spec well service rigs in our fleet, a substantial majority of which has been built since 2010, have an average age of approximately six years and feature modern operating components sourced from leading U.S. manufacturers such as National Oilwell Varco, Inc. ("NOV"). In February 2017, to meet expected customer demand, we entered into a purchase agreement (as subsequently amended, the "NOV Purchase Agreement") with NOV, pursuant to which we expect to accept delivery of an additional 21 high-spec well service rigs periodically throughout the remainder of 2017. However, NOV is not obligated pursuant to the NOV Purchase Agreement to deliver such high-spec well service rigs during 2017, and will not face penalties for delayed delivery, regardless of the length or cause of any delay. As a result of the NOV Purchase Agreement, our well service rig fleet will expand to 144 rigs, 143 of which will be high-spec. The following table provides summary information regarding our high-spec well service rig fleet, including the additional rigs that we expect to be delivered during the remainder of 2017. For additional information, please see "BusinessProperties and EquipmentEquipmentWell Services."
HP Rating(1)
|
Mast Height | Mast Rating(2) | Manufacturer & Model |
Number of
High-Spec Rigs |
|||||||
---|---|---|---|---|---|---|---|---|---|---|---|
600 HP |
112' - 117' | 300,000 - 350,000 lbs | NOV 6-C | 14 | * | ||||||
500 - 550 HP |
104' - 108' | 250,000 - 275,000 lbs | NOV 5-C and equivalent | 103 | ** | ||||||
450 - 475 HP |
102' - 104' | 200,000 - 250,000 lbs | NOV 4-C and equivalent | 26 | *** | ||||||
| | | | | | | | | | | |
Total |
143 |
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The composition of our well service rig fleet makes it particularly well-suited to provide both completion-oriented services, the demand for which generally increases along with increased capital spending by E&P operators, and production-oriented services, the demand for which is less influenced, on a comparative basis, by such capital spending. The ability of our well service rigs to accommodate the needs of our E&P customers in a variety of economic conditions has historically allowed us to maintain relatively high rig utilization as measured by total monthly rig hours worked in a particular period per well service rig, which we refer to herein as our average monthly hours per rig. For example, our rig utilization as measured by average monthly hours per rig, exclusive of the impact of the ESCO Acquisition, during 2016 and the first quarter of 2017 was approximately 178 and 194, respectively. As noted above, our rig utilization as measured by average monthly hours per rig for these periods are exclusive of the impact of the ESCO Acquisition; ESCO historical rig utilization, as measured by average monthly hours per rig, was approximately 88 and 112, respectively, for the twelve months ended January 31, 2017 and the three months ended April 30, 2017. See "Management's Discussion and Analysis of Financial Condition and Results of OperationsHow We Evaluate Our OperationsRig Utilization."
In addition to our core well service rig operations, we offer a suite of complementary services, including wireline, snubbing, fluid management and well service-related equipment rentals. Our rental equipment includes well control packages and hydraulic catwalks, which are typically deployed in conjunction with high-spec well service rigs. These complementary services and equipment are typically procured by the same decision-makers at our customers that procure our well service rigs and are provided by our same field personnel, generating incremental revenues per job while limiting our incremental costs. Our complementary well completion and production services and equipment strategically enhance our operating footprint, create operational efficiencies for our customers and allow us to capture a greater portion of their spending across the lifecycle of a well.
We also provide a range of proprietary, modular equipment for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure. Our fleet of more than 25 MRUs is modern, reliable and equipped to handle large volumes of natural gas from conventional and unconventional wells while operating across a broad array of oilfield conditions with minimal downtime and maintenance. Our customers rely on our purpose-built MRUs to process natural gas to meet pipeline specifications, extract higher value NGLs, process natural gas to conform to the specifications of fuel gas that can be used at wellsites and facilities, and to reduce the amount of hydrocarbons at the flare tip to control emissions of hazardous VOCs.
We have focused on combining our high-spec rig fleet, complementary well service operations and processing solutions with a highly skilled and experienced workforce, which enables us to consistently and efficiently deliver exceptional service while maintaining high health, safety and environmental standards. We believe that our strong operational performance and safety record provides a strong competitive advantage with current and prospective E&P customers.
We believe the demand for our services will continue to increase as a result of a number of favorable industry trends. Demand for oilfield services is primarily driven by the level of drilling, completion and production activity by E&P companies, which, in turn, depends largely on the current and anticipated profitability of developing oil and natural gas reserves. Crude oil prices have increased from their lows of $26.21 per barrel ("Bbl") in early 2016 to $46.02 per Bbl at the end of June 2017 (based on the Cushing West Texas Intermediate Spot Oil Price ("WTI")), but remain approximately 57% lower than a high of $107.26 per Bbl in June 2014. Natural gas prices have increased from their lows of $1.64 per million British Thermal Units ("MMBtu") in early 2016 to $2.98 per MMBtu at the end of June 2017 (based on the Henry Hub Natural Gas Spot Price), but remain approximately 63% lower than a high of $8.15 per MMBtu in February 2014. Drilling and completion activity by E&P
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companies has increased along with increased commodity prices. Although our cost of services has also historically risen along with increased commodity prices and may rise faster than increases in our revenues, we believe that we will benefit from the increased demand for our services that we expect would result from increased commodity prices. Additionally, we believe there are long term fundamental demand trends that will continue to benefit us, including:
Historically, the well services market in the United States has primarily been driven by well maintenance and workover operations on conventional, vertical wells. However, Coras estimates that more than 100,000 new horizontal shale wells have been brought online over the last decade, driven by a structural shift towards unconventional resource development. According to data from the Energy Information Administration and Drillinginfo, the contribution of horizontal wells to total onshore U.S. crude oil production has increased rapidly over the last five years, representing approximately 66% of such production from the lower 48 states in 2016 as compared to approximately 39% in 2012. Further, the contribution to total onshore U.S. crude oil production of horizontal wells completed more than three years ago, which are typically the most likely to require workover and maintenance services, represented approximately 16% of such production in the lower 48 states in 2016, or approximately four times greater than that in 2012. In addition, according to Spears, a total of approximately 90,700 horizontal wells are expected to be drilled in the United States from 2017 to 2021. Going forward, unconventional horizontal wells are expected to drive the demand for high-spec well service rigs both for completion of new wells and for maintenance and workover operations to sustain production on the increasing population of existing wells. To the extent that the oil and natural gas industry recovers from the recent prolonged decline in activity, we expect that demand for our higher-margin, completion-oriented services will grow at a faster rate in the near-term than that for our production-oriented services.
In addition to the demand trends cited above, we believe pricing for our services will be further enhanced as a result of the following supply factors:
According to Coras, the vast majority of well service rigs in the United States are poorly suited for unconventional, long-lateral horizontal well applications. Coras classifies well service rigs with capacities of 450 HP or more and mast heights of 102 feet or higher as high-spec well service rigs that are ideally suited to service unconventional horizontal wells. According to Coras, the U.S. oil and natural gas industry is expected to require 1,000 to 1,500 of such ideally suited high-spec well service rigs over the next three years, as compared to an estimated total industry fleet of 770 as of February 28, 2017.
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Moreover, alternative techniques for well completion, such as the deployment of coiled tubing units for drill-out operations, have increasingly become less common as wellbore lateral lengths have continued to increase beyond the point where coiled tubing can reliably be deployed for well completion. Based on discussions with our E&P customers, we believe that coiled tubing units generally begin to decrease in effectiveness at lateral lengths in excess of 8,000 feet. Spears estimates that in 2016, wells with lateral lengths in excess of 8,000 feet accounted for approximately 98% of the horizontal wells drilled in the Bakken Shale, approximately 50% of the horizontal wells drilled in the Permian Basin and approximately 42% of the horizontal wells drilled in the Rocky Mountains region, including the Denver-Julesburg Basin. Increased lateral lengths in these and other basins are generally prompting operators to shift from using coiled tubing units to more reliable high-spec well service rigs. For example, according to Qittitut, approximately 45% of horizontal well completion drill-outs in 2016 were completed with well service rigs, as compared to approximately 25% in 2012.
As a result of the supply and demand trends listed above, we expect to benefit from enhanced pricing for our services and continued strong utilization. We believe that increased demand for our services as a result of commodity price trends and the increasing complexity of well completion operations, along with the limited supply of high-spec well service rigs and the relative unreliability of alternative well servicing techniques, present a unique market opportunity for our high-spec well service rig operations and related services.
We believe that the following strengths will position us to achieve our primary business objective of creating value for our shareholders:
Leading Provider of High-Spec Well Service Rigs and Associated Services
We have invested in a premier fleet of well service rigs designed to efficiently execute technically challenging horizontal well completion programs as well as production-oriented well maintenance, workover and decommissioning operations. In February 2017, we entered into the NOV Purchase Agreement, pursuant to which we expect to accept delivery of an additional 21 high-spec well service rigs periodically throughout the remainder of 2017. As a result of the NOV Purchase Agreement, our total well service rig fleet will expand to 144 rigs, 143 of which will be high-spec. Based on Coras data, this makes us one of the largest independent providers of high-spec well service rigs and associated services in the United States. Further, we believe that our fleet of high-spec well service rigs is among the youngest fleet of well service rigs in the industry and is therefore more reliable and better suited to perform work on long lateral horizontal wells than the older fleets of many of our competitors. Additionally, our largely uniform fleet of high-spec well service rigs facilitates consistency in maintenance, training, in-field performance and service quality to customers. As horizontal well complexity continues to increase, we expect our customers will increasingly rely on high-spec well service rigs to perform both completion and production services. Consequently, we expect demand growth for our fleet of well service rigs to outpace that for many of our competitors' fleets.
Balanced Exposure to Completion and Production Activity
The composition of our well service rig fleet makes it particularly well-suited to provide both completion-oriented and production-oriented services. Accordingly, we benefit from increased exposure to high-margin unconventional well completion support operations during periods of increased completion activity while maintaining stable growth through workover, well maintenance and decommissioning operations on the growing base of producing wells. The ability of our well service rigs to accommodate the needs of our E&P customers in a variety of economic conditions has historically allowed us to maintain relatively high well service rig utilization. For example, our rig utilization as measured by average monthly hours per rig during 2016 and the first quarter of 2017 was approximately 178 and 194, respectively. Although ESCO's historical rig utilization has been lower than
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ours in recent periods, we believe that, following an initial integration period during 2017 and the beginning of 2018, our balanced exposure to completion and production activity will continue to result in relatively high well service rig utilization as compared to our competitors going forward. See "Management's Discussion and Analysis of Financial Condition and Results of OperationsFactors Impacting the Comparability of Results of OperationsESCO Acquisition."
Proprietary Natural Gas and NGL Processing Solutions
We have developed a premium offering that includes proprietary designs on modern processing equipment, including modular MRUs that process natural gas at the wellhead or central gathering points to meet pipeline specifications, extract higher value NGLs, provide fuel gas for wellsites and facilities and reduce emissions at the flare tip. To facilitate the processing of rich natural gas streams in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure, we typically enter into six- to twelve-month rental agreements with customers for our full-service, turnkey solutions, providing us with relatively stable cash flows as compared to the shorter-term agreements often used for similar equipment and services. Our modular units provide flexibility across a broad range of project requirements and operating environments, and are designed to allow for quick mobilization to minimize downtime and increase utilization, particularly in conjunction with the operational support provided by our expert field personnel. We expect our advanced technology and high-quality service to continue to drive market penetration across the multiple basins in which we operate.
Deep Relationships with Blue-Chip E&P Customers across Multiple Basins
We are headquartered in Houston, Texas, and have an extensive operating footprint in key unconventional energy plays, including the Permian Basin, the Denver-Julesburg Basin, the Eagle Ford Shale, the Bakken Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays, which are among the most prolific unconventional resource plays in the United States. Our relationships with our broad customer base, which includes Devon Energy Corporation, EOG Resources, Inc., Noble Energy, Inc., Oasis Petroleum Inc., PDC Energy Inc. and Statoil ASA, enabled us during the recent downturn to maintain higher utilization and stronger financial results than many of our competitors. Our track record of consistently providing high-quality, safe and reliable service has allowed us to develop long-term customer partnerships, which we believe makes us the service provider of choice for many of our customers. For example, in 2014, we entered into a five-year take-or-pay contract (the "EOG Contract") with EOG Resources, Inc. for three well service rigs, which was increased in 2015 to six well service rigs and which we anticipate increasing in August 2017 to eight well service rigs (or, at the option of EOG Resources, Inc., 11 well service rigs), operating in the Eagle Ford Shale in South Texas. Pursuant to the EOG Contract, EOG Resources, Inc. is generally obligated, with respect to each contracted well service rig, to utilize such well service rig for an average annual minimum of 2,750 hours at a stated rate based on our costs and other adjustments plus a mark-up that is subject to adjustment in certain circumstances based on market conditions and other factors. Further, during 2016, and excluding the impact of the ESCO Acquisition, we worked for 148 distinct customers, including 33 publicly traded companies, with no customer accounting for more than 20% of our annual revenues. As a result of the ESCO Acquisition, we expect to add approximately 92 additional distinct customers, including 11 publicly traded companies, none of which would have accounted for more than 20% of our annual revenues after giving effect to the ESCO Acquisition. As our customers increase their drilling and completion activity, we expect to continue to leverage our current relationships to expand our geographic footprint and to facilitate continued growth in the basins in which we currently operate.
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Strong Balance Sheet Enables Strategic Deployment of Capital
We believe our balance sheet strength has allowed us to continue to invest in our equipment and meet working capital requirements required for a fast growing business, while also providing flexibility to opportunistically pursue expansion opportunities. We believe that larger E&P operators prefer well-capitalized service providers that are better positioned to meet service requirements and financial obligations. Many of our primary competitors have high levels of total debt or recently emerged from bankruptcy during which they significantly reduced their capital and maintenance expenditures. By contrast, after giving effect to this offering and the use of proceeds therefrom, we expect to have on a pro forma basis only $7.0 million of seller notes outstanding, approximately $18.0 million to $21.0 million of borrowing capacity, which is subject to adjustment based on, among other things, the eligibility and amount of our accounts receivable, under a senior secured revolving credit facility that we intend to enter into in connection with the closing of this offering (our "Credit Facility") and approximately $26.7 million of pro forma cash on the balance sheet (based on our cash balance as of March 31, 2017), which we believe will provide us with ample liquidity to support strategic investments to continue to grow our business and enhance market share.
Experienced Management Team Reinforces Dedication to Safety and Reliability
The members of our management team are seasoned operating, financial and administrative executives with extensive experience in and knowledge of the oilfield services industry. Our senior executives have a strong track record in establishing oilfield service companies and growing them organically and through strategic acquisitions. Our management team is led by our President and Chief Executive Officer, Darron M. Anderson, who has more than 26 years of oil and natural gas experience and a track record of leadership in the oilfield services industry. Each member of our management team possesses significant leadership and operational experience with long tenures in the industry and respective careers at leading companies. We believe that the commitment of our management team to building and supporting a strong company culture has driven our consistent track record of reliability and safety. During 2016, our Total Recordable Incident Rates ("TRIR") in our Well Services and Processing Solutions segments were 0.72 and 0.00, respectively, and we expect to maintain similar TRIRs following the ESCO Acquisition. Our history of safe operations enables us to qualify for projects with industry leading E&P customers that have stringent safety requirements.
We believe that we will be able to achieve our primary business objective of creating value for our shareholders by executing on the following strategies:
Capitalize on the Expected Increase in Demand for High-Spec Well Service Rigs
As a leading owner and operator of modern high-spec well service rigs with an operating footprint and customer relationships in the most active unconventional oil and natural gas basins in the United States, we believe that our company is well positioned to capitalize efficiently on a recovery in unconventional completion and production activity and the resulting demand for high-spec well service rigs. Further, we expect that the relatively high current inventory of DUC wells will drive demand growth for horizontal well completion services that will outpace the growth in the U.S. onshore drilling rig count. Industry reports by Spears forecast that the U.S. onshore market for completion equipment and services is expected to grow at a compound annual growth rate of 26% through 2021, primarily driven by unconventional horizontal wells. We intend to leverage our high quality assets to strategically target higher-margin, horizontal completions-oriented work that typically exceeds the capabilities of coiled tubing and older, lower specification well service rigs. Unconventional oil wells in particular typically require frequent intervention as a result of relatively high utilization of downhole tools and equipment. As the growing base of unconventional producing wells ages, we expect E&P operators to increasingly deploy well service programs in order to increase and sustain production. We are well
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positioned to provide these services throughout the life of the well to meet this demand, including through well completion support services, workover operations and well maintenance, which should result in stable growth, increased asset utilization, enhanced profitability and relatively limited cyclicality.
Grow Our Fleet of High-Spec Well Service Rigs, Modular MRUs and Associated Equipment
We have invested in a fleet of high-spec well service rigs through a combination of purchasing new-build rigs from leading U.S. manufacturers and by acquiring and integrating assets from other companies. As a result of the NOV Purchase Agreement, we expect to accept delivery of an additional 21 high-spec rigs periodically throughout the remainder of 2017. Further, in connection with our continued investment in high-spec well service rigs capable of meeting the most challenging horizontal well demands, we intend to accelerate our utilization of innovative technology systems allowing for the immediate collection and analysis of rig performance data. This data will allow us to operate among the highest levels of efficiency while assisting our customers in developing best well servicing practices.
We have also invested in differentiated and proprietary assets in our equipment rentals business, including our modern, reliable fleet of modular MRUs. We expect to leverage our strong balance sheet and continue to strategically deploy additional capital to invest in high-spec well service rigs, purpose-built MRUs and complementary rental equipment to service our customers' well completion, production and processing operations.
Develop and Expand Relationships with Existing and New Customers
We serve well-capitalized customers that we believe will be critical to the long-term development of conventional and unconventional domestic onshore resources in the United States. We intend to continue developing long-term relationships with our customer base of leading E&P operators that value safe and reliable operations and have the financial stability and flexibility to weather most industry cycles. We believe that our strong track record of performance combined with our fleet of high-spec well service rigs will allow us to both develop new customer relationships and expand our existing customer relationships through cross-selling opportunities with respect to our complementary equipment and services. Furthermore, many of our customers have established operations throughout the United States, which we intend to leverage as opportunities for us to enter new geographic regions as well as further strengthen our presence in the regions where we currently operate.
Maintain a Conservative Balance Sheet to Pursue Organic and External Growth Opportunities
We intend to maintain a conservative approach to managing our balance sheet to preserve operational and strategic flexibility. We actively manage our liquidity by monitoring cash flow, capital spending and debt capacity. For example, as of March 31, 2017, we had only approximately $22.5 million of total combined consolidated long-term debt. Prior to or in connection with the consummation of this offering, all of such long-term debt, as well as the additional $9.9 million incurred under the Ranger Bridge Loan (as defined herein) from April through July 2017, has been or will be repaid, and we will have only $7.0 million of seller notes outstanding thereafter. Our focus on maintaining a strong balance sheet has enabled us to execute our strategy through industry volatility and commodity price cycles. We expect to fund the expansion of our high-spec well service rig fleet and continue to grow our operations with the proceeds from this offering, cash flow from operations, availability under our Credit Facility and capital markets offerings when appropriate.
Reinforce Strong Company Culture through Employee Retention and Dedication to Safety
We believe that our technically skilled personnel enable us to provide consistently reliable services while maintaining an excellent safety record that surpasses industry averages and meets the expectations of our leading E&P customers. By reinforcing our strong company culture, fostering a dedication to safety through the maintenance of stringent employee screening and training and providing
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opportunities to work with modern equipment and leading technologies, we expect to continue to experience relatively low turnover of our highly skilled workforce and attract additional talent to continue to deliver exceptional service to our customers.
We believe that our strong growth has been augmented by our relationship with CSL, our equity sponsor. We believe that we will continue to benefit from CSL's investment experience in the oilfield services sector, its expertise in effecting transactions and its support for our near-term and long-term strategic initiatives.
CSL is an SEC-registered private equity firm founded in early 2008 and headquartered in Houston, Texas, that invests in energy services companies and entrepreneurs with a focus on oilfield services opportunities. Since its inception, CSL has raised in excess of $1.4 billion in equity capital and commitments across various investment vehicles, including startups, growth equity, recapitalizations and restructurings in energy services, consumables and equipment. The CSL team has deep sector expertise in the energy industry and takes a hands-on approach to investments, relying on organic growth and strategic thinking to generate investment success. CSL's investors include financial institutions, endowments, foundations, family offices and high net worth individuals.
Upon completion of this offering, the Existing Owners, CSL Energy Opportunities Fund II, L.P. ("CSL Opportunities II") and CSL Holdings II will initially own an aggregate of 2,122,767 shares of Class A common stock, 6,299,292 Ranger Units and 6,299,292 shares of Class B common stock, representing approximately 59.7% of the voting power of our capital stock. CSL holds a majority of the voting interests in each of the Existing Owners, CSL Energy Opportunities II and CSL Holdings II.
In addition, CSL, Bayou Holdings and their respective affiliates have indicated that they or one or more of them may collectively purchase in this offering an aggregate of up to $30.0 million, or 1,764,706 shares (based on the midpoint of the price range set forth on the cover page of this prospectus), of our Class A common stock at the price to the public. Assuming CSL and its affiliates purchase all of such $30.0 million, or 1,764,706 shares, of our Class A common stock in this offering, CSL and its affiliates will beneficially own, upon completion of the offering, an aggregate of approximately 3,887,473 shares of Class A common stock, 6,299,292 Ranger Units and 6,299,292 shares of Class B common stock, representing approximately 72.2% of the voting power of our capital stock. The underwriters will not receive any underwriting discounts or commissions on any shares sold to such potential purchasers.
For more information on CSL and the ownership of our common stock by our principal shareholders, including the Existing Owners, see "Our History and Corporate Reorganization" and "Security Ownership of Certain Beneficial Owners and Management."
ESCO Acquisition
On May 30, 2017, we entered into a definitive purchase agreement, which was subsequently amended and restated on July 31, 2017, with ESCO Leasing, LLC, an affiliate of Energy Service Company of Bowie, Inc. ("ESCO"), to acquire 49 high-spec well service rigs and certain ancillary equipment for total consideration of $59.7 million, consisting of $47.7 million in cash, $7.0 million of secured seller notes and $5.0 million in shares of our Class A common stock based on the initial public offering price of our Class A common stock in this offering (or approximately 294,118 shares of our Class A common stock assuming the midpoint of the price range set forth on the cover page of this prospectus), subject to customary purchase price adjustments (the "ESCO Acquisition"). We intend to fund the cash portion of the consideration for the ESCO Acquisition, net of a $2.5 million deposit paid upon entry into the purchase agreement for the ESCO Acquisition, with a portion of the net proceeds of this offering. See "Use of Proceeds." The following table provides summary information regarding
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the high-spec well service rigs that we expect to acquire pursuant to the ESCO Acquisition. For additional information, please see "BusinessProperties and EquipmentEquipmentWell Services."
HP Rating(1)
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Mast Height | Mast Rating | Manufacturer & Model |
Number of
High-Spec Rigs |
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600 HP |
112' - 117" | 300,000 - 350,000 lbs | NOV 6-C | 9 | ||||||||||
500 - 550 HP |
104' - 108" | 250,000 - 275,000 lbs | NOV 5-C and equivalent | 34 | ||||||||||
450 - 475 HP |
102' - 104' | 200,000 - 250,000 lbs | NOV 4-C and equivalent | 6 | ||||||||||
Total |
49 |
As a result of the ESCO Acquisition, we expect to triple the size of our Permian Basin high-spec well service rig fleet and expand the geographic scope of our well service business to include the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays, which we expect to diversify our hydrocarbon exposure by increasing our natural gas-directed operations. We also expect that the ESCO Acquisition will enhance our customer base by adding up to 92 new customers, including Devon Energy Corporation, which accounted for approximately 31% of ESCO's revenues during the twelve months ended January 31, 2017, and expanding our relationship with, among others, XTO Energy Inc. Further, to accommodate the increased size and scope of our operations as a result of the ESCO Acquisition, we intend to extend conditional offers of employment to substantially all of ESCO's 291 employees for a period of at least one year following the consummation thereof. We expect to consummate the ESCO Acquisition at or near the time we consummate this offering, and the consummation of this offering is contingent on the consummation of the ESCO Acquisition.
Our History and Corporate Reorganization
Ranger Services was, through Ranger Holdings, formed by CSL in June 2014 as a provider of high-spec well service rigs and associated services. Torrent Services was, through Torrent Holdings, acquired by CSL in September 2014 as a provider of proprietary, modular equipment for the processing of natural gas. In June 2016, CSL indirectly acquired substantially all of the assets of Magna Energy Services, LLC ("Magna"), a provider of well services and wireline services, which it contributed to Ranger Services in September 2016. In October 2016, Ranger Services acquired substantially all of the assets of Bayou Workover Services, LLC ("Bayou"), an owner and operator of high-spec well service rigs. The historical combined consolidated financial information of our Predecessor included in this prospectus presents the historical financial information of the Predecessor Companies, including, as applicable, the results of operations of Magna and Bayou for periods subsequent to their respective acquisitions.
Ranger Inc. was incorporated as a Delaware corporation in February 2017. Following this offering and the corporate reorganization described below, Ranger Inc. will be a holding company, the sole material assets of which will consist of membership interests in Ranger LLC. Ranger LLC will own all of the outstanding equity interests in Ranger Services and Torrent Services, the subsidiaries through which it will operate its assets. After the consummation of the corporate reorganization described below, Ranger Inc. will be the sole managing member of Ranger LLC, will be responsible for all operational, management and administrative decisions relating to Ranger LLC's business and will consolidate the financial results of Ranger LLC and its subsidiaries.
In connection with this offering, the Existing Owners will effect a series of restructuring transactions, as a result of which (a) Ranger Holdings II and Torrent Holdings II will contribute certain of the equity interests in the Predecessor Companies to Ranger Inc. in exchange for an aggregate of 1,638,386 shares of Class A common stock and an aggregate of $3.0 million to be paid to CSL Holdings I and CSL Holdings II on or prior to the 18-month anniversary of the consummation of this offering in, at Ranger Inc.'s option, cash, shares of Class A common stock (with such shares to be valued based
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on the greater of the initial public offering price of the Class A common stock in this offering and a 30-day volume-weighted average price) or a combination thereof, and Ranger Inc. will contribute such equity interests to Ranger LLC in exchange for 1,638,386 shares of Class A common stock, (b) Ranger Holdings and Torrent Holdings will contribute the remaining membership interests in the Predecessor Companies to Ranger LLC in exchange for 5,621,491 units in Ranger LLC ("Ranger Units") and 5,621,491 shares of Ranger Inc.'s Class B common stock, which Ranger Inc. will initially issue and contribute to Ranger LLC, (c) Ranger Inc. will contribute all of the net proceeds received by it in this offering to Ranger LLC in exchange for 5,000,000 Ranger Units, (d) Ranger LLC will distribute to each of Ranger Holdings and Torrent Holdings one share of Class B common stock received pursuant to (b) above for each Ranger Unit such Existing Owner holds and (e), as consideration for the termination of the Ranger Bridge Loan, Ranger Inc. will issue 484,381 shares of Class A common stock (in connection with which Ranger LLC will issue 484,381 Ranger Units to Ranger Inc.) and Ranger LLC will issue an aggregate of 1,061,625 Ranger Units (and distribute a corresponding number of shares of Class B common stock) to the Bridge Loan Lenders. With respect to clause (e) above, the number of shares of Class A common stock or Ranger Units (and corresponding shares of Class B common stock), as applicable, to be issued to each of the Bridge Loan Lenders will be calculated by reference to such Bridge Loan Lender's aggregate loans outstanding under the Ranger Bridge Loan, plus the 25% make-whole premium thereon, divided by the initial public offering price of our Class A common stock in this offering. Specifically, CSL Holdings II will receive approximately $8.2 million in shares of Class A common stock (or approximately 484,381 shares of Class A common stock assuming the midpoint of the price range set forth on the cover page of this prospectus), CSL Opportunities II will receive approximately $11.5 million in Ranger Units (or approximately 677,801 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus) and Bayou Holdings will receive approximately $6.5 million in Ranger Units (or approximately 383,824 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus).
After giving effect to these transactions, the offering contemplated by this prospectus, the issuance of 294,118 shares of Class A common stock as partial consideration for the ESCO Acquisition (in connection with which Ranger LLC will issue 294,118 Ranger Units to Ranger Inc.), Ranger Inc. will own an approximate 52.6% interest in Ranger LLC (or 55.0% if the underwriters' option to purchase additional shares is exercised in full), the Existing Owners will own an approximate 39.9% interest in Ranger LLC (or 37.9% if the underwriters' option to purchase additional shares is exercised in full) and the Bridge Loan Lenders will own an approximate 7.5% interest in Ranger LLC (or 7.1% if the underwriters' option to purchase additional shares is exercised in full). Please see "Security Ownership of Certain Beneficial Owners and Management" and "Use of Proceeds."
Each share of Class B common stock has no economic rights but entitles its holder to one vote on all matters to be voted on by shareholders generally. Holders of Class A common stock and Class B common stock will vote together as a single class on all matters presented to our shareholders for their vote or approval, except as otherwise required by applicable law or by our amended and restated certificate of incorporation. We do not intend to list our Class B common stock on any exchange.
Following this offering, under the Amended and Restated Limited Liability Company Agreement of Ranger LLC (the "Ranger LLC Agreement"), each holder (a "Ranger Unit Holder") of Ranger Units (other than us) will, subject to certain limitations, have the right (the "Redemption Right") to cause Ranger LLC to acquire all or a portion of its Ranger Units (along with a corresponding number of shares of our Class B common stock) for, at Ranger LLC's election, (i) shares of our Class A common stock at a redemption ratio of one share of Class A common stock for each Ranger Unit redeemed, subject to conversion rate adjustments for stock splits, stock dividends, reclassification and other similar transactions, or (ii) cash in an amount equal to the Cash Election Value (as defined herein) of such Class A common stock. We will determine whether to issue shares of Class A common stock or cash in an amount equal to the Cash Election Value based on facts in existence at the time of the decision, which we expect would include the trading prices for the Class A common stock at the
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time relative to the cash purchase price for the Ranger Units, the availability of other sources of liquidity (such as an issuance of preferred stock) to acquire the Ranger Units and alternative uses for such cash. Alternatively, upon the exercise of the Redemption Right, Ranger Inc. (instead of Ranger LLC) will have the right (the "Call Right") to, for administrative convenience, acquire each tendered Ranger Unit directly from the redeeming Ranger Unit Holder for, at its election, (x) one share of Class A common stock or (y) cash in an amount equal to the value of a share of Class A common stock, based on a volume-weighted average price. In addition, upon a change of control of us, we have the right to require each Ranger Unit Holder (other than us) to exercise its Redemption Right with respect to some or all of such unitholder's Ranger Units. In connection with any redemption of Ranger Units pursuant to the Redemption Right or our Call Right, the corresponding number of shares of Class B common stock will be cancelled. See "Certain Relationships and Related Party TransactionsRanger LLC Agreement."
Our acquisition (or deemed acquisition for U.S. federal income tax purposes) of Ranger Units pursuant to an exercise of the Redemption Right or the Call Right is expected to result in adjustments to the tax basis of the tangible and intangible assets of Ranger LLC, and such adjustments will be allocated to us. These adjustments would not have been available to us absent our acquisition or deemed acquisition of Ranger Units and are expected to reduce the amount of cash tax that we would otherwise be required to pay in the future.
In connection with the closing of this offering, we will enter into a Tax Receivable Agreement (the "Tax Receivable Agreement") with certain of the Ranger Unit Holders and their permitted transferees (each such person, a "TRA Holder" and, together, the "TRA Holders"). The Tax Receivable Agreement will generally provide for the payment by Ranger Inc. to each TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income tax and franchise tax that Ranger Inc. actually realizes (computed using the estimated impact of state and local taxes) or is deemed to realize in certain circumstances in periods after this offering as a result of (i) certain increases in tax basis that occur as a result of Ranger Inc.'s acquisition (or deemed acquisition for U.S. federal income tax purposes) of all or a portion of such TRA Holder's Ranger Units in connection with this offering or pursuant to the exercise of the Redemption Right or the Call Right and (ii) imputed interest deemed to be paid by Ranger Inc. as a result of, and additional tax basis arising from, any payments Ranger Inc. makes under the Tax Receivable Agreement. Ranger Inc. will retain the benefit of the remaining 15% of these cash savings.
Payments will generally be made under the Tax Receivable Agreement as we realize actual cash tax savings in periods after this offering from the tax benefits covered by the Tax Receivable Agreement. However, if we experience a change of control (as defined under the Tax Receivable Agreement, which includes certain mergers, asset sales and other forms of business combinations) or the Tax Receivable Agreement terminates early (at our election or as a result of our breach), we would be required to make a substantial, immediate lump-sum payment, and such payment may be significantly in advance of, and may materially exceed, the actual realization, if any, of the future tax benefits to which the payment relates. Ranger Inc. is a holding company and accordingly will be dependent upon distributions from Ranger LLC to make payments under the Tax Receivable Agreement. It is expected that payments will continue to be made under the Tax Receivable Agreement for more than 20 to 25 years. For additional information regarding the Tax Receivable Agreement, see "Risk FactorsRisks Related to Our Corporate Reorganization and Resulting Structure" and "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
The Existing Owners and the Bridge Loan Lenders will have the right, under certain circumstances, to cause us to register the offer and resale of their shares of Class A common stock. See "Certain Relationships and Related Party TransactionsRegistration Rights Agreement."
The following diagram indicates our simplified ownership structure immediately following this offering and the transactions related thereto (assuming the midpoint of the price range set forth on the
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cover of this propectus, that the underwriters' option to purchase additional shares is not exercised and without giving effect to the purchase of any shares by CSL, Bayou Holdings or their respective affiliates as discussed on the cover page of this prospectus):
Investing in our Class A common stock involves risks. You should read carefully the section of this prospectus entitled "Risk Factors" for an explanation of these risks before investing in our Class A common stock. In particular, the following considerations may offset our competitive strengths or have a negative effect on our strategy or operating activities, which could cause a decrease in the price of our Class A common stock and a loss of all or part of your investment.
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system of internal controls, which may result in material misstatements of our financial statements or cause us to fail to meet our periodic reporting obligations.
Emerging Growth Company Status
We are an "emerging growth company" within the meaning of the Jumpstart Our Business Startups Act (the "JOBS Act"). For as long as we are an emerging growth company, we will not be required to comply with certain requirements that are applicable to other public companies that are not "emerging growth companies" within the meaning of the JOBS Act, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley") and the reduced disclosure obligations regarding executive compensation in our periodic reports. In addition, Section 107 of the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the "Securities Act"), for complying with new or revised accounting standards. We have irrevocably opted out of the extended transition period and, as a result, we will adopt new or revised accounting standards on the relevant dates on which adoption of such standards is required for other public companies. We have elected to adopt certain of the reduced disclosure requirements available to emerging growth companies. For a description of the qualifications and other requirements applicable to emerging growth companies and certain elections that we have made due to our status as an emerging growth company, see "Risk FactorsRelated to this Offering and Our Class A Common StockFor as long as we are an emerging growth company, we will not be required to comply with certain reporting requirements, including those relating to accounting standards and disclosure about our executive compensation, that apply to other public companies."
Because CSL, through its interests in the Existing Owners, CSL Opportunities II and CSL Holdings II, will initially hold approximately 59.7% of the voting power of our capital stock following the completion of this offering (or approximately 56.7% if the underwriters' option to purchase additional shares is exercised in full), we expect to be a controlled company as of the completion of the offering under Sarbanes-Oxley and NYSE rules. A controlled company does not need its board of directors to have a majority of independent directors or to form an independent compensation or nominating and corporate governance committee. As a controlled company, we will remain subject to rules of Sarbanes-Oxley and the NYSE that require us to have an audit committee composed entirely of independent directors. Under these rules, we must have at least one independent director on our audit committee by the date our Class A common stock is listed on the NYSE, at least two independent directors on our audit committee within 90 days of the listing date, and at least three independent directors on our audit committee within one year of the listing date. We expect to have three independent directors upon the closing of this offering.
If at any time we cease to be a controlled company, we will take all action necessary to comply with Sarbanes-Oxley and NYSE rules, including by appointing a majority of independent directors to
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our board of directors and ensuring we have a compensation committee and a nominating and corporate governance committee, each composed entirely of independent directors, subject to a permitted "phase-in" period.
Initially, our board of directors will consist of a single class of directors each serving one-year terms. After CSL and its affiliates no longer collectively hold more than 50% of the voting power of our common stock, our board of directors will be divided into three classes of directors, with each class as equal in number as possible, serving staggered three-year terms, and such directors will be removable only for "cause." See "ManagementStatus as a Controlled Company."
Our principal executive offices are located at 800 Gessner Street, Suite 1000, Houston, Texas 77024, and our telephone number at that address is (713) 935-8900. Our website address is www.rangerenergy.com. Information contained on our website does not constitute part of this prospectus.
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Class A common stock offered by us(1) |
5,000,000 shares (5,750,000 shares if the underwriters' option to purchase additional shares is exercised in full). | |
Class A common stock to be outstanding immediately after completion of this offering(1) |
7,416,884 shares (8,166,884 shares if the underwriters' option to purchase additional shares is exercised in full). |
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Class B common stock to be outstanding immediately after completion of this offering(1) |
6,683,116 shares, or one share for each Ranger Unit held by the Ranger Unit Holders (other than us) immediately following this offering. Class B shares are non-economic. When a Ranger Unit is redeemed for a share of Class A common stock, a corresponding share of Class B common stock will be cancelled. |
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Voting power of Class A common stock after giving effect to this offering(1) |
52.6% (or 55.0% if the underwriters' option to purchase additional shares is exercised in full). The voting power of our Class A common stock would be 100% if all outstanding Ranger Units held by the Ranger Unit Holders (other than us) were redeemed (along with a corresponding number of shares of our Class B common stock) for newly issued shares of Class A common stock on a one-for-one basis. |
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Voting power of Class B common stock after giving effect to this offering(1) |
47.4% (or 45.0% if the underwriters' option to purchase additional shares is exercised in full). The voting power of our Class B common stock would be 0% if all outstanding Ranger Units held by the Ranger Unit Holders (other than us) were redeemed (along with a corresponding number of shares of our Class B common stock) for newly issued shares of Class A common stock on a one-for-one basis. |
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Voting rights |
Each share of our Class A common stock entitles its holder to one vote on all matters to be voted on by shareholders generally. Each share of our Class B common stock entitles its holder to one vote on all matters to be voted on by shareholders generally. Holders of our Class A common stock and Class B common stock vote together as a single class on all matters presented to our shareholders for their vote or approval, except as otherwise required by applicable law or by our amended and restated certificate of incorporation. See "Description of Capital Stock." | |
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Use of proceeds |
We expect to receive approximately $74.5 million of net proceeds from the sale of Class A common stock, after deducting underwriting discounts and estimated offering expenses payable by us (assuming the midpoint of the price range set forth on the cover page of this prospectus). Each $1.00 increase (decrease) in the public offering price would increase (decrease) our net proceeds by approximately $4.7 million. | |
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We intend to contribute all of the net proceeds received by us in this offering to Ranger LLC in exchange for Ranger Units. Ranger LLC will use (i) approximately $10.4 million of the net proceeds to fully repay amounts outstanding under the Ranger Line of Credit and the Ranger Note (based on amounts outstanding as of July 28, 2017), (ii) approximately $0.7 million of the net proceeds to pay cash bonuses to certain employees, (iii) approximately $45.2 million of the net proceeds to fund the remaining cash portion of the consideration for the ESCO Acquisition and (iv) the remaining net proceeds for general corporate purposes, which may include the acquisition of high-spec well service rigs, including pursuant to the NOV Purchase Agreement. Please see "Use of Proceeds." | |
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Dividend policy |
We currently anticipate that we will retain all future earnings, if any, to finance the growth and development of our business. We do not intend to pay cash dividends in the foreseeable future. Please see "Dividend Policy." | |
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Redemption rights of Ranger Unit Holders |
Following this offering, under the Ranger LLC Agreement, each Ranger Unit Holder (other than us) will, subject to certain limitations, have the right, pursuant to the Redemption Right, to cause Ranger LLC to acquire all or a portion of its Ranger Units (along with a corresponding number of shares of our Class B common stock) for, at Ranger LLC's election, (i) shares of our Class A common stock at a redemption ratio of one share of Class A common stock for each Ranger Unit redeemed, subject to conversion rate adjustments for stock splits, stock dividends, reclassification and other similar transactions, or (ii) cash in an amount equal to the Cash Election Value of such Class A common stock. Alternatively, upon the exercise of the Redemption Right, Ranger Inc. (instead of Ranger LLC) will have the right, pursuant to the Call Right, to acquire each tendered Ranger Unit directly from the redeeming Ranger Unit Holder for, at its election, (x) one share of Class A common stock or (y) cash in an amount equal to the value of a share of Class A common stock, based on a volume-weighted average price. In addition, upon a change of control of us, we have the right to require each Ranger Unit Holder (other than us) to exercise its Redemption Right with respect to some or all of such unitholder's Ranger Units. In connection with any redemption of Ranger Units pursuant to the Redemption Right or our Call Right, the corresponding number of shares of Class B common stock will be cancelled. Please see "Certain Relationships and Related Party TransactionsRanger LLC Agreement." | |
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Tax Receivable Agreement |
Our acquisition (or deemed acquisition for U.S. federal income tax purposes) of Ranger Units pursuant to an exercise of the Redemption Right or the Call Right is expected to result in adjustments to the tax basis of the tangible and intangible assets of Ranger LLC, and such adjustments will be allocated to us. These adjustments would not have been available to use absent our acquisition or deemed acquisition of Ranger Units and are expected to reduce the amount of cash tax that we would otherwise be required to pay in the future. In connection with the closing of this offering, we will enter into a Tax Receivable Agreement with the TRA Holders that will generally provide for the payment by us to each TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income tax and franchise tax that we actually realize or are deemed to realize in certain circumstances in periods after this offering as a result of certain tax basis increases and certain tax benefits attributable to imputed interest. We will retain the benefit of the remaining 15% of these cash savings. See "Risk FactorsRisks Related to Our Corporate Reorganization and Resulting Structure" and "Certain Relationships and Related Party TransactionsTax Receivable Agreement." |
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Directed share program |
The underwriters have reserved for sale at the initial public offering price up to 5% of the Class A common stock being offered by this prospectus for sale to our directors, officers, employees and other parties associated with us through a directed share program. We do not know if these persons will choose to purchase all or any portion of those reserved shares, but any purchases they do make will reduce the number of shares available to the general public. See "Underwriting." | |
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Listing symbol |
We have been authorized to list our Class A common stock on the NYSE under the symbol "RNGR." | |
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Risk factors |
You should carefully read and consider the information set forth under the heading "Risk Factors" and all other information set forth in this prospectus before deciding to invest in our Class A common stock. |
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Summary Historical Combined Consolidated and Unaudited Pro Forma Condensed Financial and Operating Data
Ranger Inc. was formed in February 2017 and does not have historical financial results. The following table shows summary historical combined consolidated financial information of our Predecessor and summary unaudited pro forma condensed financial data for the periods and as of the dates indicated. The summary historical combined consolidated financial information at December 31, 2015 and 2016, and for the years then ended, was derived from the historical audited combined consolidated financial statements of our Predecessor included elsewhere in this prospectus. The summary historical unaudited condensed combined consolidated financial information at March 31, 2017, and for the three months ended March 31, 2016 and 2017, was derived from the historical unaudited condensed combined consolidated financial statements of our Predecessor included elsewhere in this prospectus.
The summary unaudited pro forma condensed statement of operations for the year ended December 31, 2016 has been prepared to give pro forma effect to (i) the acquisitions of Magna and Bayou (each as defined herein), (ii) the ESCO Acquisition, (iii) the transactions described under "Our History and Corporate Reorganization" (including the issuance of shares of our Class A common stock and Class B common stock to the Bridge Loan Lenders) and (iv) this offering and the use of proceeds therefrom, as if each had been completed as of January 1, 2016. The summary unaudited pro forma condensed statement of operations and balance sheet for the three months ended March 31, 2017 have been prepared to give pro forma effect to (i) the ESCO Acquisition, (ii) the transactions described under "Our History and Corporate Reorganization" (including the issuance of shares of our Class A common stock and Class B common stock to the Bridge Loan Lenders) and (iii) this offering and the use of proceeds therefrom, as if each had been completed on January 1, 2016, in the case of the unaudited pro forma condensed statement of operations data, and March 31, 2017, in the case of the unaudited pro forma condensed balance sheet data. This information is subject to and gives effect to the assumptions and adjustments described in the notes accompanying the unaudited pro forma condensed financial statements included elsewhere in this prospectus. The summary unaudited pro forma condensed financial data are presented for informational purposes only and should not be considered indicative of actual results of operations that would have been achieved had the applicable transactions been consummated on the dates indicated, and do not purport to be indicative of results of operations for any future period. The following table should be read together with "Use of Proceeds," "Selected Historical Combined Consolidated and Unaudited Pro Forma Condensed Financial and Operating Data," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Our History and Corporate Reorganization" and the financial statements and related notes included elsewhere in this prospectus.
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|
Predecessor |
Pro Forma Ranger
Energy Services, Inc.(1) |
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Year Ended
December 31, |
Three Months
Ended March 31, |
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Three
Months Ended March 31, 2017 |
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Year Ended
December 31, 2016 |
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2015 | 2016 | 2016 | 2017 | |||||||||||||||
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(unaudited)
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(unaudited)
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(dollars in millions, except share, per
share and operational amounts) |
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Statements of Operations Data: |
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Revenues: |
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Well Services |
$ | 9.7 | $ | 46.3 | $ | 3.6 | $ | 27.3 | $ | 119.5 | $ | 36.8 | |||||||
Processing Solutions |
11.5 | 6.5 | 1.2 | 1.8 | 6.5 | 1.8 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total revenues |
21.2 | 52.8 | 4.8 | 29.1 | 126.0 | 38.6 | |||||||||||||
Operating expenses: |
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Cost of services (excluding depreciation and amortization shown separately): |
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Well Services |
8.2 | 36.7 | 2.9 | 23.2 | 95.6 | 28.9 | |||||||||||||
Processing Solutions |
7.9 | 2.6 | 0.6 | 0.7 | 2.6 | 0.7 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total cost of services |
16.1 | 39.3 | 3.5 | 23.9 | 98.2 | 29.6 | |||||||||||||
General and administrative |
7.8 | 11.4 | 1.7 | 7.3 | 26.7 | 10.1 | |||||||||||||
Depreciation and amortization |
2.1 | 6.6 | 0.9 | 3.6 | 22.0 | 5.5 | |||||||||||||
Impairment of goodwill |
1.6 | | | | | | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total operating expenses |
27.6 | 57.3 | 6.1 | 34.8 | 146.9 | 45.2 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Operating loss |
(6.4 | ) | (4.5 | ) | (1.3 | ) | (5.7 | ) | (20.9 | ) | (6.6 | ) | |||||||
Interest expense, net |
(0.3 | ) | (0.5 | ) | (0.1 | ) | (0.5 | ) | (1.1 | ) | (0.1 | ) | |||||||
| | | | | | | | | | | | | | | | | | | |
Loss before income taxes |
(6.7 | ) | (5.0 | ) | (1.4 | ) | (6.2 | ) | (22.0 | ) | (6.7 | ) | |||||||
Income tax provision(2) |
| | | | 0.1 | 1.3 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | $ | (1.4 | ) | $ | (6.2 | ) | $ | (22.1 | ) | $ | (8.0 | ) | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
Less: net loss attributable to non-controlling interest |
(10.5 | ) | (3.8 | ) | |||||||||||||||
| | | | | | | | | | | | | | | | | | | |
Net loss attributable to shareholders |
$ | (11.6 | ) | $ | (4.2 | ) | |||||||||||||
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| | | | | | | | | | | | | | | | | | | |
Net loss per share(3): |
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Basic |
$ | (1.92 | ) | $ | (0.69 | ) | |||||||||||||
Diluted |
(1.92 | ) | (0.69 | ) | |||||||||||||||
Weighted average shares outstanding(3): |
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Basic |
6,068,250 | 6,068,250 | |||||||||||||||||
Diluted |
6,068,250 | 6,068,250 | |||||||||||||||||
Statements of Cash Flows Data: |
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Cash flows used in operating activities |
$ | (5.2 | ) | $ | (5.2 | ) | $ | (0.3 | ) | $ | (6.8 | ) | |||||||
Cash flows used in investing activities |
(25.5 | ) | (25.4 | ) | (1.4 | ) | (7.3 | ) | |||||||||||
Cash flows provided by financing activities |
28.9 | 31.1 | 2.1 | 14.5 | |||||||||||||||
Other Data: |
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Capital Expenditures |
$ | 26.8 | $ | 12.2 | $ | 1.4 | $ | 11.8 | |||||||||||
Adjusted EBITDA(4) |
(2.6 | ) | 3.1 | (0.4 | ) | (0.6 | ) | $ | 2.1 | $ | 2.1 | ||||||||
Rig Hours(5) |
22,800 | 68,800 | 8,400 | 39,100 | |||||||||||||||
Rig Utilization(6) |
188 | 178 | 177 | 194 | |||||||||||||||
Balance Sheet Data (at end of period): |
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Cash and cash equivalents |
$ | 1.1 | $ | 1.6 | $ | 2.0 | $ | 26.7 | |||||||||||
Working capital (total current assets less total current liabilities) |
0.3 | 10.4 | (17.5 | ) | 32.8 | ||||||||||||||
Total assets |
54.0 | 135.7 | 159.7 | 245.1 | |||||||||||||||
Long-term debt(7) |
10.0 | 12.1 | 22.5 | 7.0 | |||||||||||||||
Total net parent investment/stockholders' equity (including non-controlling interest) |
40.3 | 112.6 | 110.8 | 207.7 |
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ended March 31, 2017, respectively, has been prepared using ESCO's unaudited financial information for the twelve months ended January 31, 2017 and as of and for the three months ended April 30, 2017, respectively.
We believe Adjusted EBITDA is a useful performance measure because it allows for an effective evaluation of our operating performance when compared to our peers, without regard to our financing methods or capital structure. We exclude the items listed above from net loss in arriving at Adjusted EBITDA because these amounts can vary substantially within our industry depending upon accounting methods and book values of assets, capital structures and the method by which the assets were acquired. Adjusted EBITDA should not be considered as an alternative to, or more meaningful than, net loss determined in accordance with GAAP. Certain items excluded from Adjusted EBITDA are significant components in understanding and assessing a company's financial performance, such as a company's cost of capital and tax structure, as well as the historic costs of depreciable assets, none of which are reflected in Adjusted EBITDA. Our presentation of Adjusted EBITDA should not be construed as an indication that our results will be unaffected by the items excluded from Adjusted EBITDA. Our computations of Adjusted EBITDA may not be identical to other similarly titled measures of other companies. The following table presents a reconciliation of Adjusted EBITDA to net loss, our most directly comparable financial measure calculated and presented in accordance with GAAP.
|
Predecessor |
Pro Forma Ranger
Energy Services, Inc. |
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Three
Months Ended March 31, |
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Year Ended December 31, |
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Three
Months Ended March 31, 2017 |
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Year Ended
December 31, 2016 |
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(in millions)
|
2015 | 2016 | 2016 | 2017 | |||||||||||||||
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(unaudited)
|
(unaudited)
|
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Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | $ | (1.4 | ) | $ | (6.2 | ) | $ | (22.1 | ) | $ | (8.0 | ) | |
Interest expense, net |
0.3 | 0.5 | 0.1 | 0.5 | 1.1 | 0.1 | |||||||||||||
Income tax provision |
| | | | 0.1 | 1.3 | |||||||||||||
Depreciation and amortization |
2.1 | 6.6 | 0.9 | 3.6 | 22.0 | 5.5 | |||||||||||||
Equity-based compensation |
0.1 | 0.5 | | 0.4 | 0.5 | 0.4 | |||||||||||||
Acquisition-related and severance costs |
| 0.5 | | 1.1 | 0.5 | 1.1 | |||||||||||||
Costs incurred for IPO-related services |
| | | | | 1.7 | |||||||||||||
Impairment of goodwill |
1.6 | | | | | | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA |
$ | (2.6 | ) | $ | 3.1 | $ | (0.4 | ) | $ | (0.6 | ) | $ | 2.1 | $ | 2.1 | ||||
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23
RISK FACTORS
Investing in our Class A common stock involves risks. You should carefully consider the information in this prospectus, including the matters addressed under "Cautionary Note Regarding Forward-Looking Statements" and the following risks before making an investment decision. If any of the following risks actually occur, the trading price of our Class A common stock could decline, and you may lose all or part of your investment. Additional risks not presently known to us or that we currently deem immaterial could also materially affect our business.
Our business depends on domestic capital spending by the oil and natural gas industry, and reductions in such capital spending could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Our business is directly affected by our customers' capital spending to explore for, develop and produce oil and natural gas in the United States. The significant decline in oil and natural gas prices that began in late 2014 has caused a reduction in the exploration, development and production activities of most of our customers and their spending on our services. These cuts in spending have curtailed drilling programs, which has resulted in a reduction in the demand for our services as compared to activity levels in late 2014, as well as in the prices we can charge. In addition, certain of our customers could become unable to pay their vendors and service providers, including us, as a result of the decline in commodity prices. Reduced discovery rates of new oil and natural gas reserves in our areas of operation as a result of decreased capital spending may also have a negative long-term impact on our business, even in an environment of stronger oil and natural gas prices, to the extent the reduced number of wells that need our services or equipment more than offsets new drilling and completion activity and complexity. Any of these conditions or events could adversely affect our operating results. If the recent recovery does not continue or our customers fail to further increase their capital spending, it could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Industry conditions are influenced by numerous factors over which we have no control, including:
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The volatility of oil and natural gas prices may adversely affect the demand for our services and negatively impact our results of operations.
The demand for our services is primarily determined by current and anticipated oil and natural gas prices and the related levels of capital spending and drilling activity in the areas in which we have operations. Volatility or weakness in oil prices or natural gas prices (or the perception that oil prices or natural gas prices will decrease) affects the spending patterns of our customers and may result in the drilling of fewer new wells. This, in turn, could lead to lower demand for our services and may cause lower utilization of our assets. We have, and may in the future, experience significant fluctuations in operating results as a result of the reactions of our customers to changes in oil and natural gas prices. For example, prolonged low commodity prices experienced by the oil and natural gas industry beginning in late 2014 and uncertainty about future prices even when prices increased, combined with adverse changes in the capital and credit markets, caused many E&P companies to significantly reduce their capital budgets and drilling activity. This resulted in a significant decline in demand for oilfield services and adversely impacted the prices oilfield services companies could charge for their services.
Prices for oil and natural gas historically have been extremely volatile and are expected to continue to be volatile. During the past three years, the posted WTI price for oil has ranged from a low of $26.21 per Bbl in February 2016 to a high of $107.26 per Bbl in June 2014. During 2016, WTI prices ranged from $26.21 to $54.06 per Bbl. If the prices of oil and natural gas continue to be volatile, reverse their recent increases or decline, our operations, financial condition, cash flows and level of expenditures may be materially and adversely affected.
We may be adversely affected by uncertainty in the global financial markets and the deterioration of the financial condition of our customers.
Our future results may be impacted by the uncertainty caused by an economic downturn, volatility or deterioration in the debt and equity capital markets, inflation, deflation or other adverse economic conditions that may negatively affect us or parties with whom we do business resulting in a reduction in our customers' spending and their non-payment or inability to perform obligations owed to us, such as the failure of customers to honor their commitments or the failure of major suppliers to complete orders. Additionally, during times when the natural gas or crude oil markets weaken, our customers are more likely to experience financial difficulties, including being unable to access debt or equity financing, which could result in a reduction in our customers' spending for our services. In addition, in the course of our business we hold accounts receivable from our customers. In the event of the financial distress or bankruptcy of a customer, we could lose all or a portion of such outstanding accounts receivable associated with that customer. Further, if a customer was to enter into bankruptcy, it could also result in the cancellation of all or a portion of our service contracts with such customer at significant expense or loss of expected revenues to us.
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Our operations are subject to inherent risks, some of which are beyond our control. These risks may be self-insured, or may not be fully covered under our insurance policies.
Our operations are subject to hazards inherent in the oil and natural gas industry, such as, but not limited to, accidents, blowouts, explosions, craterings, fires, oil spills and releases of drilling, completion or fracturing fluids or hazardous materials into the environment. These conditions can cause:
In addition, our operations are subject to, and exposed to, employee/employer liabilities and risks such as wrongful termination, discrimination, labor organizing, retaliation claims and general human resource-related matters.
The occurrence of a significant event or adverse claim in excess of the insurance coverage that we maintain or that is not covered by insurance could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations and may increase our costs. Claims for loss of oil and natural gas production and damage to formations can occur in the well services industry. Litigation arising from a catastrophic occurrence at a location where our equipment and services are being used may result in our being named as a defendant in lawsuits asserting large claims.
We do not have insurance against all risks, either because insurance is not available or because of the high premium costs. The occurrence of an event not fully insured against or the failure of an insurer to meet its insurance obligations could result in substantial losses. In addition, we may not be able to maintain adequate insurance in the future at rates we consider reasonable. Insurance may not be available to cover any or all of the risks to which we are subject, or, even if available, it may be inadequate, or insurance premiums or other costs could rise significantly in the future so as to make such insurance prohibitively expensive.
Reliance upon a few large customers may adversely affect our revenues and operating results.
Our top five customers represented approximately 82% and 55% of our combined consolidated revenues for 2015 and 2016, respectively, and approximately 73% and 64% of our combined consolidated revenues for the first quarters of 2016 and 2017, respectively. After giving effect to the ESCO Acquisition, our top five customers would have represented approximately 47% and 53% of our combined consolidated revenues for 2016 and the first quarter of 2017, respectively. Within our Well Services segment, our top five customers represented approximately 77% and 62% of our Well Services segment revenues for 2015 and 2016, respectively, and approximately 87% and 69% of our revenues for the first quarters of 2016 and 2017, respectively. Within our Well Services segment, after giving effect to the ESCO Acquisition, our top five customers would have represented approximately 51% and 56% of our revenues for 2016 and the first quarter of 2017, respectively. Within our Processing Solutions segment, our top five customers represented approximately 98% and 90% of our Processing Solutions segment revenues for 2015 and 2016, respectively, and approximately 89% and 100% of our revenues for the first quarters of 2016 and 2017, respectively. It is likely that we will continue to derive a significant portion of our revenue from a relatively small number of customers in the future. If a major
26
customer fails to pay us, our revenues would be impacted and our operating results and financial condition could be materially harmed. Additionally, if we were to lose any material customer, we may not be able to redeploy our equipment at similar utilization or pricing levels or within a short period of time and such loss could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations until the equipment is redeployed at similar utilization or pricing levels.
We are exposed to the credit risk of our customers, and any material nonpayment or nonperformance by our customers could adversely affect our financial results.
We are subject to the risk of loss resulting from nonpayment or nonperformance by our customers, many of whose operations are concentrated solely in the domestic E&P industry which, as described above, is subject to volatility and, therefore, credit risk. Our credit procedures and policies may not be adequate to fully reduce customer credit risk. If we are unable to adequately assess the creditworthiness of existing or future customers or unanticipated deterioration in their creditworthiness, any resulting increase in nonpayment or nonperformance by them and our inability to re-market or otherwise use our equipment could have a material adverse effect on our business, liquidity position, financial condition, prospects or results of operations.
We face intense competition that may cause us to lose market share and could negatively affect our ability to market our services and expand our operations.
The oilfield services business is highly competitive and fragmented. Some of our competitors are small companies capable of competing effectively in our markets on a local basis, while others have a broader geographic scope, greater financial and other resources, or other cost efficiencies. Our competitors may be able to respond more quickly to new or emerging technologies and services and changes in customer requirements. Additionally, there may be new companies that enter our business, or re-enter our business with significantly reduced indebtedness following emergence from bankruptcy, or our existing and potential customers may develop their own oilfield services business. Our ability to maintain current revenues and cash flows, and our ability to market our services and expand our operations, could be adversely affected by the activities of our competitors and our customers. If our competitors substantially increase the resources they devote to the development and marketing of competitive services or substantially decrease the prices at which they offer their services, we may be unable to effectively compete. Many contracts are awarded on a bid basis, which may further increase competition based primarily on price. The competitive environment may be further intensified by mergers and acquisitions among oil and natural gas companies or other events that have the effect of reducing the number of available customers. All of these competitive pressures could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. Some of our larger competitors provide a broader range of services on a regional, national or worldwide basis. These companies may have a greater ability to continue oilfield service activities during periods of low commodity prices and to absorb the burden of present and future federal, state, local and other laws and regulations. Any inability to compete effectively could have a material adverse impact on our financial condition and results of operations.
We currently rely on a limited number of third-party manufacturers to build the new high-spec well service rigs that we purchase, and such reliance exposes us to risks including price and timing of delivery.
We currently rely on a limited number of third-party manufacturers to build our new high-spec well service rigs. For example, approximately 56% of our high-spec well service rigs were manufactured by NOV. Pursuant to the NOV Purchase Agreement, we expect to accept delivery of an additional 21 high-spec well service rigs periodically throughout the remainder of 2017; however, NOV is not obligated pursuant to the NOV Purchase Agreement to deliver such high-spec well service rigs during
27
2017, and will not face penalties for delayed delivery, regardless of the length or cause of any delay. If demand for high-spec well service rigs or the components necessary to build such high-spec well service rigs increases or our manufacturers' suppliers face financial distress or bankruptcy, such manufacturers, including NOV, may not be able to provide the new high-spec well service rigs to us on schedule or at expected prices. If this were to occur, we could be required to seek other manufacturers to build our high-spec well service rigs and, other than the manufacturers on which we currently rely, there are a limited number of additional manufacturers that are capable of building high-spec service rigs to our specifications. Disruptions in the ability of our manufacturers to deliver our new high-spec well service rigs may adversely affect our revenues or increase our costs.
Our operating history may not be sufficient for investors to evaluate our business and prospects.
We are, and upon completion of transactions described under "Our History and Corporate Reorganization" will be, a recently combined company with a short combined operating history, which makes it difficult for potential investors to evaluate our prospective business or operations or the merits of an investment in our securities. The Magna and Bayou acquisitions were completed in June 2016 and October 2016, respectively, and our Predecessor's combined consolidated financial and operating results only reflect the impact of such acquisitions for periods subsequent to such acquisitions. In addition, the Predecessor Companies, which will become our operating subsidiaries in connection with the transactions described under "Our History and Corporate Reorganization," have not historically operated on a consolidated or combined basis or under the same management team. Further, certain members of our and ESCO's management teams have a limited history operating together and may experience difficulties relating to the efficient integration of varying management systems, processes and procedures. These factors may make it more difficult for investors to evaluate our business and prospects and to forecast our future operating results. For example, the historical combined consolidated and unaudited pro forma condensed financial data may not give you an accurate indication of what our actual results would have been if our corporate reorganization, the Magna and Bayou acquisitions, the ESCO Acquisition or the formation of our management team had been completed at the beginning of the periods presented or of what our future results of operations are likely to be. Our future results will depend on our ability to efficiently manage our combined operations and execute our business strategy.
Further, due to the sharp decline in demand for well services beginning in late 2014, and the recent recovery of activity in the well services industry, comparisons of our current and future operating results with prior periods may have limited utility.
The growth of our business through potential future acquisitions may expose us to various risks, including those relating to difficulties in identifying suitable, accretive acquisition opportunities and integrating businesses, assets and personnel, as well as difficulties in obtaining financing for targeted acquisitions and the potential for increased leverage or debt service requirements.
We have pursued and intend to continue to pursue selected, accretive acquisitions of complementary assets and businesses. Acquisitions involve numerous risks, including:
28
The process of integrating an acquired business, including in connection with our corporate reorganization, may involve unforeseen costs and delays or other operational, technical and financial difficulties and may require a significant amount of time and resources. Our failure to incorporate the acquired business and assets into our existing operations successfully or to minimize any unforeseen operational difficulties could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. Furthermore, there is intense competition for acquisition opportunities in our industry. Competition for acquisitions may increase the cost of, or cause us to refrain from, completing acquisitions.
In addition, we may not have sufficient capital resources to complete any additional acquisitions. Historically, we have financed our acquisitions primarily with funding from our equity investors, commercial borrowings and cash generated by operations. We may incur substantial indebtedness to finance future acquisitions and also may issue equity, debt or convertible securities in connection with such acquisitions. Debt service requirements could represent a significant burden on our results of operations and financial condition, and the issuance of additional equity or convertible securities could be dilutive to our existing shareholders. Furthermore, we may not be able to obtain additional financing as needed or on satisfactory terms.
Our ability to continue to grow through acquisitions and manage growth will require us to continue to invest in operational, financial and management information systems and to attract, retain, motivate and effectively manage our employees. The inability to effectively manage the integration of acquisitions, including in connection with our corporate reorganization, could reduce our focus on current operations, which, in turn, could negatively impact our earnings and growth. Our financial position and results of operations may fluctuate significantly from period to period, based on whether or not significant acquisitions are completed in particular periods.
We may be unable to successfully integrate ESCO's assets to realize anticipated benefits of the ESCO Acquisition.
Our ability to achieve the anticipated benefits of the ESCO Acquisition will depend in part upon whether we can integrate ESCO's assets into our existing business in an efficient and effective manner. We may not be able to accomplish this integration process successfully. The successful acquisition of high-spec well service rigs, including those acquired from ESCO, requires an assessment of several factors, including future oil and natural gas prices, the corresponding demand for high-spec well service rigs (including on a basin-by-basin basis) and associated services and expected future rig utilization.
The accuracy of these assessments is inherently uncertain. The integration process may be subject to delays or changed circumstances, and we can give no assurance that the acquired assets will perform in accordance with our expectations or that our expectations with respect to integration or benefits as a result of the ESCO Acquisition will materialize. Further, the ESCO Acquisition may involve other risks that may cause our business to suffer, including:
29
Because ESCO's historical rig utilization as measured by average monthly hours per rig has been lower than ours in recent periods, we expect our rig utilization to decrease during the course of an initial integration period during 2017 and the beginning of 2018. Accordingly, there can be no assurance that the rig utilization for the well service rigs acquired in the ESCO Acquisition will align with the rig utilization of the well service rigs in our existing well service rig fleet on our anticipated timeline or at all.
For additional information regarding the potential impact of the ESCO Acquisition on our results of operations, please see "Management's Discussion and Analysis of Financial Condition and Results of OperationsFactors Impacting the Comparability of Results of OperationsESCO Acquisition."
We may have difficulty managing growth in our business, which could adversely affect our financial condition and results of operations.
As a recently formed company, growth in accordance with our business plan, if achieved, could place a significant strain on our financial, operational and management resources. As we expand the scope of our activities and our geographic coverage through both organic growth and acquisitions, there will be additional demands on our financial, technical, operational and management resources. The failure to continue to upgrade our technical, administrative, operating and financial control systems or the occurrences of unexpected expansion difficulties, including the failure to recruit and retain experienced managers, engineers and other professionals in the oilfield services industry, could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations and our ability to successfully or timely execute our business plan.
We will incur significant capital expenditures for new equipment as we grow our operations and may be required to incur further capital expenditures as a result of advancements in oilfield services technologies.
As we grow our operations we will be required to incur significant capital expenditures to build, acquire, update or replace our existing well service rigs and other equipment. Such demands on our capital and the increase in cost of labor necessary to operate such well service rigs and other equipment could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations and may increase our costs. To the extent we are unable to fund such projects, we may have less equipment available for service or our equipment may not be attractive to current or potential customers.
In addition, because the oilfield services industry is characterized by significant technological advancements and introductions of new products and services using new technologies, we may lose market share or be placed at a competitive disadvantage as competitors and others use or develop new technologies or technologies comparable to ours in the future. Further, we may face competitive pressure to implement or acquire certain new technologies at a substantial cost. Some of our competitors may have greater financial, technical and personnel resources than we do, which may allow them to gain technological advantages or implement new technologies before we can. Additionally, we may be unable to implement new technologies or services at all, on a timely basis or at an acceptable cost.
In addition to technological advancements by our competitors, new technology could also make it easier for our customers to vertically integrate their operations or otherwise conduct their activities without the need for our equipment and services, thereby reducing or eliminating the need for our services. For example, if further advancements in drilling and completion techniques cause our E&P customers to require well service rigs with different or higher specifications than those in our existing and expected future fleet, or to otherwise require well service equipment that we do not currently own or operate, we may be required to incur significant additional capital expenditures to obtain any such new rigs or other equipment in an effort to meet customer demand. Limits on our ability to effectively
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obtain, use, implement or integrate new technologies may have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Increases in the scope or pace of midstream infrastructure development, or decreased federal or state regulation of natural gas pipelines, could decrease demand for our services.
Increases in the scope or pace of midstream infrastructure development could decrease demand for our services. Our processing solutions are designed for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure. Specifically, our modular MRUs are used by our customers to meet pipeline specifications, extract higher value NGLs, provide fuel gas for wellsites and facilities and reduce emissions at the flare tip, services that are generally required when E&P companies drill oil and natural gas wells in basins without immediate access to sufficient midstream infrastructure and takeaway capacity. To the extent that permanent midstream infrastructure is developed in the basins in which we operate, or the pace of existing development is accelerated as a result of customer demand, the demand for our processing solutions could decrease.
In addition, there has recently been increasing public controversy regarding construction of new natural gas pipelines and the stringency of current regulation of natural gas pipelines, creating uncertainty as to the probability and timing of such construction. Decreases to the stringency of regulation of existing natural gas pipelines at either the state or federal level could reduce the demand for our services and could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
We may be unable to employ or retain a sufficient number of skilled and experienced workers.
We are dependent upon the available labor pool of skilled employees and may not be able to find or retain enough skilled labor to meet our needs, which could have a negative effect on our growth. The delivery of our products and services requires workers with specialized skills and experience who can perform physically demanding work. As a result of our industry volatility, including the recent and pronounced decline in drilling activity, as well as the demanding nature of the work, many workers have left the oilfield services industry to pursue employment in different fields. Our ability to expand our operations, including through the ESCO Acquisition, depends in part on our ability to increase the size of our skilled labor force. In addition, our ability to be productive and profitable will depend upon our ability to retain skilled workers. The demand for skilled workers is high and the supply is limited. As a result, competition for experienced oilfield service personnel is intense, and we face significant challenges in competing for crews and management with large and well-established competitors. Recently, we have experienced a significant increase in labor costs, and significant continued increases in the wages paid by competing employers could result in a reduction of our skilled labor force, increases in the wage rates that we must pay, or both. If either of these events were to occur, our capacity and profitability could be diminished and our growth potential could be impaired.
In addition, we require full compliance with the Immigration Reform and Control Act of 1986 and other laws concerning immigration and the hiring of legally documented workers. We recognize that foreign nationals may be a valuable source of talent, but that not all foreign nationals are authorized to work for U.S. companies immediately. In some cases, it may be necessary to obtain a required work authorization from the U.S. Department of Homeland Security or similar government agency prior to a foreign national working as an employee for us. Although we do not know of any issues with our employees, we could lose employees or be subject to an enforcement action that may have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. We are also subject to the Fair Labor Standards Act, which governs such matters as minimum wage, overtime and other working conditions.
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Delays or restrictions in obtaining permits by us for our operations or by our customers for their operations could impair our business.
In most states, our operations and the operations of our customers require permits from one or more governmental agencies in order to perform drilling and completion activities, secure water rights, or other regulated activities. Such permits are typically issued by state agencies, but federal and local governmental permits may also be required. The requirements for such permits vary depending on the location where such regulated activities will be conducted. As with all governmental permitting processes, there is a degree of uncertainty as to whether a permit will be granted, the time it will take for a permit to be issued, and the conditions that may be imposed in connection with the granting of the permit. In addition, some of our customers' drilling and completion activities may take place on federal land or Native American lands, requiring leases and other approvals from the federal government or Native American tribes to conduct such drilling and completion activities or other regulated activities. Under certain circumstances, federal agencies may cancel proposed leases for federal lands and refuse to grant or delay required approvals. Therefore, our customers' operations in certain areas of the United States may be interrupted or suspended for varying lengths of time, causing a loss of revenues to us and adversely affecting our results of operations in support of those customers.
Federal or state legislative and regulatory initiatives related to induced seismicity could result in operating restrictions or delays in the drilling and completion of oil and natural gas wells that may reduce demand for our services and could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Our oil and natural gas customers dispose of flowback and produced water or certain other oilfield fluids gathered from oil and natural gas producing operations in accordance with permits issued by government authorities overseeing such disposal activities. While these permits are issued pursuant to existing laws and regulations, these legal requirements are subject to change based on concerns of the public or governmental authorities regarding such disposal activities. One such concern relates to recent seismic events near underground disposal wells used for the disposal by injection of flowback and produced water or certain other oilfield fluids resulting from oil and natural gas activities. When caused by human activity, such events are called induced seismicity.
In March 2016, the United States Geological Survey identified six states with the most significant hazards from induced seismicity, including Oklahoma, Kansas, Texas, Colorado, New Mexico, and Arkansas. In response to concerns regarding induced seismicity, regulators in some states have imposed, or are considering imposing, additional requirements in the permitting of produced water disposal wells or otherwise to assess any relationship between seismicity and the use of such wells. For example, Oklahoma issued new rules for wastewater disposal wells in 2014 that imposed certain permitting and operating restrictions and reporting requirements on disposal wells in proximity to faults and also, from time to time, is developing and implementing plans directing certain wells where seismic incidents have occurred to restrict or suspend disposal well operations. The Texas Railroad Commission adopted similar rules in 2014. In addition, ongoing lawsuits allege that disposal well operations have caused damage to neighboring properties or otherwise violated state and federal rules regulating waste disposal. These developments could result in additional regulation and restrictions on the use of injection wells by our customers to dispose of flowback and produced water and certain other oilfield fluids. Increased regulation and attention given to induced seismicity also could lead to greater opposition to, and litigation concerning, oil and natural gas activities utilizing injection wells for waste disposal. Any one or more of these developments may result in our customers having to limit disposal well volumes, disposal rates or locations, or require our customers or third party disposal well operators that are used to dispose of customers' wastewater to shut down disposal wells, which developments could adversely affect our customers' business and result in a corresponding decrease in the need for
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our services, which could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Changes in transportation regulations may increase our costs and negatively impact our results of operations.
We are subject to various transportation regulations including as a motor carrier by the U.S. Department of Transportation ("DOT") and by various federal, state and tribal agencies, whose regulations include certain permit requirements of highway and safety authorities. These regulatory authorities exercise broad powers over our trucking operations, generally governing such matters as the authorization to engage in motor carrier operations, safety, equipment testing, driver requirements and specifications and insurance requirements. The trucking industry is subject to possible regulatory and legislative changes that may impact our operations, such as changes in fuel emissions limits, hours of service regulations that govern the amount of time a driver may drive or work in any specific period, requirements for on-board black box recorder devices or limits on vehicle weight and size. To the extent the federal government continues to develop and propose regulations relating to fuel quality, engine efficiency and greenhouse gas emissions, we may experience an increase in costs related to truck purchases and maintenance, impairment of equipment productivity, a decrease in the residual value of vehicles, unpredictable fluctuations in fuel prices and an increase in operating expenses. Increased truck traffic may contribute to deteriorating road conditions in some areas where our operations are performed.
Further, our operations could be affected by road construction, road repairs, detours and state and local regulations and ordinances restricting access to certain roads, including through routing and weight restrictions. In recent years, certain states, such as North Dakota and Texas, and certain counties have increased enforcement of weight limits on trucks used to transport raw materials, such as the fluids that we transport in connection with our fluids management services, on their public roads. It is possible that the states, counties and cities in which we operate our business may modify their laws to further reduce truck weight limits or impose curfews or other restrictions on the use of roadways. Such legislation and enforcement efforts could result in delays in, and increased costs to, transport fluids and otherwise conduct our business. Proposals to increase federal, state or local taxes, including taxes on motor fuels, are also made from time to time, and any such increase would increase our operating costs. Also, state and local regulation of permitted routes and times on specific roadways could adversely affect our operations. We cannot predict whether, or in what form, any legislative or regulatory changes or municipal ordinances applicable to our logistics operations will be enacted and to what extent any such legislation or regulations could increase our costs or otherwise adversely affect our business or operations.
We are subject to environmental and occupational health and safety laws and regulations that may expose us to significant costs and liabilities.
Our operations are subject to numerous federal, regional, state and local laws and regulations relating to protection of natural resources and the environment, occupational health and safety, air emissions and water discharges, and the management, transportation and disposal of solid and hazardous wastes and other materials. These laws and regulations impose numerous obligations that may impact our operations, including the acquisition of permits to conduct regulated activities, the imposition of restrictions on the types, quantities and concentrations of various substances that can be released into the environment or injected in formations in connection with oil and natural gas drilling and production activities, the incurrence of capital expenditures to mitigate or prevent releases of materials from our equipment, facilities or from customer locations where we are providing services, the imposition of substantial liabilities for pollution resulting from our operations, and the application of specific health and safety standards or criteria addressing worker protection. Any failure on our part or the part of our customers to comply with these laws and regulations could result in prohibitions or restrictions on operations, assessment of sanctions including administrative, civil and criminal penalties,
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issuance of corrective action orders requiring the performance of investigatory, remedial or curative activities or enjoining performance of some or all of our operations in a particular area, the occurrence of delays in the permitting or performance of projects and/or government or private claims for personal injury or property or natural resources damages.
Our business activities present risks of incurring significant environmental costs and liabilities, including costs and liabilities resulting from our handling and disposal of oilfield and other wastes, air emissions and wastewater discharges related to our operations and the historical operations and waste disposal practices of our predecessors. Moreover, accidental releases or spills may occur in the course of our operations, and we could incur significant costs and liabilities as a result of such releases or spills, including any third-party claims for damage to property, natural resources or persons. In addition, private parties, including the owners of properties upon which we perform services and facilities where our wastes are taken for reclamation or disposal, also may have the right to pursue legal actions to enforce compliance as well as to seek damages for non-compliance with environmental laws and regulations or for personal injury or property or natural resource damages. Some environmental laws and regulations may impose strict liability, which means that in some situations we could be exposed to liability even if our conduct was lawful at the time it occurred or the conduct of, or conditions caused by, prior operators or other third parties.
The trend in environmental regulation has been to place more restrictions and limitations on activities that may adversely affect the environment, and thus any changes in environmental laws and regulations or re-interpretation of enforcement policies that result in more stringent and costly completion activities, or waste handling, storage transport, disposal, or remediation requirements could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations if we are unable to pass on such increased compliance costs to our customers. Our customers may also incur increased costs or delays or restrictions in permitting or operating activities as a result of more stringent environmental laws and regulations, which may result in a curtailment of exploration, development or production activities that would reduce the demand for our services.
We provide services to customers who operate on federal and tribal lands, which are subject to additional regulations.
We provide services to companies operating on federal and tribal lands. Various federal agencies within the U.S. Department of the Interior, particularly the Department of the Interior's Bureau of Land Management ("BLM") and the Bureau of Indian Affairs, along with certain Native American tribes, promulgate and enforce regulations pertaining to oil and natural gas operations on Native American tribal lands and minerals where some of our customers operate. Such operations are subject to additional regulatory requirements, including lease provisions, drilling and production requirements, surface use restrictions, environmental standards, royalty considerations and taxes.
The BLM finalized a rule in March 2015 establishing standards for hydraulic fracturing on federal and American Indian lands. In June 2016, a Wyoming federal judge struck down this rule, finding that the BLM lacked authority to promulgate the rule. That decision was appealed by the federal government but, in March 2017, the BLM asked the U.S. Court of Appeals for the Tenth Circuit to stay the proceeding while the agency considers repealing the rule. In November 2016, the BLM finalized a rule regulating the venting and flaring of natural gas, leak detection, air emissions from equipment, well maintenance and unloading, drilling and completions and royalties potentially owed for loss of such emissions from oil and natural gas facilities producing on federal and tribal leases. The final rule became effective in January 2017 and is the subject of pending litigation filed by oil and natural gas trade associations and certain states seeking to modify or overturn the rule. In addition, in a March 28, 2017 executive order, President Trump directed the Secretary of the Interior to review these and several other BLM rules related to oil and gas operations and, if appropriate, to suspend, revise, or rescind the rules. The executive order also directs all executive agencies more broadly to review existing regulations that potentially burden the development or use of domestically produced energy resources.
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The U.S. Environmental Protection Agency ("EPA") also issued a Federal Implementation Plan ("FIP") to implement the Federal Minor New Source Review Program on tribal lands for oil and natural gas production. The FIP creates a permit-by-rule process for minor air sources that also incorporates emission limits and other requirements under various federal air quality standards, applying them to a range of equipment and processes used in oil and natural gas production. The FIP does not apply in areas of ozone non-attainment. As a result, the EPA may impose area-specific regulations in certain areas identified as tribal lands that may require additional emissions controls on existing equipment.
Depending on the ultimate outcome of any agency reviews and pending litigation, these regulations could result in increased compliance costs or additional operating restrictions, and could have a material adverse effect on our business, liquidity position, financial condition, prospects, results of operations, demand for our services and cash flows.
Any future indebtedness could adversely affect our financial condition.
We will have $7.0 million of seller notes outstanding at the closing of this offering, and expect that we will be able to borrow approximately $18.0 million to $21.0 million, subject to adjustment based on, among other things, the eligibility and amount of our accounts receivable, under our Credit Facility, the terms of which are described further under "Management's Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital ResourcesOur Debt Agreements."
In addition, subject to the limits contained in our Credit Facility, we may incur substantial additional debt from time to time. Any borrowings we may incur in the future would have several important consequences for our future operations, including that:
In addition, we may have significant principal payments due at specified future dates under the documents governing our indebtedness. Our ability to meet such principal obligations will be dependent upon future performance, which in turn will be subject to general economic conditions, industry cycles and financial, business and other factors affecting our operations, many of which are beyond our control. Our business may not continue to generate sufficient cash flow from operations to repay any incurred indebtedness. If we are unable to generate sufficient cash flow from operations, we may be required to sell assets, to refinance all or a portion of such indebtedness or to obtain additional financing.
Our Credit Facility will subject us to various financial and other restrictive covenants. These restrictions may limit our operational or financial flexibility and could subject us to potential defaults under our Credit Facility.
Our Credit Facility will subject us to significant financial and other restrictive covenants, including, but not limited to, restrictions on incurring additional debt and certain distributions. Our ability to
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comply with these financial condition tests can be affected by events beyond our control and we may not be able to do so.
Our Credit Facility will contain certain financial covenants, including a certain minimum fixed charge coverage ratio during certain testing periods. Please see "Management's Discussion and Analysis of Financial Condition and Results of OperationLiquidity and Capital ResourcesOur Debt Agreements."
If we are unable to remain in compliance with the financial covenants of our Credit Facility, then amounts outstanding thereunder may be accelerated and become due immediately. Any such acceleration could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Ranger Services has had difficulty maintaining compliance with the covenants and ratios required under the Ranger Line of Credit and Ranger Note. We may have similar difficulties with the new Credit Facility that we expect to enter into in connection with the consummation of this offering. Failure to maintain compliance with these financial covenants or ratios could adversely affect our business, financial condition, results of operations and cash flows.
We have historically relied on our existing debt facilities, such as the Ranger Line of Credit and Ranger Note, and, in connection with the consummation of this offering, expect to rely on the new Credit Facility to provide liquidity and support for our operations and growth objectives, as necessary. We expect that the new Credit Facility will require us to comply with certain financial covenants and ratios. Our ability to comply with these restrictions and covenants in the future is uncertain and will be affected by the levels of cash flow from our operations and events or circumstances beyond our control, including events and circumstances that may stem from the condition of financial markets and commodity price levels. For example, as of March 31, 2017, Ranger Services' leverage ratio exceeded the threshold of 1.75 to 1.00 under the Ranger Line of Credit and Ranger Note and Ranger Services did not generate the required minimum net income of zero or greater. Ranger Services was in compliance with all other covenants at that time. On May 17, 2017, Ranger Services obtained a waiver of such non-compliance with respect to the first quarter of 2017 from the lender under the Ranger Line of Credit and Ranger Note. There can be no assurance we will be able to obtain future waivers from the lender under the Ranger Line of Credit and Ranger Note. We have classified the outstanding debt under the Ranger Line of Credit and Ranger Note as current because Ranger Services does not anticipate being in compliance with all covenants and ratios required under the Ranger Line of Credit and Ranger Note in the next twelve months. CSL has indicated its ability and intent to provide additional capital to us through at least one year from the date of issuance of our predecessor's unaudited condensed combined consolidated financial statements included elsewhere in this prospectus, if necessary, to enable us to meet our financial obligations through that date. We plan to repay and retire the Ranger Line of Credit and Ranger Note from the proceeds of this offering.
In the event that we are unable to access sufficient capital to fund our business and planned capital expenditures, we may be required to curtail potential acquisitions, strategic growth projects, portions of our current operations and other activities. A lack of capital could result in a decrease in our operations, subject us to claims of breach under customer and supplier contracts and may force us to sell some of our assets or issue additional equity on an untimely or unfavorable basis, each of which could adversely affect our business, financial condition, results of operations and cash flows.
Increases in interest rates could adversely impact the price of our shares, our ability to issue equity or incur debt for acquisitions or other purposes.
Interest rates on future borrowings, credit facilities and debt offerings could be higher than current levels, causing our financing costs to increase accordingly. Changes in interest rates, either positive or
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negative, may affect the yield requirements of investors who invest in our shares, and a rising interest rate environment could have an adverse impact on the price of our shares, our ability to issue equity or incur debt for acquisitions or other purposes.
Fuel conservation measures could reduce demand for oil and natural gas which would in turn reduce the demand for our services.
Fuel conservation measures, alternative fuel requirements and increasing consumer demand for alternatives to oil and natural gas could reduce demand for oil and natural gas. The impact of the changing demand for oil and natural gas may have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. Additionally, the increased competitiveness of alternative energy sources (such as wind, solar geothermal, tidal, and biofuels) could reduce demand for hydrocarbons and therefore for our services, which would lead to a reduction in our revenues.
Unsatisfactory safety performance may negatively affect our customer relationships and, to the extent we fail to retain existing customers or attract new customers, adversely impact our revenues.
Our ability to retain existing customers and attract new business is dependent on many factors, including our ability to demonstrate that we can reliably and safely operate our business in a manner that is consistent with applicable laws, rules and permits, which legal requirements are subject to change. Existing and potential customers consider the safety record of their third-party service providers to be of high importance in their decision to engage such providers. If one or more accidents were to occur at one of our operating sites, the affected customer may seek to terminate or cancel its use of our equipment or services and may be less likely to continue to use our services, which could cause us to lose substantial revenues. Furthermore, our ability to attract new customers may be impaired if they view our safety record as unacceptable. In addition, it is possible that we will experience multiple or particularly severe accidents in the future, causing our safety record to deteriorate. This may be more likely as we continue to grow, if we experience high employee turnover or labor shortage, or hire inexperienced personnel to bolster our staffing needs.
Climate change legislation and regulations restricting or regulating emissions of greenhouse gases could result in increased operating and capital costs and reduced demand for our services.
Climate change continues to attract considerable public and scientific attention. As a result, certain requirements have been enacted, and numerous proposals are likely to continue to be made at the international, national, regional and state levels of government to monitor and limit emissions of greenhouse gases ("GHGs"). These efforts have included cap-and-trade programs, carbon taxes, GHG reporting and tracking programs and regulations that directly limit GHG emissions from certain sources.
At the federal level, no comprehensive climate change legislation has been implemented to date. The EPA has, however, adopted rules under authority of the federal Clean Air Act that, among other things, establish Potential for Significant Deterioration ("PSD") construction and Title V operating permit reviews for GHG emissions from certain large stationary sources that are also major sources of certain principal, or criteria, pollutant emissions, which reviews could require securing PSD permits at covered facilities emitting GHGs and meeting "best available control technology" standards for those GHG emissions. In addition, the EPA has adopted rules requiring the monitoring and annual reporting of GHG emissions from certain petroleum and natural gas system sources in the United States, including, among others, onshore and offshore production facilities, which include certain of our customers' operations. In October 2015, the EPA amended and expanded the GHG reporting requirements to all segments of the oil and natural gas industry, including gathering and boosting facilities as well as completions and workovers from hydraulically fractured oil wells, and in January
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2016, the EPA proposed additional revisions to leak detection methodology to align the reporting rules with the new source performance standards.
Federal agencies also have begun directly regulating emissions of methane, a GHG, from oil and natural gas operations. In June 2016, the EPA published NSPS, known as Subpart Quad OOOOa, that require certain new, modified or reconstructed facilities in the oil and natural gas sector to reduce methane gas and VOC emissions. In April 2017, the EPA announced that it will review Subpart Quad OOOOa and will initiate reconsideration proceedings to potentially revise or rescind portions of the rule. In addition, the EPA has issued a stay of the June 3, 2017 compliance date applicable to fugitive emissions monitoring requirements for 90 days.
At the international level, the United States joined the international community at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change in Paris, France that requires member countries to review and "represent a progression" in their intended nationally determined contributions, which set GHG emission reduction goals every five years beginning in 2020. The Paris Agreement entered into force in November 2016. Although this agreement does not create any binding obligations for nations to limit their GHG emissions, it does include pledges to voluntarily limit or reduce future emissions. In June 2017, President Trump stated that the United States would withdraw from the Paris Agreement, but may enter into a future international agreement related to GHGs.
The adoption and implementation of any international, federal or state legislation or regulations that require reporting of GHGs or otherwise restrict emissions of GHGs could result in increased compliance costs or additional operating restrictions, and could have a material adverse effect on our business, liquidity position, financial condition, prospects, results of operations, demand for our services and cash flows.
The Endangered Species Act and Migratory Bird Treaty Act and other restrictions intended to protect certain species of wildlife govern our and our customers' operations and additional restrictions may be imposed in the future, which constraints could have an adverse impact on our ability to expand some of our existing operations or limit our customers' ability to develop new oil and natural gas wells.
Oil and natural gas operations in our operating areas can be adversely affected by seasonal or permanent restrictions on drilling activities designed to protect various wildlife, which may limit our ability to operate in protected areas. Permanent restrictions imposed to protect endangered species could prohibit drilling in certain areas or require the implementation of expensive mitigation measures.
For example, the Endangered Species Act (the "ESA") restricts activities that may affect endangered or threatened species or their habitats and provides for substantial penalties in cases where covered species are killed or injured. Similar protections are offered to migratory birds under the Migratory Bird Treaty Act (the "MBTA"). To the extent species that are listed under the ESA or similar state laws, or are protected under the MBTA, or the designation of previously unprotected species as threatened or endangered in areas where we or our customers operate could cause us or our customers to incur increased costs arising from species protection measures and could result in delays or limitations in our or our customers' performance of operations, which could adversely affect or reduce demand for our services.
We rely on a few key employees whose absence or loss could adversely affect our business.
Many key responsibilities within our business have been assigned to a small number of employees. The loss of their services could adversely affect our business. In particular, the loss of the services of one or more members of our executive team, including our President and Chief Executive Officer or Chief Financial Officer, could disrupt our operations. We do not maintain "key person" life insurance
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policies on any of our employees. As a result, we are not insured against any losses resulting from the death of our key employees.
We may be subject to claims for personal injury and property damage, which could materially adversely affect our financial condition, prospects and results of operations.
Our services are subject to inherent risks that can cause personal injury or loss of life, damage to or destruction of property, equipment or the environment or the suspension of our operations. Litigation arising from operations where our services are provided may cause us to be named as a defendant in lawsuits asserting potentially large claims including claims for exemplary damages. We maintain what we believe is customary and reasonable insurance to protect our business against these potential losses, but such insurance may not be adequate to cover our liabilities, and we are not fully insured against all risks.
In addition, and subject to certain exceptions, our customers typically assume responsibility for, including control and removal of, all other pollution or contamination which may occur during operations, including that which may result from seepage or any other uncontrolled flow of drilling and completion fluids. We may have liability in such cases if we are negligent or commit willful acts. Our customers generally agree to indemnify us against claims arising from their employees' personal injury or death to the extent that, in the case of our operations, their employees are injured or their properties are damaged by such operations, unless resulting from our gross negligence or willful misconduct. Our customers also generally agree to indemnify us for loss or destruction of customer-owned property or equipment. In turn, we agree to indemnify our customers for loss or destruction of property or equipment we own and for liabilities arising from personal injury to or death of any of our employees, unless resulting from gross negligence or willful misconduct of the customer. However, we might not succeed in enforcing such contractual allocation or might incur an unforeseen liability falling outside the scope of such allocation. As a result, we may incur substantial losses which could materially and adversely affect our financial condition and results of operation.
Anti-indemnity provisions enacted by many states may restrict or prohibit a party's indemnification of us.
We typically enter into agreements with our customers governing the provision of our services, which usually include certain indemnification provisions for losses resulting from operations. Such agreements may require each party to indemnify the other against certain claims regardless of the negligence or other fault of the indemnified party; however, many states place limitations on contractual indemnity agreements, particularly agreements that indemnify a party against the consequences of its own negligence. Furthermore, certain states, including Louisiana, New Mexico, Texas and Wyoming, have enacted statutes generally referred to as "oilfield anti-indemnity acts" expressly prohibiting certain indemnity agreements contained in or related to oilfield services agreements. Such anti-indemnity acts may restrict or void a party's indemnification of us, which could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Seasonal weather conditions and natural disasters could severely disrupt normal operations and harm our business.
Our operations are located in different regions of the United States. Some of these areas, including the Denver-Julesburg Basin and the Bakken Shale, are adversely affected by seasonal weather conditions, primarily in the winter and spring. During periods of heavy snow, ice, wind or rain, we may be unable to move our equipment between locations, thereby reducing our ability to provide services and generate revenues, or we could suffer weather-related damage to our facilities and equipment, resulting in delays in operations. The exploration activities of our customers may also be affected during such periods of adverse weather conditions. Additionally, extended drought conditions in our
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operating regions could impact our ability or our customers' ability to source sufficient water or increase the cost for such water. As a result, a natural disaster or inclement weather conditions could severely disrupt the normal operation of our business and adversely impact our financial condition and results of operations.
In addition, some scientists have concluded that increasing concentrations of GHGs in the atmosphere may produce climate changes that have significant physical effects, such as increased frequency and severity of storms, droughts, and floods and other climate events that could have an adverse effect on our operations and the operations of our customers.
If we are unable to fully protect our intellectual property rights, or if any disputes regarding intellectual property rights arise with third parties, we may suffer a loss in our competitive advantage or market share.
We do not have patents or patent applications relating to many of our key processes and technology. If we are not able to maintain the confidentiality of our trade secrets, or if our competitors are able to replicate our technology or services, our competitive advantage would be diminished. We cannot assure you we will be able to prevent our competitors from employing comparable technologies or processes.
In addition, third parties from time to time may initiate litigation against us by asserting that the conduct of our business infringes, misappropriates or otherwise violates intellectual property rights. If we are sued for infringement and lose, we could be required to pay substantial damages and/or be enjoined from using or selling the infringing products or technology. Any legal proceeding concerning intellectual property could be protracted and costly regardless of the merits of any claim and is inherently unpredictable and could have a material adverse effect on our financial condition, regardless of its outcome.
Additionally, we currently license certain third party intellectual property in connection with our business, and the loss of any such license could adversely impact our financial condition and results of operations.
We may be subject to interruptions or failures in our information technology systems.
We rely on sophisticated information technology systems and infrastructure to support our business, including process control technology. Any of these systems may be susceptible to outages due to fire, floods, power loss, telecommunications failures, usage errors by employees, computer viruses, cyber-attacks or other security breaches, or similar events. The failure of any of our information technology systems may cause disruptions in our operations, which could adversely affect our revenues and profitability.
We are subject to cyber security risks. A cyber incident could occur and result in information theft, data corruption, operational disruption and/or financial loss.
The oil and natural gas industry has become increasingly dependent on digital technologies to conduct certain processing activities. For example, we depend on digital technologies to perform many of our services and to process and record financial and operating data. At the same time, cyber incidents, including deliberate attacks, have increased. The U.S. government has issued public warnings that indicate that energy assets might be specific targets of cyber security threats. Our technologies, systems and networks, and those of our vendors, suppliers and other business partners, may become the target of cyberattacks or information security breaches that could result in the unauthorized release, gathering, monitoring, misuse, loss or destruction of proprietary and other information, or other disruption of business operations. In addition, certain cyber incidents, such as surveillance, may remain undetected for an extended period. Our systems and insurance coverage for protecting against cyber security risks may not be sufficient. As the sophistication of cyber incidents continues to evolve, we will
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likely be required to expend additional resources to continue to modify or enhance our protective measures or to investigate and remediate any vulnerability to cyber incidents. Our insurance coverage for cyberattacks may not be sufficient to cover all the losses we may experience as a result of such cyberattacks.
A terrorist attack or armed conflict could harm our business.
The occurrence or threat of terrorist attacks in the United States or other countries, anti-terrorist efforts and other armed conflicts involving the United States or other countries, including continued hostilities in the Middle East, may adversely affect the United States and global economies and could prevent us from meeting our financial and other obligations. If any of these events occur, the resulting political instability and societal disruption could reduce overall demand for oil and natural gas, potentially putting downward pressure on demand for our services and causing a reduction in our revenues. Oil and natural gas-related facilities could be direct targets of terrorist attacks, and our operations could be adversely impacted if infrastructure integral to our customers' operations is destroyed or damaged. Costs for insurance and other security may increase as a result of these threats, and some insurance coverage may become more difficult to obtain, if available at all.
We may record losses or impairment charges related to idle assets or assets that we sell.
Prolonged periods of low utilization, changes in technology or the sale of assets below their carrying value may cause us to experience losses in our results of operations. These events could result in the recognition of impairment charges that negatively impact our financial results. Significant impairment charges as a result of a decline in market conditions or otherwise could have a material adverse effect on our results of operations in future periods.
Risks Related to this Offering and Our Class A Common Stock
The requirements of being a public company, including compliance with the reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the requirements of Sarbanes-Oxley, may strain our resources, increase our costs and distract management, and we may be unable to comply with these requirements in a timely or cost-effective manner.
As a public company, we will need to comply with laws, regulations and requirements that are new to us, certain corporate governance provisions of Sarbanes-Oxley, related regulations of the SEC and the requirements of the NYSE, with which we are not required to comply as a private company. Complying with these statutes, regulations and requirements will occupy a significant amount of time of our board of directors and management and will significantly increase our costs and expenses. We will need to:
Furthermore, while we generally must comply with Section 404 of Sarbanes-Oxley for our fiscal year ending December 31, 2018, we are not required to have our independent registered public accounting firm attest to the effectiveness of our internal controls until our first annual report subsequent to our ceasing to be an "emerging growth company" within the meaning of Section 2(a)(19) of the Securities Act. Accordingly, we may not be required to have our independent registered public
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accounting firm attest to the effectiveness of our internal controls until as late as our annual report for the fiscal year ending December 31, 2022. Once it is required to do so, our independent registered public accounting firm may issue a report that is adverse in the event it is not satisfied with the level at which our controls are documented, designed, operated or reviewed. Compliance with these requirements may strain our resources, increase our costs and distract management, and we may be unable to comply with these requirements in a timely or cost-effective manner.
In addition, we expect that being a public company subject to these rules and regulations may make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on our board of directors or as executive officers. We are currently evaluating these rules, and we cannot predict or estimate the amount of additional costs we may incur or the timing of such costs.
We have identified a material weakness in our internal control over financial reporting and may identify additional material weaknesses in the future or otherwise fail to maintain an effective system of internal controls, which may result in material misstatements of our financial statements or cause us to fail to meet our periodic reporting obligations.
As a public company, we will be required to maintain internal control over financial reporting and to report any material weaknesses in those internal controls, subject to any exemptions that we avail ourselves to under the JOBS Act. For example, we will be required to perform system and process evaluation and testing of our internal control over financial reporting to allow management to report on the effectiveness of our internal control over financial reporting, as required by Section 404 of Sarbanes-Oxley. We are in the process of designing, implementing, and testing internal control over financial reporting required to comply with this obligation.
We and our independent auditors have identified material weaknesses in internal control over financial reporting as of December 31, 2016. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. The material weakness related to the lack of sufficient qualified accounting personnel, which led to the incorrect application of generally accepted accounting principles, ineffective controls over accounting for non-routine and/or complex transactions, and ineffective controls over the financial statement close and reporting processes.
Our failure to implement and maintain effective internal control over financial reporting could result in errors in our financial statements that could result in a restatement of our financial statements and cause us to fail to meet our reporting obligations. Ineffective internal controls could also cause investors to lose confidence in our reported financial information, which could have a negative effect on the trading price of our Class A common stock.
The initial public offering price of our Class A common stock may not be indicative of the market price of our Class A common stock after this offering. In addition, an active, liquid and orderly trading market for our Class A common stock may not develop or be maintained, and our stock price may be volatile.
Prior to this offering, our Class A common stock was not traded on any market. An active, liquid and orderly trading market for our Class A common stock may not develop or be maintained after this offering. Active, liquid and orderly trading markets usually result in less price volatility and more efficiency in carrying out investors' purchase and sale orders. The market price of our Class A common stock could vary significantly as a result of a number of factors, some of which are beyond our control. In the event of a drop in the market price of our Class A common stock, you could lose a substantial
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part or all of your investment in our Class A common stock. The initial public offering price will be negotiated between us and representatives of the underwriters, based on numerous factors that we discuss in "Underwriting," and may not be indicative of the market price of our Class A common stock after this offering. Consequently, you may not be able to sell shares of our Class A common stock at prices equal to or greater than the price paid by you in this offering.
The following factors could affect our stock price:
The stock markets in general have experienced extreme volatility that has often been unrelated or disproportionate to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading price of our Class A common stock. Securities class action litigation has often been instituted against companies following periods of volatility in the overall market and in the market price of a company's securities. Such litigation, if instituted against us, could result in very substantial costs, divert our management's attention and resources and harm our business, operating results and financial condition.
CSL has the ability to direct the voting of a majority of our voting stock, and their interests may conflict with those of our other shareholders.
Upon completion of this offering, the Existing Owners, CSL Opportunities II and CSL Holdings II will initially own approximately 59.7% of our voting stock (or approximately 56.7% if the underwriters' option to purchase additional shares is exercised in full). CSL holds a majority of the voting interests in each of the Existing Owners, CSL Opportunities II and CSL Holdings II. Assuming CSL and its
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affiliates purchase $30.0 million, or 1,764,706 shares (based on the midpoint of the price range set forth on the cover page of this prospectus), of our Class A common stock in this offering, CSL and its affiliates will beneficially own, upon completion of the offering, an aggregate of approximately 3,887,473 shares of Class A common stock, 6,299,292 Ranger Units and 6,299,292 shares of Class B common stock, representing approximately 72.2% of the voting power of our capital stock (or approximately 68.6% if the underwriters' option to purchase additional shares is exercised in full). CSL's beneficial ownership of greater than 50% of our voting stock means CSL will be able to control matters requiring shareholder approval, including the election of directors (other than certain rights of Bayou Holdings to designate nominees to our board of directors as discussed further herein), changes to our organizational documents and significant corporate transactions. This concentration of ownership makes it unlikely that any other holder or group of holders of our Class A common stock (other than Bayou Holdings) will be able to affect the way we are managed or the direction of our business. Further, in connection with the consummation of this offering, we will enter into a stockholders' agreement with the Existing Owners and the Bridge Loan Lenders. Among other things, the stockholders' agreement is expected to provide (i) CSL with the right to designate a certain number of nominees to our board of directors for so long as CSL beneficially owns at least 10% of our common stock and (ii) Bayou Holdings with the right to designate two nominees to our board of directors for so long as CSL beneficially owns at least 50% of our common stock. See "Certain Relationships and Related Party TransactionsStockholders' Agreement." The interests of CSL and Bayou Holdings with respect to matters potentially or actually involving or affecting us, such as future acquisitions, financings and other corporate opportunities and attempts to acquire us, may conflict with the interests of our other shareholders.
For example, CSL and Bayou Holdings may have different tax positions from us, especially in light of the Tax Receivable Agreement, that could influence their decisions regarding whether and when to support the disposition of assets, the incurrence or refinancing of new or existing indebtedness, or the termination of the Tax Receivable Agreement and the acceleration of our obligations thereunder. In addition, the determination of future tax reporting positions, the structuring of future transactions and the handling of any challenge by any taxing authority to our tax reporting positions may take into consideration CSL's or Bayou Holdings' tax or other considerations that may differ from the considerations of us or our other shareholders. Please see "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
Given this concentrated ownership, CSL (and, in certain circumstances, Bayou Holdings) would have to approve any potential acquisition of us. The existence of a significant shareholder and the stockholders' agreement may have the effect of deterring hostile takeovers, delaying or preventing changes in control or changes in management, or limiting the ability of our other shareholders to approve transactions that they may deem to be in the best interests of our company. Moreover, CSL's concentration of stock ownership may adversely affect the trading price of our Class A common stock to the extent investors perceive a disadvantage in owning stock of a company with a significant shareholder.
Certain of our executive officers and directors have significant duties with, and spend significant time serving, entities that may compete with us in seeking acquisitions and business opportunities and, accordingly, may have conflicts of interest in allocating time or pursuing business opportunities.
Certain of our executive officers and directors, who are responsible for managing the direction of our operations, hold positions of responsibility with other entities (including affiliated entities) that are in the oil and natural gas industry. These executive officers and directors may become aware of business opportunities that may be appropriate for presentation to us as well as to the other entities with which they are or may become affiliated. Due to these existing and potential future affiliations, these individuals may present potential business opportunities to other entities prior to presenting them
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to us, which could cause additional conflicts of interest. They may also decide that certain opportunities are more appropriate for other entities with which they are affiliated, and as a result, they may elect not to present those opportunities to us. These conflicts may not be resolved in our favor. For additional discussion of our management's business affiliations and the potential conflicts of interest of which our shareholders should be aware, see "Certain Relationships and Related Party Transactions."
CSL, Bayou Holdings and their respective affiliates are not limited in their ability to compete with us, and the corporate opportunity provisions in our amended and restated certificate of incorporation could enable CSL and Bayou Holdings to benefit from corporate opportunities that might otherwise be available to us.
Our governing documents will provide that CSL, Bayou Holdings and their respective affiliates (including portfolio investments of CSL and its affiliates) are not restricted from owning assets or engaging in businesses that compete directly or indirectly with us. In particular, subject to the limitations of applicable law, our amended and restated certificate of incorporation will, among other things:
CSL, Bayou Holdings or their respective affiliates may become aware, from time to time, of certain business opportunities (such as acquisition opportunities) and may direct such opportunities to other businesses in which they have invested, in which case we may not become aware of or otherwise have the ability to pursue such opportunity. Furthermore, such businesses may choose to compete with us for these opportunities, possibly causing these opportunities to not be available to us or causing them to be more expensive for us to pursue. In addition, CSL, Bayou Holdings and their respective affiliates may dispose of equipment or other assets in the future, without any obligation to offer us the opportunity to purchase any of those assets. As a result, our renouncing our interest and expectancy in any business opportunity that may be from time to time presented to CSL, Bayou Holdings and their respective affiliates could adversely impact our business or prospects if attractive business opportunities are procured by such parties for their own benefit rather than for ours.
A significant reduction by CSL of its ownership interests in us could adversely affect us.
We believe that CSL's ownership interest in us provides it with an economic incentive to assist us to be successful. Upon the expiration or earlier waiver of the lock-up restrictions on transfers or sales of our securities following the completion of this offering, CSL will not be subject to any obligation to maintain its ownership interest in us and may elect at any time thereafter to sell all or a substantial portion of or otherwise reduce its ownership interest in us. If CSL sells all or a substantial portion of its ownership interest in us, it may have less incentive to assist in our success and its affiliate(s) that are expected to serve as members of our board of directors may resign. Such actions could adversely affect our ability to successfully implement our business strategies which could adversely affect our cash flows or results of operations.
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Our amended and restated certificate of incorporation and amended and restated bylaws, as well as Delaware law, will contain provisions that could discourage acquisition bids or merger proposals, which may adversely affect the market price of our Class A common stock and could deprive our investors of the opportunity to receive a premium for their shares.
Our amended and restated certificate of incorporation will authorize our board of directors to issue preferred stock without shareholder approval in one or more series, designate the number of shares constituting any series, and fix the rights, preferences, privileges and restrictions thereof, including dividend rights, voting rights, rights and terms of redemption, redemption price or prices and liquidation preferences of such series. If our board of directors elects to issue preferred stock, it could be more difficult for a third party to acquire us. In addition, some provisions of our amended and restated certificate of incorporation and amended and restated bylaws could make it more difficult for a third party to acquire control of us, even if the change of control would be beneficial to our shareholders. These provisions include:
In addition, certain change of control events have the effect of accelerating the payment due under the Tax Receivable Agreement, which could be substantial and accordingly serve as a deterrent to a potential acquirer of our company. Please see "Risks Related to Our Corporate Reorganization and Resulting StructureIn certain cases, payments under the Tax Receivable Agreement may be
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accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable Agreement."
Our amended and restated certificate of incorporation will designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our shareholders, which could limit our shareholders' ability to obtain a favorable judicial forum for disputes with us or our directors, officers, employees or agents.
Our amended and restated certificate of incorporation will provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our shareholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law (the "DGCL"), our amended and restated certificate of incorporation or our amended and restated bylaws, or (iv) any action asserting a claim against us that is governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and consented to, the provisions of our amended and restated certificate of incorporation described in the preceding sentence. This choice of forum provision may limit a shareholder's ability to bring a claim in a judicial forum that it considers more likely to be favorable for disputes with us or our directors, officers, employees or agents, which may discourage such lawsuits against us and such persons. Alternatively, if a court were to find these provisions of our amended and restated certificate of incorporation inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business, financial condition, prospects or results of operations.
Investors in this offering will experience immediate and substantial dilution of $4.16 per share.
Based on an assumed initial public offering price of $17.00 per share (the midpoint of the price range set forth on the cover of this prospectus), purchasers of our Class A common stock in this offering will experience an immediate and substantial dilution of $4.16 per share in the as adjusted net tangible book value per share of Class A common stock from the initial public offering price, and our as adjusted net tangible book value as of March 31, 2017 after giving effect to this offering and the transactions related thereto would be $12.84 per share. This dilution is due in large part to earlier investors having paid substantially less than the initial public offering price when they purchased their shares. See "Dilution."
We do not intend to pay cash dividends on our Class A common stock, and our Credit Facility will place certain restrictions on our ability to do so. Consequently, your only opportunity to achieve a return on your investment is if the price of our Class A common stock appreciates.
We do not plan to declare cash dividends on shares of our Class A common stock in the foreseeable future. Additionally, our Credit Facility will place certain restrictions on our ability to pay cash dividends. Consequently, your only opportunity to achieve a return on your investment in us will be if you sell your Class A common stock at a price greater than you paid for it. There is no guarantee that the price of our Class A common stock that will prevail in the market will ever exceed the price that you pay in this offering.
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Future sales of our Class A common stock in the public market, or the perception that such sales may occur, could reduce our stock price, and any additional capital raised by us through the sale of equity or convertible securities may dilute your ownership in us.
We may sell additional shares of Class A common stock or securities convertible into Class A common stock in subsequent public offerings. After the completion of this offering, we will have outstanding 7,416,884 shares of Class A common stock (or 8,166,884 shares of Class A common stock if the underwriters' option to purchase additional shares is fully exercised), which may be resold immediately in the public market. Following the completion of this offering, the Existing Owners and the Bridge Loan Lenders will own 6,683,116 shares of our Class B common stock, or, assuming full exercise of the underwriters' option to purchase additional shares, approximately 45.0% of our total outstanding shares. The Existing Owners and the Bridge Loan Lenders will be party to a registration rights agreement, which will require us to effect the registration of any shares of Class A common stock held by an Existing Owner or Bridge Loan Lender or that an Existing Owner or Bridge Loan Lender receives upon redemption of its shares of Class B common stock in certain circumstances no earlier than the expiration of the lock-up period contained in the underwriting agreement entered into in connection with this offering.
In connection with this offering, we intend to file a registration statement with the SEC on Form S-8 providing for the registration of 1,250,000 shares of our Class A common stock issued or reserved for issuance under our long term incentive plan. Subject to the satisfaction of vesting conditions, the expiration of lock-up agreements and the requirements of Rule 144, shares registered under the registration statement on Form S-8 may be made available for resale immediately in the public market without restriction.
We cannot predict the size of future issuances of our Class A common stock or securities convertible into Class A common stock or the effect, if any, that future issuances and sales of shares of our Class A common stock will have on the market price of our Class A common stock. Sales of substantial amounts of our Class A common stock (including shares issued in connection with the ESCO Acquisition or other acquisitions), or the perception that such sales could occur, may adversely affect prevailing market prices of our Class A common stock.
Credit Suisse Securities (USA) LLC and Piper Jaffray & Co. may waive or release parties to the lock-up agreements entered into in connection with this offering, which could adversely affect the price of our Class A common stock.
We, certain of our shareholders and all of our directors and executive officers have entered or will enter into lock-up agreements pursuant to which we and they will be subject to certain restrictions with respect to the sale or other disposition of our Class A common stock or securities convertible into Class A common stock for a period of 180 days following the date of this prospectus. Credit Suisse Securities (USA) LLC and Piper Jaffray & Co., at any time and without notice, may release all or any portion of the Class A common stock subject to the foregoing lock-up agreements. See "Underwriting" for more information on these agreements. If the restrictions under the lock-up agreements are waived, then the Class A common stock, subject to compliance with the Securities Act or exceptions therefrom, will be available for sale into the public markets, which could cause the market price of our Class A common stock to decline and impair our ability to raise capital.
We may issue preferred stock, the terms of which could adversely affect the voting power or value of our Class A common stock.
Our amended and restated certificate of incorporation will authorize us to issue, without the approval of our shareholders, one or more classes or series of preferred stock having such designations, preferences, limitations and relative rights, including preferences over our Class A common stock
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respecting dividends and distributions, as our board of directors may determine. The terms of one or more classes or series of preferred stock could adversely impact the voting power or value of our Class A common stock. For example, we might grant holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we might assign to holders of preferred stock could affect the residual value of the Class A common stock.
We expect to be a "controlled company" within the meaning of NYSE rules and, as a result, will qualify for and intend to rely on exemptions from certain corporate governance requirements.
Upon completion of this offering, CSL, through its interests in the Existing Owners, CSL Opportunities II and CSL Holdings II will hold a majority of the voting power of our capital stock. As a result, we expect to be a controlled company within the meaning of NYSE corporate governance standards. Under NYSE rules, a company of which more than 50% of the voting power for the election of directors is held by an individual, a group or another company is a controlled company and may elect not to comply with certain NYSE corporate governance requirements, including the requirements that:
These requirements will not apply to us as long as we remain a controlled company. Following this offering, we intend to utilize some or all of these exemptions. Accordingly, you may not have the same protections afforded to shareholders of companies that are subject to all of the corporate governance requirements of the NYSE. See "Management."
For as long as we are an emerging growth company, we will not be required to comply with certain reporting requirements, including those relating to accounting standards and disclosure about our executive compensation, that apply to other public companies.
We are classified as an "emerging growth company" under the JOBS Act. For as long as we are an emerging growth company, which may be up to five full fiscal years, unlike other public companies, we will not be required to, among other things: (i) provide an auditor's attestation report on management's assessment of the effectiveness of our system of internal control over financial reporting pursuant to Section 404(b) of Sarbanes-Oxley; (ii) comply with any new requirements adopted by the PCAOB requiring mandatory audit firm rotation or a supplement to the auditor's report in which the auditor would be required to provide additional information about the audit and the financial statements of the issuer; (iii) provide certain disclosures regarding executive compensation required of larger public companies; or (iv) hold nonbinding advisory votes on executive compensation. We will remain an emerging growth company for up to five years, although we will lose that status sooner if we have more than $1.07 billion of revenues in a fiscal year, have more than $700.0 million in market value of our Class A common stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period.
To the extent that we rely on any of the exemptions available to emerging growth companies, you will receive less information about our executive compensation and internal control over financial reporting than issuers that are not emerging growth companies. If some investors find our Class A
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common stock to be less attractive as a result, there may be a less active trading market for our Class A common stock and our stock price may be more volatile.
If securities or industry analysts do not publish research or reports about our business, if they adversely change their recommendations regarding our Class A common stock or if our operating results do not meet their expectations, our stock price could decline.
The trading market for our Class A common stock will be influenced by the research and reports that industry or securities analysts publish about us or our business. If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline. Moreover, if one or more of the analysts who cover our company adversely changes his or her recommendation with respect to our Class A common stock or if our operating results do not meet their expectations, our stock price could decline.
Risks Related to Our Corporate Reorganization and Resulting Structure
We are a holding company. Our sole material asset after completion of this offering will be our equity interest in Ranger LLC and we will be accordingly dependent upon distributions from Ranger LLC to pay taxes, make payments under the Tax Receivable Agreement and cover our corporate and other overhead expenses.
We are a holding company and will have no material assets other than our equity interest in Ranger LLC. Please see "Our History and Corporate Reorganization." We will have no independent means of generating revenues. To the extent Ranger LLC has available cash, we intend to cause Ranger LLC to make (i) generally pro rata distributions to its unit holders, including us, in an amount at least sufficient to allow us to pay our taxes and to make payments under the Tax Receivable Agreement we will enter into with the TRA Holders and any subsequent tax receivable agreements that we may enter into in connection with future acquisitions and (ii) non-pro rata payments to us in an amount at least sufficient to reimburse us for our corporate and other overhead expenses. We will be limited, however, in our ability to cause Ranger LLC and its subsidiaries to make these and other distributions or payments to us due to certain limitations, including restrictions under our Credit Facility and the cash requirements and financial condition of Ranger LLC. To the extent that we need funds and Ranger LLC or its subsidiaries are restricted from making such distributions or payments under applicable laws or regulations or under the terms of any future financing arrangements, or are otherwise unable to provide such funds, our liquidity and financial condition could be materially adversely affected.
Moreover, because we will have no independent means of generating revenue, our ability to make payments under the Tax Receivable Agreement is dependent on the ability of Ranger LLC to make distributions to us in an amount sufficient to cover our obligations under the Tax Receivable Agreement. This ability, in turn, may depend on the ability of Ranger LLC's subsidiaries to make distributions to it. The ability of Ranger LLC, its subsidiaries and other entities in which it directly or indirectly holds an equity interest to make such distributions will be subject to, among other things, (i) the applicable provisions of Delaware law (or other applicable jurisdiction) that may limit the amount of funds available for distribution and (ii) restrictions in relevant debt instruments entered into by Ranger LLC or its subsidiaries and/other entities in which it directly or indirectly holds an equity interest. To the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, such payments will be deferred and will accrue interest until paid.
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We will be required to make payments under the Tax Receivable Agreement for certain tax benefits that we may claim, and the amounts of such payments could be significant.
In connection with the closing of this offering, we will enter into a Tax Receivable Agreement with the TRA Holders. This agreement will generally provide for the payment by us to each TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income and franchise tax that we actually realize (computed using the estimated impact of state and local taxes) or are deemed to realize in certain circumstances in periods after this offering as a result of certain increases in tax basis and certain benefits attributable to imputed interest. We will retain the benefit of the remaining 15% of these cash savings.
The term of the Tax Receivable Agreement will commence upon the completion of this offering and will continue until all tax benefits that are subject to the Tax Receivable Agreement have been utilized or expired, unless we exercise our right to terminate the Tax Receivable Agreement (or the Tax Receivable Agreement is terminated due to other circumstances, including our breach of a material obligation thereunder or certain mergers, asset sales, other forms of business combination or other changes of control), and we make the termination payments specified in the Tax Receivable Agreement. In addition, payments we make under the Tax Receivable Agreement will be increased by any interest accrued from the due date (without extensions) of the corresponding tax return.
The payment obligations under the Tax Receivable Agreement are our obligations and not obligations of Ranger LLC, and we expect that the payments we will be required to make under the Tax Receivable Agreement will be substantial. Estimating the amount and timing of payments that may become due under the Tax Receivable Agreement is by its nature imprecise. For purposes of the Tax Receivable Agreement, cash savings in tax generally are calculated by comparing our actual tax liability (computed using the estimated impact of state and local taxes) to the amount we would have been required to pay had we not been able to utilize any of the tax benefits subject to the Tax Receivable Agreement. The actual increase in tax basis, as well as the amount and timing of any payments under the Tax Receivable Agreement, will vary depending upon a number of factors, including the timing of the redemptions of Ranger Units, the price of our Class A common stock at the time of each redemption, the extent to which such redemptions are taxable transactions, the amount of the redeeming Ranger Unit Holder's tax basis in its Ranger Units at the time of the relevant redemption, the depreciation and amortization periods that apply to the increase in tax basis, the amount, character and timing of the taxable income we generate in the future, the U.S. federal income tax rates then applicable, and the portion of our payments under the Tax Receivable Agreement that constitute imputed interest or give rise to depreciable or amortizable tax basis.
Our ability to realize the tax benefits that we currently expect to be available as a result of the increases in tax basis created by redemptions and our ability to utilize the interest deductions imputed under the Tax Receivable Agreement depend on a number of assumptions, including that we earn sufficient taxable income each year during the period over which such deductions are available and that there are no adverse changes in applicable law or regulations. If our actual taxable income was insufficient or there were adverse changes in applicable law or regulations, we may be unable to realize all or a portion of these expected benefits and our cash flows could be negatively affected.
The payments under the Tax Receivable Agreement will not be conditioned upon a holder of rights under the Tax Receivable Agreement having a continued ownership interest in either Ranger LLC or us. For additional information regarding the Tax Receivable Agreement, see "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
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In certain cases, payments under the Tax Receivable Agreement may be accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable Agreement.
If we elect to terminate the Tax Receivable Agreement early or it is terminated early due to our breach of a material obligation thereunder or due to certain mergers, asset sales, other forms of business combinations or other changes of control, our obligations under the Tax Receivable Agreement would accelerate and we would be required to make an immediate payment equal to the present value of the anticipated future payments to be made by us under the Tax Receivable Agreement (determined by applying a discount rate equal to one-year London Interbank Offered Rate ("LIBOR") plus 150 basis points. The calculation of anticipated future payments will be based upon certain assumptions and deemed events set forth in the Tax Receivable Agreement, including (i) the assumption that we have sufficient taxable income to fully utilize the tax benefits covered by the Tax Receivable Agreement (including having sufficient taxable income to currently utilize any accumulated net operating loss carryforwards) and (ii) the assumption that any Ranger Units (other than those held by us) outstanding on the termination date are deemed to be redeemed on the termination date. Any early termination payment may be made significantly in advance of the actual realization, if any, of the future tax benefits to which the termination payment relates.
As a result of either an early termination or a change of control, we could be required to make payments under the Tax Receivable Agreement that exceed our actual cash tax savings under the Tax Receivable Agreement. In these situations, our obligations under the Tax Receivable Agreement could have a substantial negative impact on our liquidity and could have the effect of delaying, deferring or preventing certain mergers, asset sales or other forms of business combinations or changes of control that could be in the best interests of holders of our Class A common stock. For example, if the Tax Receivable Agreement were terminated immediately after this offering (assuming $17.00 per share, the midpoint of the price range set forth on the cover page of this prospectus, as the initial offering price to the public), the present value of the estimated termination payments would, in the aggregate, be approximately $31.9 million (calculated using a discount rate equal to one-year LIBOR plus 150 basis points, applied against an undiscounted liability of approximately $43.0 million). The foregoing amount is merely an estimate and the actual payment could differ materially. There can be no assurance that we will be able to finance our obligations under the Tax Receivable Agreement.
Please see "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
In the event that our payment obligations under the Tax Receivable Agreement are accelerated upon certain mergers, other forms of business combinations or other changes of control, the consideration payable to holders of our Class A common stock could be substantially reduced.
If we experience a change of control (as defined under the Tax Receivable Agreement, which includes certain mergers, asset sales and other forms of business combinations), we would be obligated to make a substantial, immediate lump-sum payment, and such payment may be significantly in advance of, and may materially exceed, the actual realization, if any, of the future tax benefits to which the payment relates. As a result of this payment obligation, holders of our Class A common stock could receive substantially less consideration in connection with a change of control transaction than they would receive in the absence of such obligation. Further, our payment obligations under the Tax Receivable Agreement will not be conditioned upon the TRA Holders' having a continued interest in us or Ranger LLC. Accordingly, the TRA Holders' interests may conflict with those of the holders of our Class A common stock. Please read "Risks Related to Our Corporate Reorganization and Resulting StructureIn certain cases, payments under the Tax Receivable Agreement may be accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable Agreement" and "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
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We will not be reimbursed for any payments made under the Tax Receivable Agreement in the event that any tax benefits are subsequently disallowed.
Payments under the Tax Receivable Agreement will be based on the tax reporting positions that we will determine. The TRA Holders will not reimburse us for any payments previously made under the Tax Receivable Agreement if any tax benefits that have given rise to payments under the Tax Receivable Agreement are subsequently disallowed, except that excess payments made to any TRA Holder will be netted against payments that would otherwise be made to such TRA Holder, if any, after our determination of such excess. As a result, in such circumstances, we could make payments that are greater than our actual cash tax savings, if any, and may not be able to recoup those payments, which could adversely affect our liquidity.
In certain circumstances, Ranger LLC will be required to make tax distributions to the Ranger Unit Holders, including us, and the tax distributions that Ranger LLC will be required to make may be substantial. To the extent we receive tax distributions in excess of our tax liabilities and obligations to make payments under the Tax Receivable Agreement and do not distribute such cash balances as dividends on our Class A common stock, the Ranger Unit Holders (other than us) would benefit from such accumulated cash balances if they exercise their Redemption Right.
Ranger LLC is treated as a partnership for U.S. federal income tax purposes and, as such, is not subject to U.S. federal income tax. Instead, taxable income will be allocated to the Ranger Unit Holders, including us. Pursuant to the Ranger LLC Agreement, Ranger LLC will make generally pro rata cash distributions, or tax distributions, to the Ranger Unit Holders, including us, calculated using an assumed tax rate, to allow each of the Ranger Unit Holders to pay its respective taxes on such holder's allocable share of Ranger LLC's taxable income; such tax distributions will be calculated after taking into account certain other distributions or payments received by the Ranger Unit Holders from Ranger LLC or Ranger Inc. Under applicable tax rules, Ranger LLC is required to allocate taxable income disproportionately to its members in certain circumstances. Because tax distributions will be determined based on the Ranger Unit Holder that is allocated the largest amount of taxable income on a per unit basis and on an assumed tax rate that is the highest possible rate applicable to any Ranger Unit Holder, but will be made pro rata based on ownership, Ranger LLC will be required to make tax distributions that, in the aggregate, will likely exceed the amount of taxes that Ranger LLC would have paid if it were taxed on its net income at the assumed rate. The pro rata distribution amounts will also be increased to the extent necessary, if any, to ensure that the amount distributed to Ranger Inc. is sufficient to enable Ranger Inc. to pay its actual tax liabilities and amounts payable under the Tax Receivable Agreement (other than accelerated amounts payable under the Tax Receivable Agreement as a result of a change of control or termination event, which we expect to be subject to restrictions contained in our Credit Facility).
Funds used by Ranger LLC to satisfy its tax distribution obligations will not be available for reinvestment in our business. Moreover, the tax distributions Ranger LLC will be required to make may be substantial, and may exceed (as a percentage of Ranger LLC's income) the overall effective tax rate applicable to a similarly situated corporate taxpayer. In addition, because these payments will be calculated with reference to an assumed tax rate, and because of the disproportionate allocation of taxable income, these payments will likely significantly exceed the actual tax liability for many of the Ranger Unit Holders.
As a result of potential differences in the amount of taxable income allocable to us and to the other Ranger Unit Holders, as well as the use of an assumed tax rate in calculating Ranger LLC's tax distribution obligations, we may receive distributions significantly in excess of our tax liabilities and obligations to make payments under the Tax Receivable Agreement. If we do not distribute such cash balances as dividends on our Class A common stock and instead, for example, hold such cash balances or lend them to Ranger LLC, the Ranger Unit Holders (other than us) would benefit from any value
53
attributable to such accumulated cash balances as a result of their ownership of Class A common stock following a redemption of their Ranger LLC Units pursuant to the Redemption Right or their receipt of an equivalent amount of cash.
If Ranger LLC were to become a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes, we and Ranger LLC might be subject to potentially significant tax inefficiencies, and we would not be able to recover payments previously made by us under the Tax Receivable Agreement even if the corresponding tax benefits were subsequently determined to have been unavailable due to such status.
We intend to operate such that Ranger LLC does not become a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes. A "publicly traded partnership" is a partnership, the interests of which are traded on an established securities market or are readily tradable on a secondary market or the substantial equivalent thereof. Under certain circumstances, redemptions of Ranger Units pursuant to a Redemption Right (or our Call Right) or other transfers of Ranger Units could cause Ranger LLC to be treated as a publicly traded partnership. Applicable U.S. Treasury regulations provide for certain safe harbors from treatment as a publicly traded partnership, and we intend to operate such that redemptions or other transfers of Ranger Units qualify for one or more such safe harbors. For example, we intend to limit the number of Ranger Unit Holders, and the Ranger LLC Agreement, which will be entered into in connection with the closing of this offering, will provide for limitations on the ability of Ranger Unit Holders to transfer their Ranger Units and will provide us, as managing member of Ranger LLC, with the right to impose restrictions (in addition to those already in place) on the ability of Ranger Unit Holders to redeem their Ranger Units pursuant to a Redemption Right to the extent we believe it is necessary to ensure that Ranger LLC will continue to be treated as a partnership for U.S. federal income tax purposes.
If Ranger LLC were to become a publicly traded partnership, significant tax inefficiencies might result for us and for Ranger LLC, including as a result of our inability to file a consolidated U.S. federal income tax return with Ranger LLC. In addition, we may not be able to realize tax benefits covered under the Tax Receivable Agreement, and we would not be able to recover any payments previously made by us under the Tax Receivable Agreement, even if the corresponding tax benefits (including any claimed increase in the tax basis of Ranger LLC's assets) were subsequently determined to have been unavailable.
The sale or redemption of 50% or more of the capital and profits interests of Ranger LLC during any twelve-month period will result in the termination of the Ranger LLC partnership for U.S. federal income tax purposes, which could result in significant deferral of depreciation deductions allowable in computing our taxable income.
Ranger LLC will be considered to have terminated its partnership for U.S. federal income tax purposes if there is a sale or redemption of 50% or more of the total interests in its capital and profits within a twelve-month period. For purposes of determining whether the 50% threshold has been met, multiple sales of the same interest will be counted only once. Among other consequences, the termination of Ranger LLC for U.S. federal income tax purposes could result in a significant deferral of depreciation deductions allowable in computing Ranger LLC's taxable income, including the taxable income of Ranger LLC that is allocable to us. The termination of Ranger LLC would not affect its classification as a partnership for U.S. federal income tax purposes, but it would result in its being treated as a new partnership for U.S. federal income tax purposes following the termination.
54
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The information in this prospectus includes "forward-looking statements." All statements, other than statements of historical fact included in this prospectus, regarding our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are forward-looking statements. When used in this prospectus, the words "could," "believe," "anticipate," "intend," "estimate," "expect," "project" and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. These forward-looking statements are based on our current expectations and assumptions about future events and are based on currently available information as to the outcome and timing of future events. When considering forward-looking statements, you should keep in mind the risk factors and other cautionary statements described under the heading "Risk Factors" included in this prospectus. These forward-looking statements are based on management's current belief, based on currently available information, as to the outcome and timing of future events.
Forward-looking statements may include statements about:
We caution you that these forward-looking statements are subject to all of the risks and uncertainties, most of which are difficult to predict and many of which are beyond our control. These risks include, but are not limited to, the risks described under "Risk Factors" in this prospectus. Should one or more of the risks or uncertainties described in this prospectus occur, or should underlying assumptions prove incorrect, our actual results and plans could differ materially from those expressed in any forward-looking statements.
All forward-looking statements, expressed or implied, included in this prospectus are expressly qualified in their entirety by this cautionary statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements that we or persons acting on our behalf may issue. Except as otherwise required by applicable law, we disclaim any duty to update any forward-looking statements, all of which are expressly qualified by the statements in this section, to reflect events or circumstances after the date of this prospectus.
55
We expect to receive net proceeds from this offering of approximately $74.5 million (assuming the midpoint of the price range set forth on the cover of this prospectus), after deducting estimated underwriting discounts and commissions as well as estimated offering expenses of approximately $5.0 million in the aggregate. We intend to contribute all of the net proceeds received by us in this offering to Ranger LLC in exchange for 5,000,000 Ranger Units. Ranger LLC will use (i) approximately $10.4 million of the net proceeds to fully repay amounts outstanding under the Ranger Line of Credit and the Ranger Note (based on amounts outstanding as of July 28, 2017), (ii) approximately $0.7 million of the net proceeds to pay cash bonuses to certain employees, as described further under "Executive Compensation," (iii) approximately $45.2 million of the net proceeds to fund the remaining cash portion of the consideration for the ESCO Acquisition and (iv) the remaining net proceeds for general corporate purposes, which may include the acquisition of high-spec well service rigs, including pursuant to the NOV Purchase Agreement.
As of March 31, 2017, we had $5.0 million of outstanding borrowings under the Ranger Line of Credit, which matures in April 2018 and, as of March 31, 2017, bore interest at 4.28%, and $5.8 million of outstanding borrowings under the Ranger Note, which is payable in equal monthly installments through May 1, 2019, and as of March 31, 2017, bore interest at 4.28%. The outstanding borrowings under the Ranger Line of Credit and the Ranger Note were incurred to fund capital expenditures and for general corporate purposes. Pursuant to the terms of the Ranger Note, we made aggregate payments thereon of $0.4 million in April, May, June and July 2017, as a result of which the outstanding balance under the Ranger Note was $5.4 million as of July 28, 2017. In connection with the consummation of this offering and the use of proceeds therefrom, we intend to fully repay and terminate the Ranger Line of Credit and the Ranger Note and enter into a new credit agreement providing for a $50.0 million Credit Facility. For additional information, please see "Management's Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital ResourcesOur Debt Agreements."
A $1.00 increase or decrease in the assumed initial public offering price of $17.00 per share would cause the net proceeds from this offering received by us, after deducting the underwriting discounts and commissions and estimated offering expenses, to increase or decrease, respectively, by approximately $4.7 million, assuming the number of shares offered by us (as set forth on the cover page of this prospectus) remains the same. If the proceeds increase due to a higher initial public offering price, we would use the additional net proceeds to acquire additional high-spec well service rigs, including pursuant to the NOV Purchase Agreement. If the proceeds decrease due to a lower initial public offering price, we would reduce by a corresponding amount the net proceeds to be used for general corporate purposes, which may include the acquisition of high-spec well service rigs, including pursuant to the NOV Purchase Agreement.
56
We do not anticipate declaring or paying any cash dividends to holders of our Class A common stock in the foreseeable future. We currently intend to retain future earnings, if any, to finance the growth of our business. Our future dividend policy is within the discretion of our board of directors and will depend upon then-existing conditions, including our results of operations, financial condition, capital requirements, investment opportunities, statutory restrictions on our ability to pay dividends and other factors our board of directors may deem relevant. In addition, we expect that our Credit Facility will restrict our ability to pay cash dividends to holders of our Class A common stock, as further described under "Management's Discussion and Analysis of Results of Operations and Financial ConditionLiquidity and Capital ResourceOur Debt Agreements."
57
The following table sets forth our cash and cash equivalents and capitalization as of March 31, 2017:
You should read the following table in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our combined consolidated financial statements and related notes appearing elsewhere in this prospectus.
|
As of March 31, 2017 | ||||||
---|---|---|---|---|---|---|---|
|
Actual | As Adjusted(1) | |||||
|
(in millions, except
number of shares and par value) |
||||||
Cash and cash equivalents(2) |
$ | 2.0 | $ | 26.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Long-term debt, including current portion and related party debt: |
|||||||
Term loans(3) |
$ | 17.5 | $ | | |||
Revolving credit facility(4) |
5.0 | | |||||
Other long-term debt(5) |
| 7.0 | |||||
| | | | | | | |
Total long-term debt |
22.5 | 7.0 | |||||
Net parent investment/Shareholders' Equity: |
|||||||
Net parent investment |
$ | 110.8 | $ | | |||
Preferred stock, $0.01 per share; no shares authorized, issued or outstanding (Actual), 50,000,000 shares authorized, no shares issued and outstanding (As Adjusted) |
| | |||||
Class A common stock, $0.01 par value; no shares authorized, issued or outstanding (Actual); 100,000,000 shares authorized, 7,416,884 shares issued and outstanding (As Adjusted) |
| 0.1 | |||||
Class B common stock, $0.01 par value, no shares authorized, issued or outstanding (Actual); 100,000,000 shares authorized, 6,683,116 shares issued and outstanding (As Adjusted) |
| 0.1 | |||||
Additional paid-in capital |
| 109.2 | |||||
| | | | | | | |
Net parent investment/shareholders' equity |
110.8 | 109.4 | |||||
Non-controlling interests |
| 98.3 | |||||
| | | | | | | |
Total net parent investment/shareholders' equity |
110.8 | 207.7 | |||||
| | | | | | | |
Total capitalization |
$ | 133.3 | $ | 214.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
58
discounts and commissions and estimated offering expenses. We may also increase or decrease the number of shares we are offering. An increase (decrease) of 100,000 shares offered by us at an assumed initial public offering price of $17.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) each of additional paid-in capital, total net parent investment/shareholders' equity and total capitalization by approximately $1.6 million after deducting the estimated underwriting discounts and commissions and estimated offering expenses.
59
Purchasers of the Class A common stock in this offering will experience immediate and substantial dilution in the net tangible book value per share of the Class A common stock for accounting purposes. Our net tangible book value as of March 31, 2017, after giving pro forma effect to the transactions described under "Our History and Corporate Reorganization," other than the issuance of shares of Class A common stock and Ranger Units (and corresponding shares of Class B common stock) to the Bridge Loan Lenders, was approximately $100.1 million, or $13.79 per share of Class A common stock. Pro forma net tangible book value per share is determined by dividing our pro forma tangible net worth (tangible assets less total liabilities) by the total number of outstanding shares of Class A common stock (assuming that 100% of Ranger Units have been redeemed for Class A common stock) that will be outstanding immediately prior to the closing of this offering including giving effect to our corporate reorganization. After giving effect to the sale of the shares in this offering, the issuance of shares of Class A common stock as partial consideration for the ESCO Acquisition and the issuance of shares of Class A common stock and Ranger Units (and corresponding shares of Class B common stock) to the Bridge Loan Lenders, and further assuming the receipt of the estimated net proceeds from this offering (after deducting estimated underwriting discounts and commissions and estimated offering expenses), our adjusted pro forma net tangible book value as of March 31, 2017 would have been approximately $181.0 million, or $12.84 per share. This represents an immediate decrease in the net tangible book value of $0.95 per share to the Existing Owners and an immediate dilution (i.e., the difference between the offering price and the adjusted pro forma net tangible book value after this offering) to new investors of $4.16 per share. The following table illustrates the per share dilution to new investors (assuming that 100% of Ranger Units have been redeemed for Class A common stock):
Initial public offering price per share of Class A common stock |
$ | 17.00 | |||||
Pro forma net tangible book value per share of Class A common stock as of March 31, 2017 (after giving effect to our corporate reorganization as described above) |
$ | 13.79 | |||||
Decrease per share of Class A common stock attributable to this offering and related transactions as described above |
(0.95 | ) | |||||
| | | | | | | |
As adjusted pro forma net tangible book value per share of Class A common stock (after giving further effect to this offering and related transactions as described above) |
12.84 | ||||||
| | | | | | | |
Dilution in pro forma net tangible book value per share of Class A common stock to new investors(1) |
$ | 4.16 | |||||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The following table summarizes, on an adjusted pro forma basis as of March 31, 2017, the total number of shares of Class A common stock owned by the Existing Owners (assuming that 100% of Ranger Units have been redeemed for Class A common stock) and to be owned by new investors, including investors in this offering, ESCO and the Bridge Loan Lenders, the total consideration paid,
60
and the average price per share paid by the Existing Owners and to be paid by new investors at $17.00, calculated before deduction of estimated underwriting discounts and commissions.
|
|
|
Total
Consideration |
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Shares Acquired |
|
||||||||||||||
|
Average Price
Per Share |
|||||||||||||||
|
Number | Percent | Amount | Percent | ||||||||||||
|
(in thousands)
|
|||||||||||||||
Existing Owners |
7,259,877 | 51.5 | % | $ | 96,939 | 45.5 | % | $ | 13.35 | |||||||
New investors(1) |
6,840,123 | 48.5 | % | 116,282 | 54.5 | 17.00 | ||||||||||
| | | | | | | | | | | | | | | | |
Total |
14,100,000 | 100.0 | % | $ | 213,221 | 100.0 | % | $ | 15.12 | |||||||
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
The data in the table excludes 1,250,000 shares of Class A common stock reserved for issuance under our long-term incentive plan.
If the underwriters' option to purchase additional shares is exercised in full, the number of shares held by new investors will be increased to 7,590,123, or approximately 51.1% of the total number of shares of common stock.
61
SELECTED HISTORICAL COMBINED CONSOLIDATED AND UNAUDITED PRO FORMA CONDENSED FINANCIAL AND OPERATING DATA
Ranger Inc. was formed in February 2017 and does not have historical financial results. The following table shows selected historical combined consolidated financial information of our Predecessor and selected unaudited pro forma condensed financial data for the periods and as of the dates indicated. The selected historical combined consolidated financial information at December 31, 2015 and 2016, and for the years then ended, was derived from the historical audited combined consolidated financial statements of our Predecessor included elsewhere in this prospectus. The selected historical unaudited condensed combined consolidated financial information at March 31, 2017, and for the three months ended March 31, 2016 and 2017, was derived from the historical unaudited condensed combined consolidated financial statements of our Predecessor included elsewhere in this prospectus.
The selected unaudited pro forma condensed statement of operations for the year ended December 31, 2016 has been prepared to give pro forma effect to (i) the acquisitions of Magna and Bayou, (ii) the ESCO Acquisition, (iii) the transactions described under "Our History and Corporate Reorganization" (including the issuance of shares of our Class A common stock and Class B common stock to the Bridge Loan Lenders) and (iv) this offering and the use of proceeds therefrom, as if each had been completed as of January 1, 2016. The selected unaudited pro forma condensed statement of operations and balance sheet for the three months ended March 31, 2017 have been prepared to give pro forma effect to (i) the ESCO Acquisition, (ii) the transactions described under "Our History and Corporate Reorganization" (including the issuance of shares of our Class A common stock and Class B common stock to the Bridge Loan Lenders) and (iii) this offering and the use of proceeds therefrom, as if each had been completed on January 1, 2016, in the case of the unaudited pro forma condensed statement of operations data, and March 31, 2017, in the case of the unaudited pro forma condensed balance sheet data. This information is subject to and gives effect to the assumptions and adjustments described in the notes accompanying the unaudited pro forma condensed financial statements included elsewhere in this prospectus. The selected unaudited pro forma condensed financial data are presented for informational purposes only and should not be considered indicative of actual results of operations that would have been achieved had the applicable transactions been consummated on the dates indicated, and do not purport to be indicative of results of operations for any future period. The following table should be read together with "Use of Proceeds," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Our History and Corporate Reorganization" and the financial statements and related notes included elsewhere in this prospectus.
62
|
Predecessor |
Pro Forma Ranger
Energy Services, Inc.(1) |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Year Ended
December 31, |
Three Months
Ended March 31, |
|
Three
Months Ended March 31, 2017 |
|||||||||||||||
|
Year Ended
December 31, 2016 |
||||||||||||||||||
|
2015 | 2016 | 2016 | 2017 | |||||||||||||||
|
|
|
(unaudited)
|
(unaudited)
|
|||||||||||||||
|
(dollars in millions, except share, per share and operational amounts)
|
||||||||||||||||||
Statements of Operations Data: |
|||||||||||||||||||
Revenues: |
|||||||||||||||||||
Well Services |
$ | 9.7 | $ | 46.3 | $ | 3.6 | $ | 27.3 | $ | 119.5 | $ | 36.8 | |||||||
Processing Solutions |
11.5 | 6.5 | 1.2 | 1.8 | 6.5 | 1.8 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total revenues |
21.2 | 52.8 | 4.8 | 29.1 | 126.0 | 38.6 | |||||||||||||
Operating expenses: |
|||||||||||||||||||
Cost of services (excluding depreciation and amortization shown separately): |
|||||||||||||||||||
Well Services |
8.2 | 36.7 | 2.9 | 23.2 | 95.6 | 28.9 | |||||||||||||
Processing Solutions |
7.9 | 2.6 | 0.6 | 0.7 | 2.6 | 0.7 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total cost of services |
16.1 | 39.3 | 3.5 | 23.9 | 98.2 | 29.6 | |||||||||||||
General and administrative |
7.8 | 11.4 | 1.7 | 7.3 | 26.7 | 10.1 | |||||||||||||
Depreciation and amortization |
2.1 | 6.6 | 0.9 | 3.6 | 22.0 | 5.5 | |||||||||||||
Impairment of goodwill |
1.6 | | | | | | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Total operating expenses |
27.6 | 57.3 | 6.1 | 34.8 | 146.9 | 45.2 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Operating loss |
(6.4 | ) | (4.5 | ) | (1.3 | ) | (5.7 | ) | (20.9 | ) | (6.6 | ) | |||||||
Interest expense, net |
(0.3 | ) | (0.5 | ) | (0.1 | ) | (0.5 | ) | (1.1 | ) | (0.1 | ) | |||||||
| | | | | | | | | | | | | | | | | | | |
Loss before income taxes |
(6.7 | ) | (5.0 | ) | (1.4 | ) | (6.2 | ) | (22.0 | ) | (6.7 | ) | |||||||
| | | | | | | | | | | | | | | | | | | |
Income tax provision(2) |
| | | | 0.1 | 1.3 | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | $ | (1.4 | ) | $ | (6.2 | ) | $ | (22.1 | ) | $ | (8.0 | ) | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
Less: net loss attributable to non-controlling interest |
(10.5 | ) | (3.8 | ) | |||||||||||||||
| | | | | | | | | | | | | | | | | | | |
Net loss attributable to shareholders |
$ | (11.6 | ) | $ | (4.2 | ) | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
Net loss per share(3): |
|||||||||||||||||||
Basic |
$ | (1.92 | ) | $ | (0.69 | ) | |||||||||||||
Diluted |
(1.92 | ) | (0.69 | ) | |||||||||||||||
Weighted average shares outstanding(3): |
|||||||||||||||||||
Basic |
6,068,250 | 6,068,250 | |||||||||||||||||
Diluted |
6,068,250 | 6,068,250 | |||||||||||||||||
Statements of Cash Flows Data: |
|
|
|
|
|
|
|||||||||||||
Cash flows used in operating activities |
$ | (5.2 | ) | $ | (5.2 | ) | $ | (0.3 | ) | $ | (6.8 | ) | |||||||
Cash flows used in investing activities |
(25.5 | ) | (25.4 | ) | (1.4 | ) | (7.3 | ) | |||||||||||
Cash flows provided by financing activities |
28.9 | 31.1 | 2.1 | 14.5 | |||||||||||||||
Other Data: |
|
|
|
|
|
|
|||||||||||||
Capital Expenditures |
$ | 26.8 | $ | 12.2 | $ | 1.4 | $ | 11.8 | |||||||||||
Adjusted EBITDA(4) |
(2.6 | ) | 3.1 | (0.4 | ) | (0.6 | ) | $ | 2.1 | $ | 2.1 | ||||||||
Rig Hours(5) |
22,800 | 68,800 | 8,400 | 39,100 | |||||||||||||||
Rig Utilization(6) |
188 | 178 | 177 | 194 | |||||||||||||||
Balance Sheet Data (at end of period): |
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents |
$ | 1.1 | $ | 1.6 | $ | 2.0 | $ | 26.7 | |||||||||||
Working capital (total current assets less total current liabilities) |
0.3 | 10.4 | (17.5 | ) | 32.8 | ||||||||||||||
Total assets |
54.0 | 135.7 | 159.7 | 245.1 | |||||||||||||||
Long-term debt(7) |
10.0 | 12.1 | 22.5 | 7.0 | |||||||||||||||
Total net parent investment/stockholders' equity (including non-controlling interest) |
40.3 | 112.6 | 110.8 | 207.7 |
63
three months ended March 31, 2017, respectively, has been prepared using ESCO's unaudited financial information for the twelve months ended January 31, 2017 and as of and for the three months ended April 30, 2017, respectively.
We believe Adjusted EBITDA is a useful performance measure because it allows for an effective evaluation of our operating performance when compared to our peers, without regard to our financing methods or capital structure. We exclude the items listed above from net loss in arriving at Adjusted EBITDA because these amounts can vary substantially within our industry depending upon accounting methods and book values of assets, capital structures and the method by which the assets were acquired. Adjusted EBITDA should not be considered as an alternative to, or more meaningful than, net loss determined in accordance with GAAP. Certain items excluded from Adjusted EBITDA are significant components in understanding and assessing a company's financial performance, such as a company's cost of capital and tax structure, as well as the historic costs of depreciable assets, none of which are reflected in Adjusted EBITDA. Our presentation of Adjusted EBITDA should not be construed as an indication that our results will be unaffected by the items excluded from Adjusted EBITDA. Our computations of Adjusted EBITDA may not be identical to other similarly titled measures of other companies. The following table presents a reconciliation of Adjusted EBITDA to net loss, our most directly comparable financial measure calculated and presented in accordance with GAAP.
|
Predecessor |
Pro Forma Ranger
Energy Services, Inc. |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
|
Three
Months Ended March 31, |
||||||||||||||||
|
Year Ended
December 31, |
|
Three
Months Ended March 31, 2017 |
||||||||||||||||
|
Year Ended
December 31, 2016 |
||||||||||||||||||
(in millions)
|
2015 | 2016 | 2016 | 2017 | |||||||||||||||
|
|
|
(unaudited)
|
(unaudited)
|
|||||||||||||||
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | $ | (1.4 | ) | $ | (6.2 | ) | $ | (22.1 | ) | $ | (8.0 | ) | |
Interest expense, net |
0.3 | 0.5 | 0.1 | 0.5 | 1.1 | 0.1 | |||||||||||||
Income tax provision |
| | | | 0.1 | 1.3 | |||||||||||||
Depreciation and amortization |
2.1 | 6.6 | 0.9 | 3.6 | 22.0 | 5.5 | |||||||||||||
Equity-based compensation |
0.1 | 0.5 | | 0.4 | 0.5 | 0.4 | |||||||||||||
Acquisition-related and severance costs |
| 0.5 | | 1.1 | 0.5 | 1.1 | |||||||||||||
Costs incurred for IPO-related services |
| | | | | 1.7 | |||||||||||||
Impairment of goodwill |
1.6 | | | | | | |||||||||||||
| | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA |
$ | (2.6 | ) | $ | 3.1 | $ | (0.4 | ) | $ | (0.6 | ) | $ | 2.1 | $ | 2.1 | ||||
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | |
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with the "Prospectus SummarySummary Historical Combined Consolidated and Unaudited Pro Forma Condensed Financial and Operating Data," "Selected Historical Combined Consolidated and Unaudited Pro Forma Condensed Financial and Operating Data" and the financial statements and related notes appearing elsewhere in this prospectus. This discussion contains "forward-looking statements" reflecting our current expectations, estimates and assumptions concerning events and financial trends that may affect our future operating results or financial position. Actual results and the timing of events may differ materially from those contained in these forward-looking statements due to a number of factors. Factors that could cause or contribute to such differences include, but are not limited to, market prices for oil and natural gas, capital expenditures, economic and competitive conditions, regulatory changes and other uncertainties, as well as those factors discussed below and elsewhere in this prospectus, particularly in "Risk Factors" and "Cautionary Note Regarding Forward-Looking Statements," all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward-looking events discussed may not occur. We assume no obligation to update any of these forward-looking statements.
We are one of the largest independent providers of high-spec well service rigs and associated services in the United States, with a focus on technically demanding unconventional horizontal well completion and production operations. We believe that our fleet of 123 well service rigs (including 49 well service rigs to be acquired from ESCO) is among the newest and most advanced in the industry and, based on our historical rig utilization and feedback from our customers, we believe that we are an operator of choice for U.S. onshore E&P companies that require completion and production services at increasing lateral lengths. Our high-spec well service rigs facilitate operations throughout the lifecycle of a well, including (i) well completion support, such as milling out composite plugs used during hydraulic fracturing; (ii) workover, including retrieval and replacement of existing production tubing; (iii) well maintenance, including replacement of downhole artificial lift components; and (iv) decommissioning, such as plugging and abandonment operations. We also provide rental equipment, including well control packages, hydraulic catwalks and other equipment that are often deployed with our well service rigs. In addition, we own and operate a fleet of proprietary, modular natural gas processing equipment that processes rich natural gas streams at the wellhead or central gathering points. We have operations in most of the active oil and natural gas basins in the United States, including the Permian Basin, the Denver-Julesburg Basin, the Bakken Shale, the Eagle Ford Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays.
Our Predecessor and Ranger Inc.
Ranger Inc. was formed on February 17, 2017, and has not and will not conduct any material business operations prior to the transactions described under "Our History and Corporate Reorganization" other than certain activities related to this offering. Our Predecessor consists of Ranger Services and Torrent Services on a combined consolidated basis. In connection with the transactions described under "Our History and Corporate Reorganization," the Existing Owners will contribute the equity interests in the Predecessor Companies to us in exchange for 1,638,386 shares of our Class A common stock, 5,621,491 Ranger Units and 5,621,491 shares of our Class B common stock.
Ranger Services was, through Ranger Holdings, formed by CSL in June 2014 as a provider of high-spec well service rigs and associated services. Torrent Services was, through Torrent Holdings, acquired by CSL in September 2014 as a provider of proprietary, modular equipment for the processing of natural gas. In June 2016, CSL indirectly acquired substantially all of the assets of Magna, a provider of well services and wireline services, which it contributed to Ranger Services in September 2016. In
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October 2016, Ranger Services acquired substantially all of the assets of Bayou, an owner and operator of high-spec well service rigs. The historical combined consolidated financial information of our Predecessor included in this prospectus presents the historical financial information of the Predecessor Companies, including, as applicable, the results of operations of Magna and Bayou for periods subsequent to their respective acquisitions. The historical combined consolidated financial information of our Predecessor is not indicative of the results that may be expected in any future periods. For more information, please see the historical combined consolidated and unaudited pro forma condensed financial statements and related notes thereto included elsewhere in this prospectus.
On May 30, 2017, as described further under "Prospectus SummaryRecent DevelopmentsESCO Acquisition," we entered into a definitive purchase agreement, which was subsequently amended and restated on July 31, 2017, with ESCO to acquire 49 high-spec well service rigs and certain ancillary equipment. The amended and restated agreement excluded certain assets and changed the form of consideration to include $7.0 million of secured seller notes. Unless otherwise indicated or the context otherwise requires, the historical financial and operating data included below in this "Management's Discussion and Analysis of Financial Condition and Results of Operations" does not give effect to the ESCO Acquisition. For additional information regarding the potential impact of the ESCO Acquisition on our results of operations, please see "Factors Impacting the Comparability of Results of Operations."
We conduct our operations through two segments: Well Services and Processing Solutions. Our Well Services segment has historically consisted of the results of operations of Ranger Services and, as applicable, Magna and Bayou from their respective acquisition dates, while our Processing Solutions segment has historically consisted of the results of operations of Torrent Services. Our Well Services segment provides high-spec well service rigs and complementary equipment and services in the United States, with a focus on technically demanding unconventional horizontal well completion, workover and maintenance operations. These services are fundamental to establishing and maintaining the flow of oil and natural gas throughout the productive life of a well. Our Processing Solutions segment engages in the rental, installation, commissioning, start-up, operation and maintenance of MRUs, NGL stabilizer units, NGL storage units and related equipment. We operate in most of the active oil and natural gas basins in the United States, including the Permian Basin, the Denver-Julesburg Basin, the Bakken Shale, the Eagle Ford Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays. For additional information about our assets and operations, please see "Business."
We operate our business within the oilfield services industry. Demand for oilfield services is primarily driven by the level of drilling, completion and production activity by E&P companies, which, in turn, depends largely on the current and anticipated profitability of developing oil and natural gas reserves. While overall demand for oilfield services in North America has declined from its highs in late 2014 as a result of the downturn in hydrocarbon prices and the corresponding decline in E&P activity, the industry has witnessed a recent increase in demand from its recent lows for these services as hydrocarbon prices have recovered. This demand should continue to increase if, as we expect, E&P companies continue to increase drilling and completion activities. If hydrocarbon prices remain near current levels or rise further, we expect to see further increased drilling and completion activity in the basins in which we operate. However, our cost of services has also historically risen during periods of increasing hydrocarbon prices. These cost increases result from a variety of factors beyond our control, such as increased demand for labor and services. Such costs may rise faster than increases in our revenue if commodity prices rise, thereby negatively impacting our business, liquidity position, financial condition, prospects and results of operations.
In addition to increased industry activity levels, we expect to benefit from recent increases in the complexity of well completion operations for a significant number of E&P companies, including many
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of our customers. These industry trends should directly benefit oilfield services companies like us that have the expertise and technological capability to execute increasingly complex well completions and to provide related services and equipment.
Further, we believe industry contraction and the resulting reduction in oilfield services capacity since late 2014 will benefit us as industry demand increases. Many of our competitors have experienced financial stress, which has led to significant maintenance deferrals and the use of idle equipment for spare parts, significantly increasing the time and cost required for redeployment. In contrast, our recent and planned asset acquisitions and upgrades have positioned us well to benefit from improving market dynamics. Further, during the recent downturn many oilfield service companies significantly reduced their employee headcounts, which will constrain their ability to capitalize on rebounding industry demand, whereas we substantially increased our workforce over the same period.
In addition, we believe that our Processing Solutions segment will benefit from increased drilling and completion activity in unconventional resource plays. The proprietary, modular equipment that we provide in the Processing Solutions segment generally facilitates, among other things, the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure. E&P companies have increasingly focused on exploiting unconventional resource plays in the onshore United States, many of which had no significant oil or natural gas production until unconventional horizontal drilling and completion technologies were developed over the course of the last decade. We believe that continued development of these unconventional resource plays will increase demand for the assets and services provided by our modular Processing Solutions segment.
For additional information about industry trends and outlook, please see "Industry."
We currently generate revenues through the provision of a variety of oilfield services. These services are performed under a variety of contract structures, including a long term take-or-pay contract and various master service agreements, as supplemented by statements of work, pricing agreements and specific quotes. A portion of our master services agreements include provisions that establish pricing arrangements for a period of up to one year in length. However, the majority of those agreements provide for pricing adjustments based on market conditions. The majority of our services are priced based on prevailing market conditions and changing input costs at the time the services are provided, giving consideration to the specific requirements of the customer.
We recognize revenue in our Well Services segment when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. We price well servicing by the hour or by the day when services are performed. Well servicing is sold without warranty or right of return.
We recognize revenue in our Processing Solutions segment when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. Revenues from equipment leasing, operations and maintenance services are recognized as earned. These services are sold without warranty or right of return.
Costs of Conducting Our Business
The principal expenses involved in conducting our business are personnel, repairs and maintenance costs, general and administrative, depreciation and amortization and interest expense. We manage the level of our expenses, except depreciation and amortization and interest expense, based on several factors, including industry conditions and expected demand for our services. In addition, a significant
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portion of the costs we incur in our business is variable based on the quantities of specific services provided and the requirements of such services.
Direct cost of services and general and administrative include the following major cost categories: personnel costs and equipment costs (including repair and maintenance).
Personnel costs associated with our operational employees represent a significant cost of our business. We incurred personnel costs of $29.6 million and $10.0 million for 2016 and 2015, respectively, and $12.9 million and $2.7 million for the first quarters of 2017 and 2016, respectively. A substantial portion of our labor costs is attributable to our crews and is partly variable based on the requirements of specific customers and operations. A key component of personnel costs relates to the ongoing training of our employees, which improves safety rates and reduces attrition. We also incur costs to employ personnel to support our services and perform maintenance on our assets. Costs for these employees are not directly tied to our level of business activity.
We incur significant equipment costs in connection with the operation of our business, including repair and maintenance costs. We incurred aggregate equipment repair and maintenance costs of $5.5 million and $1.5 million for 2016 and 2015, respectively, and $3.1 million and $0.4 million for the first quarters of 2017 and 2016, respectively.
How We Evaluate Our Operations
Our management intends to use a variety of metrics to analyze our operating results and profitability. These metrics include, among others, the following:
In addition, within our Well Services segment, our management intends to use additional metrics to analyze our activity levels and profitability. These metrics include, among others, the following:
Revenues
We analyze our revenues by comparing actual revenues to our internal projections for a given period and to prior periods to assess our performance. We believe that revenues are a meaningful indicator of the demand and pricing for our services.
Operating Income (Loss)
We analyze our operating income (loss), which we define as revenues less cost of services, general and administrative expenses, depreciation and amortization, impairment and other operating expenses, to measure our financial performance. We believe operating income (loss) is a meaningful metric because it provides insight on profitability and true operating performance based on the historical cost basis of our assets. We also compare operating income (loss) to our internal projections for a given period and to prior periods.
Adjusted EBITDA
We view Adjusted EBITDA, which is a non-GAAP financial measure, as an important indicator of performance. We define Adjusted EBITDA as net loss before interest expense, net, income tax
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provision (benefit), depreciation and amortization, equity-based compensation, acquisition-related and severance costs, impairment of goodwill, costs incurred for IPO-related services and other non-cash and certain other items that we do not view as indicative of our ongoing performance. See "Prospectus SummarySummary Historical Combined Consolidated and Unaudited Pro Forma Condensed Financial and Operating Data" and "Results of OperationsNote Regarding Non-GAAP Financial Measure" for more information and reconciliations of Adjusted EBITDA to net income (loss), the most directly comparable financial measure calculated and presented in accordance with GAAP.
Rig Hours
Within our Well Services segment, we analyze rig hours as an important indicator of our activity levels and profitability. Rig hours represent the aggregate number of hours that our well service rigs actively worked during the periods presented. We typically bill customers for our well services on an hourly basis during the period that a well service rig is actively working, making rig hours a useful metric for evaluating our profitability.
Rig Utilization
Within our Well Services segment, we analyze rig utilization as a further important indicator of our activity levels and profitability. We measure rig utilization by reference to average monthly hours per rig, which is calculated by dividing (a) the approximate, aggregate operating well service rig hours for the periods presented by (b) the aggregate number of well service rigs in our fleet during such period, as aggregated on a monthly basis utilizing a mid-month convention whereby a well service rig added to our fleet during a month, meaning that we have taken delivery of such well service rig, is assumed to be in our fleet for one half of such month. We believe that rig utilization as measured by average monthly hours per well service rig is a meaningful indicator of the operational efficiency of our core revenue-producing assets, market demand for our well services and our ability to profitably capitalize on such demand. Our evaluation of our rig utilization as measured by average monthly hours per rig may not be comparable to that of our competitors. For example, our competitors' well service rig fleets are typically comprised primarily of older, lower spec well service rigs that are not as well suited to servicing modern horizontal well designs as are high-spec well service rigs, which may result in lower average rig hours per rig for our competitors' fleets as compared to our fleet.
The primary factors that have historically impacted, and will likely continue to impact, our actual aggregate well service rig hours for any specified period are (i) customer demand, which, as discussed further under "Industry," is influenced by factors such as commodity prices, the complexity of well completion operations and technological advances in our industry, and (ii) our ability to meet such demand, which is influenced by changes in our fleet size and resulting rig availability, as well as weather, employee availability and related factors. The primary factors that have historically impacted, and will likely continue to impact, the aggregate number of well service rigs in our fleet during any specified period are the extent and timing of changes in the size of our well service rig fleet to meet short-term and expected long-term demand, and our ability to successfully maintain a fleet capable of ensuring sufficient, but not excess, rig availability to meet such demand.
For 2015 and 2016, our rig utilization as measured by average monthly hours per rig was approximately 188 and 178, respectively. Actual aggregate operating well service rig hours increased from approximately 22,800 in 2015 to approximately 68,800 in 2016, primarily as a result of our acquisitions of Magna and Bayou, and their associated well service rigs, during 2016. The related decrease in rig utilization as measured by average monthly hours per rig resulted from an increase in the average number of well service rigs in our fleet from ten during 2015 to 32 during 2016. Although the size of our well service rig fleet substantially increased during 2016, our rig utilization as measured by average monthly hours per rig was slightly lower than in 2015 due to idle well service rigs acquired in the Magna and Bayou acquisitions as well as mobilization and associated downtime of four existing
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well service rigs during the year. For the three months ended March 31, 2016 and 2017, our rig utilization as measured by average monthly hours per rig was approximately 177 and 194, respectively. Actual aggregate operating well service rig hours increased from approximately 8,400 in the three months ended March 31, 2016 to approximately 39,100 in the three months ended March 31, 2017. This increase in rig hours resulted from the average number of our well service rigs in our fleet increasing from 16 to 67 during such periods, primarily as a result of our acquisitions of Magna and Bayou, and their associated well service rigs, during 2016. The related increase in rig utilization as measured by average monthly hours per rig resulted from increased demand in our well service rig business due to WTI crude oil prices increasing from their lows of $26.21 per BBl in the three months ended March 31, 2016 to $50.54 per BBl at the end of March 2017.
Factors Impacting the Comparability of Results of Operations
Magna and Bayou Acquisitions
Our Predecessor's historical combined consolidated financial statements for 2015 and 2016 and the first quarters of 2016 and 2017 include the results of operations for the Predecessor Companies, with the results of operations for Magna and Bayou only included from their respective acquisition dates during 2016. As a result, our Predecessor's historical financial data do not give you an accurate indication of what our actual results would have been if such acquisitions had been completed at the beginning of the periods presented or of what our future results of operations are likely to be. For additional information, please see the unaudited pro forma condensed financial statements and related notes included elsewhere in this prospectus.
ESCO Acquisition
Our Predecessor's historical combined consolidated financial statements for 2015 and 2016 and the first quarters of 2016 and 2017 do not include the results of operations for the assets we expect to acquire in the ESCO Acquisition. As a result, our Predecessor's historical financial data do not give you an accurate indication of what our actual results would have been if the ESCO Acquisition had been completed at the beginning of the periods presented or of what our future results of operations are likely to be.
For example, ESCO's historical rig utilization as measured by average monthly hours per rig, which was approximately 88 and 112, respectively, during the twelve months ended January 31, 2017 and the three months ended April 30, 2017, has been lower than ours in recent periods. By way of comparison, our rig utilization as measured by average monthly hours per rig during the year ended December 31, 2016 and the three months ended March 31, 2017 was approximately 178 and 194, respectively. Because ESCO's historical rig utilization has been lower than ours in recent periods, we expect our rig utilization to decrease during the course of an initial integration period during 2017 and the beginning of 2018, after which we anticipate that the rig utilization for the well service rigs acquired in the ESCO Acquisition will align with the rig utilization of the well service rigs in our existing well service rig fleet. However, there can be no assurance that such results will be achieved on our anticipated timeline or at all. See "Risk FactorsRisks Related to Our BusinessWe may be unable to successfully integrate ESCO's assets or to realize anticipated benefits of the ESCO Acquisition."
For additional information, please see the unaudited pro forma condensed financial statements and related notes included elsewhere in this prospectus.
Public Company Costs
We expect to incur incremental, non-recurring costs related to our transition to a publicly traded and taxable corporation, including the costs of this initial public offering and the costs associated with the initial implementation of our Sarbanes-Oxley Section 404 internal control implementation and
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testing. We also expect to incur additional significant and recurring expenses as a publicly traded corporation, including costs associated with the employment of additional personnel, compliance under the Exchange Act, annual and quarterly reports to common shareholders, registrar and transfer agent fees, national stock exchange fees, audit fees, incremental director and officer liability insurance costs and director and officer compensation.
Corporate Reorganization
We were incorporated to serve as the issuer in this offering and have no previous operations, assets or liabilities. Ranger Services and Torrent Services will be contributed to us in connection with this offering and the transactions described under "Our History and Corporate Reorganization" and will thereby become our subsidiaries. As we integrate our operations and further implement controls, processes and infrastructure, it is likely that we will incur incremental selling, general and administrative expenses relative to historical periods.
In addition, we will enter into a Tax Receivable Agreement with the TRA Holders. This agreement generally will provide for the payment by us to a TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income tax or franchise tax that we actually realize (or are deemed to realize in certain circumstances) in periods after this offering as a result of (i) any tax basis increases resulting from the contribution in connection with this offering by such TRA Holder of all or a portion of its Ranger Units to Ranger Inc. in exchange for shares of Class A common stock, (ii) the tax basis increases resulting from the redemption by such TRA Holder of Ranger Units for shares of Class A common stock pursuant to the Redemption Right or our Call Right and (iii) imputed interest deemed to be paid by us as a result of, and additional tax basis arising from, any payments we make under the Tax Receivable Agreement. We will retain the benefit of the remaining 15% of these cash savings. See "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
Income Taxes
Ranger Inc. is a Subchapter C corporation under the Internal Revenue Code of 1986, as amended (the "Code"), and, as a result, will be subject to U.S. federal, state and local income taxes. Although the Predecessor Companies are subject to franchise tax in the State of Texas (at less than 1% of modified pre-tax earnings), they have historically passed through their taxable income to their owners for U.S. federal and other state and local income tax purposes and thus were not subject to U.S. federal income taxes or other state or local income taxes. Accordingly, the financial data attributable to our Predecessor contains no provision for U.S. federal income taxes or income taxes in any state or locality other than franchise tax in the State of Texas. We estimate that Ranger Inc. will be subject to U.S. federal, state and local taxes at a blended statutory rate of 37.1% of pre-tax earnings and would have incurred pro forma income tax expense for 2016 and the three months ended March 31, 2017 of approximately $0.1 million and $1.3 million, respectively.
We account for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled pursuant to the provisions of Accounting Standards Codification ("ASC") 740, Income Taxes. The effect on deferred tax assets and liabilities of a change in tax rate is recognized in earnings in the period that includes the enactment date. Valuation allowances are established when necessary to reduce deferred tax assets to the amounts more likely than not to be realized. We expect to have a valuation allowance on 100% of any initial deferred tax assets.
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Internal Controls and Procedures
We and our independent auditors identified a material weakness in our internal control over financial reporting as of December 31, 2016. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. The material weakness related to the lack of sufficient qualified accounting personnel, which led to the incorrect application of generally accepted accounting principles, ineffective controls over accounting for non-routine and/or complex transactions, and ineffective controls over the financial statement close and reporting processes.
We are actively seeking to recruit additional finance and accounting personnel, are evaluating our personnel in all key finance and accounting positions and intend to employ additional finance and accounting personnel prior to the completion of this offering. We can give no assurance that these actions will remediate this deficiency in internal control or that additional material weaknesses or significant deficiencies in our internal control over financial reporting will not be identified in the future. Our failure to implement and maintain effective internal control over financial reporting could result in errors in our financial statements that could result in a restatement of our financial statements and cause us to fail to meet our reporting obligations.
We are not currently required to comply with the SEC's rules implementing Section 404 of Sarbanes-Oxley, and are therefore not required in connection with this offering to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. Upon becoming a public company, we will be required to comply with the SEC's rules implementing Section 302 of Sarbanes-Oxley, which will require our management to certify financial and other information in our quarterly and annual reports. We will be required to provide an annual management report on the effectiveness of our internal control over financial reporting beginning with our annual report for the year ended December 31, 2018. We will not be required to have our independent registered public accounting firm attest to the effectiveness of our internal control over financial reporting under Section 404 until our first annual report subsequent to our ceasing to be an "emerging growth company" within the meaning of Section 2(a)(19) of the Securities Act.
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Three Months Ended March 31, 2016 compared to Three Months Ended March 31, 2017
The following table sets forth our Predecessor's selected operating data for the three months ended March 31, 2017 as compared to the three months ended March 31, 2016.
|
Three months
Ended March 31, |
Change | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2016 | 2017 | $ | % | |||||||||
Revenues: |
|||||||||||||
Well Services |
$ | 3.6 | $ | 27.3 | $ | 23.7 | 658 | % | |||||
Processing Solutions |
1.2 | 1.8 | 0.6 | 50 | |||||||||
| | | | | | | | | | | | | |
Total revenues |
4.8 | 29.1 | 24.3 | 506 | |||||||||
Operating expenses: |
|||||||||||||
Cost of services (exclusive of depreciation and amortization shown separately): |
|||||||||||||
Well Services |
2.9 | 23.2 | 20.3 | 700 | |||||||||
Processing Solutions |
0.6 | 0.7 | 0.1 | 17 | |||||||||
| | | | | | | | | | | | | |
Total cost of services |
3.5 | 23.9 | 20.4 | 583 | |||||||||
General and administrative |
1.7 | 7.3 | 5.6 | 329 | |||||||||
Depreciation and amortization |
0.9 | 3.6 | 2.7 | 300 | |||||||||
| | | | | | | | | | | | | |
Total operating expenses |
6.1 | 34.8 | 28.7 | 470 | |||||||||
| | | | | | | | | | | | | |
Operating loss |
(1.3 | ) | (5.7 | ) | (4.4 | ) | 338 | ||||||
Other expenses |
|||||||||||||
Interest expense, net |
(0.1 | ) | (0.5 | ) | (0.4 | ) | 400 | ||||||
| | | | | | | | | | | | | |
Net loss |
$ | (1.4 | ) | $ | (6.2 | ) | $ | (4.8 | ) | 343 | % | ||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
Revenues. Revenues for the three months ended March 31, 2017 increased $24.3 million, or 506%, to $29.1 million from $4.8 million for the three months ended March 31, 2016. The increase in revenues by segment was as follows:
Well Services. Well Services revenues for the three months ended March 31, 2017 increased $23.7 million, or 658%, to $27.3 million from $3.6 million for the three months ended March 31, 2016. Magna and Bayou represented $21.7 million of the increase. The remaining $2.0 million increase was attributable to "legacy Ranger" (as referred to herein to mean Ranger Services on a historical basis, exclusive of the impact of Magna and Bayou), primarily due to increased demand in our workover rig services, which accounted for $1.5 million, or 75% of the remaining segment increase. The $1.5 million increase in workover rig services included a $1.0 million increase due to an approximate 33% increase in total rig hours for the three months ended March 31, 2017 compared to the three months ended March 31, 2016, and an increase of $0.5 million due to an approximate 12% increase in the average rig rates for the three months ended March 31, 2017 compared to the three months ended March 31, 2016.
Processing Solutions. Processing Solutions revenues for the three months ended March 31, 2017 increased $0.6 million, or 50%, to $1.8 million from $1.2 million for the three months ended March 31, 2016. The increase was primarily attributable to a $0.5 million increase in MRU revenue due to a 35% increase in the number of MRUs we owned and a 19% increase in MRU utilization for the three months ended March 31, 2017 compared to the three months ended March 31, 2016.
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Cost of services (excluding depreciation and amortization shown separately). Cost of services for the three months ended March 31, 2017 increased $20.4 million, or 583%, to $23.9 million from $3.5 million for the three months ended March 31, 2016. As a percentage of revenue, cost of services was 73% and 82% for the three months ended March 31, 2016 and 2017, respectively. The increase in cost of services by segment was as follows:
Well Services. Well Services cost of services for the three months ended March 31, 2017 increased $20.3 million, or 700%, to $23.2 million from $2.9 million for the three months ended March 31, 2016. The increase was primarily attributable to an increase in services provided by legacy Ranger, combined with the acquisitions of Magna and Bayou during 2016. More specifically, employee costs increased $10.6 million, or 52% of the segment increase while travel, repair and maintenance and supply costs increased by $9.3 million, or 46% of the segment increase.
Processing Solutions. Processing Solutions cost of services for the three months ended March 31, 2017 increased $0.1 million, or 17%, to $0.7 million from $0.6 million for the three months ended March 31, 2016. The increase was primarily attributable to increases in consumable chemicals and installation expense of $0.1 million due to increased utilization percentages and unit increases in MRUs.
General & Administrative. General and administrative expenses for the three months ended March 31, 2017 increased $5.6 million, or 329%, to $7.3 million from $1.7 million for the three months ended March 31, 2016. The increase in general and administrative expenses by segment was as follows:
Well Services. Well Services general and administrative expenses for the three months ended March 31, 2017 increased $5.9 million, or 843%, to $6.6 million from $0.7 million for the three months ended March 31, 2016. The increase was primarily attributable to an increase in services provided by legacy Ranger, combined with the acquisitions of Magna and Bayou during 2016. More specifically, payroll costs increased $2.4 million, professional fees increased $2.2 million, travel and office costs increased $0.8 million and equity-based compensation expense increased $0.3 million.
Processing Solutions. Processing Solutions general and administrative expenses for the three months ended March 31, 2017 decreased $0.3 million, or 30%, to $0.7 million from $1.0 million for the three months ended March 31, 2016. The decrease was primarily attributable to a $0.2 million decrease in bad debt expense and a $0.1 million decrease in payroll and professional fees.
Depreciation and Amortization. Depreciation and amortization for the three months ended March 31, 2017 increased $2.7 million, or 300%, to $3.6 million from $0.9 million for the three months ended March 31, 2016. The increase in depreciation and amortization expense by segment was as follows:
Well Services. Well Services depreciation and amortization expense for the three months ended March 31, 2017 increased $2.7 million, or 450%, to $3.3 million from $0.6 million for the three months ended March 31, 2016. The increase was primarily attributable to fixed assets that were put in place during 2016 and the three months ended March 31, 2017, due to the acquisition of Magna and Bayou and additional fixed asset purchases by legacy Ranger.
Processing Solutions. Processing Solutions depreciation and amortization expense was $0.3 million for the three months ended March 31, 2017 compared to $0.3 million for the three months ended March 31, 2016.
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Interest Expense, net. Interest expense, net for the three months ended March 31, 2017 increased $0.4 million, or 400%, to $0.5 million from $0.1 million for the three months ended March 31, 2016. The increase to interest expense, net by segment was as follows:
Well Services. Well Services interest expense, net for the three months ended March 31, 2017 increased $0.4 million, or 400%, to $0.5 million from $0.1 million for the three months ended March 31, 2016. The increase to interest expense, net was attributable to an increase in average borrowing during the three months ended March 31, 2017 compared to the three months ended March 31, 2016.
Processing Solutions. Processing Solutions interest expense, net was $0 million for the three months ended March 31, 2017 compared to $0 million for the three months ended March 31, 2016.
Note Regarding Non-GAAP Financial Measure
Adjusted EBITDA is not a financial measure determined in accordance with GAAP. We define Adjusted EBITDA as net loss before interest expense, net, income tax provision (benefit), depreciation and amortization, equity-based compensation, acquisition-related and severance costs, impairment of goodwill, costs incurred for IPO-related services and certain other items that we do not view as indicative of our ongoing performance.
We believe Adjusted EBITDA is a useful performance measure because it allows for an effective evaluation of our operating performance when compared to our peers, without regard to our financing methods or capital structure. We exclude the items listed above from net loss in arriving at Adjusted EBITDA because these amounts can vary substantially within our industry depending upon accounting methods and book values of assets, capital structures and the method by which the assets were acquired. Adjusted EBITDA should not be considered as an alternative to, or more meaningful than, net loss determined in accordance with GAAP. Certain items excluded from Adjusted EBITDA are significant components in understanding and assessing a company's financial performance, such as a company's cost of capital and tax structure, as well as the historic costs of depreciable assets, none of which are reflected in Adjusted EBITDA. Our presentation of Adjusted EBITDA should not be construed as an indication that our results will be unaffected by the items excluded from Adjusted EBITDA. Our computations of Adjusted EBITDA may not be identical to other similarly titled measures of other companies. The following table presents reconciliations of net income (loss), our most directly comparable financial measure calculated and presented in accordance with GAAP, to Adjusted EBITDA.
|
Three Months Ended
March 31, 2016 |
Three Months Ended
March 31, 2017 |
Change $ | |||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Well
Services |
Processing
Solutions |
Total |
Well
Services |
Processing
Solutions |
Total |
Well
Services |
Processing
Solutions |
Total | |||||||||||||||||||
Net income (loss) |
$ | (0.7 | ) | $ | (0.7 | ) | $ | (1.4 | ) | $ | (6.3 | ) | $ | 0.1 | $ | (6.2 | ) | $ | (5.6 | ) | $ | 0.8 | $ | (4.8 | ) | |||
Interest expense, net |
0.1 | 0.0 | 0.1 | 0.5 | 0.0 | 0.5 | 0.4 | | 0.4 | |||||||||||||||||||
Income tax provision (benefit) |
| | | | | | | | | |||||||||||||||||||
Depreciation and amortization |
0.6 | 0.3 | 0.9 | 3.3 | 0.3 | 3.6 | 2.7 | | 2.7 | |||||||||||||||||||
Acquisition-related and severance costs |
| | | 1.1 | | 1.1 | 1.1 | | 1.1 | |||||||||||||||||||
Equity-based compensation |
| | | 0.3 | 0.1 | 0.4 | 0.3 | 0.1 | 0.4 | |||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA |
$ | | $ | (0.4 | ) | $ | (0.4 | ) | $ | (1.1 | ) | $ | 0.5 | $ | (0.6 | ) | $ | (1.1 | ) | $ | 0.9 | $ | (0.2 | ) |
Adjusted EBITDA for the three months ended March 31, 2017 decreased $0.6 million to $(1.0) million from $(0.4) million for the three months ended March 31, 2016. The decrease by segment was as follows:
Well Services. Well Services Adjusted EBITDA decreased $1.1 million to $(1.1) million from $0 million due primarily to an increase in depreciation and amortization of $2.7 million, increase
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in interest expense, net of $0.4 million, increase in acquisition-related and severance costs of $1.1 million and an increase in net loss of $5.6 million.
Processing Solutions. Processing Solutions Adjusted EBITDA increased $0.9 million to $0.5 million from $(0.4) million due primarily to a decrease in net loss of $0.8 million and an increase in equity-based compensation of $0.1 million.
Year Ended December 31, 2015 compared to Year Ended December 31, 2016
The following table sets forth our Predecessor's selected operating data for 2016 as compared to 2015.
|
Year Ended
December 31, |
Change | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2015 | 2016 | $ | % | |||||||||
|
(in millions)
|
||||||||||||
Revenues: |
|||||||||||||
Well Services |
$ | 9.7 | $ | 46.3 | $ | 36.6 | 377 | % | |||||
Processing Solutions |
11.5 | 6.5 | (5.0 | ) | (43 | ) | |||||||
| | | | | | | | | | | | | |
Total revenues |
21.2 | 52.8 | 31.6 | 149 | |||||||||
Operating expenses: |
|||||||||||||
Cost of services (excluding depreciation and amortization shown separately): |
|||||||||||||
Well Services |
8.2 | 36.7 | 28.5 | 348 | |||||||||
Processing Solutions |
7.9 | 2.6 | (5.3 | ) | (67 | ) | |||||||
| | | | | | | | | | | | | |
Total cost of services |
16.1 | 39.3 | 23.2 | 144 | |||||||||
General and administrative |
7.8 | 11.4 | 3.6 | 46 | |||||||||
Depreciation and amortization |
2.1 | 6.6 | 4.5 | 214 | |||||||||
Impairment of goodwill |
1.6 | | (1.6 | ) | (100 | ) | |||||||
| | | | | | | | | | | | | |
Total operating expenses |
27.6 | 57.3 | 29.7 | 108 | |||||||||
| | | | | | | | | | | | | |
Operating loss |
(6.4 | ) | (4.5 | ) | 1.9 | (30 | ) | ||||||
| | | | | | | | | | | | | |
Other expenses: |
|
|
|
|
|||||||||
Interest expense, net |
(0.3 | ) | (0.5 | ) | (0.2 | ) | 67 | ||||||
| | | | | | | | | | | | | |
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | $ | 1.7 | (25 | )% | |||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
Revenues. Revenues for 2016 increased $31.6 million, or 149%, to $52.8 million from $21.2 million for 2015. The increase in revenues by segment was as follows:
Well Services. Well Services revenues for 2016 increased $36.6 million, or 377%, to $46.3 million from $9.7 million for 2015. Magna and Bayou represented $30.6 million of the increase. The remaining $6.0 million increase was attributable to legacy Ranger, primarily due to increased demand in our workover rig services, which accounted for $4.4 million, or 73% of the remaining segment increase. The $4.4 million increase in workover rig services included a $5.5 million increase due to a 62% increase in total rig hours for 2016 compared to 2015, offset by a reduction of $1.1 million due to an 8% decrease in the average rig rates for 2016 compared to 2015.
Processing Solutions. Processing Solutions revenues for 2016 decreased $5.0 million, or 43%, to $6.5 million from $11.5 million for 2015. The decrease was primarily attributable to a strategic shift by the business to significantly decrease the amount of mobilization and demobilization
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services and a decrease in the compressor rental services as a result of basin revenue mix changes. The mobilization and demobilization and compressor rental services accounted for $0.7 million and $5.6 million for 2016 and 2015, respectively, or 97% of the change in revenue from 2015 to 2016. The strategic shift was in large part due to a change in business focus from the Bakken Basin to the Permian Basin where customers typically rent compressors directly from compressor rental houses.
Cost of services (excluding depreciation and amortization shown separately). Cost of services for 2016 increased $23.2 million, or 144%, to $39.3 million from $16.1 million for 2015. As a percentage of revenue, cost of services was 74% and 76% for 2016 and 2015, respectively. The increase in cost of services by segment was as follows:
Well Services. Well Services cost of services for 2016 increased $28.5 million, or 348%, to $36.7 million from $8.2 million for 2015. Magna and Bayou represented $24.1 million of the increase. The remaining $4.4 million increase was attributable to legacy Ranger primarily due to an increase in employee costs of $3.1 million, or 70% of the remaining segment increase, and an increase in travel and repair and maintenance costs of $1.1 million, or 25% of the remaining segment increase.
Processing Solutions. Processing Solutions cost of services for 2016 decreased $5.3 million, or 67%, to $2.6 million from $7.9 million for 2015. The decrease was primarily attributable to $4.0 million related to the strategic shift discussed above and $1.0 million for 2015 costs incurred for a customer that lost its leasehold rights in certain land in the Bakken Shale.
General & Administrative. General and administrative expenses for 2016 increased $3.6 million, or 46%, to $11.4 million from $7.8 million for 2015. The increase in general and administrative expenses by segment was as follows:
Well Services. Well Services general and administrative expenses for 2016 increased $4.4 million, or 122%, to $8.0 million from $3.6 million for 2015. Magna and Bayou represented $4.0 million of the increase. The remaining $0.4 million increase was attributable to legacy Ranger primarily due to an increase in payroll and professional fees of $0.4 million, a $0.4 million increase in travel, office and insurance costs, offset by a $0.4 million decrease in bad debt expense.
Processing Solutions. Processing Solutions general and administrative expenses for 2016 decreased $0.8 million, or 19%, to $3.4 million from $4.2 million for 2015. The decrease was primarily attributable to a $0.6 million decrease in travel and office related expenses, a $0.4 million decrease in payroll and professional fees, offset by a $0.3 million increase in bad debt expense in 2016.
Depreciation and Amortization. Depreciation and amortization for 2016 increased $4.5 million, or 214%, to $6.6 million from $2.1 million for 2015. The increase in depreciation and amortization expense by segment was as follows:
Well Services. Well Services depreciation and amortization expense for 2016 increased $4.2 million, or 300%, to $5.6 million from $1.4 million for 2015. Magna and Bayou represented $3.1 million of the increase. The remaining $1.1 million increase was attributable to legacy Ranger primarily due to fixed assets that were placed in service during 2015, thus having a full year of depreciation for 2016.
Processing Solutions. Processing Solutions depreciation and amortization expense for 2016 increased $0.3 million, or 43%, to $1.0 million from $0.7 million for 2015. The increase related to fixed assets that were placed in service during 2015, thus having a full year of depreciation for 2016.
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Impairment of Goodwill. Impairment for 2016 decreased $1.6 million, or 100%, to zero from $1.6 million for 2015 due to no goodwill impairment recorded in 2016 for our Processing Solutions segment.
Interest Expense, net. Interest expense, net for 2016 increased $0.2 million, or 67%, to $0.5 million from $0.3 million for 2015. The increase to interest expense, net by segment was as follows:
Well Services. Well Services interest expense, net for 2016 increased $0.3 million, or 300%, to $0.4 million from $0.1 million for 2015. The increase to interest expense, net was attributable to an increase in average borrowing during 2016.
Processing Solutions. Processing Solutions interest expense, net for 2016 decreased $0.1 million, or 50%, to $0.1 million from $0.2 million for 2015. The decrease to interest expense, net was attributable to a decrease in average borrowing during 2016.
Note Regarding Non-GAAP Financial Measure
Adjusted EBITDA is not a financial measure determined in accordance with GAAP. We define Adjusted EBITDA as net loss before interest expense, net, income tax provision (benefit), depreciation and amortization, equity-based compensation, acquisition-related and severance costs, impairment of goodwill, costs incurred for IPO-related services and certain other items that we do not view as indicative of our ongoing performance.
We believe Adjusted EBITDA is a useful performance measure because it allows for an effective evaluation of our operating performance when compared to our peers, without regard to our financing methods or capital structure. We exclude the items listed above from net loss in arriving at Adjusted EBITDA because these amounts can vary substantially within our industry depending upon accounting methods and book values of assets, capital structures and the method by which the assets were acquired. Adjusted EBITDA should not be considered as an alternative to, or more meaningful than, net loss determined in accordance with GAAP. Certain items excluded from Adjusted EBITDA are significant components in understanding and assessing a company's financial performance, such as a company's cost of capital and tax structure, as well as the historic costs of depreciable assets, none of which are reflected in Adjusted EBITDA. Our presentation of Adjusted EBITDA should not be construed as an indication that our results will be unaffected by the items excluded from Adjusted EBITDA. Our computations of Adjusted EBITDA may not be identical to other similarly titled measures of other companies. The following table presents reconciliations of net loss, our most directly comparable financial measure calculated and presented in accordance with GAAP, to Adjusted EBITDA.
|
2015 | 2016 | Change $ | |||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Well
Services |
Processing
Solutions |
Total |
Well
Services |
Processing
Solutions |
Total |
Well
Services |
Processing
Solutions |
Total | |||||||||||||||||||
Net loss |
$ | (3.6 | ) | $ | (3.1 | ) | $ | (6.7 | ) | $ | (4.4 | ) | $ | (0.6 | ) | $ | (5.0 | ) | $ | (0.8 | ) | $ | 2.5 | $ | 1.7 | |||
Interest expense, net |
0.1 | 0.2 | 0.3 | 0.4 | 0.1 | 0.5 | 0.3 | (0.1 | ) | 0.2 | ||||||||||||||||||
Income tax provision (benefit) |
| | | | | | | | | |||||||||||||||||||
Depreciation and amortization |
1.4 | 0.7 | 2.1 | 5.6 | 1.0 | 6.6 | 4.2 | 0.3 | 4.5 | |||||||||||||||||||
Equity-based compensation |
| 0.1 | 0.1 | 0.4 | 0.1 | 0.5 | 0.4 | | 0.4 | |||||||||||||||||||
Acquisition-related and severance costs |
| | | 0.5 | | 0.5 | 0.5 | | 0.5 | |||||||||||||||||||
Impairment of goodwill |
1.6 | 1.6 | | | | | (1.6 | ) | (1.6 | ) | ||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA |
$ | (2.1 | ) | $ | (0.5 | ) | $ | (2.6 | ) | $ | 2.5 | $ | 0.6 | $ | 3.1 | $ | 4.6 | $ | 1.1 | $ | 5.7 |
Adjusted EBITDA for 2016 increased $5.7 million to $3.1 million from $(2.6) million. The increase by segment was as follows:
Well Services. Well Services Adjusted EBITDA increased $4.6 million to $2.5 million from $(2.1) million due primarily to an increase in depreciation and amortization of $4.2 million and an increase in net loss of $0.8 million.
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Processing Solutions. Processing Solutions Adjusted EBITDA increased $1.1 million to $0.6 million from $(0.5) million due primarily to a decrease in net loss of $2.5 million and a decrease in impairment on goodwill of $1.6 million.
Liquidity and Capital Resources
Overview
We require capital to fund ongoing operations, including maintenance expenditures on our existing fleet and equipment, organic growth initiatives, investments and acquisitions. Our primary sources of liquidity have been capital contributions from our owners, commercial borrowings and the Ranger Bridge Loan. Following this offering, we expect our primary sources of liquidity to be cash generated from operations, proceeds from this offering and borrowings under our Credit Facility. We strive to maintain financial flexibility and proactively monitor potential capital sources to meet our investment and target liquidity requirements and to permit us to manage the cyclicality associated with our business.
As described in "Use of Proceeds," we intend to contribute all of the net proceeds we receive from this offering to Ranger LLC in exchange for 5,000,000 Ranger Units. Ranger LLC will use (i) approximately $10.4 million of the net proceeds to fully repay amounts outstanding under the Ranger Line of Credit and Ranger Note (based on amounts outstanding as of July 28, 2017), (ii) approximately $0.7 million of the net proceeds to pay cash bonuses to certain employees, (iii) approximately $45.2 million of the net proceeds to fund the remaining cash portion of the consideration for the ESCO Acquisition, and (iv) the remaining net proceeds for general corporate purposes, which may include the acquisition of high-spec well service rigs, including pursuant to the NOV Purchase Agreement. Please see "Use of Proceeds." In addition, as described further under "Our History and Corporate Reorganization," we intend to repay and terminate the Ranger Bridge Loan in connection with the consummation of this offering in consideration for the issuance of 484,381 shares of Class A common stock and an aggregate of 1,061,625 Ranger Units (and a corresponding number of shares of Class B common stock) to the Bridge Loan Lenders. We believe that, following completion of this offering, our cash on hand, operating cash flow and available borrowings under our Credit Facility will be sufficient to fund our operations for at least the next twelve months.
As of March 31, 2017, we had an aggregate of $2.0 million in cash and cash equivalents and $1.6 million in restricted cash.
Capital Expenditures
As a result of poor market conditions and depressed oil and gas prices in the second half of 2015 and the first half of 2016, we reduced our capital expenditures in 2016 compared to 2015. During 2015, our capital expenditures, excluding acquisitions, were approximately $18.1 million and $8.7 million in our Well Services and Processing Solutions segments, respectively. During 2016, our capital expenditures, excluding acquisitions, were approximately $10.0 million and $2.2 million in our Well Services and Processing Solutions segments, respectively.
We currently estimate that our capital expenditures for 2017, excluding acquisitions, will be approximately $35.0 million to $50.0 million. The majority of our 2017 capital expenditures are expected to be for well service rigs and associated equipment. We expect that approximately $5.0 million to $13.0 million will be allocated to our Processing Solutions segment and approximately $5.0 million will be allocated for additional wireline units reported in our Well Services segment. We continuously evaluate our capital expenditures and the amount we ultimately spend will depend on a number of factors, including expected industry activity levels, customer-specific opportunities and company initiatives.
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Cash Flows
The following table sets forth our cash flows for the periods indicated:
|
Three Months
Ended March 31, |
Change | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2016 | 2017 | $ | % | |||||||||
Cash flows used in operating activities |
$ | (0.3 | ) | $ | (6.8 | ) | $ | (6.5 | ) | 2,167 | % | ||
Cash flows used in investing activities |
(1.4 | ) | (7.3 | ) | (5.9 | ) | 421 | ||||||
Cash flows provided by financing activities |
2.1 | 14.5 | 12.4 | 590 | |||||||||
| | | | | | | | | | | | | |
Net change in cash |
$ | 0.4 | $ | 0.4 | $ | | | % | |||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
Operating Activities
Net cash used in operating activities increased $6.5 million to $6.8 million for the three months ended March 31, 2017 compared to $0.3 million for the three months ended March 31, 2016. The change in cash flows used in operating activities is attributable to an increase in depreciation and amortization of $2.7 million, an increase in equity-based compensation of $0.4 million, an increase in bad debt expense of $0.1 million, offset by an increase in net loss of $4.8 million and a decrease associated with changes in working capital of $4.9 million due to a significant increase in accounts receivable.
Investing Activities
Net cash used in investing activities increased $5.9 million to $7.3 million for the three months ended March 31, 2017 compared to $1.4 million for the three months ended March 31, 2016. The change in cash flows used in investing activities is attributable to an increase of $5.9 million for purchases of property, plant and equipment.
Financing Activities
Net cash provided by financing activities increased $12.4 million to $14.5 million for the three months ended March 31, 2017 compared to $2.1 million for the three months ended March 31, 2016. The change in cash flows provided by financing activities is attributable to an increase in contributions from CSL of $2.4 million, an increase in principal payments on capital lease obligations of $0.1 million, an increase of $11.2 million in borrowing on related party debt, offset by a decrease of $1.0 million in borrowings on long-term debt, a decrease of $0.1 million in borrowings under line of credit agreements and a decrease of $0.2 million in restricted cash.
The following table sets forth our cash flows for the years indicated:
|
Year Ended
December 31, |
Change | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2015 | 2016 | $ | % | |||||||||
|
(in millions)
|
||||||||||||
Cash flows used in operating activities |
$ | (5.2 | ) | $ | (5.2 | ) | $ | | | % | |||
Cash flows used in investing activities |
(25.5 | ) | (25.4 | ) | 0.1 | (0.4 | ) | ||||||
Cash flows provided by financing activities |
28.9 | 31.1 | 2.2 | 7.6 | |||||||||
| | | | | | | | | | | | | |
Net change in cash |
$ | (1.8 | ) | $ | 0.5 | $ | 2.3 | (128 | )% | ||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
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Operating Activities
Net cash used in operating activities was $5.2 million for 2016 compared to $5.2 million for 2015. Net operating cash flows stayed consistent due to an increase in depreciation and amortization of $4.5 million, an increase in equity-based compensation of $0.4 million and a reduction in net loss of $1.7 million, offset by a decrease in impairment of goodwill of $1.6 million, a decrease in bad debt expense of $0.1 million, a decrease in the loss on sale of property, plant and equipment of $0.1 million and a decrease associated with changes in working capital of $4.8 million.
Investing Activities
Net cash used in investing activities decreased $0.1 million to $25.4 million for 2016 compared to $25.5 million for 2015. The change in investing cash flows is attributable to $16.3 million used in the purchase of businesses in 2016, offset by an increase of $14.8 million for purchases of property, plant and equipment and an increase of $1.6 million from the sale of property, plant and equipment.
Financing Activities
Net cash provided by financing activities increased $2.2 million to $31.1 million for 2016, compared to $28.9 million for 2015. The change in cash flows provided by financing activities is attributable to an increase in contributions from CSL of $14.5 million, offset by a decrease of $5.5 million in borrowings of long-term debt, a decrease of payments on third party borrowings of $2.6 million, a $1.0 million decrease in restricted cash, a decrease of principal payments on capital lease obligations of $0.2 million and a decrease of distributions to parent of $3.0 million.
Working Capital
Our working capital, which we define as total current assets less total current liabilities, totaled $0.3 million and $10.4 million at December 31, 2015 and 2016, respectively. Our working capital totaled a deficit of $17.5 million of March 31, 2017.
Our Debt Agreements
Ranger Services has a $5.0 million revolving line of credit with Iberia Bank expiring April 30, 2018 (the "Ranger Line of Credit"). As of March 31, 2017, there was $5.0 million borrowed against the Ranger Line of Credit. The Ranger Line of Credit is collateralized by substantially all of Ranger Services' assets. Interest varies with the bank's prime rate and the bank's LIBOR. At March 31, 2017, the interest rate was 4.28%. The Ranger Line of Credit requires Ranger Services to comply with certain financial and non-financial covenants as set forth in the agreement and places limits on new debt and capital expenditures.
In February 2015 (as amended in March 2016), Torrent Services secured a $2.0 million senior credit facility with Texas Capital Bank consisting of a $2.0 million Advancing Term Loan (as defined in the note agreement) (the "First Torrent Note"). As of March 31, 2017, there was $0.5 million outstanding under the First Torrent Note. The First Torrent Note was secured by substantially all of Torrent Services' assets. Interest varied with the bank's prime rate and the bank's LIBOR and was payable quarterly through the maturity of the First Torrent Note. The First Torrent Note also required Torrent Services to comply with certain financial and non-financial covenants. We repaid the First Torrent Note in full on July 11, 2017.
In March 2015, Torrent Services, through certain members of its management team, secured a $0.6 million promissory note with Benchmark Bank, which was replaced in April 2016 with a $0.2 million promissory note (the "Second Torrent Note"). The Second Torrent Note was repaid in full
81
on February 28, 2017. The Second Torrent Note also required Torrent Services to comply with certain financial and non-financial covenants.
In April 2015, Ranger Services secured a $7.0 million loan from Iberia Bank, which is evidenced by a promissory note (the "Ranger Note"). Interest varies with the bank's prime rate and the bank's LIBOR and is payable in 60 equal monthly installments, which commenced on May 1, 2016. As of March 31, 2017, the interest rate was 4.28%. Installment payments are due through May 1, 2019, and the note is secured by substantially all of Ranger Services' assets. As of March 31, 2017, the outstanding balance was $5.8 million. Pursuant to the terms of the Ranger Note, we made aggregate payments thereon of $0.4 million in April, May, June and July 2017, as a result of which the outstanding balance under the Ranger Note was $5.4 million as of July 28, 2017. The Ranger Note also requires Ranger Services to comply with certain financial and non-financial covenants.
In February 2017, Ranger Services entered into loan agreements (collectively, the "Ranger Bridge Loan") with each of CSL Opportunities II, CSL Holdings II and Bayou Holdings (collectively, the "Bridge Loan Lenders"), each an indirect equity owner of Ranger Services, evidenced by promissory notes payable to each Bridge Loan Lender, in an aggregate principal amount of $11.1 million. Additional borrowings from CSL Opportunities II and CSL Holdings II increased the aggregate principal amount of the Ranger Bridge Loan to $12.1 million in April 2017, $14.6 million in May 2017, $17.1 million in June 2017 and $21.0 million in July 2017. The Ranger Bridge Loan is secured by substantially all of Ranger Services' assets. Each note bears interest at a rate of 15% and matures upon the earlier of February 21, 2018 or ten days after the consummation of an initial public offering. The Ranger Bridge Loan includes a make-whole provision pursuant to which Ranger Services will pay 125% of the total amount advanced to Ranger Services upon settlement. The Ranger Bridge Loan also requires Ranger Services to comply with certain non-financial covenants. We intend to repay the Ranger Bridge Loan in connection with the consummation of this offering by issuing 484,381 shares of our Class A common stock and 1,061,625 Ranger Units (and corresponding shares of our Class B common stock) to the Bridge Loan Lenders. See "Our History and Corporate Reorganization" and "Certain Relationships and Related Party TransactionsHistorical Transactions with AffiliatesRanger Bridge Loan."
In July 2017, we entered into an amended and restated purchase agreement relating to the ESCO Acquisition, pursuant to which we will issue two seller notes as partial consideration therefor in an aggregate principal amount of $7.0 million. One such seller note is for a principal amount of $5.75 million and is payable on the 18-month anniversary of the consummation of the ESCO Acquisition. The other such seller note is for a principal amount of $1.25 million and is payable on the 12-month anniversary of the consummation of the ESCO Acquisition. Each such seller note will bear interest at 5.00%, payable quarterly, will be secured by substantially all of the assets being acquired in the ESCO Acquisition and will be guaranteed by the subsidiaries of Ranger Services.
As of March 31, 2017, Ranger Services' leverage ratio exceeded the threshold of 1.75 to 1.00 under the Ranger Line of Credit and Ranger Note and Ranger Services did not generate the required minimum net income of zero or greater. Ranger Services was in compliance with all other covenants at that time. On May 17, 2017, Ranger Services obtained a waiver of such non-compliance with respect to the first quarter of 2017 from the lender under the Ranger Line of Credit and Ranger Note. There can be no assurance we will be able to obtain future waivers from the lender under the Ranger Line of Credit and Ranger Note. We have classified the outstanding debt under the Ranger Line of Credit and Ranger Note as current because Ranger Services does not anticipate being in compliance with all covenants and ratios required under the Ranger Line of Credit and Ranger Note in the next twelve months. CSL has indicated its ability and intent to provide additional capital to us through at least one year from the date of issuance of our predecessor's unaudited condensed combined consolidated financial statements included elsewhere in this prospectus, if necessary, to enable us to meet our
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financial obligations through that date. We plan to repay and retire the Ranger Line of Credit and Ranger Note from the proceeds of this offering.
In connection with the consummation of this offering, we intend to fully repay and terminate the Ranger Line of Credit, the Ranger Note and the Ranger Bridge Loan and enter into a new credit agreement providing for a $50.0 million Credit Facility. In order to close the Credit Facility, and in order to consummate the ESCO Acquisition as a permitted acquisition in accordance with the terms of the Credit Facility, we expect that the amount of total availability under the Credit Facility plus unrestricted cash must be in excess of $30.0 million. We expect the Credit Facility to be subject to a borrowing base that is calculated by us based upon a percentage of the value of our eligible accounts receivable less certain reserves. The borrowing base is calculated on a monthly basis pursuant to a borrowing base certificate delivered by us to the administrative agent.
Borrowings under the Credit Facility bear interest, at our election, at either the (a) one-, two-, three- or six-month LIBOR or (b) the greatest of (i) the federal funds rate plus 1 / 2 %, (ii) the one-month LIBOR plus 1% and (iii) Wells Fargo's prime rate (the "Base Rate"), in each case plus an applicable margin, and interest shall be payable monthly in arrears. The applicable margin for LIBOR loans ranges from 1.50% to 2.00% and the applicable margin for Base Rate loans ranges from .50% to 1.00%, in each case, depending on our average excess availability under the Credit Facility. The applicable margin for LIBOR loans will be 1.50% and the applicable margin for Base Rate loans will be .50% until the first anniversary of the closing date of the Credit Facility. During the continuance of an event of default, all outstanding amounts under the Credit Facility will bear interest at 2.00% plus the otherwise applicable interest rate. The Credit Facility is scheduled to mature on the fifth anniversary of the consummation of this offering.
We expect that the Credit Facility will be used for capital expenditures and permitted acquisitions, to provide for working capital requirements and for other general corporate purposes. We further expect that the Credit Facility will be secured by certain of our assets and will contain various affirmative and negative covenants and restrictive provisions that will limit our ability (as well as the ability of our subsidiaries) to, among other things:
In addition, we expect that the Credit Facility will restrict our ability to make distributions on, or redeem or repurchase, our equity interests, except for certain distributions, including distributions of cash so long as, both at the time of the distribution and after giving effect to the distribution, no default exists under the Credit Facility and either (a) excess availability at all times during the preceding 90 consecutive days, on a pro forma basis and after giving effect to such distribution, is not less than the greater of (1) 22.5% of the lesser of (A) the maximum revolver amount and (B) the then-effective borrowing base and (2) $10.0 million or (b) if our fixed charge coverage ratio is at least 1.0x on a pro forma basis, excess availability at all times during the preceding 90 consecutive days, on a pro forma basis and after giving effect to such distribution, is not less than the greater of (1) 17.5% of the lesser of (A) the maximum revolver amount and (B) the then-effective borrowing base and (2) $7.0 million. If the foregoing threshold under clause (b) is met, we may not make such distributions
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(but may make certain other distributions, including under clause (a) above) prior to the earlier of the date that is (a) 12 months from closing or (b) the date that our fixed charge coverage ratio is at least 1.0x for two consecutive quarters. Our Credit Facility will generally permit us to make distributions required under the Tax Receivable Agreement, but a "Change of Control" under the Tax Receivable Agreement will constitute an event of default under our Credit Facility, and our Credit Facility will not permit us to make payments under the Tax Receivable Agreement upon acceleration of our obligations thereunder unless no event of default exists or would result therefrom and we have been in compliance with the fixed charge coverage ratio for the most recent 12-month period on a pro forma basis. Our Credit Facility will also require us to maintain a fixed charge coverage ratio of at least 1.0x if our liquidity is less than $10.0 million until our liquidity is at least $10.0 million for thirty consecutive days. We will not be subject to a fixed charge coverage ratio if we have no drawings under the Credit Facility and have at least $20.0 million of qualified cash.
We also expect that the Credit Facility will contain events of default customary for facilities of this nature, including, but not limited, to:
Upon the occurrence and during the continuation of an event of default, subject to the terms and conditions of the Credit Facility, we expect that the lenders will be able to declare any outstanding principal of our Credit Facility debt, together with accrued and unpaid interest, to be immediately due and payable and exercise other remedies.
Contractual and Commercial Commitments
The following table summarizes our contractual obligations and commercial commitments as of December 31, 2016:
|
Total |
Less than
1 year |
1 - 3 years | 3 - 5 years |
More than
5 years |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
(in millions)
|
|||||||||||||||
Long-term debt obligations(1) |
$ | 12.1 | $ | 2.3 | $ | 9.8 | $ | | $ | | ||||||
Interest on long-term debt obligations(2) |
0.7 | 0.4 | 0.3 | | | |||||||||||
Capital lease obligations |
0.8 | 0.5 | 0.3 | | | |||||||||||
Operating lease obligations |
7.4 | 2.0 | 3.5 | 1.9 | | |||||||||||
| | | | | | | | | | | | | | | | |
Total |
$ | 21.0 | $ | 5.2 | $ | 13.9 | $ | 1.9 | $ | | ||||||
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
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of July 28, 2017. On July 31, 2017, we entered into an amended and restated purchase agreement relating to the ESCO Acquisition, pursuant to which we will issue $7.0 million of seller notes as partial consideration therefor. In connection with the consummation of this offering, we intend to fully repay and terminate the Ranger Line of Credit, the Ranger Note and the Ranger Bridge Loan (and, in the case of the Ranger Bridge Loan, issue certain equity interests in us and Ranger LLC as consideration therefor, as described in "Our History and Corporate Reorganization").
In addition to the contractual obligations and commercial commitments as of December 31, 2016 listed in the table above, we have entered into agreements during 2017, including the NOV Purchase Agreement, pursuant to which we have acquired 16 high-spec well service rigs as of July 28, 2017 (as a result of which our existing high-spec well service rig fleet increased to 73 total high-spec well service rigs), and will acquire an additional 21 high-spec well service rigs during the remainder of 2017 for an aggregate purchase price under such agreements of approximately $42.1 million, for which $3.5 million of payments have been made as of July 28, 2017, and the remaining $38.6 million of which will be due during the remainder of 2017 and in 2018. Additionally, pursuant to the amended and restated definitive purchase agreement for the ESCO Acquisition, we intend to pay $59.7 million ($47.7 million of which will be in cash, of which $2.5 million was paid on June 1, 2017 and the remainder of which may be funded by a portion of the net proceeds of this offering, cash flow from operations and borrowings under our Credit Agreement, $7.0 million of which will be in the form of secured seller notes and $5.0 million of which will be in shares of our Class A common stock based on the initial public offering price of our Class A common stock in this offering) to acquire 49 high-spec well service rigs.
Tax Receivable Agreement
With respect to obligations we expect to incur under our Tax Receivable Agreement (except in cases where we elect to terminate the Tax Receivable Agreement early, the Tax Receivable Agreement is terminated early due to certain mergers, asset sales, other forms of business combination or other changes of control or we have available cash but fail to make payments when due), generally we may elect to defer payments due under the Tax Receivable Agreement if we do not have available cash to satisfy our payment obligations under the Tax Receivable Agreement or if our contractual obligations limit our ability to make these payments. Any such deferred payments under the Tax Receivable Agreement generally will accrue interest. In certain cases, payments under the Tax Receivable Agreement may be accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable Agreement. We intend to account for any amounts payable under the Tax Receivable Agreement in accordance with ASC 450, Contingencies. Further, we intend to account for the effect of increases in tax basis and payments for such increases under the Tax Receivable Agreement arising from future redemptions as follows:
For further discussion regarding such an acceleration and its potential impact, please see "Risk FactorsRisks Related to Our Corporate Reorganization and Resulting StructureIn certain cases, payments under the Tax Receivable Agreement may be accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable
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Agreement." For additional information regarding the Tax Receivable Agreement, see "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
Critical Accounting Policies and Estimates
Our financial statements are prepared in accordance with GAAP. In connection with preparing our financial statements, we are required to make assumptions and estimates about future events, and apply judgments that affect the reported amounts of assets, liabilities, revenue, expense and the related disclosures. We base our assumptions, estimates and judgments on historical experience, current trends and other factors that management believes to be relevant at the time we prepare our combined consolidated financial statements. On a regular basis, management reviews the accounting policies, assumptions, estimates and judgments to ensure that our combined consolidated financial statements are presented fairly and in accordance with GAAP. However, because future events and their effects cannot be determined with certainty, actual results could differ materially from our assumptions and estimates.
Our significant accounting policies are discussed in our audited historical combined consolidated financial statements included elsewhere in this prospectus. Management believes that the following accounting estimates are those most critical to fully understanding and evaluating our reported financial results, and they require management's most difficult, subjective or complex judgments, resulting from the need to make estimates about the effect of matters that are inherently uncertain.
Property, Plant and Equipment
Policy description
Property, plant and equipment is stated at cost or estimated fair market value at the acquisition date less accumulated depreciation. Depreciation is charged to expense on the straight-line basis over the estimated useful life of each asset, with estimated useful lives reviewed by management on an annual basis. Expenditures for major renewals and betterments are capitalized while expenditures for maintenance and repairs are charged to expense as incurred. Assets under capital lease obligations and leasehold improvements are amortized over the shorter of the lease term or their respective estimated useful lives. Depreciation does not begin until property, plant and equipment is placed in service. Once placed in service, depreciation on property and equipment continues while being repaired, refurbished or between periods of deployment.
Judgments and assumptions
Accounting for our property, plant and equipment requires us to estimate the expected useful lives of our fleet and any related salvage value. The range of estimated useful lives is based on overall size and specifications of the fleet, expected utilization along with continuous repairs and maintenance that may or may not extend the estimated useful lives. To the extent the expenditures extends the expected useful life, these expenditures are capitalized and depreciated over the extended useful life.
Long-lived Asset Impairment
Policy description
We evaluate the recoverability of the carrying value of long-lived assets, including property, plant and equipment and intangible assets, whenever events or circumstances indicate the carrying amount may not be recoverable. If a long-lived asset is tested for recoverability and the undiscounted estimated future cash flows expected to result from the use and eventual disposition of the asset is less than the carrying amount of the asset, the asset cost is adjusted to fair value and an impairment loss is recognized as the amount by which the carrying amount of a long-lived asset exceeds its fair value.
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Judgments and assumptions
Our impairment analysis requires us to apply judgment in identifying impairment indicators and estimating future cash flows of our fleets. If actual results are not consistent with our assumptions and estimates or our assumptions and estimates change due to new information, we may be exposed to an impairment charge. Key assumptions used to determine the undiscounted future cash flows include estimates of future fleet utilization and demands based on our assumptions around future commodity prices and capital expenditures of our customers.
Business Combinations
Policy description
We recognize, separately from goodwill, the identifiable assets acquired and liabilities assumed at their estimated acquisition date fair values. Fair value is the price that would be received to sell an asset or would be paid to transfer a liability in an orderly transaction between market participants at the measurement date. Goodwill as of the acquisition date is measured and recognized as the excess of: (i) the aggregate of the fair value of the consideration transferred, the fair value of any non-controlling interest in the acquiree and the acquisition date fair value of our previously held equity interests over (ii) the fair value of assets acquired and liabilities assumed. These fair values are accounted for at the date of acquisition and included in the combined consolidated balance sheet at December 31, 2016. The results of operations of an acquired business is included in the statement of operations from the date of the acquisition.
Judgments and assumptions
We estimate fair value based on the assumptions of market participants and not those of the reporting entity. Fair values are determined through the use of a blended market and income approach. Therefore, entity-specific intentions do not impact the measurement of fair value. Changes to these assumptions could change the fair value estimates used in our business combination accounting.
Revenue Recognition
Policy description
We generate revenue from multiple sources within our operating segments.
Well Services Well Services consists primarily of maintenance services, workover services, completion services and plugging and abandonment services. We recognize revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. We price well services by the hour or by the day when services are performed. Well services are sold without warranty or right of return. Taxes assessed on revenue transactions are presented on a net basis and are not included in revenue.
Processing Solutions Processing Solutions consists primarily of equipment rentals, operations and maintenance services and mobilization services. We recognize revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. Revenues from equipment leasing, operations and maintenance services are recognized as earned. These services are sold without warranty or right of return. Taxes assessed on revenue transactions are presented on a net basis and are not included in revenue.
Judgments and assumptions
Recording revenue involves the use of estimates and management judgment. We must make a determination at the time our services are provided whether the customer has the ability to make payments to us. While we do utilize past payment history, and, to the extent available for new customers, public credit information in making our assessment, the determination of whether
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collectability is reasonably assured is ultimately a judgment decision that must be made by management.
Equity-based Compensation
Policy description
We record equity-based payments at fair value on the date of grant, and expense the value of these unit-based payments in compensation expense over the applicable vesting periods. Since we have not historically been publicly traded we do not have a listed price with which to calculate fair value.
Judgments and assumptions
We estimate the fair value of our equity-based compensation using an option pricing model that includes certain assumptions, such as volatility, dividend yield and risk free interest rate. Changes in these assumptions could change the fair value of our unit based awards and associated compensation expense in our combined consolidated statements of operations.
Recent Accounting Pronouncements
See Note 2, "Summary of Significant Accounting PoliciesNew Accounting Pronouncements" to our Predecessor's historical combined consolidated financial statements as of and for the years ended December 31, 2015 and 2016, included elsewhere in this prospectus, for a discussion of recent accounting pronouncements.
Under the JOBS Act, we expect that we will meet the definition of an "emerging growth company," which would allow us to have an extended transition period for complying with new or revised accounting standards pursuant to Section 107(b) of the JOBS Act. We have irrevocably opted out of the extended transition period and, as a result, we will adopt new or revised accounting standards on the relevant dates on which adoption of such standards is required for other public companies.
Quantitative and Qualitative Disclosure about Market Risks
The demand, pricing and terms for oil and natural gas services provided by us are largely dependent upon the level of activity for the U.S. oil and natural gas industry. Industry conditions are influenced by numerous factors over which we have no control, including, but not limited to: the supply of and demand for oil and natural gas; the level of prices, and expectations about future prices of oil and natural gas; the cost of exploring for, developing, producing and delivering oil and natural gas; the expected rates of declining current production; the discovery rates of new oil and natural gas reserves; available pipeline and other transportation capacity; weather conditions; domestic and worldwide economic conditions; political instability in oil-producing countries; environmental regulations; technical advances affecting energy consumption; the price and availability of alternative fuels; the ability of oil and natural gas producers to raise equity capital and debt financing; and merger and divestiture activity among oil and natural gas producers.
Interest Rate Risk
We had an aggregate of $22.5 million outstanding under the Ranger Line of Credit, the Ranger Note, the First Torrent Note and the Ranger Bridge Loan at March 31, 2017, with a weighted average interest rate of 9.65%. A 1.0% increase or decrease in the weighted average interest rate would increase or decrease interest expense by approximately $0.2 million per year. We do not currently hedge our interest rate exposure.
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Credit Risk
The majority of our trade receivables have payment terms of 30 days or less. As of March 31, 2017, the top three trade receivable balances represented 14%, 13% and 10%, respectively, of total accounts receivable. Within our Well Services segment, the top three trade receivable balances represented 15%, 14% and 11%, respectively, of total Well Services accounts receivable. Within our Processing Solutions segment, the top three trade receivable balances represented 32%, 27% and 15%, respectively, of total Processing Solutions accounts receivable. We mitigate the associated credit risk by performing credit evaluations and monitoring the payment patterns of our customers.
Commodity Price Risk
The market for our services is indirectly exposed to fluctuations in the prices of oil and natural gas to the extent such fluctuations impact the activity levels of our E&P customers. Any prolonged substantial reduction in oil and natural gas prices would likely affect oil and natural gas production levels and therefore affect demand for our services. We do not currently intend to hedge our indirect exposure to commodity price risk.
Off-Balance Sheet Arrangements
We currently have no material off-balance sheet arrangements.
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We are one of the largest independent providers of high-spec well service rigs and associated services in the United States, with a focus on technically demanding unconventional horizontal well completion and production operations. We believe that our fleet of 123 well service rigs (including 49 well service rigs to be acquired from ESCO) is among the newest and most advanced in the industry and, based on our historical rig utilization and feedback from our customers, we believe that we are an operator of choice for U.S. onshore E&P companies that require completion and production services at increasing lateral lengths. Our high-spec well service rigs facilitate operations throughout the lifecycle of a well, including (i) well completion support, such as milling out composite plugs used during hydraulic fracturing; (ii) workover, including retrieval and replacement of existing production tubing; (iii) well maintenance, including replacement of downhole artificial lift components; and (iv) decommissioning, such as plugging and abandonment operations. We also provide rental equipment, including well control packages, hydraulic catwalks and other equipment that are often deployed with our well service rigs. In addition, we own and operate a fleet of proprietary, modular natural gas processing equipment that processes rich natural gas streams at the wellhead or central gathering points. We have operations in most of the active oil and natural gas basins in the United States, including the Permian Basin, the Denver-Julesburg Basin, the Bakken Shale, the Eagle Ford Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays.
We have invested in a premier fleet of well service rigs. Our customers, which include many of the leading U.S. onshore E&P operators such as Devon Energy Corporation (which is an ESCO customer), EOG Resources, Inc., Noble Energy, Inc., Oasis Petroleum Inc., PDC Energy Inc. and Statoil ASA, are increasingly utilizing modern horizontal well designs characterized by long lateral lengths that can extend in excess of 12,000 feet. Long lateral length wellbores require increased amounts of completion tubing, which, in turn, require well service rigs with higher operating HP to pull longer tubing strings from the wellbore. Furthermore, long lateral horizontal wells generally utilize taller stacks of wellhead equipment, which drives demand for well service rigs that have taller mast heights capable of accommodating an elevated work floor. These modern horizontal well designs are ideally serviced by "high-spec" well service rigs with high operating HP (450 HP or greater) and tall mast heights (102 feet or higher) rather than competing coiled tubing units and older or lower-spec well service rigs. As of July 28, 2017, all but one of our well service rigs meets these specifications, and approximately 82% of our well service rigs exceed these specifications with HP ratings of at least 500 HP and mast heights of at least 104 feet, making our fleet particularly well-suited to perform high-margin, horizontal well completion and production operations. The only remaining rig in our fleet is generally deployed only for plugging and abandonment operations of conventional vertical wells.
The high-spec well service rigs in our fleet, a substantial majority of which has been built since 2010, have an average age of approximately six years and feature modern operating components sourced from leading U.S. manufacturers such as NOV. In February 2017, to meet expected customer demand, we entered into the NOV Purchase Agreement, pursuant to which we expect to accept delivery of an additional 21 high-spec well service rigs periodically throughout the remainder of 2017. However, NOV is not obligated pursuant to the NOV Purchase Agreement to deliver such high-spec well service rigs during 2017, and will not face penalties for delayed delivery, regardless of the length or cause of any delay. As a result of the NOV Purchase Agreement, our well service rig fleet will expand to 144 rigs, 143 of which will be high-spec. The following table provides summary information regarding our high-spec well service rig fleet, including the additional rigs that we expect to be delivered during
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the remainder of 2017. For additional information, please see "Properties and EquipmentEquipmentWell Services."
HP Rating(1)
|
Mast Height | Mast Rating(2) | Manufacturer & Model | Number of High-Spec Rigs | |||||||
---|---|---|---|---|---|---|---|---|---|---|---|
600 HP |
112' - 117' | 300,000 - 350,000 lbs | NOV 6-C | 14 | * | ||||||
500 - 550 HP |
104' - 108' | 250,000 - 275,000 lbs | NOV 5-C and equivalent | 103 | ** | ||||||
450 - 475 HP |
102' - 104' | 200,000 - 250,000 lbs | NOV 4-C and equivalent | 26 | *** | ||||||
| | | | | | | | | | | |
Total |
143 |
The composition of our well service rig fleet makes it particularly well-suited to provide both completion-oriented services, the demand for which generally increases along with increased capital spending by E&P operators, and production-oriented services, the demand for which is less influenced, on a comparative basis, by such capital spending. The ability of our well service rigs to accommodate the needs of our E&P customers in a variety of economic conditions has historically allowed us to maintain relatively high rig utilization as measured by total monthly rig hours worked in a particular period per rig, which we refer to herein as our average monthly hours per rig. For example, our rig utilization as measured by average monthly hours per rig, exclusive of the impact of the ESCO Acquisition, during 2016 and the first quarter of 2017 was approximately 178 and 194, respectively. As noted above, our rig utilization as measured by average monthly hours per rig for these periods are exclusive of the impact of the ESCO Acquisition; ESCO historical rig utilization, as measured by average monthly hours per rig, was approximately 88 and 112, respectively, for the twelve months ended January 31, 2017 and the three months ended April 30, 2017. See "Management's Discussion and Analysis of Financial Condition and Results of OperationsHow We Evaluate Our OperationsRig Utilization."
In addition to our core well service rig operations, we offer a suite of complementary services, including wireline, snubbing, fluid management and well service-related equipment rentals. Our rental equipment includes well control packages and hydraulic catwalks, which are typically deployed in conjunction with high-spec well service rigs. These complementary services and equipment are typically procured by the same decision-makers at our customers that procure our well service rigs and are provided by our same field personnel, generating incremental revenues per job while limiting incremental costs to us. Our complementary well completion and production services and equipment strategically enhance our operating footprint, create operational efficiencies for our customers and allow us to capture a greater portion of their spending across the lifecycle of a well.
We also provide a range of proprietary, modular equipment for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure. Our fleet of more than 25 MRUs is modern, reliable and equipped to handle large volumes of natural gas from conventional and unconventional wells while operating across a broad array of oilfield conditions with minimal downtime and maintenance. Our customers rely on our purpose-built MRUs to process natural gas to meet
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pipeline specifications, extract higher value NGLs, process natural gas to conform to the specifications of fuel gas that can be used at wellsites and facilities, and to reduce the amount of hydrocarbons at the flare tip to control emissions of hazardous VOCs.
We have focused on combining our high-spec rig fleet, complementary well service operations and processing solutions with a highly skilled and experienced workforce, which enables us to consistently and efficiently deliver exceptional service while maintaining high health, safety and environmental standards. We believe that our strong operational performance and safety record provides a strong competitive advantage with current and prospective E&P customers.
We believe the demand for our services will continue to increase as a result of a number of favorable industry trends. For example, we believe there are long term fundamental demand trends that will continue to benefit us, including:
In addition, we believe pricing for our services will be further enhanced as a result of the following supply factors:
As a result, we expect to benefit from enhanced pricing for our services and continued industry-leading utilization. We believe that increased demand for our services as a result of commodity price trends and the increasing complexity of well completion operations, along with the limited supply of high-spec well service rigs and the relative unreliability of alternative well servicing techniques, present a unique market opportunity for our high-spec well service rig operations and related services. For additional information, please see "Industry."
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We believe that the following strengths will position us to achieve our primary business objective of creating value for our shareholders:
Leading Provider of High-Spec Well Service Rigs and Associated Services
We have invested in a premier fleet of well service rigs designed to efficiently execute technically challenging horizontal well completion programs as well as production-oriented well maintenance, workover and decommissioning operations. In February 2017, we entered into the NOV Purchase Agreement, pursuant to which we expect to accept delivery of an additional 21 high-spec well service rigs periodically throughout the remainder of 2017. As a result of the NOV Purchase Agreement, our total well service rig fleet will expand to 144 rigs, 143 of which will be high-spec. Based on Coras data, this makes us one of the largest independent providers of high-spec well service rigs and associated services in the United States. Further, we believe that our fleet of high-spec well service rigs is among the youngest fleet of well service rigs in the industry and is therefore more reliable and better suited to perform work on long lateral horizontal wells than the older fleets of many of our competitors. Additionally, our largely uniform fleet of high-spec well service rigs facilitates consistency in maintenance, training, in-field performance and service quality to customers. As horizontal well complexity continues to increase, we expect our customers will increasingly rely on high-spec well service rigs to perform both completion and production services. Consequently, we expect demand growth for our fleet of well service rigs to outpace that for many of our competitors' fleets going forward.
Balanced Exposure to Completion and Production Activity
The composition of our well service rig fleet makes it particularly well-suited to provide both completion-oriented and production-oriented services. Accordingly, we benefit from increased exposure to high-margin unconventional well completion support operations during periods of increased completion activity while maintaining stable growth through workover, well maintenance and decommissioning operations on the growing base of producing wells. The ability of our well service rigs to accommodate the needs of our E&P customers in a variety of economic conditions has historically allowed us to maintain relatively high rig utilization. For example, our rig utilization as measured by average monthly hours per rig during 2016 and the first quarter of 2017 was approximately 178 and 194, respectively. Although ESCO's historical rig utilization has been lower than ours in recent periods, we believe that, following an initial integration period during 2017 and the beginning of 2018, our balanced exposure to completion and production activity will continue to result in relatively high rig utilization as compared to our competitors. See "Management's Discussion and Analysis of Financial Condition and Results of OperationsFactors Impacting the Comparability of Results of OperationsESCO Acquisition."
Proprietary Natural Gas and NGL Processing Solutions
We have developed a premium offering that includes proprietary designs on modern processing equipment, including modular MRUs that process natural gas at the wellhead or central gathering points to meet pipeline specifications, extract higher value NGLs, provide fuel gas for wellsites and facilities and reduce emissions at the flare tip. To facilitate the processing of rich natural gas streams in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure, we typically enter into six- to twelve-month rental agreements with customers for our full-service, turnkey solutions, providing us with relatively stable cash flows as compared to the shorter-term agreements often used for similar equipment and services. Our modular units provide flexibility across a broad range of project requirements and operating environments, and are designed to allow for quick mobilization to minimize downtime and increase utilization, particularly in
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conjunction with the operational support provided by our expert field personnel. We expect our advanced technology and high-quality service to continue to drive market penetration across the multiple basins in which we operate.
Deep Relationships with Blue-Chip E&P Customers across Multiple Basins
We are headquartered in Houston, Texas, and have an extensive operating footprint in key unconventional energy plays, including the Permian Basin, the Denver-Julesburg Basin, the Eagle Ford Shale, the Bakken Shale, the Haynesville Shale, the Gulf Coast and the SCOOP and STACK plays, which are among the most prolific unconventional resource plays in the United States. Our relationships with our broad customer base, which includes Devon Energy Corporation, EOG Resources, Inc., Oasis Petroleum Inc., Noble Energy, Inc., PDC Energy Inc. and Statoil ASA, enabled us during the recent downturn to maintain higher utilization and stronger financial results than many of our competitors. Our track record of consistently providing high-quality, safe and reliable service has allowed us to develop long-term customer partnerships, which we believe makes us the service provider of choice for many of our customers. For example, in 2014, we entered into the five-year take-or-pay EOG Contract for three well service rigs, which was increased in 2015 to six well service rigs and which we anticipate increasing in August 2017 to eight well service rigs (or, at the option of EOG Resources, Inc., 11 well service rigs), operating in the Eagle Ford Shale in South Texas. Pursuant to the EOG Contract, EOG Resources, Inc. is generally obligated, with respect to each contracted well service rig, to utilize such well service rig for an average annual minimum of 2,750 hours at a stated rate based on our costs and other adjustments plus a mark-up that is subject to adjustment in certain circumstances based on market conditions and other factors. Further, during 2016, and excluding the impact of the ESCO Acquisition, we worked for 148 distinct customers, including 33 publicly traded companies, with no customer accounting for more than 20% of our annual revenues. As a result of the ESCO Acquisition, we expect to add approximately 92 additional distinct customers, including 11 publicly traded companies, none of which would have accounted for more than 20% of our annual revenues after giving effect to the ESCO Acquisition. As our customers increase their drilling and completion activity, we expect to continue to leverage our current relationships to expand our geographic footprint and to facilitate continued growth in the basins in which we currently operate.
Strong Balance Sheet Enables Strategic Deployment of Capital
We believe our balance sheet strength has allowed us to continue to invest in our equipment and meet working capital requirements required for a fast growing business, while also providing flexibility to opportunistically pursue expansion opportunities. We believe that larger E&P operators prefer well-capitalized service providers that are better positioned to meet service requirements and financial obligations. Many of our primary competitors have high levels of total debt or recently emerged from bankruptcy during which they significantly reduced their capital and maintenance expenditures. By contrast, after giving effect to this offering and the use of proceeds therefrom, we expect to have on a pro forma basis only $7.0 million of seller notes outstanding, approximately $18.0 million to $21.0 million of borrowing capacity, which is subject to adjustment based on, among other things, the eligibility and amount of our accounts receivable, under our Credit Facility and approximately $26.7 million of pro forma cash on the balance sheet (based on our cash balance as of March 31, 2017), which we believe will provide us with ample liquidity to support strategic investments to continue to grow our business and enhance market share.
Experienced Management Team Reinforces Dedication to Safety and Reliability
The members of our management team are seasoned operating, financial and administrative executives with extensive experience in and knowledge of the oilfield services industry. Our senior executives have a strong track record in establishing oilfield service companies and growing them
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organically and through strategic acquisitions. Our management team is led by our President and Chief Executive Officer, Darron M. Anderson, who has more than 26 years of oil and natural gas experience and a track record of leadership in the oilfield services industry. Each member of our management team possesses significant leadership and operational experience with long tenures in the industry and respective careers at leading companies. We believe that the commitment of our management team to building and supporting a strong company culture has driven our consistent track record of reliability and safety. During 2016, our TRIRs in our Well Services and Processing Solutions segments were 0.72 and 0.00, respectively, and we expect to maintain similar TRIRs following the ESCO Acquisition. Our history of safe operations enables us to qualify for projects with industry leading E&P customers that have stringent safety requirements.
We believe that we will be able to achieve our primary business objective of creating value for our shareholders by executing on the following strategies:
Capitalize on the Expected Increase in Demand for High-Spec Well Service Rigs
As a leading owner and operator of modern high-spec well service rigs with an operating footprint and customer relationships in the most active unconventional oil and natural gas basins in the United States, we believe that our company is well positioned to capitalize efficiently on a recovery in unconventional completion and production activity and the resulting demand for high-spec well service rigs. Further, we expect that the relatively high current inventory of DUC wells will drive demand growth for horizontal well completion services that will outpace the growth in the U.S. onshore drilling rig count. Industry reports by Spears forecast that the U.S. onshore market for completion equipment and services is expected to grow at a compound annual growth rate of 26% through 2021, primarily driven by unconventional horizontal wells. We intend to leverage our high quality assets to strategically target higher-margin, horizontal completions-oriented work that typically exceeds the capabilities of coiled tubing and older, lower specification well service rigs. Unconventional oil wells in particular typically require frequent intervention as a result of relatively high utilization of downhole tools and equipment. As the growing base of unconventional producing wells ages, we expect E&P operators to increasingly deploy well service programs in order to increase and sustain production. We are well positioned to provide these services throughout the life of the well to meet this demand, including through well completion support services, workover operations and well maintenance, which should result in stable growth, increased asset utilization, enhanced profitability and relatively limited cyclicality.
Grow Our Fleet of High-Spec Well Service Rigs, Modular MRUs and Associated Equipment
We have invested in a fleet of high-spec well service rigs through a combination of purchasing new-build rigs from leading U.S. manufacturers and by acquiring and integrating assets from other companies. As a result of the NOV Purchase Agreement, we expect to accept delivery of an additional 21 high-spec rigs periodically throughout the remainder of 2017. Further, in connection with our continued investment in high-spec well service rigs capable of meeting the most challenging horizontal well demands, we intend to accelerate our utilization of innovative technology systems allowing for the immediate collection and analysis of rig performance data. This data will allow us to operate among the highest levels of efficiency while assisting our customers in developing best well servicing practices.
We have also invested in differentiated and proprietary assets in our equipment rentals business, including our modern, reliable fleet of modular MRUs. We expect to leverage our strong balance sheet and continue to strategically deploy additional capital to invest in high-spec well service rigs, purpose-built MRUs and complementary rental equipment to service our customers' well completion, production and processing operations.
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Develop and Expand Relationships with Existing and New Customers
We serve well-capitalized customers that we believe will be critical to the long-term development of conventional and unconventional domestic onshore resources in the United States. We intend to continue developing long-term relationships with our customer base of leading E&P operators that value safe and reliable operations and have the financial stability and flexibility to weather most industry cycles. We believe that our strong track record of performance combined with our fleet of high-spec well service rigs will allow us to both develop new customer relationships and expand our existing customer relationships through cross-selling opportunities with respect to our complementary equipment and services. Furthermore, many of our customers have established operations throughout the United States, which we intend to leverage as opportunities for us to enter new geographic regions as well as further strengthen our presence in the regions where we currently operate.
Maintain a Conservative Balance Sheet to Pursue Organic and External Growth Opportunities
We intend to maintain a conservative approach to managing our balance sheet to preserve operational and strategic flexibility. We actively manage our liquidity by monitoring cash flow, capital spending and debt capacity. For example, as of March 31, 2017, we had only approximately $22.5 million of total combined consolidated long-term debt. Prior to or in connection with the consummation of this offering, all of such long-term debt, as well as the additional $9.9 million incurred under the Ranger Bridge Loan from April through July 2017, has been or will be repaid, and we will have only $7.0 million of seller notes outstanding thereafter. Our focus on maintaining a strong balance sheet has enabled us to execute our strategy through industry volatility and commodity price cycles. We expect to fund the expansion of our high-spec well service rig fleet and continue to grow our operations with the proceeds from this offering, cash flow from operations, availability under our Credit Facility and capital markets offerings when appropriate.
Reinforce Strong Company Culture through Employee Retention and Dedication to Safety
We believe that our technically skilled personnel enable us to provide consistently reliable services while maintaining an excellent safety record that surpasses industry averages and meets the expectations of our leading E&P customers. By reinforcing our strong company culture, fostering a dedication to safety through the maintenance of stringent employee screening and training and providing opportunities to work with modern equipment and leading technologies, we expect to continue to experience relatively low turnover of our highly skilled workforce and attract additional talent to continue to deliver exceptional service to our customers.
Well Services
Our high-spec well service rigs facilitate operations throughout the lifecycle of a well, including, as described in greater detail below, (i) well completion support; (ii) workover; (iii) well maintenance; and (iv) decommissioning. We provide these advanced well services to E&P companies, particularly to those operating in unconventional oil and natural gas reservoirs and requiring technically and operationally advanced services. Our high-spec well service rigs are designed to support growing U.S. horizontal well demands.
Specifically, our well service rig operations consist primarily of the following:
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process and installing production tubing and other permanent downhole equipment necessary to facilitate extraction and production.
In addition to our core well service rig operations, we also offer a suite of complementary services, including well service-related equipment rentals, wireline, snubbing and fluid management services.
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Processing Solutions
In our processing solutions segment, we provide a range of proprietary, modular equipment for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure. We have developed a premium offering that includes proprietary designs on modern processing equipment, including modular MRUs. Our modular units provide flexibility across a broad range of project requirements and operating environments, and are designed to allow for quick mobilization to minimize downtime and increase utilization, particularly in conjunction with the operational support provided by our expert field personnel. Our natural gas processing solutions assist our customers with meeting pipeline specifications, extracting higher value NGLs, providing fuel gas for wellsites and facilities and reducing emissions at the flare tip. Our modular units provide flexibility to match a broad range of project requirements and are designed to allow for quick mobilization and demobilization.
In addition to our proprietary natural gas and NGL processing equipment, we offer full transportation, installation and ongoing operation services in the field. Our turn-key mobilization services include in-bound transportation, site offloading, installation, commissioning, startup and training of field personnel. Our ongoing operations and maintenance services include daily onsite and callout service, daily field reports and NGL transportation and marketing arrangements. We also employ full-time process and mechanical engineers with significant experience in designing gas treating and processing solutions to provide quality service to our customers.
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Properties
Our 29,000 square foot corporate headquarters is located at 800 Gessner Street, Suite 1000, Houston, Texas 77024. We lease our general office space at our corporate headquarters. The lease expires in 2020. We currently own or lease the following additional principal properties:
Facility Location
|
Purpose | Size (sq ft/acres) |
Leased
or Owned |
Lease
Expiration |
Segment | ||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Houston, Texas |
Corporate offices/Field Office | 2,756 sq ft | Leased | 2017 | Processing Solutions | ||||||
Wharton, Texas |
Yard |
4 acres |
Leased |
2018 |
Well Services |
||||||
Odessa, Texas |
Maintenance Facility/Yard/Field Office |
5,000 sq ft/5 acres |
Leased |
2020 |
Well Services |
||||||
Pleasanton, Texas |
Maintenance Facility/Yard/Field Office |
7,800 sq ft/3 acres |
Owned |
N/A |
Well Services |
||||||
Milliken, Colorado |
Maintenance Facility/Yard/Field Office |
124,000 sq ft/23 acres |
Owned |
N/A |
Well Services |
||||||
Gillette, Wyoming |
Maintenance Facility/Yard/Field Office |
42,500 sq ft/30 acres |
Leased |
2018 |
Well Services |
||||||
Newtown, North Dakota |
Maintenance Facility/Yard/Field Office |
10,000 sq ft/3.5 acres |
Owned |
N/A |
Well Services |
||||||
Williston, North Dakota |
Maintenance Facility/Yard/Field Office |
10,820 sq ft/4.5 acres |
Leased |
2018 |
Well Services |
||||||
Dickinson, North Dakota |
Maintenance Facility/Yard/Field Office |
11,120 sq ft/3.5 acres |
Owned |
N/A |
Well Services |
||||||
San Angelo, Texas |
Maintenance Facility/Yard/Field Office |
12,055 sq ft/ 10 acres |
Leased |
(1 |
) |
Well Services |
|||||
Bowie, Texas |
Maintenance Facility/Yard/Field Office |
23,584 sq ft/ 8 acres |
Leased |
(1 |
) |
Well Services |
|||||
Bowie, Texas |
Maintenance Facility/Yard/Field Office |
3,100 sq ft/ 1 acre |
Leased |
(1 |
) |
Well Services |
|||||
Montague, Texas |
Maintenance Facility/Yard |
6,400 sq ft/ 10 acres |
Leased |
(1 |
) |
Well Services |
We also lease several smaller facilities, which leases generally have shorter terms, and may enter into additional lease agreements in connection with the consummation of the ESCO Acquisition. We believe that our facilities are adequate for our operations and their locations allow us to efficiently serve our customers. We do not believe that any single facility is material to our operations and, if necessary, we could readily obtain a replacement facility.
Equipment
Well Services
We have 123 well service rigs in our fleet, 122 of which are considered to be "high-spec," with high operating HP (450 HP or greater) and tall mast heights (102 feet or higher). The only rig in our fleet that is not high-spec is generally deployed only for plugging and abandonment operations on conventional vertical wells. We also have eight older plugging and abandonment rigs that we no longer market as part of our well service rig fleet. In February 2017, we entered into the NOV Purchase Agreement, pursuant to which we expect to accept delivery of an additional 21 high-spec well service
99
rigs periodically throughout the remainder of 2017. As a result of the NOV Purchase Agreement, our well service rig fleet will expand to 144 rigs, 143 of which will be considered to be high-spec.
The high-spec well service rigs in our fleet, the substantial majority of which has been built since 2010, have an average age of approximately six years and feature modern operating components sourced from leading U.S. manufacturers. Approximately 56% of our existing high-spec well service rigs were manufactured by NOV, with the remaining manufactured by Dragon/Cooper, Service King, Rig Works, Taylor and Stewart & Stevenson Crown. Please see the table below for additional details regarding our high-spec well service rigs, including the 49 high-spec well service rigs we expect to acquire in the ESCO Acquisition.
HP Rating(1)
|
Mast Height | Mast Rating | Year of Manufacture | Manufacturer & Model | |||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Existing High-Spec Rig Fleet: |
|||||||||||
600 HP |
117' | 300,000 lbs | 2017 | Nov 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2014 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2014 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2013 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2013 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2012 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2011 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2011 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2011 | NOV 6-C | |||||||
*600 HP |
112' | 300,000 lbs | 2011 | NOV 6-C | |||||||
600 HP |
112' | 300,000 lbs | 2011 | NOV 6-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2014 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2013 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2013 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2013 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2013 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2016 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2015 | Dragon/Cooper SP-550 | |||||||
500 HP |
104' | 250,000 lbs | 2014 | Dragon/Cooper SP-550 | |||||||
550 HP |
108' | 275,000 lbs | 2015 | Rig Works, Inc. Mustang-550 | |||||||
550 HP |
108' | 275,000 lbs | 2015 | Rig Works, Inc. Mustang-550 | |||||||
550 HP |
108' | 275,000 lbs | 2015 | Rig Works, Inc. Mustang-550 | |||||||
550 HP |
108' | 275,000 lbs | 2015 | Rig Works, Inc. Mustang-550 | |||||||
*550 HP |
104' | 275,000 lbs | 2009 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 |
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HP Rating(1)
|
Mast Height | Mast Rating | Year of Manufacture | Manufacturer & Model | |||||||
---|---|---|---|---|---|---|---|---|---|---|---|
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2008 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2007 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2007 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2007 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2007 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2007 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2006 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2006 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
104' | 275,000 lbs | 2006 | Rig Works, Inc. Mustang 550 | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2012 | Stewart & Stevenson Crown | |||||||
*550 HP |
110' | 250,000 lbs | 2011 | Stewart & Stevenson Crown | |||||||
*550 HP |
104' | 250,000 lbs | 2004 | Stewart & Stevenson Crown | |||||||
*550 HP |
104' | 250,000 lbs | 2004 | Stewart & Stevenson Crown | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2015 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2014 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2013 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2013 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2013 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2013 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2013 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C |
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HP Rating(1)
|
Mast Height | Mast Rating | Year of Manufacture | Manufacturer & Model | |||||||
---|---|---|---|---|---|---|---|---|---|---|---|
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2011 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
*500 HP |
104' | 250,000 lbs | 2010 | NOV 5-C | |||||||
*500 HP |
104' | 250,000 lbs | 2008 | NOV 5-C | |||||||
*500 HP |
104' | 250,000 lbs | 2008 | NOV 5-C | |||||||
*500 HP |
104' | 250,000 lbs | 2008 | NOV 5-C | |||||||
*500 HP |
104' | 250,000 lbs | 2008 | NOV 5-C | |||||||
475 HP |
104' | 250,000 lbs | 2014 | Service King 575 | |||||||
475 HP |
104' | 250,000 lbs | 2014 | Service King 575 | |||||||
475 HP |
104' | 250,000 lbs | 2014 | Service King 575 | |||||||
475 HP |
104' | 250,000 lbs | 2014 | Service King 575 | |||||||
475 HP |
104' | 250,000 lbs | 2011 | Service King 575 | |||||||
475 HP |
104' | 250,000 lbs | 2009 | Service King 575 | |||||||
*475 HP |
104' | 240,000 lbs | 2014 | Taylor TI-500 | |||||||
*475 HP |
104' | 240,000 lbs | 2010 | Taylor TI-500 | |||||||
*475 HP |
104' | 240,000 lbs | 2009 | Taylor TI-500 | |||||||
*475 HP |
104' | 240,000 lbs | 2009 | Taylor TI-500 | |||||||
*475 HP |
104' | 240,000 lbs | 2009 | Taylor TI-500 | |||||||
*475 HP |
104' | 240,000 lbs | 2007 | Taylor TI-500 | |||||||
*500 HP |
104' | 240,000 lbs | 2007 | Taylor C-500 | |||||||
*500 HP |
104' | 240,000 lbs | 2007 | Taylor C-500 | |||||||
*500 HP |
104' | 240,000 lbs | 2006 | Taylor C-500 | |||||||
*500 HP |
104' | 240,000 lbs | 2006 | Taylor C-500 | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2012 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2010 | NOV 4-C |
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HP Rating(1)
|
Mast Height | Mast Rating | Year of Manufacture | Manufacturer & Model | |||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Expected 2017 Additions: |
|
|
|||||||||
600 HP |
117' | 300,000 lbs | 2017 | NOV 6-C | |||||||
600 HP |
112' | 300,000 lbs | 2017 | NOV 6-C | |||||||
600 HP |
112' | 300,000 lbs | 2017 | NOV 6-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
500 HP |
104' | 250,000 lbs | 2017 | NOV 5-C | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C | |||||||
450 HP |
102' | 200,000 lbs | 2017 | NOV 4-C |
In connection with the operations of our high-spec well service rigs, we also maintain a supply of additional service and rental equipment, including accumulators, acid and frac tanks, motor vehicles, trailers, tractors, catwalks, cementing units, snubbing units, pipe racks, power swivels, ram block assemblies, rig pumps and related items.
Processing Solutions
We have a fleet of more than 25 MRUs that are modern, reliable and equipped to handle large volumes of natural gas while operating across a broad array of oilfield conditions with minimal downtime and maintenance. Our MRUs are constructed and assembled by third-party vendors in accordance with our proprietary designs and with our oversight of sourcing and procurement. Our MRUs can be stacked and scaled to handle a broad range of projects and natural gas volumes (i.e., 10, 20, 30, 40, 50 MMscfd and beyond). Our MRUs can generate temperatures down to 20 degrees Fahrenheit. In addition, we own and operate five (5) auxiliary NGL stabilizer units (designed to assist our MRUs that require additional capacity to separate and capture valuable NGLs), over 40 NGL storage tanks with bulkhead delivery systems and capacities of 18,000 gallons, fourteen trailer-mounted natural gas generators and additional supporting auxiliary equipment. Our proprietary natural gas and NGL processing equipment is generally designed to be mobile and purpose-built to increase efficiency and productivity while reducing safety risks.
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Our sales and marketing activities typically are performed through our local operations in each geographical region, and are supported by sales representatives at our corporate headquarters. Our senior management also takes an active role in supporting our local sales and marketing operations and personnel. We believe our local field sales personnel understand the region-specific issues and customer operating procedures and therefore can more effectively target marketing activities. Our sales representatives work closely with our local managers and field sales personnel to target market opportunities.
We have strong relationships with a broad customer base, including Devon Energy Corporation, EOG Resources, Inc., Noble Energy, Inc., Oasis Petroleum Inc., PDC Energy Inc. and Statoil ASA. During 2016, and excluding the impact of the ESCO Acquisition, we worked for 148 distinct customers, including 33 publicly traded companies. As a result of the ESCO Acquisition, we expect to add approximately 92 additional customers, including 11 publicly traded companies (including Devon Energy Corporation). During the first quarter of 2017, EOG Resources, Inc. and PDC Energy Inc. accounted for more than 10% of our revenues. During 2016, EOG Resources, Inc. and PDC Energy Inc. each accounted for more than 10% of our revenues. During 2015, EOG Resources, Inc. and Whiting Petroleum Corporation each accounted for more than 10% of our revenues. After giving effect to the ESCO Acquisition, Devon Energy Corporation would have accounted for more than 10% of our revenues during 2016. Within our Well Services segment, our top five customers represented approximately 77% and 62% of our revenues for 2015 and 2016, respectively, and approximately 87% and 69% of our revenues for the first quarters of 2016 and 2017, respectively. Within our Well Services segment, after giving effect to the ESCO Acquisition, our top five customers would have represented approximately 51% and 56% of our revenues for 2016 and the first quarter of 2017, respectively. Within our Processing Solutions segment, our top five customers represented approximately 98% and 90% of our revenues for 2015 and 2016, respectively, and approximately 89% and 100% of our revenues for the first quarters of 2016 and 2017, respectively.
We have built strong relationships with the manufacturers of our high-spec well service rigs. and we believe we will continue to have timely access to new, high-spec rigs as we continue to grow. For example, in February 2017, we entered into the NOV Purchase Agreement to meet expected customer demand for our high-spec well service rigs. Further, we have built strong relationships with the third-party suppliers and other vendors that we use to assemble our MRUs and related modular processing equipment, and believe we will continue to have timely access to new MRUs and related equipment as we continue to grow.
In addition, our internal supply chain team manages sourcing and logistics to ensure flexibility and continuity of supply in a cost effective manner across our areas of operation. We have built long-term relationships with multiple industry leading suppliers of materials and equipment. We purchase a wide variety of materials, parts and components that are manufactured and supplied for our operations. We are not dependent on any single source of supply for those parts, supplies or materials. To date, we have generally been able to obtain the equipment, parts and supplies necessary to support our operations on a timely basis.
The markets in which we operate are highly competitive. We provide services in various geographic regions across the United States, and our competitors include many large and small oilfield service
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providers, including some of the largest integrated service companies. Specifically, our primary competitors in the well services market include Basic Energy Services, Inc., C&J Energy Services, Inc., Forbes Energy Services Ltd., Key Energy Services Inc., Nine Energy Service Inc. and Pioneer Energy Services Corp., and we view Pioneer Energy Services as our most significant competitor in the high-spec well service rig market. In the processing solutions market our primary competitors include GTUIT, LLC, Kinder Morgan Treating LP and Schlumberger Limited. In addition, our industry is highly fragmented and we compete regionally with a significant number of smaller service providers.
We believe that the principal competitive factors in the markets we serve are technical expertise, equipment capacity, work force competency, efficiency, safety record, reputation, experience and price. Additionally, projects are often awarded on a bid basis, which tends to create a highly competitive environment. We seek to differentiate ourselves from our competitors by delivering the highest-quality services and equipment possible, coupled with superior execution and operating efficiency in a safe working environment.
We operate in a highly cyclical industry. The key factor driving demand for our services is the level of drilling activity by E&P companies, which in turn depends largely on the current and anticipated economics of new well completions. Global supply and demand for oil and the domestic supply and demand for natural gas are critical in assessing industry outlook. Demand for oil and natural gas is cyclical and subject to large, rapid fluctuations. E&P companies tend to increase capital expenditures in response to increases in oil and natural gas prices, which generally results in greater revenues and profits for oilfield service companies such as ours. Increased capital expenditures also ultimately lead to greater production, which historically has resulted in increased inventories and reduced prices which in turn tend to reduce demand for oilfield services. For these reasons, the results of our operations may fluctuate from quarter to quarter and from year to year, and these fluctuations may distort comparisons of results across periods.
Our results of operations have historically reflected seasonal tendencies relating to holiday seasons, inclement weather and the conclusion of our customers' annual drilling and completion capital expenditure budgets. Our most notable declines occur in the first and fourth quarters of the calendar year for the reasons described above. Additionally, some of the areas in which we have operations, including the Denver-Julesburg Basin and the Bakken Shale, are adversely affected by seasonal weather conditions, primarily in the winter and spring. During periods of heavy snow, ice, wind or rain, we may be unable to move our equipment between locations, thereby reducing our ability to provide services and generate revenues, or we could suffer weather-related damage to our facilities and equipment resulting in delays in operations. The exploration activities of our customers may also be affected during such periods of adverse weather conditions.
For additional information on our operations by segment, see Note 10, "Segment Reporting" to our Predecessor's historical combined consolidated financial statements as of and for the years ended December 31, 2015 and 2016, and our Predecessor's historical unaudited condensed combined consolidated financial statements as of March 31, 2017 and for the three months ended March 31, 2016 and 2017, included elsewhere in this prospectus.
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Environmental and Occupational Safety and Health Matters
Our operations, which support the oil and natural gas exploration, development and production activities pursued by our customers, are subject to stringent and comprehensive federal, regional, state and local laws and regulations governing occupational safety and health, the discharge of materials into the environment, solid and hazardous waste management, transportation and disposal, and environmental protection. These laws and regulations may, among other things (i) limit or prohibit our operations on certain lands lying within wilderness, wetlands and other protected areas; (ii) require remedial measures to mitigate or clean-up pollution from former and ongoing operations; (iii) impose restrictions on the types, quantities and concentrations of various substances that can be released into the environment or injected in formations in connection with oil and natural gas drilling and production activities; (iv) impose specific safety and health standards or criteria addressing worker protection; and (v) impose substantial liabilities for pollution resulting from our operations. Numerous governmental entities, including the EPA and analogous state agencies, have the power to enforce compliance with these laws and regulations and the permits issued under them. Any failure to comply with these laws and regulations may result in the assessment of sanctions, including administrative, civil and criminal penalties, the imposition of investigatory, remedial or corrective action obligations or the incurrence of capital expenditures; the occurrence of delays in the permitting or performance of projects; the issuance of orders enjoining performance of some or all of our operations in a particular area; and governmental or private claims for personal injury or property or natural resource damages.
The trend in environmental regulation has been to place more restrictions and limitations on activities that may adversely affect the environment, and thus any changes in environmental laws and regulations or re-interpretation of enforcement policies that result in more stringent and costly completion activities, or waste handling, storage transport, disposal, or remediation requirements could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. We may be unable to pass on such increased compliance costs to our customers. Moreover, accidental releases or spills may occur in the course of our operations, and we cannot assure you that we will not incur significant costs and liabilities as a result of such releases or spills, including any third-party claims for damage to property, natural resources or persons. Our customers may also incur increased costs or delays or restrictions in permitting or operating activities as a result of more stringent environmental laws and regulations, which may result in a curtailment of exploration, development or production activities that would reduce the demand for our services.
The following is a summary of the more significant existing environmental and occupational safety and health laws, as amended from time to time, to which our business is subject and for which compliance may have a material adverse impact on our capital expenditures, results of operations or financial position.
Worker Health and Safety
We are subject to the requirements of the federal Occupational Safety and Health Act ("OSHA"), and comparable state statutes that regulate the protection of the health and safety of workers. In addition, the OSHA hazard communication standard requires that information be maintained about hazardous materials used or produced in operations and that this information be provided to employees, state and local government authorities and the public. We believe that our operations are in substantial compliance with OSHA requirements, including general industry standards, record keeping requirements and monitoring of occupational exposure to regulated substances.
Radioactive Materials
Some of our operations utilize equipment that contains sealed, low-grade radioactive sources. Our activities involving the use of radioactive materials are regulated by the United States Nuclear
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Regulatory Commission ("NRC") and state regulatory agencies under agreement with the NRC. Standards implemented by these regulatory agencies require us to obtain licenses or other approvals for the use of such radioactive materials. Historically, our radioactive materials compliance costs have not had a material adverse effect on our business, liquidity position, financial condition, prospects or results of operations; however, there can be no assurance that such costs will not be material in the future. The violation of these laws and regulations may result in the denial or revocation of permits, issuance of corrective action orders, injunctions prohibiting some or all of our operations in a particular area, and assessment of sanctions, including administrative, civil and criminal penalties.
Hazardous Substances and Wastes and Naturally Occurring Radioactive Materials
The Resource Conservation and Recovery Act ("RCRA"), and comparable state statutes, regulate the generation, treatment, storage, transportation, disposal and clean-up of hazardous and non-hazardous wastes. Pursuant to rules issued by the EPA, individual states can have delegated authority to administer some or all of the provisions of RCRA, sometimes in conjunction with their own, more stringent requirements. In the course of our operations, we generate industrial wastes, such as paint wastes, waste solvents and waste oils that are regulated as hazardous wastes. Drilling fluids, produced waters, and most of the other wastes associated with the exploration, development, and production of oil or natural gas, if properly handled, are currently exempt from regulation as hazardous waste under RCRA and, instead, are regulated under RCRA's less stringent non-hazardous waste provisions, or other state or federal laws. However, it is possible that certain oil and natural gas drilling and production wastes now classified as non-hazardous could be classified as hazardous wastes in the future. For example, the EPA is required by a consent decree to propose a rulemaking for revision of certain Subtitle D criteria regulations pertaining to oil and natural gas wastes or sign a determination that revision of the regulations is not necessary no later than March 15, 2019. If EPA proposes a rulemaking for revised oil and natural gas waste regulations, the consent decree requires that the EPA take final action following notice and comment rulemaking no later than July 15, 2021. A reclassification of drilling fluids, produced waters and related wastes as hazardous under RCRA could result in an increase in our, as well as the oil and natural gas exploration and production industry's, costs to manage and dispose of generated wastes, which could have a material adverse effect on our business, liquidity position, financial condition, prospects and results of operations. Additionally, other wastes handled at exploration and production sites or generated in the course of providing well services may not fall within this exclusion.
Naturally Occurring Radioactive Materials ("NORM") may contaminate extraction and processing equipment used in the oil and natural gas industry. The waste resulting from such contamination is regulated by federal and state laws. Standards have been developed for: worker protection; treatment, storage, and disposal of NORM and NORM waste; management of NORM-contaminated waste piles, containers and tanks; and limitations on the relinquishment of NORM contaminated land for unrestricted use under RCRA and state laws. We may incur significant costs or liabilities associated with elevated levels of NORM.
The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), and comparable state laws impose strict, joint and several liability for environmental contamination and damages to natural resources without regard to fault or the legality of the original conduct on certain classes of persons. These persons include owners and operators of real property impacted by a release of hazardous substances and any company that transported, disposed of, or arranged for the transport or disposal of hazardous substances to or at the site. Under CERCLA, such persons may be liable for, among other things, the costs of remediating the hazardous substances that have been released into the environment, for damages to natural resources, and for the costs of certain health studies. In addition, where contamination may be present, it is not uncommon for the neighboring landowners and other third parties to file claims for personal injury, property damage and recovery of response costs.
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Water Discharges and Discharges into Belowground Formations
The Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA"), and analogous state laws, impose restrictions and strict controls with respect to the discharge of pollutants, including spills and leaks of oil and hazardous substances, into state waters and waters of the United States. The discharge of pollutants into regulated waters is prohibited, except in accordance with the terms of a permit issued by the EPA or an analogous state agency. Spill prevention, control and countermeasure plan requirements imposed under the CWA require appropriate containment berms and similar structures to help prevent the contamination of navigable waters in the event of a petroleum hydrocarbon tank spill, rupture or leak. In addition, the CWA and analogous state laws require individual permits or coverage under general permits for discharges of storm water runoff from certain types of facilities. The CWA also prohibits the discharge of dredge and fill material in regulated waters, including wetlands, unless authorized by permit. The CWA and analogous state laws also may impose substantial civil and criminal penalties for non-compliance including spills and other non-authorized discharges.
The Oil Pollution Act of 1990 ("OPA") sets minimum standards for prevention, containment and cleanup of oil spills. The OPA applies to vessels, offshore facilities, and onshore facilities, including exploration and production facilities that may affect waters of the United States. Under the OPA, responsible parties including owners and operators of onshore facilities may be held strictly liable for oil cleanup costs and natural resource damages as well as a variety of public and private damages that may result from oil spills. The OPA also requires owners or operators of certain onshore facilities to prepare Facility Response Plans for responding to a worst-case discharge of oil into waters of the United States.
Our oil and natural gas producing customers dispose of flowback and produced water or certain other oilfield fluids gathered from oil and natural gas producing operations in accordance with permits issued by government authorities overseeing such disposal activities. While these permits are issued pursuant to existing laws and regulations, these legal requirements are subject to change based on concerns of the public or governmental authorities regarding such disposal activities. One such concern relates to recent seismic events near underground disposal wells used for the disposal by injection of flowback and produced water or certain other oilfield fluids resulting from oil and natural gas activities. When caused by human activity, such events are called induced seismicity. In response to concerns regarding induced seismicity, regulators in some states have imposed, or are considering imposing, additional requirements in the permitting of produced water disposal wells or otherwise to assess any relationship between seismicity and the use of such wells. States may, from time to time, develop and implement plans directing certain wells where seismic incidents have occurred to restrict or suspend disposal well operations. In addition, ongoing lawsuits allege that disposal well operations have caused damage to neighboring properties or otherwise violated state and federal rules regulating waste disposal. These developments could result in additional regulation and restrictions on the use of injection wells by our customers to dispose of flowback and produced water and certain other oilfield fluids. Increased regulation and attention given to induced seismicity also could lead to greater opposition to, and litigation concerning, oil and natural gas activities utilizing injection wells for waste disposal. Any one or more of these developments may result in our customers having to limit disposal well volumes, disposal rates or locations, or require our customers or third party disposal well operators that are used to dispose of customer wastewater to shut down disposal wells, which developments could adversely affect our customers' business and result in a corresponding decrease in the need for our services, which would could have a material adverse on our business, liquidity position, financial condition, prospects and results of operations.
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Air Emissions
Some of our operations also result in emissions of regulated air pollutants. The federal Clean Air Act ("CAA") and analogous state laws require permits for certain facilities that have the potential to emit substances into the atmosphere that could adversely affect environmental quality. These laws and their implementing regulations also impose limitations on air emissions and require adherence to maintenance, work practice, reporting and record keeping, and other requirements. Failure to obtain a permit or to comply with permit or other regulatory requirements could result in the imposition of sanctions, including administrative, civil and criminal penalties. In addition, we or our customers could be required to shut down or retrofit existing equipment, leading to additional capital or operating expenses and operational delays.
Many of these regulatory requirements, including NSPS and Maximum Achievable Control Technology standards, are expected to be made more stringent over time as a result of stricter ambient air quality standards and other air quality protection goals adopted by the EPA. Compliance with these or other new regulations could, among other things, require installation of new emission controls on some of our equipment, result in longer permitting timelines, and significantly increase our capital expenditures and operating costs, which could adversely impact on our business. For example, the EPA issued final CAA regulations in 2012 that include NSPS standards for completions of hydraulically fractured natural gas wells, compressors, controllers, dehydrators, storage tanks, natural gas processing plants and certain other equipment. In June 2016, the EPA published final rules establishing new emissions standards for methane and additional standards for VOCs from certain new, modified and reconstructed equipment and processes in the oil and natural gas source category, including production, processing, transmission and storage activities, and is formally seeking additional information from oil and natural gas producing companies as necessary to eventually expand these final rules to include existing equipment and processes. In April 2017, the EPA announced that it will initiate reconsideration proceedings to potentially revise or rescind portions of the rule. In addition, the EPA has issued a stay of the June 3, 2017 compliance date applicable to fugitive emissions monitoring requirements for 90 days.
In addition, some of our customers operate on federal or tribal lands, and are thus subject to additional requirements, including those impose by tribal authorities and the BLM. For example, in June 2016, the EPA issued an FIP to implement the Federal Minor New Source Review Program on tribal lands for oil and gas production. The FIP creates a permit-by-rule process for minor sources that also incorporates emission limits and other requirements under various federal air quality standards, applying them to a range of equipment and processes used in oil and gas production. The FIP does not apply in areas of ozone non-attainment. As a result, the EPA may impose area-specific regulations in certain areas identified as tribal lands that may require additional emissions controls on existing equipment. Such requirements will likely result in increased operating and compliance costs for our customers in these regions.
In November 2016, the BLM finalized a rule regulating the venting and flaring of natural gas, leak detection, air emissions from equipment, well maintenance and unloading, drilling and completions and royalties potentially owed for loss of such emissions from oil and natural gas facilities producing on federal and tribal leases. The final rule became effective in January 2017 and is the subject of pending litigation filed by oil and natural gas trade associations and certain states seeking to modify or overturn the rule. In addition, in a March 28, 2017 executive order, President Trump directed the Secretary of the Interior to review these and several other BLM rules related to oil and gas operations and, if appropriate, to suspend, revise, or rescind the rules. The executive order also directs all executive agencies more broadly to review existing regulations that potentially burden the development or use of domestically produced energy resources.
Compliance with these and other air pollution control and permitting requirements has the potential to delay the development of oil and natural gas projects and increase costs for us and our
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customers. Moreover, our business could be materially affected if these or other similar requirements increase the cost of doing business for us and our customers, or reduce the demand for the oil and natural gas our customers produce, and thus have an adverse effect on the demand for our services.
Climate Change
In the United States, domestic efforts to curb GHG emissions continue be led by the EPA's GHG regulations as well as state and regional efforts aimed at tracking and/or reducing GHG emissions by means of cap and trade programs. In addition, the EPA has determined that GHG emissions present a danger to public health and the environment and has adopted regulations that, among other things, restrict emissions of GHGs under existing provisions of the CAA and may require the installation of "best available control technology" to limit emissions of GHGs from any new or significantly modified facilities if they would otherwise emit large volumes of GHGs together with other criteria pollutants. Also, the EPA has adopted rules requiring the monitoring and annual reporting of GHG emissions from oil and natural gas production, processing, transmission and storage facilities in the United States on an annual basis, including gathering and boosting stations as well as completions and workovers from hydraulically fractured oil wells. The EPA has also taken steps to limit methane emissions, a GHG, from certain new modified or reconstructed facilities in the oil and natural gas sector.
In December 2015, the United States joined the international community at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change in Paris, France that requires member countries to review and "represent a progression" in their intended nationally determined contributions, which set GHG emission reduction goals, every five years beginning in 2020. The Paris Agreement entered into force in November 2016. Although this agreement does not create any binding obligations for nations to limit their GHG emissions, it does include pledges to voluntarily limit or reduce future emissions. In June 2017, President Trump stated that the United States would withdraw from the Paris Agreement, but may enter into a future international agreement related to GHGs. Substantial limitations on GHG emissions could adversely affect demand for the oil and natural gas our customers produce and lower the value of their reserves, which developments could reduce demand for our services and have a corresponding material adverse effect on our business, liquidity position, financial condition, prospects and results of operations.
Finally, increasing concentrations of GHGs in the Earth's atmosphere may produce climate changes that have significant physical effects, such as increased frequency and severity of storms, floods and other climatic events. If any such effects were to occur, they could have an adverse effect on our operations.
Hydraulic Fracturing
Our customers are reliant on hydraulic fracturing services in connection with their production of oil and natural gas. Hydraulic fracturing stimulates production of oil and/or natural gas from dense subsurface rock formations by injecting water, sand and chemicals under pressure into the formation to fracture the surrounding rock and stimulate production.
Hydraulic fracturing typically is regulated by state oil and natural gas commissions, but the EPA has asserted federal regulatory authority pursuant to the Safe Drinking Water Act over certain hydraulic fracturing activities involving the use of diesel fuel and issued permitting guidance in February 2014 that applies to such activities. The EPA also finalized rules in June 2016 that prohibit the discharge of wastewater from hydraulic fracturing operations to publicly owned wastewater treatment plants. In addition, the EPA released its final report on the potential impacts of hydraulic fracturing on drinking water resources in December 2016. The final report concluded that "water cycle" activities associated with hydraulic fracturing may impact drinking water resources "under some circumstances," noting that the following hydraulic fracturing water cycle activities and local- or regional-scale factors are more likely than others to result in more frequent or more severe impacts:
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water withdrawals for fracturing in times or areas of low water availability; surface spills during the management of fracturing fluids, chemicals or produced water; injection of fracturing fluids into wells with inadequate mechanical integrity; injection of fracturing fluids directly into groundwater resources; discharge of inadequately treated fracturing wastewater to surface waters; and disposal or storage of fracturing wastewater in unlined pits.
Additionally, the EPA issued final CAA regulations in 2012 and in June 2016 governing performance standards, including standards for the capture of emissions of methane and VOCs released during hydraulic fracturing; published in June 2016 an effluent limit guideline final rule prohibiting the discharge of wastewater from onshore unconventional oil and natural gas extraction facilities to publicly owned wastewater treatment plants; and published in May 2014 an Advance Notice of Proposed Rulemaking regarding Toxic Substances Control Act reporting of the chemical substances and mixtures used in hydraulic fracturing. The BLM finalized a rule in March 2015 establishing standards for hydraulic fracturing on federal and American Indian lands. In June 2016, a Wyoming federal judge struck down this final rule, finding that the BLM lacked authority to promulgate the rule. That decision was appealed by the federal government but, in March 2017, the BLM asked the U.S. Court of Appeals for the Tenth Circuit to stay the proceeding while the agency considers repealing the rule. President Trump's March 28, 2017 executive order also directs the Secretary of the Interior to review the rule and, if appropriate, to suspend, revise or rescind the rule.
In addition, various state and local governments have implemented, or are considering, increased regulatory oversight of hydraulic fracturing through additional permit requirements, operational restrictions, disclosure requirements, well construction and temporary or permanent bans on hydraulic fracturing in certain areas. For example, Texas, Colorado and North Dakota, among others, have adopted regulations that impose new or more stringent permitting, disclosure, disposal, and well construction requirements on hydraulic fracturing operations. States could also elect to prohibit high volume hydraulic fracturing altogether, following the approach taken by the State of New York in 2015. In addition to state laws, local land use restrictions, such as city ordinances, may restrict drilling in general and/or hydraulic fracturing in particular. If new federal, state or local laws or regulations that significantly restrict hydraulic fracturing are adopted, such legal requirements could result in delays, eliminate certain drilling and injection activities and make it more difficult or costly to perform hydraulic fracturing. Any such regulations limiting or prohibiting hydraulic fracturing could result in decreased oil and natural gas exploration and production activities and, therefore, adversely affect demand for our services and our business. Such laws or regulations could also materially increase our costs of compliance and doing business.
Historically, our environmental compliance costs have not had a material adverse on our business, liquidity position, financial condition, prospects and results of operations; however, there can be no assurance that such costs will not be material in the future. It is possible that substantial costs for compliance or penalties for non-compliance may be incurred in the future. Moreover, it is possible that other developments, such as the adoption of stricter environmental laws, regulations, and enforcement policies, could result in additional costs or liabilities that we cannot currently quantify.
State and Local Regulation
Our operations, and the operations of our customers, are subject to a variety of state and local environmental review and permitting requirements. Some states have state laws similar to major federal environmental laws and thus our operations are also subject to state requirements that may be more stringent than those imposed under federal law. Our operations may require state-law based permits in addition to federal permits, requiring state agencies to consider a range of issues, many the same as federal agencies, including, among other things, a project's impact on wildlife and their habitats, historic and archaeological sites, aesthetics, agricultural operations, and scenic areas. Texas has specific permitting and review processes for oilfield service operations, and state agencies may impose different
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or additional monitoring or mitigation requirements than federal agencies. The development of new sites and our existing operations also are subject to a variety of local environmental and regulatory requirements, including land use, zoning, building, and transportation requirements.
We operate as a motor carrier and therefore are subject to regulation by the DOT and various state agencies. These regulatory authorities exercise broad powers, governing activities such as the authorization to engage in motor carrier operations; regulatory safety; hazardous materials labeling, placarding and marking; financial reporting; and certain mergers, consolidations and acquisitions. There are additional regulations specifically relating to the trucking industry, including testing and weight and dimension specifications of equipment, drug testing of drivers and product handling requirements. The trucking industry is subject to possible regulatory and legislative changes that may affect the economics of the industry by requiring changes in operating practices or by changing the demand for common or contract carrier services or the cost of providing truckload services. Some of these possible changes include increasingly stringent environmental regulations, changes in the hours of service regulations which govern the amount of time a driver may drive in any specific period and requiring onboard black box recorder devices or limits on vehicle weight and size.
Interstate motor carrier operations are subject to safety requirements prescribed by DOT. Intrastate motor carrier operations are subject to safety regulations that often mirror federal regulations. Such matters as weight and dimension of equipment are also subject to federal and state regulations. DOT regulations also mandate drug testing of drivers. From time to time, various legislative proposals are introduced, including proposals to increase federal, state or local taxes, including taxes on motor fuels, which may increase our costs or adversely impact the recruitment of drivers. We cannot predict whether, or in what form, any increase in such taxes applicable to us will be enacted.
We believe our trademarks and other protections for our proprietary technologies are adequate for the conduct of our business. In addition, we rely to a great extent on the technical expertise and know-how of our personnel to maintain our competitive position, and we take commercially reasonable measures to protect trade secrets and other confidential and/or proprietary information relating to the technologies we develop.
Our operations are subject to hazards inherent in the oil and natural gas industry, such as, but not limited to, accidents, blowouts, explosions, craterings, fires, oil spills and releases of drilling, completion or fracturing fluids or hazardous materials into the environment. These conditions can cause:
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In addition, our operations are subject to, and exposed to, employee/employer liabilities and risks such as wrongful termination, discrimination, labor organizing, retaliation claims and general human resource-related matters.
Claims for loss of oil and natural gas production and damage to formations can occur in the well services industry. Litigation arising from a catastrophic occurrence at a location where our equipment and services are being used may result in our being named as a defendant in lawsuits asserting large claims.
We do not have insurance against all risks, either because insurance is not available or because of the high premium costs. The occurrence of an event not fully insured against or the failure of an insurer to meet its insurance obligations could result in substantial losses. In addition, we may not be able to maintain adequate insurance in the future at rates we consider reasonable. Insurance may not be available to cover any or all of the risks to which we are subject, or, even if available, it may be inadequate, or insurance premiums or other costs could rise significantly in the future so as to make such insurance prohibitively expensive.
We typically enter into MSAs with our customers. Our MSAs delineate our and our customers' respective indemnification obligations with respect to the services we provide. Generally, under our MSAs, we assume responsibility for pollution or contamination originating above the surface from our equipment or handling. However, our customers assume responsibility for all other pollution or contamination that may occur during operations, including that which may result from seepage or any other uncontrolled flow of drilling fluids. The assumed responsibilities include the control, removal and clean-up of any pollution or contamination. In such cases, we may be exposed to additional liability if we are negligent or commit willful acts causing the pollution or contamination. Generally, our customers also agree to indemnify us against claims arising from their employees' personal injury or death, in the case of our operations, to the extent that their employees are injured by such operations, unless the loss is a result of our gross negligence or willful misconduct. Similarly, we generally agree to indemnify our customers for liabilities arising from personal injury to or death of any of our employees, unless resulting from the gross negligence or willful misconduct of our customer. The same principles apply to mutual indemnification for loss or destruction of customer-owned property or equipment, except such indemnification is not limited by negligence or misconduct. Losses due to catastrophic events, such as blowouts, are generally the responsibility of the customer. However, despite this general allocation of risk, we may be unsuccessful in enforcing contractual terms, incur an unforeseen liability that is not addressed by the scope of the contractual provisions or be required to enter into an MSA with terms that vary from our standard allocations of risk, as described above. Consequently, we may incur substantial losses that could materially and adversely affect our financial condition and results of operations.
We are not currently a party to any legal proceedings that, if determined adversely against us, individually or in the aggregate, would have a material adverse effect on our business, liquidity position, financial condition, prospects or results of operations. We are, however, named defendants in certain lawsuits, investigations and claims arising in the ordinary course of conducting our business, including certain environmental claims and employee-related matters, and we expect that we will be named defendants in similar lawsuits, investigations and claims in the future. While the outcome of these lawsuits, investigations and claims cannot be predicted with certainty, we do not expect these matters to have a material adverse impact on our business, results of operations, cash flows or financial condition.
As of March 31, 2017, we had approximately 663 employees and no unionized labor. We intend to extend conditional offers of employment to substantially all of ESCO's 291 employees for a period of at least one year following the consummation of the ESCO Acquisition. We hire independent contractors on an as-needed basis. We believe we have satisfactory relations with our employees.
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Unless otherwise indicated, the market data and certain other statistical information set forth in this "Industry" section is based on independent industry publications, government publications and other published sources, including data from Coras, Spears, Qittitut and Drillinginfo. Some data are also based on our good faith estimates. Although we believe these third-party sources are reliable as of their respective dates, neither we nor the underwriters have independently verified the accuracy or completeness of this information. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section entitled "Risk Factors." These and other factors could cause results to differ materially from those expressed in these publications.
We operate our business within the oilfield services industry. Demand for oilfield services is primarily driven by the level of drilling, completion and production activity by E&P companies, which, in turn, depends largely on the current and anticipated profitability of developing oil and natural gas reserves. Over the past decade, the increased development of unconventional oil and natural gas reserves in North America has resulted in a significant growth in oil and natural gas production. However, beginning in the second half of 2014, oil and natural gas prices began to decline after the posted WTI price of oil reached a peak of $107.26 per Bbl in June 2014 and the posted Henry Hub price of natural gas reached a peak of $6.15 per MMBtu in February 2014. Significant declines in oil and natural gas prices continued through 2015 and parts of 2016, driving a reduction in the drilling, completion and production activities of the majority of E&P companies and, as a result, a reduction in the demand for oilfield services, leading to a decline in utilization across the industry.
Reduced drilling and completion spending during 2015 and 2016 has resulted in a decline in the production of oil and natural gas in North America. Furthermore, an agreement in late 2016 by members of OPEC to reduce production, and thereby limit supply, has provided additional support for recent increases in oil and natural gas prices. For example, WTI benchmark oil prices have recovered by approximately 76% from a low of $26.21 per Bbl in February 2016 to $46.02 per Bbl at the end of June 2017. Henry Hub natural gas prices have increased by approximately 82% from a low of $1.64 per MMBtu in March 2016 to $2.98 per MMBtu at the end of May 2017.
In response to the improved expected financial returns generated by these recent increases in oil and natural gas prices, E&P companies have generally increased their capital budgets thus far in 2017 as compared to 2016. Accordingly, the onshore U.S. drilling rig count has recovered by approximately 135% from a low of 404 rigs in May 2016 to 950 rigs in July 2017. Further, during the same time period, the number of drilling rigs drilling horizontal wells has risen from 314 to 803 and the number of drilling rigs targeting oil production has increased from 318 to 764. In addition, the number of active well service rigs in the United States has increased from 989 in May 2016 to 1,219 in March 2017. We expect to see continued increases in activity and pricing for oilfield services if commodity prices remain near current levels or rise further.
Within the broader oilfield services industry, we conduct our operations through two segments: Well Services and Processing Solutions. As part of the oilfield services industry, our Well Services and Processing Solutions segments are generally influenced by the macroeconomic trends identified above under "Overview." For example, as illustrated in the chart below, the U.S. onshore well services market has seen increased activity in recent years that largely coincides with increased drilling and completion spending by U.S. onshore E&P companies.
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Source: Spears Drilling & Production Outlook, March 2017; Spears Well Servicing: Market Evaluation to 2021, March 2017; and Spears Well Servicing: Market Evaluation Excerpts, December 2016.
In addition to such macroeconomic trends, however, our Well Services and Processing Solutions segments are impacted by a number of specific secular industry and market trends, as set forth in greater detail below.
Well Services
Historically, the market for well services in the United States has been driven by well maintenance and workover operations on conventional wells, the majority of which are vertical. However, Coras estimates that more than 100,000 new horizontal shale wells have been brought online over the last decade, driven by a structural shift towards unconventional oil and natural gas development. Further, according to Spears, a total of approximately 90,700 horizontal wells are expected to be drilled in the United States from 2017 to 2021.
Demand for our high-spec well service rigs and associated services is driven largely by the complexity of horizontal well completion and production operations, which has increased in recent years for a significant number of E&P companies, including many of our customers. Specifically, we believe that the following fundamental trends will continue to benefit us:
In the near to medium-term, we expect that the relatively large current inventory of DUC wells across major U.S. shale plays will provide an incremental demand catalyst for our completion-oriented
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well services. According to the U.S. Energy Information Administration, the number of DUC wells in the major U.S. shale plays increased from 3,687 in December 2013 to 5,900 in May 2017. Completion of DUC wells should provide an incremental demand driver until the overall level of the DUC inventory decreases to normalized levels, which Spears estimates as 1,500 to 2,500 DUC wells.
Going forward, we expect that unconventional, long-lateral horizontal wells will drive the demand for our high-spec well service rigs for both the completion of new wells and for maintenance and workover operations to sustain production on the growing inventory of horizontal unconventional wells. According to data from the Energy Information Administration and Drillinginfo, the contribution of horizontal wells to total onshore U.S. crude oil production has increased rapidly over the last five years, representing approximately 66% of such production from the lower 48 states in 2016 as compared to approximately 39% in 2012. Further, the contribution to total onshore U.S. crude oil production of horizontal wells completed more than three years ago, which are typically the most likely to require workover and maintenance services, represented approximately 16% of such production in the lower 48 states in 2016, or approximately four times greater than that in 2012. Furthermore, the majority of wells being completed today are horizontal and are expected to require workover and well maintenance to sustain production as they age.
Onshore L-48 U.S. Crude Oil Production
Source: EIA and Drillinginfo.
Due to the fundamental trends identified above, we expect that the growth in demand for our high-spec well service rigs and related services will significantly outpace the growth in drilling rig count in the U.S. oil and natural gas industry.
We believe that the shift by U.S. E&P operators in recent years towards horizontal wells to develop unconventional oil and natural gas resources has resulted in a structural shift favoring high-spec well service rigs over existing low-spec well service rigs. For example, as illustrated in the chart below, the relative demand for high-spec workover rigs has increased significantly in recent years, with the majority of estimated workover rig demand for 2016 attributable to high-spec rigs.
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Estimated Workover Rig Demand by Specificiation
Source: Coras industry report.
Considering the market dynamics described above, we believe pricing for our services will be further enhanced as a result of the following supply factors:
According to Coras, the vast majority of total available (including active, idle and stacked) well service rigs in the United States remain poorly suited for unconventional, long-lateral horizontal well applications. Coras classifies well service rigs with capacities of 450 HP or more and mast heights of 102 feet or higher as high-spec well service rigs that are ideally suited to service unconventional, long-lateral horizontal wells. Coras reports that the U.S. oil and natural gas industry is expected to require 1,000 to 1,500 of such ideally suited high-spec well service rigs over the next three years, as compared to an estimated total industry fleet of 770 as of February 28, 2017.
Moreover, alternative techniques for well completion, such as the deployment of coiled tubing units for drill-out operations, have increasingly become less common as wellbore lateral lengths have continued to increase beyond the point where coiled tubing can reliably be deployed for well completion. Based on discussions with our E&P customers, we believe that coiled tubing units generally begin to decrease in effectiveness at lateral lengths in excess of 8,000 feet. Spears estimates that in 2016, wells with lateral lengths in excess of 8,000 feet accounted for approximately 98% of the horizontal wells drilled in the Bakken Shale, approximately 50% of the horizontal wells drilled in the Permian Basin and approximately 42% of the horizontal wells drilled in the Rocky Mountains region, including the Denver-Julesburg Basin. Increased lateral lengths in these and other basins are generally prompting operators to shift from using coiled tubing units to more reliable high-spec well service rigs. For example, according to Qittitut, approximately 45% of horizontal well completion drill-outs in 2016 were completed with well service rigs, as compared to approximately 25% in 2012.
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Further, we believe that the U.S. well service market has recently become, and currently remains, very fragmented. A number of the large well service companies have high levels of total debt or have recently emerged from bankruptcy during which they significantly reduced their capital and maintenance expenditures in favor of restructuring operations to fulfill credit obligations. We believe that smaller well service providers, on the other hand, are often unable to satisfactorily meet the expectations of E&P companies due to a combination of low-spec well service rig fleets, inconsistent service quality and health, safety and environmental concerns. In addition, the number of companies capable of manufacturing high-spec well services rigs is limited, with each new-build rig requiring approximately three months for fabrication and delivery. Accordingly, we believe that we hold key competitive advantages required to benefit from the expected demand and supply trends favoring high-spec well service rigs and associated services.
Processing Solutions
E&P companies have increasingly focused on exploiting unconventional resource plays in the onshore United States, many of which had no significant oil or natural gas production until unconventional horizontal drilling and completion technologies were developed over the course of the last decade. In many unconventional resource plays, the number of new wells coming online, and the associated increase in demand for equipment and services capable of processing, transporting and storing oil, natural gas and NGLs, has outpaced the expansion of traditional, permanent midstream infrastructure.
Consequently, there has been increased demand for interim processing equipment and services required to provide "first mile" solutions to link production to various midstream markets as well as to provide fuel at the wellsite. Furthermore, unconventional resource development has also resulted in an increase in regulations aimed at limiting hazardous emissions from flaring at the wellsite. According to research published in December 2015, the National Oceanic and Atmospheric Administration estimates that total flared gas volumes have represented a meaningful portion of total natural gas production in recent years, as evidenced by estimated volumes of approximately 143 billion cubic meters in 2012, or approximately 3.5% of global natural gas production during that time. Accordingly, the demand for processing solutions, which enable customers to meet pipeline specifications, extract higher value NGLs, provide fuel gas for wellsites and facilities and reduce emissions at the flare tip, has increased. In addition, we believe there is a limited supply of modular processing equipment capable of operating in harsh environments common to remote unconventional production sites. Furthermore, we believe that the majority of these providers offer limited field services to support equipment following initial deployment. As a result, we expect these supply trends to further benefit our processing solutions segment in the future.
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MANAGEMENT
Directors and Executive Officers
Set forth below are the name, age, position and description of the business experience of our executive officers and directors.
Directors and Executive Officers
Set forth below are the name, age, position and description of the business experience of our executive officers and directors.
Name
|
Age | Position with Ranger Inc. | ||
---|---|---|---|---|
Darron M. Anderson |
48 | President, Chief Executive Officer and Director | ||
Robert S. Shaw Jr. |
54 | Chief Financial Officer | ||
J. Matt Hooker |
54 | Chief Operating Officer | ||
Lance Perryman |
51 | Executive Vice PresidentProcessing Solutions | ||
Merrill A. "Pete" Miller |
66 | Chairman of the Board | ||
Brett Agee |
43 | Director | ||
Richard Agee |
74 | Director | ||
William M. Austin |
71 | Director | ||
Charles S. Leykum |
39 | Director | ||
Vivek Raj |
33 | Director | ||
Krishna Shivram |
54 | Director |
Darron M. AndersonPresident, Chief Executive Officer and Director. Darron M. Anderson has served as our President and Chief Executive Officer and as a member of our board of directors since March 2017. Mr. Anderson served as President and Chief Executive Officer of Express Energy Services from 2008 to August 2015. Express Energy Services filed for reorganization under Chapter 11 of the United States Bankruptcy Code in October 2009, from which it emerged in December 2009. Subsequent to his time as President and Chief Executive Officer of Express Energy Services, Mr. Anderson evaluated potential opportunities from September 2015 to March 2016, and consulted for Littlejohn & Co., LLC from April 2016 to February 2017, and for CSL during February 2017, prior to joining us in March 2017. Mr. Anderson began his career in the oil and natural gas industry as a Drilling Engineer for Chevron USA in 1991 and has subsequently held positions of increasing responsibility in the oil and natural gas and oilfield services industries. Mr. Anderson holds a Bachelor of Science in Petroleum Engineering from the University of Texas at Austin. We believe that Mr. Anderson's leadership, management experience and experience with oilfield services companies bring valuable experience to our board of directors.
Robert S. Shaw Jr.Chief Financial Officer. Robert S. Shaw Jr. has served as our Chief Financial Officer since April 2017. Mr. Shaw served as Chief Financial Officer of Enerkem Inc. from August 2015 to December 2016, subsequent to which he evaluated potential opportunities prior to joining us in April 2017. From June to July 2015, he worked as a consultant for Enerkem Inc. Mr. Shaw served as Chief Financial Officer of Southwest Oilfield Products from January 2013 to May 2015. From February 2012 to December 2012, he pursued personal interests. Previously, Mr. Shaw worked at Transocean Ltd., where he held various positions, including Vice President, Treasurer, Vice President, Controller and Principal Accounting Officer. Prior to joining Transocean Ltd., Mr. Shaw served at Air Liquide SA as Head of Corporate Finance and Treasury as well as Head of Investor Relations. Earlier in his career, Rob held senior level financial positions at Alstom SA, The Walt Disney Company and EuroDisney. Mr. Shaw has a Master of Business Administration from the Wharton School, University of Pennsylvania and a Bachelor of Arts from Northwestern University.
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J. Matt Hooker. J. Matt Hooker has served as our Chief Operating Officer since May 2017. Mr. Hooker served as the Senior Vice President of Business Development of Express Energy Services from July 2015 until January 2017, and Senior Vice President of Drilling Services from January 2012 to July 2015. Mr. Hooker evaluated potential opportunities from January 2017 until joining us in May 2017. Previously, Mr. Hooker worked at Latshaw Drilling as Vice President of Operations. Prior to that, he served as the North American Regional/Country Manager for Saxon Drilling LP. Mr. Hooker began his career at Nabors Well Services LTD, where he held various positions culminating as Vice President of US Operations.
Lance PerrymanExecutive Vice PresidentProcessing Solutions. Lance Perryman has served as our Executive Vice PresidentProcessing Solutions since March 2017, and as the President and Chief Executive Officer of Torrent Services since July 2012. Prior to founding Torrent Services, Mr. Perryman served as the Vice President of Sales and Marketing for Zephyr Gas Services, LLC from August 2007 to March 2011, subsequent to which he evaluated potential opportunities prior to forming Torrent. Mr. Perryman has 28 years of broad leadership experience within the oilfield services sector, and a long and successful tenure in the oil and natural gas industry.
Merrill A. "Pete" Miller, Jr.Chairman of the Board. Pete Miller has served as the chairman of our board of directors since March 2017. Mr. Miller has been the executive chairman of NOW Inc. (NYSE: DNOW), a spinoff of the distribution business of NOV (NYSE: NOV), and supplier of oilfield services and equipment to the oil and gas industry, since 2014. Prior to assuming this role, Mr. Miller served as president and chief executive officer of NOV from 2001 to 2014, and as chairman of the board of directors from 2002 to 2014. Mr. Miller's work history includes broad experience in the oil service and drilling contractor industries including 15 years at Helmerich & Payne, where he held various positions culminating as vice president, US operations. Mr. Miller has served as a director of Chesapeake Energy Corporation (NYSE: CHK) since 2007, chairman of Transocean Ltd. (NYSE: RIG) since 2015, and was vice chairman of Transocean from 2014 to 2015. Mr. Miller also serves on the board of directors of the Offshore Energy Center, Petroleum Equipment Suppliers Association and Spindletop International, and is a member of the National Petroleum Council. He graduated from the United States Military Academy, West Point, New York in 1972 and, upon graduation, served five years in the United States Army. Mr. Miller received a Master of Business Administration from Harvard Business School in 1980. We believe Mr. Miller's more than 30 years of management and executive experience in the energy industry and service in multiple leadership positions for NOV, Chesapeake, NOW, Transocean and other companies qualifies him to serve on our board of directors.
Brett AgeeDirector. Brett Agee has served as a member of our board of directors since February 2017, as the President and Chief Executive Officer of Bayou Holdings since June 2011 and as the Chief Executive Officer of Ranger Services from October 2016 to February 2017. Prior to joining us, Mr. Agee served as the Chief Executive Officer of Bayou Well Services, LLC from its founding in 2009 until our acquisition thereof in October 2016. Mr. Agee holds a Bachelor of Science in Geography from Texas A&M University's College of Geosciences. Mr. Agee is the son of Richard Agee, a member of our board of directors. We believe that Mr. Agee's extensive experience in the energy industry and with Bayou, as well as his substantial business, leadership and management experience, brings important and valuable skills to our board of directors. Pursuant to the stockholders' agreement we intend to enter into in connection with the consummation of this offering, Mr. Agee will have certain rights, which will be subject to certain exceptions, to remain a member of our board of directors for so long as CSL beneficially owns at least 50% of our common stock. See "Certain Relationships and Related Party TransactionsStockholders' Agreement."
Richard AgeeDirector. Richard Agee has served as a member of our board of directors since March 2017. Mr. Agee founded Wapiti Energy, LLC, a privately held oil and natural gas company focused on strategic exploration throughout the United States, in 2000, and has served as the Chairman of its board of directors since its founding in 2000, and served as the Chairman of the board of
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directors of Bayou until our acquisition thereof in October 2016. Mr. Agee holds both Bachelor of Science and Master of Science degrees in Petroleum Engineering from the University of Wyoming. Mr. Agee was also a Sloan Fellow at the Massachusetts Institute of Technology, from which he received his Master of Science. Mr. Agee is the father of Brett Agee, a member of our board of directors. We believe that Mr. Agee's extensive experience serving as an officer and director for several energy companies brings important and valuable skills to our board of directors. Pursuant to the stockholders' agreement we intend to enter into in connection with the consummation of this offering, Mr. Agee will have certain rights, which will be subject to certain exceptions, to remain a member of our board of directors for so long as CSL beneficially owns at least 50% of our common stock. See "Certain Relationships and Related Party TransactionsStockholders' Agreement."
William M. AustinDirector. William M. Austin has served as a member of our board of directors since May 2017, as a member of Torrent Services' board of directors since May 2015 and as a member of Ranger Services' board of directors from its founding in 2014 until October 2016, subsequent to which he served as an advisor to Ranger Services' board of directors until May 2017. Mr. Austin has served as President and consultant with Austin Lee Ventures LTD, a Houston, Texas-based investment company, since April 2010, and currently serves as a member of the board of directors of Nuverra Environmental Solutions, Inc. (OTCQB: NESC). He is a former member of the board of directors of Express Energy LLP, a Houston, Texas-based oilfield services company, which was sold in November 2014. Mr. Austin served as Executive Vice President and Chief Financial Officer of Exterran Holdings from December 2011 until April 2014, and he also served as Senior Vice President and Director of Exterran GP, LLC from April 2012 until April 2014. Mr. Austin holds a Bachelor of Science degree in electrical engineering from Brown University, a Master of Science degree from Stevens Institute of Technology and a Master of Business Administration from Columbia University. We believe that Mr. Austin's over 35 years of experience across varying industries and history of board service bring important and valuable skills to our board of directors.
Charles S. LeykumDirector. Charles S. Leykum has served as a member of our board of directors since March 2017 and as a member of Ranger Services' board of directors since its founding in 2014. Mr. Leykum founded CSL, an energy services-focused private equity firm in 2008. Prior to founding CSL, Mr. Leykum was a Portfolio Manager at Soros Fund Management LLC. Before his time at Soros, he worked in the Principal Investment Area and the Investment Banking Division of Goldman, Sachs & Co. Mr. Leykum graduated with a Bachelor of Arts in Economics from Columbia University and a Master of Business Administration from Harvard Business School. We believe that Mr. Leykum's extensive experience investing in the energy industry and serving as a director for several energy companies brings important and valuable skills to our board of directors.
Vivek RajDirector. Vivek Raj has served as a member of our board of directors since March 2017 and as a member of Ranger Services' board of directors since its founding in 2014. Mr. Raj is a Managing Director at CSL and has been working there since 2011. Prior to that, Mr. Raj worked in various engineering positions at Schlumberger Ltd. Mr. Raj also served as a Director of Niko Resources Ltd. from September 2014 to March 2016. Mr. Raj holds a Bachelor of Technology from the Indian Institute of Technology and a Master of Business Administration from Harvard Business School. We believe that Mr. Raj's extensive experience investing in the energy industry and serving as a director for several energy companies brings important and valuable skills to our board of directors.
Krishna ShivramDirector. Krishna Shivram has served as a member of our board of directors since May 2017. Mr. Shivram served as the Executive Vice President and Chief Financial Officer of Weatherford International plc from November 2013 to November 2016, and as interim Chief Executive Officer of Weatherford International plc from November 2016 to March 2017, subsequent to which he evaluated potential opportunities prior to joining us. Immediately prior to joining Weatherford, Mr. Shivram served as Vice President and Treasurer of Schlumberger Ltd. since January 2011. Prior to his serving as Vice President and Treasurer, Mr. Shivram held a number of senior management
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positions at Schlumberger, including ControllerDrilling Group from May 2010 to January 2011, ManagerMergers and Acquisitions from May 2009 to April 2010 and ControllerOilfield Services from August 2006 to April 2009. Mr. Shivram is a Chartered Accountant and we believe that his experience in financial accounting, income taxes and treasury operations, along with a strong background in corporate finance and mergers and acquisitions, bring important and valuable skills to our board of directors.
Status as a Controlled Company
Because CSL, through its interests in the Existing Owners, CSL Opportunities II and CSL Holdings II will initially hold approximately 59.7% of the voting power of our capital stock following the completion of this offering, we expect to be a controlled company as of the completion of the offering under Sarbanes-Oxley and NYSE corporate governance standards. A controlled company does not need its board of directors to have a majority of independent directors or to form independent compensation and nominating and governance committees. As a controlled company, we will remain subject to rules of Sarbanes-Oxley and the NYSE that require us to have an audit committee composed entirely of independent directors. Under these rules, we must have at least one independent director on our audit committee by the date our Class A common stock is listed on the NYSE, at least two independent directors on our audit committee within 90 days of the listing date, and at least three independent directors on our audit committee within one year of the listing date.
If at any time we cease to be a controlled company, we will take all action necessary to comply with Sarbanes-Oxley and NYSE corporate governance standards, including by appointing a majority of independent directors to our board of directors and ensuring we have a compensation committee and a nominating and corporate governance committee, each composed entirely of independent directors, subject to a permitted "phase-in" period.
Initially, our board of directors will consist of a single class of directors each serving one-year terms. After CSL and its affiliates no longer collectively hold more than 50% of the voting power of our common stock, our board of directors will be divided into three classes of directors, with each class as equal in number as possible, serving staggered three-year terms, and such directors will be removable only for "cause."
Composition of Our Board of Directors
Our board of directors currently consists of eight members. In evaluating director candidates, we will assess whether a candidate possesses the integrity, judgment, knowledge, experience, skills and expertise that are likely to enhance the board's ability to manage and direct our affairs and business, including, when applicable, to enhance the ability of committees of the board to fulfill their duties.
Further, in connection with the consummation of this offering, we will enter into a stockholders' agreement with the Existing Owners and the Bridge Loan Lenders. Among other things, the stockholders' agreement is expected to provide CSL and Bayou Holdings with the right to designate a certain number of nominees to our board of directors for so long as CSL beneficially owns at least 10% of our common stock (or, in the case of Bayou Holdings, for so long as CSL beneficially owns at least 50% of our common stock). See "Certain Relationships and Related Party TransactionsStockholders' Agreement."
The board of directors is in the process of reviewing the independence of our directors using the independence standards of the NYSE and the SEC. Currently, we anticipate that our board of directors will determine that Messrs. Miller, Austin and Shivram are independent within the meaning of NYSE listing standards currently in effect and within the meaning of 10A-3 of the Exchange Act.
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Committees of the Board of Directors
Audit Committee
We will establish an audit committee prior to the completion of this offering. Rules implemented by the NYSE and the SEC require us to have an audit committee comprised of at least three directors who meet the independence and experience standards established by the NYSE and the Exchange Act, subject to transitional relief during the one-year period following the completion of this offering. Our audit committee will initially consist of Messrs. Miller, Austin and Shivram, who are independent under the rules of the SEC. As required by the rules of the SEC and listing standards of the NYSE, the audit committee will consist solely of independent directors. SEC rules also require that a public company disclose whether or not its audit committee has an "audit committee financial expert" as a member. An "audit committee financial expert" is defined as a person who, based on his or her expertise, possesses the attributes outlined in such rules. We anticipate that each of Messrs. Miller, Austin and Shivram will satisfy the definition of "audit committee financial expert."
This committee will oversee, review, act on and report on various auditing and accounting matters to our board of directors, including: the selection of our independent accountants, the scope of our annual audits, fees to be paid to the independent accountants, the performance of our independent accountants and our accounting practices. In addition, the audit committee will oversee our compliance programs relating to legal and regulatory requirements. We expect to adopt an audit committee charter defining the committee's primary duties in a manner consistent with the rules of the SEC and the NYSE or market standards.
Compensation Committee
Because we will be a "controlled company" as of the closing of this offering within the meaning of NYSE corporate governance standards, we will not be required to, and do not currently expect to, have a compensation committee as of the closing of this offering.
If and when we are no longer a "controlled company" within the meaning of NYSE corporate governance standards, we will be required to establish a compensation committee. We anticipate that such a compensation committee would consist of three directors who will be "independent" under the rules of the SEC and the NYSE. This committee would establish salaries, incentives and other forms of compensation for officers and other employees. Any compensation committee would also administer our incentive compensation and benefit plans. Upon formation of a compensation committee, we would expect to adopt a compensation committee charter defining the committee's primary duties in a manner consistent with the rules of the SEC and the NYSE or market standards.
Nominating and Corporate Governance Committee
Because we will be a "controlled company" as of the closing of this offering within the meaning of NYSE corporate governance standards, we will not be required to, and do not currently expect to, have a nominating and corporate governance committee.
If and when we are no longer a "controlled company" within the meaning of NYSE corporate governance standards, we will be required to establish a nominating and corporate governance committee. We anticipate that such a nominating and corporate governance committee would consist of three directors who will be "independent" under the rules of the SEC and the NYSE. This committee would identify, evaluate and recommend qualified nominees to serve on our board of directors, develop and oversee our internal corporate governance processes and maintain a management succession plan. Upon formation of a nominating and corporate governance committee, we would expect to adopt a nominating and corporate governance committee charter defining the committee's primary duties in a manner consistent with the rules of the SEC and the NYSE or market standards.
Prior to the completion of this offering, our board of directors will adopt a code of conduct applicable to our employees, directors and officers, in accordance with applicable U.S. federal securities laws and the corporate governance rules of the NYSE. Any waiver of this code may be made only by our board of directors and will be promptly disclosed as required by applicable U.S. federal securities laws and the corporate governance rules of the NYSE.
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EXECUTIVE COMPENSATION
Ranger Energy Services, Inc., the issuer of Class A common stock in this offering, was incorporated in February 2017 and did not accrue, pay or otherwise incur any liability with respect to compensation for any employees prior to such incorporation. Accordingly, the determination of who qualifies as a named executive officer, and the compensation information described below, is based on the compensation earned or paid to employees for services provided to Ranger Services and Torrent Services, the Predecessor Companies. The compensation disclosures below include the information required to be disclosed by emerging growth companies.
In accordance with the foregoing, our named executive officers are:
Name
|
Current Principal Position (Principal Position for 2016) | |
---|---|---|
Brett Agee | Director (Former Chief Executive Officer of Ranger Services) | |
Scott A. Milliren | Former Chief Executive Officer of Ranger Services | |
Lance Perryman | Executive Vice PresidentProcessing Solutions (Former Chief Executive Officer of Torrent Services) | |
Dennis Douglas | Former Chief Operating Officer of Ranger Services | |
Jason Podraza | Former Chief Financial Officer of Ranger Services |
Mr. Agee served as the Chief Executive Officer of Ranger Services from October 2016 to February 2017 and began serving as a member of our board of directors in February 2017. Mr. Milliren served as the Chief Executive Officer of Ranger Services from August 2014 to October 2016 and served as a member of our board of directors during March 2017. Mr. Perryman served as the President and Chief Executive Officer of Torrent Services from July 2012 to March 2017 and began serving as our Executive Vice PresidentProcessing Solutions in March 2017. Mr. Douglas served as the Chief Operating Officer of Ranger Services from October 2016 to April 2017. Mr. Podraza served as the Chief Financial Officer of Ranger Services from October 2016 to April 2017.
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2016 Summary Compensation Table
The following table summarizes, with respect to our named executive officers, information relating to compensation earned for services rendered in all capacities during the fiscal year ended December 31, 2016.
Name and Principal Position
|
Year |
Salary
($)(1) |
Bonus
($)(2) |
Option
Awards ($)(3) |
All Other
Compensation ($)(4) |
Total
($) |
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Brett Agee |
2016 | $ | 115,903 | | | $ | 5,023 | $ | 120,926 | ||||||||||
(Former Chief Executive Officer of |
|||||||||||||||||||
Ranger Services) |
|||||||||||||||||||
Scott A. Milliren |
2016 |
$ |
199,424 |
$ |
80,000 |
$ |
551,338 |
$ |
17,100 |
$ |
847,862 |
||||||||
(Former Chief Executive Officer of |
|||||||||||||||||||
Ranger Services) |
|||||||||||||||||||
Lance Perryman |
2016 |
$ |
168,392 |
|
|
$ |
26,873 |
$ |
195,265 |
||||||||||
(Executive Vice PresidentProcessing Solutions) |
|||||||||||||||||||
Dennis Douglas |
2016 |
$ |
155,770 |
$ |
30,000 |
$ |
639,034 |
$ |
6,500 |
$ |
831,304 |
||||||||
(Former Chief Operating Officer) |
|||||||||||||||||||
Jason Podraza |
2016 |
$ |
63,903 |
|
$ |
256,877 |
$ |
3,196 |
$ |
323,976 |
|||||||||
(Former Chief Financial Officer) |
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Outstanding Equity Awards at 2016 Fiscal Year-End
The following table reflects information regarding outstanding incentive units held by our named executive officers as of December 31, 2016.
Option Awards(1) | |||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name (a)
|
Number of
Securities Underlying Unexercised Options (#) Exercisable(2) |
Number of
Securities Underlying Unexercised Options (#) Unexercisable(2) |
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)(3) |
Option
Exercise Price ($) |
Option
Expiration Date |
||||||||
Brett Agee |
| | | | | ||||||||
Scott A. Milliren |
|||||||||||||
Class C Restricted Units |
27,500 | 55,000 | 27,500 | N/A | N/A | ||||||||
Class D Restricted Units |
25,000 | 50,000 | 25,000 | N/A | N/A | ||||||||
Lance Perryman(4) |
|||||||||||||
Class B Restricted Units |
139,500 | 139,500 | 93,000 | N/A | N/A | ||||||||
Class C-1 Restricted Units |
1,000 | | | N/A | N/A | ||||||||
Dennis Douglas |
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Class C Restricted Units |
| 100,000 | 33,000 | N/A | N/A | ||||||||
Class D Restricted Units |
| 75,000 | 25,000 | N/A | N/A | ||||||||
Jason Podraza |
|||||||||||||
Class C Restricted Units |
12,500 | 25,000 | 12,500 | N/A | N/A | ||||||||
Class D Restricted Units |
12,500 | 25,000 | 12,500 | N/A | N/A |
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Additional Narrative Disclosures
Base Salary
Each named executive officer's base salary is a fixed component of compensation that does not vary depending on the level of performance achieved. Base salaries are determined for each named executive officer based on his or her position and responsibility. Our board of directors reviews the base salaries for each named executive officer annually as well as at the time of any promotion or significant change in job responsibilities and, in connection with each review, our board of directors considers individual and company performance over the course of the applicable year. Pursuant to the employment agreement we maintain with Mr. Perryman, his base salary may be increased but not decreased without his written consent. Pursuant to the employment agreement we maintain with Mr. Douglas, his base salary may be increased but not decreased. Pursuant to the employment agreement we maintain with Mr. Podraza, his base salary may be increased but generally not decreased except for a decrease that does not exceed more than 10% of his base salary if (1) the same reduction applies to all similarly situated employees and (2) our board of directors determines that such reduction is necessary to avoid violating one or more financial covenants in our loan agreements or similar financing arrangements.
Cash Bonuses
We do not maintain a formal bonus program for our named executive officers. However, our named executive officers have historically been eligible to receive discretionary bonuses, based in part upon pre-established performance criteria, to recognize their significant contributions and aid in our retention efforts. Our board of directors determines whether each named executive officer is eligible to receive a cash bonus for a given year and sets the amount of such cash bonus.
Going forward, our board of directors (or a committee thereof) will determine each named executive officer's eligibility for an annual cash bonus (whether discretionary or pursuant to a bonus plan we later implement), and the amount of such bonus (if any).
Incentive Units
Set forth below is a discussion of the Ranger Holdings Incentive Units and the Torrent Holdings Incentive Units. As described in more detail below, in connection with the corporate reorganization described in this prospectus, we expect that certain of the Ranger Holdings Incentive Units and Torrent
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Holdings Incentive Units will be redeemed for substantially similar incentive units in Ranger Holdings II and Torrent Holdings II, respectively, which will be subject to the same tiered distribution thresholds, vesting conditions and forfeiture and repurchase terms as the corresponding Ranger Holdings Incentive Units and Torrent Holdings Incentive Units.
Ranger Holdings Incentive Units
Certain executive officers of Ranger Services, including Messrs. Milliren, Douglas and Podraza, previously received Ranger Holdings Incentive Units granted pursuant to the Ranger Holdings LLC Agreement. The Ranger Holdings Incentive Units are intended to constitute "profits interests" and represent actual (non-voting) equity interests that have no liquidation value for U.S. federal income tax purposes on the date of grant but are designed to gain value only after the underlying assets realize a certain level of growth and return to those persons who hold certain other classes of equity. The Ranger Holdings Incentive Units are divided into two classes, Class C and Class D units, and each class has a separate distribution threshold. A potential payout for each class will occur when a specified level of cumulative cash distributions is received by the members holding capital interests in Ranger Holdings. 75% of the Class C and Class D units granted to the named executive officers are subject to time-based vesting while 25% of the Class C and Class D units are subject to event-based vesting. The Class C and Class D units subject to time-based vesting are subject to the following vesting schedule: (i) for Messrs. Milliren and Podraza, such Class C and Class D units vest in three equal installments on December 31, 2016, October 1, 2017 and June 30, 2018 and (ii) for Mr. Douglas, such Class C and Class D units vest in three equal annual installments on October 3, 2017, October 3, 2018 and October 3, 2019, in each case, subject to the named executive officer remaining continuously employed through the applicable vesting date. The Class C and Class D units subject to event-based vesting vest upon the occurrence of a "Change of Control". Further, upon such Change of Control, the Class C and Class D units subject to event-based vesting may be converted to cash (or other applicable consideration received in connection with the Change of Control) if the holders of such Class C and Class D units are entitled to receive cash (or such other consideration) in connection with such Change of Control. In addition, the Class C and Class D units subject to time-based vesting will fully vest immediately prior to the occurrence of a Change of Control or an "Initial Public Offering". Generally, any unvested Class C or Class D units will be forfeited for no consideration in the event of a resignation by the named executive officer without "Good Reason" or a termination of employment for "Cause" or in the event of the named executive officer's bankruptcy. In the event of a termination of employment, Ranger Holdings has the right to purchase Class C and Class D units (whether vested or not) for (a) in the case of a resignation by the named executive officer without Good Reason or a termination of employment for Cause, the lesser of $100 and the fair market value of the Class C or Class D units or (b) in the case of any other termination, the fair market value of the Class C or Class D units.
The Class C units and the Class D units will generally be entitled to 15% and 5% of future distributions, respectively, to members of Ranger Holdings only after all of the members that have made capital contributions to Ranger Holdings shall have received cumulative distributions in respect of their membership interests equal to their cumulative capital contributions plus additional cumulative distributions equal to a return on equity investment computed like interest at the rate per fiscal year equal to 8% cumulative and compounded annually, accruing beginning on the effective date of the Ranger Holdings LLC Agreement, on the unpaid sum of such members' capital return account; provided that, notwithstanding the foregoing, no distributions will be made with respect to the Class D units until all of the members of Ranger Holdings that have made capital contributions to Ranger Holdings have also received additional cumulative distributions in respect of their membership interests equal to two times their cumulative capital contributions.
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A "Change of Control" is generally defined in an applicable award agreement as (i) the date any one person or group (excluding CSL and its affiliates) acquires ownership of securities of Ranger Holdings representing more than 50% of the total voting power of the outstanding voting securities of Ranger Holdings, (ii) any consolidation or merger involving Ranger Holdings in which the members of Ranger Holdings immediately prior to such consolidation or merger do not beneficially own securities representing more than 50% of the total voting power of the outstanding voting securities of the surviving or continuing entity or (iii) any sale, lease, exchange or other transfer of all, or substantially all, of the assets of Ranger Holdings.
An "Initial Public Offering" is generally defined in the Ranger Holdings LLC Agreement as the initial underwritten public offering of the securities of Ranger Holdings or other common equity securities pursuant to a registration statement on Form S-1 under the Securities Act.
A termination for "Cause" is generally defined in an applicable award agreement to occur upon a named executive officer's (i) commission of an act of fraud, dishonesty or disloyalty that could adversely affect or seriously prejudice Ranger Holdings or its affiliates, (ii) refusal or failure to follow lawful instructions of the board of managers of Ranger Holdings, (iii) breach of fiduciary duty or duty of loyalty, (iv) acceptance of work with another employer or business, (v) habitual drug or alcohol abuse, (vi) material breach or violation of the named executive officer's employment agreement, the Ranger Holdings LLC Agreement or the award agreement, (vii) material breach or violation of any lawful policy, rule, regulation or directive, (viii) conviction of any felony or conviction of any crime involving moral turpitude, (ix) violation of federal or state securities laws or (x) commission of an act of attempting to secure personal profit or benefit not fully disclosed to and approved by the board of managers of Ranger Holdings in connection with any transaction entered into on behalf of Ranger Holdings or its affiliates.
A resignation for "Good Reason" is generally defined in an applicable award agreement to occur upon the material diminution of a named executive officer's job duties and responsibilities without the named executive officer's express written consent.
We do not expect that our corporate reorganization or this offering will result in a Change in Control or an Initial Public Offering with respect to the Ranger Holdings Incentive Units. As of the date of this filing, no class of the Ranger Holdings Incentive Units has received a payout. In connection with the corporate reorganization and this offering, Ranger Holdings will take action pursuant to the Ranger Holdings LLC Agreement to exchange certain of the Ranger Holdings Incentive Units held by Messrs. Milliren, Douglas and Podraza for substantially similar incentive units in Ranger Holdings II (the "Ranger Holdings II Incentive Units"), which will be subject to the same tiered distribution thresholds, vesting conditions and forfeiture and repurchase terms as the Ranger Holdings Incentive Units. As a result, following the corporate reorganization and this offering, Ranger Holdings II will be responsible for making all payments, distributions and settlements to all award recipients relating to the Ranger Holdings II Incentive Units as the Ranger Holdings II Incentive Units will be equity interests in Ranger Holdings II granted under the limited liability company agreement of Ranger Holdings II. Because we will not be a party to the limited liability company agreement of Ranger Holdings II, we cannot be certain that the terms of the Ranger Holdings II Incentive Units, as applicable, will remain the same in the future.
Torrent Holdings Incentive Units
Certain executive officers of Torrent Services, including Mr. Perryman, previously received Torrent Holdings Incentive Units granted pursuant to the Torrent Holdings LLC Agreement. The Torrent Holdings Incentive Units are intended to constitute "profits interests" and represent actual (non-voting) equity interests that have no liquidation value for U.S. federal income tax purposes on the date of grant but are designed to gain value only after the underlying assets realize a certain level of growth
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and return to those persons who hold certain other classes of equity. The Torrent Holdings Incentive Units are divided into three classes, Class B, Class C-1 and Class C-2 units, and each class has a separate distribution threshold. A potential payout for each class will occur when a specified level of cumulative cash distributions is received by the members holding capital interests in Torrent Holdings. Mr. Perryman currently holds Class B and Class C-1 units. 75% of the Class B units granted to Mr. Perryman are subject to time-based vesting while 25% of the Class B units are subject to event-based vesting. The Class B units subject to time-based vesting vested as to one-third of the award on September 16, 2015 and one-third of the award on September 16, 2016 and will vest as to the final one-third of the award on September 16, 2017, subject to Mr. Perryman remaining continuously employed through such vesting date. The Class B units subject to event-based vesting vest on the date that is six months following the first to occur of a "Drag-Along Transaction" or a "Public Offering", unless the service of Mr. Perryman is terminated without "Cause" or due to "Disability or Mr. Perryman resigns with "Good Reason", in each case, following the occurrence of such event but before the date that is six months thereafter, in which case, such Class B units will vest immediately upon such termination or resignation. In addition, the Class B units subject to time-based vesting will fully vest immediately upon the occurrence of a Drag-Along Transaction. Further, 25% of the Class B units subject to time-based vesting will vest if the service of Mr. Perryman is terminated without Cause or Mr. Perryman resigns with Good Reason. Additionally, under the Torrent Holdings LLC Agreement, (i) if Mr. Perryman's employment is terminated for Cause, all of his Class B units will be forfeited for no consideration and (ii) if Mr. Perryman resigns without Good Reason, one-half of his vested Class B units and all of his unvested Class B units will be forfeited for no consideration. The Class C-1 units were fully vested upon grant and are not subject to forfeiture or repurchase.
The Class B units will generally be entitled to 16% of future distributions to members of Torrent Holdings only after all of the members that have made capital contributions to Torrent Holdings shall have received cumulative distributions in respect of their membership interests equal to their cumulative capital contributions plus additional cumulative distributions that equal a certain predetermined level of return, which varies depending on the class of membership interests held by such members, on their cumulative capital contributions. The Class C-1 units will generally be entitled to 30% of future distributions to members of Torrent Holdings only after all of the members that have made capital contributions to Torrent Holdings shall have received cumulative distributions in respect of their membership interests equal to their cumulative capital contributions plus additional cumulative distributions that equal a certain predetermined level of return, which varies depending on the class of membership interests held by such members, on their cumulative capital contributions and other members of Torrent Holdings that hold incentive units (including the Class B units) have also received a certain predetermined amount of cumulative distributions, which varies depending on the class of incentive units held by such members.
A "Drag-Along Transaction" is generally defined in the Torrent Holdings LLC Agreement as (i) any consolidation, conversion, merger or other business combination involving Torrent Holdings in which all of its securities are exchanged for or converted into cash, securities of a corporation or other business organization or other property, other than a Public Offering, (ii) a sale or transfer of all or substantially all of the assets of Torrent Holdings to be followed promptly by a liquidation of Torrent Holdings or (iii) the transfer of all of the outstanding securities of Torrent Holdings in a single transaction or a series of related transactions.
A "Public Offering" is generally defined in the Torrent Holdings LLC Agreement as the initial sale of common stock or other equity securities of Torrent Holdings or its successor pursuant to an effective registration statement under the Securities Act.
A termination for "Cause" is generally defined in the Torrent Holdings LLC Agreement to occur upon a named executive officer's (i) failure or refusal to perform substantially all material duties, responsibilities and obligations, (ii) failure or refusal to implement, perform or adhere to reasonable
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policies, directives or orders of the board of managers of Torrent Holdings, (iii) commission of an act involving gross misconduct or malfeasance in the performance of duties, (iv) commission of an act involving fraud, misrepresentation, theft, embezzlement, dishonesty or moral turpitude, (v) conviction of a felony or offense involving fraud, (vi) material breach of the Torrent Holdings LLC Agreement, any employment agreement or restrictive covenant agreement or (vii) gross negligence in discharging any material part of the named executive officer's duties.
A resignation for "Good Reason" is generally defined in the Torrent Holdings LLC Agreement to occur upon (i) a material diminution in a named executive officer's base salary, (ii) the relocation of the principal location where a named executive officer is required to perform his or her duties to a location that is more than 25 miles away, (iii) a material reduction in a named executive officer's functions, duties, title or responsibilities or (iv) a material breach by Torrent Holdings of any material provision of the Torrent Holdings LLC Agreement, a named executive officer's employment agreement or the Torrent Holdings Incentive Unit award agreement.
We do not expect that our corporate reorganization or this offering will result in a Drag-Along Transaction or a Public Offering with respect to the Torrent Holdings Incentive Units. As of the date of this filing, no class of Torrent Holdings Incentive Units has received a payout. In connection with the corporate reorganization and this offering, Torrent Holdings will take action pursuant to the Torrent Holdings LLC Agreement to exchange certain of the Torrent Holdings Incentive Units held by Mr. Perryman for substantially similar incentive units in Torrent Holdings II (the "Torrent Holdings II Incentive Units"), which will be subject to the same tiered distribution thresholds, vesting conditions and forfeiture and repurchase terms as the Torrent Holdings Incentive Units. As a result, following the corporate reorganization and this offering, Torrent Holdings II will be responsible for making all payments, distributions and settlements to all award recipients relating to the Torrent Holdings II Incentive Units as the Torrent Holdings II Incentive Units will be equity interests in Torrent Holdings II granted under the limited liability company agreement of Torrent Holdings II. Because we will not be a party to the limited liability company agreement of Torrent Holdings II, we cannot be certain that the terms of the Torrent Holdings II Incentive Units, as applicable, will remain the same in the future.
Other Benefits
Immediately prior to this offering and during fiscal year 2016, we offered participation in broad-based retirement, health and welfare plans to all of our employees. Immediately prior to this offering and during fiscal year 2016, we maintained plans intended to provide benefits under section 401(k) of the Internal Revenue Code of 1986, as amended (the "401(k) Plan"), where employees were allowed to contribute portions of their base compensation into a retirement account in order to encourage all employees, including any participating named executive officers, to save for the future. For the 2016 plan year, we provided an effective matching contribution equal to 100% of between 2% and 4% of an employee's eligible compensation.
We intend to offer participation in broad-based retirement, health and welfare plans to all of our employees. We also intend to maintain a 401(k) Plan, which we anticipate will provide for employer matching contributions and/or employer non-elective contributions.
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Employment, Severance or Change in Control Agreements
Ranger Services previously maintained employment agreements with Messrs. Douglas and Podraza. The employment agreement with Mr. Douglas was terminated, effective as of May 31, 2017, without "Cause." Mr. Podraza voluntarily resigned employment without "Good Reason," effective in July 2017, at which point his employment agreement was terminated. Ranger Services previously maintained employment agreements with Messrs. Agee and Milliren. The employment agreement with Mr. Agee was terminated in connection with his termination of employment without "Cause" in March 2017 and the employment agreement with Mr. Milliren was terminated in connection with his termination of employment without "Cause" in April 2017. Torrent Services has entered into an employment agreement with Mr. Perryman.
Each employment agreement generally provides or previously provided (prior to termination) for a two-or three-year term with automatic renewals for successive one-year periods unless either party elects not to renew. Each employment agreement generally provides or previously provided (prior to termination) for an annualized base salary (as described above under "Additional Narrative DisclosuresBase Salary") and eligibility to participate in all benefit plans and programs of Ranger Services or Torrent Services, as applicable. Each employment agreement also provides or previously provided (prior to termination) for annual cash incentive bonuses (as described above under "Additional Narrative DisclosuresCash Bonuses"). Mr. Perryman's employment agreement provides for subsidized medical, dental and vision insurance premiums, a car allowance and participation in an additional retirement plan that Torrent Services may establish, at its discretion.
Each employment agreement provides or previously provided (prior to termination) for the following benefits upon a named executive officer's termination of employment without "Cause" (as defined in the applicable employment agreement): (i) for Mr. Douglas, continued payment of his base salary for a period of 12 months, (ii) for Mr. Podraza, continued payment of his base salary for a period of six months and (iii) for Mr. Perryman, continued payment of his base salary for a period of nine months plus payment of an amount equal to the pro-rated incentive compensation that would have been earned in the year of his termination had he not been terminated, subject to the discretion of our board of directors. Upon a termination of employment for "Good Reason" (as defined in the applicable employment agreement), Mr. Podraza was and Mr. Perryman is entitled to the same payments due to him upon a termination without Cause, as described in the preceding sentence. If a named executive officer's employment is terminated for any reason other than those described above, no further compensation and benefits will be provided following the termination of the named executive officer's employment. The employment agreements also contain or contained certain restrictive covenants, including provisions that generally prohibit a named executive officer from competing with or soliciting vendors, suppliers, customers or clients of Ranger Services and its affiliates or Torrent Services and its affiliates, as applicable. These restrictions generally apply or applied during the term of the named executive officer's employment and for a period between six months to two years following the termination of such employment.
In connection with his termination of employment without Cause in March 2017, Mr. Agee became entitled to payments equal to 150% of his base salary, or $694,500, for 12 months following the date of termination pursuant to the terms of his employment agreement. The remaining portion of the payments described in the preceding sentence will be paid to Mr. Agee in three equal installments on August 31, 2017, October 31, 2017 and December 31, 2017, which installments may be accelerated if this offering closes prior to December 31, 2017 and achieves gross proceeds in excess of $120 million. In connection with his termination of employment, we also entered into a consulting agreement with Mr. Agee (the "Agee Agreement"), pursuant to which Mr. Agee agreed to provide consulting services to us from his separation date in March 2017 through July 2017 in exchange for a monthly consulting fee equal to his monthly base salary immediately prior to his separation date. In connection with his termination of employment without Cause in March 2017, Mr. Milliren was entitled to continued
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payment of his base salary for a limited period of time that ended in May 2017. In addition, we entered into a letter agreement with Mr. Milliren (the "Milliren Agreement") pursuant to which, subject to his execution of a release of claims in favor of us, Mr. Milliren will receive a one-time bonus in an amount equal to $275,000 (less applicable taxes and other withholdings), paid in a single lump sum cash payment, upon the closing of this offering. Due to his termination of employment without Cause on May 31, 2017, we entered into a separation agreement with Mr. Douglas (the "Douglas Agreement") and Mr. Douglas became entitled to the severance payments described in the preceding paragraph (i.e., continued payment of his base salary for a period of 12 months) pursuant to the terms of his employment agreement and an aggregate amount equal to $136,173, which represents reimbursement by us for reasonable relocation expenses incurred by Mr. Douglas in connection with his initial hire and reasonable legal expenses incurred by Mr. Douglas in connection with his termination of employment, plus, as determined by Ranger Services in its discretion, accelerated vesting of a portion of the unvested Ranger Holdings Incentive Units held by Mr. Douglas as of the date of termination. Upon the effectiveness of his voluntary resignation of employment without Good Reason in July 2017, Mr. Podraza did not, and is not expected to, receive any severance payments pursuant to the terms of his employment agreement or otherwise.
It is currently anticipated that the employment agreement with Mr. Perryman will continue to remain in effect following the completion of this offering. The foregoing descriptions of the employment agreement with Mr. Perryman, the Agee Agreement, the Milliren Agreement and the Douglas Agreement are qualified in their entirety by reference to the applicable agreement and a copy of each agreement has been filed as an exhibit to this registration statement. We do not currently anticipate entering into any new employment, severance or change in control agreements prior to or in connection with this offering. In addition, our named executive officers are not currently entitled to any payments or other benefits in connection with a termination of employment or a change in control, other than with respect to the employment agreements described in the preceding paragraphs and the Incentive Units described above under "Additional Narrative DisclosuresIncentive Units."
IPO Bonuses
We intend to grant certain employees, including Mr. Perryman, a cash bonus in connection with the successful completion of this offering. Subject to each employee's continued employment through the applicable date of payment, (i) one-half of each bonus (or an amount equal to $20,000 with respect to Mr. Perryman) shall be paid in a lump sum cash payment upon the closing of this offering and (ii) one-half of each bonus (or an amount equal to $20,000 with respect to Mr. Perryman) shall be paid in a lump sum cash payment on or as soon as practicable following December 31, 2017, provided that the market value of our Class A common stock as measured on December 31, 2017 shall have increased by at least 5% as compared to the offering price of our Class A common stock in connection with this offering. We expect that the aggregate amount of such cash bonuses will be approximately $1.5 million for all employees.
In recognition of his efforts in helping guide us to this offering, Mr. Podraza received a discretionary cash bonus in an amount equal to $133,000, which was paid in a single lump sum cash payment on May 31, 2017.
2017 Long Term Incentive Plan
In connection with this offering, we intend to adopt an omnibus equity incentive plan, the Ranger Energy Services, Inc. 2017 Long Term Incentive Plan (the "2017 Plan"), for the employees, consultants and the directors of the Company and its affiliates who perform services for us. The following description of the 2017 Plan is based on the form we anticipate adopting, but the 2017 Plan has not yet been adopted and the provisions discussed below remain subject to change. As a result, the following description is qualified in its entirety by reference to the final form of the 2017 Plan once adopted. At
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this time, we have not made any final decisions regarding whether 2017 Plan awards will be granted to any individual in connection with this offering.
The 2017 Plan will provide for potential grants of: (i) incentive stock options qualified as such under U.S. federal income tax laws; (ii) nonstatutory stock options that do not qualify as incentive stock options; (iii) stock appreciation rights; (iv) restricted stock awards; (v) restricted stock units; (vi) bonus stock; (vii) performance awards; (viii) dividend equivalents; (ix) other stock-based awards; (x) cash awards; and (xi) substitute awards.
Eligibility
Our employees, consultants and non-employee directors, and employees, consultants and non-employee directors of our affiliates, will be eligible to receive awards under the 2017 Plan.
Administration
Our board of directors, or a committee thereof (as applicable, the "Administrator"), will administer the 2017 Plan pursuant to its terms and all applicable state, federal or other rules or laws. The Administrator will have the power to determine to whom and when awards will be granted, determine the amount of awards (measured in cash or in shares of our Class A common stock), proscribe and interpret the terms and provisions of each award agreement (the terms of which may vary), accelerate the vesting or exercisability of an award, delegate duties under the 2017 Plan and execute all other responsibilities permitted or required under the 2017 Plan.
Securities to be Offered
Subject to adjustment in the event of any distribution, recapitalization, split, merger, consolidation or similar corporate event, 1,250,000 shares of our Class A common stock will be available for delivery pursuant to awards under the 2017 Plan. If an award under the 2017 Plan is forfeited, settled for cash or expires without the actual delivery of shares, any shares subject to such award will again be available for new awards under the 2017 Plan.
Types of Awards
Options We may grant options to eligible persons including: (i) incentive stock options (only to our employees or those of our subsidiaries) which comply with section 422 of the Code; and (ii) nonstatutory stock options. The exercise price of each option granted under the 2017 Plan will be stated in the option agreement and may vary; however, the exercise price for an option must not be less than the fair market value per share of Class A common stock as of the date of grant (or 110% of the fair market value for certain incentive stock options), nor may the option be re-priced without the prior approval of our stockholders. Options may be exercised as the Administrator determines, but not later than ten years from the date of grant. The Administrator will determine the methods and form of payment for the exercise price of an option (including, in the discretion of the Administrator, payment in Class A common stock, other awards or other property) and the methods and forms in which Class A common stock will be delivered to a participant.
Stock Appreciation Rights A stock appreciation right is the right to receive a share of Class A common stock, or an amount equal to the excess of the fair market value of one share of the Class A common stock on the date of exercise over the grant price of the stock appreciation right, as determined by the Administrator. The exercise price of a share of Class A common stock subject to the stock appreciation right shall be determined by the Administrator, but in no event shall that exercise price be less than the fair market value of the Class A common stock on the date of grant. The Administrator will have the discretion to determine other terms and conditions of stock appreciation rights.
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Restricted Stock Awards A restricted stock award is a grant of shares of Class A common stock subject to a risk of forfeiture, performance conditions, restrictions on transferability and any other restrictions imposed by the Administrator in its discretion. Restrictions may lapse at such times and under such circumstances as determined by the Administrator. Except as otherwise provided under the terms of the 2017 Plan or an award agreement, the holder of a restricted stock award will have rights as a stockholder, including the right to vote the Class A common stock subject to the restricted stock award or to receive dividends on the Class A common stock subject to the restricted stock award during the restriction period. The Administrator shall provide, in the restricted stock award agreement, whether the restricted stock will be forfeited upon certain terminations of employment. Unless otherwise determined by the Administrator, Class A common stock distributed in connection with a stock split or stock dividend, and other property distributed as a dividend, will be subject to restrictions and a risk of forfeiture to the same extent as the restricted stock award with respect to which such Class A common stock or other property has been distributed.
Restricted Stock Units Restricted stock units are rights to receive Class A common stock, cash, or a combination of both at the end of a specified period. The Administrator may subject restricted stock units to restrictions (which may include a risk of forfeiture) to be specified in the restricted stock unit award agreement, and those restrictions may lapse at such times determined by the Administrator. Restricted stock units may be settled by delivery of Class A common stock, cash equal to the fair market value of the specified number of shares of Class A common stock covered by the restricted stock units, or any combination thereof determined by the Administrator at the date of grant or thereafter. Dividend equivalents on the specified number of shares of Class A common stock covered by restricted stock units may be paid on a current, deferred or contingent basis, as determined by the Administrator on or following the date of grant.
Bonus Stock Awards The Administrator will be authorized to grant Class A common stock as a bonus stock award. The Administrator will determine any terms and conditions applicable to grants of Class A common stock, including performance criteria, if any, associated with a bonus stock award.
Performance Awards The vesting, exercise or settlement of awards may be subject to achievement of one or more performance criteria set forth in the 2017 Plan. One or more of the following performance criteria for the Company, on a consolidated basis, and/or for specified subsidiaries, may be used by the Administrator in establishing performance goals for such performance awards: (1) revenues, sales or other income; (2) cash flow, discretionary cash flow, cash flows from operations, cash flows from investing activities, and/or cash flows from financing activities; (3) return on net assets, return on assets, return on investment, return on capital, return on capital employed or return on equity; (4) income, operating income or net income; (5) earnings or earnings margin determined before or after any one or more of depletion, depreciation and amortization expense; exploration and abandonments; impairment of oil and gas properties; impairment of inventory and other property and equipment; accretion of discount on asset retirement obligations; interest expense; net gain or loss on the disposition of assets; income or loss from discontinued operations, net of tax; noncash derivative related activity; amortization of stock-based compensation; income taxes; or other items; (6) equity; net worth; tangible net worth; book capitalization; debt; debt, net of cash and cash equivalents; capital budget or other balance sheet goals; (7) debt or equity financings or improvement of financial ratings; (8) general and administrative expenses; (9) net asset value; (10) fair market value of our Class A common stock, share price, share price appreciation, total stockholder return or payments of dividends; (11) achievement of savings from business improvement projects and achievement of capital projects deliverables; (12) working capital or working capital changes; (13) operating profit or net operating profit; (14) internal research or development programs; (15) geographic business expansion; (16) corporate development (including licenses, innovation, research or establishment of third party collaborations); (17) performance against environmental, ethics or sustainability targets; (18) safety performance and/or incident rate; (19) human resources management targets, including medical cost
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reductions, employee satisfaction or retention, workforce diversity and time to hire; (20) satisfactory internal or external audits; (21) consummation, implementation or completion of a change in control or other strategic partnerships, transactions, projects, processes or initiatives or other goals relating to acquisitions or divestitures (in whole or in part), joint ventures or strategic alliances; (22) regulatory approvals or other regulatory milestones; (23) legal compliance or risk reduction; (24) drilling results; (25) market share; (26) economic value added; or (27) cost reduction targets. The Administrator may also use any of the above goals determined on an absolute or relative basis or as compared to the performance of a published or special index deemed applicable by the Administrator including, but not limited to, the Standard & Poor's 500 stock index or a group of comparable companies. At the time a performance goal is established with respect to an award, the Administrator may also exclude the impact of one or more events or occurrences, as specified by the Administrator, so long such events or occurrences are objective determinable, and further provided that any such adjustment would not cause an award intended to comply with Section 162(m) of the Code to fail to so qualify.
Performance awards granted to eligible persons who are deemed by the Administrator to be "covered employees" pursuant to section 162(m) of the Code shall be administered in accordance with the rules and regulations issued under section 162(m) of the Code. The Administrator may also impose individual performance criteria on the awards, which, if required for compliance with section 162(m) of the Code, will be approved by our stockholders.
Dividend Equivalents Dividend equivalents entitle a participant to receive cash, Class A common stock, other awards or other property equal in value to dividends paid with respect to a specified number of shares of our Class A common stock, or other periodic payments at the discretion of the Administrator. Dividend equivalents may be granted on a free-standing basis or in connection with another award (other than a restricted stock award or a bonus stock award).
Other Stock-Based Awards Other stock-based awards are awards denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, the value of our Class A common stock.
Cash Awards Cash awards may be granted on a free-standing basis, as an element of or a supplement to, or in lieu of any other award.
Substitute Awards Awards may be granted in substitution or exchange for any other award granted under the 2017 Plan or under another equity incentive plan or any other right of an eligible person to receive payment from us. Awards may also be granted under the 2017 Plan in substitution for similar awards held for individuals who become participants as a result of a merger, consolidation or acquisition of another entity by or with the Company or one of our affiliates.
Certain Transactions. If any change is made to our capitalization, such as a stock split, stock combination, stock dividend, exchange of shares or other recapitalization, merger or otherwise, which results in an increase or decrease in the number of outstanding shares of Class A common stock, appropriate adjustments will be made by the Administrator in the shares subject to an award under the 2017 Plan. The Administrator will also have the discretion to make certain adjustments to awards in the event of a change in control, such as accelerating the vesting or exercisability of awards, requiring the surrender of an award, with or without consideration, or making any other adjustment or modification to the award that the Administrator determines is appropriate in light of such transaction.
Plan Amendment and Termination. Our board of directors may amend or terminate the 2017 Plan at any time; however, stockholder approval will be required for any amendment to the extent necessary to comply with applicable law or exchange listing standards. The Administrator will not have the authority, without the approval of stockholders, to amend any outstanding stock option or stock
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appreciation right to reduce its exercise price per share. The 2017 Plan will remain in effect for a period of ten years (unless earlier terminated by our board of directors).
Clawback. All awards under the 2017 Plan will be subject to any clawback or recapture policy adopted by the Company, as in effect from time to time.
Our board of directors was formed in February 2017 and we do not currently provide any compensation to the members of our board of directors for their services. Going forward, we believe that attracting and retaining qualified non-employee directors will be critical to the future value of our growth and governance. Accordingly, following the completion of this offering, we expect to provide our non-employee directors (other than directors who are employees of CSL) with an annual compensation package comprised of a cash component and, in order to align the interests of such non-employee directors with our stockholders, an equity-based award component. We also expect that all members of our board of directors will be reimbursed for certain reasonable expenses in connection with their services to us.
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OUR HISTORY AND CORPORATE REORGANIZATION
Ranger Services was, through Ranger Holdings, formed by CSL in June 2014 as a provider of high-spec well service rigs and associated services. Torrent Services was, through Torrent Holdings, acquired by CSL in September 2014 as a provider of proprietary, modular equipment for the processing of natural gas. In June 2016, CSL indirectly acquired substantially all of the assets of Magna, a provider of well services and wireline services, which it contributed to Ranger Services in September 2016. In October 2016, Ranger Services acquired substantially all of the assets of Bayou, an owner and operator of high-spec well service rigs. The historical combined consolidated financial information of our Predecessor included in this prospectus presents the historical financial information of the Predecessor Companies, including, as applicable, the results of operations of Magna and Bayou for periods subsequent to their respective acquisitions.
Ranger Inc. was incorporated as a Delaware corporation in February 2017. Following this offering and the corporate reorganization described below, Ranger Inc. will be a holding company, the sole material assets of which will consist of membership interests in Ranger LLC. Ranger LLC will own all of the outstanding equity interests in Ranger Services and Torrent Services, the subsidiaries through which it will operate its assets. After the consummation of the corporate reorganization described below, Ranger Inc. will be the sole managing member of Ranger LLC, will be responsible for all operational, management and administrative decisions relating to Ranger LLC's business and will consolidate the financial results of Ranger LLC and its subsidiaries.
In connection with this offering, the Existing Owners will effect a series of restructuring transactions, as a result of which (a) Ranger Holdings II and Torrent Holdings II will contribute certain of the equity interests in the Predecessor Companies to Ranger LLC in exchange for an aggregate of 1,638,386 shares of Class A common stock and an aggregate of $3.0 million to be paid to CSL Holdings I and CSL Holdings II on or prior to the 18-month anniversary of the consummation of this offering in, at Ranger Inc.'s option, cash, shares of Class A common stock (with such shares to be valued based on the greater of the initial public offering price of the Class A common stock in this offering and a 30-day volume-weighted average price) or a combination thereof, and Ranger Inc. will contribute such equity interests to Ranger LLC in exchange for 1,638,386 shares of Class A common stock, (b) Ranger Holdings and Torrent Holdings will contribute the remaining membership interests in the Predecessor Companies to Ranger LLC in exchange for 5,621,491 units in Ranger LLC ("Ranger Units") and 5,621,491 shares of Ranger Inc.'s Class B common stock, which Ranger Inc. will initially issue and contribute to Ranger LLC, (c) Ranger Inc. will contribute all of the net proceeds received by it in this offering to Ranger LLC in exchange for 5,000,000 Ranger Units, (d) Ranger LLC will distribute to each of Ranger Holdings and Torrent Holdings one share of Class B common stock received pursuant to (b) above for each Ranger Unit such Existing Owner holds and (e), as consideration for the termination of the Ranger Bridge Loan, Ranger Inc. will issue 484,381 Shares of Class A common stock (in connection with which Ranger LLC will issue 484,381 Ranger Units to Ranger Inc.) and Ranger LLC will issue an aggregate of 1,061,625 Ranger Units (and distribute a corresponding number of shares of Class B common stock) to the Bridge Loan Lenders. With respect to clause (e) above, the number of shares of Class A common stock or Ranger Units (and corresponding shares of Class B common stock), as applicable, to be issued to each of the Bridge Loan Lenders will be calculated by reference to such Bridge Loan Lender's aggregate loans outstanding under the Ranger Bridge Loan, plus the 25% make-whole premium thereon, divided by the initial public offering price of our Class A common stock in this offering. Specifically, CSL Holdings II will receive approximately $8.2 million in shares of Class A common stock (or approximately 484,381 shares of Class A common stock (which shares will initially be issued by Ranger Inc. to Ranger LLC in exchange for 484,381 Ranger Units) assuming the midpoint of the price range set forth on the cover page of this prospectus), CSL Opportunities II will receive approximately $11.5 million in Ranger Units (or approximately 677,801 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus)
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and Bayou Holdings will receive approximately $6.5 million in Ranger Units (or approximately 383,824 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus).
After giving effect to these transactions, the offering contemplated by this prospectus, the issuance of 294,118 shares of Class A common stock as partial consideration for the ESCO Acquisition and the contribution by Ranger Inc. of its interest in ESCO to Ranger LLC in exchange for 294,118 Ranger Units, Ranger Inc. will own an approximate 52.6% interest in Ranger LLC (or 55.0% if the underwriters' option to purchase additional shares is exercised in full), the Existing Owners will own an approximate 39.9% interest in Ranger LLC (or 37.9% if the underwriters' option to purchase additional shares is exercised in full) and the Bridge Loan Lenders will own an approximate 7.5% interest in Ranger LLC (or 7.1% if the underwriters' option to purchase additional shares is exercised in full). Please see "Security Ownership of Certain Beneficial Owners and Management" and "Use of Proceeds."
Each share of Class B common stock has no economic rights but entitles its holder to one vote on all matters to be voted on by shareholders generally. Holders of Class A common stock and Class B common stock will vote together as a single class on all matters presented to our shareholders for their vote or approval, except as otherwise required by applicable law or by our amended and restated certificate of incorporation. We do not intend to list our Class B common stock on any exchange.
Following this offering, under the Ranger LLC Agreement, each Ranger Unit Holder (other than us) will, subject to certain limitations, have the right, pursuant to the Redemption Right, to cause Ranger LLC to acquire all or a portion of its Ranger Units (along with a corresponding number of shares of our Class B common stock) for, at Ranger LLC's election, (i) shares of our Class A common stock at a redemption ratio of one share of Class A common stock for each Ranger Unit redeemed, subject to conversion rate adjustments for stock splits, stock dividends, reclassification and other similar transactions, or (ii) cash in an amount equal to the Cash Election Value of such Class A common stock. We will determine whether to issue shares of Class A common stock or cash based on facts in existence at the time of the decision, which we expect would include trading prices for the Class A common stock at the time relative to the cash purchase price for the Ranger Units, the availability of other sources of liquidity (such as an issuance of preferred stock) to acquire the Ranger Units and alternative uses for such cash. Alternatively, upon the exercise of the Redemption Right, Ranger Inc. (instead of Ranger LLC) will have the right, pursuant to the Call Right, to, for administrative convenience, acquire each tendered Ranger Unit directly from the redeeming Ranger Unit Holder for, at its election, (x) one share of Class A common stock or (y) cash in an amount equal to the value of a share of Class A common stock, based on a volume-weighted average price. In addition, upon a change of control of us, we have the right to require each Ranger Unit Holder (other than us) to exercise its Redemption Right with respect to some or all of such unitholder's Ranger Units. In connection with any redemption of Ranger Units pursuant to the Redemption Right or our Call Right, the corresponding number of shares of Class B common stock will be cancelled. See "Certain Relationships and Related Party TransactionsRanger LLC Agreement."
Our acquisition (or deemed acquisition for U.S. federal income tax purposes) of Ranger Units pursuant to an exercise of the Redemption Right or the Call Right is expected to result in adjustments to the tax basis of the tangible and intangible assets of Ranger LLC, and such adjustments will be allocated to us. These adjustments would not have been available to us absent our acquisition or deemed acquisition of Ranger Units and are expected to reduce the amount of cash tax that we would otherwise be required to pay in the future.
In connection with the closing of this offering, we will enter into the Tax Receivable Agreement with the TRA Holders. The Tax Receivable Agreement will generally provide for the payment by Ranger Inc. to each TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income tax and franchise tax that Ranger Inc. actually realizes (computed using the estimated impact of
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state and local taxes) or is deemed to realize in certain circumstances in periods after this offering as a result of (i) certain increases in tax basis that occur as a result of Ranger Inc.'s acquisition (or deemed acquisition for U.S. federal income tax purposes) of all or a portion of such TRA Holder's Ranger Units in connection with this offering or pursuant to the exercise of the Redemption Right or the Call Right and (ii) imputed interest deemed to be paid by Ranger Inc. as a result of, and additional tax basis arising from, any payments Ranger Inc. makes under the Tax Receivable Agreement. Ranger Inc. will retain the benefit of the remaining 15% of these cash savings.
Payments will generally be made under the Tax Receivable Agreement as we realize actual cash tax savings in periods after this offering from the tax benefits covered by the Tax Receivable Agreement. However, if we experience a change of control (as defined under the Tax Receivable Agreement, which includes certain mergers, asset sales and other forms of business combinations) or the Tax Receivable Agreement terminates early (at our election or as a result of our breach), we would be required to make a substantial, immediate lump-sum payment, and such payment may be significantly in advance of, and may materially exceed, the actual realization, if any, of the future tax benefits to which the payment relates. Ranger Inc. is a holding company and accordingly will be dependent upon distributions from Ranger LLC to make payments under the Tax Receivable Agreement. It is expected that payments will continue to be made under the Tax Receivable Agreement for more than 20 to 25 years. For additional information regarding the Tax Receivable Agreement, see "Risk FactorsRisks Related to Our Corporate Reorganization and Resulting Structure" and "Certain Relationships and Related Party TransactionsTax Receivable Agreement."
The Existing Owners and the Bridge Loan Lenders will have the right, under certain circumstances, to cause us to register the offer and resale of their shares of Class A common stock. See "Certain Relationships and Related Party TransactionsRegistration Rights Agreement."
The following diagram indicates our simplified ownership structure immediately following this offering and the transactions related thereto (assuming the midpoint of the price range set forth on the cover page of this prospectus, that the underwriters' option to purchase additional shares is not
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exercised and without giving effect to the purchase of any shares by CSL, Bayou Holdings or their respective affiliates as discussed on the cover page of this prospectus):
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Ranger LLC Agreement
The Ranger LLC Agreement is filed as an exhibit to the registration statement of which this prospectus forms a part, and the following description of the Ranger LLC Agreement is qualified in its entirety by reference thereto.
Redemption Rights
Following this offering, under the Ranger LLC Agreement, the Ranger Unit Holders (other than us) will, subject to certain limitations, have the right, pursuant to the Redemption Right, to cause Ranger LLC to acquire all or a portion of their Ranger Units (along with a corresponding number of shares of our Class B common stock) for, at Ranger LLC's election, (i) shares of our Class A common stock at a redemption ratio of one share of Class A common stock for each Ranger Unit redeemed, subject to conversion rate adjustments for stock splits, stock dividends, reclassification and other similar transactions, or (ii) cash in an amount equal to the Cash Election Value of such Class A common stock. We will determine whether to issue shares of Class A common stock or cash in an amount equal to the Cash Election Value based on facts in existence at the time of the decision, which we expect would include the trading prices for the Class A common stock at the time relative to the cash purchase price for the Ranger Units, the availability of other sources of liquidity (such as an issuance of preferred stock) to acquire the Ranger Units and alternative uses for such cash. Alternatively, upon the exercise of the Redemption Right, Ranger Inc. (instead of Ranger LLC) will have the right, pursuant to the Call Right, to, for administrative convenience, acquire each tendered Ranger Unit directly from such Ranger Unit Holder for, at its election, (x) one share of Class A common stock or (y) cash in an amount equal to the value of a share of Class A common stock, based on a volume-weighted average price. In addition, upon a change of control of us, we have the right to require each Ranger Unit Holder (other than us) to exercise its Redemption Right with respect to some or all of such unitholder's Ranger Units. As the Ranger Unit Holders redeem their Ranger Units, our membership interest in Ranger LLC will be correspondingly increased, the number of shares of Class A common stock outstanding will be increased, and the number of shares of Class B common stock outstanding will be reduced.
Our acquisition (or deemed acquisition for U.S. federal income tax purposes) of Ranger Units pursuant to an exercise of the Redemption Right or the Call Right is expected to result in adjustments to the tax basis of the tangible and intangible assets of Ranger LLC, and such adjustments will be allocated to us. These adjustments would not have been available to us absent our acquisition or deemed acquisition of Ranger Units and are expected to reduce the amount of cash tax that we would otherwise be required to pay in the future.
"Cash Election Value" means, with respect to the shares of Class A common stock to be delivered to the redeeming Ranger Unit Holder by us pursuant to our Call Right, the amount that would be received if the number of shares of Class A common stock to which the redeeming Ranger Unit Holder would otherwise be entitled were sold at a per share price equal to the trailing 10-day volume weighted average price of a share of Class A common stock on such redemption, net of actual or deemed offering expenses.
Distributions and Allocations
Under the Ranger LLC Agreement, we will have the right to determine when distributions will be made to the Ranger Unit Holders and the amount of any such distributions. Following this offering, if we authorize a distribution, such distribution will be made to the Ranger Unit Holders generally on a pro rata basis in accordance with their respective percentage ownership of Ranger Units.
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Ranger LLC will allocate its net income or net loss for each year to the Ranger Unit Holders pursuant to the terms of the Ranger LLC Agreement, and the Ranger Unit Holders, including Ranger Inc., will generally incur U.S. federal, state and local income taxes on their share of any taxable income of Ranger LLC. Net income and losses of Ranger LLC generally will be allocated to the Ranger Unit Holders on a pro rata basis in accordance with their respective percentage ownership of Ranger Units, subject to requirements under U.S. federal income tax law that certain items of income, gain, loss or deduction be allocated disproportionately in certain circumstances. To the extent Ranger LLC has available cash and subject to the terms of any future debt instruments, we intend to cause Ranger LLC to make (i) generally pro rata distributions to the Ranger Unit Holders, including Ranger Inc., in an amount at least sufficient to allow us to pay our taxes and make payments under the Tax Receivable Agreement that we will enter into with the Ranger Unit Holders in connection with the closing of this offering and any subsequent tax receivable agreements that we may enter into in connection with future acquisitions and (ii) non-pro rata payments to Ranger Inc. at least sufficient to reimburse us for our corporate and other overhead expenses.
Issuance of Equity
The Ranger LLC Agreement will provide that, except as otherwise determined by us, at any time Ranger Inc. issues a share of its Class A common stock or any other equity security, the net proceeds received by Ranger Inc. with respect to such issuance, if any, shall be concurrently invested in Ranger LLC, and Ranger LLC shall issue to Ranger Inc. one Ranger Unit or other economically equivalent equity interest. Conversely, if at any time, any shares of Ranger Inc.'s Class A common stock are redeemed, repurchased or otherwise acquired, Ranger LLC shall redeem, repurchase or otherwise acquire an equal number of Ranger Units held by Ranger Inc., upon the same terms and for the same price, as the shares of our Class A common stock are redeemed, repurchased or otherwise acquired.
Competition
Under the Ranger LLC Agreement, the members have agreed that CSL and its affiliates will be permitted to engage in business activities or invest in or acquire businesses that may compete with our business or do business with our customers.
Dissolution
Ranger LLC will be dissolved only upon the first to occur of (i) the sale of substantially all of its assets or (ii) an election by us to dissolve the company. Upon dissolution, Ranger LLC will be liquidated and the proceeds from any liquidation will be applied and distributed in the following manner: (a) first, to creditors (including to the extent permitted by law, creditors who are members) in satisfaction of the liabilities of Ranger LLC, (b) second, to establish cash reserves for contingent or unforeseen liabilities and (c) third, to the members in proportion to the number of Ranger Units owned by each of them.
As described in "Our History and Corporate Reorganization," the Ranger Unit Holders (other than us) may redeem their Ranger Units for shares of Class A common stock or cash, as applicable, in the future pursuant to the Redemption Right or the Call Right. Ranger LLC intends to make for itself (and for each of its direct or indirect subsidiaries that is treated as a partnership for U.S. federal income tax purposes and that it controls) an election under Section 754 of the Code that will be effective for the taxable year of this offering and each taxable year in which a redemption of Ranger Units pursuant to the Redemption Right or the Call Right occurs. Pursuant to the Section 754 election, our acquisition (or deemed acquisition for U.S. federal income tax purposes) of Ranger Units as a part of the corporate reorganization and redemptions of Ranger Units pursuant to the Redemption Right or
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the Call Right are expected to result in adjustments to the tax basis of the tangible and intangible assets of Ranger LLC. These adjustments will be allocated to Ranger Inc. Such adjustments to the tax basis of the tangible and intangible assets of Ranger LLC would not have been available to Ranger Inc. absent its acquisition or deemed acquisition of Ranger Units as part of the reorganization transactions or pursuant to the exercise of the Redemption Right or the Call Right. The anticipated tax basis adjustments are expected to increase (for tax purposes) Ranger Inc.'s depreciation, depletion and amortization deductions and may also decrease Ranger Inc.'s gains (or increase its losses) on future dispositions of certain assets to the extent tax basis is allocated to those assets. Such increased deductions and losses and reduced gains may reduce the amount of tax that Ranger Inc. would otherwise be required to pay in the future.
Ranger Inc. will enter into the Tax Receivable Agreement with the TRA Holders at the closing of this offering. This agreement will generally provide for the payment by Ranger Inc. to each TRA Holder of 85% of the net cash savings, if any, in U.S. federal, state and local income tax and franchise tax that Ranger Inc. actually realizes (computed using the estimated impact of state and local taxes) or is deemed to realize in certain circumstances in periods after this offering as a result of (i) certain increases in tax basis that occur as a result of Ranger Inc.'s acquisition (or deemed acquisition for U.S. federal income tax purposes) of all or a portion of such TRA Holder's Ranger Units in connection with this offering or pursuant to an exercise of the Redemption Right or the Call Right and (ii) imputed interest deemed to be paid by Ranger Inc. as a result of, and additional tax basis arising from, any payments Ranger Inc. makes under the Tax Receivable Agreement. We will retain the benefit of the remaining 15% of the cash savings. Certain of the TRA Holders' rights under the Tax Receivable Agreement are transferable in connection with a permitted transfer of Ranger Units or if the TRA Holder no longer holds Ranger Units.
The payment obligations under the Tax Receivable Agreement are Ranger Inc.'s obligations and not obligations of Ranger LLC, and we expect that the payments we will be required to make under the Tax Receivable Agreement will be substantial. Estimating the amount and timing of payments that may become due under the Tax Receivable Agreement is by its nature imprecise. For purposes of the Tax Receivable Agreement, cash savings in tax generally will be calculated by comparing Ranger Inc.'s actual tax liability (computed using the estimated impact of state and local taxes) to the amount it would have been required to pay had it not been able to utilize any of the tax benefits subject to the Tax Receivable Agreement. The actual increase in tax basis, as well as the amount and timing of any payments under the Tax Receivable Agreement, will vary depending upon a number of factors, including the timing of the redemptions of Ranger Units, the price of our Class A common stock at the time of each redemption, the extent to which such redemptions are taxable transactions, the amount of the redeeming Ranger Unit Holder's tax basis in its Ranger Units at the time of the relevant redemption, the depreciation and amortization periods that apply to the increase in tax basis, the amount, character and timing of the taxable income we generate in the future, the U.S. federal income tax rates then applicable, and the portion of our payments under the Tax Receivable Agreement that constitute imputed interest or give rise to depreciable or amortizable tax basis.
Assuming no material changes in the relevant tax law, we expect that if the Tax Receivable Agreement were terminated immediately after this offering (assuming $17.00 per share as the initial offering price to the public), the estimated termination payments, based on the assumptions discussed below, would be approximately $31.9 million (calculated using a discount rate equal to one-year LIBOR plus 150 basis points, applied against an undiscounted liability of $43.0 million).
Reductions in U.S. federal corporate income tax rates are currently being considered. If the U.S. federal corporate income tax rate was reduced to 25% and all other assumptions were held constant, the estimated termination payments would be approximately $28.4 million (calculated using a discount rate equal to one-year LIBOR plus 150 basis points, applied against an undiscounted liability of $21.4 million).
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A delay in the timing of redemptions of Ranger LLC Units, holding other assumptions constant, would be expected to decrease the discounted value of the amounts payable under the Tax Receivable Agreement as the benefit of the depreciation and amortization deductions would be delayed and the estimated increase in tax basis could be reduced as a result of allocations of Ranger LLC taxable income to the redeeming Ranger Unit Holder prior to the redemption. Stock price increases or decreases at the time of each redemption of Ranger LLC Units would be expected to result in a corresponding increase or decrease in the undiscounted amounts payable under the Tax Receivable Agreement in an amount equal to 85% of the tax-effected change in price. The amounts payable under the Tax Receivable Agreement are dependent upon Ranger Inc. having sufficient future taxable income to utilize the tax benefits on which it is required to make payments under the Tax Receivable Agreement. If Ranger Inc.'s projected taxable income is significantly reduced, the expected payments would be reduced to the extent such tax benefits do not result in a reduction of Ranger Inc.'s future income tax liabilities.
The foregoing amounts are merely estimates and the actual payments could differ materially. It is possible that future transactions or events could increase or decrease the actual tax benefits realized and the corresponding Tax Receivable Agreement payments as compared to the foregoing estimates. Moreover, there may be a negative impact on our liquidity if, as a result of timing discrepancies or otherwise, (i) the payments under the Tax Receivable Agreement exceed the actual benefits we realize in respect of the tax attributes subject to the Tax Receivable Agreement and/or (ii) distributions to Ranger Inc. by Ranger LLC are not sufficient to permit Ranger Inc. to make payments under the Tax Receivable Agreement after it has paid its taxes and other obligations. Please see "Risk FactorsRisks Related to Our Corporate Reorganization and Resulting StructureIn certain cases, payments under the Tax Receivable Agreement may be accelerated and/or significantly exceed the actual benefits, if any, we realize in respect of the tax attributes subject to the Tax Receivable Agreement." The payments under the Tax Receivable Agreement will not be conditioned upon a holder of rights under the Tax Receivable Agreement having a continued ownership interest in either Ranger LLC or Ranger Inc.
In addition, although we are not aware of any issue that would cause the Internal Revenue Service ("IRS") or other relevant tax authorities to challenge potential tax basis increases or other tax benefits covered under the Tax Receivable Agreement, the TRA Holders will not reimburse us for any payments previously made under the Tax Receivable Agreement if such basis increases or other benefits are subsequently disallowed, except that excess payments made to any such holder will be netted against payments otherwise to be made, if any, to such holder after any determination of such excess. As a result, in such circumstances, Ranger Inc. could make payments that are greater than its actual cash tax savings, if any, and may not be able to recoup those payments, which could adversely affect its liquidity.
The term of the Tax Receivable Agreement will commence upon the completion of this offering and will continue until all tax benefits that are subject to the Tax Receivable Agreement have been utilized or expired, unless we exercise our right to terminate the Tax Receivable Agreement (or the Tax Receivable Agreement is terminated due to other circumstances, including our breach of a material obligation thereunder or certain mergers, asset sales, other forms of business combination or other changes of control). It is expected that payments will continue to be made under the Tax Receivable Agreement for more than 20 to 25 years. If we elect to terminate the Tax Receivable Agreement early (or it is terminated early due to other circumstances, including our breach of a material obligation thereunder or certain mergers, asset sales, other forms of business combinations or other changes of control), our obligations under the Tax Receivable Agreement would accelerate and we would be required to make an immediate payment equal to the present value of the anticipated future payments to be made by us under the Tax Receivable Agreement (determined by applying a discount rate of one-year LIBOR plus 150 basis points). The calculation of anticipated future payments will be based upon certain assumptions and deemed events set forth in the Tax Receivable Agreement, including the assumptions that (i) we have sufficient taxable income to fully utilize the tax benefits covered by the
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Tax Receivable Agreement (including having sufficient taxable income to currently utilize any accumulated net operating loss carryforwards) and (ii) any Ranger Units (other than those held by Ranger Inc.) outstanding on the termination date are deemed to be redeemed on the termination date. Any early termination payment may be made significantly in advance of the actual realization, if any, of the future tax benefits to which the termination payment relates.
The Tax Receivable Agreement provides that in the event that we breach any of our material obligations under the Tax Receivable Agreement, whether as a result of (i) our failure to make any payment when due (including in cases where we elect to terminate the Tax Receivable Agreement early, the Tax Receivable Agreement is terminated early due to certain mergers, asset sales, or other forms of business combinations or changes of control or we have available cash but fail to make payments when due under circumstances where we do not have the right to elect to defer the payment, as described below), (ii) our failure to honor any other material obligation under it or (iii) by operation of law as a result of the rejection of the Tax Receivable Agreement in a case commenced under the U.S. Bankruptcy Code or otherwise, then the TRA Holders may elect to treat such breach as an early termination, which would cause all our payment and other obligations under the Tax Receivable Agreement to be accelerated and become due and payable applying the same assumptions described above.
As a result of either an early termination or a change of control, we could be required to make payments under the Tax Receivable Agreement that exceed our actual cash tax savings under the Tax Receivable Agreement. In these situations, our obligations under the Tax Receivable Agreement could have a substantial negative impact on our liquidity and could have the effect of delaying, deferring or preventing certain mergers, asset sales, or other forms of business combinations or changes of control that could be in the best interests of holders of our Class A common stock.
Decisions we make in the course of running our business, such as with respect to mergers, asset sales, other forms of business combinations or other changes in control, may influence the timing and amount of payments that are received by the TRA Holders under the Tax Receivable Agreement. For example, the earlier disposition of assets following a redemption of Ranger Units may accelerate payments under the Tax Receivable Agreement and increase the present value of such payments, and the disposition of assets before a redemption of Ranger Units may increase the TRA Holders' tax liability without giving rise to any rights of the TRA Holders to receive payments under the Tax Receivable Agreement. In addition, our ability to settle audits or other proceedings related to taxes will be subject to the consent of the TRA Holders to the extent such settlement could have a material effect on the TRA Holders' rights under the Tax Receivable Agreement. Such effects and such consent rights may result in differences or conflicts of interest between the interests of the TRA Holders and other shareholders.
Payments generally are due under the Tax Receivable Agreement within 30 days following the finalization of the schedule with respect to which the payment obligation is calculated. However, interest on such payments will begin to accrue from the due date (without extensions) of our U.S. federal income tax return for the period to which such payments relate until such payment due date at a rate equal to one-year LIBOR plus 150 basis points. Except in cases where we elect to terminate the Tax Receivable Agreement early or it is otherwise terminated as described above, generally we may elect to defer payments due under the Tax Receivable Agreement if we do not have available cash to satisfy our payment obligations under the Tax Receivable Agreement or if our contractual obligations limit our ability to make these payments. Any such deferred payments under the Tax Receivable Agreement generally will accrue interest from the due date for such payment until the payment date at a rate of one-year LIBOR plus 500 basis points. However, interest will accrue from the due date for such payment until the payment date at a rate of one-year LIBOR plus 150 basis points if we are unable to make such payment as a result of limitations imposed by existing credit agreements. We have no present intention to defer payments under the Tax Receivable Agreement.
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Because we are a holding company with no operations of our own, our ability to make payments under the Tax Receivable Agreement is dependent on the ability of Ranger LLC to make distributions to us in an amount sufficient to cover our obligations under the Tax Receivable Agreement. This ability, in turn, may depend on the ability of Ranger LLC's subsidiaries to make distributions to it. The ability of Ranger LLC, its subsidiaries and other entities in which it directly or indirectly holds an equity interest to make such distributions will be subject to, among other things, (i) the applicable provisions of Delaware law (or other applicable jurisdiction) that may limit the amount of funds available for distribution and (ii) restrictions in relevant debt instruments entered into by Ranger LLC or its subsidiaries and/other entities in which it directly or indirectly holds an equity interest. To the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, such payments will be deferred and will accrue interest until paid.
The form of the Tax Receivable Agreement is filed as an exhibit to the registration statement of which this prospectus forms a part, and the foregoing description of the Tax Receivable Agreement is qualified by reference thereto.
In connection with the closing of this offering, we will enter into a registration rights agreement with the Existing Owners and the Bridge Loan Lenders. We expect that the agreement will contain provisions by which we agree to register under the federal securities laws the offer and resale of shares of our Class A common stock by the Existing Owners and the Bridge Loan Lenders or certain of their affiliates or permitted transferees under the registration rights agreement. These registration rights will be subject to certain conditions and limitations. We will generally be obligated to pay all registration expenses in connection with these registration obligations, regardless of whether a registration statement is filed or becomes effective.
In connection with this offering, we will enter into a stockholders' agreement with the Existing Owners and the Bridge Loan Lenders. Among other things, the stockholders' agreement will provide CSL and Bayou Holdings with the right to designate nominees to our board of directors (each, as applicable, a "CSL Director" or "Bayou Director") as follows:
In the event the size of our board of directors is increased or decreased at any time to other than eight directors, CSL's nomination rights will be proportionately increased or decreased, respectively, rounded up to the nearest whole number.
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Pursuant to the stockholders' agreement we, the Existing Owners and the Bridge Loan Lenders will be required to take all necessary actions, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), to cause the election of the nominees of such CSL Directors.
In addition, the stockholders' agreement will provide that for so long as CSL beneficially owns at least 30% of our common stock, CSL will have the right to cause any committee of our board of directors to include in its membership at least one director designated by CSL, except to the extent that such membership would violate applicable securities laws or stock exchange rules. The rights granted to CSL to designate directors are additive to and not intended to limit in any way the rights that CSL may have to nominate, elect or remove our directors under our certificate of incorporation, bylaws or the DGCL.
Further, the stockholders' agreement will contain provisions relating to the transfer of our common stock or Ranger Units by the Existing Owners. Specifically, any transfer of our common stock or Ranger Units by either Ranger Holdings or Ranger Holdings II will require the approval of each of such Existing Owners; provided, however, that any such transfer by Ranger Holdings II made without a corresponding transfer by Ranger Holdings, with the amounts of such corresponding transfers in proportion to such Existing Owners' aggregate ownership of shares of our common stock, shall require the further prior written approval of Bayou Holdings. Any transfer of our common stock or Ranger Units by either Torrent Holdings or Torrent Holdings II will require the approval of each of such Existing Owners, but will not require the approval of Bayou Holdings.
Historical Transactions with Affiliates
Second Torrent Note
In March 2015, Torrent Services, through certain members of its management team, including Mr. Perryman, our Executive Vice PresidentProcessing Solutions, as borrowers, secured the Second Torrent Note, a $0.6 million promissory note with Benchmark Bank, which was replaced in April 2016 with a $0.2 million promissory note with Mr. Perryman as borrower. The Second Torrent Note was guaranteed in April 2016 by CSL Energy Opportunities Fund I, L.P. ("CSL Opportunities I") and CSL, CSL Holdings I, each affiliates of CSL and indirect equity owners of Torrent Services. The Second Torrent Note, which bore interest at a rate of 4.5%, was repaid in full on February 28, 2017. Since entry into the Second Torrent Note in March 2015, approximately $50,000 in aggregate interest payments were made on the Second Torrent Note.
Employee Matters Agreement
In connection with the Bayou acquisition, Ranger Services and Ranger Holdings entered into an Employee Matters Agreement in October 2016 ("EMA") with Bayou Holdings and its affiliates (collectively, "Bayou Parties"). Pursuant to the EMA, the Bayou Parties seconded certain employees to Ranger Services and Ranger Holdings from October 4, 2016 to December 31, 2016 to perform certain transition services. In exchange for receiving these seconded employees and related services, Ranger Services and Ranger Holdings paid the Bayou Parties approximately $5.8 million through December 31, 2016. As of December 31, 2016, Ranger Services and Ranger Holdings had accounts payable to the Bayou Parties of approximately $2.4 million, which were paid in full in March 2017. Bayou Holdings is controlled by Messrs. Brett and Richard Agee, each of whom is a manager of Bayou Holdings and member of our board of directors.
Allied Purchase Agreement
In January 2017, Ranger Services, through its wholly owned subsidiary, entered into a purchase agreement (the "Allied Purchase Agreement") with Allied Energy Real Estate, LLC ("Allied Energy").
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CSL, which employs certain members of our board of directors and, after giving effect to this offering, will hold a majority of the voting power of our common stock, is an indirect equity owner of Allied Energy. Pursuant to the Allied Purchase Agreement, Ranger Services purchased certain real property in Milliken, Colorado, from Allied Energy for a purchase price of $4.0 million.
Ranger Bridge Loan
In February 2017, Ranger Services entered into the Ranger Bridge Loan, consisting of loan agreements with each of CSL Opportunities II, CSL Holdings II and Bayou Holdings, each an indirect equity owner of Ranger Services. The Ranger Bridge Loan, which was obtained to fund capital expenditures, including pursuant to the NOV Purchase Agreement, and for general corporate purposes is evidenced by promissory notes payable to the Bridge Loan Lenders in an aggregate principal amount, following the increase in the principal amount thereunder to $12.1 million in April 2017, to $14.6 million in May 2017, to $17.1 million in June 2017 and to $21.0 million in July 2017, consisting of three individual promissory notes in the principal amounts of (i) $9.2 million payable to CSL Opportunities II, (ii) $6.6 million payable to CSL Holdings II and (iii) $5.2 million payable to Bayou Holdings. Each note bears interest at a rate of 15% and matures upon the earlier of February 21, 2018 or ten days after the consummation of an initial public offering and is guaranteed by Ranger Holdings and the operating subsidiaries of Ranger Services. The Ranger Bridge Loan includes a make-whole provision pursuant to which Ranger Services will pay 125% of the total amount advanced to Ranger Services upon settlement. As described in "Our History and Corporate Reorganization," in connection with the consummation of this offering, we intend to repay the Ranger Bridge Loan by issuing Class A common stock and Ranger Units (and corresponding shares of Class B common stock) to the Bridge Loan Lenders. Specifically, CSL Holdings II will receive approximately $8.2 million in shares of Class A common stock (or approximately 484,381 shares of Class A common stock assuming the midpoint of the price range set forth on the cover page of this prospectus), CSL Opportunities II will receive approximately $11.5 million in Ranger Units (or approximately 677,801 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus) and Bayou Holdings will receive approximately $6.5 million in Ranger Units (or approximately 383,824 Ranger Units assuming the midpoint of the price range set forth on the cover page of this prospectus).
In connection with our corporate reorganization, we will engage in certain transactions with certain affiliates of the Existing Owners, including CSL. Please see "Our History and Corporation Reorganization."
Policies and Procedures for Review of Related Party Transactions
A "Related Party Transaction" is a transaction, arrangement or relationship in which we or any of our subsidiaries was, is or will be a participant, the amount of which involved exceeds $120,000, and in which any related person had, has or will have a direct or indirect material interest. A "Related Person" means:
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the household of such director, executive officer or beneficial owner of more than 5.0% of our Class A common stock; and
Our board of directors will adopt a written related party transactions policy prior to the completion of this offering. Pursuant to this policy, our audit committee will review all material facts of all Related Party Transactions and either approve or disapprove entry into the Related Party Transaction, subject to certain limited exceptions. In determining whether to approve or disapprove entry into a Related Party Transaction, our audit committee shall take into account, among other factors, the following: (i) whether the Related Party Transaction is on terms no less favorable than terms generally available to an unaffiliated third-party under the same or similar circumstances and (ii) the extent of the Related Person's interest in the transaction. Furthermore, the policy requires that all Related Party Transactions required to be disclosed in our filings with the SEC be so disclosed in accordance with applicable laws, rules and regulations.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial ownership of our Class A common stock and Class B common stock that, upon the consummation of this offering and transactions related thereto, and assuming the underwriters do not exercise their option to purchase additional common shares, will be owned by:
All information with respect to beneficial ownership has been furnished by the respective 5% or more shareholders, directors or executive officers, as the case may be. Unless otherwise noted, the mailing address of each listed beneficial owner is 800 Gessner Street, Suite 1000, Houston, Texas 77024.
The table below does not reflect any shares of Class A common stock that directors and executive officers may purchase in this offering through the directed share program described under "UnderwritingDirected Share Program."
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Shares Beneficially Owned
After the Offering (Assuming No Exercise of the Underwriters' Over-Allotment Option) |
Shares Beneficially Owned
After the Offering (Assuming Full Exercise of the Underwriters' Over-Allotment Option) |
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Beneficially Owned Prior to the Offering(1) |
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Class A
Common Stock |
Class B
Common Stock |
Combined
Voting Power(2) |
Class A
Common Stock |
Class B
Common Stock |
Combined
Voting Power(2) |
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Number | % | Number | % | Number | % | Number | % | Number | % | Number | % | Number | % | |||||||||||||||||||||||||||||
5% Shareholders |
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Ranger Holdings II(3)(9) |
1,325,261 | 1,325,261 | 17.9 | | | 1,325,261 | 9.4 | 1,325,261 | 16.2 | | | 1,325,261 | 8.9 | ||||||||||||||||||||||||||||||
Ranger Holdings(4)(9) |
4,482,641 | | | 4,482,641 | 67.1 | 4,482,641 | 31.8 | | | 4,482,641 | 67.1 | 4,482,641 | 30.2 | ||||||||||||||||||||||||||||||
Torrent Holdings(5)(9) |
1,138,850 | | | 1,138,850 | 17.0 | 1,138,850 | 8.1 | | | 1,138,850 | 17.0 | 1,138,850 | 7.7 | ||||||||||||||||||||||||||||||
Bayou Holdings(6)(9) |
| | | | 383,824 | 5.7 | 383,824 | 2.7 | | | 383,824 | 5.7 | 383,824 | 2.6 | |||||||||||||||||||||||||||||
CSL Opportunities II(4)(7)(9) |
| | | | 677,801 | 10.1 | 677,801 | 4.8 | | | 677,801 | 10.1 | 677,801 | 4.6 | |||||||||||||||||||||||||||||
CSL Holdings II(3)(8)(9) |
| | 484,381 | 6.5 | | | 484,381 | 3.4 | 484,381 | 5.9 | | | 484,381 | 3.3 | |||||||||||||||||||||||||||||
Directors and Named Executive Officers: |
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Brett Agee(6)(9) |
| | | | 383,824 | 5.7 | 383,824 | 2.7 | | | 383,824 | 5.7 | 383,824 | 2.6 | |||||||||||||||||||||||||||||
Richard Agee(6)(9) |
| | | | 383,824 | 5.7 | 383,824 | 2.7 | | | 383,824 | 5.7 | 383,824 | 2.6 | |||||||||||||||||||||||||||||
Darron M. Anderson |
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William M. Austin |
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Charles S. Leykum(3)(4)(5)(7)(8)(9) |
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Merrill A. Miller |
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Scott A. Milliren |
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Lance Perryman |
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Jason Podraza |
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Vivek Raj |
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Krishna Shivram |
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Directors and executive officers as a group (Eleven persons) |
| | | | 383,824 | 5.7 | 383,824 | 2.7 | | | 383,824 | 5.7 | 383,824 | 2.6 |
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Mr. Leykum may be deemed to share voting and dispositive power over the shares held by Ranger Holdings II and may also be deemed to be the beneficial owner of such shares. The Ranger II CSL Members and Mr. Leykum disclaim beneficial ownership of these shares in excess of their pecuniary interest therein.
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Upon completion of this offering and related transactions, the authorized capital stock of Ranger Inc. will consist of 100,000,000 shares of Class A common stock, $0.01 par value per share, of which 7,416,884 shares will be issued and outstanding, 100,000,000 shares of Class B common stock, $0.01 par value per share, of which 6,683,116 shares will be issued and outstanding and 50,000,000 shares of preferred stock, $0.01 par value per share, of which no shares will be issued and outstanding.
The following summary of the capital stock and amended and restated certificate of incorporation and bylaws of Ranger Inc. does not purport to be complete and is qualified in its entirety by reference to the provisions of applicable law and to our amended and restated certificate of incorporation and by-laws, which will be filed as exhibits to the registration statement of which this prospectus is a part.
Voting Rights. Holders of shares of Class A common stock are entitled to one vote per share held of record on all matters to be voted upon by the shareholders. The holders of Class A common stock do not have cumulative voting rights in the election of directors.
Dividend Rights. Holders of shares of our Class A common stock are entitled to ratably receive dividends when and if declared by our board of directors out of funds legally available for that purpose, subject to any statutory or contractual restrictions on the payment of dividends and to any prior rights and preferences that may be applicable to any outstanding preferred stock.
Liquidation Rights. Upon our liquidation, dissolution, distribution of assets or other winding up, the holders of Class A common stock are entitled to receive ratably the assets available for distribution to the shareholders after payment of liabilities and the liquidation preference of any of our outstanding shares of preferred stock.
Other Matters. The shares of Class A common stock have no preemptive or conversion rights and are not subject to further calls or assessment by us. There are no redemption or sinking fund provisions applicable to the Class A common stock. All outstanding shares of our Class A common stock, including the Class A common stock offered in this offering, are fully paid and non-assessable.
Generally. In connection with the reorganization and this offering, each Existing Owner will receive one share of Class B common stock for each Ranger Unit that it holds. Accordingly, each Existing Owner will have a number of votes in Ranger Inc. equal to the aggregate number of Ranger Units that it holds.
Voting Rights. Holders of shares of our Class B common stock are entitled to one vote per share held of record on all matters to be voted upon by the shareholders. Holders of shares of our Class A common stock and Class B common stock vote together as a single class on all matters presented to our shareholders for their vote or approval, except with respect to the amendment of certain provisions of our amended and restated certificate of incorporation that would alter or change the powers, preferences or special rights of the Class B common stock so as to affect them adversely, which amendments must be by a majority of the votes entitled to be cast by the holders of the shares affected by the amendment, voting as a separate class, or as otherwise required by applicable law.
Dividend and Liquidation Rights. Holders of our Class B common stock do not have any right to receive dividends, unless the dividend consists of shares of our Class B common stock or of rights, options, warrants or other securities convertible or exercisable into or exchangeable or redeemable for shares of Class B common stock paid proportionally with respect to each outstanding share of our Class B common stock and a dividend consisting of shares of Class A common stock or of rights,
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options, warrants or other securities convertible or exercisable into or exchangeable or redeemable for shares of Class A common stock on the same terms is simultaneously paid to the holders of Class A common stock. Holders of our Class B common stock do not have any right to receive a distribution upon a liquidation or winding up of Ranger Inc.
Our amended and restated certificate of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further shareholder approval, to establish and to issue from time to time one or more classes or series of preferred stock, par value $0.01 per share, covering up to an aggregate of 50,000,000 shares of preferred stock. Each class or series of preferred stock will cover the number of shares and will have the powers, preferences, rights, qualifications, limitations and restrictions determined by the board of directors, which may include, among others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation, the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of shareholders.
Anti-Takeover Effects of Provisions of Our Amended and Restated Certificate of Incorporation, Our
Amended and Restated Bylaws and Delaware Law
Some provisions of Delaware law, and our amended and restated certificate of incorporation and our amended and restated bylaws described below, will contain provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise; or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that shareholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
We will not be subject to the provisions of Section 203 of the DGCL, regulating corporate takeovers. In general, those provisions prohibit a Delaware corporation, including those whose securities are listed for trading on the NYSE, from engaging in any business combination with any interested shareholder for a period of three years following the date that the shareholder became an interested shareholder, unless:
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Amended and Restated Certificate of Incorporation and Bylaws
Provisions of our amended and restated certificate of incorporation and our amended and restated bylaws, which will become effective upon the closing of this offering, may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which shareholders might otherwise receive a premium for their shares, or transactions that our shareholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our Class A common stock.
Among other things, upon the completion of this offering, our amended and restated certificate of incorporation and amended and restated bylaws will:
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terms, other than directors that may be elected by holders of preferred stock, if any. This system of electing and removing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for shareholders to replace a majority of the directors;
Our amended and restated certificate of incorporation will provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
in each such case, subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
Our amended and restated certificate of incorporation will also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision.
Although we believe these provisions will benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies' certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our amended and restated certificate of incorporation is inapplicable or unenforceable.
Limitation of Liability and Indemnification Matters
Our amended and restated certificate of incorporation will limit the liability of our directors for monetary damages for breach of their fiduciary duty as directors, except for liability that cannot be eliminated under the DGCL. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities:
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Any amendment, repeal or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal or modification.
Our amended and restated bylaws will also provide that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. Our amended and restated bylaws also will permit us to purchase insurance on behalf of any officer, director, employee or other agent for any liability arising out of that person's actions as our officer, director, employee or agent, regardless of whether Delaware law would permit indemnification. We intend to enter into indemnification agreements with each of our current and future directors and officers. These agreements will require us to indemnify these individuals to the fullest extent permitted under Delaware law against liability that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We believe that the limitation of liability provision that will be in our amended and restated certificate of incorporation and the indemnification agreements will facilitate our ability to continue to attract and retain qualified individuals to serve as directors and officers.
For a description of registration rights with respect to our Class A common stock, see the information under the heading "Certain Relationships and Related Party TransactionsRegistration Rights Agreement."
The transfer agent and registrar for our Class A common stock will be Computershare Trust Company, N.A.
We have been authorized to list our Class A common stock for quotation on the NYSE under the symbol "RNGR."
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SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no public market for our Class A common stock. Future sales of our Class A common stock in the public market, or the availability of such shares for sale in the public market, could adversely affect the market price of our Class A common stock prevailing from time to time. As described below, only a limited number of shares will be available for sale shortly after this offering due to contractual and legal restrictions on resale. Nevertheless, sales of a substantial number of shares of our Class A common stock in the public market after such restrictions lapse, or the perception that those sales may occur, could adversely affect the prevailing market price of our Class A common stock at such time and our ability to raise equity-related capital at a time and price we deem appropriate.
Upon the closing of this offering and related transactions, we will have outstanding an aggregate of 7,416,884 shares of Class A common stock. Of these shares, all of the 5,000,000 shares of Class A common stock (or 5,750,000 shares of Class A common stock if the underwriters' option to purchase additional shares is exercised) to be sold in this offering will be freely tradable without restriction or further registration under the Securities Act, unless the shares are held by any of our "affiliates" as such term is defined in Rule 144 under the Securities Act. All remaining shares of Class A common stock held by the Existing Owners, in addition to any shares of Class A common stock issued to fund the $5.0 million (or approximately 294,118 shares of Class A common stock assuming the midpoint of the price range set forth on the cover page of this prospectus) equity portion of the consideration for the ESCO Acquisition and the shares issued to the Bridge Loan Lenders in consideration for the termination of the Ranger Bridge Loan, will be deemed "restricted securities" as such term is defined under Rule 144. The restricted securities were issued and sold by us in private transactions and are eligible for public sale only if registered under the Securities Act or if they qualify for an exemption from registration under Rule 144 or Rule 701 under the Securities Act, which rules are summarized below.
Following this offering, under the Ranger LLC Agreement, each Ranger Unit Holder will, subject to certain limitations, have the right, pursuant to the Redemption Right, to cause Ranger LLC to acquire all or a portion of its Ranger Units (along with a corresponding number of shares of our Class B common stock) for, at Ranger LLC's election, (i) shares of our Class A common stock at a redemption ratio of one share of Class A common stock for each Ranger Unit redeemed, subject to conversion rate adjustments for stock splits, stock dividends, reclassification and other similar transactions, or (ii) cash in an amount equal to the Cash Election Value of such Class A common stock. Alternatively, upon the exercise of the Redemption Right, Ranger Inc. (instead of Ranger LLC) will have the right, pursuant to the Call Right, to acquire each tendered Ranger Unit directly from the redeeming Ranger Unit Holder for, at its election, (x) one share of Class A common stock or (y) cash in an amount equal to the value of a share of Class A common stock, based on a volume-weighted average price. In connection with any redemption of Ranger Units pursuant to the Redemption Right or our Call Right, the corresponding number of shares of Class B common stock will be cancelled. See "Certain Relationships and Related Party TransactionsRanger LLC Agreement." The shares of Class A common stock we issue upon such redemptions would be "restricted securities" as defined in Rule 144 described below. However, upon the closing of this offering, we intend to enter into a registration rights agreement with the Ranger Unit Holders that will require us to register under the Securities Act these shares of Class A common stock. See "Certain Relationships and Related Party TransactionsRegistration Rights Agreement."
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As a result of the lock-up agreements described below and the provisions of Rule 144 and Rule 701 under the Securities Act, the shares of our Class A common stock (excluding the shares to be sold in this offering) that will be available for sale in the public market are as follows:
We, certain of our shareholders and all of our directors and officers have agreed not to sell any Class A common stock for a period of 180 days from the date of this prospectus, subject to certain exceptions and extensions. See "Underwriting" for a description of these lock-up provisions.
In general, under Rule 144 under the Securities Act as currently in effect, a person (or persons whose shares are aggregated) who is not deemed to have been an affiliate of ours at any time during the three months preceding a sale, and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months (including any period of consecutive ownership of preceding non-affiliated holders) would be entitled to sell those shares, subject only to the availability of current public information about us. A non-affiliated person (who has been unaffiliated for at least the past three months) who has beneficially owned restricted securities within the meaning of Rule 144 for at least one year would be entitled to sell those shares without regard to the provisions of Rule 144.
A person (or persons whose shares are aggregated) who is deemed to be an affiliate of ours and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months would be entitled to sell within any three-month period a number of shares that does not exceed the greater of one percent of the then outstanding shares of our Class A common stock or the average weekly trading volume of our Class A common stock reported through the NYSE during the four calendar weeks preceding the filing of notice of the sale. Such sales are also subject to certain manner of sale provisions, notice requirements and the availability of current public information about us.
In general, under Rule 701 under the Securities Act, any of our employees, directors, officers, consultants or advisors who purchase shares from us in connection with a compensatory stock or option plan or other written agreement before the effective date of this offering is entitled to sell such shares 90 days after the effective date of this offering in reliance on Rule 144, without having to comply with the holding period requirement of Rule 144 and, in the case of non-affiliates, without having to comply with the public information, volume limitation or notice filing provisions of Rule 144. The SEC has indicated that Rule 701 will apply to typical stock options granted by an issuer before it becomes subject to the reporting requirements of the Exchange Act, along with the shares acquired upon exercise of such options, including exercises after the date of this prospectus.
Stock Issued Under Employee Plans
We intend to file a registration statement on Form S-8 under the Securities Act to register stock issuable under our long-term incentive plan. This registration statement on Form S-8 is expected to be filed following the effective date of the registration statement of which this prospectus is a part and will be effective upon filing. Accordingly, shares registered under such registration statement will be available for sale in the open market following the effective date, unless such shares are subject to vesting restrictions with us or the lock-up restrictions described above.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS
The following is a summary of the material U.S. federal income tax considerations related to the purchase, ownership and disposition of our Class A common stock by a non-U.S. holder (as defined below), that holds our Class A common stock as a "capital asset" (generally property held for investment). This summary is based on the provisions of the Code, U.S. Treasury regulations, administrative rulings and judicial decisions, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect. We have not sought any ruling from the IRS with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court will agree with such statements and conclusions.
This summary does not address all aspects of U.S. federal income taxation that may be relevant to non-U.S. holders in light of their personal circumstances. In addition, this summary does not address the Medicare tax on certain investment income, U.S. federal estate or gift tax laws, any state, local or non-U.S. tax laws or any tax treaties. This summary also does not address tax considerations applicable to investors that may be subject to special treatment under the U.S. federal income tax laws, such as:
PROSPECTIVE INVESTORS ARE ENCOURAGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATION, AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR CLASS A COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL, NON-U.S. OR OTHER TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.
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For purposes of this discussion, a "non-U.S. holder" is a beneficial owner of our Class A common stock that is not for U.S. federal income tax purposes a partnership or any of the following:
If a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds our Class A common stock, the tax treatment of a partner in the partnership generally will depend upon the status of the partner, upon the activities of the partnership and upon certain determinations made at the partner level. Accordingly, we urge partners in partnerships (including entities or arrangements treated as partnerships for U.S. federal income tax purposes) considering the purchase of our Class A common stock to consult their tax advisors regarding the U.S. federal income tax considerations of the purchase, ownership and disposition of our Class A common stock by such partnership.
As described in the section entitled "Dividend Policy," we do not plan to make any distributions on our Class A common stock in the foreseeable future. However, in the event we do make distributions of cash or other property on our Class A common stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed our current and accumulated earnings and profits, the distributions will be treated as a non-taxable return of capital to the extent of the non-U.S. holder's tax basis in our Class A common stock and thereafter as capital gain from the sale or exchange of such Class A common stock. See "Gain on Disposition of Class A Common Stock." Subject to the withholding requirements under FATCA (as defined below) and with respect to effectively connected dividends, each of which is discussed below, any distribution made to a non-U.S. holder on our Class A common stock generally will be subject to U.S. withholding tax at a rate of 30% of the gross amount of the distribution unless an applicable income tax treaty provides for a lower rate. To receive the benefit of a reduced treaty rate, a non-U.S. holder must provide the applicable withholding agent with an IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable or successor form) certifying qualification for the reduced rate.
Dividends paid to a non-U.S. holder that are effectively connected with a trade or business conducted by the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, are treated as attributable to a permanent establishment maintained by the non-U.S. holder in the United States) generally will be taxed on a net income basis at the rates and in the manner generally applicable to United States persons (as defined under the Code). Such effectively connected dividends will not be subject to U.S. withholding tax if the non-U.S. holder satisfies certain certification requirements by providing the applicable withholding agent with a properly executed IRS Form W-8ECI certifying eligibility for exemption. If the non-U.S. holder is a corporation for U.S. federal income tax purposes, it may also be subject to a branch profits tax (at a 30% rate or such lower
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rate as specified by an applicable income tax treaty) on its effectively connected earnings and profits (as adjusted for certain items), which will include effectively connected dividends.
Gain on Disposition of Class A Common Stock
Subject to the discussion below under "Backup Withholding and Information Reporting" and "Additional Withholding Requirements under FATCA," a non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized upon the sale or other disposition of our Class A common stock unless:
A non-U.S. holder described in the first bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate as specified by an applicable income tax treaty) on the amount of such gain, which generally may be offset by U.S. source capital losses.
A non-U.S. holder whose gain is described in the second bullet point above or, subject to the exceptions described in the next paragraph, the third bullet point above generally will be taxed on a net income basis at the rates and in the manner generally applicable to United States persons (as defined under the Code) unless an applicable income tax treaty provides otherwise. If the non-U.S. holder is a corporation for U.S. federal income tax purposes whose gain is described in the second bullet point above, then such gain would also be included in its effectively connected earnings and profits (as adjusted for certain items), which may be subject to a branch profits tax (at a 30% rate or such lower rate as specified by an applicable income tax treaty).
Generally, a corporation is a USRPHC if the fair market value of its United States real property interests equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business. We believe that we currently are not a USRPHC for U.S. federal income tax purposes, and we do not expect to become a USRPHC for the foreseeable future. However, in the event that we become a USRPHC, as long as our Class A common stock is and continues to be regularly traded on an established securities market, only a non-U.S. holder that actually or constructively owns, or owned at any time during the shorter of the five-year period ending on the date of the disposition or the non-U.S. holder's holding period for the Class A common stock, more than 5% of our Class A common stock will be taxable on gain realized on the disposition of our Class A common stock as a result of our status as a USRPHC. If we were to become a USRPHC and our Class A common stock were not considered to be regularly traded on an established securities market, such holder (regardless of the percentage of stock owned) would be subject to U.S. federal income tax on a taxable disposition of our Class A common stock (as described in the preceding paragraph), and a 15% withholding tax would apply to the gross proceeds from such disposition.
Non-U.S. holders should consult their tax advisors with respect to the application of the foregoing rules to their ownership and disposition of our Class A common stock.
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Backup Withholding and Information Reporting
Any dividends paid to a non-U.S. holder must be reported annually to the IRS and to the non-U.S. holder. Copies of these information returns may be made available to the tax authorities in the country in which the non-U.S. holder resides or is established. Payments of dividends to a non-U.S. holder generally will not be subject to backup withholding if the non-U.S. holder establishes an exemption by properly certifying its non-U.S. status on an IRS Form W-8BEN, IRS Form W-8BEN-E (or other applicable or successor form).
Payments of the proceeds from a sale or other disposition by a non-U.S. holder of our Class A common stock effected by or through a U.S. office of a broker generally will be subject to information reporting and backup withholding (at the applicable rate) unless the non-U.S. holder establishes an exemption by properly certifying its non-U.S. status on an IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable or successor form) and certain other conditions are met. Information reporting and backup withholding generally will not apply to any payment of the proceeds from a sale or other disposition of our Class A common stock effected outside the United States by a non-U.S. office of a broker. However, unless such broker has documentary evidence in its records that the non-U.S. holder is not a United States person and certain other conditions are met, or the non-U.S. holder otherwise establishes an exemption, information reporting will apply to a payment of the proceeds of the disposition of our Class A common stock effected outside the United States by such a broker if it has certain relationships within the United States.
Backup withholding is not an additional tax. Rather, the U.S. income tax liability (if any) of persons subject to backup withholding will be reduced by the amount of tax withheld. If backup withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is timely furnished to the IRS.
Additional Withholding Requirements under FATCA
Sections 1471 through 1474 of the Code, and the U.S. Treasury regulations and administrative guidance issued thereunder ("FATCA"), impose a 30% withholding tax on any dividends paid on our Class A common stock and on the gross proceeds from a disposition of our Class A common stock (if such disposition occurs after December 31, 2018), in each case if paid to a "foreign financial institution" or a "non-financial foreign entity" (each as defined in the Code) (including, in some cases, when such foreign financial institution or non-financial foreign entity is acting as an intermediary), unless (i) in the case of a foreign financial institution, such institution enters into an agreement with the U.S. government to withhold on certain payments, and to collect and provide to the U.S. tax authorities substantial information regarding U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are non-U.S. entities with U.S. owners); (ii) in the case of a non-financial foreign entity, such entity certifies that it does not have any "substantial United States owners" (as defined in the Code) or provides the applicable withholding agent with a certification identifying the direct and indirect substantial United States owners of the entity (in either case, generally on an IRS Form W-8BEN-E); or (iii) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules and provides appropriate documentation (such as an IRS Form W-8BEN-E). Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing these rules may be subject to different rules. Under certain circumstances, a holder might be eligible for refunds or credits of such taxes. Non-U.S. holders are encouraged to consult their own tax advisors regarding the effects of FATCA on their investment in our Class A common stock.
INVESTORS CONSIDERING THE PURCHASE OF OUR CLASS A COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE APPLICABILITY AND EFFECT OF U.S. FEDERAL ESTATE AND GIFT TAX LAWS AND ANY STATE, LOCAL OR NON-U.S. TAX LAWS AND TAX TREATIES.
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The following is a summary of certain considerations associated with the acquisition and holding of shares of common stock by employee benefit plans that are subject to Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the Code or employee benefit plans that are governmental plans (as defined in Section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA), non-U.S. plans (as described in Section 4(b)(4) of ERISA) or other plans that are not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, "Similar Laws"), and entities whose underlying assets are considered to include "plan assets" of any such plan, account or arrangement (each, a "Plan").
This summary is based on the provisions of ERISA and the Code (and related regulations and administrative and judicial interpretations) as of the date of this registration statement. This summary does not purport to be complete, and no assurance can be given that future legislation, court decisions, regulations, rulings or pronouncements will not significantly modify the requirements summarized below. Any of these changes may be retroactive and may thereby apply to transactions entered into prior to the date of their enactment or release. This discussion is general in nature and is not intended to be all inclusive, nor should it be construed as investment or legal advice.
ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code (an "ERISA Plan") and prohibit certain transactions involving the assets of an ERISA Plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of an ERISA Plan or the management or disposition of the assets of an ERISA Plan, or who renders investment advice for a fee or other compensation to an ERISA Plan, is generally considered to be a fiduciary of the ERISA Plan.
In considering an investment in shares of common stock with a portion of the assets of any Plan, a fiduciary should consider the Plan's particular circumstances and all of the facts and circumstances of the investment and determine whether the acquisition and holding of shares of common stock is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code, or any Similar Law relating to the fiduciary's duties to the Plan, including, without limitation:
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Section 406 of ERISA and Section 4975 of the Code prohibit ERISA Plans from engaging in specified transactions involving plan assets with persons or entities who are "parties in interest," within the meaning of ERISA, or "disqualified persons," within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person who engages in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the ERISA Plan that engages in such a non-exempt prohibited transaction may be subject to excise taxes, penalties and liabilities under ERISA and the Code. The acquisition and/or holding of shares of common stock by an ERISA Plan with respect to which the issuer or an underwriter is considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless the investment is acquired and is held in accordance with an applicable statutory, class or individual prohibited transaction exemption.
Because of the foregoing, shares of common stock should not be acquired or held by any person investing "plan assets" of any Plan, unless such acquisition and holding will not constitute a non-exempt prohibited transaction under ERISA and the Code or a similar violation of any applicable Similar Laws.
Additionally, a fiduciary of a Plan should consider whether the Plan will, by investing in us, be deemed to own an undivided interest in our assets, with the result that we would become a fiduciary of the Plan and our operations would be subject to the regulatory restrictions of ERISA, including its prohibited transaction rules, as well as the prohibited transaction rules of the Code and any other applicable Similar Laws.
The Department of Labor (the "DOL") regulations provide guidance with respect to whether the assets of an entity in which ERISA Plans acquire equity interests would be deemed "plan assets" under some circumstances. Under these regulations, an entity's assets generally would not be considered to be "plan assets" if, among other things:
Due to the complexity of these rules and the excise taxes, penalties and liabilities that may be imposed upon persons involved in non-exempt prohibited transactions, it is particularly important that
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fiduciaries, or other persons considering acquiring and/or holding shares of our common stock on behalf of, or with the assets of, any Plan, consult with their counsel regarding the potential applicability of ERISA, Section 4975 of the Code and any Similar Laws to such investment and whether an exemption would be applicable to the acquisition and holding of shares of common stock. Purchasers of shares of common stock have the exclusive responsibility for ensuring that their acquisition and holding of shares of common stock complies with the fiduciary responsibility rules of ERISA and does not violate the prohibited transaction rules of ERISA, the Code or applicable Similar Laws. The sale of shares of common stock to a Plan is in no respect a representation by us or any of our affiliates or representatives that such an investment meets all relevant legal requirements with respect to investments by any such Plan or that such investment is appropriate for any such Plan.
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Under the terms and subject to the conditions contained in an underwriting agreement dated , 2017, among us and the representatives, we have agreed to sell to the underwriters named below, for whom Credit Suisse Securities (USA) LLC, Piper Jaffray & Co. and Wells Fargo Securities, LLC are acting as representatives, and the underwriters have severally agreed to purchase from us the following respective numbers of shares of Class A common stock:
Underwriters
|
Number of
Shares |
|||
---|---|---|---|---|
Credit Suisse Securities (USA) LLC |
||||
Piper Jaffray & Co. |
||||
Wells Fargo Securities, LLC |
||||
Barclays Capital Inc. |
||||
Evercore Group L.L.C. |
||||
Capital One Securities, Inc. |
||||
Johnson Rice & Company L.L.C. |
||||
Raymond James & Associates, Inc. |
||||
Scotia Capital (USA) Inc. |
||||
| | | | |
Total |
5,000,000 | |||
| | | | |
| | | | |
| | | | |
The underwriting agreement provides that the underwriters are obligated, severally and not jointly, to purchase all the shares of Class A common stock in this offering if any are purchased, other than those shares covered by the option described below. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may be increased or the offering may be terminated.
We have granted the underwriters a 30-day option to purchase up to 750,000 additional shares of our Class A common stock at the initial public offering price less the underwriting discounts and commissions. The option may be exercised solely to cover any over-allotments of common stock.
CSL, Bayou Holdings and their respective affiliates have indicated that they or one or more of them may collectively purchase in this offering an aggregate of up to $30.0 million, or 1,764,706 shares (based on the midpoint of the price range set forth on the cover page of this prospectus), of our Class A common stock at the price to the public. The underwriters will not receive any underwriting discounts or commissions on any shares sold to such potential purchasers. The number of shares available for sale to the general public will be reduced to the extent such potential purchasers purchase such shares. There can be no assurance that any such potential purchasers will purchase shares in this offering.
Prior to this offering, there has been no public market for our Class A common stock. The initial public offering price has been negotiated between us and the representatives of the underwriters. The factors that were considered in these negotiations were:
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The underwriters are offering the shares, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel including the validity of the shares, and subject to other conditions contained in the underwriting agreement, such as the receipt by the underwriters of officer's certificates and legal opinions. The offering of the shares of our Class A common stock by the underwriters is subject to receipt and acceptance and subject to the underwriters' right to reject any order in whole or in part.
The underwriters propose to offer the shares of Class A common stock initially at the initial public offering price set forth on the cover page of this prospectus and to selling group members at that price less a selling concession of $ per share. The underwriters and selling group members may allow a discount of $ per share on sales to other broker/dealers. After the initial offering of the shares of Class A common stock, the underwriters may change the initial public offering price and concession and discount to broker/dealers. Sales of shares of Class A common stock made outside of the United States may be made by affiliates of the underwriters.
The following table shows the public offering price, underwriting discounts and commissions and proceeds before expenses to us. The information assumes either no exercise or full exercise by the underwriters of their option to purchase additional shares.
|
Per Share | No Exercise | Full Exercise | |||||||
---|---|---|---|---|---|---|---|---|---|---|
Public offering price |
$ | $ | $ | |||||||
Underwriting discounts and commissions paid by us |
||||||||||
Proceeds, before expenses, to us |
In addition to the underwriting discounts and commissions to be paid by us, we have agreed to reimburse the underwriters for certain of their out-of-pocket expenses, including expenses in connection with any required review of the terms of the directed share program and the qualification of the offering with the Financial Industry Regulatory Authority, or FINRA, by counsel to the underwriters, incurred in connection with this offering in an amount up to $35,000. We estimate that the total expenses of the offering payable by us, other than underwriting discounts and commissions, will be approximately $5.0 million.
The representatives have informed us that they do not expect sales to accounts over which the underwriters have discretionary authority to exceed 5% of the shares of Class A common stock being offered.
In connection with this offering, we agreed that, subject to certain exceptions, we will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC a registration statement under the Securities Act relating to, any shares of our Class A common stock or securities convertible into or exchangeable or exercisable for any shares of our Class A common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of Credit Suisse Securities (USA) LLC and Piper Jaffray & Co. for a period of 180 days after the date of this prospectus. Notwithstanding the foregoing, the restrictions set forth above shall not apply to any transfer in connection with, and as contemplated by, this offering or the reorganization transactions described under "Our History and Corporate Reorganization."
Further, each of our officers, directors and certain of shareholders has agreed in connection with this offering that, subject to certain exceptions, they will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of our Class A common stock or securities convertible into or exchangeable or exercisable for any shares of our Class A common stock, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that
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transfers, in whole or in part, any of the economic consequences of ownership of our Class A common stock, whether any of these transactions are to be settled by delivery of our Class A common stock or other securities, in cash or otherwise, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of Credit Suisse Securities (USA) LLC and Piper Jaffray & Co. for a period of 180 days after the date of this prospectus. Notwithstanding the foregoing, the restrictions set forth above shall not apply to any transfer in connection with, and as contemplated by, this offering or the reorganization transactions described under "Our History and Corporate Reorganization."
Credit Suisse Securities (USA) LLC and Piper Jaffray & Co., in their sole discretion, may release the Class A common stock and other securities subject to the lock-up agreements described above in whole or in part at any time. When determining whether or not to release the Class A common stock and other securities from lock-up agreements, Credit Suisse Securities (USA) LLC and Piper Jaffray & Co. may consider, among other factors, the holder's reasons for requesting the release, the number of shares of Class A common stock or other securities for which the release is being requested and market conditions at the time.
We have agreed to indemnify the several underwriters against certain liabilities under the Securities Act, or contribute to payments that the underwriters may be required to make in that respect.
We have been authorized to have our Class A common stock listed on the NYSE under the symbol "RNGR."
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment hedging, financing and brokerage activities. Certain of the underwriters and their respective affiliates may from time to time perform various financial advisory, commercial banking and investment banking services for us and for our affiliates in the ordinary course of business for which they have received and would receive customary compensation.
In the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers, and such investments and securities activities may involve long or short positions in securities and/or instruments of the issuer.
The underwriters and their respective affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
In connection with the offering the underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions, penalty bids and passive market making in accordance with Regulation M under the Exchange Act.
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position, the number of shares involved is greater than the number of shares in their option to purchase additional shares. The underwriters may close out any covered short position by either exercising their option to purchase additional shares and/or purchasing shares in the open market.
These stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our Class A common stock or preventing or retarding a decline in the market price of the Class A common stock. As a result the price of our Class A common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the NYSE or otherwise and, if commenced, may be discontinued at any time.
A prospectus in electronic format may be made available on the web sites maintained by one or more of the underwriters, or selling group members, if any, participating in this offering and one or more of the underwriters participating in this offering may distribute prospectuses electronically. The representatives may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriters and selling group members that will make internet distributions on the same basis as other allocations.
Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of his prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
At our request, the underwriters have reserved up to 5% of the shares for sale at the initial public offering price to our directors, officers, employees and other parties associated with us through a
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directed share program. The number of shares available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Except for certain of our officers, directors and employees who have entered into lock-up agreements, each person buying shares through the directed share program has agreed that, for a period of 180 days from the date of this prospectus, he or she will not, without the prior written consent of Credit Suisse Securities (USA) LLC and Piper Jaffray & Co., dispose of or hedge any shares purchased in the program or any securities convertible into or exchangeable or redeemable for our Class A common stock with respect to shares purchased in the program. For certain officers, directors and employees purchasing shares through the directed share program, the lock-up agreements described above with respect to the underwriting agreement shall govern with respect to their purchases. Any directed shares not purchased will be offered by the underwriters to the general public on the same basis as all other shares offered. We have agreed to indemnify the underwriters against certain liabilities and expenses, including liabilities under the Securities Act, in connection with the sales of the directed shares.
Canada
The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
EEA restriction
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each such Member State, a "Relevant Member State"), each underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "Relevant Implementation Date") it has not made and will not make an offer of shares to the public in that Relevant Member State prior to the publication of a prospectus in relation to the shares that has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer for the shares to the public in that Relevant Member State at any time:
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investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the representatives for any such offer; or
provided, that no such offer of shares referred to in (a) to (c) above shall result in a requirement for us or any representative to publish a prospectus pursuant to Article 3 of the Prospectus Directive, or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer to the public" in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any shares to be offered so as to enable an investor to decide to purchase any shares, as the same may be varied in such Relevant Member State by any measure implementing the Prospectus Directive in that Member State, the expression "Prospectus Directive" means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in each Relevant Member State and the expression "2010 PD Amending Directive" means Directive 2010/73/EU.
United Kingdom
Each underwriter severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received by it in connection with the issue or sale of the shares in circumstances in which Section 21(1) of the FSMA does not apply to us; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the shares in, from or otherwise involving the United Kingdom.
Notice to United Kingdom Investors
This prospectus is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (iii) high net worth companies, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as "relevant persons"). The shares are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such shares will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
Hong Kong
The shares may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a "prospectus" within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to
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do so under the laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
Singapore
This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the "SFA"), (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the shares are subscribed or purchased under Section 275 by a relevant person which is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries' rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired the shares under Section 275 except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is given for the transfer; or (3) by operation of law.
Japan
The securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended), and accordingly, will not be offered or sold, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines promulgated by relevant Japanese governmental or regulatory authorities in effect at the relevant time.
173
The validity of our Class A common stock offered by this prospectus will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas. The underwriters have been represented by Cravath, Swaine & Moore LLP, New York, New York.
The balance sheet of Ranger Inc. as of March 31, 2017, included in this prospectus and in the registration statement, has been so included in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, appearing elsewhere herein and in the registration statement, given on the authority of said firm as experts in auditing and accounting.
The combined consolidated financial statements of the Predecessor as of December 31, 2016 and 2015 and for the years then ended, except as they relate to Torrent Services, included in this prospectus and in the registration statement, have been so included in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, appearing elsewhere herein and in the registration statement, given on the authority of said firm as experts in auditing and accounting.
The financial statements of Torrent Services as of December 31, 2016 and 2015 and for the years then ended, not separately presented in this prospectus, have been audited by Whitley Penn LLP, an independent registered public accounting firm, whose report thereon appears herein. The combined consolidated financial statements of the Predecessor, included in this prospectus and in the registration statement, to the extent they relate to Torrent Services, have been so included in reliance on the report of such independent registered public accounting firm given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Magna Energy Services, LLC as of and for the years ended December 31, 2015 and 2014, included in this prospectus and in the registration statement, have been audited by Hein & Associates LLP, independent auditors, as stated in their report thereon and have been included in this prospectus and registration statement in reliance on such report and upon the authority of such firm as experts in accounting and auditing.
The financial statements of Bayou Workover Services LLC as of December 31, 2015 and for the period from January 1, 2016 through October 3, 2016 and the year ended December 31, 2015, included in this prospectus and in the registration statement, have been so included in reliance on the report of BDO USA, LLP, an independent auditor, appearing elsewhere herein and in the registration statement, given on the authority of said firm as experts in auditing and accounting.
The financial statements of ESCO Leasing, LLC as of and for the years ended April 30, 2017 and 2016, included in this prospectus, have been so included in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 (including the exhibits, schedules and amendments thereto) under the Securities Act, with respect to the shares of our Class A common stock offered hereby. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. For further information with respect to us and the Class A common stock offered hereby, we refer you to the registration statement and the exhibits and schedules filed therewith. Statements contained in this prospectus as to the contents of any contract, agreement or any other document are summaries of the material terms of this contract, agreement or other document. With respect to each of these contracts, agreements or other documents filed as an exhibit to the registration statement, reference is made to the exhibits for a more complete
174
description of the matter involved. A copy of the registration statement, and the exhibits and schedules thereto, may be inspected without charge at the Public Reference Room of the SEC at 100 F Street N.E., Washington, DC 20549. Copies of these materials may be obtained from such office, upon payment of a duplicating fee. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC.
As a result of this offering, we will become subject to full information reporting requirements of the Exchange Act. We will fulfill our obligations with respect to such requirements by filing periodic reports and other information with the SEC. We intend to furnish our shareholders with annual reports containing financial statements certified by an independent public accounting firm.
175
GLOSSARY OF CERTAIN INDUSTRY TERMS
Artificial Lift: Any production system that adds energy to the fluid column in a wellbore with the objective of initiating and enhancing production from the well. Artificial lift systems use a range of operating principles and equipment, including rod pumping systems, gas lift and electric submersible pumps, to enhance the production rate of a crude oil or natural gas well.
Coiled Tubing: A continuous length of alloy carbon-steel tubing that can be spooled on a reel for transport and subsequently deployed into a wellbore for the placement of fluids or manipulation of downhole tools during well servicing operations. The process of spooling and straightening a coiled tubing string imparts a high degree of fatigue to the tube material, which results in coiled tubing strings being regarded as a consumable product with a finite service life.
Decommissioning: The process at the end of a well's life involving the shutdown of production, removal of installed equipment and safe plugging of the wellbore to eliminate the potential for contamination.
Drilled but Uncompleted ("DUC") Well: A well that has been drilled but has not yet been completed. DUC wells provide an inventory of drilled wells to be brought online relatively quickly during favorable commodity price environments.
Horizontal Drilling: A subset of the more general term "directional drilling," used where the departure of the wellbore from vertical exceeds approximately 80 degrees. A horizontally drilled well typically penetrates a greater length of the reservoir and can offer significant production improvement versus a vertical well.
Hydraulic Catwalks: A long, rectangular platform approximately three feet (0.9 meters) high, usually made of steel and located adjacent to the rig's work floor. This platform is used as a staging area for rig and downhole equipment, including components that are about to be picked up and run into the well or components that have been pulled out of the well and are being laid down.
Mast: The upright structure on a rig, usually rectangular or trapezoidal in shape, used to support the string of tubular equipment and downhole systems that are pulled out or run into a wellbore.
Mast Rating: The maximum load rating of a well service rig, as stipulated by the manufacturer of the well service rig and industry standards. A mast is the structure on a well service rig that supports the surface load hoisting for well service rig activities. This structure allows the tubing string and other equipment to be lifted above the rig floor as it is being lowered into or pulled out of a well.
Mechanical Refrigeration Unit ("MRU"): Field equipment that is used to carry out the mechanical process of condensing heavier hydrocarbons from an inlet natural gas stream produced from an oil or natural gas well. MRUs utilize a heat integration system that cools the inlet gas stream and separates the stable hydrocarbon liquid product from the processed residue gas stream.
Natural Gas Liquids ("NGLs"): A natural gas liquid that can be separated from raw natural gas streams produced from an oil or natural gas well. This separation occurs in a field facility or in a gas processing plant through absorption, condensation or other separation methods. NGLs can be classified according to their vapor pressures as low (condensate), intermediate (natural gasoline) and high (liquefied petroleum gas) vapor pressure liquids.
Plugging and Abandonment: The process of preparing non-economic oil and natural gas wells to be shut in and permanently or temporarily sealed, often utilizing a well service rig along with wireline and cementing equipment.
A-1
Snubbing: The process of forcing a pipe or tubular equipment into a well against wellbore pressure. Snubbing is utilized as a well intervention technique in live producing wells, and utilizes specialized equipment designed to apply the necessary forces while supporting the tubing and safely containing wellbore pressure and fluids.
Volatile Organic Compounds ("VOC"): Refers to a range of organic compounds, including certain hydrocarbons, that evaporate or vaporize readily at ambient temperature or pressure conditions. Some VOCs are harmful to human health and are subject to regulations.
Well Completion: Broad term encompassing a range of activities and equipment required to advance a drilled well into the production phase. Well completion activities include the assembly and deployment of downhole tubular equipment, wellbore stimulation processes such as hydraulic fracturing and the installation of artificial lift equipment.
Well Control: Well control is the technique used in oil and natural gas operations such as drilling, well workover, and well completions, to maintain the hydrostatic pressure of the wellbore fluid column and formation pressure to prevent influx of formation fluids (oil, natural gas and water contained within the geological formation) into the wellbore. The industry also requires the use of blowout prevention equipment as a secondary barrier for well control.
Well Killing: The process used to stop a well from flowing or having the ability to flow. Kill procedures typically involve a combination of removing existing oil or natural gas from the wellbore through circulation and pumping higher density fluid into the wellbore to prevent further influx of oil or natural gas from the geological formation.
Wellbore: With regards to an oil or natural gas well, the wellbore refers to the drilled hole or borehole, including the open-hole or uncased portion of the well.
Wellhead: A wellhead is the component at the surface of an oil or natural gas well that provides the structural and pressure-containing interface for the drilling and production equipment. The primary purpose of a wellhead is to provide the suspension point and pressure seals for the casing strings that run from the bottom of the borehole section to the surface pressure control equipment.
Wireline: Refers to cabling technology used by operators of oil and natural gas wells to lower equipment or measurement devices into the well for the purposes of well servicing, reservoir evaluation and pipe recovery.
Work Floor: Also known as rig floor, the work floor is a platform on a well service rig from which the rig crew conducts well servicing operations, including the making up tubular equipment, lowering and installation of such equipment in the wellbore, maintenance of downhole equipment and removal of installed equipment from a well.
Workover: The process of performing complex repairs or modifications on an oil or natural gas well. Workover operations include major subsurface repairs such as repair or replacement of well casing, recovery or replacement of tubing and removal of foreign objects from the wellbore.
A-2
F-1
F-2
RANGER ENERGY SERVICES, INC.
UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS
Introduction
The following unaudited pro forma condensed financial statements of Ranger Energy Services, Inc. (the "Company" or the "Registrant") for the year ended December 31, 2016 and as of and for the three months ended March 31, 2017, are derived from the historical audited combined consolidated and unaudited condensed combined consolidated financial statements of Ranger Energy Services, Inc. Predecessor ("Predecessor") set forth elsewhere in this prospectus and are qualified in their entirety by reference to such historical audited combined consolidated and unaudited condensed combined consolidated financial statements and related notes contained therein.
The unaudited pro forma condensed statement of operations for the year ended December 31, 2016 includes the following adjustments: (i) the acquisitions of Magna Energy Services, LLC ("Magna") and Bayou Workover Services, LLC ("Bayou"), (ii) the acquisition (the "ESCO Acquisition") of substantially all of ESCO Leasing, LLC's assets and certain of ESCO LLC's liabilities, (iii) the transactions described under "Our History and Corporate Reorganization" (including the aggregate $3.0 million payable to be incurred in connection therewith and the issuance of shares of our Class A common stock and Class B common stock to the lenders of our bridge loan) and (iv) the offering, as if each had been completed as of January 1, 2016. The unaudited pro forma condensed financial statements as of and for the three months ended March 31, 2017 include the following adjustments: (i) the ESCO Acquisition, (ii) the transactions described under "Our History and Corporate Reorganization" and (iii) the offering, as if each had been completed as of January 1, 2016, in the case of the unaudited pro forma condensed statement of operations, and March 31, 2017, in the case of the unaudited pro forma condensed balance sheet.
The Predecessor's, Magna's and Bayou's fiscal years end on December 31 and ESCO's fiscal year ends on April 30. Because the fiscal year ends of the Predecessor and ESCO differ by greater than 93 days, the financial information for the Predecessor for the fiscal year ended December 31, 2016 and the three months ended March 31, 2017 and the financial information for ESCO for the twelve months ended January 31, 2017 and the three months ended April 30, 2017 has been used in the preparation of the unaudited pro forma condensed statement of operations for the year ended December 31, 2016 and the unaudited pro forma condensed statement of operations for the three months ended March 31, 2017, respectively. The unaudited financial information for ESCO for the twelve months ended January 31, 2017 was calculated by taking the audited year ended April 30, 2017, adding the unaudited three months ended April 30, 2016 and subtracting the unaudited three months ended April 30, 2017. The unaudited financial information for ESCO for the three months ended April 30, 2017 was calculated by taking the audited year ended April 30, 2017 and subtracting the unaudited nine months ended January 31, 2017. Financial information of the Predecessor as of March 31, 2017 and the financial information of ESCO as of April 30, 2017 has been used in the preparation of the unaudited pro forma condensed balance sheet as of March 31, 2017. Further, the historical financial statements of ESCO do not purport to indicate the financial condition or results of operations of the acquired assets for future periods, in part because certain liabilities and costs included therein will not be assumed by the Company in the ESCO Acquistion.
For purposes of the unaudited pro forma condensed financial statements, the Offering is defined as the planned issuance and sale to the public by the Company of 5,000,000 shares of Class A common stock of the Company as contemplated by this prospectus and the application by the Company of the net proceeds from such issuance as described in "Use of Proceeds." The net proceeds from the sale of the Class A common stock are expected to be $74.5 million (based on an assumed initial public offering price of $17.00, the midpoint of the range set forth on the cover of this prospectus), net of underwriting discounts of $5.5 million and other offering costs of $5.0 million. The Magna, Bayou and
F-3
ESCO acquisitions were accounted for as business combinations using the acquisition method of accounting. Accordingly, the preliminary purchase price as it relates to Magna and Bayou was allocated to the assets acquired and liabilities assumed based upon management's preliminary estimates of fair value. Management is in the process of engaging a third-party valuation firm to assist in their assessment and estimates of the fair value of the assets acquired and liabilities assumed as part of the ESCO Acquisition. Until this preliminary purchase price allocation has been completed, management has allocated any excess of the purchase consideration over the historical book value of the net assets acquired to goodwill. The determination of fair value is dependent upon valuations as of the acquisition date and the final adjustments to the purchase price, which when they occur may result in an adjustment to the value of the acquired assets reflected in the unaudited pro forma condensed financial statements. Any such adjustments may be material.
The unaudited pro forma condensed balance sheet and the unaudited pro forma condensed statements of operations were derived by adjusting the historical audited combined consolidated and unaudited condensed combined consolidated financial statements of our Predecessor. The adjustments are based upon currently available information and certain estimates and assumptions. Actual effects of the transactions may differ from the pro forma adjustments. Management believes, however, that the assumptions provide a reasonable basis for presenting the significant effects of the transactions as contemplated and that the pro forma adjustments are factually supportable and give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed financial statements.
The unaudited pro forma condensed financial statements have been prepared on the assumption that the Company will be treated as a corporation for federal income tax purposes. The Company does not initially expect to recognize any income tax effects of becoming a corporation for federal income tax purposes in connection with the transactions described under "Our History and Corporate Reorganization" and entering into the Tax Receivable Agreement on the unaudited pro forma condensed balance sheet. In addition, the Company does not expect any of the Ranger Unit Holders to exercise their Redemption Right in connection with this offering.
At the time of a redemption, the Company will record a liability to reflect the future payments under the Tax Receivable Agreement. Further, the Company anticipates that it will account for the effect of increases in tax basis and payments for such increases under the Tax Receivable Agreement arising from future redemptions as follows:
The initial accounting for any deferred tax asset or liability recorded in connection with redemptions are recorded in equity. The valuation allowance assessment with respect to the deferred tax asset will be based on whether available evidence supports the "more-likely-than-not" threshold for recognizing the deferred tax asset, whereas the assessment of the tax receivable agreement liability will be recognized when a payment is probable and reasonably estimable. The subsequent accounting for any changes to previously recorded liabilities, including changes resulting from changes to any valuation allowances associated with the underlying tax assets, are recognized in earnings.
The unaudited pro forma condensed financial statements should be read in conjunction with the accompanying notes and with the historical audited combined consolidated financial statements and
F-4
related notes, as well as "Use of Proceeds" and "Management's Discussion and Analysis of Financial Condition and Results of Operations," each included elsewhere in this prospectus.
See "Use of Proceeds" to see how certain aspects of the offering would be affected by an initial public offering price per share of common stock at higher or lower prices than indicated on the front cover of this prospectus.
The unaudited pro forma condensed financial information is presented for illustrative purposes only and does not purport to indicate the financial condition or results of operations of future periods or the financial condition or results of operations that actually would have been realized had the Magna, Bayou and ESCO acquisitions or this offering been consummated on the dates or for the periods presented. The unaudited pro forma condensed financial statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those illustrated. See "Risk Factors."
F-5
RANGER ENERGY SERVICES, INC.
UNAUDITED PRO FORMA CONDENSED BALANCE SHEET
AS OF MARCH 31, 2017
(in millions)
|
Predecessor
(a) |
Esco Leasing, LLC
(b) |
Excluded
Assets / Liabilities |
|
Purchase
Accounting Adjustments |
|
Related Party
Borrowings |
|
Offering
Related Adjustments |
|
Corporate
Reorganization Adjustments |
|
Total
Pro Forma |
||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Assets |
|||||||||||||||||||||||||||||||||||
Current assets |
|||||||||||||||||||||||||||||||||||
Cash and cash equivalents |
$ | 2.0 | $ | 0.2 | $ | (0.2 | ) | (c) | $ | (47.7 | ) | (2)(d) | $ | 9.9 | (d)(g) | $ | 62.5 | (d) | $ | | $ | 26.7 | |||||||||||||
Certificate of deposit |
| 1.0 | (1.0 | ) | (c) | | | | | | |||||||||||||||||||||||||
Restricted cash |
1.6 | | | | | | | 1.6 | |||||||||||||||||||||||||||
Accounts receivable, net |
20.5 | 7.2 | (2.0 | ) | (c) | | | | | 25.7 | |||||||||||||||||||||||||
Employee and other receivables, current portion |
| 0.1 | (0.1 | ) | (c) | | | | | | |||||||||||||||||||||||||
Unbilled revenues |
1.7 | | | | | | | 1.7 | |||||||||||||||||||||||||||
Inventory |
| 0.2 | | (0.2 | ) | (e) | | | | | |||||||||||||||||||||||||
Prepaid expenses and other current assets |
1.5 | 0.6 | (0.6 | ) | (c) | 0.2 | (e) | | | | 1.7 | ||||||||||||||||||||||||
Assets held for sale |
2.9 | | | | | | | 2.9 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current assets |
30.2 | 9.3 | (3.9 | ) | (47.7 | ) | 9.9 | 62.5 | | 60.3 | |||||||||||||||||||||||||
Long-term employee and other receivables, less current maturities, net of allowance |
| 0.4 | (0.4 | ) | (c) | | | | | | |||||||||||||||||||||||||
Property, plant and equipment, net |
117.8 | 43.6 | (3.4 | ) | (c) | | | | | 158.0 | |||||||||||||||||||||||||
Goodwill |
1.6 | 1.2 | (0.5 | ) | (c) | 15.3 | (2) | | | | 17.6 | ||||||||||||||||||||||||
Deferred tax asset |
| | | | | | | | |||||||||||||||||||||||||||
Intangible assets, net |
9.1 | | | | | | | 9.1 | |||||||||||||||||||||||||||
Investment in unrelated company |
| 2.3 | (2.3 | ) | (c) | | | | | | |||||||||||||||||||||||||
Other assets |
1.0 | | | | | (0.9 | ) | (h) | | 0.1 | |||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total assets |
$ | 159.7 | $ | 56.8 | $ | (10.5 | ) | $ | (32.4 | ) | $ | 9.9 | $ | 61.6 | $ | | $ | 245.1 | |||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Liabilities and Net Parent Investment |
|||||||||||||||||||||||||||||||||||
Current liabilities |
|||||||||||||||||||||||||||||||||||
Accounts payable |
$ | 7.1 | $ | 1.8 | $ | (0.5 | ) | (c) | $ | | | $ | (0.9 | ) | (h) | $ | | $ | 7.5 | ||||||||||||||||
Accounts payablerelated party |
| | | | | | | | |||||||||||||||||||||||||||
Accrued expenses |
10.5 | 1.5 | (0.9 | ) | (c) | | | | | 11.1 | |||||||||||||||||||||||||
Capital lease obligations, current portion |
7.6 | | | | | | | 7.6 | |||||||||||||||||||||||||||
Related party debt |
11.2 | | | | 15.1 | (g) | (26.3 | ) | (i) | | | ||||||||||||||||||||||||
Long-term debt, current portion |
11.3 | 4.2 | (4.2 | ) | (c) | 1.3 | (2) | | (11.3 | ) | (j) | | 1.3 | ||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current liabilities |
47.7 | 7.5 | (5.6 | ) | 1.3 | 15.1 | (38.5 | ) | | 27.5 | |||||||||||||||||||||||||
Tax receivable agreement liability |
| | | | | | | | |||||||||||||||||||||||||||
Capital lease obligations, less current portion |
0.2 | | | | | | | 0.2 | |||||||||||||||||||||||||||
Long-term debt, less current portion |
| 3.7 | (3.7 | ) | (c) | 5.7 | (2) | | | | 5.7 | ||||||||||||||||||||||||
Long-term payablerelated party |
| | | | | | 3.0 | (n) | 3.0 | ||||||||||||||||||||||||||
Other long-term liabilities |
1.0 | | | | | | | 1.0 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities |
48.9 | 11.2 | (9.3 | ) | 7.0 | 15.1 | (38.5 | ) | 3.0 | 37.4 | |||||||||||||||||||||||||
Commitments and contingencies |
|||||||||||||||||||||||||||||||||||
Net parent investment |
110.8 | 45.6 | (1.2 | ) | (c) | (44.4 | ) | (2) | (5.2 | ) | (g) | (0.7 | ) | (k) | (104.9 | ) | (m) | | |||||||||||||||||
Class A common stock |
| | | 0.0 | (2)(f) | | 0.1 | (i)(l) | 0.0 | (m) | 0.1 | ||||||||||||||||||||||||
Class B common stock |
| | | | | 0.0 | (i) | 0.1 | (m) | 0.1 | |||||||||||||||||||||||||
Preferred stock |
| | | | | | | | |||||||||||||||||||||||||||
Additional paid-in capital |
| | | 5.0 | (2)(f) | | 85.1 | (i)(h)(l) | 19.1 | (m) | 109.2 | ||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net parent investment / stockholders' equity |
110.8 | 45.6 | (1.2 | ) | (39.4 | ) | (5.2 | ) | 84.5 | (85.7 | ) | 109.4 | |||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-controlling interest |
| | | | | 15.6 | (i) | 82.7 | (m) | 98.3 | |||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total net parent investment / stockholders' equity |
110.8 | 45.6 | (1.2 | ) | (39.4 | ) | (5.2 | ) | 100.1 | (3.0 | ) | 207.7 | |||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities and net parent investment |
$ | 159.7 | $ | 56.8 | $ | (10.5 | ) | $ | (32.4 | ) | $ | 9.9 | $ | 61.6 | $ | | $ | 245.1 | |||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.
F-6
UNAUDITED PRO FORMA CONDENSED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 2017
(in millions)
|
Predecessor
Historical (a) |
Esco Leasing, LLC
(b) |
Excluded
Costs |
|
Purchase
Accounting Adjustments |
|
Offering Related
Adjustments |
|
Corporate
Reorganization Adjustments |
|
Pro forma |
|
|||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Revenues |
|||||||||||||||||||||||||||||||
Well Services |
$ | 27.3 | $ | 10.3 | $ | (0.8 | ) | (c) | $ | | $ | | $ | | $ | 36.8 | |||||||||||||||
Processing Solutions |
1.8 | | | | | | 1.8 | ||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total revenues |
29.1 | 10.3 | (0.8 | ) | | | | 38.6 | |||||||||||||||||||||||
Operating expenses: |
|||||||||||||||||||||||||||||||
Cost of services (exclusive of depreciation and amortization shown separately) |
|||||||||||||||||||||||||||||||
Well Services |
23.2 | 7.0 | (1.3 | ) | (c) | | | | 28.9 | ||||||||||||||||||||||
Processing Solutions |
0.7 | | | | | | 0.7 | ||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total cost of services |
23.9 | 7.0 | (1.3 | ) | | | | 29.6 | |||||||||||||||||||||||
General and administrative expenses |
7.3 | 3.3 | (0.7 | ) | (c) | 0.2 | (d) | | | 10.1 | |||||||||||||||||||||
Bad debt expense |
0.2 | | (0.2 | ) | (d) | | | | |||||||||||||||||||||||
Depreciation and amortization |
3.6 | 2.0 | (0.1 | ) | (c) | | | | 5.5 | ||||||||||||||||||||||
Management fees |
| | | | | | | ||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total operating expenses |
34.8 | 12.5 | (2.1 | ) | | | | 45.2 | |||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating loss |
(5.7 | ) | (2.2 | ) | 1.3 | | | | (6.6 | ) | |||||||||||||||||||||
Other expenses |
|||||||||||||||||||||||||||||||
Interest expense, net |
(0.5 | ) | (0.1 | ) | 0.1 | (c) | | 0.4 | (e) | | (0.1 | ) | |||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income (loss) before income taxes |
(6.2 | ) | (2.3 | ) | 1.4 | | 0.4 | | (6.7 | ) | |||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income tax provision |
| | | | | 1.3 | (f) | 1.3 | |||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss |
$ | (6.2 | ) | $ | (2.3 | ) | $ | 1.4 | $ | | $ | 0.4 | $ | (1.3 | ) | $ | (8.0 | ) | |||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Less: net loss attributable to non-controlling interest |
$ | (3.8 | ) | ||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss attributable to shareholders |
$ | (4.2 | ) | ||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss per share: |
|||||||||||||||||||||||||||||||
Basic |
(0.69 | ) | (n) | ||||||||||||||||||||||||||||
Diluted |
(0.69 | ) | (n) | ||||||||||||||||||||||||||||
Weighted average shares outstanding |
|||||||||||||||||||||||||||||||
Basic |
6,068,250 | (n) | |||||||||||||||||||||||||||||
Diluted |
6,068,250 | (n)(o) |
The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.
F-7
RANGER ENERGY SERVICES, INC.
UNAUDITED PRO FORMA CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2016
(in millions)
|
Predecessor
Historical (a) |
Magna
Energy Services, LLC (g) |
Bayou
Workover Services, LLC (h) |
Esco
Leasing, LLC (i) |
Esco
Excluded Costs |
|
Purchase
Accounting Adjustments |
|
Offering
Related Adjustments |
|
Corporate
Reorganization Adjustments |
|
Pro forma |
|
|||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Revenues |
|||||||||||||||||||||||||||||||||||||||||
Well Services |
$ | 46.3 | $ | 16.5 | $ | 27.3 | $ | 32.5 | $ | (3.1 | ) | (c) | $ | | $ | | $ | | $ | 119.5 | |||||||||||||||||||||
Processing Solutions |
6.5 | | | | | | | | 6.5 | ||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total revenues |
52.8 | 16.5 | 27.3 | 32.5 | (3.1 | ) | | | | 126.0 | |||||||||||||||||||||||||||||||
Operating expenses: |
|||||||||||||||||||||||||||||||||||||||||
Cost of services (exclusive of depreciation and amortization shown separately) |
|||||||||||||||||||||||||||||||||||||||||
Well Services |
36.7 | 13.0 | 23.2 | 26.0 | (3.3 | ) | (c) | | | | 95.6 | ||||||||||||||||||||||||||||||
Processing Solutions |
2.6 | | | | | | | | 2.6 | ||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total cost of services |
39.3 | 13.0 | 23.2 | 26.0 | (3.3 | ) | | | 98.2 | ||||||||||||||||||||||||||||||||
General and administrative expenses |
11.4 | 5.2 | 5.0 | 13.0 | (7.6 | ) | (c) | (0.3 | ) | (j)(k)(l) | | | 26.7 | ||||||||||||||||||||||||||||
Depreciation and amortization |
6.6 | 5.1 | 9.6 | 8.2 | (0.3 | ) | (c) | (7.2 | ) | (m) | | | 22.0 | ||||||||||||||||||||||||||||
Impairment expense |
| | | 0.4 | (0.4 | ) | (c) | | | | | ||||||||||||||||||||||||||||||
Management fees |
| 0.3 | | | | (0.3 | ) | (j) | | | | ||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total operating expenses |
57.3 | 23.6 | 37.8 | 47.6 | (11.6 | ) | (7.8 | ) | | | 146.9 | ||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating loss |
(4.5 | ) | (7.1 | ) | (10.5 | ) | (15.1 | ) | 8.5 | 7.8 | | | (20.9 | ) | |||||||||||||||||||||||||||
Other expenses |
|||||||||||||||||||||||||||||||||||||||||
Interest expense, net |
(0.5 | ) | (0.7 | ) | | (0.5 | ) | 0.5 | (c) | | 0.1 | (e | ) | | (1.1 | ) | |||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income (loss) before income taxes |
(5.0 | ) | (7.8 | ) | (10.5 | ) | (15.6 | ) | 9.0 | 7.8 | 0.1 | | (22.0 | ) | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income tax provision |
| | | 0.1 | | | | | 0.1 | ||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss) |
$ | (5.0 | ) | $ | (7.8 | ) | $ | (10.5 | ) | $ | (15.7 | ) | $ | 9.0 | $ | 7.8 | $ | 0.1 | $ | | $ | (22.1 | ) | ||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Less: net loss attributable to non-controlling interest |
$ | (10.5 | ) | ||||||||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss attributable to shareholders |
$ | (11.6 | ) | ||||||||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net loss per share: |
|||||||||||||||||||||||||||||||||||||||||
Basic |
(1.92 | ) | (n | ) | |||||||||||||||||||||||||||||||||||||
Diluted |
(1.92 | ) | (n | ) | |||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding |
|||||||||||||||||||||||||||||||||||||||||
Basic |
6,068,250 | (n | ) | ||||||||||||||||||||||||||||||||||||||
Diluted |
6,068,250 | (n | )(o) |
The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.
F-8
RANGER ENERGY SERVICES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS
1. Basis of presentation, transaction and this offering
The historical financial information is derived from the historical audited combined consolidated and the unaudited condensed combined consolidated financial statements of our Predecessor. The unaudited pro forma condensed statement of operations for the year ended December 31, 2016 includes the following adjustments: (i) the acquisitions of Magna and Bayou, (ii) the ESCO Acquisition, (iii) the transactions described under "Our History and Corporate Reorganization" and (iv) the Offering, as if each had been completed as of January 1, 2016. The unaudited pro forma condensed financial statements as of and for the three months ended March 31, 2017 include the following adjustments: (i) the ESCO Acquisition, (ii) the transactions described under "Our History and Corporate Reorganization" and (iii) the Offering, as if each had been completed as of January 1, 2016, in the case of the unaudited pro forma condensed statement of operations, and March 31, 2017, in the case of the unaudited pro forma condensed balance sheet. The adjustments are based on currently available information and certain estimates and assumptions and therefore the actual effects of these transactions will differ from the pro forma adjustments.
2. Purchase Price Allocation
On May 30, 2017, the Company signed a purchase sale agreement, which was amended and restated on July 31, 2017, to acquire assets of ESCO, contingent on the successful completion of the IPO. The amended and restated agreement excluded certain assets and changed payments to include $7.0 million of secured seller notes. ESCO is primarily engaged in the completion, repair and workover of oil and gas wells and drilling and completing water wells for oil and gas customers. The acquisition will be accounted for using the acquisition method of accounting in accordance with Accounting Standards Codification ("ASC") 805, Business Combinations. ASC 805 requires, among other things, that assets acquired and liabilities assumed be recognized at their fair values, as determined in accordance with ASC 820, Fair Value Measurements, as of the acquisition date. Under the acquisition method of accounting, the assets acquired and liabilities assumed are recorded at the effective time of the acquisition at their respective fair values and added to those of the Company.
The following information below represents the preliminary purchase allocation related to the ESCO Acquisition (in millions):
Total estimated purchase consideration transferredCash |
$ | 47.7 | ||
Total estimated purchase consideration transferredDebt |
7.0 | |||
Total estimated purchase consideration transferredEquity issued |
5.0 | |||
| | | | |
Total estimated consideration transferred |
59.7 | |||
Net assets acquired |
44.4 | |||
| | | | |
Goodwill |
$ | 15.3 | ||
| | | | |
| | | | |
| | | | |
3. Unaudited pro forma condensed balance sheet adjustments and assumptions
The adjustments are based on currently available information and certain estimates and assumptions and therefore the actual effects of these transactions will differ from the pro forma adjustments. A description of these transactions and adjustments are provided as follows:
F-9
RANGER ENERGY SERVICES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS (Continued)
3. Unaudited pro forma condensed balance sheet adjustments and assumptions (Continued)
Sources of funds | Uses of funds | ||||||||
---|---|---|---|---|---|---|---|---|---|
Gross proceeds from this offering |
$ | 85.0 |
Repayment of long-term debt(1) |
$ | 10.4 | ||||
Cash on hand(2) |
9.9 |
Payment of cash bonuses to certain employees |
0.7 | ||||||
|
Fund the cash portion of consideration for ESCO Acquisition(2) |
47.7 | |||||||
|
Underwriter discount |
5.5 | |||||||
|
Offering related costs |
5.0 | |||||||
|
Retained cash for general corporate purposes |
25.6 | |||||||
| | | | | | | | | |
Total sources of funds |
$ | 94.9 |
Total uses of funds |
$ | 94.9 | ||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
F-10
RANGER ENERGY SERVICES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS (Continued)
3. Unaudited pro forma condensed balance sheet adjustments and assumptions (Continued)
4. Unaudited pro forma condensed statements of operations adjustments and assumptions
The adjustments are based on currently available information and certain estimates and assumptions and therefore the actual effects of these transactions will differ from the pro forma adjustments. A description of these transactions and adjustments are provided as follows:
F-11
RANGER ENERGY SERVICES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS (Continued)
4. Unaudited pro forma condensed statements of operations adjustments and assumptions (Continued)
|
Year Ended
December 31, 2016 |
Three Months
Ended March 31, 2017 |
|||||
---|---|---|---|---|---|---|---|
DepreciationMagna Acquisition |
$ | 1.0 | $ | | |||
DepreciationBayou Acquisition |
5.0 | | |||||
DepreciationESCO Acquisition |
| ||||||
AmortizationBayou Acquisition |
0.4 | | |||||
Less: |
|
|
|||||
Historical Depreciation and AmortizationMagna Acquisition |
(4.0 | ) | | ||||
Historical Depreciation and AmortizationBayou Acquisition |
(9.6 | ) | | ||||
Historical Depreciation and AmortizationESCO Acquisition |
|||||||
| | | | | | | |
Pro Forma net adjustment to depreciation and amortization |
$ | (7.2 | ) | $ | | ||
| | | | | | | |
| | | | | | | |
| | | | | | | |
F-12
RANGER ENERGY SERVICES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS (Continued)
4. Unaudited pro forma condensed statements of operations adjustments and assumptions (Continued)
related transactions (including the ESCO Acquisition and the repayment of our bridge loan) was outstanding from the beginning of the respective periods presented.
F-13
Report of Independent Registered Public Accounting Firm
Board
of Directors and Stockholder
Ranger Energy Services, Inc.
We have audited the accompanying balance sheet of Ranger Energy Services, Inc. (the "Company") as of March 31, 2017. This balance sheet is the responsibility of the Company's management. Our responsibility is to express an opinion on this balance sheet based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the balance sheet is free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheet, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall balance sheet presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all material respects, the financial position of the Company at March 31, 2017 in conformity with accounting principles generally accepted in the United States of America.
/s/ BDO USA, LLP
Houston, Texas
July 23, 2017
F-14
RANGER ENERGY SERVICES, INC.
BALANCE SHEET
|
March 31,
2017 |
|||
---|---|---|---|---|
Assets |
||||
Total Assets |
$ | | ||
| | | | |
| | | | |
| | | | |
Liabilities |
||||
Total liabilities |
$ | | ||
Commitments and contingencies |
||||
Stockholders' equity |
||||
Note receivable from Ranger Energy Services, LLC |
(10 | ) | ||
Common stock, $0.01 par value; 1,000 shares authorized, issued and outstanding |
10 | |||
| | | | |
Total stockholders' equity |
| |||
| | | | |
Total liabilities and stockholders' equity |
$ | | ||
| | | | |
| | | | |
| | | | |
The accompanying notes are an integral part of this balance sheet.
F-15
RANGER ENERGY SERVICES, INC.
NOTES TO BALANCE SHEET
1. Organization and Basis of Presentation Organization and Basis of Presentation
Ranger Energy Services, Inc. (the "Company") is a corporation formed under the laws of the State of Delaware on February 17, 2017 (date of inception). The Company has adopted a fiscal year-end of December 31. The Company has the authority to issue 1,000 shares of common stock with a par value of $0.01 per share. Each holder of shares of common stock is entitled to attend all special and annual meetings of the stockholders of the corporation and to cast one vote for each outstanding share of common stock.
The Company issued 1,000 shares of common stock to Ranger Energy Services, LLC in exchange for a $10 note receivable. As of March 31, 2017, the $10 initial capitalization has not been funded. As a result, the Company has presented this receivable as contra equity.
This balance sheet has been prepared in accordance with accounting principles generally accepted in the United States.
Through March 31, 2017, the Company had not earned any revenue and had not incurred any expenses; therefore, the statements of income, stockholder's equity and cash flows have been omitted. There have been no other transactions involving the Company as of March 31, 2017.
2. Subsequent Events
Ranger has evaluated subsequent events through July 23, 2017, the date the financial statements were available to be issued.
F-16
RANGER ENERGY SERVICES, INC. PREDECESSOR
CONDENSED COMBINED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(in millions)
|
December 31, 2016 | March 31,2017 | |||||
---|---|---|---|---|---|---|---|
Assets |
|||||||
Current assets |
|||||||
Cash and cash equivalents |
$ | 1.6 | $ | 2.0 | |||
Restricted cash |
1.8 | 1.6 | |||||
Accounts receivable, net |
13.4 | 20.5 | |||||
Unbilled revenues |
1.2 | 1.7 | |||||
Prepaid expenses and other current assets |
1.4 | 1.5 | |||||
Assets held for sale |
2.9 | 2.9 | |||||
| | | | | | | |
Total current assets |
22.3 | 30.2 | |||||
Property, plant and equipment, net |
102.4 | 117.8 | |||||
Goodwill |
1.6 | 1.6 | |||||
Intangible assets, net |
9.2 | 9.1 | |||||
Other assets |
0.2 | 1.0 | |||||
| | | | | | | |
Total assets |
$ | 135.7 | $ | 159.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Liabilities and Net Parent Investment |
|||||||
Current liabilities |
|||||||
Accounts payable |
$ | 4.7 | $ | 7.1 | |||
Accounts payablerelated party |
2.4 | | |||||
Accrued expenses |
2.0 | 10.5 | |||||
Capital lease obligations, current portion |
0.5 | 7.6 | |||||
Related party debt |
| 11.2 | |||||
Long-term debt, current portion |
2.3 | 11.3 | |||||
| | | | | | | |
Total current liabilities |
11.9 | 47.7 | |||||
Capital lease obligations, less current portion |
0.3 | 0.2 | |||||
Long-term debt, less current portion |
9.8 | | |||||
Other long-term liabilities |
1.1 | 1.0 | |||||
| | | | | | | |
Total liabilities |
23.1 | 48.9 | |||||
Commitments and contingencies (Note 9) |
|
|
|||||
Net parent investment |
112.6 |
110.8 |
|||||
| | | | | | | |
Total liabilities and net parent investment |
$ | 135.7 | $ | 159.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these unaudited condensed combined consolidated financial statements.
F-17
RANGER ENERGY SERVICES, INC. PREDECESSOR
CONDENSED COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(in millions)
|
Three months
ended March 31, |
||||||
---|---|---|---|---|---|---|---|
|
2016 | 2017 | |||||
Revenues |
|||||||
Well Services |
$ | 3.6 | $ | 27.3 | |||
Processing Solutions |
1.2 | 1.8 | |||||
| | | | | | | |
Total revenues |
4.8 | 29.1 | |||||
| | | | | | | |
Operating expenses |
|||||||
Cost of services (exclusive of depreciation and amortization shown separately): |
|||||||
Well Services |
2.9 | 23.2 | |||||
Processing Solutions |
0.6 | 0.7 | |||||
| | | | | | | |
Total cost of services |
3.5 | 23.9 | |||||
General and administrative |
1.7 | 7.3 | |||||
Depreciation and amortization |
0.9 | 3.6 | |||||
| | | | | | | |
Total operating expenses |
6.1 | 34.8 | |||||
| | | | | | | |
Operating loss |
(1.3 | ) | (5.7 | ) | |||
Other expenses |
|||||||
Interest expense, net |
(0.1 | ) | (0.5 | ) | |||
| | | | | | | |
Total other expenses |
(0.1 | ) | (0.5 | ) | |||
| | | | | | | |
Net loss |
$ | (1.4 | ) | $ | (6.2 | ) | |
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these unaudited condensed combined consolidated financial statements.
F-18
RANGER ENERGY SERVICES, INC. PREDECESSOR
CONDENSED COMBINED CONSOLIDATED STATEMENTS OF NET PARENT INVESTMENT
(UNAUDITED)
(in millions)
|
Ranger | Torrent |
Net Parent
Investment |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Balance at December 31, 2016 |
$ | 86.8 | $ | 25.8 | $ | 112.6 | ||||
Contributions from parent |
4.0 | | 4.0 | |||||||
Equity based compensation |
0.3 | 0.1 | 0.4 | |||||||
Net income (loss) |
(6.3 | ) | 0.1 | (6.2 | ) | |||||
| | | | | | | | | | |
Balance at March 31, 2017 |
$ | 84.8 | $ | 26.0 | $ | 110.8 | ||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
The accompanying notes are an integral part of these unaudited condensed combined consolidated
financial statements.
F-19
RANGER ENERGY SERVICES, INC. PREDECESSOR
CONDENSED COMBINED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in millions)
|
Three Months
Ended March 31, |
||||||
---|---|---|---|---|---|---|---|
|
2016 | 2017 | |||||
Cash flows from operating activities |
|||||||
Net loss |
$ | (1.4 | ) | $ | (6.2 | ) | |
Adjustments to reconcile net loss to cash provided by (used in) operating activities: |
|||||||
Depreciation and amortization |
0.9 | 3.6 | |||||
Bad debt expense |
| 0.1 | |||||
Equity based compensation |
| 0.4 | |||||
Changes in operating assets and liabilities: |
|||||||
Accounts receivable |
(0.5 | ) | (7.2 | ) | |||
Unbilled revenue |
| (0.5 | ) | ||||
Prepaid expenses and other current assets |
0.6 | (0.1 | ) | ||||
Other assets |
| (0.8 | ) | ||||
Accounts payable |
0.2 | 1.9 | |||||
Accounts payablerelated party |
| (2.4 | ) | ||||
Accrued expenses |
(0.1 | ) | 4.5 | ||||
Other long-term liabilities |
| (0.1 | ) | ||||
| | | | | | | |
Net cash used in operating activities |
(0.3 | ) | (6.8 | ) | |||
| | | | | | | |
Cash flows from investing activities |
|||||||
Purchase of property, plant and equipment |
(1.4 | ) | (7.3 | ) | |||
| | | | | | | |
Net cash used in investing activities |
(1.4 | ) | (7.3 | ) | |||
| | | | | | | |
Cash flows from financing activities |
|||||||
Borrowings under line of credit agreement |
0.1 | | |||||
Payments on third party borrowings |
(0.8 | ) | (0.8 | ) | |||
Borrowings on long-term debt |
1.0 | | |||||
Borrowings on related party debt |
| 11.2 | |||||
Principal payments on capital lease obligations |
(0.2 | ) | (0.1 | ) | |||
Contributions from parent |
1.6 | 4.0 | |||||
Restricted cash |
0.4 | 0.2 | |||||
| | | | | | | |
Net cash provided by financing activities |
2.1 | 14.5 | |||||
| | | | | | | |
Increase in cash and cash equivalents |
0.4 | 0.4 | |||||
Cash and cash equivalents, beginning of period |
1.1 | 1.6 | |||||
| | | | | | | |
Cash and cash equivalents, end of period |
$ | 1.5 | $ | 2.0 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Supplemental cash flows information |
|||||||
Interest paid |
(0.1 | ) | (0.5 | ) | |||
Supplemental disclosure of noncash investing and financing activity |
|||||||
Non-cash capital expenditures included in liabilities |
$ | | $ | (4.5 | ) | ||
Non-cash additions to fixed assets through capital lease financing |
$ | (0.1 | ) | $ | (7.1 | ) |
The accompanying notes are an integral part of these unaudited condensed combined consolidated
financial statements.
F-20
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1. BACKGROUND AND BASIS OF PRESENTATION
Background
The accompanying unaudited condensed combined consolidated financial statements of Ranger Energy Services, Inc. Predecessor (the "Predecessor", "our", "we" or the "Company") includes the financial positions and results of operations for the following businesses (the "Contributed Entities") which were formed or acquired by CSL Capital Management, LLC ("CSL" or "Parent"). In connection with an anticipated Initial Public Offering ("IPO") of Ranger Energy Services, Inc. (the "Registrant"), the Predecessor and the Contributed Entities will be contributed to the Registrant in exchange for shares in the Registrant.
Basis of Presentation
The accompanying unaudited condensed combined consolidated financial statements of the Predecessor have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial reporting. The year-end condensed balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. These financial statements, therefore, should be read in conjunction with the combined consolidated financial statements and related notes included in this registration statement for the years ended December 31, 2016 and 2015. In management's opinion, all adjustments necessary for a fair statement are reflected in the interim periods presented.
New Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2014-09, Revenue from Contracts with Customers . ASU 2014-09 supersedes existing revenue recognition requirements in GAAP and requires an entity to recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which
F-21
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 1. BACKGROUND AND BASIS OF PRESENTATION (Continued)
the entity expects to be entitled to in exchange for those goods or services. Additionally, it requires expanded disclosures regarding the nature, amount, timing, and certainty of revenue and cash flows from contracts with customers. The ASU is effective for annual and interim reporting periods beginning after December 15, 2017. Early adoption is permitted. The Company is in the initial stages of evaluating the effect of the standard on our combined consolidated financial statements and continues to evaluate the available transition methods.
In February 2016, the FASB issued ASU No, 2016-02, Leases, amending the current accounting for leases. Under the new provisions, all lessees will report a right-of-use asset and a liability for the obligation to make payments for all leases with the exception of those leases with a term of 12 months or less. All other leases will fall into one of two categories: (i) a financing lease or (ii) an operating lease. Lessor accounting remains substantially unchanged with the exception that no leases entered into after the effective date will be classified as leveraged leases. For sale leaseback transactions, a sale will only be recognized if the criteria in the new revenue recognition standard are met. ASU 2016-2 is effective for fiscal years beginning after December 15, 2018, including interim within that reporting period, using a modified retrospective approach. Early adoption is permitted. The Company is in the initial stages of evaluating the effect of the standard on our combined consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, Financial InstrumentsCredit Losses . The amendments in ASU 2016-13 require the measurement of all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. In addition, ASU 2016-13 amends the accounting for credit losses on Available-for-sale debt securities and purchased financial assets with credit deterioration. The amendment is effective for public entities for annual reporting periods beginning after December 15, 2019, however early application is permitted for reporting periods beginning after December 15, 2018. The Company is in the initial stages of evaluating the effect of the standard on our combined consolidated financial statements.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230), Classification of Certain Cash Receipts and Cash Payments . ASU 2016-15 reduces diversity in practice in how certain transactions are classified in the statement of cash flows. The guidance addresses specific cash flow issues for which current GAAP is either unclear or does not include specific guidance. ASU 2016-15 is effective for annual and interim periods beginning after December 15, 2017. The Company is currently assessing the potential impact of ASU 2016-15 on our combined consolidated financial statements of cash flows.
In January 2017, the FASB issued ASU 2017-04, IntangiblesGoodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment . ASU 2017-04 eliminates the requirement to calculate the implied fair value of goodwill to measure a goodwill impairment charge. Instead, entities will record an impairment charge based on the excess of a reporting unit's carrying amount over its fair value. The ASU is effective for annual and interim impairment tests performed in periods beginning after December 15, 2019. Early adoption is permitted for annual and interim goodwill impairment testing dates after January 1, 2017. The ASU will be applied prospectively. We currently do not expect that the adoption of this standard will have a material impact on our combined consolidated financial statements.
F-22
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 1. BACKGROUND AND BASIS OF PRESENTATION (Continued)
In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805), Clarifying the Definition of a Business , which clarifies the definition of a business with the objective of adding guidance to assist entities with evaluating whether transactions should be accounted for as acquisitions (or disposals) of asset or business. ASU 2017-01 is effective for fiscal years and interim periods within fiscal years beginning after December 15, 2017 and should be applied prospectively. Early adoption is allowed for transactions that occurred before the issuance date or effective date of the amendments only when the transaction has not been reported in the financial statements previously issued. We currently do not expect that the adoption of this standard will have a material impact on our combined consolidated financial statements.
NOTE 2. ACQUISITIONS
Magna Acquisition
On June 24, 2016, CSL acquired Magna, a privately held oilfield services company that provides workover, plug and abandonment, fluid management and wireline services, for an aggregate purchase price of approximately $12.7 million to gain market share in the industry. Magna's operations are focused primarily in Colorado, Wyoming and North Dakota. Ranger accounted for this acquisition as a business combination. No goodwill was recorded in conjunction with the Magna acquisition as the total purchase consideration approximated the fair value of assets acquired and liabilities assumed.
A summary of the fair value of the assets acquired and the liabilities assumed in connection with the Magna acquisition is set forth below (in millions):
Purchase price |
||||
Cash paid by CSL |
$ | 12.7 | ||
| | | | |
Total purchase price |
$ | 12.7 | ||
| | | | |
| | | | |
| | | | |
Purchase price allocation |
||||
Cash |
$ | 1.2 | ||
Accounts receivable |
3.0 | |||
Prepaid expenses and other |
1.2 | |||
Property, plant and equipment |
8.8 | |||
Tradename |
0.1 | |||
| | | | |
Total assets acquired |
14.3 | |||
| | | | |
Accounts payable |
(1.0 | ) | ||
Accrued expenses |
(0.6 | ) | ||
| | | | |
Total liabilities assumed |
(1.6 | ) | ||
| | | | |
Allocated purchase price |
$ | 12.7 | ||
| | | | |
| | | | |
| | | | |
On September 28, 2016, Magna was contributed to Ranger by CSL to gain market share in the industry. As this was a transaction among entities under common control, the assets and liabilities were recorded at their historical carrying values from the date of the initial acquisition by CSL on June 24,
F-23
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 2. ACQUISITIONS (Continued)
2016. The costs related to the transaction were $0.1 million and were expensed during 2016 in the Company's combined consolidated statements of operations for the year ended December 31, 2016.
Bayou Acquisition
On October 3, 2016, Ranger acquired Bayou, a privately held oilfield services company that provides workover, plug and abandonment and fluid management services, for an aggregate purchase price of approximately $50.5 million, which included an approximate 35% equity interest in Ranger. Bayou's operations are focused primarily in Colorado and North Dakota. Ranger accounted for this acquisition as a business combination.
A summary of the fair value of the assets acquired and the liabilities assumed in connection with the Bayou acquisition is set forth below (in millions):
Purchase price |
||||
Cash |
$ | 17.5 | ||
Equity issued |
33.0 | |||
| | | | |
Total purchase price |
$ | 50.5 | ||
| | | | |
| | | | |
| | | | |
Purchase price allocation |
||||
Prepaid expenses & other |
$ | 0.5 | ||
Property, plant and equipment |
40.0 | |||
Land |
0.6 | |||
Building and site improvements |
2.3 | |||
Customer relationships |
9.3 | |||
| | | | |
Total assets acquired |
52.7 | |||
| | | | |
Accounts payable |
(1.8 | ) | ||
Accrued expenses |
(1.0 | ) | ||
Other long-term liabilities |
(1.0 | ) | ||
| | | | |
Total liabilities assumed |
(3.8 | ) | ||
| | | | |
Goodwill |
1.6 | |||
| | | | |
Allocated purchase price |
$ | 50.5 | ||
| | | | |
| | | | |
| | | | |
Goodwill represents trained and assembled workforce which does not meet the separability criterion. The costs related to the transaction were $0.4 million and were expensed during 2016 in the Company's combined consolidated statements of operations for the year ended December 31, 2016.
NOTE 3. ASSETS HELD FOR SALE
During the year ended December 31, 2016, the Company decided to market and sell non-core rental fleet assets. The units consisted of MRUs, stabilizers and wedge units, and were classified as held for sale due to the fact that they were specifically identified, and management has a plan for their sale in their present condition to occur in the next year. As of March 31, 2017, the units are still classified as held for sale. The available for sale assets are recorded at the units' carrying amount, which approximates fair value less costs to sell, and are no longer depreciated.
F-24
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 4. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment include the following (in millions):
|
Estimated
Useful Life (years) |
December 31,
2016 |
March 31,
2017 |
||||||
---|---|---|---|---|---|---|---|---|---|
Machinery and equipment |
5 - 30 | $ | 3.0 | $ | 2.9 | ||||
Vehicles |
3 - 5 | 0.2 | 0.2 | ||||||
Mechanical refrigeration units |
30 | 16.0 | 16.0 | ||||||
NGL storage tanks |
15 | 4.3 | 4.3 | ||||||
Workover rigs |
5 - 20 | 73.8 | 95.5 | ||||||
Other property, plant and equipment |
3 - 30 | 13.8 | 11.1 | ||||||
| | | | | | | | | |
Property, plant and equipment |
111.1 | 130.0 | |||||||
Less: accumulated depreciation |
(8.7 | ) | (12.2 | ) | |||||
| | | | | | | | | |
Property, plant and equipment, net |
$ | 102.4 | $ | 117.8 | |||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
Depreciation expense was $0.9 million and $3.5 million for the three months ended March 31, 2016 and 2017, respectively.
NOTE 5. GOODWILL AND INTANGIBLE ASSETS
Goodwill was $1.6 million as of December 31, 2016 and March 31, 2017. During 2016, $1.6 million of goodwill was recognized in connection with the Bayou acquisition.
Definite lived intangible assets are comprised of the following (in millions):
|
Estimated
Useful Life (years) |
December 31,
2016 |
March 31,
2017 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Tradenames |
3 | $ | 0.1 | $ | 0.1 | |||||
Customer relationships |
18 | 9.2 | 9.2 | |||||||
Less: accumulated amortizationtradenames |
(0.0 | ) | (0.0 | ) | ||||||
Less: accumulated amortizationcustomer relationships |
(0.1 | ) | (0.2 | ) | ||||||
| | | | | | | | | | |
Intangible assets, net |
$ | 9.2 | $ | 9.1 | ||||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
F-25
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 5. GOODWILL AND INTANGIBLE ASSETS (Continued)
Amortization expense was $0 and $0.1 million for the three months ended March 31, 2016 and 2017, respectively. Aggregated expected amortization expense for the future periods is expected to be as follows (in millions):
As of March 31, 2017
|
Amount | |||
---|---|---|---|---|
2017 |
$ | 0.4 | ||
2018 |
0.5 | |||
2019 |
0.5 | |||
2020 |
0.5 | |||
2021 |
0.5 | |||
Thereafter |
6.7 | |||
| | | | |
|
$ | 9.1 | ||
| | | | |
| | | | |
| | | | |
NOTE 6. CAPITAL LEASES
The Company leases certain assets under capital leases which expire at various dates through 2018. The assets and liabilities under capital leases are recorded at the lower of present value of the minimum lease payments or the fair value of the assets. The assets are amortized over their estimated useful lives or over the lease term. Amortization of assets under capital leases were $0.2 million for each of the three months ended March 31, 2016 and 2017.
In February 2017, the Company entered into a lease agreement for certain high-specification rig equipment for use in its business operations. The lease is being accounted for as a capital lease, as the present value of minimum monthly lease payments, including the purchase option, exceeds 90 percent of the fair value of the leased property at inception of the lease. The lease term ends January 2018, and as such, the total obligation is current.
Aggregate future minimum lease payments under capital leases are as follows (in millions):
|
Total | |||
---|---|---|---|---|
2017 |
$ | 0.4 | ||
2018 |
7.6 | |||
| | | | |
Total future minimum lease payments |
8.0 | |||
Less: amount representing interest |
(0.2 | ) | ||
| | | | |
Present value of future minimum lease payments |
7.8 | |||
Less: current portion of capital lease obligations |
(7.6 | ) | ||
| | | | |
Total capital lease obligations, less current portion |
$ | 0.2 | ||
| | | | |
| | | | |
| | | | |
F-26
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 7. LONG-TERM DEBT
Long-term debt consists of the following (in millions):
|
December 31,
2016 |
March 31,
2017 |
|||||
---|---|---|---|---|---|---|---|
Term Loan |
$ | 7.1 | $ | 6.3 | |||
Revolver |
5.0 | 5.0 | |||||
Current portion of long-term debt |
(2.3 | ) | (11.3 | ) | |||
| | | | | | | |
Long-term debt, less current portion |
$ | 9.8 | $ | | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
In 2015, Ranger had a $2.0 million revolving line of credit with Iberia Bank expiring on April 30, 2018 (the "Revolver"). On December 23, 2016, Ranger amended the Revolver to increase its size to $5.0 million. As of December 31, 2016 and March 31, 2017, there was $5.0 million borrowed against this revolver. The Revolver was secured by substantially all of Ranger's assets (approximately $132.1 million of the Company's total assets as of March 31, 2017). Interest varies with the bank's prime rate and the bank's London Interbank Offered Rate ("LIBOR"). At December 31, 2016 and March 31, 2017, the interest rate was 4.12% and 4.28%, respectively.
In February 2015, as amended in March 31, 2016, Torrent secured a $2.0 million senior credit facility with Texas Capital Bank consisting of a $2.0 million Advancing Term Loan as defined by the note agreement. The note is secured by substantially all of Torrent's assets (approximately $27.5 million of the Company's total assets as of March 31, 2017). Interest varies with the bank's prime rate and the bank's LIBOR and is payable quarterly through the maturity of the note. As of December 31, 2016 and March 31, 2017, the interest rate was 5.75%. The agreement also requires the Company to maintain certain financial and non-financial covenants. Effective March 31, 2016, covenant compliance was waived for the fiscal quarters ended December 31, 2015, March 31, 2016 and June 30, 2016. The Company made a $1.2 million principal payment in April 2016, in order to obtain the bank waiver and accelerated the final loan balance pay-off to October 3, 2017. As of December 31, 2016 and March 31, 2017, there was $0.7 million and $0.5 million, respectively, outstanding on the senior credit facility.
In March 2015, Torrent, through certain members of its management team as borrowers, secured a $0.6 million promissory note with Benchmark Bank. Interest varies with the bank's prime rate. Initially, all principal and interest was due on the date of maturity of September 4, 2015, however, the terms were renegotiated and a restructured note and agreement was entered into in April 2016 with an interest rate of 4.5%. In April 2016, Torrent made a principal payment of $0.4 million on this promissory note, leaving a remaining balance of $0.2 million, which is secured by a $0.2 million certificate of deposit. As of December 31, 2016, there was $0.2 million outstanding on the promissory note. The remaining principal balance was repaid in full on February 28, 2017.
In April 2015, Ranger secured a $7.0 million promissory note with Iberia Bank. Interest varies with the bank's prime rate and the bank's LIBOR and is payable in 60 equal monthly installments, which commenced on May 1, 2016. As of December 31, 2016 and March 31, 2017, the interest rate was 4.12%, and 4.28% respectively. Installment payments are due through May 1, 2019, and the note is secured by substantially all of Ranger's assets (approximately $132.1 million of the Company's total assets as of March 31, 2017). As of December 31, 2016 and March 31, 2017, the outstanding balance was $6.2 million and $5.8 million, respectively.
F-27
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 7. LONG-TERM DEBT (Continued)
All debt agreements include the usual and customary covenants for facilities of its type and size. The covenants cover matters such as minimum fixed charge coverage ratio, maximum leverage ratio, current ratio, maximum indebtedness to capitalization ratio, minimum debt service coverage ratio and minimum net income. As of March 31, 2017, the Company was not in compliance with certain financial covenants; however a waiver of non-compliance was obtained from the financial institution. The Company does not anticipate being in compliance within the next twelve months and accordingly has classified the debt as current in the accompanying condensed combined consolidated balance sheet at March 31, 2017. CSL has indicated its ability and intent to provide additional capital to the Company through at least one year from the date of issuance of these condensed combined consolidated financial statements, if necessary, to enable the Company to meet its financial obligations through that date.
The aggregate future maturities of long-term debt are as follows (in millions):
2017 |
$ | 11.3 | ||
| | | | |
Total |
$ | 11.3 | ||
| | | | |
| | | | |
| | | | |
NOTE 8. RISK CONCENTRATIONS
Customer Concentrations
For the three months ended March 31, 2017, two customers (EOG Resources and PDC EnergyWell Services segment) accounted for approximately 16.4% and 24.9%, respectively, of the Company's revenues balance. At March 31, 2017, approximately 22.7% of the accounts receivable balance was due from these customers.
For the three months ended March 31, 2016, one customer (EOG ResourcesWell Services segment) accounted for approximately 50.7% of the Company's revenues balance. At March 31, 2016, approximately 31% of the accounts receivable balance was due from this customer.
NOTE 9. COMMITMENTS AND CONTINGENCIES
Operating Leases
The Company is obligated under non-cancelable operating leases for facilities and equipment which expire at various dates through 2022. These leases generally contain renewal options for periods ranging from one to five years and require the Company to pay all executory costs (property taxes, maintenance and insurance). Rental payments include minimum rentals. Future minimum rental payments as of March 31, 2017 required under these leases are as follows (in millions):
|
Total | |||
---|---|---|---|---|
2017 |
$ | 1.5 | ||
2018 |
1.8 | |||
2019 |
1.7 | |||
2020 |
1.5 | |||
2021 |
0.4 | |||
Thereafter |
0.0 | |||
| | | | |
Total future minimum lease payments |
$ | 6.9 | ||
| | | | |
| | | | |
| | | | |
F-28
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 9. COMMITMENTS AND CONTINGENCIES (Continued)
For the three months ended March 31, 2016 and 2017, rent expense under all operating leases was $0.1 million and $0.5 million, respectively.
Legal Matters
From time to time, the Company is involved in various legal matters arising in the normal course of business. The Company does not believe that the ultimate resolution of these matters will have a significant effect on its combined consolidated financial position or results of operations.
Employee Benefits
Certain of the Company's employees participate in a retirement savings plan maintained by the Company (the "Plan"). During the three months ended March 31, 2016 and 2017, the Company contributed approximately $0.0 million and $0.3 million, respectively, to the Plan.
Employee Severance
In March 2017, one of Ranger's former officers' employee agreement was terminated. As a result, the former officer became entitled to severance payments of $0.7 million. The amount has been recorded in the accompanying condensed combined consolidated financial statements.
NOTE 10. SEGMENT REPORTING
Our operations are all operated in the United States and organized into two reportable segments: Well Services and Processing Solutions. Our reportable segments comprise the structure used by our Chief Operating Decision Maker ("CODM") to make key operating decisions and assess performance during the years presented in the accompanying combined consolidated financial statements. Our CODM evaluates the segments' operating performance based on multiple measures including Adjusted EBITDA, rig hours and rig utilization. The following is a description of the segments:
Well Services. Our well service rigs facilitate operations throughout the lifecycle of a well, including (I) well completion support; (ii) workover; (iii) well maintenance; and (iv) decommissioning. We provide these advanced well services to Exploration & Production ("E&P") companies, particularly to those operating in unconventional oil and natural gas reservoirs and requiring technically and operationally advanced services. Our well service rigs are designed to support growing U.S. horizontal well demands.
Processing Solutions. We provide a range of proprietary, modular equipment for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure.
F-29
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 10. SEGMENT REPORTING (Continued)
Segment information as of and for the three months ended March 31, 2016 and 2017 is as follows (in millions):
|
Well Services |
Processing
Solutions |
Total | |||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Three months ended March 31, 2016 | |||||||||
Revenues |
$ | 3.6 | $ | 1.2 | $ | 4.8 | ||||
Operating loss |
(0.6 | ) | (0.7 | ) | (1.3 | ) | ||||
Interest expense, net |
(0.1 | ) | (0.0 | ) | (0.1 | ) | ||||
|
As of December 31, 2016
|
|||||||||
| | | | | | | | | | |
Total assets |
$ | 107.9 | $ | 27.8 | $ | 135.7 |
|
Well Services |
Processing
Solutions |
Total | |||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Three months ended March 31, 2017 | |||||||||
Revenues |
$ | 27.3 | $ | 1.8 | $ | 29.1 | ||||
Operating income (loss) |
(5.9 | ) | 0.2 | (5.7 | ) | |||||
Interest expense, net |
(0.5 | ) | (0.0 | ) | (0.5 | ) | ||||
|
As of March 31, 2017
|
|||||||||
| | | | | | | | | | |
Total assets |
$ | 132.2 | $ | 27.5 | $ | 159.7 |
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS
Well Services
The Well Services segment (Ranger) is 100% owned by Ranger Energy Holdings, LLC ("Ranger Holdings") and Ranger's equity is represented by a single share class. Ranger Holdings has issued Class C and Class D units to certain key employees of Ranger as remuneration for employee services and are intended to be "profit interests" with no voting rights. Certain of the units vest 33% per year over a three-year service period and may be forfeited or repurchased by Ranger Holdings under certain circumstances as set forth in the Ranger Holdings limited liability company agreement and the individual Class C and Class D unit grant agreements. The "vesting units" are deemed equity and are measured at fair value using an option pricing model at each grant date with compensation expense recognized on a straight-line basis over the requisite service period.
Certain of the Class C and Class D units that were granted are liability-classified awards as they do not fully vest until a defined change of control event. The Company has not recognized a liability or recognized any compensation expense for these liability-classified awards in the accompanying unaudited condensed combined consolidated financial statements since the change of control event is not probable and estimable. These units will trigger no compensation expense until amounts payable under such awards become probable and estimable.
On October 3, 2016, the Class C and Class D units were modified, whereby new units were issued to replace the existing Class C and Class D units that had been issued prior to October 3, 2016. As
F-30
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS (Continued)
part of the issuance of the new Class C and Class D unit, the existing Class C and Class D units were cancelled. The terms of the new and existing Class C and Class D awards were materially similar.
The grant date fair value for the Class C and Class D units prior to modification were de minimis while the grant date fair value for the Class C and Class D units at modification was $2.5 million. During the three months ended March 31, 2016 and 2017, we recognized compensation expense of $0 million and $0.3 million, respectively. The total unrecognized compensation cost related to unvested awards at March 31, 2017 is $1.8 million and is expected to be recognized over the next two years. No distributions were made during the three months ended March 31, 2017.
The following table summarizes the Class C and Class D unit activity for the year ended December 31, 2016 and for the three months ended March 31, 2017 (in millions):
|
Class C units | Class D units | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Equity-based
Compensation Awards |
Liability
Awards |
Equity-based
Compensation Awards |
Liability
Awards |
|||||||||
Outstanding at January 1, 2016 |
0.5 | 0.2 | 0.4 | 0.2 | |||||||||
Granted |
| | | | |||||||||
Forfeited |
| | | | |||||||||
| | | | | | | | | | | | | |
Outstanding at December 31, 2016 |
0.5 | 0.2 | 0.4 | 0.2 | |||||||||
| | | | | | | | | | | | | |
Granted |
| | | | |||||||||
Forfeited |
| | | | |||||||||
| | | | | | | | | | | | | |
Outstanding at March 31, 2017 |
0.5 | 0.2 | 0.4 | 0.2 | |||||||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
We utilized an option pricing model to estimate grant date fair value of the equity-based compensation awards, which included probability of various outcomes. Expected volatilities are based on historical volatilities of the stock of comparable companies in our industry. The risk-free rate for periods within the contractual life of the award is based on the U.S. Treasury yield curve in effect at the time of grant. Actual results may vary depending on the assumptions applied within the model. The following table presents the assumptions used in the valuation and resulting grant date fair value:
|
Pre-Modification | At Modification | ||
---|---|---|---|---|
Period |
5 years | 5 years | ||
Dividend Yield |
0.0% | 0.0% | ||
Volatility |
35 - 60% | 40% | ||
Risk Free Rate |
1.0 - 1.6% | 1.2% |
Processing Solutions
The Processing Solutions segment (Torrent) is 100% owned by Torrent Holdings, LLC ("Torrent Holdings") and Torrent's equity is represented by a single share class. Torrent Holdings has issued Class B and Class C units to certain key employees of Torrent as remuneration for employee services and are intended to be "profit interests" with no voting rights. Class B units have a three-year vesting period at 25% per year, with the remaining 25% vesting upon certain events occurring. Torrent
F-31
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS (Continued)
Holdings also issued Class C awards, which were fully vested at grant date when issued in 2014. Class B and Class C units are deemed to be equity-classified.
The grant date fair value for the Class B and Class C unit awards were $0.3 million and $0.1 million, respectively. Compensation expense is recognized on a straight-line basis over the requisite service period. During the three months ended March 31, 2016 and 2017, we recognized compensation expense of $0 million and $0.1 million, respectively. The total unrecognized compensation cost related to unvested awards at March 31, 2017 is $0.1 million and is expected to be recognized in 2017. There were 0.3 million units distributed during the three months ended March 31, 2017.
The following table summarizes the Class B and Class C unit activity for the year ended December 31, 2016 and for the three months ended March 31, 2017 (in millions):
|
Class B | Class C(1) | |||||
---|---|---|---|---|---|---|---|
Outstanding at January 1, 2016 |
1.0 | 0.0 | |||||
Granted |
| | |||||
Forfeited |
(0.3 | ) | | ||||
| | | | | | | |
Outstanding at December 31, 2016 |
0.7 | 0.0 | |||||
| | | | | | | |
Granted |
0.3 | | |||||
Forfeited |
| | |||||
Outstanding at March 31, 2017 |
1.0 | 0.0 | |||||
| | | | | | | |
| | | | | | | |
| | | | | | | |
We utilized an option pricing model to estimate grant date fair value of the equity-based compensation awards, which included probability of various outcomes. Expected volatilities are based on historical volatilities of the stock of comparable companies in our industry. The risk-free rate for periods within the contractual life of the award is based on the U.S. Treasury yield curve in effect at the time of grant. Actual results may vary depending on the assumptions applied within the model. The following table presents the assumptions used in the valuation and resulting grant date fair value:
|
Assumptions | |
---|---|---|
Period |
2.8 years | |
Dividend Yield |
0.0% | |
Volatility |
28.1% | |
Risk Free Rate |
0.9% |
NOTE 12. RELATED PARTY TRANSACTIONS
The Company incurred approximately $0.0 million and $0.3 million in expenses related to CSL and board members for the three months ended March 31, 2016 and 2017, respectively. As of December 31, 2016 and March 31, 2017, amounts due to CSL and board members were negligible.
F-32
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO CONDENDSED COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(UNAUDITED)
NOTE 12. RELATED PARTY TRANSACTIONS (Continued)
In 2015, Torrent had a $0.6 million promissory note entered into with Benchmark Bank, through certain members of its management as borrowers. At December 31, 2016, $0.2 million was outstanding. On February 28, 2017, the outstanding balance was repaid in full.
In January 2017, the Company purchased certain assets from a related party for approximately $4.0 million.
In February 2017, Ranger entered into the Ranger Bridge Loan, consisting of loan agreements with each of CSL Opportunities II, CSL Holdings II and Bayou Well Holdings Company, LLC, each an indirect equity owner of Ranger Services. The Ranger Bridge Loan, which was obtained to fund capital expenditures and working capital, is evidenced by promissory notes payable to the Bridge Loan Lenders in an aggregate principal amount of $11.1 million, consisting of three individual promissory notes in the principal amounts of (i) $4.4 million payable to CSL Opportunities II, (ii) $3.2 million payable to CSL Holdings II and (iii) $3.6 million payable to Bayou Holdings. The note is secured by substantially all of Ranger's assets (approximately $132.1 million of the Company's total assets as of March 31, 2017). Each note bears interest at a rate of 15% and matures upon the earlier of February 21, 2018 or ten days after the consummation of an initial public offering. The loan agreement includes a make-whole provision in which Ranger will pay 125% of the total amount advanced to Ranger upon settlement. As of March 31, 2017, there was $11.2 million outstanding on the Ranger Bridge Loan. During April 2017, the Company increased its bridge loan debt by $1.0 million to $12.1 million from CSL and Bayou Well Holdings Company, LLC to fund capital expenditures and working capital. During May 2017, the Company increased its bridge loan debt by $2.5 million to $14.6 million from CSL and Bayou Well Holdings Company LLC to fund capital expenditures and working capital. The bridge loan is still for a term of one year with an annual interest rate of 15%.
NOTE 13. SUBSEQUENT EVENTS
We have evaluated subsequent events through May 22, 2017, the date the financial statements were available to be issued noting the following:
During April and May 2017, the Company increased its bridge loan debt by $1.0 million and $2.5 million, respectively, to $14.6 million from CSL and Bayou Well Holdings Company, LLC to fund capital expenditures and working capital. The bridge loan terms remain unchanged.
F-33
Report of Independent Registered Public Accounting Firm
To
the Owners of
Ranger Energy Services, Inc. Predecessor
We have audited the accompanying combined consolidated balance sheets of Ranger Energy Services, Inc. Predecessor (the "Company") as of December 31, 2015 and 2016, and the related combined consolidated statements of operations, net parent investment and cash flows for each of the years then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these combined consolidated financial statements based on our audits. We did not audit the financial statements of Torrent Energy Services, LLC ("Torrent"), one of the entities included in the combined consolidated financial statements, which statements reflect total assets of $27.0 million and $27.8 million at December 31, 2015 and 2016, respectively, and total revenues of $11.5 million and $6.5 million for the years then ended, respectively. Those statements were audited by other auditors, whose report has been furnished to us, and our opinion, insofar as it relates to the amounts included for Torrent, is based solely on the report of the other auditors.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the combined consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the combined consolidated financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall combined consolidated financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, based on our audits and the report of the other auditors, the combined consolidated financial statements referred to above present fairly, in all material respects, the combined consolidated financial position of Ranger Energy Services, Inc. Predecessor at December 31, 2015 and 2016, and the combined consolidated results of their operations and their cash flows for each of the years then ended in conformity with accounting principles generally accepted in the United States of America.
/s/
BDO USA, LLP
Houston, Texas
March 9, 2017
F-34
Report of Independent Registered Public Accounting Firm
To
the Member of
Torrent Energy Services, LLC
We have audited the accompanying balance sheets of Torrent Energy Services, LLC (the "Company"), as of December 31, 2016 and 2015, and the related statements of operations, changes in member's equity, and cash flows for the years then ended. The Company's management is responsible for these financial statements. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Company, as of December 31, 2016 and 2015, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Signature
/s/
Whitley Penn LLP
Houston, Texas
March 1, 2017
F-35
RANGER ENERGY SERVICES, INC. PREDECESSOR
COMBINED CONSOLIDATED BALANCE SHEETS
(in millions)
|
As of December 31, | ||||||
---|---|---|---|---|---|---|---|
|
2015 | 2016 | |||||
Assets |
|||||||
Current assets |
|||||||
Cash and cash equivalents |
$ | 1.1 | $ | 1.6 | |||
Restricted cash |
0.4 | 1.8 | |||||
Accounts receivable, net |
2.4 | 13.4 | |||||
Unbilled revenues |
| 1.2 | |||||
Prepaid expenses and other current assets |
1.3 | 1.4 | |||||
Assets held for sale |
| 2.9 | |||||
| | | | | | | |
Total current assets |
5.2 | 22.3 | |||||
Property, plant and equipment, net |
48.8 | 102.4 | |||||
Goodwill |
| 1.6 | |||||
Intangible assets, net |
| 9.2 | |||||
Other assets |
| 0.2 | |||||
| | | | | | | |
Total assets |
$ | 54.0 | $ | 135.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Liabilities and Net Parent Investment |
|||||||
Current liabilities |
|||||||
Accounts payable |
$ | 1.5 | $ | 4.7 | |||
Accounts payablerelated party |
| 2.4 | |||||
Accrued expenses |
0.9 | 2.0 | |||||
Capital lease obligations, current portion |
1.0 | 0.5 | |||||
Long-term debt, current portion |
1.5 | 2.3 | |||||
| | | | | | | |
Total current liabilities |
4.9 | 11.9 | |||||
Capital lease obligations, less current portion |
| 0.3 | |||||
Long-term debt, less current portion |
8.5 | 9.8 | |||||
Other long-term liabilities |
0.3 | 1.1 | |||||
| | | | | | | |
Total liabilities |
13.7 | 23.1 | |||||
Commitments and contingencies (Note 9) |
|
|
|||||
Net parent investment |
40.3 |
112.6 |
|||||
| | | | | | | |
Total liabilities and net parent investment |
$ | 54.0 | $ | 135.7 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these combined consolidated financial statements
F-36
RANGER ENERGY SERVICES, INC. PREDECESSOR
COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS
(in millions)
|
Year ended
December 31, |
||||||
---|---|---|---|---|---|---|---|
|
2015 | 2016 | |||||
Revenues: |
|||||||
Well Services |
$ | 9.7 | $ | 46.3 | |||
Processing Solutions |
11.5 | 6.5 | |||||
| | | | | | | |
Total revenues |
21.2 | 52.8 | |||||
Operating expenses: |
|
|
|||||
Cost of services (exclusive of depreciation and amortization shown separately): |
|||||||
Well Services |
8.2 | 36.7 | |||||
Processing Solutions |
7.9 | 2.6 | |||||
| | | | | | | |
Total cost of services |
16.1 | 39.3 | |||||
General and administrative |
7.8 | 11.4 | |||||
Depreciation and amortization |
2.1 | 6.6 | |||||
Impairment of goodwill |
1.6 | | |||||
| | | | | | | |
Total operating expenses |
27.6 | 57.3 | |||||
| | | | | | | |
Operating loss |
(6.4 | ) | (4.5 | ) | |||
Other expenses |
|
|
|||||
Interest expense, net |
(0.3 | ) | (0.5 | ) | |||
| | | | | | | |
Total other expenses |
(0.3 | ) | (0.5 | ) | |||
| | | | | | | |
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | |
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these combined consolidated financial statements
F-37
RANGER ENERGY SERVICES, INC. PREDECESSOR
COMBINED CONSOLIDATED STATEMENTS OF NET PARENT INVESTMENT
(in millions)
|
Ranger | Torrent |
Net Parent
Investment |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Balance at January 1, 2015 |
$ | 9.5 | $ | 17.8 | $ | 27.3 | ||||
Net contributions from parent |
11.6 | 8.0 | 19.6 | |||||||
Equity based compensation from parent |
| 0.1 | 0.1 | |||||||
Net loss |
(3.6 | ) | (3.1 | ) | (6.7 | ) | ||||
| | | | | | | | | | |
Balance at December 31, 2015 |
17.5 | 22.8 | 40.3 | |||||||
| | | | | | | | | | |
Net contributions from parent |
27.6 | 3.5 | 31.1 | |||||||
Equity of parent issued for Bayou acquisition |
33.0 | | 33.0 | |||||||
Contribution of Magna acquisition from parent |
12.7 | | 12.7 | |||||||
Equity based compensation from parent |
0.4 | 0.1 | 0.5 | |||||||
Net loss |
(4.4 | ) | (0.6 | ) | (5.0 | ) | ||||
| | | | | | | | | | |
Balance at December 31, 2016 |
$ | 86.8 | $ | 25.8 | $ | 112.6 | ||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
The accompanying notes are an integral part of these combined consolidated financial statements
F-38
RANGER ENERGY SERVICES, INC. PREDECESSOR
COMBINED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in millions)
|
Year Ended December 31, | ||||||
---|---|---|---|---|---|---|---|
|
2015 | 2016 | |||||
Cash flows from operating activities |
|||||||
Net loss |
$ | (6.7 | ) | $ | (5.0 | ) | |
Adjustments to reconcile net loss to cash provided by (used in) operating activities: |
|||||||
Depreciation and amortization |
2.1 | 6.6 | |||||
Bad debt expense |
0.7 | 0.6 | |||||
Impairment of goodwill |
1.6 | | |||||
Equity based compensation |
0.1 | 0.5 | |||||
Loss on sale of property, plant and equipment |
| (0.1 | ) | ||||
Changes in operating assets and liabilities, net of effects of acquisitions: |
|||||||
Accounts receivable |
(2.1 | ) | (8.7 | ) | |||
Unbilled revenue |
| (1.3 | ) | ||||
Prepaid expenses and other current assets |
0.1 | 1.5 | |||||
Other assets |
0.1 | | |||||
Accounts payable |
(1.6 | ) | (1.2 | ) | |||
Accounts payablerelated party |
| 2.4 | |||||
Accrued expenses |
0.8 | (0.5 | ) | ||||
Other long-term liabilities |
(0.3 | ) | | ||||
| | | | | | | |
Net cash used in operating activities |
(5.2 | ) | (5.2 | ) | |||
| | | | | | | |
Cash flows from investing activities |
|||||||
Purchase of property, plant and equipment |
(26.0 | ) | (11.2 | ) | |||
Purchase of businesses, net of cash acquired |
| (16.3 | ) | ||||
Sale of property, plant and equipment |
0.5 | 2.1 | |||||
| | | | | | | |
Net cash used in investing activities |
(25.5 | ) | (25.4 | ) | |||
| | | | | | | |
Cash flows from financing activities |
|||||||
Payments on third party borrowings |
| (2.6 | ) | ||||
Borrowings on long-term debt |
10.0 | 4.5 | |||||
Principal payments on capital lease obligations |
(0.3 | ) | (0.5 | ) | |||
Contributions from parent |
19.6 | 34.1 | |||||
Distributions to parent |
| (3.0 | ) | ||||
Restricted cash |
(0.4 | ) | (1.4 | ) | |||
| | | | | | | |
Net cash provided by financing activities |
28.9 | 31.1 | |||||
| | | | | | | |
(Decrease) increase in cash and cash equivalents |
(1.8 | ) | 0.5 | ||||
Cash and cash equivalents, beginning of year |
2.9 | 1.1 | |||||
| | | | | | | |
Cash and cash equivalents, end of year |
$ | 1.1 | $ | 1.6 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Supplemental cash flows information |
|||||||
Interest paid |
(0.3 | ) | (0.5 | ) | |||
Supplemental disclosure of noncash investing and financing activity |
|||||||
Contribution of Magna |
$ | | $ | 12.7 | |||
Equity issued for Bayou acquisition |
$ | | $ | 33.0 | |||
Non-cash capital expenditures included in liabilities |
$ | (0.8 | ) | $ | (1.0 | ) | |
Non-cash acquisition of Shifty |
$ | | $ | (0.6 | ) | ||
Non-cash additions to fixed assets through capital lease financing |
$ | | $ | (0.3 | ) |
The accompanying notes are an integral part of these combined consolidated financial statements
F-39
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. BACKGROUND AND BASIS OF PRESENTATION
Background
The accompanying combined consolidated financial statements of Ranger Energy Services, Inc. Predecessor (the "Predecessor", "our", "we" or the "Company") includes the financial positions and results of operations for the following businesses (the "Contributed Entities") which were formed or acquired by CSL Capital Management, LLC ("CSL" or "Parent"). In connection with an anticipated Initial Public Offering ("IPO") of Ranger Energy Services, Inc. (the "Registrant"), the Predecessor and the Contributed Entities will be contributed to the Registrant in exchange for shares in the Registrant.
Basis of Presentation
The combined consolidated financial statements of the Predecessor have been prepared from each of the Predecessor and the Contributed Entity's accounting records. The contributions during 2017 were all treated as a combination of entities under common control, whereas the Magna and Bayou acquisitions during the year ended December 31, 2016 and the Torrent acquisition during the year ended December 31, 2014 were accounted for at fair value in accordance with Accounting Standards Codification ("ASC") 805, Business Combinations. The accompanying combined consolidated financial statements and related notes include the assets, liabilities and results of operations of Ranger and Torrent as if they were combined for all periods presented, and for the periods starting from Ranger's acquisition date for Bayou and CSL's acquisition date for Magna. All transactions among the Contributed Entities within the Predecessor have been eliminated in combination and consolidation. Management has prepared the combined consolidated financial statements in accordance with accounting principles generally accepted in the U.S. ("GAAP"). Operating results for the periods presented are not necessarily indicative of the results that may be expected for any future period.
Certain transactions and balances between Contributed Entities that were historically non-cash settled are reflected as a component of net parent investment on our accompanying combined
F-40
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 1. BACKGROUND AND BASIS OF PRESENTATION (Continued)
consolidated balance sheets, and as contributions from parent, net on our accompanying combined consolidated statements of cash flows.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Management uses historical and other pertinent information to determine these estimates. Actual results could differ from such estimates. Areas where critical accounting estimates are made by management include:
Cash and Cash Equivalents
All highly liquid investments with an original maturity of three months or less are considered cash equivalents. The Company maintains its cash accounts in financial institutions that are insured by the Federal Deposit Insurance Corporation. Cash balances from time to time may exceed the insured amounts; however the Predecessor has not experienced any losses in such accounts and does not believe it is exposed to any significant credit risks on such accounts.
Accounts Receivable
Accounts receivable, net are stated at the amount management expects to collect from outstanding balances. The Company reviews a customer's credit history before extending credit. Generally, the Company does not require collateral from its customers. The allowance for doubtful accounts is established as losses are estimated to have occurred through a provision for bad debts charged to earnings. Losses are charged against the allowance when management believes the uncollectibility of a receivable is confirmed. Subsequent recoveries, if any, are credited to the allowance. The allowance for doubtful accounts is evaluated on a regular basis by management and based on past experience and other factors, which, in management's judgment, deserve current recognition in estimating possible bad debts. Such factors include growth and composition of accounts receivable, the relationship of the allowance for doubtful accounts to accounts receivable and current economic conditions. The allowance for doubtful accounts was $0.7 million and $1.1 million for the years ended December 31, 2015 and 2016, respectively.
F-41
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Property, Plant and Equipment
Property, plant and equipment is stated at cost or estimated fair market value at the acquisition date less accumulated depreciation. Depreciation is charged to expense on the straight-line basis over the estimated useful life of each asset. Expenditures for major renewals and betterments are capitalized while expenditures for maintenance and repairs are charged to expense as incurred. Assets under capital lease obligations and leasehold improvements are amortized over the shorter of the lease term or their respective estimated useful lives. Depreciation does not begin until property, plant and equipment is placed in service. Once placed in service, depreciation on property and equipment continues while being repaired, refurbished or between periods of deployment.
Long-lived Asset Impairment
The Company evaluates the recoverability of the carrying value of long-lived assets, including property, plant and equipment and intangible assets, whenever events or circumstances indicate the carrying amount may not be recoverable. If a long-lived asset is tested for recoverability and the undiscounted estimated future cash flows expected to result from the use and eventual disposition of the asset is less than the carrying amount of the asset, the asset cost is adjusted to fair value and an impairment loss is recognized as the amount by which the carrying amount of a long-lived asset exceeds its fair value.
Goodwill
Goodwill represents the excess of costs over the fair value of the net assets acquired in connection with a business combination. Goodwill is not amortized, but rather tested and assessed for impairment annually or more frequently if certain events or changes in circumstance indicate the carrying amount may exceed fair value. Before employing detailed impairment testing methodologies, the Company may first evaluate the likelihood of impairment by considering qualitative factors relevant to each reporting unit, such as macroeconomic, industry, market or any other factors that have a significant bearing on fair value. If the Company first utilizes a qualitative approach and determines that it is more likely than not that goodwill is impaired, detailed testing methodologies are then applied. Otherwise, the Company concludes that no impairment has occurred. Detailed impairment testing involves a two-step process. First, the fair value of each reporting unit is compared to its carrying value to determine whether an indication of impairment exists. If impairment is indicated, the implied value of the reporting unit's goodwill is determined by allocating the unit's fair value to its assets and liabilities as if the reporting unit had been acquired in a business combination. The fair value of the reporting unit is typically determined through the use of a blended income and market approach. The impairment for goodwill is measured as the excess of its carrying value over its implied value. The Company recognized impairment of $1.6 million for the year ended December 31, 2015.
Intangible Assets
Identified intangible assets with determinable lives consist of customer relationships and trade names (as described in Note 3, Acquisitions below). Customer relationships and trade names are amortized over their estimated useful lives.
F-42
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Assets Held for Sale
During the year ended December 31, 2016, the Company decided to market and sell non-core rental fleet assets. The units are classified as held for sale because they have been specifically identified, and management has a plan for their sale in their present condition to occur in the next year. The available for sale assets are recorded at the units' carrying amount, which approximates fair value less costs to sell, and have been reclassified as current assets on our balance sheet, and are no longer depreciated.
Fair Value
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The three-tiered hierarchy is summarized as follows:
Level 1Quoted prices in active markets for identical assets and liabilities.
Level 2Other significant observable inputs.
Level 3Significant unobservable inputs.
The Company's financial instruments consist of cash and cash equivalents, trade receivables, trade payables, amounts receivable or payable to related parties, and long-term debt. The carrying amount of cash and cash equivalents, trade receivables, and trade payables approximates fair value because of the short-term nature of the instruments. The fair value of long-term debt approximates its carrying value based on the borrowing rates currently available to the Company for bank loans with similar terms and maturities. In valuing certain assets and liabilities, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. For disclosure purposes, assets and liabilities are classified in the fair value hierarchy based on the lowest level of input that is significant to the overall fair value. The Company did not have any assets or liabilities that were measured at fair value on a recurring basis at December 31, 2015 and 2016.
During 2015, the Company had non-recurring fair value measurements related to the impairment of goodwill. The fair values were determined through the use of a blended market and income approach, which represent Level 3 measurements within the fair value hierarchy. During 2016, the Company had non-recurring fair value measurements related to the acquisition and purchase price allocations of Magna and Bayou (Note 3). The fair values were determined through the use of a blended income, market and cost approach, which represent Level 3 measurements within the fair value hierarchy.
Revenue Recognition
The Company generates revenue from multiple sources within its operating segments.
Well Services Well Services consists primarily of maintenance services, workover services, completion services and plugging and abandonment services. The Company recognizes revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. The Company prices well servicing by the
F-43
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
hour or by the day when services are performed. Well servicing is sold without warranty or right of return.
Processing Solutions Processing Solutions consists primarily of equipment rentals, operations and maintenance services and mobilization services. The Company recognizes revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. Revenues from equipment leasing, operations and maintenance services are recognized as earned. These services are sold without warranty or right of return.
Business Combinations
The Company recognizes, separately from goodwill, the identifiable assets acquired and liabilities assumed at their estimated acquisition date fair values. Fair value is the price that would be received to sell an asset or would be paid to transfer a liability in an orderly transaction between market participants at the measurement date. The fair value measurement is based on the assumptions of market participants and not those of the reporting entity. Therefore, entity-specific intentions do not impact the measurement of fair value. Goodwill as of the acquisition date is measured and recognized as the excess of: (i) the aggregate of the fair value of the consideration transferred, the fair value of any non-controlling interest in the acquiree and the acquisition date fair value of our previously held equity interests over (ii) the fair value of assets acquired and liabilities assumed. These fair values are accounted for at the date of acquisition and included in the combined consolidated balance sheet at December 31, 2016. The results of operations of an acquired business is included in the statement of operations from the date of the acquisition.
Income Taxes
No provision for federal income tax is included in the accompanying combined consolidated financial statements as federal income taxes, if any, are payable by its members on their share of income or loss. State income taxes are immaterial.
New Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2014-09, Revenue from Contracts with Customers . ASU 2014-09 supersedes existing revenue recognition requirements in GAAP and requires an entity to recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled to in exchange for those goods or services. Additionally, it requires expanded disclosures regarding the nature, amount, timing, and certainty of revenue and cash flows from contracts with customers. The ASU is effective for annual and interim reporting periods beginning after December 15, 2017. Early adoption is permitted. The Company is in the initial stages of evaluating the effect of the standard on the combined consolidated financial statements and continues to evaluate the available transition method.
In February 2016, the FASB issued ASU No, 2016-02, Leases , amending the current accounting for leases. Under the new provisions, all lessees will report a right-of-use asset and a liability for the obligation to make payments for all leases with the exception of those leases with a term of 12 months
F-44
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
or less. All other leases will fall into one of two categories: (i) a financing lease or (ii) an operating lease. Lessor accounting remains substantially unchanged with the exception that no leases entered into after the effective date will be classified as leveraged leases. For sale leaseback transactions, a sale will only be recognized if the criteria in the new revenue recognition standard are met. ASU 2016-2 is effective for fiscal years beginning after December 15, 2018, including interim within that reporting period, using a modified retrospective approach. Early adoption is permitted. The Company is in the initial stages of evaluating the effect of the standard on the combined consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, Financial InstrumentsCredit Losses . The amendments in ASU 2016-13 require the measurement of all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. In addition, ASU 2016-13 amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The amendment is effective for public entities for annual reporting periods beginning after December 15, 2019, however early application is permitted for reporting periods beginning after December 15, 2018. The Company is in the initial stages of evaluating the effect of the standard on the combined consolidated financial statements.
Under the JOBS Act, we expect that we will meet the definition of an "emerging growth company," which would allow us to have an extended transition period for complying with new or revised accounting standards pursuant to Section 107(b) of the JOBS Act. We have irrevocably opted out of the extended transition period and, as a result, we will adopt new or revised accounting standards on the relevant dates on which adoption of such standards is required for other public companies.
NOTE 3. ACQUISITIONS
Magna Acquisition
On June 24, 2016, CSL acquired Magna, a privately held oilfield services company that provides workover, plugging and abandonment, fluid management and wireline services, for an aggregate purchase price of approximately $12.7 million to gain market share in the industry. Magna's operations are focused primarily in Colorado, Wyoming and North Dakota. Ranger accounted for this acquisition as a business combination. No goodwill was recorded in conjunction with the Magna acquisition as the total purchase consideration approximated that fair value of assets acquired and liabilities assumed.
F-45
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 3. ACQUISITIONS (Continued)
A summary of the fair value of the assets acquired and the liabilities assumed in connection with the Magna acquisition is set forth below (in millions):
Purchase price |
||||
Cash paid by CSL |
$ | 12.7 | ||
| | | | |
Total purchase price |
$ | 12.7 | ||
| | | | |
| | | | |
| | | | |
Purchase price allocation |
||||
Cash |
$ | 1.2 | ||
Accounts receivable |
3.0 | |||
Prepaid expenses and other |
1.2 | |||
Property, plant and equipment |
8.8 | |||
Tradename |
0.1 | |||
| | | | |
Total assets acquired |
14.3 | |||
| | | | |
Accounts payable |
(1.0 | ) | ||
Accrued expenses |
(0.6 | ) | ||
| | | | |
Total liabilities assumed |
(1.6 | ) | ||
| | | | |
Allocated purchase price |
$ | 12.7 | ||
| | | | |
| | | | |
| | | | |
On September 28, 2016, Magna was contributed to Ranger by CSL to gain market share in the industry. As this was a transaction among entities under common control, the assets and liabilities were recorded at their historical carrying values from the date of the initial acquisition by CSL on June 24, 2016. For the year ended December 31, 2016, the Company incurred $0.1 million of acquisition-related costs that are included in general and administrative expenses in the accompanying combined consolidated statements of operations. From the acquisition date to December 31, 2016, revenues and operating income for the acquired business was $19.8 million and $0.7 million (excluding the acquisition related costs described above), respectively.
Bayou Acquisition
On October 3, 2016, Ranger acquired Bayou, a privately held oilfield services company that provides workover, plugging and abandonment and fluid management services, for an aggregate purchase price of approximately $50.5 million, which included an approximate 35% equity interest in Ranger. Bayou's operations are focused primarily in Colorado and North Dakota. Ranger accounted for this acquisition as a business combination.
F-46
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 3. ACQUISITIONS (Continued)
A summary of the fair value of the assets acquired and the liabilities assumed in connection with the Bayou acquisition is set forth below (in millions):
Purchase price |
||||
Cash |
$ | 17.5 | ||
Equity issued |
33.0 | |||
| | | | |
Total purchase price |
$ | 50.5 | ||
| | | | |
| | | | |
| | | | |
Purchase price allocation |
||||
Prepaid expenses & other |
$ | 0.5 | ||
Property, plant and equipment |
40.0 | |||
Land |
0.6 | |||
Building and site improvements |
2.3 | |||
Customer relationships |
9.3 | |||
| | | | |
Total assets acquired |
52.7 | |||
| | | | |
Accounts payable |
(1.8 | ) | ||
Accrued expenses |
(1.0 | ) | ||
Other long-term liabilities |
(1.0 | ) | ||
| | | | |
Total liabilities assumed |
(3.8 | ) | ||
| | | | |
Goodwill |
1.6 | |||
| | | | |
Allocated purchase price |
$ | 50.5 | ||
| | | | |
| | | | |
| | | | |
Goodwill represents trained and assembled workforce which does not meet the separability criterion. For the year ended December 31, 2016, the Company incurred $0.4 million of acquisition-related costs that are included in general and administrative expenses in the accompanying combined consolidated statements of operations. From the acquisition date to December 31, 2016, revenues and operating income for the acquired business was $10.8 million and ($1.3) million (excluding the acquisition related costs described above), respectively.
Supplemental Pro Forma Financial Information (unaudited)
The following unaudited pro forma information gives effect to the acquisitions of Magna and Bayou as if they had occurred on January 1, 2016. The unaudited pro forma financial information reflects certain adjustments related to the acquisition, such as to record certain adjustments resulting from purchase accounting, such as depreciation and amortization expense in connection with fair value adjustments to property, plant and equipment and intangible assets. The unaudited pro forma financial information is for illustrative purposes only and should not be relied upon as being indicative of the historical results that would have been obtained if the acquisitions had actually occurred on that date, nor the results of operations in the future. The supplemental pro forma results of operations for the
F-47
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 3. ACQUISITIONS (Continued)
year ended December 31, 2016 as if the Magna and Bayou acquisitions had occurred on January 1, 2016, is as follows:
|
Year Ended
December 31, 2015 |
Year Ended
December 31, 2016 |
|||||
---|---|---|---|---|---|---|---|
Revenues |
$ | 135.9 | $ | 96.6 | |||
Net loss |
$ | (33.8 | ) | $ | (13.7 | ) |
NOTE 4. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment include the following (in millions):
|
|
As of
December 31, |
|||||||
---|---|---|---|---|---|---|---|---|---|
|
Estimated Useful Life
(years) |
||||||||
|
2015 | 2016 | |||||||
Machinery and equipment |
5 - 30 | $ | 5.4 | $ | 3.0 | ||||
Vehicles |
3 - 5 | 3.2 | 0.2 | ||||||
Mechanical refrigeration units |
30 | 14.5 | 16.0 | ||||||
NGL storage tanks |
15 | 4.3 | 4.3 | ||||||
Workover rigs |
5 - 20 | 19.7 | 73.8 | ||||||
Other property, plant and equipment |
3 - 30 | 3.9 | 13.8 | ||||||
| | | | | | | | | |
Property, plant and equipment |
51.0 | 111.1 | |||||||
Less: accumulated depreciation |
(2.2 | ) | (8.7 | ) | |||||
| | | | | | | | | |
Property, plant and equipment, net |
$ | 48.8 | $ | 102.4 | |||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
Depreciation expense was $2.1 million and $6.5 million for the years ended December 31, 2015 and 2016, respectively.
NOTE 5. GOODWILL AND INTANGIBLE ASSETS
Goodwill was $0 and $1.6 million as of December 31, 2015 and 2016, respectively. Changes in goodwill are due to an impairment of goodwill of $1.6 million during the year ended December 31, 2015 and $1.6 million of goodwill recognized in connection with the Bayou acquisition during 2016. Related to the $1.6 million of goodwill impairment, the fair value was derived by using a market multiple. The market multiple was derived from a series of public comparable companies within the oil field servicing and midstream industries. The fair value of goodwill was determined by allocating fair value to the Company's assets and liabilities as if the Company had been acquired in a business combination. The amount of impairment for goodwill was measured as the excess of its carrying value over its fair value.
As of December 31, the Company had the following definite lived intangible assets recorded (in millions):
|
|
As of
December 31, |
|||||||
---|---|---|---|---|---|---|---|---|---|
|
Estimated Useful Life
(years) |
||||||||
|
2015 | 2016 | |||||||
Tradenames |
3 | $ | | $ | 0.1 | ||||
Customer relationships |
18 | | 9.2 | ||||||
Less: accumulated amortizationtradenames |
| (0.0 | ) | ||||||
Less: accumulated amortizationcustomer relationships |
| (0.1 | ) | ||||||
| | | | | | | | | |
Intangible assets, net |
$ | | $ | 9.2 | |||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
F-48
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 5. GOODWILL AND INTANGIBLE ASSETS (Continued)
Amortization expense was $0 and $0.1 million for the years ended December 31, 2015 and 2016, respectively. Aggregated expected amortization expense for the future periods is expected to be as follows (in millions):
Year ended December 31:
|
Amount | |||
---|---|---|---|---|
2017 |
$ | 0.5 | ||
2018 |
0.5 | |||
2019 |
0.5 | |||
2020 |
0.5 | |||
2021 |
0.5 | |||
Thereafter |
6.7 | |||
| | | | |
|
$ | 9.2 | ||
| | | | |
| | | | |
| | | | |
NOTE 6. CAPITAL LEASES
The Company leases certain assets under capital leases expiring in 2019. The assets and liabilities under capital leases are recorded at the lower of present value of the minimum lease payments or the fair value of the assets. The assets are amortized over their estimated useful lives or over the lease term. Amortization of assets under capital leases were $0.5 million and $0.3 million for the years ended December 31, 2015 and 2016, respectively. Aggregate future minimum lease payments under capital leases are as follows (in millions):
|
Total | |||
---|---|---|---|---|
2017 |
$ | 0.5 | ||
2018 |
0.3 | |||
2019 |
0.0 | |||
| | | | |
Total future minimum lease payments |
0.8 | |||
Less: amount representing interest |
(0.0 | ) | ||
| | | | |
Present value of future minimum lease payments |
0.8 | |||
Less: current portion of capital lease obligations |
(0.5 | ) | ||
| | | | |
Total capital lease obligations, less current portion |
$ | 0.3 | ||
| | | | |
| | | | |
| | | | |
NOTE 7. LONG-TERM DEBT
Long-term debt consists of the following (in millions):
|
December 31, | ||||||
---|---|---|---|---|---|---|---|
|
2015 | 2016 | |||||
Term loans |
$ | 9.0 | $ | 7.1 | |||
Revolver |
1.0 | 5.0 | |||||
Current portion of long-term debt |
(1.5 | ) | (2.3 | ) | |||
| | | | | | | |
Long-term debt, less current portion |
$ | 8.5 | $ | 9.8 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
F-49
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 7. LONG-TERM DEBT (Continued)
In 2015, Ranger had a $2.0 million revolving line of credit with Iberia Bank expiring on April 30, 2018 (the "Revolver"). On December 23, 2016, Ranger amended the Revolver to increase its size to $5.0 million. As of December 31, 2015 and 2016, there was $1.0 million and $5.0 million borrowed against this line of credit, respectively. The Revolver was secured by substantially all of Ranger's assets (approximately $107.9 million of the Company's total assets). Interest varies with the bank's prime rate and the bank's London Interbank Offered Rate ("LIBOR"). At December 31, 2015 and 2016, the interest rate was 3.74% and 4.12%, respectively.
In February 2015, as amended in March 31, 2016, Torrent secured a $2.0 million senior credit facility with Texas Capital Bank consisting of a $2.0 million Advancing Term Loan as defined by the note agreement. The note is secured by substantially all of Torrent's assets (approximately $27.8 million of the Company's total assets). Interest varies with the bank's prime rate and the bank's LIBOR and is payable quarterly through the maturity of the note. As of December 31, 2015 and 2016, the interest rate was 5.75% and 5.75%, respectively. The agreement also requires the Company to maintain certain financial and non-financial covenants. Effective March 31, 2016, covenant compliance was waived for the fiscal quarters ended December 31, 2015, March 31, 2016 and June 30, 2016. The Company made a $1.2 million principal payment in April 2016, in order to obtain the bank waiver and accelerated the final loan balance pay-off to October 3, 2017. As of December 31, 2015 and 2016, there was $2.0 million and $0.7 million outstanding on the senior credit facility.
In March 2015, Torrent, through certain members of its management team as borrowers, secured a $0.6 million promissory note with Benchmark Bank. Interest varies with the bank's prime rate. Initially, all principal and interest was due on the date of maturity of September 4, 2015, however, the terms were renegotiated and a restructured note and agreement was entered into in April 2016 with an interest rate of 4.5%. In April 2016, Torrent made a principal payment of $0.4 million on this promissory note, leaving a remaining balance of $0.2 million, which is secured by a $0.2 million certificate of deposit. As of December 31, 2015 and 2016, there was $0.6 million and $0.2 million outstanding on the promissory note. The remaining principal balance was paid in full on February 28, 2017.
In April 2015, Ranger secured a $7.0 million promissory note with Iberia Bank. Interest varies with the bank's prime rate and the bank's LIBOR and is payable in 60 equal monthly installments, which commenced on May 1, 2016. As of December 31, 2015 and 2016, the interest rate was 3.74% and 4.12%, respectively. Installment payments are due through May 1, 2019, and the note is secured by substantially all of Ranger's assets (approximately $107.9 million of the Company's total assets). As of December 31, 2015 and 2016, the outstanding balance was $6.5 million and $6.2 million, respectively.
All debt agreements include the usual and customary covenants for facilities of its type and size. The covenants cover matters such as minimum fixed charge coverage ratio, maximum leverage ratio, current ratio, maximum indebtedness to capitalization ratio, minimum debt service coverage ratio and minimum net income. As of December 31, 2016, the Company was in compliance with all covenants.
F-50
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 7. LONG-TERM DEBT (Continued)
At December 31, 2016, the aggregate future maturities of long-term debt are as follows (in millions):
|
Total | |||
---|---|---|---|---|
2017 |
$ | 2.3 | ||
2018 |
6.4 | |||
2019 |
3.4 | |||
| | | | |
Total |
$ | 12.1 | ||
| | | | |
| | | | |
| | | | |
NOTE 8. RISK CONCENTRATIONS
Customer Concentrations
For the year ended December 31, 2015, two customers (WhitingProcessing Solutions segment and EOG ResourcesWell Services segment) accounted for approximately 42.0% and 26.3%, respectively, of the Company's revenues balance. At December 31, 2015, approximately 28.7% of the accounts receivable balance was due from these customers.
For the year ended December 31, 2016, two customers (EOG Resources Well Services segment and PDC EnergyWell Services segment) accounted for approximately 19.8% and 19.2%, respectively, of the Company's revenues balance. At December 31, 2016, approximately 27.6% of the accounts receivable balance was due from these customers.
NOTE 9. COMMITMENTS AND CONTINGENCIES
Operating Leases
The Company is obligated under non-cancelable operating leases for facilities and equipment which expire at various dates through 2022. These leases generally contain renewal options for periods ranging from one to five years and require the Company to pay all executory costs (property taxes, maintenance and insurance). Rental payments include minimum rentals. Future minimum rental payments required under these leases are as follows (in millions):
|
Total | |||
---|---|---|---|---|
2017 |
$ | 2.0 | ||
2018 |
1.8 | |||
2019 |
1.7 | |||
2020 |
1.5 | |||
2021 |
0.4 | |||
Thereafter |
0.0 | |||
| | | | |
Total future minimum lease payments |
$ | 7.4 | ||
| | | | |
| | | | |
| | | | |
For the years ended December 31, 2015 and 2016, rent expense under all operating leases was $0.1 million and $0.9 million, respectively.
F-51
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 9. COMMITMENTS AND CONTINGENCIES (Continued)
Legal Matters
From time to time, the Company is involved in various legal matters arising in the normal course of business. The Company does not believe that the ultimate resolution of these matters will have a significant effect on its combined consolidated financial position or results of operations.
Employee Benefits
Certain of the Company's employees participate in a retirement savings plan maintained by the Company (the "Plan"). During the year ended December 31, 2015 and 2016, the Company contributed approximately $0 million and $0.1 million, respectively, to the Plan.
NOTE 10. SEGMENT REPORTING
Our operations are all operated in the United States and organized into two reportable segments: Wells Services and Processing Solutions. Our reportable segments comprise the structure used by our Chief Operating Decision Maker ("CODM") to make key operating decisions and assess performance during the years presented in the accompanying combined consolidated financial statements. Our CODM evaluates the segments' operating performance based on multiple measures including Adjusted EBITDA, rig hours and rig utilization. The following is a description of the segments:
Well Services. Our well service rigs facilitate operations throughout the lifecycle of a well, including (i) well completion support; (ii) workover; (iii) well maintenance; and (iv) decommissioning. We provide these advanced well services to E&P companies, particularly to those operating in unconventional oil and natural gas reservoirs and requiring technically and operationally advanced services. Our well service rigs are designed to support growing U.S. horizontal well demands.
Processing Solutions. We provide a range of proprietary, modular equipment for the processing of rich natural gas streams at the wellhead or central gathering points in basins where drilling and completion activity has outpaced the development of permanent processing infrastructure.
Segment information is as follows for 2015 and 2016 (in millions):
2015
|
Well Services | Processing Solutions | Total | |||||||
---|---|---|---|---|---|---|---|---|---|---|
Revenues |
$ | 9.7 | $ | 11.5 | $ | 21.2 | ||||
Depreciation and amortization |
1.4 | 0.7 | 2.1 | |||||||
Impairment of goodwill |
| 1.6 | 1.6 | |||||||
Interest expense, net |
(0.1 | ) | (0.2 | ) | (0.3 | ) | ||||
Net loss |
(3.6 | ) | (3.1 | ) | (6.7 | ) | ||||
Property, plant and equipment |
24.5 | 24.3 | 48.8 | |||||||
Total assets |
27.0 | 27.0 | 54.0 | |||||||
Capital Expenditures |
18.1 | 8.7 | 26.8 |
F-52
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 10. SEGMENT REPORTING (Continued)
2016
|
Well Services | Processing Solutions | Total | |||||||
---|---|---|---|---|---|---|---|---|---|---|
Revenues |
$ | 46.3 | $ | 6.5 | $ | 52.8 | ||||
Depreciation and amortization |
5.6 | 1.0 | 6.6 | |||||||
Interest expense, net |
(0.4 | ) | (0.1 | ) | (0.5 | ) | ||||
Net loss |
(4.4 | ) | (0.6 | ) | (5.0 | ) | ||||
Property, plant and equipment |
79.5 | 22.9 | 102.4 | |||||||
Total assets |
107.9 | 27.8 | 135.7 | |||||||
Capital Expenditures |
10.0 | 2.2 | 12.2 | |||||||
Goodwill |
1.6 | | 1.6 |
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS
Well Services
The Well Services segment (Ranger) is 100% owned by Ranger Holdings, LLC ("Ranger Holdings") and Ranger's equity is represented by a single share class. Ranger Holdings has issued Class C and Class D units to certain key employees of Ranger as remuneration for employee services and are intended to be "profit interests" with no voting rights. Certain of the units vest 33% per year over a three-year service period and may be forfeited or repurchased by Ranger Holdings under certain circumstances as set forth in the Ranger Holdings limited liability company agreement and the individual Class C and Class D unit grant agreements. The "vesting units" are deemed equity and are measured at fair value using an option pricing model at each grant date with compensation expense recognized on a straight-line basis over the requisite service period.
Certain of the Class C and Class D units that were granted are liability-classified awards as they do not fully vest until a defined change of control event. The Company has not recognized a liability or recognized any compensation expense for these liability-classified awards in the accompanying combined consolidated financial statements since the change of control event is not probable and estimable. These units will trigger no compensation expense until amounts payable under such awards become probable and estimable.
On October 3, 2016, the Class C and Class D units were modified, whereby new units were issued to replace the existing Class C and Class D units that had been issued prior to October 3, 2016. As part of the issuance of the new Class C and Class D unit, the existing Class C and Class D units were cancelled. The terms of the new and existing Class C and Class D awards were materially similar.
The grant date fair value for the Class C and Class D units prior to modification were de minimis while the grant date fair value for the Class C and Class D units at modification was $2.5 million. During the year ended December 2015 and 2016, we recognized compensation expense of $0 million and $0.4 million, respectively. The total unrecognized compensation cost related to unvested awards at year ended December 31, 2016 is $2.1 million and is expected to be recognized over the next two years. No distributions were made during the year ended December 31, 2015 and 2016.
F-53
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS (Continued)
The following table summarizes the Class C and Class D unit activity for 2015 and 2016 (in millions):
|
Class C units | Class D units | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Equity-based
Compensation Awards |
Liability
Awards |
Equity-based
Compensation Awards |
Liability
Awards |
|||||||||
Outstanding at January 1, 2015 |
1.0 | 0.3 | 0.2 | 0.0 | |||||||||
Granted |
1.0 | 0.4 | 0.1 | 0.1 | |||||||||
Forfeited |
| | | | |||||||||
| | | | | | | | | | | | | |
Outstanding at December 31, 2015 |
2.0 | 0.7 | 0.3 | 0.1 | |||||||||
| | | | | | | | | | | | | |
Granted(1) |
0.5 | 0.2 | 0.4 | 0.2 | |||||||||
Forfeited |
| | | | |||||||||
| | | | | | | | | | | | | |
Outstanding at December 31, 2016 |
0.5 | 0.2 | 0.4 | 0.2 | |||||||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
We utilized an option pricing model to estimate grant date fair value of the equity-based compensation awards, which included probability of various outcomes. Expected volatilities are based on historical volatilities of the stock of comparable companies in our industry. The risk-free rate for periods within the contractual life of the award is based on the U.S. Treasury yield curve in effect at the time of grant. Actual results may vary depending on the assumptions applied within the model. The following table presents the assumptions used in the valuation and resulting grant date fair value:
|
Pre-Modification | At Modification | ||
---|---|---|---|---|
Period |
5 years | 5 years | ||
Dividend Yield |
0.0% | 0.0% | ||
Volatility |
35 - 60% | 40% | ||
Risk Free Rate |
1.0 - 1.6% | 1.2% |
Processing Solutions
The Processing Solutions segment (Torrent) is 100% owned by Torrent Holdings, LLC ("Torrent Holdings") and Torrent's equity is represented by a single share class. Torrent Holdings has issued Class B and Class C units to certain key employees of Torrent as remuneration for employee services and are intended to be "profit interests" with no voting rights. Class B units have a three-year vesting period at 25% per year, with the remaining 25% vesting upon certain events occurring. Torrent Holdings also issued Class C awards, which were fully vested at grant date when issued in 2014. Class B and Class C units are deemed to be equity-classified.
The grant date fair value for the Class B and Class C unit awards were $0.3 million and $0.1 million, respectively. Compensation expense is recognized on a straight-line basis over the requisite service period. During the year end December 31, 2015 and 2016, we recognized compensation expense of $0.1 million and $0.1 million, respectively. The total unrecognized compensation cost related to
F-54
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 11. OWNERS' CAPITAL AND PROFIT INTERESTS AWARDS (Continued)
unvested awards at December 31, 2016 is $0.1 million and is expected to be recognized in 2017. No distributions were made during the year ended December 31, 2015 and 2016.
The following table summarizes the Class B and Class C unit activity for 2015 and 2016 (in millions):
|
Class B | Class C(1) | |||||
---|---|---|---|---|---|---|---|
Outstanding at January 1, 2015 |
1.0 | 0.0 | |||||
Granted |
| | |||||
Forfeited |
| | |||||
| | | | | | | |
Outstanding at December 31, 2015 |
1.0 | 0.0 | |||||
| | | | | | | |
Granted |
| | |||||
Forfeited |
(0.3 | ) | | ||||
| | | | | | | |
Outstanding at December 31, 2016 |
0.7 | 0.0 | |||||
| | | | | | | |
| | | | | | | |
| | | | | | | |
We utilized an option pricing model to estimate grant date fair value of the equity-based compensation awards, which included probability of various outcomes. Expected volatilities are based on historical volatilities of the stock of comparable companies in our industry. The risk-free rate for periods within the contractual life of the award is based on the U.S. Treasury yield curve in effect at the time of grant. Actual results may vary depending on the assumptions applied within the model. The following table presents the assumptions used in the valuation and resulting grant date fair value:
|
Assumptions | |
---|---|---|
Period |
2.8 years | |
Dividend Yield |
0.0% | |
Volatility |
28.1% | |
Risk Free Rate |
0.9% |
NOTE 12. RELATED PARTY TRANSACTIONS
The Company incurred approximately $5.7 million of operating expenses and $0.1 million of deposits for the period from October 4, 2016 to December 31, 2016, that were paid by Bayou Well Services. As of December 31, 2016, the Company had an accounts payable balance to Bayou Well Services related to these expenses totaling $2.4 million.
The Company incurred approximately $0.2 million and $0.1 million in expenses related to CSL and board members for the years ended December 31, 2015 and 2016, respectively. As of December 31, 2015 and 2016, amounts due to CSL and board members were negligible.
Refer to Note 7 for Torrent's $0.6 million promissory note entered into with Benchmark Bank, through certain members of its management as borrowers.
F-55
RANGER ENERGY SERVICES, INC. PREDECESSOR
NOTES TO COMBINED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NOTE 13. SUBSEQUENT EVENTS
We have evaluated subsequent events through March 9, 2017, the date the financial statements were available to be issued noting the following:
During January 2017, the Company purchased certain assets from a related party for approximately $4.0 million.
During February 2017, the Company received a bridge loan totaling $11.1 million from CSL and Bayou Well Holdings Company, LLC to fund capital expenditures and working capital. The bridge loan was for a term of one year with an annual interest rate of 15%.
During February 2017, the Company entered into purchase agreements with third-party vendors, pursuant to which the Company expects to accept delivery of high-spec well service rigs periodically throughout 2017, for an amount totaling $42.1 million.
During February 2017, the Company paid in full the remaining principal balance of the Benchmark Bank promissory note.
F-56
Independent Auditor's Report
Board
of Managers
Magna Energy Services, LLC
Report on the Financial Statements
We have audited the accompanying consolidated financial statements of Magna Energy Services, LLC and its subsidiaries, which comprise the consolidated balance sheets as of December 31, 2015 and 2014, and the related consolidated statements of operations, members' equity (deficit) and cash flows for the years then ended, and the related notes to the consolidated financial statements (collectively, the financial statements).
Management's Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditor's Responsibility
Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Magna Energy Services, LLC and its subsidiaries as of December 31, 2015 and 2014, and the results of their operations and their cash flows for the years then ended in accordance with accounting principles generally accepted in the United States of America.
/s/ Hein & Associates LLP
Denver,
Colorado
February 3, 2017
F-57
MAGNA ENERGY SERVICES, LLC
CONSOLIDATED BALANCE SHEETS
December 31, 2015 and 2014
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Assets |
|||||||
Current assets: |
|||||||
Cash and cash equivalents |
$ | 832,418 | $ | 1,432,316 | |||
Accounts receivable, net |
6,247,861 | 18,545,385 | |||||
Unbilled accounts receivables |
194,219 | 720,016 | |||||
Inventory |
520,592 | 753,602 | |||||
Assets held for sale |
124,000 | 1,087,000 | |||||
Prepaid expenses |
1,874,183 | 2,142,038 | |||||
| | | | | | | |
Total current assets |
9,793,273 | 24,680,357 | |||||
| | | | | | | |
Property and equipment, net |
30,946,002 | 40,293,743 | |||||
Long-term assets: |
|||||||
Restricted cash |
139,405 | 169,663 | |||||
Non-compete covenants, net |
| 1,683 | |||||
Loan origination fees, net |
395,900 | 393,006 | |||||
Goodwill |
8,426,000 | 28,427,754 | |||||
| | | | | | | |
Total long-term assets |
8,961,305 | 28,992,106 | |||||
| | | | | | | |
Total assets |
$ | 49,700,580 | $ | 93,966,206 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Liabilities and Members' Equity (Deficit) |
|||||||
Current liabilities: |
|||||||
Notes payable, current portion |
$ | 6,766,213 | $ | 10,979,911 | |||
Line of credit |
2,581,508 | 12,810,131 | |||||
Line of credit-related party |
4,000,000 | | |||||
Accounts payable |
757,684 | 2,844,949 | |||||
Accrued expenses |
1,389,979 | 2,146,962 | |||||
| | | | | | | |
Total current liabilities |
15,495,384 | 28,781,953 | |||||
| | | | | | | |
Long-term liabilities: |
|||||||
Notes payable |
25,782,569 | 25,994,327 | |||||
Accrued unpaid management fees |
6,727,161 | 5,534,507 | |||||
Convertible notes |
4,046,478 | 3,650,166 | |||||
| | | | | | | |
Total long-term liabilities |
36,556,208 | 35,179,000 | |||||
| | | | | | | |
Total liabilities |
52,051,592 | 63,960,953 | |||||
| | | | | | | |
Commitments and contingencies (Note 10) |
|||||||
Members' equity (deficit): |
|||||||
Members' capital |
26,323,846 | 26,323,846 | |||||
Accumulated earnings (deficit) |
(31,199,218 | ) | 1,061,116 | ||||
Non-controlling interest |
2,524,360 | 2,620,291 | |||||
| | | | | | | |
Total members' equity (deficit) |
(2,351,012 | ) | 30,005,253 | ||||
| | | | | | | |
Total liabilities and members' equity (deficit) |
$ | 49,700,580 | $ | 93,966,206 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
See accompanying notes to consolidated financial statements.
F-58
MAGNA ENERGY SERVICES, LLC
CONSOLIDATED STATEMENTS OF OPERATIONS
Years Ended December 31, 2015 and 2014
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Revenues |
$ | 59,556,702 | $ | 123,646,064 | |||
| | | | | | | |
Operating costs and expenses: |
|||||||
Direct cost of revenues |
45,023,355 | 88,176,162 | |||||
General and administrative |
10,472,276 | 14,071,829 | |||||
Depreciation and amortization |
11,246,397 | 10,418,009 | |||||
Impairment of goodwill |
20,001,754 | ||||||
Impairment of assets held for sale |
963,000 | 158,397 | |||||
Management fees |
1,192,654 | 2,472,127 | |||||
| | | | | | | |
Total operating costs and expenses |
88,899,436 | 115,296,524 | |||||
| | | | | | | |
Income (loss) from operations |
(29,342,734 | ) | 8,349,540 | ||||
Other income and (expense): |
|||||||
Interest expense |
(3,039,509 | ) | (2,845,672 | ) | |||
Gain (loss) on disposal of assets |
(223,231 | ) | 193,642 | ||||
Income taxes paid |
(10,279 | ) | |||||
Other income |
259,488 | 261,314 | |||||
| | | | | | | |
Total other expense |
(3,013,531 | ) | (2,390,716 | ) | |||
| | | | | | | |
Net income (loss) |
(32,356,265 | ) | 5,958,824 | ||||
Less: net (income) loss attributable to non-controlling interest in variable interest entity's earnings |
95,931 | (557,479 | ) | ||||
| | | | | | | |
Net income (loss) attributable to Magna Energy Services, LLC |
$ | (32,260,334 | ) | $ | 5,401,345 | ||
| | | | | | | |
| | | | | | | |
| | | | | | | |
See accompanying notes to consolidated financial statements.
F-59
MAGNA ENERGY SERVICES, LLC
CONSOLIDATED STATEMENTS OF MEMBERS' EQUITY (DEFICIT)
Years Ended December 31, 2015 and 2014
|
Members'
Capital |
Accumulated
Earnings (Deficit) |
Non-Controlling
Interest |
Total | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balances, December 31, 2013 |
$ | 26,323,846 | $ | (4,340,229 | ) | $ | 2,412,812 | $ | 24,396,429 | ||||
Members' distributions |
(350,000 | ) | (350,000 | ) | |||||||||
Net income |
5,401,345 | 557,479 | 5,958,824 | ||||||||||
| | | | | | | | | | | | | |
Balances, December 31, 2014 |
26,323,846 | 1,061,116 | 2,620,291 | 30,005,253 | |||||||||
Net loss |
(32,260,334 | ) | (95,931 | ) | (32,356,265 | ) | |||||||
| | | | | | | | | | | | | |
Balances, December 31, 2015 |
$ | 26,323,846 | $ | (31,199,218 | ) | $ | 2,524,360 | $ | (2,351,012 | ) | |||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
See accompanying notes to consolidated financial statements.
F-60
MAGNA ENERGY SERVICES, LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31, 2015 and 2014
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Cash flows from operating activities: |
|||||||
Net Income (loss) |
$ | (32,356,265 | ) | $ | 5,958,824 | ||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: |
|||||||
Bad debt expense |
85,000 | 405,000 | |||||
Depreciation and amortization |
11,400,197 | 10,510,816 | |||||
Impairment of assets held for sale |
963,000 | 158,397 | |||||
Impairment of goodwill |
20,001,754 | ||||||
Loss (gain) on sale of assets |
318,500 | (193,642 | ) | ||||
Settlement of note receivable |
50,000 | ||||||
Gain on sale of vacant property |
(95,269 | ) | (261,314 | ) | |||
Changes in operating assets and liabilities: |
|||||||
Accounts receivable |
12,215,845 | 1,386,312 | |||||
Unbilled accounts receivable |
525,797 | 244,856 | |||||
Inventory |
233,010 | (1,454 | ) | ||||
Other assets |
267,855 | (802,557 | ) | ||||
Restricted cash |
30,258 | (3,263 | ) | ||||
Accounts payable |
(2,090,586 | ) | (3,241,618 | ) | |||
Accrued management fees |
1,192,654 | 1,947,127 | |||||
Accrued expenses and other |
(756,983 | ) | (702,609 | ) | |||
| | | | | | | |
Net cash provided by operating activities |
11,934,767 | 15,454,875 | |||||
| | | | | | | |
Cash flows from investing activities: |
|||||||
Proceeds from sale of fixed assets |
211,087 | 1,217,300 | |||||
Additions to property and equipment |
(2,331,291 | ) | (14,443,135 | ) | |||
| | | | | | | |
Net cash used in investing activities |
(2,120,204 | ) | (13,225,835 | ) | |||
Cash flows from financing activities: |
|||||||
Net proceeds under line of credit |
(10,228,623 | ) | 1,445,690 | ||||
Proceeds from related party line of credit |
4,000,000 | ||||||
Proceeds from convertible notes |
396,312 | 396,312 | |||||
Payment of loan fees |
(156,694 | ) | (50,000 | ) | |||
Proceeds from financing loan |
2,185,508 | 6,128,541 | |||||
Repayment of debt and capital leases |
(6,610,964 | ) | (8,367,267 | ) | |||
Members' distributions/redemptions |
(350,000 | ) | |||||
| | | | | | | |
Net cash used in financing activities |
(10,414,461 | ) | (796,724 | ) | |||
Net (decrease) increase In cash and cash equivalents |
(599,898 | ) | 1,432,316 | ||||
Cash and cash equivalents: |
|||||||
Beginning of period |
1,432,316 | ||||||
| | | | | | | |
End of period |
$ | 832,418 | $ | 1,432,316 | |||
| | | | | | | |
Cash paid for interest |
$ | 1,809,831 | $ | 2,464,327 | |||
| | | | | | | |
Non-cash activities: |
|||||||
Additions of property and equipment through notes payable |
$ | 425,110 | $ | 6,093,136 |
See accompanying notes to consolidated financial statements.
F-61
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Organization
Magna Energy Services, LLC, formerly Cornerstone Energy Services, LLC, was organized as a Colorado limited liability company on March 23, 2007. Magna Energy Services, LLC was formed to acquire eight companies located in Gillette, Wyoming: KG Construction Co., CB, Inc., GEM Air, Inc., Jerry's Tanks, Inc., Means Seeding, Inc., Superior Sand and Gravel, LLC, Powder River Spraying, LLC (collectively the "Means Companies") and Big 85 Well Service, LLC ("Big 85"). On April 1, 2008, substantially all of the assets of E&S Services, Inc. were acquired for a purchase price of $3.5 million (collectively "Magna Energy" or the "Company"). As a Limited Liability Company (LLC), the amount of loss at risk for each individual member is limited to the amount of capital contributed to the LLC, and unless otherwise specified, the individual members' liability for indebtedness of an LLC is limited to the members' actual capital contributed.
Effective April 7, 2011, Magna Energy acquired substantially all of the assets of Holloway Enterprises, Inc., ("Holloway") for an adjusted purchase price of $11,706,818.
Effective March 20, 2012, Magna Energy acquired substantially all of the assets of Western Wellsite Services, LLC, ("Western") for an adjusted purchase price of $22,548,226.
Effective July 13, 2012, Magna Energy acquired substantially all of the assets of Baker Enterprises Ltd. d/b/a Premium Water Services, LLC, ("Premium") for a purchase price of $700,000.
The Company provides well head support and fluid services for the oil and gas industry, primarily in Wyoming, Colorado, and North Dakota.
As of June 24, 2016, the majority of the operating assets and liabilities of the Company were acquired by Magna Energy Services, LLC, a newly formed Delaware limited liability company ("New Magna"). Pursuant to the purchase and sale agreement, the consideration related to the sale includes the total outstanding senior debt on the date of purchase, as well as certain additional liabilities and cash paid for the transaction costs associated with the sale. The total value of outstanding debt of the senior lender of the Company on the date of the sale was approximately $29,300,000 which was paid off by New Magna and the remaining assets and selected liabilities of Magna Energy were acquired through a net settlement of $12,500,000. The remaining debt of the Company was either converted to equity or included in the non-controlling interest, which is not included in the sale. None of the members of the Company are members of New Magna.
Note 2. Significant Accounting Policies
Use of estimates: The preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the balance sheet. Significant estimates include the Company's allowance for doubtful accounts and assets held for sale. Actual results could differ from these estimates.
Principles of consolidation: The consolidated financial statements include the accounts of Magna Energy Services, LLC and Magna Real Estate, LLC ("Magna Real Estate") in accordance with Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 810, Consolidation of Variable Interest Entities. All significant intercompany transactions and balances have been eliminated in consolidation.
F-62
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Significant Accounting Policies (Continued)
Cash and cash equivalents: Cash and cash equivalents are defined as cash on hand and cash in bank accounts with original maturities of three months or less. From time to time, the Company may hold cash in excess of federally insured amounts.
The Company maintains cash accounts with different financial institutions.
Restricted cash: Restricted cash consists of certificates of deposits held by the state of Wyoming for gravel pit reclamation.
Accounts receivable: The Company's accounts receivable arise through normal billing cycles and are generally due in 30 days. No interest is recorded on outstanding balances. The Company reviews receivables periodically for collectability and any items identified as uncollectible are reserved. As of December 31, 2015 and 2014, $320,000 and $405,000 was reserved, respectively. For production work not completed at the end of any billing cycle and thus not eligible for billing to the customer, an estimate is made of the work that has been completed and is recorded as unbilled accounts receivable.
Inventory: At December 31, 2015 and 2014, inventory primarily consists of salvaged pipe to be refurbished and sold, production use items, and shop parts used in the repair and maintenance of Company assets. Inventory is stated at the lower of cost or market, as calculated using the first in-first out method. The Company records provisions for slow-moving inventory to the extent the cost of inventory exceeds estimated net realizable value. The Company did not have a reserve at December 31, 2015 and 2014, for slow-moving inventory.
Property and equipment: Property and equipment are stated at cost or at estimated fair value at acquisition date if acquired in a business combination. Expenditures for repairs and maintenance are charged to expense as incurred and additions and improvements that significantly extend the lives of the assets are capitalized. Upon sale or other retirement of depreciable property, the cost and accumulated depreciation and amortization are removed from the related accounts and any gain or loss is reflected in operations. All property and equipment are depreciated or amortized (to the extent of estimated salvage values) on the straight-line method and the estimated useful lives of the assets generally range from 3-30 years.
Impairment of property and equipment: The Company reviews its long-lived assets including land, property and equipment for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the capitalized costs of the assets to the future undiscounted net cash flows expected to be generated by the assets. The Company did not record an impairment for the years ending December 31, 2015 and 2014.
Assets held for sale: At December 31, 2012, the Company removed pumping units from its oil field equipment as it intends to market these assets for sale. Accordingly, certain pumping units were segregated from property, plant, and equipment and classified as held for sale. Upon classification as held for sale, long-lived assets are no longer depreciated and a measurement for impairment is performed if there is any excess of carrying value over fair value less costs to sell. At December 31, 2012, this equipment was valued at net book value, which approximates net realizable value. During the years ended December 31, 2015 and 2014, the Company wrote down its assets held for sale to fair value resulting in an impairment charge of $963,000 and $158,397, respectively.
F-63
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Significant Accounting Policies (Continued)
Loan origination fees: The Company capitalized fees related to establishment of long-term debt. These fees are being amortized over the life of the loan on a straight-line basis. The difference between straight line and the effective interest method is not material to the consolidated financial statements. The Company recorded amortization expense of $153,800 and $92,807 for the years ended December 31, 2015 and 2014, respectively, which is included in interest expense on the consolidated statements of operations. During the year ended December 31, 2015 the Company amended the loans with its senior debt lender reducing the loan payments until March 1, 2016. As a result, the Company was assessed a $234,848 loan fee which is payable in March 2016. As the result of the sale of the Company on June 24, 2016 (Note 11), this fee was not taken by the bank and this fee has been eliminated from loan costs as of December 31, 2015. In addition, the Company incurred $103,694 in legal fees that are being amortized over the remaining term of the loans. In connection with the Company's sale, all debt was paid in full (Note 7) and all loan fees were expensed in 2016.
Non-controlling interest in Magna Real Estate, LLC: The Company entered into an operating lease agreement with Magna Real Estate in 2008. The operating lease agreement is for a term of 20 years, and is for the use of the land and infrastructure on the sole piece of property that Magna Real Estate owns. When the Company was sold on June 24, 2016 a new lease was written with a lease term of 2 years. Additionally, Magna Energy and Magna Real Estate have common ownership, and certain debt agreements for Magna Real Estate are collateralized by interests in Magna Energy. The Company evaluates variable interest entities ("VIEs") in which it holds a beneficial interest for consolidation. VIEs are defined as legal entities with insubstantial equity whose equity investors lack the ability to make decisions about the entity's activities, or whose equity investors do not have the right to receive the residual returns of the entity if they occur. Accordingly, there are three criteria to consider when determining if a company is a VIE. An entity is to be consolidated if it meets any of the three criteria. Magna Real Estate met the following criteria: the equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support provided by any parties, including the equity holders.
In 2015 and 2014, the Company has fully consolidated Magna Real Estate into its financial statements (Note 8). The 100 percent non-controlling ownership interest in the loss of Magna Real Estate is included as decrease to net loss in 2015 and 100 percent of the non-controlling ownership interest in the income of Magna Real Estate as a decrease to net income in 2014, respectively, to derive the Income (loss) attributable to Magna Energy members in the consolidated statements of operations. The 100 percent non-controlling interest in the equity of Magna Real Estate is shown as a separate component of members' equity in the consolidated balance sheets and statements of members' equity.
Goodwill and intangible assets: Goodwill is not amortized and is tested for impairment annually or whenever events or changes in circumstances indicate that the carrying value may not be recoverable in accordance with the Company's policy. The Company has chosen the end of its fiscal month of December as the date of its annual impairment test. Goodwill is evaluated for impairment at the reporting unit level. No impairments were recorded for the year ended December 31, 2014. It was determined that goodwill was impaired $20,001,754 as of December 31, 2015. There were several causes of the impairment. The first was a decrease in business activity in the Gillette geographical area due to the downturn in the energy sector, depressed value of the production equipment used in that area, and the management's estimated poor financial results in the immediate future years. In addition, due to
F-64
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Significant Accounting Policies (Continued)
the sale of the Company on June 24, 2016, other components of goodwill were sold at less than carrying values.
Long-lived intangible assets with determinable economic life are tested for recoverability whenever events or circumstances indicate that their carrying amounts may not be recoverable. The Company has determined there is no impairment on intangible assets for the years ended December 31, 2015 and 2014.
Well servicing: Well servicing consists primarily of maintenance services, workover services, drilling services, tracking services and wireline services. The Company recognizes revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. The Company prices well servicing by the hour or by the date of service performed.
Fluid services: Fluid services consist primarily of the sale, transportation, storage and disposal of fluids used in drilling and tracking of oil and natural gas wells. The Company recognizes revenue when services are performed, collection of the relevant receivables is probable, persuasive evidence of an arrangement exists and the price is fixed or determinable. The Company prices fluid services by the job, by the hour or by the quantities sold, disposed of or hauled.
Taxes assessed on sales transactions are presented on a net basis and are not included in revenue.
Major customers: The Company provides the majority of its services to a few customers. The Company does not consider this a risk as there is a readily available supply of customers in the area. For the years ended December 31, 2015 and 2014, the following customers exceeded 10 percent of revenue for the Company:
|
2015 | 2014 | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Revenue | Receivables | Revenue | Receivables | |||||||||
Company A |
$ | 17,719,678 | $ | 1,707,513 | $ | 19,242,759 | $ | 2,614,895 | |||||
Company B |
6,666,065 | 1,281,161 |
Income taxes: The Company is a limited liability company, and is treated as a pass through entity for income tax purposes. The Company's taxable income is passed through to its members. The Company is not subject to income taxes except for certain states in which the Company elects to pay income taxes on behalf of its members. For the year ended December 31, 2015, the Company elected to pay $10,279 of state taxes on behalf of its members.
The Company recognizes interest and penalties related to uncertain tax positions in income tax expense. No interest and penalties related to uncertain tax positions were accrued at December 31, 2015.
The tax years 2012 through 2015 remain open to examination by the major taxing jurisdictions in which the Company operates. The Company expects no material changes to unrecognized tax positions within the next twelve months.
Fair value measurements: On September 15, 2006, the FASB issued ASC 820, Fair Value Measurements and Disclosures. ASC 820 provides enhanced guidance for using fair value to measure assets and liabilities. ASC 820 also responds to investors' requests for expanded information about the
F-65
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Significant Accounting Policies (Continued)
extent to which companies measure assets and liabilities at fair value, the information used to fair value and the effect of fair value measurements on earnings. ASC 820 applies whenever other standards require (or permit) assets or liabilities to be measured at fair value. ASC 820 does not expand the use of fair value in any new circumstances. ASC 820 is effective for financial statements issued for fiscal years beginning after November 15, 2007. The Company adopted ASC 820 on the first day of fiscal year 2008 for all their financial assets and financial liabilities (Note 4). The effective date for nonfinancial assets and nonfinancial liabilities applies to fiscal years beginning after November 15, 2008. The adoption of this portion of ASC 820 had no impact on the Company's consolidated financial statements.
The Company's financial assets and liabilities include cash and cash equivalents, accounts receivable, unbilled accounts receivable, inventory, assets held for sale, debt obligations, accounts payable, and accrued liabilities. The carrying amounts reported in the consolidated balance sheets for these assets approximate fair value due to the immediate or short-term maturities of these financial instruments.
Advertising costs: Advertising costs are expensed as incurred and are included in general and administrative expenses in the accompanying consolidated statements of operations. Advertising expense was approximately $27,000 and $55,000 for the years ended December 31, 2015 and 2014, respectively.
Recent accounting pronouncements: On January 16, 2014, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2014-02, IntangiblesGoodwill and Other (Topic 350): Accounting for Goodwill . This ASU introduces an accounting alternative for private companies that simplifies and reduces the costs associated with the subsequent accounting for goodwill.
In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (Topic 606) , which affects any entity that either enters into contracts with customers to transfer goods or services, or enters into contracts for the transfer of nonfinancial assets unless those contracts are within the scope of other standards. This ASU will supersede the revenue recognition requirements in Topic 605, Revenue Recognition, and most industry-specific guidance. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. This ASU is effective for annual reporting periods beginning after December 15, 2017 and interim periods within annual periods beginning after December 15, 2018. A nonpublic entity may elect to apply the guidance in this ASU early with certain restrictions. The Company did not elect early adoption and is currently evaluating the impact of ASU 2014-09 on its consolidated financial statements.
In August 2014, the FASB issued ASU 2014-15, Presentation of Financial StatementsGoing Concern (Subtopic 205-40): Disclosure of Uncertainties about an Entity's Ability to Continue as a Going Concern . The guidance requires an entity to evaluate whether there are conditions or events, in the aggregate, that raise substantial doubt about the entity's ability to continue as a going concern within one year after the date that the financial statements are issued or available to be issued and to provide related footnote disclosures in certain circumstances. The guidance is effective for the annual period ending after December 15, 2016, and for annual and interim periods thereafter. Early application is permitted. The Company did not elect early adoption.
F-66
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Significant Accounting Policies (Continued)
Reclassifications: Certain reclassifications have been made to the prior year consolidated financial statements to conform to the current year presentation. Such reclassifications had no effect on net loss.
Note 3. Goodwill and Intangible Assets
In connection with the Means Companies and Big 85 acquisitions on April 30, 2007, the Company recorded $9,639,358 of goodwill. As of December 31, 2011, goodwill was increased to $14,472,689 as a result of the Company meeting the earn-out provisions as described in the succeeding paragraph.
As of December 31, 2015, it was determined this goodwill of $14,472,689 was impaired. The primary cause of the impairment was decrease in business activity in the Gillette geographical area due to the downturn in the energy sector, depressed value of the production equipment used in that area and the management's estimated poor financial results in the immediate future years.
In connection with the April 7, 2011, acquisition of Holloway, the Company recorded $5,355,062 of goodwill, resulting from the excess of the consideration paid over the fair value of assets and liabilities assumed. Because the sale of the Company on June 24, 2016, resulted in the calculated value of the assets sold attributable to this goodwill was less than the appraised value of these assets used in the valuation, it was determined that an impairment of $2,020,062 had occurred as of December 31, 2015.
In connection with the March 20, 2012, acquisition of Western, the Company recorded $8,120,000 of goodwill, resulting from the excess of the consideration paid over the fair value of assets and liabilities assumed. Because the sale of the Company on June 24, 2016, resulted in the calculated value of the assets sold attributable to this goodwill was less than the appraised value of these assets used in the valuation, it was determined that an impairment of $3,029,003 had occurred as of December 31, 2015.
In connection with the July 13, 2012, acquisition of Premium, the Company recorded $480,000 of goodwill, resulting from the excess of the consideration paid over the fair value of assets and liabilities assumed. It was determined that a goodwill impairment of $480,000 occurred as of December 31, 2015. The primary cause of the impairment was the loss of the major customer from the acquisition.
Intangible assets are recorded at cost, less accumulated amortization. On March 20, 2012, as part of the purchase of Western, the principal stockholders were paid $10,000 for a non-compete agreement covering three years. On July 13, 2012, as part of the purchase of Premium, the principal stockholders were paid $5,000 for a non-compete agreement covering three years. For the years ended December 31, 2015 and 2014, the Company had recorded amortization expense in the amount of $1,683 and $5,823, respectively.
The intangible assets were fully amortized at December 31, 2015.
Note 4. Fair Value of Financial Instruments
ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability (i.e., the "exit price") in an orderly transaction between market participants at the measurement date.
In determining fair value, the Company uses various valuation approaches, including market, income and/or cost approaches. A hierarchy for inputs used in measuring fair value that maximizes the
F-67
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 4. Fair Value of Financial Instruments (Continued)
use of observable inputs and minimizes the use of unobservable inputs by requiring that the observable inputs be used when available. The hierarchy is broken down into three levels based on the reliability of inputs as follows:
Level 1 : Valuations based on quoted prices in active markets for identical assets or liabilities that the Company has the ability to access.
Level 2 : Valuations based on quoted prices in markets that are not active or for which all significant inputs are observable, directly or indirectly.
Level 3 : Valuations based on inputs that are unobservable and significant to the overall fair value measurement.
The following describes the valuation methodologies the Company uses for its fair value measurements:
Assets held for sale: Assets held for sale consist of pumping units and are measured at their fair value less costs to sell. The Company's assets held for sale are measured primarily using Level 2 inputs. The fair value was based on a valuation using quoted prices in markets that are not active.
The following table provides a summary of the fair values of assets and liabilities measured on a non-recurring basis under ASC 820 as of December 31, 2015:
|
Level 1 | Level 2 | Level 3 | Total | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Assets: |
|||||||||||||
Assets held for sale |
$ | $ | 124,000 | $ | $ | 124,000 |
The following table provides a summary of the fair values of assets and liabilities measured on a non-recurring basis under ASC 820 as of December 31, 2014:
|
Level 1 | Level 2 | Level 3 | Total | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Assets: |
|||||||||||||
Assets held for sale |
$ | $ | 1,087,000 | $ | $ | 1,087,000 |
During the year ended December 31, 2015 and 2014, the Company wrote down its assets held for sale to fair value using Level 2 inputs, resulting in an impairment charge of $963,000 and $158,397, respectively.
Note 5. Related Parties
All intercompany balances were eliminated in consolidation at December 31, 2015 and 2014. The Company leases a building from Magna Real Estate, and for the years ended December 31, 2015 and 2014, the Company's expenses included $480,000 and $480,000 in rent, which were also eliminated in consolidation. As a result of the sale of the Company on June 24, 2016, the lease rent with Magna Real Estate was terminated and a new lease was executed with the successor company that is not a related party.
As a result of the Western acquisition in 2012, the Company leases several building structures from the members and for the years ended December 31, 2015 and 2014, $30,000 and $106,500 of rent was expensed respectively. All leases expired during 2015. At December 31, 2014, the Company owed Western $5,613 for certain expenses.
F-68
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 5. Related Parties (Continued)
As a result of the Holloway acquisition in 2011, the Company leased two buildings and a vacant lot from the members and for the years ended December 31, 2015 and 2014, the Company's expenses included $341,633 and $304,262 in rent, respectively. The leases for the two buildings expired October 2015.
The Company has an arrangement with Cornerstone Holdings, LLC ("Cornerstone") to perform management services, provide corporate offices and other duties. Cornerstone is one of the members in the Company. For the years ended December 31, 2015 and 2014, the Company incurred management fees of $1,192,655 and $2,472,127, respectively, under this arrangement, included in operating costs. At December 31, 2015 and 2014, the Company has accrued management fees of $6,727,161 and $5,534,507, respectively, included in accrued expenses for the fees incurred but not paid. In 2015, these unpaid management fees are treated as long-term liabilities as it is management's opinion that they will not be able to repay any portion in less than one year. In addition, the Company accrues interest on the unpaid balance at 6 percent per annum. At December 31, 2015 and 2014, the Company had accrued interest expense of $552,219 and $395,206, respectively. $150,000 of accrued interest was paid in 2015. When the Company was sold on June 24, 2016, the accrued management fees and the related interest were written off.
The Company leases the land and building housing the LaSalle operations on a month-to-month basis from Cornerstone Development, LLC ("Cornerstone Development"). One of the members of the Company has a majority interest in Cornerstone Development. For the years ended December 31, 2015 and 2014, $590,400 and $98,400 in rent was paid. As a result of the sale of the Company on June 24, 2016, the lease rent with Cornerstone Development, LLC was terminated and a new lease was executed with the successor company.
At December 31, 2015 and 2014, the Company owed Cornerstone $6,747 and $4,837, respectively, for certain expenses.
Other than rents, the Company has entered into transactions with entities in which members have a controlling interest. During the year ended December 31, 2015, the Company leased frac tanks amounting to $107,490, purchased tires amounting to $4,925 and purchased fuel amounting to $15,000. During the year ended December 31, 2014 the Company leased frac tanks amounting to $228,125, purchased tires amounting to $155,477, purchased fuel amounting to $134,048 and contracted truck hauling amounting to $27,143. In addition, during the years ended December 31, 2015 and 2014, $142,527 and $81,125, respectively, of parts inventory was purchased by a member of the Company.
In June 2012, the Company entered into a note receivable in the amount of $100,000 with an officer of the Company with a 0.23% annual interest rate. Annually, upon the first and second anniversaries of the date of his employment, $50,000 of the note will be forgiven if the officer is employed with the Company. During 2013, $50,000 of the note was forgiven and was recorded as salary expense under general and administrative expenses in the consolidated statement of operations. The remaining $50,000 was classified in current assets as of December 31, 2013. During 2014, the remaining portion of the note was forgiven and was recorded as a salary expense under general and administrative expenses in the consolidated statement of operations.
F-69
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 6. Property and Equipment
Property and equipment consists of the following as of December 31:
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Office furniture and equipment |
$ | 643,683 | $ | 551,038 | |||
Equipment |
29,886,431 | 29,130,330 | |||||
Frac tanks |
9,031,363 | 9,031,363 | |||||
Vehicles |
31,122,626 | 30,011,334 | |||||
Trailers |
6,621,641 | 6,584,667 | |||||
Assets being refurbished |
1,406,409 | 1,234,873 | |||||
Land |
996,956 | 1,063,355 | |||||
Building/land improvements |
3,691,859 | 4,137,299 | |||||
| | | | | | | |
|
83,400,968 | 81,744,259 | |||||
Less accumulated depreciation |
52,454,966 | 41,450,516 | |||||
| | | | | | | |
Total property and equipment, net |
$ | 30,946,002 | $ | 40,293,743 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The Company recorded depreciation expense for the years ended December 31, 2015 and 2014, of $11,244,714 and $10,412,186, respectively.
Note 7. Long-Term Debt
Long-term debt consists of the following as of December 31:
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Line of credit |
$ | 2,581,508 | $ | 12,810,131 | |||
Line of credit-related Party |
4,000,000 | ||||||
Subordinated convertible promissory notes to members |
4,046,478 | 3,650,166 | |||||
Asset based loan |
21,454,820 | 25,362,277 | |||||
Real estate term loan #1 |
1,708,817 | 1,797,529 | |||||
Notes payable to members |
2,470,466 | 2,470,466 | |||||
Capital expenditure term loan collateralized by specific equipment |
6,914,679 | 7,343,966 | |||||
| | | | | | | |
Total debt |
43,176,768 | 53,434,535 | |||||
Less current portion |
(6,766,213 | ) | (10,979,911 | ) | |||
Less line of credit |
6,581,508 | 12,810,131 | |||||
| | | | | | | |
Total long-term debt |
$ | 29,829,047 | $ | 29,644,493 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Debt Refinancing. On November 26, 2013, the Company entered into a new loan agreement with its senior debt lender. The loan agreement has covenant requirements (as defined in the debt agreement) for a fixed charge coverage ratio and maximum senior leverage ratio. On June 30, 2015, the loan was amended to decrease the loan payments to $100,000 a month until March 1, 2016, when the normal loan payments are restored. There were increases in the interest rates as described below and changes in the covenant requirements one of which was applicable to December 31, 2015. The Company was in compliance with the applicable covenant requirement at December 31, 2015. On
F-70
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 7. Long-Term Debt (Continued)
June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank (Note 1).
Line of Credit. As part of the Western purchase, the Company amended its loan effective March 20, 2012, to increase its line of credit to $13,000,000. As a result of the debt refinancing, the line of credit was increased to $18,000,000. The line of credit is segregated into two amounts. At December 31, 2014, there was a fixed amount of $9,200,000 in which interest is calculated at LIBOR plus 2.75 percent (2.91 percent at December 31, 2014. Interest on the amount that exceeds $9,200,000 is calculated at 1.25 percent plus Fifth Third Prime (4.5 percent at December 31, 2014). During the year, the $9,200,000 was transferred to the main revolver. The loan has a maturity date of December 31, 2018, and is collateralized by eligible accounts receivable, as defined in the agreement. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank (Note 1).
Line of Credit-Related Party. As part of the June 30, 2015 amendment, the LLC owned by the majority member was required to provide to the Company a revolving credit facility in the amount of $4,000,000 over a three month period. These loans accrued interest a 20 percent per annum and the accrued interest expense at December 31, 2015, was $375,890. Repayment of the credit facility cannot occur earlier than July 15, 2016, and any subsequent prepayments must meet certain loan covenants. On January 1, 2016, management agreed to convert this loan to equity. On June 24, 2016, the Company was sold (Note 1) and this equity was deemed worthless.
Subordinated Convertible Promissory Notes. The Company entered into Subordinated Convertible Promissory Notes with five of its members for total debt of $2,601,205. The notes are dated August 31, 2012, for $1,592,913 and February 13, 2013, for $1,008,292 and are due within 15 days of repayment or refinancing with the Company's secured creditor. The members that are parties to the notes declined to enforce the repayment provision of the notes upon the Company's debt refinancing with its secured creditor. Principal and accrued interest may be converted into Class A membership units at a conversion rate of $1,282 per unit. Due to the uncertain maturity date of the note, interest due on the note shall be equal to the initial principal amount of the note. The note can also be repaid by the Company in whole or in part at any time without penalty or premium subject to conditions set forth in the Company's secured creditor loan agreement. As of December 31, 2015 and 2014, the Company has recognized $396,312 of interest expense on the debt for each year. On January 1, 2016, management agreed to convert $1,800,213 of principal to equity.
On June 24, 2016, the Company was sold (Note 1) and this equity was deemed worthless.
Asset Based Loan. As part of the Western purchase, the Company amended its loan effective March 20, 2012, increasing it by $10,704,281 to $36,674,000 and changed its principal payments to $365,167 per month. As a result of the debt refinancing, the loan was increased to $33,567,942 with a principal payment of $559,466 per month. The loan has an interest rate of LIBOR, plus 3.25 percent (3.42 percent at December 31, 2014). As a result of the June 30, 2015 amendment, $80,000 of the new $100,000 loan payment was allocated to the Asset Based Loan. The interest payment on the loan was increased to LIBOR, plus 4.25 percent (4.49 percent at December 31, 2015). The loan has a maturity date of December 31, 2018. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank (Note 1).
F-71
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 7. Long-Term Debt (Continued)
Capital Expenditure Term Loan. As part of the Western purchase, the Company paid off the outstanding balance as of March 20, 2012, of $2,034,163 and amended its loan agreement providing for up to $3,000,000 in financing for the purchase of equipment at 80 percent of its vendor's invoice amount. Principal payments were to commence on October 1, 2013 for amounts advanced as of September 30, 2013. As a result of the 2013 debt refinancing, all advances made as a result of this note were incorporated in the new asset based loan and a new debt facility was provided to allow up to $11,343,966 for the purchase of equipment at 80 percent of its vendor's invoice amount. Principal payments commence on January 1, 2015, for amounts advanced as of December 31, 2015. For amounts advanced during the year ended December 31, 2015, principal payments will commence on January 1, 2016. The loan amendment of June 30, 2015, terminated any further funding of equipment purchases. At the time of the amendment, $425,110 of purchases were funded by this loan. Principal payments are calculated at 1 2 / 3 percent of the amounts advanced payable monthly. As a result of the June 30, 2015 amendment, $20,000 of the new $100,000 loan payment was allocated to the Capital Expenditure Term Loans. Interest is calculated at 1.75 percent plus Fifth Third Prime (5 percent at December 31, 2014). The June 30, 2015 amendment changed the calculation of the interest rate to 2.75 percent plus Fifth Third Prime (6.25 percent at December 31, 2015). The loans have a maturity date of December 31, 2019, for 2014 loan advances and December 31, 2020, for 2015 loan advances. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank (Note 1).
Member Loans. As part of the Western purchase, the previous stockholders became new members of the Company and provided $3,000,000 in financing. The loans have a 6 percent interest rate and mature on March 20, 2017. Annually, upon the first, second and third anniversaries of the date of the loans, the Company may make a payment of $1,000,000, plus any accrued and unpaid interest. The principal payments may only be made so long as the principal payments are in compliance with the payment provisions as defined in the loan agreement for the line of credit, asset based loan, cash flow loan and Term B loan. As of December 31, 2012, the Company did not make its first annual payment due to the payment restrictions on the notes listed above. As a result of the debt refinancing in 2013, the previous stockholders agreed to delay payment on the anniversary dates. During the year ended December 31, 2015, the Company made the first $1,000,000 payment that included $470,466 of accrued interest. Subsequent $1,000,000 payments are allowed in each calendar year provided that the Company is not in default of its loan covenants. The June 30, 2015 amendment delays payments for Member Loans to July 15, 2016. Interest is accrued at 6 percent of the unpaid balance. When the Company was sold on June 24, 2016, the unpaid portion of the loans and the related interest were not paid.
Real Estate Term Loans (#1 and #2). The term loans were entered into by Magna Real Estate on December 4, 2008 in order to satisfy a Magna Real Estate construction loan that came due in December 2008. The construction loan was entered into in order to finance the construction and landscaping of the facility and land that Magna Real Estate currently leases to Company. Real estate term loan #1 had an original maturity date of December 4, 2013. Real estate term loan #2 had an amended maturity date of December 4, 2013. During 2013, real estate term loans #1 and #2 were extended until May 31, 2015. Real estate term loan #1 requires regular monthly payments of $14,900, plus 5 percent interest, and a final balloon payment due at maturity. Real estate term loan #2 requires monthly payments of $7,357 at 5.5 percent interest rate. These loans are collateralized by the assets and properties held by Magna Real Estate and are guaranteed by equity members of both Magna Real
F-72
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 7. Long-Term Debt (Continued)
Estate and the Company. During the year ended December 31, 2014, real estate term loan #2 was paid off from the sales of the improved vacant land. On May 29, 2015, Real estate term loan #1 was extended. The new monthly payments are $15,432 plus 5.5 percent interest and final balloon payment due on June 6, 2020. As a result of the sale of the Company on June 24, 2016 (Note 1), the lease with Magna Real Estate was terminated and a new lease was executed with the successor company that is not a related party.
As of December 31, 2015, the aggregate maturities of debt, for the next five years and thereafter are as follows:
2016 |
$ | 13,347,721 | ||
2017 |
8,364,620 | |||
2018 |
17,126,990 | |||
2019 |
2,917,441 | |||
2020 |
1,419,996 | |||
| | | | |
|
$ | 43,176,768 | ||
| | | | |
| | | | |
| | | | |
Interest expense for the years ended December 31, 2015 and 2014, was $3,039,509 and $2,845,672, respectively.
Note 8. Non-Controlling Interest in Magna Real Estate
The following table presents condensed financial information for Magna Real Estate:
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Condensed Balance Sheet |
|||||||
Current assets |
$ | 442,820 | $ | 144,495 | |||
Long-lived assets |
3,796,795 | 4,281,080 | |||||
| | | | | | | |
Total assets |
$ | 4,239,615 | $ | 4,425,575 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Current liabilities |
$ | 98,400 | $ | 1,805,284 | |||
Long-term liabilities |
1,616,855 | | |||||
| | | | | | | |
Total liabilities |
1,715,255 | 1,805,284 | |||||
Members' equity |
2,524,360 | 2,620,291 | |||||
| | | | | | | |
Total liabilities and members' equity |
$ | 4,239,615 | $ | 4,425,575 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
|
2015 | 2014 | |||||
---|---|---|---|---|---|---|---|
Condensed Statement of Operations |
|||||||
Revenue |
$ | 490,041 | $ | 591,182 | |||
Expenses |
(585,972 | ) | (33,703 | ) | |||
| | | | | | | |
Net income (loss) |
$ | (95,931 | ) | $ | 557,479 | ||
| | | | | | | |
| | | | | | | |
| | | | | | | |
As of December 31, 2015 and 2014, the accompanying consolidated balance sheet includes non-controlling interest of $2,524,360 and $2,620,291, respectively, reflecting the equity of Magna Real
F-73
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 8. Non-Controlling Interest in Magna Real Estate (Continued)
Estate not owned by the Company. The accompanying consolidated statements of operations include net loss attributable to non-controlling interest of $(95,931) and $557,479 for the years ended December 31, 2015 and 2014, respectively. Included in net income attributable to non-controlling interest for 2014 is a gain from the sales of improved vacant land in the amount of $261,314. Included in net loss attributable to non-controlling interest for 2015 are losses from asset disposals in the amount of $294,358 net of the gain from the sale of a vacant lot of $95,269. As a result in the downturn in the energy industry and as well as the closing of the water well in September 2015, water sales from the water well decreased by about $100,000 in 2015 as compared to 2014.
Note 9. Members' Equity (Deficit)
On March 16, 2012, the Company redeemed 4,491.31 Class A membership units in Magna Energy Services, LLC (representing 29.93 percent of the issued and outstanding Class A units) for $5,032,939. Effective March 20, 2012, the Company amended its original loan agreement to provide additional financing for the Western acquisition. The amendment called for capital contributions by the members of $3,727,230, which was used as part of the funding of the purchase price. In addition, the Company issued $8,272,770 in member units related to the acquisition. On June 24, 2016, the Company was sold (Note 1) and all membership units were deemed worthless.
In 2014, Magna Real Estate made distributions in the amount of $350,000 to its members. No distributions were made in 2015. On January 1, 2016, the $4,000,000 line of credit with a related party and $1,800,213 of the convertible notes were converted to equity. On June 24, 2016, the Company was sold (Note 1) and the equity was deemed worthless.
At December 31, 2015 and 2014, there were 23,636 Class A membership units outstanding. On June 24, 2016, the Company was sold (Note 1) and these Class A membership units were deemed worthless.
Note 10. Commitments and Contingencies
Operating lease commitments: The Company entered into an operating lease with Magna Real Estate to lease a building through September 2028. As a result of the sale of the Company on June 24, 2016 (Note 11), New Magna entered into a new lease agreement with Magna Real Estate reducing the monthly rent and changing the lease term to end in June 2018. In addition, the Company has an operating lease through March 2014 with members of the Company consisting of a building and a vacant lot. This lease was extended through March 2015 and then again through December 31, 2015. During 2015, the Company entered into a lease agreement to share office space with a related entity through May 31, 2021. As a result of the sale of the Company on June 24, 2016 (Note 11), the lease was verbally changed to month-to-month with the last payment made for December 2016. In addition, the Company entered into a lease agreement on a month-to-month basis for the new building now housing the LaSalle operations. As a result of the sale of the Company on June 24, 2016 (Note 11), this lease was terminated and a new lease entered into by the New Magna. Refer to Note 5 for further discussion of the operating leases held with related parties.
Rent expense for the years ended December 31, 2015 and 2014, was approximately $992,448 and $662,000, respectively, of which $480,000 related to the lease with Magna Real Estate was eliminated
F-74
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 10. Commitments and Contingencies (Continued)
upon consolidation for each year. The total annual minimum lease payments for the next five years and thereafter are:
Years ended December 31:
|
|
|||
---|---|---|---|---|
2016 |
$ | 554,400 | ||
2017 |
554,400 | |||
2018 |
554,400 | |||
2019 |
554,400 | |||
2020 and thereafter |
4,305,400 | |||
| | | | |
|
$ | 6,523,000 | ||
| | | | |
| | | | |
| | | | |
In July 2013, the Company entered into an operating lease for a Williston, North Dakota building location through July 31, 2016. During 2014, the Company entered into various lease agreements for employee housing. Rent expense for these leases for the years ended December 31, 2015 and 2014, was approximately $330,000 and $80,000, respectively. The total annual minimum lease payments for the next five years and thereafter are:
On June 24, 2016, the Company was sold and the Company defaulted on the lease agreements for employee housing.
During 2015 and 2014, the Company entered into several operating lease agreements for semi-tractor trucks and water hauling trailers for lease periods of 48 or 60 months. Lease expense for the years ended December 31, 2015 and 2014, was approximately $2,422,713 and $2,226,000, respectively. The total annual minimum lease payments for the next five years and thereafter are:
On June 24, 2016, the Company was sold and some of equipment covered by these leases was purchased and the Company defaulted on the remaining leases. The remaining annual minimum lease payments were not assumed by New Magna in the June 24, 2016 (Note 11) acquisition.
Defined contribution plan: The Company's employees are eligible to participate in an Employee Profit Sharing Plan (the "401(k) Plan") if they meet certain eligibility criteria. The 401(k) Plan is referred to as a "Safe Harbor 401(k) Plan." In order to maintain safe harbor status, the Company made a safe harbor matching contribution equal to 100 percent of the employees' salary deferrals that
F-75
MAGNA ENERGY SERVICES, LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 10. Commitments and Contingencies (Continued)
did not exceed 4 percent of the employees' compensation in 2015 and 2014. This safe harbor matching contribution is fully vested and is referred to as enhanced matching contribution. Employees may also make Roth 401(k) contributions. Contributions to the 401(k) Plan are invested by the trustees of the 401(k) Plan in accordance with the directions of each participant. On termination of service due to death, disability, or retirement, a participant may receive a lump-sum amount equal to the value of the participant's vested interest in his or her account. The Company contribution to the 401(k) Plan on behalf of its employees was $157,726 and $253,783 for the years ended December 31, 2015 and 2014, respectively. With the last payroll of June 2015, the Company suspended any matching of its employee's contributions.
Contingencies: From time to time, the Company may be party to legal proceedings incidental to its business. In 2013, the Company was a party to a lawsuit with a vendor for unpaid rental fees in the amount of $171,078 plus interest at 24 percent. During the year ended December 31, 2015, this lawsuit was settled for a total amount of $45,000. There are currently no other claims, suits or complaints arising out of the normal course of business that have been filed or are pending against the Company at December 31, 2015.
With the sale of the Company to New Magna, there were certain property and building leases which were not assumed by New Magna and payments have not been made on these leases subsequent to June 24, 2016. The failure to pay could result in future liabilities to either the Company or New Magna. Estimated liabilities related to building leases are $217,000 and property leases are $2,315,000.
The Company also entered into agreements with certain employees whereby if the Company is sold for a value within certain parameters, these employees would receive a percentage of the excess net profit. As a result of the sale of the Company on June 24, 2016, none of the parameters were meant and thus there were no distributions.
During 2010, the Company granted an award to employees of Class B Units, whereby if the Company is sold for greater than fair value, they would share in proceeds from sale of assets. Until a sale occurs, the Class B members are not entitled to share in profits. No Class B Units were awarded during 2011. During 2012, employees with 158.65 Class B units terminated their employment with the Company, and new employees were granted 1,041 Class B Units. During 2013, one employee was granted an additional 138 Class B Units. During 2014, two employees were granted an additional 912 Class B Units. As of December 31, 2015 and 2014, 2,467 Class B Units, respectively, were outstanding. The fair value at the date of grant was insignificant to the consolidated financial statements. As the Company was sold in June 2016 for less than fair value, the Class B units have no value as of December 31, 2015.
Note 11. Subsequent Events
Subsequent events have been evaluated through February 3, 2017, the date the consolidated financial statements were available to be issued. As discussed in Note 1, on June 24, 2016, the majority of the Company's operating assets and liabilities were sold and the Company ceased operations.
F-76
MAGNA ENERGY SERVICES, LLC
CONDENSED CONSOLIDATED BALANCE SHEET
(Unaudited)
June 24, 2016
|
June 24, 2016 | |||
---|---|---|---|---|
|
(Unaudited)
|
|||
Assets |
||||
Current assets: |
||||
Cash and cash equivalents |
$ | 1,417,532 | ||
Accounts receivable, net of allowance of $389,789 |
3,184,203 | |||
Unbilled accounts receivable |
275,742 | |||
Inventory |
502,005 | |||
Assets held for sale |
124,000 | |||
Prepaid expenses |
693,549 | |||
| | | | |
Total current assets |
6,197,031 | |||
| | | | |
Property and equipment, net |
26,042,895 | |||
| | | | |
| | | | |
| | | | |
Long-term assets: |
||||
Restricted cash |
129,691 | |||
Loan origination fees, net |
233,184 | |||
Goodwill |
8,426,000 | |||
| | | | |
Total long-term assets |
8,788,875 | |||
| | | | |
Total assets |
$ | 41,028,801 | ||
| | | | |
| | | | |
| | | | |
Liabilities and Members' Deficit |
||||
Current liabilities: |
||||
Notes payable, current portion |
$ | 10,143,460 | ||
Line of credit |
1,495,013 | |||
Accounts payable |
874,367 | |||
Accrued expenses |
1,725,193 | |||
| | | | |
Total current liabilities |
14,238,033 | |||
| | | | |
Long-term liabilities: |
||||
Notes payable |
21,859,986 | |||
Accrued unpaid management fees |
7,057,543 | |||
Convertible notes |
2,263,793 | |||
| | | | |
Total long-term liabilities |
31,181,322 | |||
| | | | |
Total liabilities |
45,419,355 | |||
| | | | |
Commitments and contingencies (Note 5) |
||||
Members' deficit: |
||||
Members' capital |
32,124,059 | |||
Accumulated deficit |
(39,167,381 | ) | ||
Non-controlling interest |
2,652,768 | |||
| | | | |
Total members' deficit |
(4,390,554 | ) | ||
| | | | |
Total liabilities and members' deficit |
$ | 41,028,801 | ||
| | | | |
| | | | |
| | | | |
See notes to unaudited condensed consolidated financial statements.
F-77
MAGNA ENERGY SERVICES, LLC
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
For the Period Ended June 24, 2016 and the Six Months Ended June 30, 2015
|
June 24, 2016 | June 30, 2015 | |||||
---|---|---|---|---|---|---|---|
|
(Unaudited)
|
||||||
Revenues |
$ | 16,519,112 | $ | 32,938,268 | |||
| | | | | | | |
Operating costs and expenses: |
|||||||
Direct cost of revenues |
12,988,271 | 25,989,300 | |||||
General and administrative |
5,197,663 | 5,445,024 | |||||
Depreciation and amortization |
5,076,738 | 5,594,802 | |||||
Management fees |
330,382 | 653,768 | |||||
| | | | | | | |
Total operating costs and expenses |
23,593,054 | 37,682,894 | |||||
| | | | | | | |
Loss from operations |
(7,073,942 | ) | (4,744,626 | ) | |||
| | | | | | | |
Other income and (expense): |
|||||||
Interest expense |
(765,813 | ) | (1,287,495 | ) | |||
Gain on disposal of assets |
| 82,470 | |||||
Other income |
| 259,488 | |||||
| | | | | | | |
Total other expense |
(765,813 | ) | (945,537 | ) | |||
| | | | | | | |
Net income (loss) |
(7,839,755 | ) | (5,690,163 | ) | |||
Less: net income attributable to non-controlling interest in variable interest entity's earnings |
(128,408 | ) | (182,017 | ) | |||
| | | | | | | |
Net loss attributable to Magna Energy Services, LLC |
$ | (7,968,163 | ) | $ | (5,872,180 | ) | |
| | | | | | | |
| | | | | | | |
| | | | | | | |
See notes to unaudited condensed consolidated financial statements.
F-78
MAGNA ENERGY SERVICES, LLC
CONDENSED CONSOLIDATED STATEMENTS OF MEMBERS' DEFICIT
(Unaudited)
For the Period Ended June 24, 2016
|
Members'
Capital |
Accumulated
Deficit |
Non-Controlling
Interest |
Total | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
(Unaudited)
|
||||||||||||
Balances, December 31, 2015 |
$ | 26,323,846 | $ | (31,199,218 | ) | $ | 2,524,360 | $ | (2,351,012 | ) | |||
Conversion of Debt to Equity |
5,800,213 | | | 5,800,213 | |||||||||
Net loss |
| (7,968,163 | ) | 128,408 | (7,839,755 | ) | |||||||
| | | | | | | | | | | | | |
Balances, June 24, 2016 |
$ | 32,124,059 | $ | (39,167,381 | ) | $ | 2,652,768 | $ | (4,390,554 | ) | |||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
See notes to unaudited condensed consolidated financial statements.
F-79
MAGNA ENERGY SERVICES, LLC
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
For the Period Ended June 24, 2016 and the Six Months Ended June 30, 2015
|
June 24, 2016 | June 30, 2015 | |||||
---|---|---|---|---|---|---|---|
|
(Unaudited)
|
||||||
Cash flows from operating activities: |
|||||||
Net loss |
$ | (7,839,755 | ) | $ | (5,690,163 | ) | |
Adjustments to reconcile net loss to net cash provided by operating activities: |
|||||||
Bad debt expense |
69,789 | (64,281 | ) | ||||
Depreciation and amortization |
5,239,454 | 5,665,828 | |||||
Loss (gain) on sale of assets |
11,470 | ||||||
Gain on sale of vacant property |
(95,269 | ) | |||||
Changes in operating assets and liabilities: |
|||||||
Accounts receivable |
2,993,869 | 11,127,789 | |||||
Unbilled accounts receivable |
(81,523 | ) | 497,356 | ||||
Inventory |
18,587 | (17,652 | ) | ||||
Other assets |
1,180,634 | (509,509 | ) | ||||
Restricted cash |
9,714 | 31,482 | |||||
Accounts payable |
116,683 | (477,960 | ) | ||||
Accrued unpaid management fees |
330,382 | 653,768 | |||||
Accrued expenses and other |
335,213 | 342,527 | |||||
| | | | | | | |
Net cash provided by operating activities |
2,373,047 | 11,475,386 | |||||
| | | | | | | |
Cash flows from investing activities: |
|||||||
Proceeds from sale of fixed assets |
219,496 | ||||||
Additions to property and equipment |
(173,630 | ) | (1,326,131 | ) | |||
| | | | | | | |
Net cash used in investing activities |
(173,630 | ) | (1,106,635 | ) | |||
| | | | | | | |
Cash flows from financing activities: |
|||||||
Net proceeds under line of credit |
(1,086,495 | ) | (9,389,526 | ) | |||
Proceeds from related party line of credit |
2,000,000 | ||||||
Proceeds from convertible notes |
17,528 | 198,156 | |||||
Payment of loan fees |
(9,245 | ) | |||||
Proceeds from financing loan |
2,185,507 | ||||||
Repayment of debt and capital leases |
(545,336 | ) | (5,974,009 | ) | |||
| | | | | | | |
Net cash used in financing activities |
(1,614,303 | ) | (10,989,117 | ) | |||
| | | | | | | |
Net increase (decrease) in cash and cash equivalents |
585,114 | (620,366 | ) | ||||
Cash and cash equivalents: |
|||||||
Beginning of period |
832,418 | 1,432,316 | |||||
| | | | | | | |
End of period |
$ | 1,417,532 | $ | 811,950 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Cash paid for interest |
$ | 873,588 | $ | 1,297,208 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Non-cash activities: |
|||||||
Additions of property and equipment through notes payable |
$ | | $ | 425,110 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Conversion of related party line of credit to equity |
$ | 4,000,000 | $ | | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Conversion of a portion of convertible notes to equity |
$ | 1,800,213 | $ | | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
See notes to unaudited condensed consolidated financial statements.
F-80
MAGNA ENERGY SERVICES, LLC
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Basis of Presentation
The accompanying condensed consolidated financial statements of Magna Energy and its subsidiaries (collectively, "Magna" or the "Company"), are unaudited, pursuant to standards set by the Financial Accounting Standards Board (FASB). The FASB sets accounting principles generally accepted in the United States of American (GAAP). Certain information and footnote disclosures normally included in financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. In our opinion, the condensed consolidated financial statements include the normal, recurring adjustments necessary for the fair statement of the results for the interim periods. These financial statements should be read in conjunction with the audited consolidated financial statements, including the notes thereto.
Use of estimates: The preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the balance sheet. Significant estimates include the Company's allowance for doubtful accounts and assets held for sale. Actual results could differ from these estimates.
Principles of consolidation: The consolidated financial statements include the accounts of Magna Energy Services, LLC and Magna Real Estate, LLC ("Magna Real Estate") in accordance with FASB Accounting Standards Codification (ASC) 810, Consolidation of Variable Interest Entities. All significant intercompany transactions and balances have been eliminated in consolidation.
Note 2. Related Parties
The Company leases a building from Magna Real Estate, and for the period ended June 24, 2016 and the six months ended June 30, 2015, the Company's expenses included $240,000 in rent, for both periods, which were also eliminated in consolidation. As a result of the sale of the Company on June 24, 2016, the lease with Magna Real Estate was terminated and a new lease was executed with the successor company that is not a related party.
The Company leases several building structures from the members and for the period ended June 24, 2016 and the six months ended June 30, 2015, $0 and $27,750 of rent was expensed respectively. All leases expired during 2015.
The Company has an arrangement with Cornerstone Holdings, LLC ("Cornerstone") to perform management services, provide corporate offices and other duties. Cornerstone is one of the members in the Company. For the period ended June 24, 2016 and the six months ended June 30, 2015, the Company incurred management fees of $330,382 and $653,768, respectively, under this arrangement, included in operating costs. At June 24, 2016, the Company has accrued management fees of $7,057,543 for the fees incurred but not paid. These unpaid management fees are treated as long-term liabilities as it is management's opinion that they will not be able to repay any portion in less than one year. In addition, the Company accrues interest on the unpaid balance at 6 percent per annum. At June 24, 2016, the Company had accrued interest expense of $718,056 within accrued expenses on the balance sheet. $0 and $150,000 of accrued interest was paid in 2016 and 2015. When the Company was sold on June 24, 2016, the accrued management fees and the related interest were written off.
The Company leases the land and building housing the LaSalle operations on a month-to-month basis from Cornerstone Development, LLC. One of the members of the Company has a majority
F-81
MAGNA ENERGY SERVICES, LLC
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 2. Related Parties (Continued)
interest in Cornerstone Development, LLC. For the period ended June 24, 2016 and the six months ended June 30, 2015, $295,200, respectively, in rent was paid. As a result of the sale of the Company on June 24, 2016, the lease with Cornerstone Development, LLC was terminated and a new lease was executed with the successor company.
At June 24, 2016, Magna owed Cornerstone $12,217 for certain expenses which is included in accounts payable on the balance sheet.
Note 3. Long-Term Debt
Long-term debt consists of the following:
|
June 24, 2106 | |||
---|---|---|---|---|
Line of credit |
$ | 1,495,013 | ||
Subordinated convertible promissory notes to members |
2,263,793 | |||
Asset based loan |
21,054,824 | |||
Real estate term loan |
1,663,477 | |||
Notes payable to members |
2,470,466 | |||
Capital expenditure term loan collateralized by specific equipment |
6,814,679 | |||
| | | | |
Total debt |
35,762,252 | |||
Less current portion |
(10,143,460 | ) | ||
Less line of credit |
(1,495,013 | ) | ||
| | | | |
Total long-term debt |
$ | 24,123,779 | ||
| | | | |
| | | | |
| | | | |
Line of Credit The Company has a line of credit with availability of $18,000,000. Interest is calculated at 2.25 percent plus Fifth Third Prime (5.75 percent at June 24, 2016). The loan has a maturity date of December 31, 2018, and is collateralized by eligible accounts receivable, as defined in the agreement. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank.
Line of CreditRelated Party A member of the Company has provided to the Company a revolving credit facility in the amount of $4,000,000 over a three month period. These loans accrued interest at 20 percent per annum. Repayment of the credit facility cannot occur earlier than July 15, 2016, and any subsequent prepayments must meet certain loan covenants. On January 1, 2016, the lender and management agreed to convert this loan to equity.
Subordinated Convertible Promissory Notes to Members The Company entered into Subordinated Convertible Promissory Notes with five of its members for total debt of $2,601,205, and are due within 15 days of repayment or refinancing with the Company's secured creditor. Principal and accrued interest may be converted into Class A Units at a conversion rate of $1,282 per unit. Due to the uncertain maturity date of the note, interest due on the note shall be equal to the initial principal amount of the note. As of June 24, 2016 and June 30, 2015, the Company has recognized $17,528 and $396,312 of interest expense on the debt. On January 1, 2016, management agreed to convert $1,800,213 of principal to equity.
F-82
MAGNA ENERGY SERVICES, LLC
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 3. Long-Term Debt (Continued)
Asset Based Loan The Company has an asset based loan with a principal payment of $559,466 per month. The interest payment is 2.75 percent plus Fifth Third Prime (6.25 percent at June 24, 2016). The loan has a maturity date of December 31, 2018. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank.
Capital Expenditure Term Loan This loan provided up to $11,343,966 for the purchase of equipment at 80 percent of its vendor's invoice amount. Principal payments commence on January 1, 2015, for amounts advanced as of December 31, 2014. For amounts advanced during the year ended December 31, 2015, principal payments will commence on January 1, 2016. Interest is calculated at an interest rate of 2.75 percent plus Fifth Third Prime (6.25 percent at June 24, 2016). The loans have a maturity date of December 31, 2019, for 2014 loan advances and December 31, 2020, for 2015 loan advances. On June 24, 2016, the Company was sold and this loan was satisfied as part of a $12,500,000 settlement with the bank.
Notes Payable to Members The Company has outstanding notes from members which bear interest at 6 percent of the unpaid balance. When the Company was sold on June 24, 2016, the unpaid portion of the loans and the related interest of $2,470,466 were not paid.
Real Estate Term Loan Magna Real Estate holds this term loan which is collateralized by the assets and properties held by Magna Real Estate and are guaranteed by equity members of both Magna Real Estate and Magna Energy. Monthly payments are $15,432 plus 5.5 percent interest and final balloon payment due on June 6, 2020.
Loan Origination Fees The Company capitalized fees related to establishment of long-term debt. These fees are being amortized over the life of the loan on a straight-line basis. The difference between straight-line and the effective interest method is not material to the consolidated financial statements. The Company recorded amortization expense of $162,000 and $71,026 for the period ended June 24, 2016 and for the six months ended June 30, 2015, respectively, which is included in interest expense on the consolidated statements of operations. In connection with the Company's sale, all debt was paid in full and all loan fees were expensed in 2016.
Note 4. Non-Controlling Interest in Magna Real Estate
The following table presents condensed financial information for Magna Real Estate:
|
June 24, 2016 | |||
---|---|---|---|---|
Condensed Balance Sheet |
||||
Current assets |
$ | 590,080 | ||
Long-lived assets |
3,735,181 | |||
| | | | |
Total assets |
$ | 4,325,261 | ||
| | | | |
| | | | |
| | | | |
Current liabilities |
$ | 103,541 | ||
Long-term liabilities |
1,568,952 | |||
| | | | |
Total liabilities |
1,672,493 | |||
Members' equity |
2,652,768 | |||
| | | | |
Total liabilities and members' equity |
$ | 4,325,261 | ||
| | | | |
| | | | |
| | | | |
F-83
MAGNA ENERGY SERVICES, LLC
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 4. Non-Controlling Interest in Magna Real Estate (Continued)
|
June 24, 2016 | June 30, 2015 | |||||
---|---|---|---|---|---|---|---|
Condensed Statement of Operations |
|||||||
Revenue |
$ | 240,000 | $ | 249,863 | |||
Expenses |
(111,592 | ) | (67,846 | ) | |||
| | | | | | | |
Net income |
$ | 128,408 | $ | 182,017 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
As of June 24, 2016, the accompanying consolidated balance sheet includes non-controlling interest of $2,652,768, reflecting the equity of Magna Real Estate not owned by the Company. The accompanying consolidated statements of operations include net income attributable to non-controlling interest of $128,408 and $182,017 for the period ended June 24, 2016 and the six months ended June 30, 2015, respectively. Included in net income attributable to non-controlling interest for the six months ended June 30, 2015 is the gain from the sale of a vacant lot of $80,978.
Note 5. Commitments and Contingencies
Contingencies: From time to time, the Company may be party to legal proceedings incidental to its business. In 2013, the Company was a party to a lawsuit with a vendor for unpaid rental fees in the amount of $171,078 plus interest at 24 percent. During the year ended December 31, 2015, this lawsuit was settled for a total amount of $45,000. There are currently no other claims, suits or complaints arising out of the normal course of business that have been filed or are pending against the Company at June 24, 2016.
With the sale of the Company to New Magna, there were certain property and building leases which were not assumed by New Magna and payments have not been made on these leases subsequent to June 24, 2016. The failure to pay could result in future liabilities to either the Company or New Magna. Estimated liabilities related to building leases are $217,000 and property leases are $2,315,000.
Note 6. Subsequent Events
Subsequent events have been evaluated through March 2, 2017, the date the condensed consolidated interim financial statements were available to be issued. All subsequent events have been fully disclosed elsewhere within these financial statements.
F-84
INDEPENDENT AUDITOR'S REPORT
To
the Member of
Bayou Workover Services
Houston, Texas
We have audited the accompanying financial statements of Bayou Workover Services (the "Company"), which comprise the balance sheet as of December 31, 2015, and the related statements of operations, net parent investment, and cash flows for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016, and the related notes to the financial statements.
Management's Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditor's Responsibility
Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Bayou Workover Services as of December 31, 2015, and the results of its operations and its cash flows for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016, in accordance with accounting principles generally accepted in the United States of America.
/s/ BDO USA, LLP
Houston,
Texas
March 9, 2017
F-85
BAYOU WORKOVER SERVICES
BALANCE SHEET
(in millions)
|
December 31, 2015 | |||
---|---|---|---|---|
Assets |
||||
Current Assets |
||||
Cash and cash equivalents |
$ | 5.7 | ||
Accounts receivabletrade |
5.4 | |||
Unbilled revenue |
0.5 | |||
Prepaid expenses |
0.7 | |||
| | | | |
Total current assets |
12.3 | |||
| | | | |
Property and equipment, net |
61.5 | |||
| | | | |
Total assets |
$ | 73.8 | ||
| | | | |
| | | | |
| | | | |
Liabilities and Net Parent Investment |
||||
Current Liabilities |
||||
Accounts payabletrade |
$ | 0.6 | ||
Accounts payablerelated party |
0.1 | |||
Accrued wages |
0.5 | |||
Accrued property taxes |
0.4 | |||
Accrued expenses |
0.5 | |||
| | | | |
Total current liabilities |
2.1 | |||
| | | | |
Total liabilities |
2.1 | |||
| | | | |
Commitments and Contingencies (Note 5) |
||||
Net Parent Investment |
71.7 | |||
| | | | |
Total Liabilities and Net Parent Investment |
$ | 73.8 | ||
| | | | |
| | | | |
| | | | |
The accompanying notes are an integral part of these financial statements.
F-86
BAYOU WORKOVER SERVICES
STATEMENTS OF OPERATIONS
(in millions)
|
Year ended
December 31, 2015 |
January 1, 2016 to
October 3, 2016 |
|||||
---|---|---|---|---|---|---|---|
Revenues |
$ | 55.1 | $ | 27.3 | |||
Operating Expenses |
|||||||
Cost of services (exclusive of depreciation shown separately below) |
41.3 | 23.2 | |||||
General and administrative expenses |
10.5 | 5.0 | |||||
Depreciation |
14.2 | 9.6 | |||||
| | | | | | | |
Total operating expenses |
66.0 | 37.8 | |||||
| | | | | | | |
Net loss |
$ | (10.9 | ) | $ | (10.5 | ) | |
| | | | | | | |
The accompanying notes are an integral part of these financial statements.
F-87
BAYOU WORKOVER SERVICES
STATEMENTS OF CHANGES IN NET PARENT INVESTMENT
(in millions)
Balance at January 1, 2015 |
$ | 88.5 | ||
Net Loss |
(10.9 | ) | ||
Net Parent Investment |
(5.9 | ) | ||
| | | | |
Balance at December 31, 2015 |
71.7 | |||
Net Loss |
(10.5 | ) | ||
Net Parent Investment |
(5.1 | ) | ||
| | | | |
Balance at October 3, 2016 |
$ | 56.1 | ||
| | | | |
| | | | |
| | | | |
The accompanying notes are an integral part of these financial statements.
F-88
BAYOU WORKOVER SERVICES
STATEMENTS OF CASH FLOWS
(in millions)
|
Year ended,
December 31, 2015 |
January 1, 2016 to
October 3, 2016 |
|||||
---|---|---|---|---|---|---|---|
Cash Flows From Operating Activities |
|||||||
Net loss |
$ | (10.9 | ) | $ | (10.5 | ) | |
Adjustments to reconcile net loss to net cash provided by operating activities: |
|||||||
Depreciation |
14.2 | 9.6 | |||||
Loss on sale of property and equipment |
0.4 | 0.2 | |||||
Bad debt expense |
0.1 | | |||||
Changes in operating assets and liabilities |
|||||||
Accounts receivabletrade |
7.5 | 1.4 | |||||
Unbilled revenue |
0.6 | (0.7 | ) | ||||
Prepaid expenses |
0.8 | 0.7 | |||||
Accounts payabletrade |
(0.7 | ) | 0.1 | ||||
Accounts payablerelated party |
0.1 | | |||||
Accrued Wages |
(0.2 | ) | (0.1 | ) | |||
Accrued Property Taxes |
0.1 | (0.4 | ) | ||||
Accrued Expenses |
0.5 | (0.5 | ) | ||||
Other liabilities |
(1.1 | ) | 0.6 | ||||
| | | | | | | |
Net cash provided by operating activities |
$ | 11.4 | $ | 0.4 | |||
| | | | | | | |
Cash Flows From Investing Activities |
|||||||
Additions to property and equipment |
(2.6 | ) | (1.2 | ) | |||
Proceeds from sale of equipment |
1.6 | 0.3 | |||||
| | | | | | | |
Net cash used in investing activities |
$ | (1.0 | ) | $ | (0.9 | ) | |
| | | | | | | |
Cash Flows From Financing Activities |
|||||||
Net parent investment |
(5.9 | ) | (5.1 | ) | |||
| | | | | | | |
Net cash used in financing activities |
$ | (5.9 | ) | $ | (5.1 | ) | |
| | | | | | | |
Net increase (decrease) in cash and cash equivalents |
4.5 | (5.6 | ) | ||||
Cash and cash equivalents, beginning of period |
1.2 | 5.7 | |||||
| | | | | | | |
Cash and cash equivalents, end of period |
$ | 5.7 | $ | 0.1 | |||
| | | | | | | |
Supplemental disclosure of noncash investing activity |
|||||||
Non-cash capital expenditures included in liabilities |
$ | | $ | 1.0 | |||
Non-cash transfers of property and equipment |
$ | | $ | 2.2 |
The accompanying notes are an integral part of these financial statements.
F-89
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS
Note 1: Nature of Operations and Basis of Presentation
Nature of Operations
Bayou Workover Services (the "Company") consists of certain assets that historically operated as part of Bayou Well Holdings Company, LLC ("Holdings" or "Parent") and its affiliates, Bayou Well Services, LLC ("Well Services") and Bayou Workover Services, LLC ("Workover Services"). The Company provides workover rig services, completion services, water transfers, snubbing services, trucking services and equipment rentals to the oil and gas industry. The Company has performed services in Arkansas, Colorado, Louisiana, Mississippi, Montana, North Dakota, Texas, California and Wyoming since 2010.
On October 3, 2016, the Company was acquired by Ranger Energy Services, LLC for an aggregate purchase price of approximately $50.5 million.
Basis of Presentation
The accompanying financial statements reflect the financial position, results of operations, changes in net parent investment and cash flows of the Company as of and for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016. The financial statements have been prepared on a "carve-out" basis as if it were operated on a stand-alone basis and are derived from the consolidated financial statements and accounting records of Holdings. The financial statements may not be indicative of the Company's future performance and do not necessarily reflect what the financial position, results of operations and cash flows would have been had the Company operated independently during the periods presented.
The financial statements include expense allocations for certain functions provided by Holdings, its affiliates and the Company, including, but not limited to, general corporate expenses related to executive management, finance, technology, legal, treasury, marketing and other expenses (see Note 4). These allocations were based primarily on direct usage basis when identifiable or based on the basis of revenue during the respective periods. Management considers the basis on which the expenses have been allocated to reasonably reflect the utilization of services provided to or the benefit received by the Company during the periods presented. The allocations may not, however, reflect the expenses the Company would have incurred as an independent company for the period presented. Actual costs that may have been incurred if the Company had been a stand-alone entity would depend on a number of factors, including the organizational structure, whether functions were outsourced or performed by employees, and strategic decisions made in areas such as information technology and infrastructure.
The Company reflects payments made or received by Holdings or its affiliates on behalf of the Company as a component of net parent investment on the balance sheet. The accompanying financial statements do not include the associated borrowings, interest expense or deferred financing costs associated with Holding's long-term debt since the debt was not directly attributable to the operations of the Company's business and was not assumed in connection with Ranger Energy Services, LLC's acquisition of the Company in October 2016. Cash generated by and used in our operations is transferred to the Parent on a regular basis. We have reflected cash management and financing activities performed by the Parent as a component of net parent investment on our accompanying balance sheet, and as net parent investment on our accompanying statements of cash flows.
F-90
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS (Continued)
Note 2: Summary of Significant Accounting Policies
Accounting Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America ("GAAP") requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. On an ongoing basis, the Company evaluates estimates and assumptions, including those related to the allowance for doubtful accounts, useful lives and impairment considerations of property and equipment and contingencies. The Company bases its estimates and assumptions on historical experience and on various other factors the Company believes are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying amounts of assets and liabilities that are not readily apparent from other sources. Actual results could differ from those estimates.
Cash and Cash Equivalents
The Company considers all highly-liquid investments purchased with an original maturity of three months or less to be cash equivalents.
Revenue Recognition
Revenues are recognized when persuasive evidence of an arrangement exists, services have been rendered, the sales price is fixed or determinable, and collectability is reasonably assured. Unbilled revenues represent revenues earned that have not been billed.
Allowance for Doubtful Accounts
The Company provides an allowance for doubtful accounts, which is based upon a review of outstanding receivables, historical collection information, and existing economic conditions. Provisions for doubtful accounts are recorded when it is deemed probable that the customer will not make the required payments at either the contractual due dates or in the future. Recoveries of receivables previously charged off are recorded as income when received. At December 31, 2015 and October 3, 2016, there was no allowance for doubtful accounts.
Property and Equipment
Property and equipment are recorded at cost less accumulated depreciation. Maintenance and repairs, which do not improve or extend the life of the related assets, are charged to expense when incurred. When property and equipment are sold or otherwise disposed of, the asset account and related accumulated depreciation account are relieved, and any gain or loss is included in operations.
F-91
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS (Continued)
Note 2: Summary of Significant Accounting Policies (Continued)
Property and equipment was as follows at December 31, 2015 (in millions):
|
Estimated Useful
Life |
|
||||
---|---|---|---|---|---|---|
Workover rigs and equipment |
5 - 10 years | $ | 67.0 | |||
Other oilfield equipment |
3 - 10 years | 26.8 | ||||
Vehicles |
3 - 5 years | 6.0 | ||||
Buildings |
10 years | 5.3 | ||||
Furniture and fixtures |
2 - 3 years | 0.5 | ||||
| | | | | | |
|
105.6 | |||||
Less: Accumulated depreciation |
(44.1 | ) | ||||
| | | | | | |
Property and equipment, net |
$ | 61.5 | ||||
| | | | | | |
| | | | | | |
| | | | | | |
The cost of property and equipment currently in service is depreciated on a straight-line basis over the estimated useful lives of the related assets. Depreciation expense was $14.2 and $9.6 million for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016, respectively.
The Company reviews the carrying amounts of long-lived assets for potential impairment when events occur or circumstances change that indicate that the carrying value of such assets may not be recoverable. When required, impairment losses on assets to be held and used or disposed of other than by sale are recognized based on the estimated fair value of the asset. Assets to be disposed of by sale are reported at the lower of their carrying amounts or fair values less costs to sell. There were no impairments of property and equipment during the year ended December 31, 2015 and the period from January 1, 2016 to October 3, 2016.
Fair Value
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The Company's financial instruments consist of cash and cash equivalents, accounts receivable and accounts payable. The recorded values of cash and cash equivalents, accounts receivable, and accounts payable approximate their fair values based on their short-term nature.
Net Parent Investment
Net parent investment represents historical investments in the Company, the Company's accumulated net results and the net effect of transactions with, and allocations from Holdings. See Note 4.
Income Taxes
The Company is not subject to federal income taxes. Instead, income or loss of the Company is reported by the respective members of Holdings on their federal income tax returns. The state income tax expense allocated to the Company was not material for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016.
F-92
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS (Continued)
Note 2: Summary of Significant Accounting Policies (Continued)
Management has evaluated the Company's tax positions and concluded that the Company has taken no uncertain tax positions that require adjustment to the financial statements. The Company's Parent is subject to income tax examinations by U.S. federal, state, and local tax authorities for years beginning in 2010. The Company reports tax-related interest in interest expense and tax-related penalties in state income tax expense; however, no such amounts were recorded during the periods presented.
Recent Accounting Pronouncement
In May 2014, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2014-09, " Revenue from Contracts with Customers ." ASU 2014-09 supersedes existing revenue recognition requirements in GAAP and requires an entity to recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled to in exchange for those goods or services. Additionally, it requires expanded disclosures regarding the nature, amount, timing and certainty of revenue and cash flows from contracts with customers. The ASU was effective for annual and interim reporting periods beginning after December 15, 2017, using either a full or a modified retrospective application approach. The Company is in the initial stages of evaluating the effect of the standard on the financial statements and continues to evaluate the available transition method.
In February 2016, the FASB issued ASU 2016-02, Leases , which requires lessees to recognize right of use assets and lease liabilities on the balance sheet for all leases except short-term leases. On the income statement, leases will be classified as operating or finance leases. This standard is effective for fiscal years beginning after December 15, 2018, including interim periods within that reporting period. At this time, the Company has no financing leases or operating leases with terms in excess of one year. As a result, the adoption of this standard will not be material to the Company, assuming there is not an increase in lease activity.
In June 2016, the FASB issued ASU 2016-13, Financial InstrumentsCredit Losses . The amendments in ASU 2016-13 require the measurement of all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. In addition, ASU 2016-13 amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The amendment is effective for public entities for annual reporting periods beginning after December 15, 2019, however early application is permitted for reporting periods beginning after December 15, 2018. The Company is in the process of evaluating the impact on its financial statements.
Note 3: Customer Concentrations
Because our revenues are generated primarily from customers who are subject to the same factors generally impacting the oil and natural gas industry, our operations are also susceptible to market volatility resulting from economic, cyclical, weather-related or other factors related to such industry. Changes in the level of operations and capital spending in the industry, decreases in oil and natural gas price, or industry perception about future oil and natural gas prices could materially decrease the demand for our services, adversely affecting our financial position, results of operations, and cash flows.
For the year ended December 31, 2015, Statoil Oil & Gas LP, Noble Energy, EOG Resources and PDC Energy comprised 58% of total revenues. For the period from January 1, 2016 to October 3,
F-93
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS (Continued)
Note 3: Customer Concentrations (Continued)
2016, Statoil Oil & Gas LP, Noble Energy and PDC Energy customers comprised 70% of total revenues. As of December 31, 2015, Statoil Oil & Gas LP and Noble Energy comprised approximately 46% of trade receivables.
Note 4: Related Party Transactions
The Company is part of the consolidated operations of Holdings, and substantially all of our revenues as shown on the accompanying combined statements of operations for the year ended December 31, 2015 and for the period from January 1, 2016 to October 3, 2016 were primarily derived from transactions with third parties, as well as Holdings and its affiliates. The Parent and its affiliates also provide general and administrative services for us and the accompanying combined financial statements include expense allocations for these support functions. These allocations are based on direct usage when identifiable or an allocable share of the total costs of the Parent and its affiliate's employees engaged by the Company to the extent such employees perform services for our benefit. We believe that these allocations are reasonable and reflect the utilization of services provided and benefits received, but may differ from the cost that would have been incurred had we operated as a stand-alone entity for the periods presented.
For the year ended December 31, 2015, the parent and its affiliates allocated approximately $27.1 and $7.1 million, respectively, in cost of services and general and administrative expenses for employee compensation, benefits and related charges to the Company. For the period from January 1, 2016 to October 3, 2016, the parent and its affiliates allocated approximately $15.0 million and $3.2 million in cost of services and general and administrative expenses, respectively, for employee compensation, benefits and related charges to the Company. For the year ended December 31, 2015, the Company recorded $0.5 million in related party revenue. For the period from January 1, 2016 to October 3, 2016, the Company transferred property and equipment to a related party with a net book value of approximately $0.4 million for de minimus value. In addition, adjustments for intercompany transfers to appropriately exclude assets from the carve-out financial statements were captured in net parent investment. Net parent investment represents historical investments in the Company, the Company's accumulated net results and the net effect of transactions with, and allocations from, Holdings and its affiliates.
During 2015, the Company purchased approximately $0.3 million of equipment from Fortitude Specialty Manufacturing, LLC, an entity affiliated with Holdings through common ownership. As of December 31, 2015, related party payables consisted of $0.1 million.
Credit Agreement
The Company was a guarantor and its assets were collateralized for a debt obligation of its Parent. The Parent has a credit agreement (as amended and restated in 2014, the "Credit Agreement"), which includes a revolving line of credit, term loan and advancing term facilities. The Credit Agreement provides for up to $20 million of advancing term loans. Interest on advancing term loan facilities is at prime and LIBOR for a base rate and a LIBOR loan, respectively, plus a margin percentage, as defined in the agreement (2.9% at December 31, 2015). The Parent borrowed $20 million and made principal payments of $3.75 million during 2015, resulting in $16.25 million of outstanding principal as of December 31, 2015 (2.9% at December 31, 2015). Amounts outstanding under the Credit Agreement were fully repaid by Holdings in August 2016 and the Credit Agreement was terminated.
F-94
BAYOU WORKOVER SERVICES
NOTES TO FINANCIAL STATEMENTS (Continued)
Note 4: Related Party Transactions (Continued)
The Company was jointly and severally liable for the entire loan amount and related expenses associated with the loan. The accompanying financial statements do not include the associated borrowings, interest expense or deferred financing costs associated with Holding's debt obligation since they are not directly attributable to the operations of the Company's business and were not assumed in connection with Ranger Energy Services, LLC's acquisition of the Company in October 2016.
Note 5: Commitments and Contingencies
Employee Benefits
The Company's employees participate in a retirement savings plan maintained by an affiliate of Holdings (the "Plan"). During the year ended December 31, 2015 and the period from January 1, 2016 to October 3, 2016, the Company contributed approximately $0.6 million and $0, respectively, to the Plan.
Legal Matters
From time to time, the Company is involved in various legal matters arising in the normal course of business. The Company does not believe that the ultimate resolution of these matters will have a significant effect on its financial position or results of operations.
Note 6: Subsequent Events
We have evaluated subsequent events through March 9, 2017, the date the financial statements were available to be issued.
F-95
Report of Independent Auditors
To
the Management of
ESCO Leasing, LLC
We have audited the accompanying financial statements of ESCO Leasing, LLC, which comprise the balance sheets as of April 30, 2016 and 2017, and the related statements of operations, of changes in members' equity and of cash flows for the years then ended.
Management's Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditors' Responsibility
Our responsibility is to express an opinion on the financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on our judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, we consider internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of ESCO Leasing, LLC as of April 30, 2016 and 2017, and the results of its operations and its cash flows for the years then ended in accordance with accounting principles generally accepted in the United States of America.
PricewaterhouseCoopers LLP
Dallas,
Texas
June 9, 2017
F-96
ESCO Leasing, LLC
Balance Sheets
April 30, 2016 and April 30, 2017
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Assets |
|||||||
Current assets |
|||||||
Cash and cash equivalents |
$ | 4,589,467 | $ | 168,162 | |||
Certificate of deposit |
1,017,304 | 1,025,379 | |||||
Trade accounts receivable, net of allowance |
4,292,887 | 7,148,923 | |||||
Employee and other receivables, current portion |
27,483 | 59,375 | |||||
Inventory |
85,473 | 229,370 | |||||
Prepaid expenses |
492,089 | 643,576 | |||||
| | | | | | | |
Total current assets |
10,504,702 | 9,274,785 | |||||
Long-term employee and other receivables, less current maturities |
438,194 | 352,209 | |||||
Property and equipment, net |
50,770,139 | 43,579,069 | |||||
Investment in unrelated company |
2,339,695 | 2,339,695 | |||||
Goodwill |
1,235,690 | 1,235,690 | |||||
| | | | | | | |
Total assets |
$ | 65,288,421 | $ | 56,781,448 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Liabilities and Members' Equity |
|||||||
Current liabilities |
|||||||
Accounts payable |
$ | 587,017 | $ | 1,792,105 | |||
Accrued liabilities |
565,005 | 1,465,005 | |||||
Current maturities of long-term debt |
4,112,721 | 4,166,746 | |||||
| | | | | | | |
Total current liabilities |
5,264,743 | 7,423,856 | |||||
Long-term debt, less current maturities |
7,008,971 | 3,747,315 | |||||
| | | | | | | |
Total liabilities |
12,273,714 | 11,171,171 | |||||
Commitments and contingencies (Note 5) |
|||||||
Members' equity |
53,014,707 | 45,610,277 | |||||
| | | | | | | |
Total liabilities and members' equity |
$ | 65,288,421 | $ | 56,781,448 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these financial statements
F-97
ESCO Leasing, LLC
Statements of Operations
Years Ended April 30, 2016 and 2017
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Revenue |
$ | 44,303,961 | $ | 36,228,584 | |||
Expenses |
|||||||
Cost of operations |
30,364,078 | 23,897,903 | |||||
General and administrative |
16,446,341 | 13,243,587 | |||||
Bad debt expense |
67,356 | 207,271 | |||||
Goodwill impairment |
366,637 | | |||||
Depreciation expense |
8,524,338 | 8,088,873 | |||||
| | | | | | | |
Total expenses |
55,768,750 | 45,437,634 | |||||
| | | | | | | |
Operating loss |
(11,464,789 | ) | (9,209,050 | ) | |||
| | | | | | | |
Other expense (income) |
|||||||
Interest expense |
738,063 | 485,430 | |||||
Interest income |
(7,563 | ) | (6,172 | ) | |||
(Gain) loss on sale of assets |
24,667 | (25,531 | ) | ||||
| | | | | | | |
Total other expense |
755,167 | 453,727 | |||||
| | | | | | | |
Loss before taxes |
(12,219,956 | ) | (9,662,777 | ) | |||
Income tax expense |
119,804 | 96,936 | |||||
Net loss |
(12,339,760 | ) | (9,759,713 | ) | |||
| | | | | | | |
The accompanying notes are an integral part of these financial statements
F-98
ESCO Leasing, LLC
Statements of Changes in Members' Equity
Years Ended April 30, 2016 and 2017
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Members' equity at beginning of period |
66,518,462 | 53,014,707 | |||||
Contributions |
1,964,195 | 3,718,720 | |||||
Distributions |
(3,128,190 | ) | (1,363,437 | ) | |||
Net loss |
(12,339,760 | ) | (9,759,713 | ) | |||
| | | | | | | |
Members' equity at end of period |
$ | 53,014,707 | $ | 45,610,277 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The accompanying notes are an integral part of these financial statements
F-99
ESCO Leasing, LLC
Statements of Cash Flows
Years Ended April 30, 2016 and 2017
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Operating activities |
|||||||
Net loss |
$ | (12,339,760 | ) | $ | (9,759,713 | ) | |
Adjustments to reconcile net loss to net cash provided by operating activities |
|||||||
Depreciation expense |
8,524,338 | 8,088,873 | |||||
Bad debt expense |
67,356 | 207,271 | |||||
(Gain) loss on sale of assets |
24,667 | (25,531 | ) | ||||
Goodwill impairment |
366,637 | | |||||
Changes in operating assets and liabilities |
|||||||
Certificate of deposit |
(3,556 | ) | (8,075 | ) | |||
Trade accounts receivable |
5,856,390 | (3,063,307 | ) | ||||
Inventory |
(47,957 | ) | (143,897 | ) | |||
Prepaid expenses |
289,826 | (151,487 | ) | ||||
Accounts payable |
(545,541 | ) | 1,205,088 | ||||
Accrued liabilities |
(1,954,575 | ) | 900,000 | ||||
| | | | | | | |
Net cash (used in) provided by operating activities |
237,825 | (2,750,778 | ) | ||||
| | | | | | | |
Investing activities |
|||||||
Proceeds from sale of equipment |
183,992 | 56,106 | |||||
Employee and other receivables, net |
669,371 | 54,093 | |||||
Return of equity in investment in unrelated company |
10,051 | | |||||
Purchase of property and equipment |
(1,648,572 | ) | (928,377 | ) | |||
| | | | | | | |
Net cash used in investing activities |
(785,158 | ) | (818,178 | ) | |||
| | | | | | | |
Financing activities |
|||||||
Principal payments on long-term debt |
(2,928,393 | ) | (3,279,852 | ) | |||
Proceeds from issuance of long-term debt |
950,000 | 72,222 | |||||
Net (payments) draws on line of credit |
850,000 | | |||||
Distributions to members |
(3,128,190 | ) | (1,363,437 | ) | |||
Contributed capital |
1,964,195 | 3,718,720 | |||||
| | | | | | | |
Net cash used in financing activities |
(2,292,388 | ) | (852,348 | ) | |||
| | | | | | | |
Net decrease in cash |
(2,839,720 | ) | (4,421,305 | ) | |||
Cash and cash equivalents |
|||||||
Beginning of period |
7,429,187 | 4,589,467 | |||||
| | | | | | | |
End of period |
$ | 4,589,467 | $ | 168,162 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Supplemental disclosure of cash flow information |
|||||||
Cash paid for interest |
$ | 865,822 | $ | 373,102 | |||
Cash paid for taxes |
$ | 89,417 | $ | 67,286 | |||
Noncash investing and financing activities |
|||||||
Property and equipment financed |
53,224 | |
The accompanying notes are an integral part of these financial statements
F-100
ESCO Leasing, LLC
Notes to Financial Statements
April 30, 2016 and 2017
1. Summary of Significant Accounting Policies
Basis of Presentation
The Company maintains its accounts on the accrual method of accounting in accordance with accounting principles generally accepted in the United States of America ("GAAP").
Description of Business and Nature of Operations
The financial statements include the activities of ESCO Leasing, LLC (the "Company"). The Company does business as Energy Service Company of Bowie, THI Water Well, Energy Service Company of Bowie-Palestine Division and Energy Service Company of Bowie-Sweetwater Division.
The Company is primarily engaged in the completion, repair and work over of oil and gas wells and drilling and completing water wells for oil and gas customers. The mission of the Company is to furnish the equipment, personnel and expertise to provide the oil and gas operator with the optimum producing conditions and to provide water services for oilfield drilling and completion process. The Company's fleet consists of 49 high-spec well service rigs, 16 swab rigs, 34 tri-plex pump/kill trucks, 10 water well drilling rigs and service rigs, 38 winch/haul trucks, 12 forklifts, and 3 sky-tracks.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. Estimates also affect the reported amounts of revenues and expenses during the reporting periods. Actual results could differ significantly from those estimates.
Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all highly-liquid investments with an original maturity of three months or less, when purchased, to be cash equivalents. Cash consists of deposits held at major financial institutions that at times exceed FDIC insured limits.
Accounts Receivable
Trade accounts receivable are recorded when billed. An estimate of an allowance for uncollectible accounts is established based on age of receivables, prior collection experience and other related factors. Receivables are written-off when they are no longer likely to be received. Accounts receivable are determined to be past due based on contractual terms established with customers.
The allowance for uncollectible trade accounts receivable was approximately $260,000 and $439,000 at April 30, 2016 and 2017, respectively.
Inventory
Inventory primarily consists of wellhead components which are rented and/or sold to customers in the ordinary course of business, in addition to parts used in the refurbishing of rental equipment and tools. Inventory is carried at the lower of cost or market. The Company records provisions for slow-moving inventory to the extent the cost of inventory exceeds estimated net realizable value. The
F-101
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
1. Summary of Significant Accounting Policies (Continued)
Company did not have a reserve at April 30, 2017 and 2016, respectively, for slow-moving inventory. Inventory at April 30, 2016 and 2017 was $85,473 and $229,370, respectively.
Goodwill
Goodwill represents the excess of the cost of businesses acquired over the fair value of the assets acquired and liabilities assumed. The Company does not amortize goodwill, but tests it for impairment annually using either a qualitative assessment or a fair value approach at the "reporting unit" level. Goodwill of a reporting unit is tested for impairment between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below the carrying amount. The qualitative assessment includes a determination by management based on qualitative factors as to whether it is more likely than not that the fair value of the reporting unit is less than its carrying amount. If the qualitative assessment does not support that realization is more likely than not, the Company assesses realization based on the fair value approach. A reporting unit is the operating segment, or a business one level below that operating segment (the "component" level) if discrete financial information is prepared and regularly reviewed by senior management.
To measure the amount of an impairment loss, a two-step method is used. The first step requires the Company to determine the fair value of the reporting unit and compare that fair value to the net book value of the reporting unit. The fair value of the reporting unit is determined using various valuation techniques, including a discounted cash flow analysis (an income approach) and a market approach which uses current industry information. The second step requires the Company to determine the implied fair value of goodwill and measure the impairment loss as the difference between the book value of the goodwill and the implied fair value of the goodwill. The implied fair value of goodwill must be determined in the same manner as if the Company had acquired those reporting units.
In 2015 and 2016, the energy market experienced a considerable downturn as a result of significant reduction in crude oil prices. Due to this pricing decline and its corresponding impact on our short-term business outlook, the first step of the impairment test indicated that the carrying value was in excess of one of the Company's reporting unit's fair value. We proceeded to the second step for this reporting unit in which we determined the implied fair value of goodwill by allocating the fair value of our reporting unit to the reporting unit's assets and liabilities in order to determine the implied value of goodwill. This analysis indicated that the carrying value was in excess of the implied fair value. As a result of the two-step analysis, the Company recorded an impairment loss of $366,637 during the year ended April 30, 2016 for the excess carrying amount over its implied fair value, respectively. There was no impairment recorded for the year ended April 30, 2017.
Fair Value of Financial Instruments
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants at the measurement date. ASC No. 820 "Fair Value Measurements and Disclosures" ("ASC 820") establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or liability developed based on market data obtained from sources independent
F-102
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
1. Summary of Significant Accounting Policies (Continued)
of the Company. Unobservable inputs are inputs that reflect the Company's assumptions of what market participants would use in pricing the asset or liability based on the best information available in the circumstances. The financial and nonfinancial assets and liabilities are classified based on the lowest level of input that is significant to the fair value measurement. The hierarchy is broken down into three levels based on the reliability of the inputs.
Level 1 | Quoted prices are available in active markets for identical assets or liabilities; | |
Level 2 |
|
Quoted prices in active markets for similar assets and liabilities that are observable for the asset or liability; or |
Level 3 |
|
Unobservable pricing inputs that are generally less observable from objective sources, such as discounted cash flow models or valuations. |
Property and Equipment
Property, plant, and equipment are stated at cost. Expenditures for maintenance and repairs that do not extend the useful life of the asset are charged against operations. Betterments that materially extend the life of an asset are capitalized. Cost and accumulated depreciation are removed from the accounts when assets are sold or retired. The resulting gains or losses are included in operating income in the statement of operations.
Property and equipment are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. There were no impairment charges for the years ended April 30, 2016 and 2017.
Depreciation is computed for financial statement purposes on the straight-line basis over the estimated useful life of the related assets at rates based on the following estimated useful lives:
|
Years | |
---|---|---|
Buildings |
20 - 40 | |
Machinery and equipment |
3 - 12 | |
Vehicles |
3 - 5 | |
Furniture and fixtures |
5 - 7 | |
Office equipment |
3 - 7 | |
Leasehold Improvements |
3 - 10 |
Cost Method Investment
The Company has a noncontrolling interest in an unrelated company. The investment is recorded on the cost basis of accounting.
Revenue Recognition
The Company recognizes revenues as rentals and services are rendered in accordance with terms of the customer agreement and collectability is reasonably assured. Rates for services are typically
F-103
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
1. Summary of Significant Accounting Policies (Continued)
priced on per day, per man-hour, unit priced or similar basis. In certain situations, revenue is generated from transactions that may include multiple products and services under one contract or agreement and which may be delivered to the customer over an extended period of time. Revenues are presented net of customer credits, as well as, shipping and handling costs. Taxes collected are not included in revenue.
Income Taxes
ESCO Leasing, LLC has elected to be treated as a partnership for federal income tax purposes. Consequently, federal and state income taxes are not payable by, or provided for, the companies except for Texas margin taxes. Members are taxed individually on their share of each Company's earnings. The Company's LLC agreement outlines the membership sharing ratios for the members of ESCO Leasing, LLC.
The Financial Accounting Standards Board has issued guidance on accounting for uncertainty in income taxes. Benefits from tax positions initially should be recognized in the financial statements when it is more likely than not that the positions will be sustained upon examination by the tax authorities. A tax position that meets the more-likely-than-not recognition threshold is measured at the largest amount of benefit that is greater than fifty percent 50% likely of being realized upon ultimate settlement.
The Company has adopted this guidance. Management evaluated the Company's tax positions and concluded that the Company had taken no uncertain tax positions that require adjustment to the financial statements to comply with the provisions of this guidance.
The Company is subject to a margins tax in the State of Texas and recorded expense of $119,804 and $96,936 for the years ended April 30, 2016 and 2017, respectively.
Advertising Costs
Costs incurred for producing and distributing advertising are expensed as incurred. The Company incurred advertising costs in the amount of approximately $201,000 and $186,000 for years ended April 30, 2016 and 2017, respectively.
Employee Benefit Plan
The Company provides a 401(k) plan for its employees. Contributions by the Company are discretionary. The Company matched employee contributions in the amount of approximately $135,000 and $145,000 for the years ended April 30, 2016 and 2017, respectively.
Significant Customers
The Company is involved in the oil, gas and water well industries in and around the State of Texas, with a significant portion of its customers being located in that area. In the ordinary course of business, the Company grants credit to these customers. The Company's accounts receivable consisted of amounts due from one and three customers that accounted for greater than 10% of the total balance and represented 47% and 26% of the total balance at April 30, 2016 and 2017, respectively.
F-104
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
1. Summary of Significant Accounting Policies (Continued)
During the years ended April 30, 2016 and 2017, one customer comprised approximately 32% and 33% of total sales, respectively.
Recent Accounting Pronouncements
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606) to create a common revenue standard for Generally Accepted Accounting Principles and International Financial Reporting Standards that will enable users to compare revenue from diverse entities, industries, jurisdictions, capital markets, and geographies. The key principle is revenue recognition should depict the transfer of promised goods or services to customers in an amount of consideration the Company expects to be entitled for those promised goods or services. This ASU requires management to identify performance obligations in each contract and estimate the amount of the transaction price to be allocated to each separate performance obligation identified. After December 15, 2018, this ASU is effective for private companies and their interim and annual reporting periods and early adoption is permitted after December 15, 2016. This ASU permits the use of either the retrospective or modified retrospective transition method. Management is evaluating the effect this ASU will have on the Company's financial statements and related disclosures.
In February 2016, the FASB issued ASU No. 2016-02, Leases. The new standard requires lessees to recognize a right of use asset and a lease liability for virtually all leases. The guidance is effective for private companies with fiscal years beginning after December 15, 2019, specifically the Company for the fiscal year beginning May 1, 2020 and interim periods thereafter. The guidance is expected to have a material impact on the Company's financial statements.
In August 2014, the FASB issued ASU No. 2014-15, Presentation of Financial StatementsGoing Concern. The new standard requires management to evaluate whether there are conditions and events that raise substantial doubt about an entity's ability to continue as a going concern for both annual and interim reporting periods. The guidance was effective for the Company for the fiscal year beginning May 1, 2016 and interim periods thereafter. The adoption of this guidance did not have a material impact on the Company's financial statements.
F-105
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
2. Property and Equipment
A summary of property and equipment at April 30, 2016 and 2017 is as follows:
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Machinery and equipment |
$ | 86,317,253 | $ | 87,035,372 | |||
Vehicles |
7,737,651 | 7,844,844 | |||||
Buildings |
1,112,038 | 1,052,061 | |||||
Leasehold improvements |
3,857,640 | 3,894,933 | |||||
Other depreciable property |
158,325 | 164,600 | |||||
Land |
1,500 | 1,500 | |||||
| | | | | | | |
Total cost |
99,184,408 | 99,993,310 | |||||
Accumulated depreciation |
(48,414,269 | ) | (56,414,241 | ) | |||
| | | | | | | |
Net property and equipment |
$ | 50,770,139 | $ | 43,579,069 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Depreciation expense for years ended April 30, 2016 and 2017 was $8,524,338, and $8,088,873 respectively.
3. Goodwill
The change in carrying value of goodwill for the years ended April 30, 2016 and 2017 consists of the following:
Balance at April 30, 2015 |
$ | 1,602,327 | ||
Impairment loss |
(366,637 | ) | ||
| | | | |
Balance at April 30, 2016 |
1,235,690 | |||
Impairment loss |
| |||
| | | | |
Balance at April 30, 2017 |
$ | 1,235,690 | ||
| | | | |
| | | | |
| | | | |
4. Related Party Transactions
Employee Receivables
Employee receivables consist of loans made to employees. Employees make payments to the Company each pay period to repay the loans. A onetime 10% fee is charged when the loan is made, in lieu of interest.
Rent
The Company pays rent to a member for land, on which the Company has constructed a building, and aviation services. Rent is payable on a month-to-month basis. The Company paid rent to the member of approximately $250,000 in both 2016 and 2017 for land rentals. The Company paid rent to the member of approximately $1,228,000 in both 2016 and 2017 for aviation services.
F-106
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
4. Related Party Transactions (Continued)
The Company pays rent to multiple related parties. There are varying contracts for the rent paid. The Company paid rent to these related parties of approximately $240,000 in both 2016 and 2017, respectively.
5. Commitments and Contingencies
The Company leases equipment, office space and other real estate under various noncancelable agreements which expire through December 31, 2020, and require minimum annual rentals over the terms of the agreements. Minimum payments for these operating leases which have remaining noncancelable terms in excess of one year are as follows:
2017 |
$ | 1,957,049 | ||
2018 |
1,487,666 | |||
2019 |
924,000 | |||
2020 |
30,000 |
Operating lease expense totaled approximately $1,883,000 and $1,591,000 for the years ended April 30, 2016 and 2017, respectively.
6. Litigation
From time to time, the Company is party to various litigation and administrative proceedings relating to claims arising from its operations in the ordinary course of business. As of the date of the financial statements, the Company is not a party to any litigation and administrative proceedings that management believes would have a material adverse effect on the Company's business, results of operations, financial condition or cash flows.
7. Long-term Borrowings
Long-term borrowings at April 30, 2016 and 2017 consists of the following:
|
2016 | 2017 | |||||
---|---|---|---|---|---|---|---|
Equipment loans |
$ | 10,308,768 | $ | 7,101,137 | |||
Revolving credit facility |
812,924 | 812,924 | |||||
| | | | | | | |
Total debt |
11,121,692 | 7,914,061 | |||||
Less: Current maturities |
(4,112,721 | ) | (4,166,746 | ) | |||
| | | | | | | |
Long-term debt, net of current maturities |
$ | 7,008,971 | $ | 3,747,315 | |||
| | | | | | | |
| | | | | | | |
| | | | | | | |
The Company has a $1,000,000 revolving line of credit with a bank that is secured by a Certificate of Deposit in the amount of approximately $1,000,000 and a personal guarantee at April 30, 2016 and 2017. The advances are payable on demand by the bank and bear interest at 4.00% per annum. The line of credit's outstanding balance and any accrued interest are payable on its maturity date of December 20, 2017. The outstanding balance on the line of credit was $812,294 at April 30, 2016 and 2017.
F-107
ESCO Leasing, LLC
Notes to Financial Statements (Continued)
April 30, 2016 and 2017
7. Long-term Borrowings (Continued)
Long-term borrowings consist of notes payable to various finance companies, secured by equipment bearing interest at rates from 3.99% to 5.44%, payable in monthly installments of principal and interest, maturing through 2020.
Scheduled principal repayments on long-term debt obligations are as follows:
2018 |
$ | 4,166,746 | ||
2019 |
2,686,458 | |||
2020 |
1,031,029 | |||
2021 |
15,207 | |||
2022 |
14,621 | |||
| | | | |
Total debt |
7,914,061 | |||
Less: Current maturities |
4,166,746 | |||
| | | | |
Long-term debt |
$ | 3,747,315 | ||
| | | | |
| | | | |
| | | | |
8. Subsequent Events
The Company has evaluated all events and transactions that occurred after the balance sheet date through June 9, 2017, the date the financial statements were available to be issued.
On May 30, 2017, the Company entered into an agreement to sell substantially all of the assets to an unrelated third party for $57.5 million in cash and $5 million in equity. The transaction is expected to close in the next 30-60 days.
F-108
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other expenses of issuance and distribution
The following table sets forth an itemized statement of the amounts of all expenses (excluding underwriting discounts and commissions) payable by us in connection with the registration of the common stock offered hereby. With the exception of the SEC registration fee, FINRA filing fee and NYSE listing fee, the amounts set forth below are estimates.
SEC registration fee |
$ | 11,996 | ||
FINRA filing fee |
17,750 | |||
NYSE listing fee |
250,000 | |||
Accountants' fees and expenses |
2,000,000 | |||
Legal fees and expenses |
1,550,000 | |||
Printing and engraving expenses |
600,000 | |||
Transfer agent and registrar fees |
5,000 | |||
Miscellaneous |
565,254 | |||
| | | | |
Total |
$ | 5,000,000 | ||
| | | | |
| | | | |
| | | | |
Item 14. Indemnification of Directors and Officers
Our amended and restated certificate of incorporation will provide that a director will not be liable to the corporation or its shareholders for monetary damages to the fullest extent permitted by the DGCL. In addition, if the DGCL is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation, in addition to the limitation on personal liability provided for in our certificate of incorporation, will be limited to the fullest extent permitted by the amended DGCL. Our amended and restated bylaws will provide that the corporation will indemnify, and advance expenses to, any officer or director to the fullest extent authorized by the DGCL.
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement in connection with specified actions, suits and proceedings whether civil, criminal, administrative, or investigative, other than a derivative action by or in the right of the corporation, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses, including attorneys' fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's certificate of incorporation, bylaws, disinterested director vote, shareholder vote, agreement or otherwise.
Our amended and restated bylaws will also contain indemnification rights for our directors and our officers. Specifically, our amended and restated bylaws will provide that we shall indemnify our officers and directors to the fullest extent authorized by the DGCL. Furthermore, we may maintain insurance on behalf of our officers and directors against expense, liability or loss asserted incurred by them in their capacities as officers and directors.
We have obtained directors' and officers' insurance to cover our directors, officers and some of our employees for certain liabilities.
II-1
We will enter into written indemnification agreements with our directors and executive officers. Under these proposed agreements, if an officer or director makes a claim of indemnification to us, either a majority of the independent directors or independent legal counsel selected by the independent directors must review the relevant facts and make a determination whether the officer or director has met the standards of conduct under Delaware law that would permit (under Delaware law) and require (under the indemnification agreement) us to indemnify the officer or director.
The underwriting agreement provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act or otherwise in connection with this offering.
Item 15. Recent Sales of Unregistered Securities
In connection with our incorporation on February 17, 2017, under the laws of the State of Delaware, we issued 1,000 shares of our common stock to Ranger Services for an aggregate purchase price of $10. These securities were offered and sold by us in reliance upon the exemption from the registration requirements provided by Section 4(a)(2) of the Securities Act. These shares will be redeemed for nominal value in connection with our reorganization.
Further, (i) pursuant to the terms of certain reorganization transactions that will be completed prior to the closing of this offering, as described in further detail under "Our History and Corporate Reorganization," we will issue shares of Class A common stock to certain of the Existing Owners and CSL Holdings II and shares of Class B common stock to Ranger LLC, CSL Opportunities II and Bayou Holdings and (ii) pursuant to the terms of the ESCO Acquisition, as described in further detail under "Prospectus SummaryRecent DevelopmentsESCO Acquisition," we expect to issue shares of Class A common stock to ESCO. None of such issuances will involve any underwriters, underwriting discounts or commissions or a public offering, and we believe that each such issuance will be exempt from registration requirements pursuant to Section 4(a)(2) of the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
See the Exhibit Index immediately following the signature page hereto, which is incorporated by reference as if fully set forth herein.
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-2
The undersigned registrant hereby undertakes that:
II-3
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on August 1, 2017.
|
Ranger Energy Services, Inc. | |||
|
By: |
/s/
DARRON M. ANDERSON
|
||
|
Darron M. Anderson | |||
|
President, Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated below as of August 1, 2017.
Name
|
Title
|
|||
---|---|---|---|---|
|
|
|
|
|
/s/
DARRON M. ANDERSON
Darron M. Anderson |
President, Chief Executive Officer and Director (Principal Executive Officer) | |||
* Robert S. Shaw Jr. |
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
||
* Merrill A. Miller Jr. |
|
Chairman of the Board |
||
* Brett Agee |
|
Director |
||
* Richard Agee |
|
Director |
||
* William M. Austin |
|
Director |
||
* Charles S. Leykum |
|
Director |
II-4
Name
|
Title
|
|||
---|---|---|---|---|
|
|
|
|
|
*
Vivek Raj |
Director | |||
* Krishna Shivram |
|
Director |
||
*By: |
|
/s/ DARRON M. ANDERSON Darron M. Anderson Attorney-in-fact |
|
|
II-5
II-6
Exhibit
Number |
Description | ||
---|---|---|---|
**23.2 | Consent of BDO USA, LLP | ||
**23.3 | Consent of Whitley Penn LLP | ||
**23.4 | Consent of Hein & Associates LLP | ||
**23.5 | Consent of PricewaterhouseCoopers LLP | ||
**23.6 | Consent of Vinson & Elkins L.L.P. (included as part of Exhibit 5.1 hereto) | ||
***23.7 | Consent of Coras Oilfield Research | ||
***23.8 | Consent of Spears & Associates | ||
***23.9 | Consent of Qittitut Consulting | ||
***24.1 | Power of Attorney (included on the signature page of the original filing) |
II-7
Exhibit 1.1
5,000,000 Shares
RANGER ENERGY SERVICES, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
[ · ], 2017
CREDIT SUISSE SECURITIES (USA) LLC
PIPER JAFFRAY & CO.
WELLS FARGO SECURITIES, LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory . Ranger Energy Services, Inc., a Delaware corporation (the Company ), agrees with the several Underwriters named in Schedule A hereto (the Underwriters ) to issue and sell to the several Underwriters 5,000,000 shares of its Class A common stock, $0.01 par value per share ( Securities ) (such 5,000,000 shares of Securities being hereinafter referred to as the Firm Securities ). The Company also agrees to sell to the Underwriters, at the option of the Underwriters, an aggregate of not more than 750,000 additional shares of its Securities (all such additional shares of Securities being hereinafter collectively referred to as the Optional Securities ), as set forth below. The Firm Securities and the Optional Securities are herein collectively called the Offered Securities . As part of the offering contemplated by this agreement (the Agreement ), Piper Jaffray & Co. ( PJC and, in such capacity, the Designated Underwriter ) has agreed to reserve out of the Firm Securities purchased by it under this Agreement, up to [ · ] shares, for sale to the Companys directors, officers, employees and other parties associated with the Company (collectively, Participants ), as set forth in the Final Prospectus (as defined herein) under the heading Underwriting (the Directed Share Program ). The Firm Securities to be sold by the Designated Underwriter pursuant to the Directed Share Program (the Directed Shares ) will be sold by the Designated Underwriter pursuant to this Agreement at the public offering price. Any Directed Shares not subscribed for by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Final Prospectus.
The Company is a holding company that, following the transactions contemplated by this paragraph and the offering contemplated by this Agreement, will directly own a [ · ]% membership interest in RNGR Energy Services, LLC, a Delaware limited liability company ( Ranger LLC ). The Company and Ranger LLC are herein referred to as the Company Parties . The businesses through which the Company Parties will conduct their operations are Ranger Energy Services, LLC, a Delaware limited liability company ( Ranger Services ) that, immediately prior to the First Closing Date (as defined below), will be a subsidiary of Ranger Energy Holdings, LLC, a Delaware limited liability company ( Ranger Holdings I ), and Ranger Energy Holdings II, LLC, a Delaware limited liability company ( Ranger Holdings II ), and Torrent Energy Services, LLC, a Delaware limited liability company ( Torrent Services ) that, immediately prior to the First Closing Date, will be a subsidiary of Torrent Energy Holdings, LLC, a Delaware limited liability company ( Torrent Holdings I ), and Torrent Energy Holdings II, LLC, a Delaware limited liability company ( Torrent Holdings II ). In anticipation of the offering contemplated by this Agreement, on the First Closing Date, (x) Ranger Holdings I will contribute all of its membership interests in Ranger Services to Ranger LLC in exchange for membership interests in Ranger LLC ( Ranger Units ) and Ranger Holdings II will contribute all of its membership interests in Ranger Services to Ranger LLC in exchange for shares of the Securities (such contributions, the Ranger Assignment Transactions ), and (y) Torrent Holdings I will contribute all of its membership interests in Torrent Services to Ranger LLC in exchange for Ranger Units and Torrent Holdings II will contribute all of its membership interests in Ranger Services to Ranger LLC in exchange for shares of the Securities (such contributions, the Torrent Assignment Transactions and collectively with the Ranger Assignment Transactions, the Assignment Transactions ). Immediately prior to the consummation of the
offering contemplated by this Agreement, the Company intends to amend and restate its certificate of incorporation to, among other things, authorize two classes of common stock, Class A common stock and Class B common stock.. The Company intends that the net proceeds of the sale of Optional Securities by the Company, if any, will be contributed to Ranger LLC in exchange for an additional number of Ranger Units equal to the number of shares of Class A common stock issued as Optional Securities by the Company. Ranger LLC will use such net proceeds, if any, to purchase Ranger Units from Ranger Holdings I and Torrent Holdings I. The foregoing transactions (including the Assignment Transactions), as further described under the headings Corporate Reorganization and Use of Proceeds in the General Disclosure Package (as defined below), are referred to herein collectively as the Reorganization Transactions . Unless otherwise required by the context, references to the Subsidiaries of the Company in this Agreement refer to entities that will be subsidiaries of the Company after giving effect to the Reorganization Transactions, as evidenced by such entities being listed on Schedule C hereto.
2. Representations and Warranties of the Company Parties . (a) Each of the Company Parties, jointly and severally, represents and warrants to, and agrees with, the several Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain Defined Terms . The Company has filed with the Commission a registration statement on Form S-1 (No. 333-218139) 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 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 .
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 [ · ]:00 [a/p]m (New York City time) on the date of this Agreement.
Closing Date has the meaning defined in Section 3 hereof.
Commission means the United States 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). If an Additional Registration Statement has not been filed prior to the execution and delivery of this
Agreement but the Company has advised Credit Suisse Securities (USA) LLC ( Credit Suisse and, together with PJC, the Lead Representatives ), PJC and Wells Fargo Securities, LLC ( Wells , and together with the Lead Representatives, 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 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.
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 Companys 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 the Additional Registration Statement are referred to collectively as the Registration Statements and individually 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 ( 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 Section 5(d) of 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.
(ii) Compliance with the Requirements of the Act . (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, (ii) at their respective Effective Times, each of the Initial Registration Statement and the Additional Registration Statement (if any) did not and will not
contain 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, (iii) 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 necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) on the date of this Agreement, at their respective Effective Times or issue dates and on each Closing Date, each Registration Statement, the Final Prospectus, any Statutory Prospectus, any prospectus wrapper, and any Issuer Free Writing Prospectus complied or comply, and such documents and any further amendments or supplements thereto will comply, in all material respects, with any applicable laws or regulations of foreign jurisdictions in which the Final Prospectus, any Statutory Prospectus, any prospectus wrapper or any Issuer Free Writing Prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program. The preceding sentence does not apply to statements in or omissions from any such document in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(iii) 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.
(iv) 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 an emerging growth company, as defined in Section 2(a) of the Act (an Emerging Growth Company ).
(v) General Disclosure Package . As of the Applicable Time, none of (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the preliminary prospectus, dated [ · ], 2017 (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 such document in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives 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.
(vi) 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.
(vii) Testing-the-Waters Communication . The Company (a) has not alone engaged in any Testing-the-Waters Communication and (b) has not authorized anyone other than the Representatives and their affiliates and employees to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communication. The Company has not distributed any Written Testing-the-Waters Communication.
(viii) Good Standing of the Company. The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the General Disclosure Package and the Final Prospectus; and the Company 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 as would not, individually or in the aggregate, result in 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 ).
(ix) Subsidiaries. Each Subsidiary of the Company has been duly incorporated, organized or formed, as applicable, and is validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization, or formation, as applicable, with power and authority (corporate, limited liability company or other power, as applicable) to own its properties and conduct its business as described in 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 limited liability company 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, result in a Material Adverse Effect; all of the issued and outstanding equity interests of each Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable (to the extent applicable); and the equity interests of each Subsidiary that, after giving effect to the Reorganization Transactions, will be owned by the Company, directly or through Subsidiaries, will be owned free from liens, encumbrances and defects. After giving effect to the Reorganization Transactions, the Subsidiaries of the Company listed on Schedule C hereto will be the only subsidiaries, direct or indirect, of the Company and, except as disclosed in the General Disclosure Package, each Subsidiary of the Company other than Ranger LLC will be a wholly owned subsidiary, direct or indirect, of Ranger LLC.
(x) Offered Securities . The Offered Securities and all other outstanding shares of capital stock of the Company will, after giving effect to the Reorganization Transactions, have been duly authorized; the authorized equity capitalization of the Company will, after giving effect to the Reorganization Transactions and the other transactions described in the General Disclosure Package under the heading Capitalization, be as set forth under such heading; all outstanding shares of capital stock of the Company will, after giving effect to the Reorganization Transactions, be, 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 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 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. Except as disclosed in the Registration Statement and the General Disclosure Package, 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(a)(v) hereof, the Final Prospectus, any Permitted Free Writing Prospectus and, in connection with the Directed Share Program, the enrollment materials prepared by the Designated Underwriter on behalf of the Company.
(xi) Other Offerings . Except as disclosed in the General Disclosure Package in Item 15 of the Registration Statement, the Company has not sold, issued or distributed any shares of Class A common stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Act, other than common stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(xii) No Finders Fee. Except as disclosed in the General Disclosure Package and the Final Prospectus, 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, finders fee or other like payment in connection with this offering.
(xiii) Registration Rights. Except as disclosed in the General Disclosure Package, the Final Prospectus and as set forth in the Form of Registration Rights Agreement filed as an exhibit to the Initial Registration Statement, there are no contracts, agreements or understandings between the Company or any of its Subsidiaries, on the one hand, and any person, on the other hand, granting such person the right to require the Company or such Subsidiary to file a registration statement under the Act with respect to any securities of the Company or such Subsidiary owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act (collectively, registration rights), and any person to whom the Company has granted registration rights has agreed not to exercise such rights until after the expiration of the Lock-Up Period referred to in Section 5 hereof.
(xiv) Listing. The Offered Securities have been approved for listing on the New York Stock Exchange, subject to notice of issuance.
(xv) 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 Parties for the consummation of the transactions contemplated by this Agreement in connection with (i) the sale of the Offered Securities or (ii) the consummation of the Reorganization Transactions, except (x) such as have been, or prior to the First Closing Date will have been, obtained or made, (y) where the failure of the Company to obtain or make any such consent, approval, authorization, order, filing or registration would not reasonably be expected to have a Material Adverse Effect and (z) such as may be required under state securities laws or the rules of the Financial Industry Regulatory Authority, Inc. ( FINRA ).
(xvi) Title to Property . Except as disclosed in the General Disclosure Package and the Final Prospectus, after giving effect to the Reorganization Transactions, the Company and its Subsidiaries will have good and marketable title to all material real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and the Company and its Subsidiaries will hold any leased real or personal property under valid and enforceable leases with no terms or provisions that would materially interfere with the use made or to be made thereof by them.
(xvii) Absence of Defaults and Conflicts Resulting from Transaction. None of (A) the execution, delivery and performance of this Agreement, nor the offering, issuance or sale of the Offered Securities, (B) the consummation of the transactions contemplated by the Transaction Agreements (as defined below) nor (C) the consummation of the Reorganization Transactions will 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, operating agreement or by-laws (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 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 holders 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.
(xviii) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its respective charter, certificate of formation, operating agreement or by-laws (or similar organizational documents) or 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, except such violations or defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.
(xix) Authorization of Agreements. This Agreement has been duly authorized, executed and delivered by the Company Parties. The Amended and Restated Limited Liability Company Agreement] of Ranger LLC (the Ranger LLC Agreement ) has been duly authorized and, when executed and delivered, will constitute a valid and legally binding agreement of the members thereof, enforceable against such parties in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. Each of the tax receivable agreement among the Company, Ranger Holdings I and Torrent Holdings I (the Tax Receivable Agreement ), the Stockholders Agreement among the Company and the other parties thereto (the Stockholders Agreement ), the registration rights agreement between the Company and certain other parties thereto (the Registration Rights Agreement and, together with the Tax Receivable Agreement and the Stockholders Agreement, the Transaction Agreements ), has been duly authorized, executed and delivered by the Company Parties thereto and, assuming due authorization, execution and delivery by the other parties thereto, will be a valid and legally binding agreement of such Company Parties, enforceable against them in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(xx) Possession of Licenses and Permits. After giving effect to the Reorganization Transactions, the Company and its Subsidiaries will possess, and will be in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses, permits, approvals, consents, orders, certifications, accreditations and other authorizations (collectively, Licenses ), issued by the appropriate federal, state or local agencies or bodies necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package and the Final Prospectus to be conducted by them, except where the failure to have obtained the same would not reasonably be expected to have a Material Adverse Effect, and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(xxi) 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, is imminent that would have a Material Adverse Effect.
(xxii) Possession of Intellectual Property. After giving effect to the Reorganization Transactions, the Company and its Subsidiaries will own, possess the right to use 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 have a Material Adverse Effect.
(xxiii) Environmental Laws. Except as disclosed in the General Disclosure Package and the Final Prospectus, (a) neither the Company nor any of its Subsidiaries (i) 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; occupational health and workplace 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 ), (ii) 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, (iii) 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, (iv) is party to any order, decree or agreement that imposes any obligation or liability under any Environmental Law, or (v) 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 any Environmental Law; (b) to the knowledge of the Company, 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, except in the case of each of clauses (a) and (b) above, for such matters as would not individually or in the aggregate have a Material Adverse Effect; and (c) neither the Company nor any of its Subsidiaries (i) is subject to any pending proceeding pursuant to any Environmental Law in which any foreign, federal, state or local governmental entity is also a party, other than such proceedings regarding which it is reasonably believed monetary sanctions of $100,000 or more will not be imposed, nor does the Company or any of its Subsidiaries know of any such proceeding that is contemplated, (ii) is aware of any material effect on the capital expenditures, earnings or competitive position of the Company and its Subsidiaries resulting from compliance with any Environmental Law, or (iii) anticipates any material capital expenditures relating to any Environmental Law. For purposes of this subsection, Hazardous Substance means (A) any pollutant, contaminant, petroleum or petroleum product, by-product or breakdown product, radioactive material, asbestos, asbestos-containing material, polychlorinated biphenyl or toxic mold, and (B) any other toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous chemical, material, waste or substance.
(xxiv) Accurate Disclosure. The statements in the General Disclosure Package and the Final Prospectus under the headings Material U.S. Federal Income Tax Considerations for Non-U.S. Holders, Description of Capital Stock, Shares Eligible for Future Sale, Our History and Corporate Reorganization, BusinessEnvironmental and Occupational Safety and Health Matters, BusinessMotor Carrier Operations, Certain Relationships and Related Party Transactions Tax Receivable Agreement and Certain Relationships and Related Party TransactionsRegistration Rights Agreement, 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 each case in all material respects.
(xxv) Absence of Manipulation . The Company has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(xxvi) 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.
(xxvii) Internal Controls and Compliance with the Sarbanes-Oxley Act. Except as set forth in the General Disclosure Package and the Final Prospectus, the Company, its Subsidiaries and the Companys Board of Directors (the Board ) are in compliance with all applicable requirements of Sarbanes-Oxley and all applicable Exchange Rules. Except as set forth in the General Disclosure Package and the Final Prospectus, 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 the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with managements 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 managements 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 Committee (the Audit Committee ) of the Board in accordance with Exchange Rules. Except as disclosed in the General Disclosure Package and the Final Prospectus, none of the Company Parties has publicly disclosed or reported to the Audit Committee or its Board (or their applicable equivalents) a significant deficiency, material weakness, change in Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls (each, an Internal Control Event ), any violation of, or failure to comply with, the Securities Laws, or any matter which, if determined adversely, would have a Material Adverse Effect.
(xxviii) Litigation . Except as disclosed in 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 have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or, to the Companys knowledge, contemplated.
(xxix) Financial Statements. The financial statements included in each Registration Statement, the General Disclosure Package and the Final Prospectus present fairly in all material respects the financial position of the entities purported to be shown thereby as of the dates shown and, as applicable, their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the General Disclosure Package and the Final Prospectus, such financial statements have been prepared in conformity with U.S. GAAP applied on a consistent basis; and the assumptions used in preparing the pro forma financial statements included in each of the Registration Statement, the General Disclosure Package and the Final Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. Each of BDO USA, LLP and Whitley Penn LLP is an independent registered public accounting firm with respect to the Company and Torrent Services, respectively, within the Rules and Regulations and as required by the Act and the applicable rules and guidance from the Public Company Accounting Oversight Board (United States). The summary and selected financial and statistical data included in the Registration Statement, the General Disclosure Package and the Final Prospectus presents fairly the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein and the books and records of the Company. The Company does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any variable interest entities within the meaning of Financial Accounting Standards Board Interpretation No. 46), not disclosed in the Registration
Statement, the General Disclosure Package and the Final Prospectus. There are no financial statements that are required to be included in the Registration Statement, the General Disclosure Package or the Final Prospectus, including any required to be included pursuant to Rule 3-05 of Regulation S-X of the Commission, that are not included as required.
(xxx) No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package and the Final Prospectus, since the end of the period covered by the latest audited financial statements included in 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 or Ranger LLC on any class of its capital stock or membership interests, as applicable, (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 and its Subsidiaries, (iv) there has been no material transaction entered into and there is no material transaction that is probable of being entered into by the Company Parties during the 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 and underwriter or dealer other than transactions in the ordinary course of business, (v) there has been no obligation, direct or contingent, that is material to the Company taken as a whole, incurred by the Company, 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.
(xxxi) 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 General Disclosure Package and the Final Prospectus, will not be an investment company as defined in the Investment Company Act of 1940, as amended (the Investment Company Act ).
(xxxii) Ratings. No nationally recognized statistical rating organization as such term is defined in Section (3)(a)(62) of the Exchange Act (i) has imposed (or has informed the Company Parties that it is considering imposing) any condition (financial or otherwise) on the Companys retaining any rating (if any) assigned to a Company Party or any securities of a Company Party or (ii) has indicated to the Company that it is considering any of the actions described in Section 7(c)(ii) hereof.
(xxxiii) 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 and have paid all taxes required to be paid thereon (except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of the Company), and no tax deficiency has been, or would reasonably be expected to be, asserted against the Company or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxiv) Insurance . Except as disclosed in the 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 have a Material Adverse Effect, except as set forth in or
contemplated in 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.
(xxxv) Regulatory Filings . The Company and its subsidiaries have filed with applicable regulatory authorities all statements, reports, information or forms required by any applicable law, regulation or order, except where the failure to so file would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All such filings were in compliance with applicable laws when filed and no deficiencies have been asserted by any regulatory commission, agency or authority with respect to any such filing, except for any such failure as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxvi) Anti-Corruption . Neither the Company nor any of its Subsidiaries, nor any director, officer or employee, nor, to the Companys knowledge, any affiliate, agent or representative of the Company or of any of its Subsidiaries or affiliates, or other person associated with or acting on behalf of the Company, has (A) 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) to unlawfully influence official action or secure an unlawful or improper advantage; (B) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (C) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds, (D) violated or is in violation of applicable anti-corporation laws and anti-bribery laws in any country in which it does business, including the U.S. Foreign Corrupt Practices Act of 1977 or (E) made any unlawful bribe, rebate, payoff influence payment, kickback or other unlawful payment. The Company and its Subsidiaries and affiliates have conducted their businesses in compliance with applicable 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.
(xxxvii) Anti-Money Laundering . The operations of the Company and its Subsidiaries and all directors, officers, employees and, to the Companys knowledge, affiliates, agents and representatives of the Company and all of its Subsidiaries and affiliates, are and have been conducted at all times in compliance with, and each has taken and will continue to take reasonable action designed to comply 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, and the anti-money laundering statutes of jurisdictions applicable to the Company and its Subsidiaries, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency applicable to the Company and its Subsidiaries (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 best knowledge of the Company, threatened.
(xxxviii) Economic Sanctions .
(i) None of the Company, the Subsidiaries of the Company, or any director, officer, employee, or, to the Companys knowledge, any agent, affiliate or representative of the Company or any Subsidiary or affiliate of the Company, is (or is owned or controlled by an individual or entity that is) subject to any U.S. sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury ( OFAC ) or other sanctions authority (including the United Nations Security Council, the European Union, Her Majestys Treasury (UK HMT), the Swiss Secretariat of Economic Affairs (SECO), the Hong Kong Monetary Authority (HKMA) or the Monetary Authority of Singapore (MAS)) applicable to the Company and its Subsidiaries (collectively, the Sanctions ) or located, organized or resident in a country or territory that is the subject
of Sanctions. 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, person or other entity:
(A) to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any individual or entity (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(ii) For the past five 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 individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions. The Company, its Subsidiaries and affiliates, and all directors, officers, and employees and, to the Companys knowledge, all agents and representatives of the Company and all of its Subsidiaries have taken and will continue to take reasonable action designed to comply with such applicable laws.
(xxxix) No Restrictions on Payments by Subsidiaries . Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no Subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, (A) from paying any dividends to the Company, (B) from making any other distribution on such Subsidiarys capital stock, (C) from repaying to the Company any loans or advances to such Subsidiary from the Company or (D) from transferring any of such Subsidiarys material properties or assets to the company or any other Subsidiary of the Company.
(xl) ERISA and Employee Benefits Matters . (A) Except, in each case, for any such matter as would not reasonably be expected to have a Material Adverse Effect, (i) to the knowledge of the Company, no prohibited transaction as defined under Section 406 of ERISA or Section 4975 of the Code and not exempt under Section 408 of ERISA has occurred with respect to any Employee Benefit Plan, (ii)neither the Company nor any ERISA Affiliate has maintained, sponsored, participated in, contributed to or has or had any liability or obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, Section 412 of the Code or any multiemployer plan as defined in Section 3(37) of ERISA, (iii) no Employee Benefit Plan provides or promises, or at any time provided or promised, retiree health, retiree life insurance, or other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state law, (iv) each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws, including but not limited to ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a reportable event as such term is defined in Section 4043 of ERISA) and no condition exists that would subject the Company or any ERISA Affiliate to any material tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law and (v) each Employee Benefit Plan that is intended to be qualified under Code Section 401(a) is so qualified and has a favorable determination, advisory or opinion letter from the Internal Revenue Service upon which it can rely, and, to the knowledge of the Company, nothing has occurred since the date of such determination, advisory or opinion letter that is reasonably likely to cause the loss of such qualification; (B) no Employee Benefit Plan is a Foreign Benefit Plan; (C) the Company does not have any obligations under any collective bargaining agreement with any union and no organization efforts are underway with respect to Company employees. As used in this Agreement, Code means the Internal Revenue Code of 1986, as amended; Employee Benefit Plan means any employee benefit plan within the meaning of Section 3(3) of ERISA, including all stock purchase, stock option, stock-based severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, which is contributed to, sponsored by or maintained by the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has had or could have any obligation or liability;
ERISA means the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published governmental interpretations thereunder; ERISA Affiliate means any member of the Companys controlled group within the meaning of Section 414(b), (c), (m) or (o) of the Code; and Foreign Benefit Plan means an Employee Benefit Plan operated outside of the United States of America or which primarily covers employees working or residing outside of the United States.
(xli) Absence of Unlawful Influence. The Company has not offered or sold, or caused the Underwriters to offer or sell, any Offered Securities to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customers or suppliers level or type of business with the Company or (ii) a trade journalist or publication to write or publish favorable information about the Company.
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 each Underwriter, and each Underwriter 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.
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 Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY, 10019, at [] A.M., New York time, on [], 2017, 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. Delivery of the Firm Securities will be made through the facilities of DTC unless the Representatives shall otherwise instruct.
In addition, upon written notice from the Lead 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 Security to be paid for the Firm Securities. Such notice shall set forth (i) the aggregate number of shares of Optional Securities as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Securities will be delivered (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 ). The Company agrees to sell to the Underwriters the number of Optional Securities specified in such notice, and the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased from the Company for the account of each Underwriter in the same proportion as the number of Firm Securities set forth opposite such Underwriters name bears to the total number of Firm Securities (subject to adjustment by the Lead 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 Lead Representatives to the Company.
Each Optional Closing Date shall be determined by the Lead 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 Lead Representatives for the accounts of the several Underwriters, in a form reasonably acceptable to the Lead Representatives against payment of the purchase price therefor in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Lead Representatives drawn to the order of the Company, at the above office of Cravath, Swaine & Moore LLP. Delivery of the Optional Securities will be made through the facilities of DTC unless the Lead Representatives shall otherwise instruct.
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 Parties, jointly and severally, agree 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 in order 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.
(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 Companys 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 to the Representatives copies of each Registration Statement (four 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 on or prior to 3:00 P.M., New York time, on the second business day 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 furnish to the Representatives and, upon request, 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, 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 (or any successor system), it is not required to furnish such reports or statements to the Underwriters.
(i) Payment of Expenses. The Company Parties, jointly and severally, agree that the Company Parties will pay all expenses incident to the performance of the obligations of the obligations of the Company Parties under this Agreement, including but not limited to any filing fees and other expenses (including 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 (x) filing fees and (y) the fees and expenses of counsel for the Underwriters relating to such review (the amount in clause (y) not to exceed $35,000)), 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 Companys 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 payable in connection with the 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 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 in this Section 5(i) and Sections 5(p), 8 and 10 hereof, 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, 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 Parties 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.
(l) (A) Restriction on Sale of Securities by the Company. For the period specified below (the Lock-Up Period ), the Company Parties 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 the Securities ( Lock-Up Securities ): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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, (iv) 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 (v) 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 Lead Representatives. The Lock-Up Period will commence on the date hereof and continue for 180 days after the date hereof or such earlier date that the Lead Representatives consent to in writing. The restrictions set forth in this Section 5(l) shall not apply to (A) the sale of Securities to the Underwriters; (B) the issuance of Securities and Ranger Units in connection with (x) the Reorganization Transactions, (y) the ESCO Acquisition (as defined in the Initial Registration Statement) and (z) the offering contemplated by this Agreement; (C) the issuance by the Company of shares of Securities upon the exchange of Class B common stock together with Ranger Units pursuant to the Amended and Restated Limited Liability Company Agreement of Ranger LLC, as described in the General Disclosure Package and the Final Prospectus, (D) grants of stock options or other compensatory awards of Lock-Up Securities or awards the value of which is based in whole or in part on the value of Lock-Up Securities pursuant to the terms of a plan in effect prior to the closing of the Offering and described in the General Disclosure Package and the Final Prospectus, to individuals eligible to receive awards under such plan; provided, however that such securities either do not vest or are not transferable except in accordance with the provisions of a lock-up agreement in substantially the form set forth on Exhibit C hereto (a Lock-Up Agreement ), (E) issuances of Lock-Up Securities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof or the vesting or settlement of any other award granted pursuant to the plan described in the immediately preceding clause (D) (and subject to the proviso in such clause (D)), (F) 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; provided that (x) no more than an aggregate of 10% of the number of shares of the Companys capital stock outstanding immediately after the issuance and sale of Securities pursuant to the ESCO Acquisition and the Offered Securities pursuant to this Agreement and (y) prior to the issuance of such shares of the Companys capital stock each recipient of such shares agrees in writing to be subject to the lock-up described in this Section 5(l) for the remaining term of the Lock-Up Period and (G) the filing of a registration statement on Form S-8 relating to, and the issuance and sale of, Lock-Up Securities as described in the General Disclosure Package and the Final Prospectus.
(B) Agreement to Announce Lock-up Waiver. If the Lead Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lock-Up Agreement 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 B hereto through a major news service at least two business days before the effective date of the release or waiver.
(m) Emerging Growth Company Status . The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Offered Securities within the meaning of the Act and (ii) completion of the Lock-Up Period.
(n) [ Reserved .]
(o) Transfer Restrictions. In connection with the Directed Share Program, the Company will ensure that the Directed Shares 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 the effectiveness of the Registration Statement. The Designated Underwriter will notify the Company as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.
(p) Payment of Expenses Related to Directed Share Program. The Company will pay all fees and expenses of the Underwriters incurred in connection with the Directed Share Program, including all reasonable and documented fees and disbursements of counsel (including non-U.S. counsel) and stamp duties, similar taxes or duties or other taxes, if any, incurred by the underwriters in connection with the Directed Share Program.
(q) Compliance with Foreign Laws. The company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
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 is 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.
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 Parties (as though made on such Closing Date), to the accuracy of the statements of the Company Parties officers made pursuant to the provisions hereof, to the performance by the Company Parties of their obligations hereunder and to the following additional conditions precedent:
(a) Accountants Comfort Letters. The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, of (i) BDO USA, LLP, (ii) Hein & Associates LLP, (iii) Whitley Penn LLP and (iv) PricewaterhouseCoopers LLP confirming, in each case, that such party is a registered public accounting firm and independent public accountants within the meaning of the Securities
Laws and otherwise in the form and substance reasonably satisfactory to the Representatives (except that, in any letter dated a Closing Date, the specified date referred to in the comfort letters shall be a date no more than three days prior to such Closing Date).
(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.
(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 (if any) of any debt securities or preferred stock of the Company or Ranger LLC 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 (if any) of any debt securities or preferred stock of the Company or Ranger LLC (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (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 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 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 of Counsel for the Company. The Representatives shall have received an opinion, dated such Closing Date, of Vinson & Elkins L.L.P., counsel for the Company, in substantially the form attached hereto as Exhibit A.
(e) Opinion of Counsel for Underwriters. The Representatives shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(f) Officers Certificates. The Representatives shall have received a certificate, dated such Closing Date, of an executive officer of each of the Company Parties and a principal financial or accounting officer of each of the Company Parties in which such officers shall state that: the representations and warranties of the Company Parties in this Agreement are true and correct; the Company Parties have complied with all agreements and satisfied all conditions on their 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 and after reasonable investigation, 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 111(a) or (b) of Regulation S-T of the Commission; 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.
(g) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall have received Lock-Up Agreements in substantially the form set forth on Exhibit C hereto from each of the parties listed on Schedule D to this Agreement.
(h) [ Reserved .]
(i) New Revolving Credit Facility . The new revolving credit facility described in the Initial Registration Statement under the caption Managements Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital ResourcesOur Debt Agreements shall be effective prior to or simultaneously with the completion of the transactions contemplated by this Agreement.
(j) ESCO Acquisition . The Representatives shall have received evidence satisfactory to them and their counsel that the ESCO Acquisition shall have been consummated as described under the caption Recent Developments in the Initial Registration Statement prior to or simultaneously with the completion of the transactions contemplated by this Agreement.
(k) CFO Certificate . On the date hereof and each Closing Date, as the case may be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Representatives, of a principal financial or accounting officer of each of the Company Parties with respect to certain financial data contained in the General Disclosure Package and the Registration Statement, providing management comfort with respect to such information, in form and substance reasonably satisfactory to the Representatives.
The Company Parties will furnish the Representatives with any additional opinions, certificates, letters and documents as the Representatives reasonably request and conformed copies of documents delivered pursuant to this Section 7. The Representatives may in their 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 Parties will, jointly and severally, 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, or included in any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication, or, in the case of any Registration Statement, 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 not misleading, or, in the case of any Statutory Prospectus, Final Prospectus, Issuer Free Writing Communication or Written Testing the Waters Communication, arise out of or are based upon the omission or alleged omission of a material fact necessary in order 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 Parties 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 Parties by any Underwriter through the Representatives 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 (b) below.
The Company Parties, jointly and severally, agree to indemnify and hold harmless the Designated Underwriter and its affiliates and each person, if any, who controls the Designated Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act (the Designated Entities ), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) (x) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (y) arising out of or based upon any untrue statement or alleged untrue statement of a material fact included in the Final Prospectus, any Statutory Prospectus, any prospectus wrapper, and any Issuer Free Writing Prospectus prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program or arising out of or based upon any omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) arising out of or based upon the failure of any Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase; or (iii) arising out of, related to, or in connection with the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the willful misconduct or gross negligence of the Designated Entities.
(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, 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, or included in any Statutory Prospectus as of any time, the Final Prospectus, any Written Testing-the-Waters Communication or any Issuer Free Writing Prospectus or arise out of or are based upon the omission or the alleged omission of a material fact (i) in the case of any Registration Statement, required to be stated therein or necessary to make the statements therein not misleading, or (ii) in the case of any Statutory Prospectus, the Final Prospectus, any Written Testing the Waters Communication or any Issuer Free Writing Prospectus, necessary in order 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 the Representatives 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 and reallowance figures and the statements relating to price stabilization, short positions and penalty bids appearing under the caption Underwriting.
(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) or (b) 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) or (b) 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) or (b) 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. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to the last paragraph in Section 8(a) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for the Designated Underwriter for the defense of any losses, claims, damages and liabilities arising out of the Directed Share Program, and all persons, if any, who control the Designated Underwriter within the meaning of either Section 15 of the Act of Section 20 of the Exchange Act. 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.
(d) Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) 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) or (b) 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 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, the Representatives 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 the Representatives, 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.
10. Survival of Certain Representations and Obligations . The respective indemnities, agreements, representations, warranties and other statements of the Company Parties or their respective 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, any Company Party 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 hereof or the occurrence of any event specified in clauses (iii), (iv), (vi), (vii) or (viii) of Section 7(c) hereof), the Company Parties will, jointly and severally, reimburse the Underwriters for all out-of-pocket expenses (including reasonably documented fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and the respective obligations of the Company Parties and and the Underwriters pursuant to Section 8 hereof shall remain in effect. 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.
11. 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 Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD; c/o Piper Jaffray & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota 55402, Attention: Equity Capital Markets, with a copy to General Counsel; c/o Wells Fargo Securities, LLC, 375 Park Avenue, New York, New York 10152, Attention: Equity Syndicate Department (fax no: (212) 214-5918) and a copy to Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019, Attention: William J. Whelan, III, Esq.,; or if sent to the Company Parties, will be mailed, delivered or telegraphed and confirmed to it c/o Ranger Energy Services, Inc., 800 Gessner, Suite 1000, Houston, TX 77024, Attention: Darron Anderson; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
12. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective personal representatives and 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.
13. 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 will be binding upon all the Underwriters.
14. 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.
15. Absence of Fiduciary Relationship. The Company Parties acknowledge and agree 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 Parties on other matters;
(b) Arms Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by Company Parties following discussions and arms-length negotiations with the Representatives and the Company Parties are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company Parties have 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 Parties and that the Representatives have no obligation to disclose such interests and transactions to the Company Parties by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company Parties waive, to the fullest extent permitted by law, any claims they may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives shall have no liability (whether direct or indirect) to the Company Parties 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 Parties, including stockholders, employees or creditors of the Company Parties.
16. Applicable Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company Parties hereby submit 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 Parties irrevocably and unconditionally waive 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 waive and agree 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.
17. Waiver of Jury Trial . The Company Parties hereby irrevocably waive, 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.
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 between the Company Parties and the several Underwriters in accordance with its terms.
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RANGER ENERGY SERVICES, INC. |
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[ Insert title ] |
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RNGR ENERGY SERVICES, LLC |
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The foregoing Agreement is hereby
confirmed and accepted as of the date first above
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Acting on behalf of themselves and as the |
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Representatives of the several |
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Underwriters. |
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By CREDIT SUISSE SECURITIES (USA) LLC |
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By PIPER JAFFRAY & CO. |
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By WELLS FARGO SECURITIES, LLC |
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SCHEDULE A
Underwriter |
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Number of
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Credit Suisse Securities (USA) LLC |
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Piper Jaffray & Co. |
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Wells Fargo Securities, LLC |
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Barclays Capital Inc. |
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Evercore Group L.L.C. |
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Capital One Securities, Inc. |
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Johnson Rice & Company L.L.C. |
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Raymond James & Associates, Inc. |
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Scotia Capital (USA) Inc. |
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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. Final term sheet, dated [, a copy of which is attached hereto].]
2. [ list other documents ]
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.
2. [ list other information ]]
SCHEDULE C
Subsidiaries
RNGR Energy Services, LLC, a Delaware limited liability company
Ranger Energy Services, LLC, a Delaware limited liability company
Torrent Energy Services, LLC, a Delaware limited liability company
Academy Oilfield Rentals, LLC, a Delaware limited liability company
Ranger Energy Leasing, LLC, a Delaware limited liability company
Ranger Energy Properties, LLC, a Delaware limited liability company
Ranger Energy Equipment, LLC, a Delaware limited liability company
Mallard Completions, LLC, a Delaware limited liability company
SCHEDULE D
Lock-Up Agreements
· Darron Anderson
· Bill Austin
· Brett Agee
· Richard Agee
· Matt Hooker
· Charlie Leykum
· Pete Miller
· Lance Perryman
· Vivek Raj
· Robert Shaw
· Krishna Shivram
· Bayou Well Holdings Company, LLC
· CSL Energy Holdings II, LLC
· CSL Energy Opportunities Fund II, L.P.
· ESCO Leasing, LLC
· Ranger Energy Holdings, LLC
· Ranger Energy Holdings II, LLC
· Torrent Energy Holdings, LLC
· Torrent Energy Holdings II, LLC
Exhibit A
Form of Opinion of Counsel to the Company
1. The Company has been duly incorporated and is validly existing as a corporation, and is in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Final Prospectus; and is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions set forth opposite its name on Schedule I hereto.
2. Each Subsidiary is validly existing as a limited liability company and in good standing under the laws of the State of Delaware; each Subsidiary has the limited liability company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package, and the Final Prospectus; each Subsidiary is duly qualified to do business as a foreign limited liability company in the jurisdictions set forth opposite its name on Schedule I hereto.
3. The Company owns such equity interests of each Subsidiary as are described in the Registration Statement, the General Disclosure Package and the Final Prospectus; such equity interests have been duly authorized and validly issued in accordance with the respective governing documents of such Subsidiaries and are fully paid (to the extent required) and non-assessable (except as such non-assessability may be limited by sections 18-303, 18-607 and 18-804 of the Delaware Limited Liability Company Act (the Delaware LLC Act )); and the Company owns such equity interests free and clear of all liens, defects, encumbrances, equities or claims ( Liens ) (other than Liens arising under or in connection with the [Credit Agreement], as described in the Registration Statement, the General Disclosure Package, and the Final Prospectus) (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Company as debtor is on file in the office of the Secretary of State of the State of Delaware as of [], 2017, or (ii) otherwise known to us, without independent investigation, other than those created by or arising under the Delaware LLC Act.
4. The Offered Securities to be issued and sold by the Company to the Underwriters under the Agreement have been duly authorized in accordance with the Companys Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws (together, the Governing Documents ) and (x) conform to the information in the General Disclosure Package and to the description of such Offered Securities contained in the Final Prospectus, and (y) when issued and delivered by the Company to the Underwriters upon payment therefor in accordance with the Agreement, will be (i) validly issued in accordance with the Governing Documents, free of preemptive rights under federal law, the Delaware General Corporation Law (the DGCL ) or the Governing Documents, (ii) fully paid and non-assessable and (iii) free of any restriction upon the voting or transfer of, any shares of any class of common stock pursuant to the Companys Governing Documents or other instrument known to us to which the Company is a party or by which the Company is bound.
5. Except as set forth in the General Disclosure Package and the Final Prospectus, there are no persons with registration rights or other similar rights created pursuant to any agreement filed as an exhibit to the Registration Statement to have any securities registered pursuant to the Registration Statement or registered by the Company under the Securities Act or otherwise; and, except as set forth in the General Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company created pursuant to any agreement filed as an exhibit to the Registration Statement are outstanding.
6. The execution and delivery of the Agreement by the Company does not, and the performance by the Company of its obligations under the Agreement, the offering, issuance and sale of the Offered Securities pursuant to the terms of the Agreement and the application of the proceeds from the sale of the Offered Securities as described under Use of Proceeds in the Final Prospectus will not, (i) result in a breach or default (or an event that, with notice or lapse of time or both, would constitute such an event) under any agreement
listed on Schedule II hereto; (ii) violate the provisions of the Governing Documents or the similar organizational documents of the Company or any Subsidiary; (iii) violate any federal or New York statute, rule or regulation applicable to the Company or the DGCL or the Delaware Limited Liability Act, or (iv) result in the creation of any additional Lien upon any property or assets of the Company or the Subsidiaries under the [Credit Agreement] except, with respect to clauses (iii) and (iv), as would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company and the Subsidiaries to consummate the Reorganization Transactions or the transactions contemplated by the Agreement in connection with the offering, issuance and sale of the Offered Securities by the Company (a Material Adverse Effect ); it being understood that we express no opinion in clause (iii) of this paragraph (6) with respect to any federal or state securities, blue sky or anti-fraud laws, rules or regulations.
7. The Agreement has been duly authorized, executed and delivered by the Company Parties.
8. The Reorganization Transactions have been duly authorized by the Company Parties.
9. No consent, approval, authorization or order of, registration or qualification with any federal or New York court or governmental agency or any Delaware court or governmental agency is required to be obtained or made by the Company or the Subsidiaries for the execution, delivery and performance by the Company of the Agreement, the compliance by the Company with the terms thereof and the issuance and sale of the Offered Securities by the Company being delivered on the date hereof pursuant to the Agreement, except (i) as have been obtained or made, (ii) for the registration of the offering and sale of the Offered Securities under the Securities Act, (iii) for such consents, approvals, authorizations, orders, registrations or qualifications as may be required under applicable federal or state securities or blue sky laws and the approval by FINRA of the underwriting terms and arrangements in connection with the purchase and distribution of the Offered Securities by the Underwriters or (iv) for such consents that, if not obtained, have not or would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
10. The Registration Statement has been declared effective under the Act; to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission; and any required filing of the Final Prospectus pursuant to Rule 424(b) under the Act has been made in the manner and within the time period required by such rule.
11. The statements set forth in the Final Prospectus under the headings BusinessEnvironmental and Occupational Safety and Health Matters, Business Motor Carrier Operations, Description of Capital Stock, Shares Eligible for Future Sale, Our History and Corporate Reorganization, Certain Relationships and Related Party Transactions Tax Receivable Agreement and Certain Relationships and Related Party TransactionsRegistration Rights Agreement and Material U.S. Federal Income Tax Considerations For Non-U.S. Holders, and in the Registration Statement in Item 14, to the extent that they constitute descriptions or summaries of the terms of the Class A common stock or the documents referred to therein, or refer to statements of federal law, the laws of the State of Delaware or legal conclusions, are accurate in all material respects.
12. The Company is not, and, after giving effect to the offering and sale of the Offered Securities pursuant to the terms of the Agreement and application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Final Prospectus under the caption Use of Proceeds, will not be, an investment company, as such term is defined in the Investment Company Act and the rules and regulations of the Commission thereunder.
13. Each of the Registration Statement, as of the Effective Time, the General Disclosure Package, as of the Applicable Time, and the Final Prospectus, when filed with the Commission pursuant to Rule 424(b) and at the Closing Date (in each case other than (i) the financial statements and related schedules, including the notes and schedules thereto and the auditors report thereon and (ii) the other financial data derived therefrom, in each case included in or omitted from the Registration Statement, the General Disclosure Package and the Final Prospectus, as to which we express no opinion), appeared on its face to comply as to form in all material respects with the requirements of the Act; and to our knowledge there are no legal or governmental proceedings required to be described in a Registration Statement or the Final Prospectus which are not described as required or of any contracts or documents of a character required to be described in a Registration Statement or the Final Prospectus or to be filed as exhibits to a Registration Statement which are not described and filed as required.
14. The Amended and Restated Limited Liability Company Agreement of Ranger LLC, dated of even date herewith, constitutes a valid and legally binding agreement of each of the Company Parties, enforceable against each of the Company Parties in accordance with its terms, provided that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights and remedies generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (ii) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
We have participated in conferences with representatives of the Company and with representatives of its independent accountants and counsel for the Underwriters, at which conferences the contents of the Registration Statement, the General Disclosure Package and the Final Prospectus and any amendment and supplement thereto and related matters were discussed. Although we have not undertaken to determine independently, and do not assume any responsibility for, or express opinion regarding, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Final Prospectus (in each case, other than listed in paragraph 11 above), based upon the participation described above (relying as to factual matters upon statements of fact made to us by representatives of the Company), nothing has come to our attention to cause us to believe that:
(a) the Registration Statement, as of the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(b) the General Disclosure Package, as of the Applicable Time, included an untrue statement of a material fact or omitted 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; or
(c) the Final Prospectus, as of its date or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits 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;
except that in each case, such counsel need not express any belief with respect to (i) the financial statements and related schedules, including the notes and schedules thereto and the auditors report thereon, (ii) any other financial or accounting information; in each case included in or omitted from the Registration Statement, the General Disclosure Package and the Final Prospectus.
Exhibit B
Form of Press Release
Ranger Energy Services, Inc.
[Date]
Ranger Energy Services, Inc. (the Company) announced today that Credit Suisse and Piper Jaffray & Co., the lead book-running managers in the Companys recent public sale of shares of Class A common stock, are [waiving] [releasing] a lock-up restriction with respect to shares of the Companys common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on , 201 , 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.
Exhibit C
Form of Lock-Up Agreement
[ Insert date ]
RANGER ENERGY SERVICES, INC.
800 Gessner Street, Suite 1000
Houston, TX 77024
CREDIT SUISSE SECURITIES (USA) LLC
PIPER JAFFRAY & CO.,
As Lead Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
As an inducement to the underwriters to execute the Underwriting Agreement (the Underwriting Agreement ), pursuant to which an offering will be made that is intended to result in the establishment of a public market for Class A common stock, $0.01 par value per share (the Securities ), of Ranger Energy Services, Inc., a Delaware corporation, and any successor (by merger or otherwise) thereto, (the Company ), the undersigned hereby agrees that during the period specified in the following paragraph (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 (collectively, Lock-Up 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 Lock-Up Securities, whether any such aforementioned transaction is to be settled by delivery of the Lock-Up 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 Credit Suisse Securities (USA) LLC ( Credit Suisse ) and Piper Jaffray & Co. ( PJC , and together with Credit Suisse, the Lead Representatives ). In addition, the undersigned agrees that, without the prior written consent of the Lead Representatives, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any Lock-Up Securities.
The Lock-Up Period will commence on the date of this agreement (this Lock-Up Agreement ) and continue and include the date that is 180 days after the public offering date set forth on the final prospectus used to sell the Securities (the Public Offering Date ) pursuant to the Underwriting Agreement.
Any Lock-Up Securities received upon exercise of options granted to the undersigned will also be subject to this Lock-Up Agreement. However, the restrictions in this Lock-Up Agreement shall not apply to (a) any Lock-Up Securities acquired by the undersigned in the open market, provided that no filing or public announcement by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended (the Exchange Act ) or otherwise 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), (b) a transfer of Lock-Up Securities to a family member (which, for purposes of this Lock-Up Agreement, shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin) or trust, provided that (i) the transferee agrees to be bound in writing by the terms of this Lock-Up Agreement prior to such transfer, (ii) such transfer shall not involve a disposition for value and (iii) no filing or public announcement by any party (donor, donee, transferor or transferee) under the Exchange Act 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), (c) any exercise of options or vesting or exercise of any other equity-based award, in each case under the Companys equity incentive plan or any other plan or agreement described in the prospectus included in the Registration Statement, including any Lock-Up Securities withheld by the Company to pay the applicable exercise price or taxes associated with such awards, provided that (i) no
filing or public announcement by any party under the Exchange Act or otherwise shall be required or shall be voluntarily made in connection with such exercise or vesting and (ii) any Lock-Up Securities received upon such exercise or vesting, following any applicable net settlement or net withholding, will also be subject to this Lock-Up Agreement, (d) transfers through a distribution to limited partners or stockholders of the undersigned, provided that (i) the transferee agrees to be bound in writing by the restrictions set forth herein, (ii) any such transfer shall not involve a disposition for value and (iii) no filing or public announcement by any party (donor, donee, transferor or transferee) under the Exchange Act 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), (e) transfers to the undersigneds affiliates or to any investment fund or other entity controlled or managed by the undersigned, provided that (i) the transferee agrees to be bound in writing by the restrictions set forth herein, (ii) any such transfer shall not involve a disposition for value and (iii) no filing or public announcement by any party (donor, donee, transferor or transferee) under the Exchange Act 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), or (f) the establishment of any written contract, instruction or plan that satisfies all of the requirements of Rule 10b5-1 (a Rule 10b5-1 Plan ) under the Exchange Act; provided, however, that no transfers of Lock-Up Securities shall be made pursuant to a Rule 10b5-1 Plan prior to the expiration of the Lock-Up Period; and provided further, that no party is required to publicly announce, file, or report the establishment of such Rule 10b5-1 Plan in any public report, announcement, or filing with the Commission under the Exchange Act during the Lock-Up Period and does not otherwise voluntarily effect any such public report, announcement, or filing regarding such Rule 10b5-1 Plan.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Lock-Up 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 Lock-Up Securities the undersigned may purchase in the above-referenced offering.
If the undersigned is an officer or director of the Company, (i) the Lead 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 Lock-Up Securities, the Lead 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 Lead 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. It is understood that if the Underwriting Agreement is executed yet terminates (other than the provisions thereof that survive termination) prior to payment for and delivery of the Offered Securities, the undersigned shall be released from all obligations under this Lock-Up Agreement. Further, this Lock-Up Agreement shall lapse and become null and void if the Public Offering Date shall not have occurred on or before [ · ]. This agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[ Signature page follows ]
Very truly yours,
Exhibit 2.3
FIRST AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
by and among
EsCo Leasing, LLC,
Ranger Energy Services, LLC
and solely for purposes of
Section 2.2, Section 4.2, Section 4.8, Section 4.10 and Article VIII
Tim Hall
Originally Dated May 30, 2017
Amended and Restated July 31, 2017
TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE OF ASSETS AND ASSIGNMENT AND ASSUMPTION OF LIABILITIES |
1 |
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Section 1.1 |
Purchase and Sale . |
1 |
Section 1.2 |
Exclusivity Deposit . |
8 |
Section 1.3 |
Transaction Consideration . |
8 |
Section 1.4 |
Closing Date . |
9 |
Section 1.5 |
Closing Date Cash Payments and Issuances . |
9 |
Section 1.6 |
Net Working Capital Adjustment . |
10 |
Section 1.7 |
Allocation of Transaction Consideration . |
12 |
Section 1.8 |
Withholding . |
12 |
Section 1.9 |
Stale Accounts Receivable . |
13 |
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ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER |
13 |
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Section 2.1 |
Formation and Related Matters . |
13 |
Section 2.2 |
Authorization and Enforceability . |
14 |
Section 2.3 |
Books and Records . |
14 |
Section 2.4 |
Conflicts; Consents of Third Parties . |
14 |
Section 2.5 |
Financial Statements . |
14 |
Section 2.6 |
No Undisclosed Liabilities . |
15 |
Section 2.7 |
Absence of Certain Developments . |
15 |
Section 2.8 |
Taxes . |
17 |
Section 2.9 |
Real Property . |
18 |
Section 2.10 |
Tangible Personal Property; Title; Sufficiency of Assets . |
19 |
Section 2.11 |
Intellectual Property . |
20 |
Section 2.12 |
Contracts . |
21 |
Section 2.13 |
Employee Benefits . |
23 |
Section 2.14 |
Labor . |
25 |
Section 2.15 |
Litigation . |
26 |
Section 2.16 |
Compliance with Laws; Permits . |
26 |
Section 2.17 |
Environmental Matters . |
27 |
Section 2.18 |
Insurance . |
29 |
Section 2.19 |
Receivables . |
29 |
Section 2.20 |
Inventory . |
29 |
Section 2.21 |
Customers and Suppliers . |
30 |
Section 2.22 |
Warranty Liabilities . |
30 |
Section 2.23 |
Guaranties and Liabilities . |
30 |
Section 2.24 |
Related Party Transactions . |
31 |
Section 2.25 |
Brokers Fees . |
31 |
Section 2.26 |
Absence of Certain Business Practices; FCPA . |
31 |
Section 2.27 |
Surety Bonds . |
32 |
Section 2.28 |
Investor Representations . |
32 |
Section 2.29 |
No Other Representations and Warranties . |
32 |
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER |
33 |
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Section 3.1 |
Formation and Related Matters . |
33 |
Section 3.2 |
Authorization and Enforceability . |
33 |
Section 3.3 |
Capitalization . |
33 |
Section 3.4 |
Conflicts; Consents of Third Parties . |
34 |
Section 3.5 |
Financial Statements of Ranger Holdings . |
34 |
Section 3.6 |
Controls . |
34 |
Section 3.7 |
SEC Reports . |
35 |
Section 3.8 |
Litigation . |
35 |
Section 3.9 |
Investment Company Status . |
35 |
Section 3.10 |
Brokers Fees . |
36 |
Section 3.11 |
Inspections; No Other Representations . |
36 |
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ARTICLE IV COVENANTS |
36 |
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Section 4.1 |
Efforts; Notices; Consents; Disclosure Schedule Updates . |
36 |
Section 4.2 |
Pre-Closing Contribution and Transfer . |
38 |
Section 4.3 |
Access to Information; Financial Statements . |
38 |
Section 4.4 |
Operation of Business . |
39 |
Section 4.5 |
Further Assurances; Litigation Support; Books and Records . |
40 |
Section 4.6 |
Names and Logos . |
41 |
Section 4.7 |
Mail; Payments; Receivables . |
41 |
Section 4.8 |
Public Announcements; Confidentiality . |
41 |
Section 4.9 |
Tax Covenants . |
42 |
Section 4.10 |
Exclusive Dealing . |
43 |
Section 4.11 |
Non-Competition; Non-Solicitation . |
44 |
Section 4.12 |
Bulk Sales Laws . |
45 |
Section 4.13 |
Employees and Employee Benefits . |
45 |
Section 4.14 |
Dissolution . |
47 |
Section 4.15 |
Employee Restrictive Covenant Agreements . |
47 |
Section 4.16 |
Release of Liens . |
47 |
Section 4.17 |
Insurance . |
47 |
Section 4.18 |
No Additional Acquisitions of Class A Common Stock . |
48 |
Section 4.19 |
Cash Purchase Option . |
48 |
Section 4.20 |
Certain Pre-Closing Environmental Matters . |
48 |
ARTICLE V CLOSING CONDITIONS |
48 |
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Section 5.1 |
Conditions to Obligation of Purchaser . |
48 |
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Section 5.2 |
Conditions to Obligation of Seller . |
51 |
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Section 5.3 |
Frustration of Closing Conditions . |
52 |
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Section 5.4 |
Extension; Waiver . |
52 |
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Section 5.5 |
Estoppel . |
52 |
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ARTICLE VI INDEMNIFICATION |
53 |
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Section 6.1 |
Indemnity Obligations of Seller . |
53 |
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Section 6.2 |
Indemnity Obligations of Purchaser . |
53 |
Section 6.3 |
Indemnification Procedures . |
54 |
Section 6.4 |
Expiration of Representations and Warranties . |
56 |
Section 6.5 |
Certain Limitations . |
56 |
Section 6.6 |
Environmental Indemnity . |
59 |
Section 6.7 |
Indemnification Payments by Seller; Right of Set-Off . |
61 |
Section 6.8 |
Treatment of Indemnification Payments . |
62 |
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ARTICLE VII TERMINATION |
62 |
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Section 7.1 |
Termination of Agreement . |
62 |
Section 7.2 |
Effect of Termination . |
63 |
ARTICLE VIII MISCELLANEOUS |
64 |
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Section 8.1 |
Certain Definitions . |
64 |
Section 8.2 |
Expenses . |
74 |
Section 8.3 |
Governing Law; Jurisdiction; Exclusive Venue . |
74 |
Section 8.4 |
Entire Agreement; Amendments and Waivers . |
74 |
Section 8.5 |
Section Headings . |
75 |
Section 8.6 |
Notices . |
75 |
Section 8.7 |
Severability . |
75 |
Section 8.8 |
Binding Effect; Assignment; Third-Party Beneficiaries . |
76 |
Section 8.9 |
Counterparts . |
76 |
Section 8.12 |
Interpretation . |
77 |
Section 8.13 |
Construction . |
77 |
Section 8.14 |
Specific Performance . |
77 |
Section 8.15 |
Waiver of Jury Trial . |
78 |
Section 8.16 |
Time of Essence . |
78 |
Section 8.17 |
Guarantee by Hall . |
78 |
EXHIBITS AND ANNEXES:
Exhibit A: Amended and Restated Disclosure Schedules
Exhibit B: Form of Bill of Sale
Exhibit C: Form of Seller Note
Exhibit D: Form of Indemnity Note
Exhibit E: Form of Security Agreement
Exhibit F: Form of Purchaser Affiliate Guaranty Agreement
Exhibit G: Form of Intellectual Property Assignment Agreement
Exhibit H: Bowie Environmental Proposal
Exhibit I: Form of New Lease
FIRST AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
THIS FIRST AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this Agreement ), dated as of July 31, 2017 (the Amendment Date ), is by and among, EsCo Leasing, LLC, a Texas limited liability company ( Seller ), Ranger Energy Services, LLC, a Delaware limited liability company ( Purchaser ) and, solely for purposes of Section 2.2 , Section 4.2 , Section 4.8 , Section 4.10 and Article VIII hereof, Tim Hall, an individual residing in Bowie, Texas ( Hall ). This Agreement amends, restates, and supersedes in its entirety, that certain Asset Purchase Agreement dated May 30, 2017 ( the date hereof or the date of the execution and delivery of this Agreement (or similar formulations)) by and among Seller, Ranger Holdings, Purchaser and Hall (the Original Agreement ). Seller, Ranger Holdings, Purchaser and, solely for purposes of Article VIII , Hall, are sometimes referred to in this Agreement collectively as the Parties and each individually as a Party .
WHEREAS, Purchaser is currently a wholly-owned subsidiary of Ranger Energy Holdings, LLC, a Delaware limited liability company ( Ranger Holdings );
WHEREAS, Purchaser is currently pursuing an initial public offering (the IPO ) of Class A Common Stock, $0.01 par value per share ( Class A Stock ), of Ranger Energy Services, Inc., a Delaware corporation ( Ranger, Inc. ), that, through a reorganization of Purchaser, its subsidiaries and certain other entities that will be consummated as part of the IPO (the Reorganization ), will become a direct or indirect equity owner of Purchaser;
WHEREAS, Seller is engaged in the businesses of providing well servicing, well workover, swabbing, pipe handling & testing and/or well completion and production services for the oil and gas industry and equipment rentals related thereto (collectively, the Business );
WHEREAS, THI Water Well, LLC, a Texas limited liability company and Affiliate of Seller ( THI ), is engaged in the business of providing water well drilling services (the Water Well Business );
WHEREAS, Hall owns, directly or indirectly, 100% of the equity interests of Seller; and
WHEREAS, the Parties desire for Purchaser to purchase and accept the Purchased Assets and assume the Assumed Liabilities from Seller in consideration of the Transaction Consideration (as defined herein), on and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, representations, and warranties made in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND ASSIGNMENT AND ASSUMPTION OF LIABILITIES
Section 1.1 Purchase and Sale .
(a) Purchase and Sale of Assets . Subject to the terms and conditions of this Agreement, at the closing of the transactions contemplated hereby (the Closing ), Seller shall sell, assign, transfer, convey, and deliver to Purchaser, and Purchaser shall purchase and accept from Seller, all right, title, and interest of Seller in and to all of its assets, properties, and rights of whatever kind, tangible and intangible, personal, real, and mixed, whether accrued, contingent, or otherwise, wherever located, in
each case related to or used in the Business, other than the Excluded Assets (collectively, the Purchased Assets ), including the following Purchased Assets:
(i) all rights with respect to equipment, revenue-earning property, machinery, tooling, parts, supplies, Systems, furniture, furnishings, signage, vehicles, and other tangible personal property, including, but not limited to those assets listed in Section 1.1(a)(i) of the Disclosure Schedule;
(ii) all rights under or related to any Contract to which Seller is a party (including all Contracts entered into following the date hereof pursuant to Section 4.13(b) ), except those Contracts set forth in Section 1.1(b)(i) of the Disclosure Schedule (all Contracts other than such scheduled Contracts, the Included Contracts ); provided that in the event any Contract of Seller that is required to be disclosed in Section 2.12(a) of the Disclosure Schedule is not so disclosed, Purchaser may at its sole discretion elect to exclude such Contract from the Purchased Assets in accordance with Section 1.1(b)(iv) ;
(iii) all rights under or related to non-competition, non-solicitation, and restrictive covenant agreements and arrangements, and all invention assignments and work made for hire provisions regarding Seller arising by operation of Law or Contract with respect to the relationship between Seller and any of Sellers current or former employees or independent contractors, subject to Section 4.15 ;
(iv) all payment rights and other intangible assets, including those arising from customer relationships that are not embodied in complete written Contracts;
(v) all of Sellers customer and vendor lists, all of Sellers files and documents (including credit information) relating to customers and vendors, and all of Sellers equipment and revenue-earning property maintenance data, accounting records, Inventory records, sales and sales promotional data, advertising materials, cost and pricing information, business plans, reference catalogs, and any other such data and records, however stored; provided, however, that Seller shall be entitled to retain copies of any such materials which are necessary for, and may use such copies solely in connection with, their Tax, accounting or legal purposes and subject to the terms of this Agreement;
(vi) all rights relating to Intellectual Property, including with respect to the names EsCo, Energy Services and Energy Services Company of Bowie (collectively, Intellectual Property Rights ), subject to Sellers thirty (30) day grace period to change names provided in Section 4.6 ;
(vii) all refunds, credits, prepaid expenses, deferred charges, advance payments, security deposits, earnest deposits, prepaid items, but excluding any cash, certificates of deposit or other cash equivalents securing any Indebtedness to be repaid at Closing or in respect of any Real Property Lease which will be terminated at or prior to Closing;
(viii) all telephone numbers, facsimile numbers, websites, email addresses, domain names, and any similar items;
(ix) all Inventory;
(x) all notes receivable, accounts receivable, and other receivables (in all cases, whether or not billed), and all accrued penalties and interest thereon, and the benefit of any security therefor;
(xi) all Books and Records other than those expressly constituting Excluded Assets;
(xii) to the extent their transfer is permitted by applicable Law, all Permits, including all applications therefor;
(xiii) all insurance benefits and proceeds solely to the extent relating to the pre-Closing diminution in the value of any Purchased Asset which diminution is not reflected on the Financial Statements or reflected in Final Closing Net Working Capital;
(xiv) all Legal Proceedings, causes of action, choses in action, rights of recovery, rights under all warranties, representations, indemnities, and guarantees made by any third party in favor of Seller, other than the Legal Proceedings specified in Section 1.1(b)(vi) ;
(xv) all goodwill;
(xvi) all bank accounts of Seller to which customers directly send payments, which accounts are listed on Section 1.1(a)(xvi) of the Disclosure Schedule (but excluding any cash or cash equivalents therein which shall constitute Excluded Assets); and
(xvii) the Employee Benefit Plans listed on Section 1.1(a)(xvii) of the Disclosure Schedule.
At the Closing, the Purchased Assets shall be transferred or otherwise conveyed by Seller to Purchaser or such subsidiary of the Purchaser as the Purchaser designates, in each case free and clear of all Liens, other than Permitted Liens, pursuant to a Bill of Sale, Assignment and Assumption Agreement (the Bill of Sale ) in the form attached hereto as Exhibit B , or other appropriate instrument of transfer as directed by Purchaser.
(b) Excluded Assets . Seller shall retain its right, title and interest in and to solely the following assets (collectively, the Excluded Assets ):
(i) all Contracts and other assets set forth in Section 1.1(b)(i) of the Disclosure Schedule;
(ii) all cash and cash equivalents of Seller (including any certificates of deposit);
(iii) all bank accounts other than those described in Section 1.1(a)(xvi) ;
(iv) all prepaid Taxes and other Tax assets;
(v) Sellers leasehold or other rights to the Leased Real Properties, including any security deposits related thereto;
(vi) all Legal Proceedings, causes of action, choses in action, rights of recovery, rights under all warranties, representations, indemnities, and guarantees made by any
third party in favor of Seller, in each case, solely to the extent resulting in monetary recovery for any pre-Closing occurrence or omission which monetary recovery does not constitute a make whole payment for any diminution in value of any Purchased Asset which is not reflected in the Financial Statements;
(vii) in the event any Contract of Seller that is required to be disclosed in Section 2.12(a) of the Disclosure Schedule is not so disclosed, and is identified, Purchaser may at its sole discretion elect to exclude such Contract from the Purchased Assets, and such Contract shall thereupon be deemed an Excluded Asset;
(viii) all Books and Records prepared in connection with this Agreement or the Transactions, and original minute books, Governing Documents (subject to Section 4.14 ), corporate seals, stock ledgers and all of Sellers Tax Returns (and any work papers related thereto), taxpayer and other identification numbers, and rights to any refunds of Taxes related to any period, or portion thereof, ending on or prior to the Closing Date or paid on or prior to the Closing Date;
(ix) all assets sold or otherwise disposed of during the period from the date hereof until the Effective Time in accordance with the terms herewith;
(x) all Water Well Assets;
(xi) except as provided under Section 1.1(a)(xvii) , all Employee Benefit Plans and assets thereof, employee handbooks, employment agreements and all personnel records required by Law to be retained by Seller;
(xii) all insurance policies owned by or issued to Seller; provided , that to the extent that the right to recover under any such policy and benefits with respect thereto relate to the pre-Closing diminution in the value of any Purchased Asset which diminution is not reflected on the Financial Statements or otherwise reflected in the Final Closing Net Working Capital, such right to recover and benefits with respect thereto shall be Purchased Assets; and
(xiii) the rights of Seller under this Agreement and the other Transaction Documents.
Copies of all documents, agreements and other information related to Excluded Assets shall be provided prior to Closing to Purchaser.
(c) Assumption of Certain Liabilities . On and subject to the terms and conditions of this Agreement, as of the Closing, Purchaser shall assume and agree to pay and discharge when due solely the following Liabilities of Seller, to the extent that they are not Excluded Liabilities (collectively, the Assumed Liabilities ):
(i) Liabilities of Seller under Included Contracts that arise and accrue after the Closing, relate to periods following the Closing, and are to be observed, paid, discharged, and performed following the Closing;
(ii) all Liabilities or obligations arising out of any Legal Proceeding related to or arising out of the Business or the Purchased Assets, in each case, solely to the extent arising out of or in connection with acts, omissions or circumstances occurring at or after the Closing
(but in no event arising out of or in connection with acts, omissions or circumstances occurring prior to the Closing);
(iii) Liabilities of Seller to the extent that such Liabilities or a reserve therefore are included in the calculation of Final Closing Net Working Capital;
(iv) Sellers liability for the Retention Payments, pursuant to agreements entered into pursuant to Section 4.13(b) (which, for purposes of clarity, shall not be treated as a current liability in Closing Working Capital; it being the intent of the Parties that such expense be borne by Purchaser);
(v) those Liabilities with respect to each Transferred Employee that are expressly assumed by Purchaser pursuant to Section 4.13 , and all Liabilities with respect to such Transferred Employees arising after the Closing (but not any Liabilities described in Section 1.1(d)(viii) ); and
(vi) all Liabilities solely to the extent relating to or arising out of the Purchased Assets or the Business arising out of or in connection with any act, omission or circumstance occurring at any time after the Closing (but in no event arising out of or in connection with any act, omission or circumstance occurring prior to the Closing).
For the avoidance of doubt, to the extent the existence of any of the Liabilities set forth above constitutes any actual or alleged Breach of any representation, warranty or covenant contained in the Transaction Documents or any other agreement or document delivered in connection therewith, Purchasers obligations under this Section 1.1(c) shall continue in full force and effect; provided, however, that nothing herein shall limit any right of the Purchaser Indemnitees to (i) any right to indemnification therefore set forth in this Agreement or any other Transaction Document or (ii) pursue any other remedy available to any of the Purchaser Indemnitees pursuant hereto or any other Transaction Document.
(d) Excluded Liabilities . Notwithstanding anything to the contrary in this Agreement, Purchaser shall not be responsible for and shall not assume any Liabilities of Seller or any Affiliate of Seller that are not Assumed Liabilities (such excluded Liabilities, collectively, the Excluded Liabilities ). In furtherance of, and not in limitation of, the foregoing, and notwithstanding anything to the contrary in this Agreement, Purchaser shall not be responsible for any of the following (each of which shall also constitute Excluded Liabilities):
(i) any Liability under or with respect to Indebtedness;
(ii) any Liability relating to any Excluded Asset, including any liability relating to Sellers airplane and lease of an airplane hangar, or relating to any Contract which is not an Included Contract and any Liability relating to any Breach of any Contract at or prior to Closing, or any indemnity or infringement claim related thereto;
(iii) (A) any Liability imposed by or in connection with any Law, Order, Legal Proceeding or Permit, and incurred in connection with conditions existing, events or acts occurring or omissions of acts arising prior to the Closing, in each case, only to the extent that such Liability accrues through the Closing, or (B) any Breach of any Bulk Sales Law (other than in connection with the transactions contemplated hereby and by the other Transaction Documents);
(iv) all product Liability and similar claims for damages or injury to person or property, claims of infringement of Intellectual Property Rights, and other claims arising out of any injury or damage to property as a result of the performance of any work or services or the provision, manufacture, or sale of any goods by Seller prior to the Closing;
(v) any Liability for warranty claims arising out of the performance of any work or services or the provision, manufacture, or sale of any goods by Seller prior to the Closing (unless included in the Final Closing Net Working Capital, and in such event, then only in the specific dollar amount set forth therein) or relating to Surety Bonds;
(vi) any Liability for any Taxes (A) of Seller or any Affiliate of Seller for any period or (B) that relate to the Purchased Assets, the Business or any Transferred Employee for any Pre-Closing Period (regardless of when assessed), other than, in each case to the extent included in the Final Closing Net Working Capital;
(vii) to the extent permitted by Law, all Liabilities relating to, arising from, or in any way connected with any Person who is or was an employee of Seller, including any Person whose employment with the Business was terminated prior to the Closing and their dependents, including Liability under any Law pertaining to employment and employment practices (other than, in each case to the extent included in the Final Closing Net Working Capital, and in such event, only in an amount included in such final calculation with respect to the applicable Liabilities));
(viii) except to the extent set forth in Section 1.1(c)(iv) , any Liability for deferred compensation, accrued bonuses, transaction or other bonuses, or termination/severance obligations (including such obligations that may arise in connection with the transactions contemplated hereby, including after Closing), including Sellers liability for any Change of Control Payments which do not constitute Retention Payments;
(ix) any Liability relating to, arising from, or in any way connected with the current or former incentive equity or option arrangements, employment agreements or any Employee Benefit Plans of Seller, including but not limited to, minimum funding liability, termination liability for single-employer pension plans, withdrawal liability for multiemployer pension plans, PBGC insurance premium liability, and Liability for Breach of fiduciary duties;
(x) any Liability relating to, arising from, or in any way connected with any collective bargaining agreement and/or agreement executed between any multiemployer or joint employer/union health, welfare and/or pension fund and Seller;
(xi) any Seller Transaction Expenses or Change of Control Payments or any Liability of Seller under this Agreement or in connection herewith (except to the extent that Purchaser failed to pay such amounts pursuant to Section 1.5 of this Agreement);
(xii) any Liability to any Affiliate of Seller, or any Person claiming to own or have owned any equity security of or interest in Seller;
(xiii) any Liability or obligation of Seller (including contractual indemnity obligations, except to the extent first arising following the Closing out of any Included Contract), relating to any Hazardous Materials or arising out of any actual or alleged Breach by Seller of any Environmental Requirements or Environmental Permits, in each case arising from any action, omission, event, circumstance, or condition occurring or existing prior to the Closing, including
all Liabilities and obligations of Seller for any bodily injury (including illness, disability, and death, regardless of when any such bodily injury manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction, and deprivation of the use of real property), contribution, strict liability or other damage to any Person arising from such Breach or from any Hazardous Materials that were, prior to the Closing (A) placed by Seller, its Affiliates or on Sellers or its Affiliates behalf on or at any real property owned, leased, occupied, used, or operated by Seller or at which Seller has provided any services (or present on any other property, if such Hazardous Material emanated or allegedly emanated from or originated or allegedly originated from any such real property at the direction or with the permission of Seller or its Affiliates), (B) disposed or released or allegedly disposed or released by any Person on or at the Leased Real Property or related to the Business, or (C) disposed off-site by, for, on behalf of, or arranged by Seller or the Business (collectively, the Pre-Closing Environmental Liabilities );
(xiv) any obligation of Seller to indemnify any Person by reason of the fact that such Person was a director, officer, employee, or agent of Seller or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity;
(xv) any Liabilities related to the Reimbursable CapEx Expenditure;
(xvi) all Liabilities relating to, arising from or in any way connected with any Excluded Real Property; and
(xvii) other than Assumed Liabilities, all Liabilities associated with the ownership, control or operation of Seller or the Business prior to the Effective Time.
For the avoidance of doubt, any Liability included as a liability in the Final Closing Statement shall be an Assumed Liability.
(e) Required Consents . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute an agreement to assign or transfer any Purchased Asset or interest therein as to which: (i) an assignment or transfer thereof or an attempt to make such an assignment or transfer without a Consent (a Required Consent ) would constitute a Breach of applicable Law, would be ineffective or would adversely affect the rights or obligations thereunder to be assigned or transferred to or for the account of Purchaser; and (ii) such Required Consent shall not have been obtained with respect to such Purchased Asset or interest therein prior to the Closing. Any transfer or assignment to Purchaser by Seller of any such Purchased Asset or interest therein (a Delayed Asset ), and any assumption by Purchaser of any corresponding Assumed Liability (a Delayed Liability ), shall be subject to all such Required Consents in respect of such Delayed Asset being obtained. If there are any Delayed Assets, Seller shall use its commercially reasonable efforts to obtain all Required Consents in respect thereof as promptly as practicable following the Closing, all without any cost or detriment to Seller, Purchaser or any of their respective Affiliates, and Purchaser shall reasonably cooperate with Seller in connection therewith. Until all Required Consents with respect to each Delayed Asset have been obtained (but in any event, for no longer than six (6) months following the Closing), to the extent permitted by applicable Law and not prohibited by contractual terms applicable to the Delayed Asset: (i) Seller shall hold the Delayed Asset on behalf of Purchaser; (ii) Seller shall cooperate with Purchaser for no additional consideration in any lawful arrangement (including subleasing or subcontracting, or performance thereunder by Seller as Purchasers agent) requested by Purchaser to provide Purchaser with all of the benefits of or under any such Delayed Asset; (iii) Seller shall otherwise enforce and perform for the account of Purchaser and as directed by Purchaser any other rights and obligations of Seller arising from such Delayed Asset (and not waive, alter or amend any of same without the consent of Purchaser); and (iv) Purchaser shall assume no Delayed Liability with respect to the Delayed Asset. Seller designates
Purchaser as its irrevocable, true, and lawful attorney-in-fact and grants Purchaser an irrevocable power of attorney to take all actions determined by Purchaser to be in furtherance of the foregoing, such designation to be coupled with an interest. Seller shall maintain its corporate or limited liability company existence until all of its obligations pursuant to this Section 1.1(e) are performed in full, and all Delayed Assets are transferred and assigned hereunder. At such time and on each occasion after the Closing as all Required Consents with respect to a Delayed Asset have been obtained, such Delayed Asset shall automatically be transferred and assigned by the applicable Seller to Purchaser for no additional consideration without any further act on the part of any Party. No Delayed Liability shall be assumed by Purchaser until the corresponding Delayed Asset has been transferred or assigned to Purchaser, as applicable, in accordance with the terms and conditions of this Section 1.1(e) . For purposes of clarity, it is acknowledged and agreed that Sellers obligation under this Section 1.1(e) shall expire at the six (6) month anniversary of the Closing, following which time Seller shall have no further obligations hereunder with respect to any Delayed Asset.
Section 1.2 Exclusivity Deposit . As consideration to induce Seller to enter into this Agreement, within one (1) Business Day following the execution and delivery of this Agreement by all Parties (and as a precondition to the effectiveness of this Agreement) Purchaser shall pay Seller $2,500,000 (the Deposit ) by wire transfer of immediately available funds to an account previously designated by Seller. If the Closing occurs, the Deposit shall be credited, on a dollar-for-dollar basis, against the Transaction Consideration payable pursuant to Section 1.3(a). Until the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with Section 7.1 , Seller shall (i) maintain the Deposit in a separate bank account (the Deposit Account ), (ii) not maintain or hold in the Deposit Account any assets other than the Deposit, (iii) provide Purchaser with the account balance of the Deposit Account not less than once every two (2) weeks and (iv) promptly provide any information reasonably requested by Purchaser related to the Deposit or the Deposit Account.
Section 1.3 Transaction Consideration .
(a) Consideration . The aggregate consideration (collectively, the Transaction Consideration ) for the Purchased Assets acquired by Purchaser hereunder, in addition to the assumption of the Assumed Liabilities, shall consist of:
(i) either (A) $47,730,000 in cash plus the Equity Interest, plus a secured promissory note in the original principal amount of $1,250,000 in the form attached hereto as Exhibit C (the Seller Note ) or (B) in the event (and only in the event) that Purchaser exercises the Cash Purchase Option, $51,480,000 in cash (the applicable amount of cash specified in clause (A) or (B), as applicable, the Base Closing Cash Consideration ); plus
(ii) a secured promissory note in the original principal amount of $5,750,000 in the form attached hereto as Exhibit D (the Indemnity Note ); minus
(iii) the amount, if any, by which the Final Closing Net Working Capital is less than the Target Net Working Capital; plus ,
(iv) an amount in cash equal to the Reimbursable CapEx Expenditure; plus ,
(v) an amount equal to out-of-pocket fees associated with the audit of Sellers financial statements for the nine (9) months ended January 31, 2017 (including any out-
of-pocket fees payable to Sellers historic independent auditors in connection with their cooperation with the audit undertaken by PwC) (the 9-Month Audit Expense ).
(b) Equity Interest . The Equity Interest shall mean a number of shares of Class A Stock equal to the following formula: (1) 5,000,000, divided by (2) (A) in the event that the Closing occurs within twenty (20) days following the first day of trading (the Trading Date ) of the Class A Stock on the New York Stock Exchange or such other national securities exchange on which the Class A Stock is admitted for trading (the Stock Exchange ), the price per share to the public of one share of Class A Stock as reflected on the cover page of the prospectus filed by Ranger, Inc. pursuant to Rule 424(b) of the Securities Act of 1933 (the Securities Act ) with respect to the IPO, or (B) in the event that the Closing occurs after the twentieth (20 th ) day after the Trading Date, the average price per share of the Class A Stock for the ten (10) trading days immediately preceding the Closing Date, as reflected on the Stock Exchange.
(c) Payment of Transaction Consideration . A portion of the Transaction Consideration shall be used to discharge and pay in full: (i) all Indebtedness (if any); (ii) the Seller Transaction Expenses; and (iii) the Change of Control Payments and related Transaction Payroll Taxes, in each case as provided in Section 1.5(b) .
Section 1.4 Closing Date . The Closing shall consummated remotely by electronic exchange of documents and wire transfer of funds on the third Business Day following the satisfaction or waiver of the conditions set forth in Section 5.1 and Section 5.2 of this Agreement (other than those conditions that by their terms cannot be satisfied until the Closing), or at such other place as the Parties shall mutually agree in writing. The Closing shall be effective as of 12:01 a.m. on the day of the Closing (the Effective Time and the day on which the Closing occurs, the Closing Date ).
Section 1.5 Closing Date Cash Payments and Issuances .
(a) At least three (3) Business Days, but no more than seven (7) Business Days, prior to the Closing Date, Seller shall prepare and deliver to Purchaser a good faith estimate of the Net Working Capital immediately prior to the Closing (the Estimated Net Working Capital ), which statement shall quantify in reasonable detail the estimates of each item included in such calculation, in each case calculated in accordance with the terms of this Agreement. The Parties shall cooperate with one another in connection with the preparation and evaluation of such estimates. Seller shall promptly provide Purchaser access to all personnel, relevant documents, and information reasonably requested by Purchaser in connection with its review of the Estimated Net Working Capital (including all components thereof). Prior to the Closing Date, Purchaser shall notify Seller of any objections that it has at such time to the Estimated Net Working Capital (including any component thereof).
(b) On the Closing Date, Purchaser shall:
(i) pay to Seller an amount in cash, payable by wire transfer of immediately available funds to the account(s) specified in writing by Seller no later than three (3) Business Days prior to Closing, which shall be equal to the following (collectively, the Closing Cash Consideration ):
(A) the Base Closing Cash Consideration less the Deposit (which Deposit shall be retained by Seller and credited towards the Base Closing Cash Consideration), minus
(B) the amount, if any, by which the Estimated Net Working Capital is less than the Target Net Working Capital, plus
(C) the Reimbursable CapEx Expenditure and 9-Month Audit Expense; minus
(D) the amount of the Seller Transaction Expenses; minus
(E) the sum of (x) the Change of Control Payments which are payable prior to or contemporaneously with the Closing and (y) any Transaction Payroll Taxes, to the extent not previously paid by Seller; minus
(F) the aggregate amount of all Indebtedness;
(ii) pay the amount of all Indebtedness as provided in the Payoff Letters;
(iii) pay the Seller Transaction Expenses, Change of Control Payments and Transaction Payroll Taxes pursuant to written instructions of Seller, provided that any Change of Control Payments or other amounts that constitute wages payable by Seller shall be remitted to the appropriate bank account of Seller for distribution through the payroll of Seller (net of any applicable withholdings for income and employment Taxes); and
(iv) unless Purchaser has exercised the Cash Purchase Option, cause the Equity Interests to be issued to Seller.
Section 1.6 Net Working Capital Adjustment .
(a) Within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the Closing Statement ) calculating the Net Working Capital as of immediately prior to the Effective Time (the Closing Net Working Capital ) as well as the adjustments to Transaction Consideration which shall be made pursuant to this Section 1.6 , together with all underlying documentation supporting such calculations. Seller shall reasonably cooperate with Purchaser in its preparation of the Closing Statement.
(b) During the sixty (60) days immediately following delivery of the Closing Statement, Seller and its professional representatives shall be entitled to review the Closing Statement and any working papers, financial records, trial balances and similar materials relating to the Closing Statement prepared by the Purchaser or by Persons retained by it, and Purchaser shall provide Seller with reasonable access to work papers of Purchasers accountants relating thereto, and Purchaser shall make reasonably available the individuals in its and its Affiliates employ as well as representatives of its accountants responsible for and knowledgeable about the information used in, and the preparation of the Closing Statement, to respond to the reasonable inquiries of, or requests for information by Seller, during normal business hours. If Seller disputes any amounts as shown on the Closing Statement, Seller shall deliver to Purchaser within thirty (30) days after receipt of the Closing Statement a notice (the Dispute Notice ) setting forth Sellers calculation of Closing Net Working Capital and describing in reasonable detail the basis (including for each component, the difference and the amount thereof and reasons therefor) for the determination of such different amount. If Seller does not deliver a Dispute Notice to Purchaser within such thirty (30) day period, the Closing Statement (and the determination of Closing Net
Working Capital therein) prepared and delivered by Purchaser shall be deemed to be the Final Closing Statement and the Final Closing Net Working Capital. Any such disputes shall be limited to assertions that the Closing Statement (and the determination of Closing Net Working Capital therein) was not calculated in accordance with the terms of this Section 1.6 . Any component not disputed in the Dispute Notice shall be treated as final and binding. Purchaser and Seller shall use commercially reasonable efforts to resolve such differences within a period of thirty (30) days after Seller has given the Dispute Notice. If Purchaser and Seller resolve such differences, the Closing Statement and Closing Net Working Capital agreed to by Purchaser and Seller shall be deemed to be the Final Closing Statement and Final Closing Net Working Capital. If Purchaser and Seller do not reach a final resolution on the Closing Statement and Closing Net Working Capital within thirty (30) days after Seller has delivered the Dispute Notice, unless Purchaser and Seller mutually agree to continue their efforts to resolve such differences, the Neutral Accountant shall resolve such differences with respect to the adjustment under this Section 1.6 pursuant to an engagement agreement among Purchaser, Seller, and the Neutral Accountant (which Purchaser and Seller agree to execute promptly), in the manner provided below. The Neutral Accountant shall have full authority to decide all of the issues or matters relating to the adjustments under this Section 1.6 (it being understood that in making such determination, the Neutral Accountant shall be functioning as an expert and not as an arbitrator), but shall only decide the specific components under dispute in the Dispute Notice (the Disputed Items ), strictly in accordance with the terms of this Agreement. Purchaser and Seller shall each be entitled to make a presentation to the Neutral Accountant at which the other shall be entitled to be present and participate, pursuant to procedures to be agreed to among Purchaser, Seller, and the Neutral Accountant (or, if they cannot agree on such procedures, pursuant to procedures determined by the Neutral Accountant), regarding such Partys determination of the amounts to be set forth on the Closing Statement (and the determination of Closing Net Working Capital therein); and Purchaser and Seller shall use commercially reasonable efforts to cause the Neutral Accountant to resolve the differences between them and determine the amounts to be set forth on the Closing Statement (and the determination of Closing Net Working Capital therein) within twenty (20) days after the engagement of the Neutral Accountant. Each of Purchaser and Seller, as a condition precedent to making a presentation to the Neutral Accountant and having the Neutral Accountant review its calculations, shall provide reasonable advance access to the other Party with respect to such materials and reasonably cooperate with the other Party in its review and analysis thereof. The Neutral Accountants determination shall be based solely on such presentations of Purchaser and Seller (i.e., not on independent review) and on the definitions and other terms included in this Agreement. The Closing Statement (and determination of Closing Net Working Capital therein) determined by the Neutral Accountant shall be deemed to be the Final Closing Statement and Final Closing Net Working Capital. Such determination by the Neutral Accountant shall be conclusive and binding upon the Parties, absent fraud or manifest error. The fees, costs and expenses of the Neutral Accountant shall be allocated to and borne by Purchaser and Seller based on the inverse of the percentage that the Neutral Accountants determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Neutral Accountant. Nothing in this Section 1.6(b) shall be construed to authorize or permit the Neutral Accountant to: (i) determine any questions or matters whatsoever under or in connection with this Agreement, except for the resolution of differences between Purchaser and Seller regarding the determination of the Final Closing Statement (and Final Closing Net Working Capital calculation therein), it being expressly acknowledged and agreed that the Neutral Accountant shall have authority to resolve only matters of an accounting nature and shall not have authority to resolve any disputes of a legal nature (with any dispute as to whether a matter is of an accounting or legal nature to be resolved by the Neutral Accountant); or (ii) resolve any such differences by making an adjustment to any component of the Closing Statement and (Closing Net Working Capital calculation therein) that is outside of the range defined by amounts as finally proposed by Purchaser and Seller.
(c) Promptly, but no later than ten (10) Business Days after the final determination thereof, if the Final Closing Net Working Capital set forth in the Final Closing Statement
is less than the Target Net Working Capital (taking into consideration any adjustments to the Closing Cash Consideration by reason of the Estimated Net Working Capital calculation as set forth in Section 1.5(b) ), Seller shall pay such shortfall amount to Purchaser. To the extent the amount paid by Seller is less than such shortfall, Purchaser may, in Purchasers sole discretion, offset such amount against the amounts payable under the Indemnity Note. Any payments made pursuant to this Section 1.6 shall be treated as an adjustment to the Transaction Consideration by the Parties. The Parties acknowledge that the limitations on indemnification set forth in Article VI are inapplicable to the adjustments to be made under this Section 1.6 .
Section 1.7 Allocation of Transaction Consideration . Within sixty (60) days following the final determination of the Final Closing Net Working Capital, Purchaser shall provide to Seller a schedule allocating the Transaction Consideration plus Assumed Liabilities that are liabilities for Tax purposes among the Purchased Assets (the Allocation Statement ). The Allocation Statement shall be prepared in accordance with the applicable provisions of the Code (including without limitation, to the extent applicable, Section 1060 of the Code) (collectively, the Allocation Principles ). Within fifteen (15) days after the receipt of such Allocation Statement, Seller will propose to Purchaser in writing any reasonable changes to such Allocation Statement together with reasonable documentation supporting such changes (and in the event that no such changes are proposed in writing to Purchaser within such time period, Seller will be deemed to have agreed to, and accepted, the Allocation Statement). Purchaser and Seller will attempt in good faith to resolve any differences with respect to the Allocation Statement, in accordance with the Allocation Principles, within fifteen (15) days after Purchasers receipt of a timely written notice of objection from Seller. If Purchaser and Seller are unable to resolve such differences within such time period, then any remaining disputed matters will be submitted to the Neutral Accountant for resolution, in accordance with the Allocation Principles. Promptly, but not later than fifteen (15) days after such matters are submitted to it for resolution hereunder, the Neutral Accountant will determine those matters in dispute and will render a written report as to the disputed matters and the resulting Allocation Statement, which report shall, absent manifest error, be conclusive and binding upon Purchaser and Seller. The fees and expenses of the Neutral Accountant in respect of such report shall be paid one-half by Purchaser and one- half by Seller. Purchaser and Seller shall each file or cause to be filed its Tax Returns for its taxable year that includes the Closing Date (including, to the extent applicable, IRS Form 8594) in a manner consistent with the allocation set forth on the Allocation Statement as so finalized, and (except as set forth below relating to a revised Allocation Statement) shall not take any position on any Tax Return or in the course of any Tax audit, review, or litigation inconsistent with the allocation provided in the Allocation Statement. In the event that any adjustment is required to be made to the Allocation Statement as a result of any adjustment to the Transaction Consideration pursuant to Article VI of this Agreement or otherwise, Purchaser shall prepare or cause to be prepared, and shall provide to Seller, a revised Allocation Statement reflecting such adjustment. Such revised Allocation Statement shall be subject to review and resolution of timely raised disputes in the same manner as the initial Allocation Statement. Each of Purchaser and Seller shall file or cause to be filed its Tax Returns (including, to the extent applicable, a revised IRS Form 8594) reflecting such adjustments as so finalized for its taxable year that includes the event or events giving rise to such adjustment, and (except as required by future revised Allocation Statement) shall not take any position on any Tax Return or in the course of any Tax audit, review, or litigation inconsistent with the allocation provided in the revised Allocation Statement.
Section 1.8 Withholding . Purchaser shall be entitled to deduct and withhold from any amounts payable under this Agreement amounts that Purchaser is required to deduct and withhold under any provision of any applicable Tax Law. All amounts withheld shall be timely remitted by Purchaser to
the appropriate Governmental Body and shall be treated for all purposes of this Agreement as having been paid by Purchaser to the Person to which such amount would otherwise have been paid. Purchaser shall notify Seller as soon as practical, and in any event not later than five (5) Business Days prior to the date such withholding or deduction is anticipated to occur, if it determines that it is required to deduct or withhold any amounts in accordance with this Section 1.7, and shall provide with such notice an explanation of the reason for such required withholding or deduction, and shall consider in good faith any objections of Seller to such deduction or withholding.
Section 1.9 Stale Accounts Receivable .
(a) Following the Closing, Purchaser shall use commercially reasonable efforts to collect all accounts receivable included in the Purchased Assets which are not included as current assets in the calculation of Closing Net Working Capital ( Stale A/R ); provided, that in no event shall Purchaser be obligated to initiate a Legal Proceeding in connection with attempting to collect any Stale A/R. The Parties acknowledge and agree that, as between Seller and Purchaser, Seller shall be entitled to all revenue attributable to the Stale A/R, minus any reasonable and documented out-of-pocket costs and expenses incurred by Purchaser in connection with the collection thereof. Accordingly, to the extent that following the Closing Purchaser receives any revenue attributable to the Stale A/R, it shall promptly remit the same (net of any reasonable and documented out-of-pocket costs and expenses incurred by Purchaser in connection with the collection thereof) to Seller and such remittance shall constitute an adjustment to the Transaction Consideration. Seller and Purchaser shall cooperate with one another in good faith in determining and making payment of any post-Closing adjustments or reconciliations that may be necessary to fully and properly effectuate the provisions of this Section 1.9 .
(b) To the extent that, at one-hundred and twenty (120) days following the Closing any Stale A/R is still outstanding, Purchaser shall, at Purchasers request, assign any such Stale A/R back to Seller without any additional consideration.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser (and Hall severally represents, solely with respect to Section 2.2 as it applies to Hall) as of the date hereof (and, with respect to Section 2.1 , Section 2.2 and Section 2.4 as of the Amendment Date) as follows:
Section 2.1 Formation and Related Matters .
(a) Seller (i) is a limited liability company duly formed, validly existing, and in good standing under the Laws of the State of Texas and has all requisite entity power and authority to own, lease, and operate its properties and to carry on its business; and (ii) is duly qualified or authorized to do business as a foreign limited liability company and is in good standing under the Laws of each jurisdiction in which it leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, each of which is set forth in Section 2.1(a) of the Disclosure Schedule.
(b) Seller has delivered to Purchaser true, correct, and complete copies of the Governing Documents of Seller, as amended to date and as presently in effect.
(c) Other than as set forth in Section 2.1(c) of the Disclosure Schedule, Seller does not own or hold any equity securities or interests in any other entity.
(d) Hall owns one hundred percent (100%) of the equity securities or other interests in Seller (or rights to acquire equity securities or other interests).
Section 2.2 Authorization and Enforceability . Seller has all requisite power and authority, and, with respect to Hall, the requisite legal capacity, to execute and deliver this Agreement and each other Transaction Document to which it is or will be a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by Seller and Hall of this Agreement and each of the other Transaction Documents to which it is or will be a party have been duly authorized by all necessary action on the part of Seller and Hall. This Agreement has been, and the other Transaction Documents to be executed and delivered by Seller and Hall will at Closing be, duly and validly executed and delivered. This Agreement constitutes, and the other Transaction Documents will constitute when executed and delivered, legal, valid, and binding obligations of Seller and Hall, enforceable against each of them in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar Laws affecting creditors rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity) (the Remedies Exceptions ).
Section 2.3 Books and Records . The Books and Records, all of which have been provided to Purchaser, are true, correct, and complete in all material respects, represent actual, bona fide transactions.
Section 2.4 Conflicts; Consents of Third Parties . Except as set forth in Section 2.4 of the Disclosure Schedule, the execution and delivery of this Agreement and the other Transaction Documents to which Seller is a party, the consummation of the transactions contemplated hereby or thereby, and compliance by Seller with the provisions hereof or thereof does not and will not: (a) Breach any provision of the Governing Documents of Seller; (b) Breach in any material respect any Included Contract; (c) Breach in any material respect any Law or any Order by which Seller or any of the Purchased Assets is bound, or give any Governmental Body or any other Person the right to obtain any relief under, or revoke or otherwise modify any rights held under, any such Law or Order; or (d) result in the creation of any Lien other than Permitted Liens upon the properties or assets of Seller, including the Purchased Assets. Except as set forth in Section 2.4 of the Disclosure Schedule, no Consent, Order, waiver, declaration or filing with, or notification to any Person, including any Governmental Body, is required on the part of Seller in connection with the execution, delivery, and performance of this Agreement or the other Transaction Documents, or the compliance by any of them with any of the provisions hereof or thereof.
Section 2.5 Financial Statements .
(a) Included in Section 2.5(a) of the Disclosure Schedule are complete copies of: (i) the consolidated audited balance sheet of Seller and certain of its Affiliates as of April 30, 2016 and the related audited consolidated statements of operations and changes in members equity of Seller for the fiscal year then ended and (ii) the consolidated audited balance sheet of Seller and certain of its Affiliates as of January 31, 2017 (the Balance Sheet , and such date, the Balance Sheet Date ) and the related audited consolidated statements of operations and changes in members equity of Seller and certain of its Affiliates for the nine months then ended (the audited statements set forth in (i) and (ii), including the related notes and schedules thereto, the Financial Statements ). The Financial Statements have been prepared from the Books and Records in accordance with GAAP applied on a consistent basis throughout the periods indicated. The Financial Statements make full provision for all established, deferred or contingent liabilities to the extent required by GAAP and fairly present, in all material respects, the consolidated financial position and results of operations and cash flows of Seller as of the dates and for the periods reflected thereon.
(b) Set forth on Section 2.5(b) of the Disclosure Schedule is a complete list of all outstanding Indebtedness of Seller.
Section 2.6 No Undisclosed Liabilities . Seller has no Liabilities required to be disclosed on a balance sheet prepared in accordance with GAAP (or in the notes thereto) except: (a) to the extent specifically reflected and accrued for or specifically reserved against on the Balance Sheet; or in the notes thereto, (b) for current Liabilities incurred subsequent to the Balance Sheet Date in the Ordinary Course or under Included Contracts, (c) Seller Transaction Expenses, (d) liabilities disclosed in Section 2.6 of the Disclosure Schedule, and (e) Excluded Liabilities. Seller does not engage in or maintain any off-balance sheet arrangements (as defined in Item 303 of Regulation S-K of the Securities Act).
Section 2.7 Absence of Certain Developments . Except as set forth in Section 2.7 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below), since the Balance Sheet Date, Seller has conducted the Business in the Ordinary Course and:
(a) there has not been any Seller Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of Seller used in the Business of more than $200,000 for any single loss or $750,000 in the aggregate for any related losses, or any failure to maintain insurance policies unmodified and without interruption;
(c) there has not been any material change by Seller in accounting or Tax reporting principles, methods, or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material written Tax election made by or with respect to Seller; and
(d) Seller has not:
(i) made any declaration or payment of any distributions on or in respect of any equity securities or interests of Seller (other than distributions of cash and cash equivalents);
(ii) failed to maintain its assets used in the Business in materially the same condition as on the Balance Sheet Date (ordinary wear and tear excluded);
(iii) made any change in the rate, timing, vesting, or funding of compensation, commission, bonus, or other direct or indirect remuneration payable or paid, or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention, or other compensation, retirement, welfare, fringe or severance benefit, or vacation pay, to or in respect of any manager, officer, employee, distributor, or agent of Seller involved in the Business, other than increases in the Ordinary Course in the base wages or salaries of employees of Seller other than officers or managers or as required by any employment Contract;
(iv) hired or terminated employees or engaged or terminated independent contractors involved in the Business other than in the Ordinary Course;
(v) Breached or waived any Breach or any material right with respect to any Material Contract;
(vi) canceled, written off, or compromised any debt or claim or amended, canceled, terminated, relinquished, waived, or released any Contract or right, except in the Ordinary Course and which, in the aggregate, are not material to Seller;
(vii) modified its pricing and purchasing policies and levels in any material respect, or entered into, amended, renewed, terminated, or permitted to lapse any Contract or transaction with any of its Affiliates, or paid to or received from any Affiliate of Seller any amount other than in the Ordinary Course pursuant to arrangement described on Section 2.24 of the Disclosure Schedule;
(viii) entered into any prepaid transactions outside of the Ordinary Course or otherwise accelerated revenue recognition or the sales for periods prior to the Closing with respect to in the Business;
(ix) changed in any material respect its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or delay or deferral of the payment or collection thereof) or failed to maintain the level and quality of its Inventory, in each case with respect to the Business;
(x) failed to maintain its existence as a corporation or limited liability company, as applicable;
(xi) adopted any plan of merger, consolidation, reorganization, liquidation, or dissolution, or filed a petition in bankruptcy under any provisions of federal or state bankruptcy Law, or consented to the filing of any bankruptcy petition against it under any similar Law;
(xii) engaged in any transaction or provided any consideration relating to the release, modification, or diminution of any guarantee, Surety Bond, or other obligation of Seller or any Affiliate thereof with respect to in the Business;
(xiii) failed to pay any of its Liabilities within thirty (30) days of when due;
(xiv) entered into any compromise or settlement of any Legal Proceeding or any investigation by any Governmental Body;
(xv) failed: (A) to comply with all applicable Laws (including Environmental Permits) in any material respect; (B) to meet all Environmental Requirements in all material respects; or (C) to hold and maintain in good standing all material Permits (including Environmental Permits) necessary for the conduct of the Business and the ownership of its Purchased Assets;
(xvi) made any filings or registrations with any Governmental Body, except routine filings and registrations made in the Ordinary Course;
(xvii) adopted, amended, modified, or terminated any of its Employee Benefit Plans applicable to the Business;
(xviii) written up or down (or failed to write up or down) the value of any Purchased Assets, except in the Ordinary Course, in accordance with GAAP consistently applied;
(xix) introduced any material change with respect to the Business, including with respect to the products or services it sells, the areas in which such products or services are sold, its methods of manufacturing or distributing its products, the levels of Inventory, equipment, or revenue-earning property that it maintains, its marketing techniques, or its accounting methods; or
(xx) entered into any agreements or commitments to do or perform in the future any actions referred to in this Section 2.7 (or disclosed an intent to do so), or taken or omitted to take any action that would be required to be disclosed in any section of the Disclosure Schedule.
Section 2.8 Taxes .
(a) Seller has timely filed with the appropriate taxing authorities all income and other material Tax Returns that it has been required to file. All such Tax Returns are true, correct, and complete in all respects. All Taxes owed by Seller (whether or not shown on any Tax Return) have been timely paid. Seller is not the beneficiary of any extension of time within which to file any Tax Return. No written claim has ever been made by an authority with respect to Seller in a jurisdiction where Seller does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Liens on any of the assets of Seller that have arisen in connection with any failure (or alleged failure) to pay any Tax or file any Tax Return, other than Permitted Liens.
(b) Seller has withheld or collected, and timely paid to the appropriate taxing authority or other Governmental Body, (i) all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, member, or other third party, and (ii) all sales, use, excise and value added Taxes.
(c) Seller does not have in effect any current waiver or extension of any statute of limitations in respect of Taxes or any agreement to any extension of time with respect to the assessment, payment or collection of any Tax.
(d) The Purchased Assets do not include any stock or other ownership interests in any foreign or domestic corporations, partnerships, joint ventures, limited liability companies, business trusts, or other entities.
(e) None of the Assumed Liabilities and none of the Change of Control Payments represents a payment or obligation to make a payment that is not deductible under Section 280G of the Code or includes an obligation to indemnify or gross up the recipient of such payment for taxes imposed by Section 4999 of the Code.
(f) None of the properties or assets of Seller is property which, for Tax purposes, is required to be treated as owned by another Person. Seller is not an obligor on, and none of Sellers respective assets have been financed directly or indirectly by, any tax-exempt bonds. No property or assets of Seller is tax-exempt use property within the meaning of Section 168(h) of the Code.
(g) No deficiency or proposed adjustment which has not been settled or otherwise resolved for any amount of Taxes has been asserted or assessed by any taxing authority or other Governmental Body against Seller. There has not been an audit, examination, or written notice of potential examination of any Tax Returns filed by Seller for any taxable period ending on or after December 31, 2013.
(h) There is no examination, Legal Proceeding or audit in progress, pending, proposed or, to the Knowledge of Seller, threatened against or with respect to Seller regarding Taxes.
(i) True, correct and complete copies of all income and sales Tax Returns filed by or with respect to Seller for taxable periods ending on or after December 31, 2013 have been delivered to Purchaser.
(j) Seller has not participated in any reportable transaction as defined in Section 6707A(c)(1) of the Code or any listed transaction as defined in Section 6707A(c)(2) of the Code.
(k) Seller is not subject to Tax, nor does Seller have a permanent establishment, in any foreign country, as defined in any applicable Tax treaty or convention between the United States and such foreign country.
(l) Seller is not a foreign person within the meaning of Code Section 1445 and the Treasury Regulations promulgated thereunder.
(m) Seller is not subject to any material Tax holiday or Tax incentive or grant in any jurisdiction with respect to Taxes relating to the Business, the Purchased Assets, or Transferred Employees.
(n) Seller has never been a member of an Affiliated Group.
(o) Seller is not liable for Taxes of any other Person as a result of successor liability, transferee liability, joint and/or several liability (including pursuant to Treasury Regulation Section 1.1502-6 or any similar provision of state, local or non-U.S. Laws), contractual liability, or otherwise (other than pursuant to the terms of any contract or agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes).
(p) Seller does not have any request for a private letter ruling, any request for administrative relief, any request for technical advice, or any request for a change of any method of accounting pending with any Governmental Body that relates to the Taxes or Tax Returns of Seller.
(q) Seller is (and has been for its entire existence) classified as a partnership for all income Tax purposes, and no election has been made (or is pending) to change such treatment.
Section 2.9 Real Property .
(a) Seller does not own, and has not previously owned, nor does Seller hold any options or contractual obligations to purchase or acquire any interest in any real property.
(b) Section 2.9(b) of the Disclosure Schedule sets forth a true, correct, and complete list and description of all real property leased, subleased, or otherwise occupied by Seller with respect to the Business (the Leased Real Property ), which such description in Section 2.9(b) of the Disclosure Schedule shall include: (i) the address of each parcel of Leased Real Property; (ii) the use of each Leased Real Property; (iii) the nature and square footage of any improvements on each Leased Real Property; and (iv) a true, correct, and complete list of all leases, subleases, licenses or other occupancy agreements and any assignments, amendments, modifications, side letters, estoppels, consents and other agreements relating thereto (each, a Real Property Lease and collectively, the Real Property Leases ), including the names of the parties to each Real Property Lease, the date of each Real Property Lease, the term of each Real Property Lease (including the commencement date and expiration date and any renewal periods thereof), the rent due under each Real Property Lease, the amount of the security deposit required to be held under such Real Property Lease and the actual amount being held by the landlord thereunder, and any options or rights to purchase any of the Leased Real Property.
(c) Seller has provided Purchaser with true, correct, and complete copies of all inspection reports, environmental assessments, audits, information, data, reports, notices, Contracts,
agreements, and other documents requested by Purchaser from Seller relating to the Leased Real Property.
(d) All of the Real Property Leases are valid, binding and in full force and effect. Seller has not received any notice of any Breach of any of the Real Property Leases, and Seller and, to Sellers Knowledge, each other party thereto, is in compliance with all obligations of such party thereunder. Seller is currently in possession of the Leased Real Property, and Seller has not subleased, assigned, or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof. Sellers possession, occupancy, and quiet enjoyment of Leased Real Property under each Real Property Lease to which it is a party has not been disturbed and there are no disputes with respect to any Real Property Lease. Seller has not collaterally assigned or granted any Lien in any Real Property Lease or any interest therein (other than Permitted Liens). Seller has delivered to Purchaser true, correct, and complete copies of the Real Property Leases. Seller has not given or received any notice of termination, cancellation, adverse modification, or non-renewal with respect to any Real Property Lease.
(e) Seller has not received any notice of Breach or alleged Breach of any applicable building, zoning, subdivision, health and safety and other land use Laws, including the Americans with Disabilities Act of 1990, as amended, and all insurance requirements affecting the Leased Real Property. With respect to the Leased Real Property, there is no pending or, to the Knowledge of Seller, threatened zoning application or proceeding or condemnation, eminent domain or taking proceeding.
(f) The Leased Real Property constitutes all interests in real property currently used or currently held for use in connection with the Business or which are necessary for the continued operation of the Business as the Business is currently conducted.
(g) Except as otherwise disclosed in Section 2.9(g) of the Disclosure Schedule, all improvements located on the Leased Real Property and used by Seller (including all water, sewer, gas, electrical, and HVAC systems servicing the same): (i) are suitable for the purposes for with they are currently or anticipated to be used and the Business without, to the Knowledge of Seller, immediate need for repair; and (iii) consist of sufficient land, parking areas, sidewalks, driveways and other improvements to permit the use of such facilities in the manner and for the purposes to which they are presently devoted. Seller has previously provided Purchaser true, correct, and complete copies of all engineering reports, inspection reports, maintenance plans and other documents relating to the condition of any Leased Real Property which are in Sellers possession.
Section 2.10 Tangible Personal Property; Title; Sufficiency of Assets .
(a) Section 2.10(a) of the Disclosure Schedule lists all leases of personal property ( Personal Property Leases ) relating to the Business or the Purchased Assets. Seller has delivered to Purchaser true, correct, and complete copies of the Personal Property Leases, together with all amendments, modifications, or supplements thereto.
(b) Seller has a valid leasehold interest under each of the Personal Property Leases under which it is a lessee. There is no material Breach of any Personal Property Lease by Seller or, to the Knowledge of Seller, by any other party thereto, and no event has occurred, or condition or circumstance exists, which could reasonably be expected to constitute a Breach thereof. Seller and, to the Knowledge of Seller, each other party to each Personal Property Lease is in compliance in all material respects with all obligations of Seller or such other party, as the case may be, thereunder.
(c) As of the Closing, Seller (and not any other Affiliate thereof) will have good title to all the Purchased Assets being sold by Seller hereunder, free and clear of any and all Liens, except for
Permitted Liens. Such assets include all assets, rights, and interests necessary to operate the Business, held by Seller or its Affiliates for anticipated or prior use in any material respect for the operation of the Business, used by Seller in any material respect for the operation of the Business as currently conducted, or reasonably required for the continued conduct of the Business other than the Excluded Assets. After giving effect to the transaction contemplated by Section 4.2 , the Purchased Assets will include all assets, properties, and rights reflected on the Balance Sheet other than: (i) Inventory sold; (ii) receivables collected; (iii) prepaid expenses realized; (iv) items of obsolete equipment and revenue-earning property disposed of; and (v) the Excluded Assets, in the case of each of (i) and (iv) in the Ordinary Course.
(d) All tangible personal property owned by Seller and included in the Purchased Assets, and all of the items of tangible personal property used by Seller under the Personal Property Leases: (i) are in sufficient operating condition, maintenance, and repair (subject to normal wear and tear) given the use and age of such assets; (ii) conform to all Laws relating to their construction, use, and operation; and (iii) are adequate for the uses to which they are being put or are intended to be put. None of such items of tangible personal property is in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not significant in nature or cost, and there are no facts or conditions affecting such tangible personal property that could interfere in any significant respect with the use or operation thereof as used or operated for the twelve (12) months preceding the date of this Agreement. Section 2.10(d) of the Disclosure Schedule lists all material items of tangible personal property, including all Inventory, equipment, revenue-earning property, and vehicles, owned by Seller or used or held for use in the Business. All such owned or leased vehicles are properly licensed and registered in accordance with applicable Law.
Section 2.11 Intellectual Property .
(a) Seller own, free and clear from all Liens, or otherwise possesses legally enforceable rights to use all of the Intellectual Property reasonably necessary to conduct the Business as presently conducted. The Intellectual Property owned or purported to be owned by Seller ( Owned Intellectual Property ) and the Intellectual Property licensed to Seller under the Intellectual Property Licenses comprise all of the Intellectual Property that is used in the Business by Seller or reasonably required for the continued conduct of the Business. Seller is the sole owners of all rights title and interest in the Owned Intellectual Property free and clear of all Liens other than Permitted Liens. Following Closing, all Owned Intellectual Property will be fully transferrable, alienable and licensable by Purchaser without restriction and without payment of any kind or obligation to any third party.
(b) Section 2.11(b)(i) of the Disclosure Schedule sets forth a true, correct, and complete list of all Owned Intellectual Property for which a registration or application has been filed with a Governmental Body, including patents, trademarks, service marks, and copyrights, issued by or registered with, or for which any application for issuance or registration thereof has been filed with, any Governmental Body. Section 2.11(b)(ii) of the Disclosure Schedule sets forth a true, correct, and complete list of all trademarks, service marks and other trade designations as well as all software programs that are Owned Intellectual Property and not otherwise identified in Section 2.11(b)(i) of the Disclosure Schedule. All required filings and fees related to the Owned Intellectual Property have been timely filed with and paid to the relevant Governmental Body and authorized registrars, are not in any grace or surcharge period and all Owned Intellectual Property is otherwise valid and in good standing. Section 2.11(b)(iii) of the Disclosure Schedule sets forth a true, correct, and complete list of all written or oral licenses and arrangements (other than Ordinary Course licenses of commercially available and unmodified software): (A) pursuant to which Seller permits any Person to use any Owned Intellectual Property; or (B) pursuant to which any Person permits any Seller to use any Intellectual Property used in the Business; or (B) pursuant to which the use by Seller of Intellectual Property is permitted by any Person (collectively, the Intellectual Property Licenses ). The Intellectual Property Licenses are valid,
binding, and enforceable between the applicable Seller and the other parties thereto and are in full force and effect. There is no material Breach of any Intellectual Property License by Seller or, to the Knowledge of Seller, by any other party thereto. No party to any Intellectual Property License has given written notice to Seller of such partys intention to cancel, terminate or non-renew such agreement. All software used by any Seller is licensed from third parties and used pursuant to, and within the scope of, a valid license or other enforceable right (including the appropriate number of seats being used) and is not a bootleg or otherwise unauthorized version or copy.
(c) The use of the Owned Intellectual Property used in the Business and the continued operation of the Business as presently conducted is not, to the Knowledge of Seller, subject to any third party objection that it interferes with, infringes upon, misappropriates, or otherwise comes into conflict with, any Intellectual Property Rights of third parties or constitutes unfair competition in any jurisdiction in which Seller currently does business. Seller has not received any notice alleging its infringement upon any Intellectual Property Rights of third parties or the invalidity or unenforceability of any Owned Intellectual Property, and to the Knowledge of Seller, there are no bona fide grounds for any such claim. To Sellers Knowledge, no Person has infringed or is infringing any Intellectual Property Rights of any Seller or has otherwise misappropriated or is otherwise misappropriating any Owned Intellectual Property.
(d) No current or former employee, consultant, contractor, or any other Person has any right, claim, or interest to any of the Owned Intellectual Property. To the Knowledge of Seller, no employee, consultant, or contractor of Seller has been, is, or will be performing services for the Business in Breach of any term of any employment, invention disclosure or assignment, confidentiality, or noncompetition agreement or other restrictive covenant or any Order as a result of such employees employment in, or such consultants or contractors engagement to provide services with respect to, the Business.
(e) There are no actions that must be taken by Purchaser within one hundred eighty (180) days after the date of this Agreement, including the payment of any registration, maintenance, or renewal fees or the filing of any documents, applications, or certificates for the purposes of maintaining, perfecting, or preserving or renewing any right in any Owned Intellectual Property. Section 2.11(e) of the Disclosure Schedule lists the status of any proceedings or actions pending or, to the Knowledge of Seller, threatened before any Governmental Body anywhere in the world related to any of the Owned Intellectual Property or any Intellectual Property License, including the due date for any outstanding response by Seller in such proceedings. Seller has not taken any action or failed to take any action that could result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver, or unenforceability of any Owned Intellectual Property.
Section 2.12 Contracts .
(a) Section 2.12(a) of the Disclosure Schedule sets forth a true, correct, and complete list of the following Contracts (each such Contract set forth or required to be set forth on such Schedule, a Material Contract ) to which Seller is a party or by which Seller or its assets or properties are bound, in each case relating to the Business or Purchased Assets (provided that Contacts entered into following the date hereof with Purchasers consent pursuant to Section 4.13(b) need not be scheduled):
(i) all Contracts relating to capital expenditures or other purchases of materials, supplies, maintenance, equipment, revenue-earning property, or other assets or properties or services (other than purchase orders for inventory or supplies in the Ordinary Course) in excess of $100,000 individually, or $500,000 in the aggregate;
(ii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course), advance to, or investment in any Person, or any Contract relating to the making of any such loan, advance, or investment;
(iii) all Contracts involving Indebtedness of Seller or granting or evidencing a Lien on any property or asset of Seller (other than Permitted Liens);
(iv) any management service, consulting, financial advisory, or any other similar type of Contract and all Contracts with investment or commercial banks;
(v) any Contract which includes any restrictive covenant, license, non-competition, non-solicitation, most favored nations, exclusivity, or other item which restricts Sellers (or its successors) rights and ability to operate;
(vi) all Contracts (other than this Agreement and the other Transaction Documents) between Seller and (A) any Affiliate of Seller, or (B) any current or former officer or manager of Seller;
(vii) all Contracts (including letters of intent) (A) involving the future disposition or acquisition of assets or properties involving consideration of more than $100,000 individually, or $500,000 in the aggregate, or any merger, consolidation or similar business combination transaction, whether or not enforceable, or (B) relating to the acquisition by Seller of any operating business or the equity securities or interests of any other Person;
(viii) all Contracts involving any joint venture, partnership, strategic alliance, shareholders agreement, co-marketing, co-promotion, co-packaging, joint development, or similar arrangement;
(ix) all Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute that have any continuing effect on Seller;
(x) all Contracts involving a confidentiality, standstill, or similar arrangement;
(xi) all Contracts (A) for the employment of any officer, individual employee, or other Person on a full-time or consulting basis who cannot be dismissed immediately without notice and without liability or obligation of any kind whatsoever in excess of $25,000 individually or $100,000 in the aggregate, (B) requiring severance payments or payments upon a change in control, and (C) for deferred compensation or severance;
(xii) all collective bargaining agreements or other agreements with any labor union;
(xiii) all Contracts with any Governmental Body;
(xiv) all Contracts that involve the performance of services, or delivery of goods or materials, during the twelve (12) month period immediately prior to the date of this Agreement of an amount or value in excess of $100,000, including all master service agreements (regardless of dollar thresholds);
(xv) all Contracts where Seller agrees to indemnify any Person with respect to claims of infringement of any Intellectual Property other than customers under Sellers standard form agreement;
(xvi) all powers of attorney granted to any Person; and
(xvii) all Contracts with customers and suppliers disclosed or required to be disclosed on Section 2.21 of the Disclosure Schedule.
(b) True, correct, and complete copies of the Material Contracts have previously been provided to Purchaser by Seller. Seller is not in Breach, and no event has occurred, or condition or circumstance exists, which could reasonably be expected to constitute a Breach of any Included Contract by Seller or, to the Knowledge of Seller, by any other party thereto. Each of the Included Contracts is in full force and effect, is valid and enforceable in accordance with its terms and, to the Knowledge of Seller, is not subject to any claims, charges, setoffs or defenses. There are no disputes pending or, to Sellers Knowledge, threatened, under any Included Contract, and Seller has not asserted or threatened to assert any claim under any Included Contract.
Section 2.13 Employee Benefits .
(a) Section 2.13(a) of the Disclosure Schedule sets forth a true, correct, and complete list of all employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), and any other plans, agreements, arrangements, programs, or payroll practices (including severance pay, other termination benefits or compensation, vacation pay, salary, company awards, stock option, stock purchase, salary continuation for disability, sick leave, retirement, deferred compensation, bonus, incentive compensation, stock purchase arrangements or policies, hospitalization, medical insurance, life insurance, and scholarship programs) (whether funded or unfunded, written or oral, qualified or nonqualified), sponsored, maintained, or contributed to or required to be contributed to by Seller or by any trade or business, whether or not incorporated, that together with Seller would be deemed a single employer within the meaning of Section 4001 of ERISA (a Seller ERISA Affiliate ) for the benefit of any employee, leased employee, manager, officer, director, shareholder, member, or independent contractor (in each case either current or former) of Seller or Seller ERISA Affiliate, or with respect to which Seller or Seller ERISA Affiliate has any Liability ( Employee Benefit Plans ). Section 2.13(a) of the Disclosure Schedule identifies, in separate categories, Employee Benefit Plans that are: (i) subject to Section 210(a), 4063, and 4064 of ERISA or Section 413(c) of the Code ( Multiple Employer Plans ); (ii) multiemployer plans (as defined in Section 4001(a)(3) of ERISA) ( Multiemployer Plans ); or (iii) Employee Benefit Plans, including benefit plans, within the meaning of Section 5000(b)(1) of the Code providing continuing benefits after the termination of employment (other than as required by Section 4980B of the Code or Part 6 of Title I of ERISA or similar state or local Law). Seller has no Liability or contingent Liability with respect to any plan, arrangement, or practice of the type described in this Section 2.13(a) , other than the Employee Benefit Plans set forth in Section 2.13(a) of the Disclosure Schedule.
(b) Except as set forth in Section 2.13(b) of the Disclosure Schedule, Seller and each Seller ERISA Affiliate does not participate currently and has never participated in and is not required currently and has never been required to contribute to or otherwise participate in any Multiemployer Plan or any Multiple Employer Plan. No Employee Benefit Plan is or at any time was a defined benefit plan as defined in Section 3(35) of ERISA or a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code. Seller does not currently participate or has ever participated in, nor is Seller required currently or has ever been required to contribute to or otherwise participate in, any plan, program, or arrangement subject to Title IV of ERISA and Purchasers acquisition of the Purchased
Assets will not cause Purchaser or any of its Affiliates to incur any liability under Section 412 of the Code of Title IV of ERISA. No Employee Benefit Plan is a multiple employer welfare arrangement as defined in Section 3(40) of ERISA. Seller does not maintain, sponsor, or have any Liability with respect to a Foreign Pension Plan.
(c) Each of the Employee Benefit Plans intended to qualify under Section 401(a) or 403(a) of the Code ( Qualified Plans ) has received a determination letter from the IRS to such effect and the trusts maintained thereto are exempt from federal income taxation under Section 501 of the Code and nothing has occurred or will occur through the Closing with respect to any such plan that could reasonably be expected to cause the loss of such qualification or exemption.
(d) True, correct and complete copies of the following documents, with respect to each of the Employee Benefit Plans, have been delivered to or made available to Purchaser: (i) any plans and related trust documents (and all amendments thereto) and collective bargaining agreements and (ii) the most recent IRS determination letters.
(e) There are no pending Legal Proceedings which have been asserted or instituted or, to the Knowledge of Seller, threatened against any of the Employee Benefit Plans, the assets of any such plans or of any related trust or Seller, the plan administrator or any fiduciary of the Employee Benefit Plans with respect to such plans (other than routine benefit claims), and there are no facts or circumstances that could form the basis for any such Legal Proceeding. No Employee Benefit Plan is under audit or investigation by the IRS, DOL, or any other Government Body and no such completed audit, if any, has resulted in the imposition of Tax, interest, or penalty.
(f) Seller maintains a group health plan within the meaning of Section 5000(b)(1) of the Code and each plan sponsor or administrator has complied with the COBRA reporting, disclosure, notice, election, and other benefit continuation and coverage requirements of Section 4980B of the Code, the Health Insurance Portability and Accountability Act of 1996, Part 6 of Title I of ERISA and the applicable regulations thereunder and any comparable state Laws, including compliance with Sellers COBRA obligations rising in connection with the transactions contemplated by this Agreement. No Employee Benefit Plan provides medical or dental benefits for any current or former employees or other service providers of Seller or its predecessors after termination of employment or other service other than the rights that may be provided by Law.
(g) Neither the execution and delivery of this Agreement and the other Transaction Documents nor the consummation of the transactions contemplated hereby and thereby (in each case either alone or in conjunction with any other event) will: (i) result in any payment becoming due to any service provider; (ii) increase any benefits otherwise payable to any service provider including under any Employee Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any such benefits; or (iv) result in funding or acceleration of funding of any benefit under any Employee Benefit Plan.
(h) No amounts payable under any Employee Benefit Plan or any other agreement will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(i) Seller has taken such actions necessary with respect to each Employee Benefit Plan to ensure that no service provider of Seller is subject to taxes or penalties under Section 409A of the Code.
Section 2.14 Labor .
(a) Section 2.14(a) of the Disclosure Schedule contains a list of all persons who are employees, consultants, or contractors of Seller as of the date of this Agreement providing services for the Business, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus, or other incentive-based compensation; (vi) any other discretionary or non-discretionary compensation (in each instance, over $10,000); and (vii) designation as either exempt or non-exempt from the overtime requirements of the Fair Labor Standards Act.
(b) No employee of Seller is represented by a union. Seller is not, nor has it ever been, a party to or bound by any labor or collective bargaining agreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing, purporting to represent or, to Sellers Knowledge, attempting to represent any employee. There has never been, nor, to Sellers Knowledge, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime, arbitrations, or other similar labor activity or dispute affecting Seller or any of its employees. There are no grievances, arbitrations, unfair labor practice charges, or other labor disputes pending or, to the Knowledge of Seller, threatened against Seller. There is no organizing activity involving Seller pending or, to the Knowledge of Seller, threatened by any labor organization or group of employees of Seller.
(c) Except as disclosed on Section 2.14(c) of the Disclosure Schedule, there are no Legal Proceedings against Seller pending or, to the Knowledge of Seller, threatened, which could reasonably be expected to be brought or filed with any public or Governmental Body based on, arising out of, in connection with, or otherwise relating to the application or recruitment for employment, the terms and conditions of employment, employment practices, employment, or termination of employment of any individual or group by Seller.
(d) To the Knowledge of Seller, no executive or employee currently has any plans to terminate employment with Seller, or not continue employment with Purchaser after Closing, independently of or as a result of the transactions contemplated by this Agreement and the other Transaction Documents.
(e) Except as disclosed on Section 2.14(e) of the Disclosure Schedule, Seller is and has been in compliance with all applicable Laws pertaining to employment and employment practices, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, wrongful discharge, reasonable accommodation, disability rights or benefits, immigration, the verification of immigration/employment status, wage and hours, overtime compensation, child labor, health and safety, workers compensation, uniformed services employment, whistleblowers, leaves of absence, and unemployment insurance. All individuals characterized and treated by Seller as consultants or contractors are properly treated as independent contractors under all applicable Laws. There are no Legal Proceedings pending against Seller or, to the Knowledge of Seller, threatened to be brought or filed, by or with any Governmental Body or arbitrator in connection with the employment of any current or former employee, consultant, or independent contractor, including any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, wrongful discharge, equal pay, or any other employment related matter arising under applicable Laws. There are no internal complaints or reports by any current or former employee, consultant, or independent contractor pursuant to the anti-harassment policy of Seller that are pending or under investigation.
(f) All employees of Seller are appropriately classified as exempt or non-exempt under the Fair Labor Standards Act and any applicable state or local wage and hour law.
(g) Seller has complied with WARN and has no plans to undertake any action in the future that would trigger WARN (other than as contemplated by Section 4.13(a) ). No employee of Seller has suffered an employment loss (as defined in and covered by the WARN Act or similar state law) during the six-month period prior to Closing.
(h) No Legal Proceeding has been filed or commenced against Seller or, to Sellers Knowledge, any employees thereof, that: (i) alleges any failure so to comply; or (ii) seeks removal, exclusion or other restrictions on (A) such employees ability to reside and/or accept employment lawfully in the United States and/or (B) the continued ability of Seller to sponsor employees for immigration benefits and, to the Knowledge of Seller, there is no reasonable basis for any of the foregoing. To the Knowledge of Seller, there is no reasonable basis to believe that any employee of Seller will not be able to continue to so reside and/or accept employment lawfully in the United States in accordance with all such Laws. No audit, investigation, or other Legal Proceeding has been commenced against Seller at any time with respect to its compliance with applicable Laws relating to immigration and naturalization in connection with its hiring practices.
Section 2.15 Litigation . There is no, and during the previous three (3) years there has been no, Legal Proceeding pending or, to the Knowledge of Seller, threatened against Seller or any of the officers, managers, directors, or key employees of Seller before any court or other Governmental Body or any arbitral tribunal relating to or involving the Business, this Agreement or the other Transaction Documents. Except as set forth in Section 2.15 of the Disclosure Schedule, during the previous three (3) years, Seller has not engaged, and is not currently engaged, in any Legal Proceeding to recover monies due it or for damages sustained by it relating to or involving the Business, and there is no unsatisfied judgment, penalty, or award affecting Seller with respect to the Business or any of the Purchased Assets. Seller is not subject to any Order of any Governmental Body relating to or involving the Business.
Section 2.16 Compliance with Laws; Permits .
(a) Seller is, and has been during the previous three (3) years, in compliance in all material respects with all Laws applicable to it or the ownership, lease, use, occupancy, or operation of its assets or properties or the conduct of the Business. Seller has not received notice, report, order, demand, request for information, citation, summons, complaint, notice of Breach or directive or other communication (whether oral or written) from any Governmental Body of any Breach of any Law in connection with or relating to the Business and has not failed to comply with any Law in connection with or relating to the Business and the operation or use of the Purchased Assets. There is, and has been during the past three (3) years, no investigation by a Governmental Body pending against or, to the Knowledge of Seller, threatened against Seller in connection with or relating to the Business and the operation or use of the Purchased Assets. To Sellers Knowledge, no event has occurred, or condition or circumstance exists, which could reasonably be expected to result in a material Breach of any applicable Law in connection with or relating to the Business and the operation or use of the Purchased Assets.
(b) Section 2.16(b) of the Disclosure Schedule contains a true, correct, and complete list of each Permit that is held by Seller or that otherwise relates to or is required for the ownership, lease, use, occupancy, or operation of its assets or properties that are used in the Business or the conduct of the Business, and indicates for each whether the same are transferrable to Purchaser and, if so, whether Consent to such transfer is required. Each Permit listed or required to be listed in Section 2.16(b) of the Disclosure Schedule is valid and in full force and effect. The Permits identified in Section 2.16(b) of the Disclosure Schedule collectively constitute all of the Permits necessary to enable Seller to lawfully
conduct and operate the Business and to own and use its assets in the manner in which it currently owns and uses such assets. Except as set forth in Section 2.16(b) of the Disclosure Schedule:
(i) Seller is, and has been, in full compliance with all of the terms and requirements of each Permit identified or required to be identified in Section 2.16(b) of the Disclosure Schedule;
(ii) to Sellers Knowledge, no event has occurred, or condition or circumstance exist, which (A) could reasonably be expected to constitute or result directly or indirectly in a Breach of or a failure to comply with any term or requirement of any Permit identified or required to be identified in Section 2.16(b) of the Disclosure Schedule, or (B) could reasonably be expected to result directly or indirectly in the revocation, withdrawal, suspension, cancellation, or termination of, or any modification to, any Permit identified or required to be identified in Section 2.16(b) of the Disclosure Schedule;
(iii) Seller has not received any notice, report, order, demand, request for information, citation, summons, complaint, notice of Breach or directive or other communication (whether oral or written) from any Governmental Body or any other Person regarding (A) any actual, alleged, possible, or potential Breach of any term or requirement of any Permit or any investigation or hearing related thereto or (B) any actual, proposed, possible, or potential revocation, non-renewal, withdrawal, suspension, cancellation, or termination of, or modification to any Permit, and to Sellers Knowledge, there is no basis for any of the foregoing; and
(iv) all applications required to have been filed for the renewal of the Permits identified or required to be identified in Section 2.16(b) of the Disclosure Schedule have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Permits have been duly made on a timely basis with the appropriate Governmental Bodies.
(c) This Section 2.16 shall be inapplicable to any area of law covered by a subject-matter-specific representation anywhere in this Agreement.
Section 2.17 Environmental Matters .
(a) Seller, its operations, and except as disclosed in the Environmental Reports and in Section 2.17(b) of the Disclosure Schedule, the ownership, lease, use, occupancy, or operation of its Leased Real Property are currently, and have been in the past three (3) years, in material compliance with all Environmental Requirements and Permits obtained or issued or required to be obtained or issued pursuant to Environmental Requirements or otherwise ( Environmental Permits ). Except as disclosed in the Environmental Reports and in Section 2.17(b) of the Disclosure Schedule, all material past noncompliance with Environmental Requirements or Environmental Permits has been resolved without any pending, ongoing, or future Liability. Seller has timely applied for renewal of any Environmental Permits, and there are no pending Legal Proceedings, and to the Knowledge of Seller, there is no threatened Legal Proceeding with respect to, or that may threaten the suspension, revocation or modification of, any of the Environmental Permits.
(b) Section 2.17(b) of the Disclosure Schedule sets forth a true, correct, and complete list of all reports of environmental assessments, audits, investigations, or other similar studies or analyses which have been performed by or on behalf of Seller, or which are otherwise in Sellers possession, with respect to the Leased Real Property or in connection with the Business and Seller has delivered true, correct, and complete copies of such documents to Purchaser (the Environmental
Reports ). All material known Liabilities of Seller relating to Environmental Requirements, Environmental Permits, or Hazardous Materials are specifically identified on Section 2.17(f) of the Disclosure Schedule.
(c) Except as set forth in Section 2.17(c) of the Disclosure Schedule or in the Environmental Reports, Seller has not received any written notice, notification, report, order, demand, request for information, citation, summons, complaint, notice of Breach, or directive or other communication regarding any actual or alleged Breach of any Environmental Requirements by Seller in connection with the Business, or any Environmental Liabilities of Seller in connection with the Business, including any investigatory, remedial, cost-sharing, or corrective obligations, relating to it, its business, or its past or current facilities arising under Environmental Requirements in connection with the Business.
(d) Except as set forth in Section 2.17(d) of the Disclosure Schedule or in the Environmental Reports, there are no Environmental Claims pending or, to the Knowledge of Seller, threatened against Seller, the Business, or the Leased Real Property, in each case in connection with the Business, and to the Knowledge of Seller, there are no circumstances, events, or conditions that could reasonably be expected to form the basis of any such Environmental Claim, including, in each case in connection with the Business: (i) with respect to any off-site disposal location presently or formerly used by Seller or any of its Affiliates or any of their respective predecessors; (ii) with respect to previously owned, leased, used, occupied, or operated facilities or real property; or (iii) with respect to any property at which Seller has performed any services.
(e) Except as set forth in Section 2.17(e) the Disclosure Schedule or in the Environmental Reports, to the Knowledge of Seller, none of the following exists at any Leased Real Property: (i) underground storage tanks; (ii) friable asbestos-containing material; (iii) materials, revenue-earning property, or equipment containing polychlorinated biphenyls; (iv) lead-based paint hazards; (v) mold in quantities and locations requiring removal pursuant to Environmental Requirements or commercially reasonable business practices; (vi) groundwater monitoring wells, drinking water wells, or production water wells; (vii) landfills, surface impoundments, septic tanks, pits, sumps, lagoons, or disposal areas; (viii) wetlands or areas subject to any Environmental Requirement or Law related to wetlands; or (ix) any Release of Hazardous Materials requiring any investigation, monitoring, removal, remediation, corrective action, or control pursuant to Environmental Requirements.
(f) Except as set forth in Section 2.17(f) of the Disclosure Schedule and in the Environmental Reports, in connection with the Business, Seller has not, at any time: (i) treated, stored, disposed of, arranged for, or permitted the disposal of, transported, handled, manufactured, distributed, exposed any Person to, or released any Hazardous Material, in violation of Environmental Requirements; or (ii) to the Knowledge of Seller, owned, leased, used, occupied, or operated at any property or facility which is or where there has been a release of Hazardous Materials requiring investigation, removal or remediation pursuant to Environmental Requirements.
(g) Neither this Agreement nor any other Transaction Document nor the consummation of the transactions contemplated hereby or thereby will result in any obligations for site investigation or cleanup, or Consent of any Governmental Bodies or third parties, pursuant to any of the so-called transaction-triggered or responsible property transfer Environmental Requirements.
(h) None of the Leased Real Property is listed or proposed for listing on the National Priorities List or the Comprehensive Environmental Response, Compensation and Liability Information System or on any analogous foreign, federal, state or local list.
(i) Except as set forth in Section 2.17(i) of the Disclosure Schedule, Seller has not, in connection with the Business, assumed, undertaken, provided or agreed to provide an indemnity with respect to, or otherwise become subject to any Liability, including any obligation for corrective or Remedial Action, of any other Person relating to Environmental Requirements.
(j) Except as set forth in Section 2.17(j) of the Disclosure Schedule, Seller does not currently generate Hazardous Materials that caused or cause Seller to be classified as any type of quantity generator, including a conditionally exempt small quantity generator, under the Resource Conservation and Recovery Act, or any analogous statutes or regulations.
This Section 2.17 constitutes the sole and exclusive representations and warranties with respect to Environmental Matters, with the exception of the representations contained in Section 2.7(d)(xv) and Section 2.9(c) .
Section 2.18 Insurance . Section 2.18 of the Disclosure Schedule includes a true, correct, and complete list of all insurance policies owned by Seller (or as to which Seller is the beneficiary, insured, or loss payee) relating to the Business. Such insurance policies are (a) of the type and in the amounts sufficient for compliance with all applicable Laws and all Contracts to which Seller is a party or by which it is bound and (b) occurrence-based policies. Seller has not received any notice of: (i) cancellation, adverse modification, or intent to cancel or increase premiums with respect to such insurance policies nor, to the Knowledge of Seller, is there any basis for any such action; or (ii) any significant changes that are required in the conduct of the Business as a condition to the continuation of coverage under, or renewal or modification of, any such policy. Section 2.18 of the Disclosure Schedule also contains a list of all pending claims and any claims since December 31, 2013 with any insurance company with respect to the Business and any instances since such date of a denial (or limitation in scope or amount) of coverage or claim of Seller by any insurance company.
Section 2.19 Receivables . The accounts receivable and notes receivable of Seller reflected in the Balance Sheet and arising after the date thereof (to the extent not paid in full by the account debtor prior to the date of this Agreement) are valid and genuine and have arisen solely in bona fide arms-length transactions with non-Affiliates and non-employees for goods and services duly delivered and performed in the Ordinary Course (or, in the case of non-trade receivables, represent amounts receivable in respect of bona fide business transactions). The allowance for doubtful accounts set forth in the Balance Sheet or, in the case of accounts receivable arising since the date of the Balance Sheet, has been determined in accordance with GAAP. All reserves, allowances, and discounts with respect to such accounts receivable were and are adequate and consistent in extent with the reserves, allowances, and discounts previously maintained by Seller in the Ordinary Course and determined in accordance with GAAP consistently applied. A true, correct and complete list of all accounts receivable and notes receivable of Seller as of the date of this Agreement is included in Section 2.19 of the Disclosure Schedule. Except as set forth in Section 2.19 of the Disclosure Schedule: (i) no account debtor or note debtor is delinquent for payments in excess of $25,000 or for more than sixty (60) days; and (ii) to the Knowledge of Seller, no account debtor or note debtor is insolvent or bankrupt.
Section 2.20 Inventory . Except as set forth in Section 2.20 of the Disclosure Schedule, each item of Inventory and revenue-earning property used in or relating to the Business is: (i) free of any significant defect or other deficiency, and free and clear of all Liens, except for Permitted Liens; (ii) owned by Seller and not held on a consignment basis; (iii) properly stated on the Balance Sheet (to the extent existing on the date thereof) and on the Books and Records of the Business in accordance with GAAP; and (iv) useable or saleable and not obsolete, and there has been, except for obsolete, damaged, defective, or slow-moving items that have been written off or written down to fair market value or for
which adequate reserves have been established, and is no anticipated write-down of such Inventory or revenue-earning property.
Section 2.21 Customers and Suppliers .
(a) Section 2.21(a) of the Disclosure Schedule sets forth a true, correct, and complete list of the top fifteen (15) customers of Seller relating to the Business for the most recently ended fiscal year and for the 12-month period ended April 30, 2017 and the dollar amount of sales to each such customer during such period. Except as set forth in Section 2.21(a) of the Disclosure Schedule, since December 31, 2015, no such customer has cancelled or otherwise terminated, materially reduced, or indicated that it may have any intent to cancel, not renew, terminate, materially reduce, or adversely modify its purchases from the Business or its relationship with Seller, nor is there any dispute therewith, nor does Seller have Knowledge that any such event could reasonably be expected to occur. Seller does not provide any customer any preferential terms or discounts other than on a one-off basis, and any current discounts or material deviations from standard pricing is set forth in Section 2.21(b) of the Disclosure Schedule. None of the Affiliates of Seller provides any customer any preferential terms or discounts, or otherwise bundles (or provides any similar arrangement) products and/or services (on a de facto or de jure basis) for the direct or indirect benefit of Seller. All Contracts or other arrangements with customers of Seller relating to the Business are on arms length terms.
(b) Section 2.21(b) of the Disclosure Schedule sets forth a true, correct, and complete list of the top fifteen (15) suppliers or vendors of Seller for the most recently ended fiscal year and for the 12-month period ended April 30, 2017 and the dollar amount of purchases from each such supplier during such period. Except as set forth in Section 2.21(b) of the Disclosure Schedule, since December 31, 2015, no such supplier or vendor has cancelled or otherwise terminated, materially reduced, or indicated that it may have any intent to cancel, not renew, terminate, materially reduce, or adversely modify its sales to the Business or its relationship with Seller, nor is there any dispute therewith, nor does Seller have Knowledge that any such event could reasonably be expected to occur. Seller does not benefit from any preferential terms or discounts from any supplier or vendor directly or indirectly as a result of any de facto or de jure bundling (or similar arrangement) of products or services with any products or services sold to any of its Affiliates, and all Contracts or other arrangements with suppliers and vendors relating to the Business of Seller are on arms length terms, in each case other than in respect of the Real Property Leases which will be terminated as of the Closing.
Section 2.22 Warranty Liabilities . All of the work and services performed and products delivered by Seller in connection with the Business have conformed in all material respects with all express warranties made by Seller and with all applicable implied warranties, and no Liability for replacement, repair, or reperformance thereof or other damages exist in connection therewith, subject only to the reserve for warranty claims set forth on the Balance Sheet and in any notes thereto as adjusted for operations and transactions through the Closing in the Ordinary Course. There are no warranties (express or implied) outstanding with respect to any products currently or previously delivered, manufactured, sold, provided, distributed, shipped, or licensed or any services rendered, by Seller in connection with the Business, beyond those set forth in the master service agreements disclosed in Section 2.12(a) of the Disclosure Schedule. Except as set forth in Section 2.22 of the Disclosure Schedule, no warranty claims have been made against Seller in connection with the Business, and to Sellers Knowledge, there is no basis therefor. There are no material design, manufacturing, or other defects, latent or otherwise, with respect to any such products or services.
Section 2.23 Guaranties and Liabilities . Except as set forth in Section 2.23 of the Disclosure Schedule, Seller is not a guarantor or otherwise responsible for any Liability (including Indebtedness) of any other Person in connection with the Business. Seller has not any Liability arising out of any injury to
individuals or property as a result of the performance of any work or services or the provision, manufacture, or sale of any goods by Seller in connection with the Business.
Section 2.24 Related Party Transactions . Except as described in Section 2.24 of the Disclosure Schedule, Seller has not loaned or borrowed any amounts to or from, and does not have outstanding any Indebtedness or other similar obligations to or from, or other contractual relationship with, any other Seller or any Affiliate of Seller in connection with the Business. Except as described in Section 2.24 of the Disclosure Schedule, neither Seller nor any of its Affiliates: (i) has owned any direct or indirect interest of any kind in, or controls or is a manager, officer, employee, or partner of, or consultant to, or lender to, or borrower from, or has the right to participate in the profits of, any Person which is (A) a competitor, supplier, distributor, customer, landlord, tenant, creditor, or debtor of Seller in connection with the Business, (B) engaged in a business related to the business of Seller in connection with the Business, or (C) a participant in any transaction to which Seller has been a party in connection with the Business; or (ii) has been a party to any Contract with Seller or engaged in any transaction or business with Seller, in each case in connection with the Business. Seller does not have any Contract or understanding with any officer, manager, director, shareholder, employee, or member of Seller, or any Affiliate of any such Person that relates, directly or indirectly, to the subject matter of this Agreement or any other Transaction Document or the consideration payable thereunder or that contains any terms, provisions, or conditions relating to the entry into or performance of this Agreement or any other Transaction Document by Seller.
Section 2.25 Brokers Fees . Except as set forth in Section 2.25 of the Disclosure Schedule, Seller has no Liability to pay any fees or commissions to any investment banker, broker, finder, or agent with respect to the transactions contemplated by this Agreement and the other Transaction Documents.
Section 2.26 Absence of Certain Business Practices; FCPA .
(a) Except as set forth in Section 2.26 of the Disclosure Schedule, Seller has not, and no Affiliate or agent of Seller, and no other Person acting on behalf of or associated with Seller, acting alone or together, has, in connection with the Business: (i) received, directly or indirectly, any rebates, payments, commissions, promotional allowances, or any other economic benefits, regardless of their nature or type, from any customer, supplier, or employee or agent of any customer or supplier; or (ii) directly or indirectly given or agreed to give any money, gift or similar benefit to any customer, supplier, or employee or agent of any customer or supplier, any official or employee of any Governmental Body (domestic or foreign), or any political party or candidate for office, or other Person who was, is or may be in a position to help or hinder the business of Seller (or assist Seller in connection with any actual or proposed transaction), in each case which: (i) may subject Seller to any damage or penalty in any civil, criminal, or governmental Legal Proceeding; (ii) if not given in the past, may have had an adverse effect on the assets, Business, or operations of Seller; or (iii) if not continued in the future, may adversely affect the assets, Business, or operations of Purchaser.
(b) Seller has not nor, to the Knowledge of Seller, has any of Sellers respective employees, agents, advisors, consultants, representatives, or others for whom any of them may have responsibility, taken any action, directly or indirectly, in connection with the Business, that constitutes: (i) a Breach or an alleged Breach by such Persons of the Foreign Corrupt Practices Act of 1977, as amended (the FCPA ), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; (ii) a Breach or alleged Breach
by such Persons of any other applicable Laws relating to bribery or corruption (the Anti-Corruption Laws ); or (iii) a Breach or alleged Breach of applicable Laws relating to the Business.
(c) Seller has conducted its respective business in compliance with the FCPA and the Anti-Corruption Laws.
Section 2.27 Surety Bonds .
(a) Seller has posted all deposits, letters of credit, trust funds, stand-alone indemnification agreements, bid bonds, performance bonds, bid bonds, completion bonds, reclamation bonds, and surety bonds (along with all such similar undertakings, Surety Bonds ) required to be posted in connection with its respective operations in connection with the Business, all of which are listed in Section 2.27(a) of the Disclosure Schedule.
(b) Except as disclosed in Section 2.27(b) of the Disclosure Schedule, Seller is in compliance with all Surety Bonds applicable to it, and the operation of the Business and the state of reclamation with respect to the Surety Bonds are current or in deferred status regarding reclamation obligations and otherwise is in compliance with all applicable reclamation and other applicable Laws.
Section 2.28 Investor Representations . Seller is an accredited investor, as such term is defined in Regulation D under the Securities Act. Seller is specifically understood and agreed that the Purchaser is acquiring the Equity Interest for the purpose of investment and not with a view towards the sale or distribution thereof within the meaning of the Securities Act. Seller has been furnished with or has had access to the information it has requested from Purchaser and Ranger Inc. and has had an opportunity to discuss with the management of Purchaser and Ranger Inc. the business and financial affairs of Purchaser and its Subsidiaries, and has generally such knowledge and experience in business and financial matters and with respect to investments in securities of so as to enable it to understand and evaluate the risks of such investment and to form an independent investment decision with respect thereto.
Section 2.29 No Other Representations and Warranties . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE II AS MODIFIED BY THE DISCLOSURE SCHEDULES, NEITHER SELLER, HALL NOR ANY OTHER PERSON MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO SELLER OR ITS AFFILIATES, THE PROBABLE SUCCESS OR PROFITABILITY OF THE BUSINESS, THE PURCHASED ASSETS, THE BUSINESS, THE LEASED REAL PROPERTY OR THE TRANSACTIONS, THE ASSUMED LIABILITIES OR ANY OTHER RIGHTS OR OBLIGATIONS TO BE TRANSFERRED OR ASSUMED PURSUANT HERETO, AND SELLER DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, FORECASTS, PROJECTIONS, STATEMENTS OR INFORMATION, WHETHER MADE OR FURNISHED BY SELLER OR ANY OF ITS AFFILIATES OR ANY OF ITS OR THEIR REPRESENTATIVES. SELLER AND HALL EACH EXPRESSLY DISCLAIM ANY LIABILITY AND RESPONSIBILITY FOR ANY STATEMENT OR INFORMATION NOT CONTAINED IN THIS AGREEMENT WHETHER SUCH STATEMENT OR INFORMATION IS MADE OR COMMUNICATED, BY OVERSIGHT OR OTHERWISE (ORALLY OR IN WRITING), TO PURCHASER OR ANY OF ITS AFFILIATES (INCLUDING, WITHOUT LIMITATION, ANY OPINION, INFORMATION, PROJECTION, STATEMENT OR ADVICE PROVIDED BY ANY EMPLOYEE, OFFICER, DIRECTOR, AGENT, EQUITYHOLDER OR OTHER REPRESENTATIVE OF SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as of the date hereof (and, with respect to Section 3.1 , Section 3.2 and Section 3.4 as of the Amendment Date) as follows:
Section 3.1 Formation and Related Matters . Purchaser is a limited liability company, duly formed, validly existing, and in good standing under the Laws of the State of Delaware and has all requisite entity power and authority to own, lease, and operate its properties and to carry on its business. Purchaser is duly qualified or authorized to do business as a foreign limited liability company and is in good standing under the Laws of each jurisdiction in which it leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, each of which is set forth in Section 3.1 of the Disclosure Schedule. Other than the equity interests of Ranger Energy Properties, LLC, Ranger Energy Leasing, LLC and Academy Oilfield Rentals, LLC (each of which entities is wholly owned directly by Purchaser), Purchaser does not, nor ever has, owned or held any equity securities or interests in any other entity. Purchaser has delivered to Seller true, correct, and complete copies of the Governing Documents of Purchaser and each of its subsidiaries, as amended to date and as presently in effect. At all times during its existence prior to the IPO, Purchaser was owned by Ranger Holdings.
Section 3.2 Authorization and Enforceability . Purchaser has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which each is or will be a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by Purchaser of this Agreement and each of the other Transaction Documents to which each is or will be a party have been duly authorized by all necessary action on the part of Purchaser. This Agreement has been, and the other Transaction Documents to which such entity is a party will be, duly and validly executed and delivered by Purchaser. This Agreement constitutes, and the other Transaction Documents will constitute when executed, legal, valid, and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, subject to the Remedies Exceptions.
Section 3.3 Capitalization .
(a) Of Purchaser . Ranger Holdings owns 100% of the outstanding equity securities and other interests (and rights to acquire equity securities or other interests) of Purchaser. None of the foregoing ownership interests have been granted in Breach of any preemptive rights. Except as set forth in Section 3.3 of the Disclosure Schedule, Purchaser does not have any outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, preemptive rights, or other Contracts or commitments that could require Purchaser to issue, sell, or otherwise cause to become outstanding any equity securities or other interests, or securities convertible or exchangeable for, or any options, warrants, or rights to purchase, any of such equity securities or other interests. There are no outstanding obligations of Purchaser to repurchase, redeem, or otherwise acquire any of its equity securities or other interests. Except as set forth in Section 3.3 of the Disclosure Schedule, there are no outstanding or authorized share appreciation, phantom equity, profit participation, or similar rights with respect to Purchaser. Except as set forth in Section 3.3 of the Disclosure Schedule, there are no voting agreements, voting trusts, proxies, registration rights agreements, member agreements, or other Contracts with respect to any of the equity securities or other interests of Purchaser.
(b) Of Ranger, Inc. Following the consummation of the Reorganization and the IPO, all outstanding shares of Ranger, Inc. Class A Common Stock and Class B Common Stock will have been duly authorized, validly issued, fully paid and non-assessable and free of preemptive or similar rights.
(i) The shares of Class A Common Stock to be issued in the transactions contemplated hereby, following the consummation of the Reorganization and the IPO, (A) will be duly authorized, (B) when issued and delivered in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and non-assessable, and (C) will be issued and granted in compliance in all material respects with applicable securities Laws and other applicable Law (assuming the accuracy of the representations and warranties of Seller set forth in Section 2.28 , and the issuance thereof is not subject to any preemptive or other similar right.
(ii) Following the consummation of the Reorganization and the IPO, Ranger, Inc. will have authorized but unissued shares in an amount sufficient to issue all shares required to be issued pursuant to the terms of this Agreement.
Section 3.4 Conflicts; Consents of Third Parties . Except as set forth in Section 3.4 of the Disclosure Schedule, the execution and delivery of this Agreement and the other Transaction Documents to which any Purchaser is a party, the consummation of the transactions contemplated hereby or thereby, and compliance by Purchaser with the provisions hereof or thereof does not and will not: (a) Breach any provision of the Governing Documents of Purchaser; (b) Breach in any material respect any Law or any Order by which any Purchaser is bound, or give any Governmental Body or any other Person the right to obtain any relief under, or revoke or otherwise modify any rights held under, any such Law or Order; or (c) result in the creation of any Lien other than Permitted Liens upon the properties or assets of Purchaser. Except as set forth in Section 3.4 of the Disclosure Schedule, no Consent, Order, registration, qualification or decree of, any Governmental Body waiver, declaration or filing with, or notification to any Person, including any Governmental Body, is required on the part of Purchaser in connection with the execution, delivery, and performance of this Agreement or the other Transaction Documents, or the compliance by any of them with any of the provisions hereof or thereof, except as may be required under the Securities Act or state securities laws.
Section 3.5 Financial Statements of Ranger Holdings . Included in the Ranger, Inc. SEC Documents are complete copies of the audited balance sheet of Ranger Holdings as of December 31, 2016 (the Ranger Balance Sheet , and such date, the Ranger Balance Sheet Date ) and the related audited consolidated statements of operations and changes in members equity of Ranger Holdings for the time periods indicated therein (the audited statements, including the related notes and schedules thereto, the Ranger Financial Statements ). The Ranger Financial Statements have been prepared from its books and records in accordance with GAAP applied on a consistent basis throughout the periods indicated. The Ranger Financial Statements make full provision for all established, deferred or contingent liabilities to the extent required by GAAP and fairly present, in all material respects, the consolidated financial position and results of operations and cash flows of Ranger Holdings as of the dates and for the periods reflected thereon.
Section 3.6 Controls . Subject to any disclosures in the Ranger, Inc. SEC Documents, Ranger Holdings has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act )) as required by Rule 13a-15 under the Exchange Act. Ranger Holdings disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Ranger Holdings in the reports that Ranger Holdings or Ranger, Inc. files or will file under the Exchange Act are recorded, processed, summarized and reported within the time periods specified in the rules and forms of the Commission, and that all such material information is accumulated and communicated to Purchasers management as appropriate to allow timely decisions. Subject to any disclosures in the Ranger, Inc. SEC Documents, to the knowledge of Purchaser, since December 31, 2016, there have not been any material weaknesses in Ranger Holdings internal control over financial reporting or changes in Ranger Holdings internal
control over financial reporting which are reasonably likely to materially adversely affect Purchasers internal control over financial reporting.
Section 3.7 SEC Reports . In the event that the Closing occurs concurrent with or following consummation of the Reorganization and the IPO, then Purchaser makes the following representations at Closing:
(a) Ranger, Inc. has filed, on a timely basis, all registration statements, prospectuses, schedules, forms, reports and documents (collectively, the Ranger, Inc. SEC Documents ) with the SEC required to be filed by it pursuant to the federal securities laws and the rules and regulations of the SEC thereunder, all of which have complied as of their respective filing dates, or in the case of registration statements, their respective effective dates, in all material respects with all applicable requirements of the Securities Act and the Exchange Act, and the rules and regulations promulgated thereunder. None of the Ranger, Inc. SEC Documents at the time filed (or in the case of registration statements, solely on the dates of effectiveness) contained any untrue statement of a material fact or omitted to state 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, except for such statements, if any, as have been modified by subsequent filings prior to the date hereof.
(b) The consolidated balance sheets and related consolidated statements of income, stockholders equity and cash flows (including the related notes and schedules thereto) of Ranger, Inc. included in the Ranger, Inc. SEC Documents complied as to form, at the time filed, in all material respects with the published rules and regulations of the SEC with respect thereto. Such materials were prepared in accordance with GAAP applied on a consistent basis during the periods involved and include in the case of unaudited interim financial statements all necessary adjustments, are in accordance with the books and records of Ranger, Inc., which books and records are complete and accurate in all material respects, and present fairly the consolidated financial position of Ranger, Inc. as of their respective dates. The consolidated income and cash flows for the periods presented in the Ranger, Inc. SEC Documents are in conformity with GAAP applied on a consistent basis, except as otherwise noted therein or as permitted under the Securities Act or the Exchange Act, as applicable. Since the Ranger Balance Sheet Date, neither Ranger, Inc. nor any of its subsidiaries has incurred any liabilities or obligations, (including any off-balance sheet obligations) whether absolute, accrued, fixed, contingent, liquidated, unliquidated or otherwise and whether due or to become due, except (i) as and to the extent set forth on the audited balance sheet of Ranger, Inc. as at the Ranger Balance Sheet Date, (ii) as incurred in connection with the transactions contemplated by this Agreement, (iii) as incurred after the Ranger Balance Sheet Date in the ordinary course of business and consistent with past practice, or (iv) as described in the Ranger, Inc. SEC Documents, including but not limited to acquisitions described therein.
(c) There is and has been no failure on the part of Purchaser to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 or the rules and regulations promulgated in connection therewith, in each case that are effective and applicable to Purchaser at the Closing.
Section 3.8 Litigation . There are no Legal Proceeding pending against or, to the knowledge of Purchaser, threatened against, Purchaser, except for such Legal Proceeding as would not reasonably be expected, individually or in the aggregate, to prevent or materially delay the transactions contemplated by this Agreement or any other Transaction Document to which Purchaser or any of its Affiliates is a party.
Section 3.9 Investment Company Status . The Purchaser is not an investment company within the meaning of the Investment Company Act of 1940, as amended.
Section 3.10 Brokers Fees . Purchaser does not have any Liability to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement and the other Transaction Documents.
Section 3.11 Inspections; No Other Representations . Purchaser is an informed and sophisticated purchaser, and has engaged expert advisors, experienced in the evaluation and purchase of property and assets such as the Purchased Assets as contemplated hereunder. Purchaser has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Purchaser acknowledges and agrees that, except as provided herein, the Purchased Assets are sold as is and Purchaser agrees to accept the Purchased Assets and the Business in the condition they are in on the Closing Date based on its own inspection, examination and determination with respect to all matters, and without reliance upon any express or implied representations or warranties of any nature made by or on behalf of or imputed to Seller, except as expressly set forth in this Agreement. Without limiting the generality of the foregoing, Purchaser acknowledges that Seller makes no representation or warranty with respect to (i) any projections, estimates or budgets delivered to or made available to Purchaser or its Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Business or the future business and operations of the Business or (ii) except as expressly set forth in this Agreement, any other information or documents made available to Purchaser or its representatives with respect to the Business.
ARTICLE IV
COVENANTS
Section 4.1 Efforts; Notices; Consents; Disclosure Schedule Updates .
(a) Each of the Parties shall use its commercially reasonable efforts to take all action required of it and to do all things necessary, proper, or advisable on its part in order to cause the satisfaction, but not waiver, of the conditions of such Party set forth in Article V .
(b) Seller shall use its commercially reasonable efforts to give any notices and obtain any Consents which are required to be given, made, or obtained by it in connection with consummation of the transactions contemplated by this Agreement and the other Transaction Documents, including Sellers seeking all Consents set forth in Section 2.4 of the Disclosure Schedule; and Purchaser shall reasonably cooperate with the foregoing. Without limiting the generality of the foregoing, Seller shall use its commercially reasonable best efforts to obtain the Consents set forth in Section 4.1(b) of the Disclosure Schedule, which such consents may be conditioned on the Closing. No Contract or Permit shall be amended (and no right relating thereto shall be waived) in connection therewith. Seller shall not be obligated to any pay any amount to obtain such Consents (including in connection with those set forth on Section 4.1(b) of the Disclosure Schedule). Notwithstanding the foregoing, Seller shall not be obligated to seek any Consents until Purchaser has confirmed to Seller its expectation to consummate the IPO prior to the IPO Cutoff Date or has exercised the Cash Purchase Option.
(c) Seller shall terminate or cause to be terminated prior to Closing each of the existing Real Property Leases listed on Section 4.1(c) of the Disclosure Schedule and obtain a new lease for each Leased Real Property covered thereby, in substantially the form attached hereto as Exhibit I (each, a New Lease ), to be effective at Closing, between each landlord and Purchaser or its designee with respect to such Leased Real Property. Notwithstanding the foregoing, in the event any phase I environmental review of any Leased Real Property identifies any material potential Environmental Liabilities, Purchaser may, in its sole discretion, exclude such Leased Real Property from the transactions
contemplated hereby and elect not to enter into a New Lease with respect thereto (each such excluded Leased Real Property, an Excluded Real Property ).
(d) Seller shall terminate or cause to be terminated prior to Closing all Contracts, transactions, relationships, or other arrangements required to be referenced in Section 2.24 of the Disclosure Schedule.
(e) From the date of this Agreement until the Closing, Seller shall notify Purchaser in writing within three (3) Business Days (but in any event, prior to Closing) after receiving notice or becoming aware of:
(i) any fact, circumstance, event, action, or omission, the existence, occurrence, or taking of which, or failure to take, (A) has had, or is reasonably likely to have, individually or in the aggregate, a Seller Material Adverse Effect, (B) has resulted in, or is reasonably likely to result in, the failure of any of the conditions set forth in Section 5.1 to be satisfied, (C) has led, or could reasonably be excepted to lead to a Breach of any Material Contract or Permit, or (D) constitutes a material Loss or casualty;
(ii) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or the other Transaction Documents;
(iii) any notice or other communication from any Governmental Body in connection with the transactions contemplated by this Agreement or the other Transaction Documents; and
(iv) any Legal Proceedings commenced or, to the Knowledge of Seller, threatened against, relating to, or involving or otherwise affecting Seller that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 2.15 or that relates to the consummation of the transactions contemplated by this Agreement or the other Transaction Documents.
(f) From time to time prior to the Closing, Seller may supplement or amend the Disclosure Schedules hereto with respect to any matter hereafter arising or of which it becomes aware after the date hereof, which, if existing, occurring or known at the date of this Agreement, would have been required to be set forth or described in the Disclosure Schedules. No such supplement, amendment or addition shall be evidence, in and of itself, that the representations and warranties in the corresponding section are no longer true and correct in all material respects or that such items are material. It is specifically agreed that such schedules may be amended to add immaterial, as well as material, items thereto.
(g) Purchasers receipt of information pursuant to Section 4.1(e) , Section 4.1(f) or otherwise shall not (i) affect the conditions set forth in Section 5.1 or any other conditions to the obligations of the Parties, or (ii) be deemed to cure any breach or limit or otherwise affect the remedies available hereunder to Purchaser, including those set forth in Article VI ; except , only , that events or occurrences first occurring after the date hereof shall be deemed cured for purposes of remedies otherwise available hereunder (but not for purposes of the conditions set forth in Section 5.1 ) unless, in the aggregate such events or occurrences result in a failure of any condition set forth in Section 5.1 which failure is not waived.
(h) At Purchasers request, Seller shall send letters and otherwise provide correspondence, in form, substance and timing reasonably approved by Purchaser, to employees, customers, suppliers, and others having business relations with it, notifying such Persons of the transactions contemplated hereby, with the purpose of facilitating an orderly transition of the Business to Purchaser.
Section 4.2 Pre-Closing Contribution and Transfer . Prior to the Effective Time, Seller and Hall shall cause Hall and each Affiliate of Hall (including 450 Services, LLC, a Texas limited liability company; Energy Service Company of Bowie, Inc., a Texas corporation; Hallavai, LLC, a Texas limited liability company; and THI) which holds (i) any assets, properties, and rights reflected on the Balance Sheet (other than any assets constituting Excluded Assets, including any Water Well Assets), or (ii) any assets, properties or rights material to the operation of the Business as presently conducted or as previously conducted within the past thirty-six (36) months (including any idle equipment, but excluding any obsolete or replaced equipment and any assets constituting Excluded Assets (including any Water Well Assets)) to transfer title to such assets, properties or rights to Seller at the sole cost and expense of Seller.
Section 4.3 Access to Information; Financial Statements .
(a) From the date of this Agreement until the Closing, Seller shall: (i) afford Purchaser and its employees, agents, accountants, underwriters, lenders and legal and financial advisors (collectively, Purchasers Agents ) with reasonable access, during normal business hours; provided, that the foregoing access shall be arranged reasonably in advance, to the offices, plants, warehouses, properties, and Books and Records; and (ii) furnish to Purchasers Agents such additional financial and operating data and other information regarding the operations of Seller as Purchaser and Purchasers Agents may from time to time reasonably request. Seller shall reasonably facilitate Purchasers contact and communication with the employees and personnel of Seller, and professionals, representatives, customers, suppliers, vendors, lenders, and distributors of and to the Business, all as requested upon reasonable notice by Purchaser to Seller and during normal business hours after the date of this Agreement, in each case, without undue interference with the day-to-day operation of Sellers business. Seller shall direct such Persons to cooperate with Purchaser in connection with the foregoing. The terms of this Section 4.3 shall not require the disclosure of information to the extent such disclosure, upon the written advice of outside counsel, would cause a waiver of attorney-client privilege. Notwithstanding the foregoing, from the Amendment Date, Purchaser and its agents shall not have access, without the prior written consent of Seller (which may be withheld in Sellers sole discretion), (A) to any Leased Real Property for purposes of conducting any sampling or other invasive investigation, including of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media (except as otherwise expressly provided in Section 4.20 ), (B) to any information to the extent relating to the Water Well Business. From the date of this Agreement through the Closing, Seller shall use good faith efforts to operate the Business in such a manner as to achieve an orderly transition consistent with the mutual business interests of Seller and Purchaser.
(b) From and after the date of this Agreement, Seller shall, and shall use its commercially reasonable efforts to cause its Affiliates and their and their respective officers, directors, managers, employees, agents and representatives to, cooperate with the Purchaser, its Affiliates and their respective agents and representatives in connection with compliance with Purchasers and its Affiliates Tax, financial, or other reporting requirements and audits, including (i) any filings with any Governmental Body, (ii) any filings that may be required by the Securities and Exchange Commission (the Commission ), under securities Laws applicable to the Purchaser and its Affiliates, including the filing by the Purchaser or its Affiliates with the Commission of one or more registration statements to register any securities of Ranger, Inc., Ranger Holdings, Purchaser or any of their Affiliates, under the
Securities Act or of any report required to be filed by Ranger, Inc., Ranger Holdings, Purchaser or any of their Affiliates under the Exchange Act (together with the Securities Act and the rules and regulations promulgated under such acts, the Securities Laws ) (any such filings described in clause (ii), the Filings ), (iii) executing and delivering or causing to be executed and delivered any reasonable and customary external audit firm representation letters as may be reasonably requested by Purchaser or its Affiliates or their respective agents and representatives, (iv) obtaining the consent of the independent auditor(s) that conducted any audit of the Financial Statements or the audited consolidated financial statements of Seller as of and for the year ended April 30, 2017 (the 2017 Year End Financial Statements ) to be named as an expert in any Filing or offering memorandum for any equity or debt financing of Ranger, Inc., Ranger Holdings, Purchaser or any of their Affiliates; and (v) using reasonable efforts to cause the independent auditor(s) that conducted any audit of the Financial Statements or the 2017 Year End Financial Statements to provide customary comfort letters to any underwriter or purchaser in connection with any equity or debt financing of Ranger, Inc., Ranger Holdings, Purchaser or any of their Affiliates with the cost of such comfort letters to be paid by Ranger, Inc., Ranger Holdings, Purchaser or any of their Affiliates. Further, from and after the date of this Agreement, Sellers shall, and shall use its reasonable efforts to cause their Affiliates to, make available to the Purchaser and its Affiliates and their agents and representatives any and all Books and Records or the Purchased Assets in Seller or its Affiliates possession or control reasonably required by the Purchaser, its Affiliates and their agents and representatives, in order for the Purchaser or its Affiliates to prepare, if required to comply with the requirements of the Securities Laws in connection with such Filings, any financial statements relating to Seller or the Purchased Assets meeting the requirements of Regulation S-X under the Securities Act.
(c) Without limiting the generality of Section 4.3(b) , from and after the date of this Agreement, Seller shall, and shall use its commercially reasonable efforts to cause its Affiliates to, cooperate with the independent auditors chosen by the Purchaser ( Purchasers Auditor ) in connection with any audit or review by Purchasers Auditor of any Financial Statements of Seller or related to the Purchased Assets that the Purchaser or any of its Affiliates require to comply with the requirements of the Securities Laws. Such cooperation will include (i) access to Seller and Sellers officers, managers, employees, agents and representatives who were responsible for preparing or maintaining the financial records and work papers and other supporting documents used in the preparation of such financial statements as may be required by Purchasers Auditor to perform an audit or conduct a review in accordance with generally accepted auditing standards or to otherwise verify such financial statements and (ii) delivery of one or more customary representation letters from Seller that are reasonably requested by the Purchaser or Purchasers Auditor to allow such auditors to complete an audit (or review of any financial statements) and to issue an opinion with respect to an audit of those financial statements required pursuant to this Section 4.3(c) . Purchaser will reimburse Seller, within ten (10) Business Days after demand in writing therefor, for any out-of-pocket costs incurred by Seller or their Affiliates in complying with the provisions of this Section 4.3(c) .
(d) Without limiting Section 4.3(b) and Section 4.3(c) , Seller shall provide Purchaser with the 2017 Year End Financial Statements as soon as reasonably practicable after the Closing Date (and in any event no later than June 7, 2017), which 2017 Year End Financial Statements shall be prepared on the same basis as the Financial Statements.
Section 4.4 Operation of Business . Except as contemplated by this Agreement (including Section 4.2 ), during the period from the date of this Agreement to the Closing, Seller shall conduct its operations (including working capital, but specifically excluding cash management) in the Ordinary Course and in material compliance with all applicable Laws, confer with Purchaser as reasonably requested by Purchaser, and use its commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its
relationships with Governmental Bodies, customers, suppliers, and others having business dealings with it to the end that its goodwill and ongoing business shall not be impaired. Without limiting the generality of the foregoing, prior to the Closing, Seller shall not, without the prior written consent of Purchaser (which shall not be unreasonably conditioned, withheld, or delayed), take any action that, had it been taken between the Balance Sheet Date and the date of this Agreement, would have been required to be included in Section 2.7 or Section 2.12 of the Disclosure Schedule, or any action that would reasonably be expected to result in any of the conditions set forth in Article V not being satisfied. Additionally, without the prior written consent of Purchaser (which shall not be unreasonably conditioned, withheld or delayed), Seller shall not, prior to Closing, agree to any material price reduction with any customer.
Section 4.5 Further Assurances; Litigation Support; Books and Records .
(a) If any further action is necessary or desirable to carry out the purposes of this Agreement and the other Transaction Documents, or to consummate the transactions contemplated hereby and thereby, each of the Parties will take such further commercially reasonable action (including the execution and delivery of such further instruments and documents) as Purchaser or Seller reasonably may request; provided, however, that neither Seller, Purchaser or Hall shall be required to incur any out-of-pocket expense in connection therewith.
(b) Prior to the Closing, upon reasonable advance notice, Seller will permit Purchaser and Purchasers representatives and agents to discuss, and will, if requested by Purchaser, assist Purchaser and Purchasers representatives and agents (including by making introductions) in any discussions of, the affairs, finances, and accounts of the Business with key customers, key distributors, and key suppliers of or to the Business.
(c) Within ten (10) Business Days following the Closing, Seller shall deliver, or caused to be delivered, to Purchaser, in electronic format (including a DVD, .zip file, or USB thumb drive), all documents posted as of the Effective Time to the electronic data site hosted by Duff & Phelps and established by Seller for the purpose of providing due diligence materials and information to Purchaser and its agents, employees, and advisors;
(d) From and after the Closing, in the event and for so long as Purchaser actively is involved in, contesting, or defending against any third party Legal Proceeding in connection with any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, Tax matter, failure to act, or transaction involving Seller or the Business relating to events or occurrences prior to or at Closing, Seller shall cooperate reasonably with Purchaser and Purchasers counsel in such involvement, contest, or defense, and provide such testimony and access to their Books and Records as shall be reasonably necessary in connection with such contest or defense; provided however, that the foregoing obligation shall be inapplicable to (i) any instance in which Purchaser or its Affiliates, on the one hand, and Seller, Hall or their respective Affiliates, on the other hand, are in an adversarial relationship in litigation, arbitration or other dispute, in which case such cooperation shall be obtained only by applicable orders of discovery (and the covenants contained in this Section 4.5(d) shall not be considered a waiver by any party of any right to assert the attorney-client privilege), and (ii) in any instance in which any of Section 6.3(a)(iii)(A) or Section 6.3(a)(iii)(C) applies.
(e) As soon as is reasonably practicable after the Closing, Seller will use commercially reasonable efforts to deliver or cause to be delivered to Purchaser at Closing all properties, Books and Records, Contracts, information and documents in its or its Affiliates possession that are part of the Purchased Assets and any remaining properties, Books and Records, Contracts, information and documents that are part of the Purchased Assets that are not already in the possession or control of Purchaser.
(f) Seller and Purchaser agree that each of them will preserve and keep the Books and Records held by it relating to the Business (including accountants work papers) for the longer of: (i) a period of five (5) years from the Closing Date; provided that Purchaser shall only be required to retain such Books and Records in accordance with its corporate records retention policies; and (ii) any longer retention period required by applicable Law. From and after the Closing, Seller and its accountants, lawyers and representatives shall be entitled upon reasonable notice and during normal business hours to have reasonable access, during normal business hours, to and to make copies of relevant Books and Records of the Business with respect to periods or occurrences prior to Closing for any reasonable purpose relating to the ownership of the Business prior to the Closing, including the preparation of Tax Returns.
Section 4.6 Names and Logos . From and after the Closing, Seller shall, and shall cause its Affiliates, not to use any names or logos incorporating or similar to EsCo, Energy Services or Energy Services Company of Bowie or any derivatives thereof or any other logo or trade name ever used in the Business or included in the Purchased Assets. As soon as practicable, but in any event within thirty (30) days after Closing, Seller shall, and shall cause its Affiliates to, change its and their names to names not including the phrase EsCo, Energy Services or Energy Services Company of Bowie or which is otherwise similar to its current name, and must withdraw or change its name in all jurisdictions in which it is qualified to do business as a foreign entity.
Section 4.7 Mail; Payments; Receivables . From and after the Closing, Seller shall promptly (but in any even no later than ten (10) Business Days after the receipt of such inquiry or correspondence) refer to Purchaser all customer, supplier, employee, or other inquiries or correspondence relating to the Purchased Assets and the conduct of the Business after the Closing. From and after the Closing, if Seller or its Affiliates receives or collects any funds relating to any accounts receivable, the Business, or any other Purchased Assets, Seller and its Affiliates shall remit such funds to Purchaser within five (5) Business Days after its receipt thereof. Effective upon the Closing, Seller hereby appoints Purchaser as its true and lawful attorney-in-fact to: (i) receive and open all mail, packages, and other communications addressed to Seller related to the Business; and (ii) demand and receive all accounts receivable and endorse without recourse the name of Seller on any check or any other evidences of indebtedness received by Purchaser on account of the Business and the Purchased Assets transferred to Purchaser hereunder. Seller agrees that the foregoing appointment shall be coupled with an interest and shall be irrevocable. From and after the Closing, Purchaser shall promptly (but in any even no later than ten (10) Business Days after the receipt of such inquiry or correspondence) refer to Seller all customer, supplier, employee, or other inquiries or correspondence relating to the Excluded Assets and the Excluded Liabilities. From and after the Closing, if Purchaser or its Affiliates receives or collects any funds relating to any Excluded Assets, Purchaser and its Affiliates shall remit such funds to Seller within five (5) Business Days after its receipt thereof.
Section 4.8 Public Announcements; Confidentiality .
(a) Unless otherwise required by applicable Law or by the rules of the Stock Exchange, each Party and Hall shall not, and each Party and Hall shall cause its Affiliates, agents, representatives, and professionals not to, make any disclosure or public announcements or otherwise communicate with any news media without the prior written consent of Seller and Purchaser in respect of this Agreement and the other Transaction Documents or the transactions contemplated hereby and thereby (including price and terms); provided , however , that this restriction shall not apply to any disclosures that Purchaser or its Affiliates or their agents or representatives reasonably determine are required to be included in the Filings or in any offering memorandum or similar document for any equity or debt financing of Purchaser or any of its Affiliates. If such disclosure is required by applicable Law, such Party or Hall (as applicable) shall promptly notify Seller and Purchaser in writing and shall disclose only
that portion of such information which such Party or Hall is legally required to be disclosed; provided , however , that such Party or Hall shall promptly notify Seller and Purchaser in writing so that Seller or Purchaser shall be able to seek to obtain, an appropriate protective Order or other reasonable assurance that confidential treatment will be accorded such information . The Confidentiality Agreement, to which an Affiliate of Purchaser and Seller are parties, dated February 15, 2017 (the Confidentiality Agreement ), shall terminate as of Closing.
(b) From and after the Closing, each of Seller and Hall shall, and shall cause their respective Affiliates, agents, representatives, and professionals to, hold in confidence (and not disclose or provide access to any other Person) and not use, any and all confidential or proprietary information, whether written or oral, concerning the Business, except to the extent that Seller or Hall can show that such information: (i) is generally available to and known by the public through no fault of Seller or any of their respective Affiliates or representatives; or (ii) was lawfully acquired by Seller and Hall or any of their respective Affiliates or representatives from and after the Closing from sources unrelated to Purchaser or Seller which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller or any of its respective Affiliates or representatives is compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller or Hall shall promptly notify Purchaser in writing and shall disclose only that portion of such information which Seller or Hall is advised by its counsel in writing is legally required to be disclosed; provided, however, that Seller shall use commercially reasonable efforts to obtain, and immediately notify Purchaser in writing so that Purchaser shall be able to seek to obtain, an appropriate protective Order or other reasonable assurance that confidential treatment will be accorded such information.
Section 4.9 Tax Covenants .
(a) Notwithstanding anything to the contrary set forth in this Agreement, any and all transfer, sales, use, purchase, value added, excise, real property, personal property, intangible stamp, documentary, registration, business, occupation or similar Taxes imposed on, or resulting from, the transfer of any Purchased Assets pursuant to this Agreement (excluding any franchise taxes imposed on Seller) and all related penalties and interests (collectively Transfer Taxes ) shall be paid one half by Seller and one half by Purchaser. To the extent any Transfer Taxes are imposed on, or incurred by, either Party in excess of such amount as set forth herein, the other Party shall promptly reimburse such first Party for one half of such Transfer Taxes. Seller and Purchaser shall reasonably cooperate to prepare and file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and all costs of such preparation and filing shall be shared equally by Seller and Purchaser.
(b) Seller shall timely file Tax Returns in the jurisdictions that impose Taxes on Seller or where Seller has a duty to file Tax Returns of the transactions contemplated by this Agreement and the other Transaction Documents in the form and manner required by such taxing authorities. In Texas and New Mexico, Seller shall timely apply for any available tax clearance certificate (a Tax Clearance Certificate ). Seller shall use reasonable efforts to obtain any such Tax Clearance Certificates prior to the Closing. If any taxing authority asserts that any such Tax is due, Seller shall either promptly dispute the asserted Taxes in any available administrative or judicial proceeding or promptly pay any and all such amounts and shall provide evidence to Purchaser that such Liabilities have been paid in full or otherwise satisfied.
(c) All real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to any Purchased Assets for a taxable period which includes (but does not end on) the Closing Date, whether or not imposed or assessed before or after the Closing Date, shall be apportioned between Seller, on one hand, and Purchaser, on the other hand, based on the number of days of such taxable period through the Closing Date (the Pre-Closing Property Tax Period ) and the number
of days of such taxable period after the Closing Date (the Post-Closing Property Tax Period ). Seller shall be liable under this Section 4.9(c) for the proportionate amount of such Taxes that is attributable to the Pre-Closing Property Tax Period, and Purchaser shall be liable for the proportionate amount of such Taxes that is attributable to the Post-Closing Property Tax Period. Within ninety (90) days after the Closing Seller and Purchaser shall present a statement to the other setting forth the amount of reimbursement to which each is entitled under this Section 4.9(c) together with such supporting evidence as is reasonably necessary to calculate the amount of such reimbursement. Thereafter, upon receipt of any bill for such Taxes, Purchaser or Seller, as applicable, shall notify the other Party of the receipt of such bill and shall present a statement to the other Party setting forth the amount of reimbursement to which it shall be entitled under this Section 4.9(c) upon payment of such bill, together with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Payment of any such reimbursement amount shall be made by the Party owing it to the Party to which it is owed within ten (10) days after delivery of such statement. In the event that Seller or Purchaser shall make any payment for which it is entitled to reimbursement under this Section 4.9(c) , the other Party shall make such reimbursement promptly, but in no event later than ten (10) days after the presentation of a statement setting forth the amount of reimbursement to which the presenting Party is entitled, along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement.
(d) Purchaser, and Seller agree to furnish or cause to be furnished to each other, upon reasonable request, as promptly as practicable, such information and assistance relating to the Business, the Purchased Assets and Assumed Liabilities (including access to Books and Records) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any taxing authority, and the prosecution or defense of any Action relating to any Tax. Any expenses incurred in furnishing such information or assistance shall be borne by the Party requesting it.
Section 4.10 Exclusive Dealing . During the period from the date of this Agreement through the Closing or the earlier termination of this Agreement, Seller and Hall shall not, and shall cause their Affiliates and its and their respective officers, directors, employees, agents, consultants, members, shareholders, representatives and advisors to not, directly or indirectly:
(a) initiate, solicit, facilitate or encourage any inquiry, proposal or offer from any Person (other than Purchaser or its Affiliates) relating to a possible Acquisition Transaction;
(b) participate in any discussions, communications (except for unconditional rejection), conversations or negotiations or enter into any agreement with (whether of a binding or nonbinding nature), or provide any information to, any Person (other than Purchaser or its Affiliates) relating to or in connection with a possible Acquisition Transaction; or
(c) respond to or entertain any inquiry, proposal or offer from any Person (other than Purchaser or its Affiliates) relating to a possible Acquisition Transaction.
Each of Seller and Hall further agrees that it shall, prior to the earlier of the Closing or the termination of this Agreement in accordance with its terms, promptly notify Purchaser in writing of any proposal or offer relating to a possible Acquisition Transaction, including the identity of the Person making or submitting such proposal or offer, and the material terms thereof (including a copy of any written inquiry, proposal, offer, term sheet, letter of intent, indication of interest or similar document or agreement) received by Seller or Hall or any representative thereof from the date of this Agreement through the Closing and shall promptly provide any information reasonably requested by Purchaser related thereto.
Section 4.11 Non-Competition; Non-Solicitation .
(a) Hall acknowledges that as a result of his affiliation with and involvement in the operation of Seller, he is familiar with the trade secrets and other confidential information of Seller and has significantly and uniquely contributed to the development and maintenance of the goodwill of Seller throughout the States of New Mexico, Oklahoma and Texas (the Territory ). Hall further acknowledges and agrees that the Business currently operates and is reasonably expected to operate within the Territory. Accordingly, Hall agrees to the covenants set forth in this Section 4.11 and acknowledges that Purchaser would not have entered into this Agreement but for Halls agreement to the restrictions set forth in this Section 4.11 .
(b) For a period of four (4) years from and after the Closing Date (the Restricted Period ), Hall shall not, directly or indirectly, own, operate, lease, manage, control, engage in, invest in, lend to, own any debt or equity security or interest of, permit his name to be used by, act as a director, manager, partner, consultant, or advisor to, render services for or to (alone or in association with any Person, including any family member of Hall), or otherwise participate or assist any Person other than Purchaser in any manner in any business that is engaged in the Business anywhere in the Territory (including any business selling the same or similar products or services); provided, however, that nothing in this Agreement shall (i) prohibit Hall from holding the Equity Interest or a passive beneficial ownership interest of less than five percent (5%) of the outstanding publicly traded equity securities of any entity or (ii) prevent Hall from continuing to operate the Water Well Business as currently conducted (or as it may be conducted in the future, provided that any such future conduct does not involve the Business).
(c) During the Restricted Period, Hall shall not, directly or indirectly, and shall cause his Affiliates not to, anywhere in the Territory: (i) hire, engage, or solicit (or attempt any of the foregoing) for employment (or engagement as a consultant) any person who (A) was employed (or engaged as a consultant) by Seller during the twelve (12) months prior to Closing, or (B) is or was employed (or engaged as a consultant) by Purchaser or by its Affiliates (in connection with the Business), or encourage or induce or attempt to encourage or induce any such employee or consultant to leave such employment or engagement; provided that the foregoing restriction shall not apply to (x) generalized searches for employees through media advertisements of general circulation, employment search firms, open job fairs or other similar means which are not specifically targeted at such employees or (y) employees who leave the employment of Purchaser or its Affiliates, whether voluntarily or involuntarily, provided that such cessation of employment was not the result of any encouragement by Hall or any solicitation otherwise prohibited hereby; (ii) encourage or induce or attempt to encourage or induce any Person who is or was within one (1) year prior to Closing a customer, supplier, vendor, licensee, licensor, franchisee, or other relation of any of Seller, Purchaser, or any of Purchasers Affiliates engaged in the Business (collectively, the Company Parties ) to cease doing business or modify the way it does business with Purchaser or its Affiliates, or in any way interfere with or otherwise affect the relationship between any such customer, supplier, licensee, licensor, franchisee, or business relation of or any of Purchasers Affiliates engaged in the Business; or (iii) solicit any Company Party for a business competitive with the Business in the Territory (including any business selling the same products or services or products and services functionally equivalent to those sold by Seller).
(d) Hall acknowledges that the covenants contained herein are in addition to those set forth in any other agreement Hall may enter into with Purchaser and/or its Affiliates and nothing herein is intended to or shall limit the covenants contained therein or vice versa. Hall acknowledges that the covenants contained herein are necessary to protect and preserve the trade secrets and other confidential information and goodwill acquired by Purchaser in connection with the acquisition contemplated by this Agreement and other Transaction Documents.
(e) The Parties hereto acknowledge and agree that Purchaser and each of its Affiliates, successors, and assigns would suffer irreparable harm from a Breach of Section 4.8 or this Section 4.11 and that money damages would not be an adequate remedy for any such Breach. Therefore, in the event a Breach or threatened Breach of Section 4.8 or this Section 4.11 , Purchaser and its successors and assigns, in addition to other rights and remedies available at Law or in equity, shall be entitled to specific performance, injunctive, and other equitable relief in order to enforce or prevent any Breach of the provisions of this Agreement. The restrictive covenants set forth in Section 4.8 or this Section 4.11 shall be construed as agreements independent of any other provision in this Agreement, and the existence of any claim or cause of action of any Party against Purchaser, whether predicated upon this Agreement or any other Transaction Document or otherwise, shall not constitute a defense to the enforcement by Purchaser of any restrictive covenant contained in Section 4.8 or this Section 4.11 . Purchaser has fully performed all obligations entitling it to the restrictive covenants set forth in Section 4.8 or this Section 4.11 , and such restrictive covenants therefore are not executory or otherwise subject to rejection under Chapter 11 of Title 11 of the United States Code.
(f) If the final judgment of a court of competent jurisdiction declares any term or provision of Section 4.8 or this Section 4.11 to be invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified to cover the maximum duration, scope or area permitted by Law. In addition, in the event of an alleged Breach by any Party of Section 4.8 or this Section 4.11 , the Restricted Period shall be tolled with respect to such Party until such Breach has been duly cured.
Section 4.12 Bulk Sales Laws . The Parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction (collectively, Bulk Sales Laws ) that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Purchaser.
Section 4.13 Employees and Employee Benefits .
(a) On the Closing Date, Purchaser shall offer employment to all Business Employees contingent upon their passing any pre-condition to being employed by Purchaser (including any drug or alcohol screening or other reasonable testing not inconsistent with the testing Purchaser requires of its existing employees) (such employees accepting such offer, the Transferred Employees ). For a period of one (1) year following the Closing Date, Purchaser shall provide, subject to certain exceptions for related party employment arrangements, each Transferred Employee that remains employed by Purchaser with base salary or base wages (as applicable) and employee benefits (excluding defined benefit pension benefits, change or control benefits, retention bonuses and equity incentive awards) that are substantially similar, in the aggregate, to the salaries, wages and benefits being provides by Seller immediately prior to the Closing. Seller shall use commercially reasonable efforts to cooperate with Purchasers efforts to cause all terminated Business Employees that Purchaser desires to hire to accept such employment. Seller shall bear any and all obligations of and Liabilities under WARN or applicable state law resulting from employment losses relating to terminations of Business Employees that result from a failure of any pre-condition to being employed by Purchaser. Except as otherwise expressly set forth in this Section 4.13(a) , Seller shall bear all other termination costs incurred by Seller in connection with Sellers termination of employees within the week following the Closing, excluding termination costs related to Business Employees who are not offered employment with Purchaser or who are not offered employment in compliance with the second sentence of this Section 4.13(a) (the Specified Termination Costs ). Purchaser acknowledges and agrees that it will bear the Specified Termination Costs.
(b) Prior to Closing, Purchaser shall use commercially reasonable efforts to enter into retention bonus agreements with certain Seller employees specified by Purchaser providing for (i) the payment to such specified employees of retention bonuses in an aggregate amount of $500,000, (ii) such payments being made on or prior to the one (1) year anniversary of Closing (the Retention Payments ) and (iii) each such employee agreeing to be bound by restrictive covenants (including noncompetition and nonsolicitation covenants), in each case on terms and conditions acceptable to Purchaser and such employee; all such amounts to be borne and paid by Purchaser pursuant to Section 1.1(c)(iv) . Such agreements may also provide for additional amounts to be payable contemporaneously or immediately following the Closing, which amounts will be borne by Seller (and not assumed by Purchaser) pursuant to Section 1.5(b)(i)(F) .
(c) Except for accrued payroll and accrued vacation wages included in the Final Closing Net Working Capital, Seller shall be solely responsible, and Purchaser shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor, or consultant of the Business, including hourly pay, commission, bonus, salary, accrued vacation, sick time, or other paid time off, fringe, pension or profit sharing benefits, or severance pay for any period relating to the service with Seller at any time prior to the Closing, and Seller shall pay all such amounts to all entitled persons prior to the Closing.
(d) Except as expressly set provided in Section 4.13(h) below with respect to the Employee Benefit Plans described in Section 4.13(h) below and any benefits provided thereunder, Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health, accident, or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors, or consultants of the Business or the spouses, dependents, or beneficiaries thereof, which claims relate to events occurring prior to the Closing. Seller also shall remain solely responsible for all workers compensation claims of any current or former employees, officers, directors, independent contractors, or consultants of the Business which relate to events occurring prior to the Closing. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due. Except as expressly set provided in Section 4.13(h) below with respect to the Employee Benefit Plans described therein, Purchaser shall not assume any Liability under any of the Employee Benefit Plans.
(e) In accordance with Treasury Regulation 54.4980B-9, Purchaser and its Affiliates agree to assume responsibility for and perform all obligations under Section 4980B of the Code (COBRA) with respect to all employees of the Business and their covered dependents and M&A Qualified Beneficiaries (as such term is defined in Treasury Regulations Section 54.4980B-9) in connection with the transactions contemplated by this Agreement and the other Transaction Documents and arising under Part 6 of Title I of ERISA and Section 4980B of the Code.
(f) Nothing contained herein shall (i) be construed to restrict in any way the ability of Purchaser to (A) amend, terminate or modify the duties, responsibilities or employment of any employee or independent contractor, including any Transferred Employee, or (B) to amend, terminated or modify any employee benefit plan or program maintained by Purchaser, (ii) be treated as an amendment or other modification of any compensation or benefit arrangement of Purchaser, or (iii) be construed to create any third-party beneficiary rights in any Business Employee, Transferred Employee, service provider, independent contractor, consultant or any other Person, whether in respect of continued service or resumed service, compensation, benefits or otherwise.
(g) With respect to employment Tax matters (i) Purchaser shall not assume Sellers obligation to prepare, file and furnish IRS Form W-2s with respect to the Transferred Employees for the year including the Closing Date; (ii) Seller and Purchaser shall utilize the standard procedure with
respect to each Transferred Employee pursuant to the procedure prescribed by Section 4 of Revenue Procedure 2004-53; and (iii) Seller and Purchaser shall work in good faith to adopt similar procedures under applicable wage payment, reporting and withholding Laws for all Transferred Employees in all appropriate jurisdictions.
(h) Effective as of the Closing, Purchaser (or an Affiliate) will assume the sponsorship of the Employee Benefit Plans listed on Section 1.1(a)(xvii) of the Disclosure Schedule, for which Purchaser will assume the entire Liability relating to the Business Employees who are eligible for benefits under such Plans, whether those benefits are attributable to service with the Seller or with the Purchaser (it being acknowledged and agreed that such assumption shall not preclude the availability of any otherwise-applicable indemnity for breaches or any representations or warranties in respect of such Employee Benefit Plans).
Section 4.14 Dissolution . Seller shall not become insolvent or dissolve for eighteen (18) months after the Closing or thereafter if any claim is pending relating to this Agreement.
Section 4.15 Employee Restrictive Covenant Agreements . Notwithstanding anything to the contrary set forth in this Agreement, to the extent (and only to the extent) of benefit and not of burden to Purchaser, and to the extent assignable, all non-competition, non-solicitation and restrictive covenant agreements and arrangements, and all invention assignments and work made for hire provisions regarding Seller arising by operation of Law or contract (including pursuant to any Governing Document) with respect to the relationship between Seller and any of its current or former members, shareholders, employees or independent contractors, in each case relating to the Business, are hereby assigned, effective as of the Closing, by Seller to Purchaser, in accordance with, and to the extent specified in, Article I , and shall be enforced in accordance with their respective terms (including governing law). To the extent that any such non-competition, non-solicitation or restrictive covenant agreements and arrangements and any such invention assignments and work made for hire provisions are not assignable, Seller shall: (a) use commercially reasonable efforts at the Purchasers expense to enforce such agreements or provisions on behalf of Purchaser or otherwise assign to Purchaser its chose in action related to such agreements or provisions; (b) not enforce any of same without the prior written consent of Purchaser; and (c) waive the application of such agreements or provisions as they may apply to any Transferred Employees employment with or engagement by Purchaser or any of its Affiliates.
Section 4.16 Release of Liens . At or prior to Closing, Seller shall use commercially reasonable efforts to cause the release of all Liens (except Permitted Liens) on all Purchased Assets.
Section 4.17 Insurance . Seller shall use commercially reasonable efforts to obtain, at Purchasers sole cost and expense, tail or extended reporting period coverage for two (2) years following the Closing for each claims-made insurance policy maintained by Seller (if any) with respect to the Business or covering any Purchased Asset or Assumed Liability. Purchaser acknowledges that from and after the Effective Time, the Purchased Assets shall cease to be insured by Sellers or its Affiliates insurance policies or by any of their self-insured programs. Notwithstanding the foregoing, effective upon the Closing, Seller hereby appoints Purchaser as its true and lawful attorney-in-fact, in the name of Seller, but on behalf of Purchaser, to pursue and enforce any and all rights of Seller under the occurrence based insurance policies maintained by Seller to the extent that any benefits and proceeds thereunder are included in the Purchased Assets pursuant to Section 1.1(a)(xiii) . Seller agrees that the foregoing appointment shall be coupled with an interest and shall be irrevocable. Notwithstanding anything to the contrary set forth in this Agreement, all calculations of Net Working Capital shall be net of cash received from insurers after the date of this Agreement with respect to assets.
Section 4.18 No Additional Acquisitions of Class A Common Stock . Neither of Seller or Hall, or any of their Affiliates, will acquire, directly or indirectly, by purchase or otherwise, any shares of Class A Common Stock either as part of the IPO or within 180 days from the Trading Date.
Section 4.19 Cash Purchase Option . If the Reorganization and the IPO are not consummated by September 29, 2017 (the IPO Cutoff Date) , or if prior to the IPO Cutoff Date, Purchaser elects to abandon attempts to consummate the IPO prior to the IPO Cutoff Date, Purchaser may, by written notice to Seller delivered no later than 5 pm Central Time on the date that is two (2) Business Days after the IPO Cutoff Date or Purchasers election to abandon attempts to consummate the IPO prior to the IPO Cutoff Date (as applicable), inform Seller of its intent to consummate the transactions contemplated hereby using the consideration specified in Section 1.3(a)(i)(B) (the Cash Purchase Option ).
Section 4.20 Certain Pre-Closing Environmental Matters . With regard to the leased facility located at 871 Feed Store Road in Bowie, Texas (the Bowie Facility ), Seller shall implement the proposal attached hereto as Exhibit H , to (i) remove all detrital material and dispose of it properly at Sellers expense, (ii) remove all soil stained areas through surface soil excavation, and (iii) conduct a reasonable and sufficient amount of confirmation sampling of the excavated soil areas to determine if any residual petroleum is present above applicable risk levels for commercial properties. The Seller is not required to obtain a no further action letter by a Governmental Body with regard to the cleanup. If the results of the confirmation sampling indicate that further cleanup is required, Seller shall conduct the additional cleanup at its own expense to the Minimum Standards contained in Section 6.6(b) . Seller shall provide reasonable notice to Purchaser prior to commencing such work and shall allow Enercon Services, Inc. or another reputable environmental consultant chosen by Purchaser to observe, and provide reasonable input with respect to, such work.
ARTICLE V
CLOSING CONDITIONS
Section 5.1 Conditions to Obligation of Purchaser . The obligation of Purchaser to consummate the transactions contemplated by this Agreement and the other Transaction Documents is subject to the fulfillment prior to the Closing of each of the following conditions, any one or more of which (to the extent permitted by applicable Law) may be waived by Purchaser (provided that no such waiver shall be deemed to have cured any Breach of any representation, warranty, or covenant made in this Agreement):
(a) The representations and warranties of Seller contained in this Agreement, considered in the aggregate, shall be true, correct, and complete in all material respects (other than (i) those representations and warranties that are Fundamental Reps or are qualified by Material Adverse Effect or similar qualification, which shall each be true, correct, and complete in all respects and (ii) those representations and warranties set forth in Section 2.8 (Taxes), Section 2.13 (Employee Benefits), Section 2.15 (Litigation), Section 2.16 (Compliance with Laws; Permits) and Section 2.17 (Environmental Matters), which (A) shall each be true, correct and complete in all respects as would not, individually or in the aggregate be reasonably likely to result in any unindemnified post-Closing Liability to Purchaser of at least $450,000, and (B) in the case of Section 2.15 (Litigation), would not result in a claim which would be subject to any of clauses (A), (B), (D) or (E) of Section 6.3(a)(iii) ; in all cases, both as of the date of this Agreement and as of the Closing (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true, correct, and complete as of such date).
(b) Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller at or
prior to the Closing, provided that the obligations and covenants required by Section 4.8 and Section 4.11 shall be complied with in all respects.
(c) There shall not have occurred a Seller Material Adverse Effect.
(d) No temporary restraining Order, preliminary or permanent injunction, cease and desist Order, or other Order issued by any Governmental Body, shall be in effect prohibiting or preventing the transactions contemplated by this Agreement or any other Transaction Document.
(e) Purchaser or its Affiliates shall have obtained all Permits set forth in Section 5.1(e) of the Disclosure Schedule (the Closing Permits ) from applicable Governmental Bodies to the extent any such Permit of Seller is not transferable or assignable to Purchaser pursuant to this Agreement.
(f) The Reorganization and IPO shall have been consummated;
(g) Seller shall have delivered the following to Purchaser:
(i) a certificate, dated as of the Closing Date, executed by Seller to the effect that the conditions set forth in Section 5.1(a) , Section 5.1(b) , Section 5.1(c) , and Section 5.1(d) have been satisfied;
(ii) the Bill of Sale, duly executed and delivered by Seller;
(iii) certificates of title duly endorsed and transferred to Purchaser for all titled equipment and vehicles included in the Purchased Assets;
(iv) a certificate of the secretary of Seller certifying to the accuracy and completeness of and attaching (A) its Governing Documents, (B) a copy of resolutions duly adopted by the members, shareholders, board and managers, as applicable, of Seller approving this Agreement and the execution and delivery of the Transaction Documents, and (C) the incumbency of the officers signing the Transaction Documents on behalf of Seller (together with their specimen signatures);
(v) certification of non-foreign status for Seller dated as of the Closing Date complying with the requirements of Treasury Regulations Section 1.1445-2(b)(2) in form and substance reasonably satisfactory to Purchaser;
(vi) a good standing certificate, dated within ten (10) days of the Closing Date, of Seller certified by the Secretary of State of (A) the jurisdiction of formation of Seller, and (B) each other jurisdiction in which such entity is qualified to do business as a foreign entity;
(vii) payoff letters (the Payoff Letters ) in form and substance reasonably satisfactory to Purchaser executed by each Person to whom Seller owes any Indebtedness;
(viii) evidence reasonably satisfactory to Purchaser of the release of all Liens (except for Permitted Liens) on any assets of Seller;
(ix) the Employment Agreement, duly executed and delivered by Todd Brown;
(x) a security agreement, in the form attached hereto as Exhibit E (the Security Agreement ), duly executed and delivered by Seller;
(xi) the Intellectual Property Assignment Agreement, duly executed and delivered by Seller;
(xii) evidence of termination of each Real Property Lease listed on Section 4.1(c) of the Disclosure Schedule, duly executed by each landlord party thereto, together with New Leases for each such Leased Real Property (other than with respect to any Excluded Real Property), duly executed by each landlord party thereto;
(xiii) evidence of the assignment of each Real Property Lease not listed on Section 4.1(c) of the Disclosure Schedule (other than with respect to any Excluded Real Property), duly executed by each landlord party thereto;
(xiv) a statement of the Seller Transaction Expenses and Change of Control Payments (to the extent then knowable), in form and substance reasonably satisfactory to Purchaser;
(xv) a statement of the auditor fees associated with the audit of Sellers financial statements for the nine (9) months ended January 31, 2017, in form and substance reasonably satisfactory to Purchaser;
(xvi) a statement of the aggregate Reimbursable CapEx Expenditure, in form and substance reasonably satisfactory to Purchaser;
(xvii) all items required to be referenced in Section 2.24 of the Disclosure Schedule shall have been terminated;
(xviii) evidence reasonably acceptable to Purchaser that Seller has obtained tail or extended reporting period coverage for Sellers claims-made insurance policies (if any) for two (2) years following the Closing;
(xix) from Seller, an executed Texas Comptroller of Public Account Forms 01-917, Statement of Occasional Sale, for the Purchased Assets that it owns and uses in the Business;
(xx) the Equity Documents, executed by the applicable Seller (or their designees), as well as such additional documents as reasonably requested by Purchaser or Ranger, Inc. with respect to the Equity Interest in form and substance satisfactory to the applicable Parties;
(xxi) from Seller, a duly completed and executed IRS Form W-9 establishing that Seller is exempt from U.S. back-up withholding;
(xxii) such documents, if any, as are necessary to transfer the Employee Benefit Plans listed on Section 1.1(a)(xvii) of the Disclosure Schedule to Purchaser, duly executed by Seller and the administrator(s) of such plans (as applicable or necessary);
(xxiii) evidence reasonably acceptable to Purchaser that Hall and each of his Affiliates has transferred all personal property owned by Hall and used in the Business to Seller; and
(xxiv) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
Section 5.2 Conditions to Obligation of Seller . The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the fulfillment prior to the Closing of each of the following conditions, any one or more of which (to the extent permitted by applicable Law) may be waived by Seller (provided that no such waiver shall be deemed to have cured any Breach of any representation, warranty, or covenant made in this Agreement):
(a) The representations and warranties of Purchaser contained in this Agreement, considered in the aggregate, shall be true, correct, and complete in all material respects (other than those representations and warranties that are Fundamental Reps or are qualified by Material Adverse Effect or similar qualification, which shall be true, correct, and complete in all respects) both as of the date of this Agreement and as of the Closing, other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true, correct, and complete as of such date.
(b) Purchaser shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing.
(c) There shall not have occurred a Purchaser Material Adverse Effect.
(d) No temporary restraining Order, preliminary, or permanent injunction, cease and desist Order or other order issued by any Governmental Body shall be in effect prohibiting or preventing the transactions contemplated by this Agreement or any other Transaction Document.
(e) Purchaser shall have delivered the following to Seller:
(i) the Closing Cash Consideration;
(ii) a certificate, dated as of the Closing Date, executed by a duly authorized officer or manager of Purchaser to the effect that the conditions set forth in Section 5.2(a) , Section 5.2(b) , Section 5.2(c) and Section 5.2(d) have been satisfied;
(iii) a certificate of an officer or manager of Purchaser certifying to the accuracy and completeness of and attaching (A) a copy of the resolutions duly adopted by the members, managers and/or directors, as applicable, of Purchaser and Ranger, Inc. approving this Agreement and the execution and delivery of the Transaction Documents, and (B) the incumbency of the officers or managers signing the Transaction Documents on behalf of Purchaser (together with their specimen signatures);
(iv) a good standing certificate, dated within ten (10) days of the Closing Date, of Purchaser and Ranger, Inc. certified by the Secretary of State of Delaware;
(v) the Notes, duly executed and delivered by Purchaser and Ranger, Inc.;
(vi) the Intellectual Property Assignment Agreement, duly executed and delivered by Purchaser;
(vii) the Bill of Sale, duly executed and delivered by Purchaser;
(viii) New Leases for each Leased Real Property (other than with respect to any Excluded Real Property), duly executed by Purchaser or its Affiliate;
(ix) a certificate representing the Equity Interest, if such Equity Interest is certificated, and if such Equity Interest is not certificated, reasonable evidence regarding the issuance thereof;
(x) the Equity Documents, duly executed and delivered by Ranger, Inc. or such other applicable party;
(xi) such documents, if any, as are necessary to transfer the Employee Benefit Plans listed on Section 1.1(a)(xvii) of the Disclosure Schedule to Purchaser, duly executed by Purchaser (as applicable or necessary);
(xii) the Security Agreement, duly executed and delivered by Purchaser and Ranger, Inc.;
(xiii) a Guaranty Agreement in the form attached hereto as Exhibit F , duly executed by the Affiliates of Purchaser who are party thereto; and
(xiv) such other documents, instruments, or certificates as shall be reasonably requested by Seller or its counsel.
Section 5.3 Frustration of Closing Conditions . None of Seller or Purchaser may rely on the failure of any condition set forth in Section 5.1 or Section 5.2 , as the case may be, to be satisfied if such failure was caused by such partys failure to use its required efforts to consummate the transactions contemplated hereby, as required by and subject to Section 4.1 ; provided, however, that Purchaser may, in its sole discretion, elect to not pursue the IPO.
Section 5.4 Extension; Waiver . At any time prior to the Closing, either Seller or Purchaser may (a) extend the time for the performance of any of the obligations or other acts of the other Person, (b) waive any inaccuracies in the representations and warranties of the other Person contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement but such waiver of compliance with such agreements or conditions shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.
Section 5.5 Estoppel . Purchaser hereby acknowledges and agrees that, as of the Amendment Date, Purchaser does not have actual knowledge, following a reasonably diligent inquiry, of any Breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnity Obligations of Seller . Subject to the limitations set forth in this Agreement, Seller covenants and agrees to defend, indemnify, and hold harmless Purchaser, its Affiliates, and each of their respective officers, directors, managers, members, partners, employees, agents, advisers, and representatives and the respective successors and assigns of any of the foregoing (collectively, the Purchaser Indemnitees ), from and against, and to pay or reimburse Purchaser Indemnitees for, any and all Losses, directly or indirectly based on, resulting from, arising out of, in connection with, or relating to:
(a) any misrepresentation, inaccuracy, or Breach of any representation or warranty of Seller contained in this Agreement or any of the other Transaction Documents or in any certificate or agreement delivered in connection herewith or therewith;
(b) any failure of Seller to perform or comply with any covenant or agreement made or contained in this Agreement or any other Transaction Document or in any certificate or agreement delivered in connection herewith or therewith, or fulfill any obligation in respect thereof;
(c) any Indebtedness (except to the extent Purchaser fails to make the payments of Indebtedness required by it under Section 1.5(b) of this Agreement);
(d) any Excluded Asset or Excluded Liability;
(e) any Seller Transaction Expenses or Change of Control Payments (except to the extent Purchaser fails to make the payments of Seller Transaction Expenses or Change of Control Payments required by it under Section 1.5(b) of this Agreement); and/or
(f) any matter listed or required to be listed in Section 2.15 of the Disclosure Schedule.
Section 6.2 Indemnity Obligations of Purchaser . Purchaser covenants and agrees to defend, indemnify, and hold harmless Seller, its Affiliates, and each of their respective officers, directors, managers, members, partners, employees, agents, advisers, and representatives and the respective successors and assigns of any of the foregoing (collectively, the Seller Indemnitees ) from and against, and to pay or reimburse Seller Indemnitees for, any and all Losses, directly or indirectly based on, resulting from, arising out of, in connection with, or relating to:
(a) any misrepresentation, inaccuracy, or Breach of any representation or warranty of Purchaser contained in this Agreement or any other Transaction Document or in any certificate or agreement delivered in connection herewith or therewith;
(b) any failure of Purchaser to perform or comply with any covenant or agreement made or contained in this Agreement or any other Transaction Document or in any certificate or agreement delivered in connection herewith or therewith, or fulfill any obligation in respect thereof;
(c) any Taxes of Purchaser or any Affiliate of Purchaser for all Tax periods, and any Taxes that relate to the Purchased Assets, the Business, or any Transferred Employee for all Post-Closing Periods (regardless of when assessed); and/or
(d) any failure of Purchaser to discharge the Assumed Liabilities.
Section 6.3 Indemnification Procedures .
(a) Third Party Claims .
(i) In the case of any claim asserted by a third party (a Third Party Claim ) against a Person entitled to indemnification under this Agreement (the Indemnified Party ), notice shall be given by the Indemnified Party to the party required to provide indemnification (the Indemnifying Party ) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought (x) describing in reasonable detail the specific matter that constitutes the basis for such Third Party Claim, the facts known to the Indemnified Party constituting or giving rise to such Third Party Claim, and stating that Losses exist and the amount or good faith estimate of the Losses from such Third Party Claim, (y) specifying in reasonable detail the individual items of such Losses included in the amount so stated, and (z) providing such documents and other information with respect to such Third Party Claim and Losses as are in the possession of or reasonably available to the Indemnified Party so that the Indemnifying Party may assess such Third Party Claim. If the Indemnifying Party provides a written notice to the Indemnified Party within ten (10) days after its receipt of notice of such claim that it will indemnify and hold the Indemnified Parties harmless from all Losses related to such Third Party Claim (subject to any applicable limitations specified herein, including those in Section 6.5 ), the Indemnified Party shall permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of such Third Party Claim or any Legal Proceeding with a third party resulting therefrom; provided , however , that: (A) the counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be subject to the approval of the Indemnified Party, not to be unreasonably withheld, conditioned or delayed; (B) the Indemnified Party may participate in such defense at such Indemnified Partys expense (such expense to be borne by the Indemnified Party only at such times during which the Indemnifying Party has properly assumed and maintained such defense); and (C) except as otherwise provided in this Agreement, the failure by any Indemnified Party to give notice of a Third Party Claim to the Indemnifying Party as provided in this Agreement shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement (or affect such indemnification obligations), except and only to the extent that, as a result of such failure to give notice, the defense against such claim is materially impaired.
(ii) Except with the prior written consent of the Indemnified Party, not to be unreasonably withheld, no Indemnifying Party shall consent or agree to any settlement or entry of any judgment or Order. Without limiting the generality of the immediately preceding sentence, if an Indemnifying Party consents or agrees to any settlement or entry of any judgment or Order in contravention of this Agreement, no amounts paid in connection therewith shall be included with respect to the Cap. Notwithstanding the foregoing, except with the prior written consent of the Indemnified Party, not to be unreasonably withheld, conditioned or delayed, no Indemnifying Party, in the defense of any Third Party Claim, shall consent or agree to any settlement or entry of any judgment or Order or enter into any settlement that: (A) includes a finding or admission of any Breach of Law or the rights of any Person; (B) does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party and its Affiliates of a general release (without payment by, or cost or expense to, or adverse impact upon, the Indemnified Party) relating to such Third Party Claim; or (C) that does not provide for the Indemnifying Party to fully pay and discharge all Liabilities directly or indirectly relating to the applicable Third Party Claims (subject to the Indemnified Partys liability for amounts equal to the Basket, if applicable). In the event the Indemnified Party fails to accept any settlement offer proposed by the Indemnifying Party (x) that satisfies all of the conditions set forth in the immediately preceding sentence (including not containing the items listed in clauses (A) through
(C) of such sentence), (y) that only involves monetary damages and (z) which is accepted by the opposing party or its counsel with respect to any Third Party Claim, any such amounts ultimately payable with respect thereto in excess of such settlement offer (including if such Third Party Claim is ultimately settled for an amount in excess of the rejected settlement offer, any defense costs subsequent to the rejection of such settlement offer) shall be paid by the Indemnified Party.
(iii) Notwithstanding anything in this Agreement to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense against a Third Party Claim if: (A) the claim for indemnification relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation, or investigation; (B) the claim seeks, as a material part thereof, any material injunction, specific performance, or any other material equitable or non-monetary relief against the Indemnified Party; (C) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party or that there are legal defenses available to the Indemnified Party and the Indemnifying Party which differ; (D) Liability for claims under Section 6.1(a) which, after taking into account any applicable limitations specified herein (including those in Section 6.5 ) are reasonably likely to result in liability to the Indemnified Parties which exceeds the liability of the Indemnifying Party; (E) the party bringing the claim is (x) a customer, vendor or supplier of the Indemnified Party, (y) such customer, vendor or supplier is listed or required to be listed in Section 2.21(a) or Section 2.21(b) of the Disclosure Schedule and (z) the claim alleges, or could reasonably be expected to allege, damages in a dollar amount equal to or in excess of ten percent (10%) of the dollar amount of sales or purchases by or from such customer, vendor or supplier during the 12-month period ended April 30, 2017; (F) the Indemnifying Party fails to reasonably prosecute or defend such claim; or (G) the Indemnifying Party has not acknowledged in writing its unconditional obligation to indemnify the Indemnified Party for all Liabilities and Losses relating to such Third Party Claim (subject to any applicable limitations specified herein, including those in Section 6.5 ).
(iv) If the Indemnifying Party does not accept the defense of a Third Party Claim within ten (10) days after receipt of the written notice thereof from the Indemnified Party described above (or if the Indemnifying Party or claim fails to at all times meet all of the requirements set forth above), the Indemnified Party may pay, compromise, and defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from, or relating to such Third Party Claim; provided , however , that in conducting such defense, the Indemnified Party shall conduct such defense in good faith and comply, vis-à-vis the Indemnifying Party, with the requirements of clauses (A), (A) and (A) of Section 6.3(a)(i)(A) and with Section 6.3(a)(ii)(A) as if the Indemnified Party was the Indemnifying Party, and shall not consent or agree to any settlement or entry of any judgment or Order or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnifying Party and its Affiliates of a general release (without payment by, or cost or expense to, or adverse impact upon, the Indemnified Party in excess of the limitations on liability imposed on the Indemnifying Party pursuant to this Agreement) relating to such Third Party Claim. In the event the Indemnifying Party fails to accept any settlement offer made by the opposing party or its counsel with respect to any Third Party Claim (which meets the requirements set forth in the foregoing sentence), any such amounts ultimately payable with respect thereto in excess of such settlement offer (including any defense costs subsequent to the rejection of such settlement offer) shall be paid by the Indemnifying Party without regard to any limitations and such amounts shall not be considered with respect to the Cap. The parties shall cooperate with each other in all reasonable respects in connection with the defense or prosecution of any Third Party Claim, including (A) assisting in the collection and preparation of discovery materials, (B) making available records and all other information under the control of such party
that is deemed necessary by the defending party and/or its counsel for the defense or prosecution of such Third Party Claim and (C) furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim prepare for and/or appear as witnesses at depositions, court proceedings and/or trial.
(b) Non-Third Party Claims . With respect to any claim for indemnification hereunder which does not involve a Third Party Claim, the Indemnified Party will give the Indemnifying Party prompt written notice of such claim (i) describing in reasonable detail the specific matter that constitutes the basis for such claim, the facts known to the Indemnified Party constituting or giving rise to such claim, and stating that Losses exist and the amount or good faith estimate of the Losses from such claim, (ii) specifying in reasonable detail the individual items of such Losses included in the amount so stated, and (iii) providing such documents and other information with respect to such claim and Losses as are in the possession of or reasonably available to the Indemnified Party so that the Indemnifying Party may assess such claim. The Indemnifying Party may acknowledge and agree by notice to the Indemnified Party in writing to satisfy such claim within ten (10) days of receipt of notice of such claim from the Indemnified Party. If the Indemnifying Party shall dispute such claim, the Indemnifying Party shall provide written notice of such dispute to the Indemnified Party within such ten (10) day period. If the Indemnifying Party shall fail to provide written notice to the Indemnified Party within ten (10) days of receipt of notice from the Indemnified Party that the Indemnifying Party either acknowledges and agrees to pay such claim or disputes such claim, the Indemnifying Party shall be deemed to have acknowledged and agreed to pay such claim in full (subject to any applicable limitations specified herein, including those in Section 6.5 ) and to have waived any right to dispute such claim, and shall promptly pay such claim in full (subject to any applicable limitations specified herein, including those in Section 6.5 ). Except as otherwise provided in this Agreement, any failure by an Indemnified Party to give notice as required pursuant to this Section 6.3(b) shall not affect the indemnification provided hereunder, except and to the extent that the Indemnifying Party shall have actually been materially prejudiced as a result of such failure.
Section 6.4 Expiration of Representations and Warranties . All representations and warranties contained in this Agreement shall survive the Closing until the date that is eighteen (18) months after the Closing Date; provided , however , that: (a) the representations and warranties set forth in Section 2.8 , Section 2.13 and Section 2.17 shall survive the Closing for the period ending on the date that is sixty (60) days after the expiration of the applicable statute of limitations period; and (b) the representations and warranties set forth in Section 2.1(a) , Section 2.1(d) , Section 2.2 , Section 2.10(c) , Section 2.25 , Section 3.1 , Section 3.2, Section 3.3 , Section 3.8 , Section 3.9 and Section 3.10 shall survive indefinitely (each of the sections referred to in clause (b) a Fundamental Rep and each Fundamental Rep as well as each representation referenced in clause (a), a Transactional Rep ). All covenants and agreements (i) to be performed prior to Closing, shall survive the Closing until the two (2) month anniversary thereof, and (ii) to be performed following the Closing shall survive until fully performed. Notwithstanding the foregoing, all claims (and matters relating thereto) made prior to the expiration of the applicable survival period shall not thereafter be barred by the expiration of such survival period and shall survive until finally resolved.
Section 6.5 Certain Limitations . The indemnification provided for in Section 6.1 and Section 6.2 shall be subject to the following limitations:
(a) Upon the terms and subject to the conditions and limitations set forth in this Agreement, Seller shall not be liable to Purchaser Indemnitees for indemnification under Section 6.1(a) unless the aggregate amount of all Losses arising from the same facts, events or circumstances exceed $57,500 (the De Minimis Amount and in the event the Losses arising from the same facts, events or
circumstances, exceed such amount, all Losses with respect thereto, including those below the De Minimis Amount, are referred to herein as the Indemnifiable Warranty Losses ).
(b) Upon the terms and subject to the conditions and limitations set forth in this Agreement, Seller shall not be liable to Purchaser Indemnitees for indemnification under Section 6.1(a) for Indemnifiable Warranty Losses until the aggregate amount of all Indemnifiable Warranty Losses exceeds $300,000 (the Basket ), in which event Seller shall be required to pay or be liable for all Losses in excess of the Basket. Upon the terms and subject to the conditions and limitations set forth in this Agreement, the Purchaser Indemnitees shall not be indemnified pursuant to Section 6.1(a) with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to Section 6.1(a) has exceeded $7,500,000 (the Cap ).
(c) Upon the terms and subject to the conditions and limitations set forth in this Agreement, Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 6.2(a ) until the aggregate amount of all Losses in respect of indemnification exceeds the Basket, in which event Purchaser shall be required to pay or be liable for all Losses in excess of the Basket. Upon the terms and subject to the conditions and limitations set forth in this Agreement, the Seller Indemnitees shall not be indemnified pursuant to Section 6.2(a ) with respect to any Loss if the aggregate amount of all Losses for which the Seller Indemnitees have received indemnification pursuant to Section 6.2(a ) has exceeded the Cap. Upon the terms and subject to the conditions and limitations set forth in this Agreement, Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 6.2(a ) unless the aggregate amount of all Losses arising from the same facts, events or circumstances exceed the De Minimis Amount.
(d) Notwithstanding anything to the contrary set forth in this Agreement the limitations set forth in Section 6.5(a) , Section 6.5(b) and Section 6.5(c) shall not limit the Liability of any Indemnifying Party for (i) Breaches of any Transactional Reps, or actual fraud (pled and proven in accordance with applicable Law), or (ii) indemnification with respect to the items set forth in Section 6.1(b) through Section 6.1(f) or in Section 6.2(b) through Section 6.2(d) . Additionally, the Basket and De Minimis Amount shall not apply to any Losses resulting from a breach of the representation in the first sentence of Section 2.10(c) (Title to Assets). Notwithstanding the foregoing, in no event shall Seller shall not be liable to Purchaser Indemnitees for indemnification under Section 6.1 for amounts in excess of $57,500,000.
(e) In determining the existence of, and amount of any Losses in connection with a claim under Section 6.1(a) or Section 6.2(a) , all representations and warranties shall be read without regard and without giving effect to any materiality or Material Adverse Effect or similar qualification contained therein (as if such qualification were deleted from such representation or warranty); provided , however , that the foregoing scrape shall be inapplicable to:
(i) any Transactional Rep (other than Section 2.8 );
(ii) the representations and warranties set forth in Section 2.5 (Financial Statements), Section 2.7 (Absence of Certain Developments), Section 2.10(c) (Sufficiency of Assets), Section 2.12(a) (Material Contracts) or Section 2.21 (Customers and Suppliers);
(iii) the representations and warranties made in the certificate delivered pursuant to Section 5.1(g)(i) with respect to (A) Section 5.1(a) (Seller Bring-Down of Reps and Warranties) (as Section 5.1(a) applies to the representations and warranties described in the foregoing Section 6.5(e)(i) and (ii) ) and (B) Section 5.1(c) (Absence of Seller Material Adverse Effect); and
(iv) (iv) the representations and warranties made in the certificate delivered pursuant to ( Section 5.2(e)(ii) with respect to (A) Section 5.2(a) (Purchaser Bring-Down of Reps and Warranties) (as Section 5.2(a) applies to the representations and warranties described in Section 6.5(e)(i) )and (B) Section 5.2(c) (Absence of Purchaser Material Adverse Effect).
(f) With respect to each indemnification obligation contained in any Transaction Document, (i) the amount of any Losses payable under this Article VI shall be net of any third-party insurance proceeds or indemnification proceeds from a third party that have been recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification (net of any costs incurred by the Indemnified Party or its Affiliates in connection with obtaining such recoveries including any increase or expected increase in premiums that result from making any claim for insurance) and (ii) Seller shall have no liability to indemnify any Purchaser Indemnitee with respect to any Losses caused by or resulting from any action required to be taken by Seller pursuant to Article V . If an Indemnified Party recovers any such amounts in respect of Losses from any third party responsible for such Losses at any time after the Indemnifying Party has paid all or a portion of such Losses to the Indemnified Party pursuant to the provisions of this Article VI , the Indemnified Party shall promptly reimburse the Indemnifying Party for any indemnification payment made by the Indemnifying Party with respect to such Losses up to the amount received by the Indemnified Party from the Indemnifying Party with respect thereto but not to exceed the amount of such recovery (net of any costs incurred in connection with obtaining such recovery including any increase or expected increase in premiums that result from making any claim for insurance).
(g) Each of the Parties agrees to (and shall cause its applicable Affiliates to) take all reasonable steps to mitigate their respective Losses upon and after becoming aware of any fact, event, circumstance or condition that has given rise to or would reasonably be expected to give rise to, any Losses that are indemnifiable hereunder; provided, however, that (i) such failure to mitigate Losses in accordance with the foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article VI except and only to the extent that the Indemnifying Party is actually materially prejudiced thereby, and (ii) the costs of such mitigation shall be indemnifiable Losses hereunder.
(h) If any Indemnified Party or any of its Affiliates is at any time entitled (whether by reason of a common law or contractual indemnity right or availability of insurance) to recover from another Person any amount in respect of any matter giving rise to a Loss (whether before or after the Indemnifying Party has made a payment to an Indemnified Party hereunder and in respect thereof), the Indemnified Party shall (and shall cause its applicable Affiliates to) take commercially reasonable steps to pursue such recovery. If the Indemnified Party recovers any amounts in respect of Losses from any third party at any time after the Indemnifying Party has paid all or a portion of such Losses to the Indemnified Party pursuant to the provisions of this Article VI , the Indemnified Party shall, or shall cause such Indemnified Party to, promptly pay over to the Indemnifying Party the amount so received (to the extent previously paid by the Indemnifying Party). Notwithstanding the foregoing, nothing in this Section 6.5(h) shall delay an Indemnified Partys ability to pursue its rights hereunder against an Indemnifying Party.
(i) Except as an indemnity against damages payable to any un-Affiliated third-party, in no event shall any party have any liability to the other hereunder (including under this Article VI ) for any (i) consequential or punitive damages, (ii) damages which are not reasonably foreseeable or (iii) except in the case of a breach of the representations and warranties in Section 2.5(a) , Section 2.10(c) or Section 2.10(d) , any damages based on a financial multiple. The parties acknowledge that the foregoing limitations are not preclusive of the recovery of loss profits or damages based on a financial multiple in appropriate instances which do not otherwise conflict with such limitations.
(j) FROM AND AFTER THE CLOSING, EXCEPT (A) IN THE CASE OF ACTUAL FRAUD (PLED AND PROVEN IN ACCORDANCE WITH APPLICABLE LAW), OR (B) WITH RESPECT TO EQUITABLE REMEDIES AVAILABLE TO THE PARTIES, THE SOLE AND EXCLUSIVE REMEDY OF ANY PARTY TO THIS AGREEMENT AND ITS AFFILIATES OR ANY OTHER INDEMNIFIED PARTY WITH RESPECT TO THIS AGREEMENT, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE LIMITED TO THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE VI . EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEEDING SENTENCE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER SHALL NOT (AND SHALL CAUSE ITS AFFILIATES NOT TO) MAKE ANY CLAIM FOR INDEMNIFICATION AGAINST HALL OR ANY OF HIS AFFILIATES BY REASON OF THE FACT THAT HALL IS OR WAS A MEMBER, DIRECTOR, MANAGER, OFFICER, EMPLOYEE OR AGENT OF SELLER OR ANY OF ITS AFFILIATES OR IS OR WAS SERVING AT THE REQUEST OF SELLER OR ANY OF ITS AFFILIATES AS A PARTNER, MANAGER, TRUSTEE, DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF ANOTHER ENTITY (WHETHER SUCH CLAIM IS FOR JUDGMENTS, DAMAGES, PENALTIES, FINES, COSTS, AMOUNTS PAID IN SETTLEMENT, LOSSES, EXPENSES OR OTHERWISE AND WHETHER SUCH CLAIM IS PURSUANT TO ANY STATUTE, CHARTER DOCUMENT, BYLAW, AGREEMENT OR OTHERWISE), IT BEING ACKNOWLEDGED AND AGREED THAT THE REMEDIES IN THIS ARTICLE VI ARE THE SOLE AND EXCLUSIVE REMEDIES OF PURCHASER AND ITS AFFILIATES WITH RESPECT TO ALL CLAIMS RELATING TO HALL HAVING BEEN A MEMBER, DIRECTOR, MANAGER, OFFICER, EMPLOYEE OR AGENT OF SELLER OR ANY OF ITS AFFILIATES OR SERVING AT THE REQUEST OF SELLER OR ANY OF ITS AFFILIATES AS A PARTNER, MANAGER, TRUSTEE, DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF ANOTHER ENTITY.
Section 6.6 Environmental Indemnity . Notwithstanding anything to the contrary in this Article VI and without limiting Section 6.5 with respect to any claim for indemnification hereunder, (i) for any Breach of Section 2.17 (Environmental Matters) or (ii) pursuant to Section 6.1(d) in respect of environmental matters (including the Excluded Liabilities described in Section 1.1(d)(xiii) ) (collectively Environmental Matters ), the Parties agree on behalf of themselves and their respective Affiliates that, in addition to the other provisions set forth in Article VI , (and in the case of any conflict between the provisions of this Section 6.6 and any other provision in Article VI , the provisions of this Section 6.6 shall prevail and apply):
(a) Seller shall have no obligation to indemnify Purchaser under this Agreement for any Losses incurred by Purchaser arising out of or resulting from (A) any testing, sampling or other invasive investigation of, or Remedial Action relating to the soil, soil gas, surface water, groundwater, sediment, or other environmental media at the Bowie Facility, or (B) any Remedial Action relating to the possible presence of asbestos at the 1619 Feed Store Road, Bowie, TX facility (together with the Bowie Facility, the Specified Facilities ), in each case, conducted by, or on behalf or at the direction of the Purchaser or any of its Affiliates unless such investigation, sampling, testing, or Remedial Action was (i) required by a Governmental Body; (ii) actually required (in the good faith opinion of Purchasers outside counsel) by Environmental Requirements or Environmental Permits; (iii) reasonably determined by Purchaser to be necessary to investigate, defend, resolve, or respond to a Third Party Claim that is not being defended by Seller; (iv) reasonably determined by Purchaser to be necessary in connection with any commercially reasonable maintenance or repair activity (which activity is not undertaken with a goal of conducting any testing, sampling or other invasive investigation of soil, soil gas, surface water, groundwater, sediment, or other environmental media); (v) conducted to comply with the requirement of any lease; or (vi) necessary to respond to a condition requiring immediate action to address a threat to human health or the environment; provided , however , that in all such cases, Purchaser shall promptly notify Seller in writing of such requirement or circumstance and shall give Seller and its advisors a
reasonable opportunity to discuss the applicability of, and if applicable contest, at Sellers expense, the requirement for such investigation, sampling, testing, or Remedial Action. In any event, Seller shall only be obligated to indemnify the Purchaser Indemnitees with respect to Losses arising out of, or relating to, conditions that existed, or events which occurred, on or prior to the Closing Date.
(b) Any obligation of Seller to conduct any Remedial Action at the Bowie Facility as part of Sellers indemnification of a Purchaser Indemnitee for any Environmental Matter related to the Bowie Facility (to the extent required pursuant to Section 6.6(a) ) shall be limited to, and its obligations under this Agreement shall be satisfied upon achievement of, the minimum standards required to obtain a no further action or similar determination (the Minimum Standards ) from a Governmental Body (except as set forth in Section 4.20 above where no closure from a Government Body is required), based on the use of the relevant property as of the Effective Time under applicable Environmental Requirements or any Order of a Governmental Body. The Parties expressly agree that such Minimum Standards may include risk-based clean-up remedies and standards and/or the imposition of engineering or institutional controls such as deed or other use restrictions so long as the use of such methods do not impair or unreasonably restrict Purchasers continued use of the properties for commercial or industrial purposes or Purchasers obligations under the Real Property Lease for the Bowie Facility. With regard to any asbestos abatement at the 1619 Feed Store Road, Bowie, TX facility (to the extent required pursuant to Section 6.6(a) ), such abatement will be conducted in accordance with applicable Environmental Requirements.
(c) Seller shall have the right (but not the obligation) to retain the defense and control of (A) any Environmental Matter related to the Bowie Facility, including the Remedial Action relating thereto, and (B) any asbestos abatement at the 1619 Feed Store Road, Bowie, TX facility. Purchaser and its Affiliates shall have the right to participate in the defense and control of such Environmental Matter in cooperation with Seller, at Purchasers expense. Purchaser shall, and shall cause each of its Affiliates and representatives, to cooperate regarding the resolution of any such Environmental Matter related to the Specified Facilities, including providing to Seller and their respective Representatives all necessary accommodations, including access to the Specified Facilities and site utilities subject to landlord consents, in order to allow Seller and their respective representatives to respond to, defend, and conduct Remedial Action relating to such Environmental Matter. Purchaser and its Affiliates shall not unreasonably interfere with or disturb the performance by Seller and their respective Representatives of any such Remedial Action; provided , however , that Seller shall give Purchaser reasonable advance notice when access to the Specified Facilities is necessary, and shall cooperate with Purchaser to schedule such access at times reasonably preferable to Purchaser in light of Purchasers and the Purchased Subsidiaries operational and personnel needs. When undertaking such access, Seller and its employees, agents, contractors, and consultants shall conform to all reasonable health and safety requirements of Purchaser. In connection with any such Environmental Matter which Seller is defending or controlling, Seller shall (i) keep Purchaser reasonably informed relating to the progress of such Environmental Matter (including providing Purchaser with copies of all material plans, correspondence (whether hard copy or electronic) reports or other documents or information submitted to Governmental Authorities in draft form with reasonably adequate time for Purchaser to review and comment upon them prior to their being submitted, and shall provide Purchaser with final copies once submitted); (ii) allow Purchaser to participate in any meetings or phone calls with Governmental Authorities with regard to such Environmental Matter and provide adequate advance notice of the such meetings or phone calls; (iii) diligently and promptly pursue the resolution thereof; (iv) not unreasonably interfere with the continuing use of the Specified Facilities, as long as the manner of use does not materially differ from the manner it is being used as of the Effective Time, and (v) restore the Specified Facilities, and their buildings, improvements and utilities to their original condition to the extent reasonably possible after Remedial Action activities are undertaken.
(d) Sellers liability under this Agreement for any Losses at the Bowie Facility with respect to Environmental Matters arising or existing prior to the Effective Time shall be reduced to the extent that such Losses have been caused, exacerbated, compounded or aggravated by (over and above the amount of Losses that would have otherwise been incurred by the Purchaser or its Affiliates ) as a result of any acts or omissions of or on behalf of Purchaser or its Affiliates, or any employee, agent, contractor, consultant, attorney, tenant, lessee, sublessee, licensee, permittee or invitee of any of the foregoing; provided, however, that the mere taking of the actions permitted by Section 6.6(a) shall not be deemed to have increased any such Losses.
(e) In the event of any dispute between Seller and the Purchaser Indemnitees as to whether any Losses with respect to Environmental Matters at the Bowie Facility (i) have been caused, exacerbated, compounded or aggravated by (over and above the amount of Losses that would have otherwise been incurred by the Purchaser or its Affiliates) as a result of any acts or omissions of or on behalf of Purchaser or its Affiliates, or any employee, agent, contractor, consultant, attorney, tenant, lessee, sublessee, licensee, permittee or invitee of any of the foregoing, or (ii) arise out of, or relate to, conditions that existed, or events which occurred, on or prior to the Closing Date, the Parties shall obtain estimates of the percentage attributable to each Party from three reputable environmental consulting firms (one picked by each party and one agreed on jointly by the parties), and shall agree to use the average percentages of the three quotes in determining the amount of responsibility with regard to the disputed matter.
(f) Notwithstanding anything else herein to the contrary, Seller shall have no liability under this Agreement for any Losses at the Bowie Facility relating to any Environmental Matters to the extent arising solely from the coming into force of, or the change in, any Environmental Requirements on or after Effective Time, except for any Losses arising out of any change in the Minimum Standards on or after Effective Time, for which Seller shall have liability in respect of such revised Minimum Standards.
(g) Seller hereby indemnifies and holds the Purchaser Indemnities harmless from and against any and all claims or causes of action, damages, losses, liabilities, costs, and expenses, including reasonable attorneys fees, arising out of personal injury or property damage to the extent caused by the negligence or wilful misconduct of Seller, its employees, agents, consultants, contractors or subcontractors in connection with any Remedial Action performed by Seller pursuant to this Agreement.
(h) The provisions of this Section 6.6 are not to be construed to affect any interpretation of an environmental indemnity obligation for any other facilities covered by this Agreement other than the Bowie Facility (and, with respect to asbestos remediation, the 1619 Feed Store Road, Bowie, TX facility), it being acknowledged and agreed that this Section 6.6 shall not give rise to any presumption as to whether rights or obligations enumerated or disclaimed with particularity in this Section 6.6 may or may not exist with respect to other facilities under other more-broadly applicable provisions of this Agreement.
Section 6.7 Indemnification Payments by Seller; Right of Set-Off .
(a) Any indemnification amounts payable by Seller under this Article VI as a consequence of any Losses shall be satisfied, first by set-off against any then-unpaid interest under the Indemnity Note, second by set-off against the principal amount of the Indemnity Note and, to the extent that the aggregate amount of such payments exceeds the outstanding principal and accrued interest remaining under the Indemnity Note as of such time, Seller shall pay, within fifteen (15) Business Days after liability therefor is finally determined in accordance with the terms hereof, such difference to the
Purchaser Indemnitees in immediately available funds by wire transfer to a bank account to be designated by Purchaser.
(b) In the event that any Purchaser Indemnitee seeks to recover against Seller for any Loss pursuant to this Article VI or otherwise in connection with this Agreement or any other Transaction Document, Purchaser or such Purchaser Indemnitee shall have the right to recover such amount by set-off or cancellation against any amount payable by Purchaser to Seller (which such amounts shall be deemed as paid to Seller for tax purposes), provided , however , that the foregoing shall not be deemed to permit set-off or cancellation against (i) any distributions payable by Ranger, Inc. to Seller (or its Affiliates) relative to the Equity Interests, unless approved by a court of competent jurisdiction, or (ii) any amounts payable pursuant to the Seller Note, unless pursuant to a final judgment by a court of competent jurisdiction.
Section 6.8 Treatment of Indemnification Payments . All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Transaction Consideration to the extent permitted by applicable Law.
ARTICLE VII
TERMINATION
Section 7.1 Termination of Agreement . Certain of the Parties may terminate this Agreement as provided below:
(a) Purchaser and Seller may terminate this Agreement by mutual written consent at any time prior to the Closing;
(b) Either of Purchaser and Seller may terminate this Agreement on or after October 31, 2017 (the End Date ), if the Closing shall not have occurred by the close of business on the End Date, provided that the terminating party is not in material default of any of its obligations hereunder;
(c) This Agreement shall terminate automatically if (i) (X) the Reorganization and the IPO are not consummated by the IPO Cutoff Date, or (Y) prior to the IPO Cutoff Date, if Purchaser elects to abandon pursuit of the consummation of the IPO prior to the IPO Cutoff Date, and , in the case of either (X) or (Y), Purchaser does not timely exercise the Cash Purchase Option (such expiration to be effective immediately upon expiration of Purchasers window to exercise the Cash Purchase Option);
(d) Purchaser may terminate this Agreement (so long as Purchaser is not in material Breach of any of its representations, warranties, covenants, or agreements contained in this Agreement such as would give rise to a failure of any of any condition set forth in Section 5.2 ) by giving written notice to Seller at any time prior to the Closing: (i)(X) in the event that Seller has Breached any representation, warranty, covenant, or agreement contained in this Agreement, which Breach would cause the failure of any condition set forth in Section 5.1 and Purchaser has notified Seller in writing of the Breach, and either (Y) Seller has not commenced cure of such Breach within ten (10) Business Days after the notice of such Breach or (Y) such Breach is not capable of being cured by on or before the Termination Date; or (ii) if the Closing shall not have occurred on or before the Termination Date by reason of the failure of any condition precedent set forth in Section 5.1 to have occurred (unless such failure shall be due to the failure of Purchaser to perform or comply with any of the representations, warranties, covenants, agreements, or conditions of this Agreement to be performed or complied with by it prior to Closing);
(e) Seller may terminate this Agreement (so long as Seller is not in material Breach of any of its representations, warranties, covenants, or agreements contained in this Agreement such as would give rise to a failure of any of any condition set forth in Section 5.1 ) by giving written notice to Purchaser at any time prior to the Closing: (i)(X) in the event that Purchaser has Breached any representation, warranty, covenant, or agreement contained in this Agreement, which Breach would cause the failure of any condition set forth in Section 5.2 and Purchaser has notified in writing Purchaser of the Breach, and either (Y) Purchaser has not commenced cure of such Breach within ten (10) Business Days after the notice of such Breach or (Y) such Breach is not capable of being cured by on or before the Termination Date; or (ii) if the Closing shall not have occurred on or before the Termination Date by reason of the failure of any condition precedent set forth in Section 5.2 to have occurred (unless such failure shall be due to the failure of Seller to perform or comply with any of the representations, warranties, covenants, agreements, or conditions of this Agreement to be performed or complied with by it prior to Closing); and
(f) any Governmental Body has issued, entered, promulgated, enacted or enforced any Law or final, non-appealable Order restraining, enjoining or prohibiting the transactions contemplated by this Agreement and the other Transaction Documents; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(f) has complied with its obligations under Section 4.1 and Section 4.5 in connection with such Law or Order.
Notwithstanding the foregoing, no right of termination shall be available to any Party pursuant to Section 7.1(c) through (f) if a material breach of such Partys obligations under this Agreement is a principal reason that such termination right exists and additionally no right of termination shall be available to any Party pursuant to Section 7.1(b) at any time that such Party has violated or is in breach of any covenant, representation or warranty hereunder if such violation or breach has prevented satisfaction of any of the other Partys conditions to Closing hereunder and has not been waived by such other Party or, if capable of cure, has not been cured by the breaching Party.
Section 7.2 Effect of Termination .
(a) If this Agreement is terminated pursuant to Section 7.1 , all rights and obligations of the Parties hereunder shall terminate without any Liability of any Party to the other Party except as otherwise expressly set forth herein. Without limiting the generality of the foregoing:
(i) If this Agreement is terminated by Purchaser pursuant to Section 7.1(d) Purchaser shall be entitled to a return of the Deposit and shall retain all rights and remedies in equity or law as a result of any willful Seller Breach(es) which gave rise to such right of termination; provided , however , that (i) Purchasers remedies in the event of any such willful breach(es) shall be limited to (A) compensation for its direct and indirect costs and expenses relating to the negotiation, execution and compliance with the terms of this Agreement prior to such termination (including any opportunity costs); (B) compensation for its costs in enforcing its rights under this Section 7.2 ; and (ii) Purchasers aggregate right of recovery under this Section 7.2 in connection with such willful breaches shall not exceed $1,000,000. Purchaser shall not bring any cause of action against or otherwise seek remedies from, Seller, whether at equity or in Law, for breach of contract, in tort or otherwise, in the event that this Agreement is terminated by Purchaser pursuant to any of Section 7.1(d) , and any claim, right or cause of action by Seller against Purchaser in excess of $1,000,000 is hereby fully waived, released and forever discharged. For the avoidance of doubt, the return of the Deposit by Seller to Purchaser shall not limit Purchasers remedies or reduce Purchasers aggregate right of recovery, in each case to the extent set forth in this Section 7.2(a)(i) .
(ii) If this Agreement is terminated (A) by any Party pursuant to any of Section 7.1(b) , (B) automatically pursuant to Section 7.1(c) , or (C) by Seller pursuant to Section 7.1(e) , then Seller shall be entitled to retain the Deposit.
(iii) If this Agreement is terminated by either Party pursuant to Section 7.1(f) , Purchaser shall be entitled, as its exclusive remedy, to a prompt return of the Deposit.
(b) Sellers retention of the Deposit in connection with any termination of this (i) by any Party pursuant to any of Section 7.1(b) or Section 7.1(c) (ii) or by Seller pursuant to Section 7.1(e) constitutes liquidated damages and not a penalty and is the exclusive remedy by Seller for any such termination. Seller shall not bring any cause of action against or otherwise seek remedies from, Purchaser, whether at equity or in Law, for breach of contract, in tort or otherwise, in the event that this Agreement is terminated (x) by any Party pursuant to any of Section 7.1(b) or Section 7.1(c) or (y) by Seller pursuant to Section 7.1(e) , and any claim, right or cause of action by Seller against Purchaser in excess of the Deposit is hereby fully waived, released and forever discharged.
(c) Notwithstanding anything in this Agreement to the contrary, a Partys exercise of any termination right hereunder shall not preclude the other Party hereto from asserting that it was, at the time of such first Partys termination, entitled to terminate this Agreement pursuant to another Section of this Agreement, and if so terminable by the second Party, shall not preclude such second Party from any remedies such second Party would have been entitled to in connection with any such termination.
(d) Notwithstanding the foregoing, the Confidentiality Agreement as well as this Section 7.2 , Section 4.8(a) , and Article VIII shall survive any termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Certain Definitions .
(a) For purposes of this Agreement, the following terms shall have the meanings specified in this Section 8.1(a) :
Acquisition Transaction means any transaction involving: (i) the sale, license, disposition, or acquisition of all or any portion of the assets of Seller or the Business, excluding assets sold in the Ordinary Course not in excess of $200,000 in the aggregate; (ii) the issuance, disposition, or acquisition of (A) any membership interests or other equity security or interest of Seller, (B) any option, call, warrant, or right (whether or not immediately exercisable) to acquire any membership interests or other equity security or interest of Seller, or (C) any security, instrument, or obligation that is or may become convertible into or exchangeable for any membership interests or other equity security or interest of Seller; or (iii) any merger, consolidation, share exchange, business combination, reorganization, recapitalization, or similar or other extraordinary transaction involving Seller or its assets.
Affiliate means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person, and in the case of any natural Person shall include all relatives and family members of such Person. For purposes of this definition the word control means the ability or right, directly or indirectly, to influence a Person, and includes all officers, partners, directors, managers, holders of (i) five percent (5%) or more of the equity securities or other interests of any Person which is publically traded or (ii) fifty (50%) or more of the equity securities or other interests of any Person which is not publically traded, and Persons having the right or power to designate a manager or director.
Affiliated Group means a group of Persons that elects, is required to, or otherwise files a Tax Return or pays a Tax as an affiliated group, consolidated group, combined group, unitary group, or other similar group recognized by applicable Laws relating to Taxes.
Books and Records means all books and records of Seller relating to the Business, including files, manuals, price lists, mailing lists, distributor lists, customer lists, sales and promotional materials, purchasing materials, documents evidencing intangible rights or obligations, personnel records, financial and accounting records, and Legal Proceeding files (regardless of the media in which stored).
Breach means, with respect to any agreement, document, instrument, Permit, Law or Order, as applicable, any event, circumstance, action or omission that, individually or in the aggregate, with or without the giving of notice, the passage of time or both, conflicts with, violates, results in the breach or termination of, constitutes a default under, infringement of, or noncompliance with, results in an acceleration of obligations under, or creates in any party the right to accelerate obligations under, terminate, revoke, modify, or cancel (or exercise any remedy under) such agreement, document, instrument, Permit, Law or Order.
Business Day means any day of the year on which national banking institutions in the City of Houston are open to the public for conducting business and are not required or authorized to close.
Business Employee means any individual employed by Seller or in connection with the Business.
Change of Control Payments means any and all bonuses or similar payments payable as a result of or in connection with the transactions contemplated hereby.
Code shall mean the Internal Revenue Code of 1986, as amended.
Consent means any consent, approval, authorization, waiver, Permit, grant, franchise, concession, agreement, License, exemption or Order of, registration, certificate, declaration or filing with, or report or notice to, any Person, including any Governmental Body.
Contract means any contract, agreement, indenture, note, bond, loan, mortgage, license, instrument, lease, understanding, commitment, or other legally-enforceable arrangement or agreement, whether written or oral.
DOL means the United States Department of Labor.
Employment Agreement means an Employment Agreement between Purchaser and Todd Brown, in the form mutually agreed upon by Todd Brown and Purchaser.
Environmental Claim means any claims relating in any way to any Environmental Requirements, Environmental Permits, or Environmental Liabilities, including: (i) any and all claims by Governmental Bodies for enforcement, investigation, cleanup, removal, response, remedial, monitoring, control, or other actions or damages pursuant to any applicable Environmental Requirement; and (ii) any and all claims by any Person relating to any Environmental Liability, Environmental Requirement, or Environmental Permit seeking damages, contribution, indemnification, cost recovery, compensation, or injunctive relief or arising from alleged injury or threat of injury to health, safety, or the environment, including surface waters, groundwaters, soil, sediment, subsurface strata, and indoor or ambient air.
Environmental Liabilities means any and all Losses and Liabilities relating to, based upon, or arising in connection with any act or omission, or strict liability, with respect to environmental conditions, or relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, Release, threatened Release, control, exposure to, or cleanup of any Hazardous Materials or other substances.
Environmental Requirement(s) means any Law now, or hereafter in effect, having the force and effect of law and applicable to the Business and/or the Leased Real Property, relating to the environment, prevention or control of spills or pollution, preservation or reclamation of natural resources, natural resources damages, Hazardous Materials release or exposure, protection of human health and safety, or other environmental matters, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, exposure to, or cleanup of, any Hazardous Materials. For the avoidance of doubt, Environmental Requirements shall include any requirements set forth in the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Right-To-Know Act, the Hazardous Materials Transportation Act, the Solid Waste Disposal Act (including the Resource Conservation and Recovery Act), the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Endangered Species Act, the Safe Drinking Water Act, the Lead-Based Paint Exposure Reduction Act, the National Environmental Policy Act, and the Occupational Safety and Health Act, and all Laws of a similar nature, each as amended.
Equity Documents shall mean (i) all documents reasonably requested by the Purchaser and its Affiliates as required for the issuance of the shares of Class A Stock issued pursuant to Section 1.3(b) , including, but not limited to, any documents related to Know Your Customer requirements of the underwriters for the IPO or the Purchasers or its Affiliates transfer agent and (ii) any lock-up agreement requested by the underwriters to the IPO (consistent with the lock-up agreements signed by similarly situated shareholders).
Final Closing Net Working Capital means the final Closing Net Working Capital as determined by agreement of Purchaser and Seller or by the Neutral Accountant or otherwise in accordance with the procedures set forth in Section 1.6 .
Final Closing Statement means the final Closing Statement as determined by agreement of Purchaser and Seller or by the Neutral Accountant or otherwise in accordance with the procedures set forth in Section 1.6 .
Foreign Pension Plan means any plan, fund, or other similar program established, sponsored, or maintained outside of the United States of America by Seller, or with respect to which Seller has any liability, primarily for the benefit of employees or other service providers residing outside the United States of America, which plan, fund, or similar program provides or results in retirement income, a deferral of income in contemplation of retirement, or payments to be made upon termination of employment, and which is not subject to ERISA or the Code.
GAAP means United States generally accepted accounting principles as in effect from time to time, consistently applied.
Governing Documents means, with respect to any particular Person: (i) if a corporation, the articles or certificate of incorporation and the bylaws; (ii) if a general partnership, the partnership agreement and any statement of partnership; (iii) if a limited partnership, the limited partnership agreement and the certificate of limited partnership; (iv) if a limited liability company, the articles or
certificate of organization or formation and operating agreement; (v) if another type of Person that is an entity, any other charter or similar document adopted or filed in connection with the creation, formation, or organization of the Person; (vi) all equityholders agreements, voting agreements, voting trust agreements, joint venture agreements, registration rights agreements, or other agreements or documents relating to the organization, management or operation of any Person or relating to the rights, duties, and obligations of the equityholders of any Person; and (vii) any amendment or supplement to any of the foregoing.
Governmental Body means any government or governmental or regulatory authority or body thereof, or political subdivision thereof, whether federal, state, local, or foreign, or any agency, instrumentality, or authority thereof, or any court or arbitrator (public or private) or tribunal, including the Occupational Safety and Health Administration, the Department of Transportation, the DOL, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and any federal or state law enforcement agency.
Hazardous Material(s) means any substance, material, or waste which is regulated by Environmental Requirements including petroleum and its by-products and degradation products, fuel oil, crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, synthetic natural gas useable for fuel, asbestos or asbestos-containing material, polychlorinated biphenyls, lead-based paint, radon, radioactive materials, and any material or substance which is defined or regulated as a hazardous waste, hazardous substance, hazardous material, restricted hazardous waste, industrial waste, solid waste, contaminant, pollutant, special waste, toxic material, toxic waste, or toxic substance.
Indebtedness means, with respect to Seller at any applicable time of determination, without duplication: (i) all obligations for borrowed money (whether or not contingent); (ii) all obligations evidenced by bonds, debentures, notes, or other similar instruments or debt securities; (iii) all obligations under swaps, hedges or similar instruments; (iv) all obligations in respect of letters of credit, Surety Bonds, or bankers acceptances; (v) all obligations, contingent or otherwise, arising from deferred compensation arrangements, severance or bonus plans or arrangements, Employee Benefit Plans, employment agreements, or similar arrangements payable as a result of the consummation of the transactions contemplated hereby (regardless of whether any additional event, in addition to the consummation of the transactions contemplated hereby, is required to give rise to such obligations); (vi) all obligations secured by a Lien; (vii) all obligations recorded or required to be recorded as capital leases in accordance with GAAP as of the date of determination thereof; (viii) all obligations for the acquisition of debt or equity securities or interests or the deferred purchase price of property or services or the acquisition of a business or portion thereof, whether contingent or otherwise, as obligor or otherwise, at the maximum amount payable in respect thereof, regardless of whether such amount is contingent on future performance; (ix) all obligations created or arising under any conditional sale or other title retention agreement with respect to acquired property; (x) all deferred rent obligations; (xi) all accrued interest, prepayment premiums, fees, penalties, expenses, or other amounts payable in respect of any of the foregoing; and (xii) all guaranties and similar obligations in connection with any of the foregoing.
Intellectual Property means: (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all United States and foreign patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith; (iv) all trade secrets and confidential or valuable information (including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, training materials, and business and marketing plans and proposals); (v) all computer software (including data and related documentation); (vi) all domain names and rights in websites and databases associated with such domain names; (vii) all other proprietary, intangible, or intellectual property rights; and (viii) all copies and tangible embodiments thereof (in whatever form or medium).
Intellectual Property Assignment Agreement means the intellectual property assignment agreement substantially in the form of Exhibit G attached hereto between Purchaser and Seller.
Inventory means all instruments and inventory, finished goods, raw materials, work in progress, packaging, supplies, parts, finished goods and other inventories of Seller.
IRS means the United States Internal Revenue Service.
Knowledge or words of similar effect, regardless of case, means, with respect to Seller, the actual knowledge of each of Todd Brown, Bruce Barber and Brenda Ogle and, in each case, such knowledge as each has or would reasonably be expected to have following a reasonably diligent inquiry of the Books and Records and their respective direct reports.
Law means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, ordinance, common law, or other requirement or rule of law of any Governmental Body, or judicial decision having the force or effect of Law.
Legal Proceeding means any judicial, administrative or arbitral actions, suits, proceedings (public or private), claims, hearings, investigations, charges, complaints, demands, or governmental or regulatory proceedings.
Liability means any damage, claim, liability, obligation, loss (whether lost business opportunity or measured as a multiple of earnings, book value, lost profits, diminution in value, revenues, cash flow, or otherwise), fines, costs, expenses, charges, interest, penalties, or commitment of any nature whatsoever (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, matured or unmatured, or due or to become due, or otherwise).
Lien means any lien (including any Tax or environmental lien), pledge, mortgage, deed of trust, security interest, claim, demand, lease, call, right of first refusal, easement, servitude, transfer restriction, or any other encumbrance, restriction, or limitation whatsoever, but excluding any securities Law of general applicability.
Losses means any claims, Liabilities, obligations, losses, fines, costs, expenses, charges, interest, penalties, proceedings, or damages, including sampling, testing, investigation, removal, treatment, and remediation of contamination and including all court costs, reasonable fees and the reasonable disbursements of counsel and other professionals incurred in the preparation, investigation or defense of any of the same or in asserting and enforcing any of rights.
Material Adverse Change or Material Adverse Effect with respect to a Person means any event, occurrence, fact, condition, development, change, or effect that is, or would reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the ability of such Person to consummate timely the transactions contemplated hereby or (b) the Business, properties, results of operations, or condition (financial or otherwise) of such Person, in each case, other than: (i) changes in the general banking, credit, financial and securities markets, industry (including oil & gas), economic, or
political conditions; (ii) changes in Law, GAAP or statutory accounting principles, or the enforcement or interpretation thereof; (iii) acts of terrorism or war (whether or not declared) , sabotage, terrorism or military actions or attacks, or any escalation or worsening of any such hostilities, act of war, sabotage, terrorism or military actions or any other national or international political or social condition; (iv) any actions or omissions taken or omitted to be taken as a requirement pursuant to this Agreement; (v) the execution or the announcement of, the consummation of the Transactions, or the performance of obligations expressly required by this Agreement or the other agreements contemplated hereby, (vi) (A) with respect to Seller, the effect of any action taken by Purchaser or its Affiliates expressly required by this Agreement, and (B) with respect to Purchaser, the effect of any action taken by Seller or its Affiliates expressly required by this Agreement; (vii) with respect to Seller, any failure to meet internal or published projections, estimates or forecasts of revenues, income, earnings, or other measures of financial or operating performance for any period ( provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); (viii) any natural disaster; (ix) legal, accounting, investment banking or other fees or expenses incurred in connection with the transactions contemplated by this Agreement, and (x) any adverse change or effect that is cured prior to Closing; except, in each case of the foregoing clauses (i), (i), (i) and (i), to the extent such changes cause a disproportionate and negative effect on or change to such Person as compared to the industry in which such Person operates as a whole.
Net Working Capital means the book value of the current portion of the Purchased Assets (excluding cash) less the current portion of the Assumed Liabilities, each as calculated in accordance with GAAP consistently applied and consistent with Section 8.1(a)(i) of the Disclosure Schedule.
Neutral Accountant means Ernst & Young LLP (or if such firm shall decline or is unable to act, or has a conflict of interest with Purchaser or any Seller, or any of their respective Affiliates, another accounting firm not affiliated with either Purchaser or Seller mutually acceptable to Purchaser and Seller).
Notes means the Indemnity Note and, if applicable pursuant to Section 1.3(a)(i)(A) , the Seller Note.
Order means any order, injunction, judgment, decree, ruling, writ, assessment, or arbitration award of a Governmental Body.
Ordinary Course means the ordinary course of the Business consistent with past custom and practice (including with respect to frequency and amount).
PBGC means the Pension Benefit Guaranty Corporation or any successor agency.
Permit means any approval, Consent, license, identification number, certificate, franchise, accreditation, permit, waiver, registration or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to Law.
Permitted Liens means: (i) Liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures as disclosed in this Agreement; (ii) Liens arising under equipment leases with third parties set forth in Section 2.10(a) of the Disclosure Schedule which are not, individually or in the aggregate, material to the Business or the assets of Seller; (iii) statutory Liens or other Liens arising by operation of Law securing payments not yet due or which are being contested in good faith, including Liens of mechanics, suppliers, landlords, warehouseman, materialmen and repairmen; (iv) Liens securing Indebtedness which will be paid at Closing and released at or prior to Closing; or (v) the following Liens affecting the Leased Real Property that is the subject of any of the Real Property Leases: (A) written surface or ground leases to utilities, (B) validly existing easements for streets, alleys, highways, telephone
lines, pipelines, power lines, railways and other easements and rights of way, in each case of record in the real property records of the applicable county, on, over or appurtenant to any such real property, (C) validly existing covenants or other similar restrictions, in each case of record in the real property records of the applicable county, (D) defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in any public records and (E) Liens in favor of the lessors under the Real Property Leases, in each case, that do not or would not materially impair the current use that is subject to any of the Real Property Leases.
Person means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body, or other entity.
Pre-Closing Period means any Tax period beginning prior to the Closing Date and ending on or prior to the Closing Date and the portion of any Straddle Period which ends on the Closing Date.
Post-Closing Period means any Tax period beginning and ending after the Closing Date and the portion of any Straddle Period which begins after the Closing Date.
Purchaser Material Adverse Change or Purchaser Material Adverse Effect means a Material Adverse Change or a Material Adverse Effect with respect to Purchaser and its Affiliates, taken as a whole.
Reimbursable CapEx Expenditure means those pre-Closing capital expenditures of Seller incurred by Seller, as listed on Section 5.1(g)(xvi) of the Disclosure Schedule.
Release means any actual or threatened release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, migration, or leaching into the indoor or outdoor environment, or into or onto or out of any property.
Remedial Action means any investigation, remediation, clean-up, abatement, removal or monitoring (or words of similar import) of Hazardous Materials.
Seller Material Adverse Change or Seller Material Adverse Effect means a Material Adverse Change or a Material Adverse Effect with respect to Seller.
Seller Transaction Expenses means any and all legal, accounting, consulting, investment banking, agent, brokers and finders and other similar fees, costs, and expenses of Seller and related to the negotiation, preparation, and execution of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.
Straddle Period means any taxable period that begins before and ends after the Closing.
Systems mean, collectively, the computer software, computer hardware (whether general or special purpose), telecommunications capabilities (including all voice, data, and video networks), information technology, computers, firmware, middleware, servers, workstations, routers, hubs, websites, data, databases, source code, object code and other similar or related items of automated, computerized, and/or software systems, and any other networks or systems and related services that are used by or relied on by Seller in the conduct of the Business.
Target Net Working Capital means $3,900,000.
Tax or Taxes means any federal, state, provincial, local, or foreign income, alternative minimum, accumulated earnings, personal holding company, franchise, capital stock, net worth, capital, profits, windfall profits, gross receipts, value added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental (including taxes under Section 59A of the Code or any analogous or similar provision of any state, local, or foreign Law or regulation), real property, personal property, ad valorem, intangibles, escheat, unclaimed property, rent, occupancy, license, occupational, employment, unemployment insurance, social security, disability, workers compensation, payroll, health care, withholding, estimated or other similar tax, or deficiencies thereof, and including any interest, penalties or additions to tax attributable to the foregoing. The term Tax or Taxes also includes any Liability for Taxes of any Person pursuant to any tax sharing agreement, tax indemnity agreement or any contract, as a successor or transferee, or pursuant to any applicable Law, including Treasury Regulations Section 1.1502-6 or otherwise.
Tax Return means any return, report, declaration, form, filing, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Tax Sharing Agreement means any agreement including any provision pursuant to which Seller is obligated to indemnify any Person for, or otherwise pay, any Tax of another Person, or share any Tax benefit with another Person.
Termination Date means September 30, 2017.
Transaction Documents means, with respect to any Person, this Agreement together with any other agreements, instruments, certificates and documents executed by such Person in connection herewith or in connection with the transactions contemplated hereby or thereby.
Transaction Payroll Taxes means the employer portion of any payroll and employment Taxes (including social security, Medicare, and unemployment) that Seller incurs with respect to the Change of Control Payments.
Treasury Regulations means the regulations promulgated under the Code, including temporary and proposed regulations.
WARN means the Worker Adjustment and Retraining Notification Act, as amended, or any similar state Law.
Water Well Assets means (i) any and all assets which are used exclusively in connection with the Water Well Business, and (ii) all assets listed on Section 8.1(a) (i) of the Disclosure Schedule.
(a) Each of the following terms is defined in the Section set forth opposite such term:
Term |
|
Section |
2017 Year End Financial Statements |
|
Section 4.3(d) |
Agreement |
|
Preamble |
Allocation Statement |
|
Section 1.7 |
Amendment Date |
|
Preamble |
Anti-Corruption Laws |
|
Section 2.26(b) |
Assumed Liabilities |
|
Section 1.1(c) |
Balance Sheet |
|
Section 2.5(a) |
Term |
|
Section |
Balance Sheet Date |
|
Section 2.5(a) |
Base Closing Cash Consideration |
|
Section 1.3(a)(i) |
Basket |
|
Section 6.5(b) |
Bill of Sale |
|
Section 1.1(a) |
Bowie Facility |
|
Section 4.20 |
Bulk Sales Laws |
|
Section 4.12 |
Business |
|
Preamble |
Cap |
|
Section 6.5(b) |
Cash Purchase Option |
|
Section 4.19 |
Class A Stock |
|
Preamble |
Closing |
|
Section 1.1(a) |
Closing Cash Consideration |
|
Section 1.5(b)(i) |
Closing Date |
|
Section 1.4 |
Closing Net Working Capital |
|
Section 1.6(a) |
Closing Permits |
|
Section 5.1(e) |
Closing Statement |
|
Section 1.6(a) |
Commission |
|
Section 4.3(b) |
Confidentiality Agreement |
|
Section 4.8(a) |
Deposit Account |
|
Section 1.2 |
Filings |
|
Section 4.3(b) |
Company Parties |
|
Section 4.11(c) |
Delayed Asset |
|
Section 1.1(e) |
Delayed Liability |
|
Section 1.1(e) |
Deposit |
|
Section 1.2 |
Disclosure Schedule |
|
Section 8.11 |
Dispute Notice |
|
Section 1.6(b) |
Disputed Items |
|
Section 1.6(b) |
Effective Time |
|
Section 1.4 |
Employee Benefit Plans |
|
Section 2.13(a) |
End Date |
|
Section 7.1(b) |
Environmental Matters |
|
Section 6.6 |
Environmental Permits |
|
Section 2.17(a) |
Environmental Reports |
|
Section 2.17(b) |
Equity Documents |
|
Section 5.1(g)(xx) |
Equity Interest |
|
Section 1.3(b) |
ERISA |
|
Section 2.13(a) |
Estimated Net Working Capital |
|
Section 1.5(a) |
Excluded Assets |
|
Section 1.1(b) |
Excluded Liabilities |
|
Section 1.1(d) |
FCPA |
|
Section 2.26(b) |
Filings |
|
Section 4.3(b) |
Financial Statements |
|
Section 2.5(a) |
Fundamental Rep |
|
Section 6.4 |
Guaranteed Obligations |
|
Section 8.17(a) |
Hall |
|
Preamble |
Included Contracts |
|
Section 1.1(a)(ii) |
Indemnified Party |
|
Section 6.3(a) |
Indemnifying Party |
|
Section 6.3(a) |
Term |
|
Section |
Indemnity Note |
|
Section 1.3(a)(ii) |
Intellectual Property Licenses |
|
Section 2.11(b) |
Intellectual Property Rights |
|
Section 1.1(a)(vi) |
IPO |
|
Preamble |
IPO Cutoff Date |
|
Section 4.19 |
Leased Real Properties |
|
Section 2.9(a) |
Losses |
|
Section 6.1 |
Material Contract |
|
Section 2.12(a) |
Minimum Standards |
|
Section 6.6(b) |
Multiemployer Plans |
|
Section 2.13(a) |
Multiple Employer Plans |
|
Section 2.13(a) |
New Lease |
|
Section 4.1(c) |
Notes |
|
Section 1.3(a)(i) |
Original Agreement |
|
Preamble |
Owned Intellectual Property |
|
Section 2.11(a) |
Party |
|
Preamble |
Payoff Letters |
|
Section 5.1(g)(vii) |
Personal Property Leases |
|
Section 2.10(a) |
Post-Closing Property Tax Period |
|
Section 4.9(c) |
Pre-Closing Environmental Liabilities |
|
Section 1.1(d)(xiii) |
Pre-Closing Property Tax Period |
|
Section 4.9(c) |
Purchased Assets |
|
Section 1.1(a) |
Purchaser |
|
Preamble |
Purchaser Indemnitees |
|
Section 6.1 |
Purchasers Agents |
|
Section 4.2 |
Qualified Plans |
|
Section 2.13(c) |
Ranger Holdings |
|
Preamble |
Ranger Holdings Operating Agreement |
|
Section 1.3(a)(vi) |
Ranger, Inc. |
|
Preamble |
Real Property Lease |
|
Section 2.9(a) |
Remedies Exceptions |
|
Section 2.2 |
Reorganization |
|
Preamble |
Seller |
|
Preamble |
Required Consent |
|
Section 1.1(e) |
Restricted Period |
|
Section 4.11(b) |
Retained Defenses |
|
Section 8.17(b) |
Retention Payments |
|
Section 4.13(b) |
Securities Laws |
|
Section 4.3(b) |
Security Agreement |
|
Section 5.1(g)(x) |
Seller |
|
Preamble |
Seller ERISA Affiliate |
|
Section 2.13(a) |
Seller Indemnitees |
|
Section 6.2 |
Seller Note |
|
Section 1.3(a)(i) |
Specified Facilities |
|
Section 6.6(a) |
Stale A/R |
|
Section 1.9(a) |
Stock Exchange |
|
Section 1.3(b) |
Surety Bonds |
|
Section 2.27(a) |
Term |
|
Section |
Tax Clearance Certificate |
|
Section 4.9(b) |
Territory |
|
Section 4.11(a) |
the date hereof |
|
Preamble |
the date of the execution and delivery of this Agreement |
|
Preamble |
THI |
|
Recitals |
Third Party Claim |
|
Section 6.3(a) |
Transaction Consideration |
|
Section 1.3 |
Transactional Rep |
|
Section 6.4 |
Transfer Taxes |
|
Section 4.9(a) |
Transferred Employees |
|
Section 4.13(a) |
Water Well Business |
|
Recitals |
Section 8.2 Expenses . Except as otherwise provided in this Agreement and as contemplated hereby and thereby, each of the Parties shall bear its own fees, costs, and expenses (including legal, accounting, consulting, and investment advisory fees and expenses) incurred in connection with this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby. All transfer, documentary, sales, use, stamp, registration, and other such Taxes (other than any franchise taxes imposed on Seller), and all conveyance fees, recording charges, and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement or any other Transaction Document shall be paid, fifty (50%) by Purchaser and fifty-percent (50%) by Seller.
Section 8.3 Governing Law; Jurisdiction; Exclusive Venue . This Agreement and all matters arising out of this Agreement shall be governed by and construed in accordance with the internal Laws of the State of Texas (without giving effect to any choice or conflict of Law provision or rule (whether of the state of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Texas). Except for matters relating to Section 1.6 of this Agreement, any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be exclusively instituted in the federal courts of the United States of America and if (and only if) such courts do not have, or decline to exercise jurisdiction (it being acknowledged and agreed that no party hereto shall contest such jurisdiction), the courts of the State of Texas, in each case, located in the City of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other document in accordance with Section 8.6 shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Section 8.4 Entire Agreement; Amendments and Waivers . This Agreement (including the schedules and exhibits hereto) represents the entire understanding and agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter of this Agreement, including that certain Letter of Intent, dated as of April 27, 2017, between an Purchaser and Seller. This Agreement may be amended, supplemented, or changed, and any provision of this Agreement can be waived, only by written instrument making specific reference to this Agreement (i) signed by Purchaser, in the case of an amendment, supplement, modification, or waiver sought to be enforced against Purchaser, or (ii) by Hall or Seller, in the case of an amendment, supplement, modification, or waiver sought to be enforced against any or all of Seller or Hall. The waiver by any Party of a Breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of such Breach or as a waiver of any other or subsequent Breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power, or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. In the event of any inconsistency between this Agreement and any other Transaction Documents, the terms hereof shall control.
Section 8.5 Section Headings . The section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement.
Section 8.6 Notices . All notices, requests, demands, claims and other communications under this Agreement shall be in writing and shall be deemed duly given (i) when delivered personally by hand to the recipient, (ii) upon confirmation of receipt when sent by facsimile (with written confirmation of transmission), (iii) if the sender does not receive a message indicating that the intended recipient has not received such email, when sent by email (in the text of the email or as a pdf), or (iv) upon confirmation of delivery when sent by express courier (or the following Business Day if not delivered on a Business Day), in each case at the following addresses, email addresses and facsimile numbers (or to such other address, email address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):
If to Seller or Hall, to: |
Tim Hall |
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808 Woodland Trail |
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Bowie, Texas 76230 |
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With a copy (which shall not constitute notice) to: |
Locke Lord LLP |
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2200 Ross Avenue |
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Suite 2800 |
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Dallas, TX 75201 |
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Attention: |
Whit Roberts |
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Dovi Adlerstein |
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Email: |
wroberts@lockelord.com |
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dadlerstein@lockelord.com |
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If to Purchaser, to: |
Ranger Energy Services, LLC, |
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c/o CSL Capital Management, LLC |
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1000 Louisiana, Suite 3850 |
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Houston, TX 77002 |
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Attention: |
Kent Jamison |
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With a copy (which shall not constitute notice) to: |
Winston & Strawn, LLP |
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2501 N. Harwood St., 17 th Floor |
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Dallas, TX 75201 |
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Attention: |
Matt Stockstill; David Lange |
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Email: |
mstockstill@winston.com; |
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dlange@winston.com |
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Section 8.7 Severability . If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereof or invalidate or make illegal or unenforceable any such term in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or
unenforceable, except as provided in this Agreement, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 8.8 Binding Effect; Assignment; Third-Party Beneficiaries . This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns; provided, however, that no Party may assign its rights and/or obligations hereunder without the prior written consent of Hall, Seller, and Purchaser, as applicable. Notwithstanding the foregoing, Purchaser may assign its rights and obligations pursuant to this Agreement, in whole or in part, in connection with any disposition or transfer of substantially all of Purchasers business in any form of transaction without the consent of any of the other Parties. In addition, Purchaser may assign any or all of its rights pursuant to this Agreement to any lender to Purchaser or any of its Affiliates as collateral security without the consent of any of the other Parties or to any Affiliate. Finally, Purchaser may assign its rights to purchase certain of the Purchased Assets to its wholly-owned subsidiaries. Except as provided in Article VI with respect to Persons entitled to indemnification thereunder, nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person.
Section 8.9 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format, or other electronic means shall be effective as delivery of a manually executed counterpart to this Agreement. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them (by means other than electronic delivery) to all other parties. No party hereto or to any such agreement or instrument shall raise (a) the use of electronic delivery to deliver a signature or (b) the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic delivery, as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
Section 8.10 Remedies Cumulative . Except as otherwise provided in this Agreement (including in Section 6.5(j) ), no remedy in this Agreement conferred upon a Party hereto is intended to be exclusive of any other remedy. No single or partial exercise by a Party hereto of any right, power, or remedy hereunder shall preclude any other or further exercise thereof.
Section 8.11 Exhibits and Schedules . The exhibits and schedules referred to in this Agreement are attached hereto and incorporated in this Agreement by this reference. The amended and restated disclosure schedule delivered in connection with the execution of this Agreement and attached hereto as Exhibit A (the Disclosure Schedule ) shall be arranged to correspond to the specific sections and subsections of this Agreement. The disclosures in the Disclosure Schedule are qualified in their entirety by reference to specific provisions of this Agreement, and are not intended to constitute, and shall not constitute, representations or warranties. Notwithstanding anything to the contrary contained in this Agreement or in the Disclosure Schedule, any disclosure with respect to a Section of this Agreement, including any Section of the Disclosure Schedule, shall be deemed to be disclosed for other Sections of this Agreement, including any Section of the Disclosure Schedule, to the extent that such disclosure is reasonably sufficient so that the relevance of such disclosure would be readily apparent to a reader of such disclosure. Matters reflected in any Section of this Agreement, including any Section of the Disclosure Schedule, are not necessarily limited to matters required by this Agreement to be so reflected. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature. No reference to or disclosure of any item or other matter in any Section of this Agreement, including any Section of the Disclosure Schedule, shall be construed as an admission or
indication that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in this Agreement. No disclosure on a Schedule relating to a possible breach or violation of any Contract, Law or Order shall be construed as an admission or indication that breach or violation exists or has actually occurred. Neither the specifications of any dollar amount in any representation, warranty or covenant contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material, and no party shall use the fact of the setting forth of any such amount or the inclusion of any such item in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not material for purposes of this Agreement. Further, neither the specification of any item or matter in any representation, warranty or covenant contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that the disclosing party has any liability or obligation with respect to such item or matter or that such item or matter, or other items or matters, are or are not in the Ordinary Course of Business, and no party shall use the fact of setting forth or the inclusion of any such items or matter in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not in the Ordinary Course of Business for purposes of this Agreement.
Section 8.12 Interpretation . When a reference is made in this Agreement to an article, section, paragraph, clause, schedule, or exhibit, such reference shall be deemed to be to this Agreement unless otherwise indicated. Whenever the words include, includes, or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. As used in this Agreement, words in the singular will be held to include the plural and vice versa (unless the context otherwise requires), words of one gender shall be held to include the other gender (or the neuter) as the context requires, and the terms hereof, herein, herewith and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. References to any agreement, instrument, or document shall mean such agreement, document or instrument as amended, modified, or supplemented as permitted thereunder from time to time. A reference to a party shall include its predecessors, successors, and permitted assigns. The phrases delivered or made available shall mean that the information referred to has been physically or electronically delivered to the relevant parties, including information posted to the electronic data site hosted by Summit Financial and established by Seller for the purpose of providing due diligence materials and information to Purchaser and its agents, employees, and advisors; provided all of such electronically delivered information shall not be deemed to be made available or delivered unless such information is also included on the DVD delivered following the Closing pursuant to Section 4.5(c) .
Section 8.13 Construction . The Parties agree and acknowledge that they have jointly participated in the negotiation and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumptions or burdens of proof shall arise favoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise, all as amended or agreed from time to time.
Section 8.14 Specific Performance . The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed by any of the Parties in accordance with the specific terms hereof or were otherwise Breached by Seller. It is accordingly agreed that each Party shall be entitled, to an injunction or other equitable relief to prevent Breaches of this Agreement or to enforce specifically the performance of the terms. Each Party agrees that it will not oppose the granting of an injunction, specific performance, and other equitable relief when expressly available pursuant to the terms
of this Agreement on any basis, including that another Party has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
Section 8.15 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO THE TRANSACTIONS OR ANY OF THE TRANSACTION DOCUMENTS, OR ANY OTHER DOCUMENT, INSTRUMENT OR CERTIFICATE EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO A TRIAL BY JURY. EACH PARTY (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15
Section 8.16 Time of Essence . Except as otherwise expressly set forth in this Agreement, with regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
Section 8.17 Guarantee by Hall .
(a) Hall hereby unconditionally and irrevocably guarantees to Purchaser the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, and at all times thereafter, of all payment obligations of Seller hereunder (the Guaranteed Obligations ). This guaranty covers the Guaranteed Obligations, whether presently outstanding or arising subsequent to the date hereof. The guaranty of Hall as set forth in this Section 8.17(a) is a continuing guaranty of payment and not of performance. Hall acknowledges and agrees that Hall may be required to pay the Guaranteed Obligations in full without assistance or support from Seller or any other party. Hall agrees that if all or any part of the Guaranteed Obligations shall not be punctually paid when due, Hall shall, immediately upon demand by Purchaser, pay the amount due on the Guaranteed Obligations to Purchaser in the manner set forth herein. Such demand shall be made, given and received in accordance with the notice provisions set forth herein. Hall acknowledges and agrees that his obligations hereunder will not be affected by a bankruptcy, dissolution, insolvency or reorganization of Seller.
(b) Notwithstanding anything herein to the contrary, Hall reserves the right to assert defenses to the payment of the Guaranteed Obligations (i) which Hall and/or Seller may have to payment of any Guaranteed Obligations, other than defenses arising from the bankruptcy, insolvency, dissolution or reorganization of Seller, (ii) as a result of payment of the Guaranteed Obligations in accordance with their terms, and (iii) based upon actual fraud (pled and proven in accordance with applicable Law) by Purchaser or any of its Affiliates (the foregoing collectively, the Retained Defenses ). Without limiting the generality of the foregoing, to the extent Seller is relieved of any of its obligations under this Agreement (other than as a result of lack of capacity, lack of authority or any other disability to the enforceability or validity of, or defense (other than the Retained Defenses) based on the unenforceability or invalidity of, the obligations against Purchaser), Hall shall be similarly relieved of its corresponding Guaranteed Obligations under this Section 8.17 but only to the same extent Seller is so relieved.
* * * * *
IN WITNESS WHEREOF, this First Amended and Restated Asset Purchase Agreement has been executed by or on behalf of each of the Parties as of the day first written above.
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PURCHASER : |
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RANGER ENERGY SERVICES, LLC |
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By: |
/s/Robert Shaw |
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Name: Robert Shaw |
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Title: Chief Financial Officer |
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SELLER : |
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ESCO LEASING, LLC |
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By: |
/s/Tim Hall |
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Name: Tim Hall |
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Title: CEO |
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HALL: |
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/s/Tim Hall |
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TIM HALL |
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Signature Page to First Amended and Restated Asset Purchase Agreement
List of Omitted Disclosure Schedules
Schedule 1.1(a)(i) Assets
Schedule 1.1(a)(xvi) Bank Accounts
Schedule 1.1(a)(xvii) Employee Benefit Plans
Schedule 1.1(b)(i) Excluded Assets
Schedule 2.1(a) Organization and Qualification of Seller
Schedule 2.1(c) Seller Owned Equity Securities or Interests
Schedule 2.4 Conflicts; Consents of Third Parties
Schedule 2.5(a) Seller Financial Statements
Schedule 2.5(b) Seller Indebtedness
Schedule 2.6 Undisclosed Liabilities
Schedule 2.7 Absence of Certain Developments
Schedule 2.9(b) Leased Real Property
Schedule 2.9(g) Improvements
Schedule 2.10(a) Personal Property Leases
Schedule 2.10(d) Material Tangible Personal Property
Schedule 2.11(b)(i) Owned Intellectual Property
Schedule 2.11(b)(ii) Trademarks
Schedule 2.11(b)(iii) Intellectual Property Licenses
Schedule 2.11(e) Intellectual Property Proceedings
Schedule 2.12(a) Material Contracts
Schedule 2.13(a) Employee Benefit Plans
Schedule 2.13(b) Multiple Employer Plan
Schedule 2.14(a) Employees
Schedule 2.14(c) Legal Proceedings Employment
Schedule 2.14(e) Compliance with Labor and Employment Laws
Schedule 2.15 Litigation
Schedule 2.16(b) Permits
Schedule 2.17(b) Environmental Reports
Schedule 2.17(c) Breach of Environmental Requirements
Schedule 2.17(d) Environmental Claims
Schedule 2.17(e) - Environmental Disclosures
Schedule 2.17(f) Hazardous Materials
Schedule 2.17(i) Environmental Indemnities and/or Liabilities
Schedule 2.17(j) Hazardous Material Generation
Schedule 2.18 Insurance
Schedule 2.19 Receivables
Schedule 2.20 Inventory
Schedule 2.21(a) Top Ten Customers
Schedule 2.21(b) Top Ten Vendors
Schedule 2.22 Warranty Claims
Schedule 2.23 Guarantees and Liabilities
Schedule 2.24 Related Party Transactions
Schedule 2.25 Broker Fees
Schedule 2.26 Absence of Certain Business Practices
Schedule 2.27(a) Surety Bonds
Schedule 2.27(b) Non-Compliance with Surety Bonds
Schedule 3.1 Organization and Qualification of Purchaser
Schedule 3.3 Capitalization of Ranger Holdings
Schedule 3.4 Conflicts and Third Party Consents
Schedule 4.1(b) Seller Consents
Schedule 4.1(c) Real Property Leases
Schedule 5.1(e) Closing Permits
Schedule 5.1(f)(g)(xvi) Reimbursable CapEx Expenditure
Schedule 5.1(g)(vii) Seller Consents
Schedule 8.1 Net Working Capital
Schedule 8.1(a)(i) Water Well Assets
The above disclosure schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish a supplemental copy of any omitted disclosure schedule to the Securities and Exchange Commission upon request.
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement ) is made and entered into as of [ · ], 2017, by and among Ranger Energy Services, Inc., a Delaware corporation (the Company ), and each of the other parties listed on the signature pages hereto (the Initial Holders and, together with the Company, the Parties ).
WHEREAS, in connection with, and in consideration of, the transactions contemplated by the Companys Registration Statement on Form S-1 (File No. 333-218139), the Initial Holders have requested, and the Company has agreed to provide, registration rights with respect to the Registrable Securities (as hereinafter defined) as set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the Parties hereby agree as follows:
1. Definitions . As used in this Agreement, the following terms have the meanings indicated:
Affiliate of any specified Person means any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing. For the avoidance of doubt, for purposes of this Agreement, the Company and the Initial Holders shall not be considered Affiliates of each other.
Agreement has the meaning set forth in the preamble.
Automatic Shelf Registration Statement means an automatic shelf registration statement as defined under Rule 405.
Blackout Period has the meaning set forth in Section 3(o) .
Board means the board of directors of the Company.
Business Day means any day other than a Saturday, Sunday, any federal holiday or any other day on which banking institutions in the State of Texas or the State of New York are authorized or required to be closed by law or governmental action.
Commission means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.
Common Stock means Class A Common Stock and the Class B common stock, par value $0.01 per share, of the Company.
Class A Common Stock means the Class A common stock, par value $0.01 per share, of the Company.
Company has the meaning set forth in the preamble.
Company Securities means any equity interest of any class or series in the Company.
Demand Notice has the meaning set forth in Section 2(a)(i) .
Demand Registration has the meaning set forth in Section 2(a)(i) .
Effective Date means the time and date that a Registration Statement is first declared effective by the Commission or otherwise becomes effective.
Effectiveness Period has the meaning set forth in Section 2(a)(ii) .
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
Holder means (i) each Initial Holder unless and until such Initial Holder ceases to hold any Registrable Securities and (ii) any holder of Registrable Securities to whom registration rights conferred by this Agreement have been transferred in compliance with Section 8(e) hereof; provided that any Person referenced in clause (ii) shall be a Holder only if such Person agrees in writing to be bound by and subject to the terms set forth in this Agreement.
Holder Indemnified Persons has the meaning set forth in Section 6(a) .
Holder Lock-Up Period has the meaning set forth in Section 3(q) .
Initial Holders has the meaning set forth in the preamble.
Initiating Holder means the Holder delivering the Demand Notice or the Underwritten Offering Notice, as applicable.
Lock-Up Period has the meaning set forth in the underwriting agreement entered into by the Company in connection with the initial underwritten public offering of shares of Class A Common Stock.
Losses has the meaning set forth in Section 6(a) .
Minimum Amount has the meaning set forth in Section 2(a)(i) .
Parties has the meaning set forth in the preamble.
Person means an individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, estate, trust, government (or an agency or subdivision thereof) or other entity of any kind.
Piggyback Registration has the meaning set forth in Section 2(c)(i) .
Piggyback Registration Notice has the meaning set forth in Section 2(c)(i) .
Piggyback Registration Request has the meaning set forth in Section 2(c)(i) .
Proceeding means any action, claim, suit, proceeding or investigation (including a preliminary investigation or partial proceeding, such as a deposition) pending or, to the knowledge of the Company, to be threatened.
Prospectus means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
Ranger LLC means RNGR Energy Services, LLC, a Delaware limited liability company.
Ranger LLC Agreement means the Amended and Restated Limited Liability Company Agreement of Ranger LLC, dated as of [ · ], 2017.
Registrable Securities means the Shares; provided , however , that Registrable Securities shall not include: (i) any Shares that have been registered under the Securities Act and disposed of pursuant to an effective Registration Statement or otherwise transferred to a Person that is not entitled to the registration and other rights hereunder; (ii) any Shares that have been sold or transferred by the Holder thereof pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive restricted securities as defined in Rule 144; (iii) any Shares that cease to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise); and (iv) any Shares that are eligible for resale without restriction and without the need for current public information pursuant to any section of Rule 144 (or any similar provision then in effect) under the Securities Act.
Registration Expenses has the meaning set forth in Section 5 .
Registration Statement means a registration statement of the Company in the form required to register under the Securities Act and other applicable law the resale of the Registrable Securities in accordance with the intended plan of distribution of each Holder of Registrable Securities included therein, and including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
Requested Underwritten Offering has the meaning set forth in Section 2(b) .
Rule 144 means Rule 144 promulgated by the Commission pursuant to the Securities Act.
Rule 405 means Rule 405 promulgated by the Commission pursuant to the Securities Act.
Rule 415 means Rule 415 promulgated by the Commission pursuant to the Securities Act.
Rule 424 means Rule 424 promulgated by the Commission pursuant to the Securities Act.
Securities Act means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
Selling Expenses means all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities and fees and disbursements of counsel for any Holder (except as set forth in Section 5 ).
Shares means (i) the shares of Class A Common Stock held by the Holders as of the date hereof, including the shares of Class A Common Stock that may be delivered in exchange for Units held by the Holders as of the date hereof, and (ii) and any other equity interests of the Company or equity interests in any successor of the Company issued in respect of such shares by reason of or in connection with any stock dividend, stock split, combination, reorganization, recapitalization, conversion to another type of entity or similar event involving a change in the capital structure of the Company. For purposes of this Agreement, a Person shall be deemed to hold Shares, and such Shares shall be deemed to be in existence, whenever such Person has the right to acquire such Shares (upon conversion, exchange or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right other than vesting), whether or not such acquisition has actually been effected, and such Person shall be entitled to exercise the rights of a holder of Shares.
Shelf Registration Statement means a Registration Statement of the Company filed with the Commission on Form S-3 (or any successor form or other appropriate form under the Securities Act) for an offering to be made on a continuous or delayed basis pursuant to Rule 415 (or any similar rule that may be adopted by the Commission) covering the Registrable Securities, as applicable.
Suspension Period has the meaning set forth in Section 8(b) .
Trading Market means the principal national securities exchange on which Registrable Securities are listed.
Underwritten Offering means an underwritten offering of Class A Common Stock for cash (whether a Requested Underwritten Offering or in connection with a public offering of Class A Common Stock by the Company, stockholders or both), excluding an offering relating solely to an employee benefit plan, an offering relating to a transaction on Form S-4 or S-8 or an offering on any registration statement form that does not permit secondary sales.
Underwritten Offering Notice has the meaning set forth in Section 2(b) .
Underwritten Offering Piggyback Notice has the meaning set forth in Section 2(c)(ii) .
Underwritten Offering Piggyback Request has the meaning set forth in Section 2(c)(ii) .
Underwritten Piggyback Offering has the meaning set forth in Section 2(c)(ii) .
Units has the meaning given to such term in the Ranger LLC Agreement.
VWAP means, as of a specified date and in respect of Registrable Securities, the volume weighted average price for such security on the Trading Market for the five trading days immediately preceding, but excluding, such date.
WKSI means a well known seasoned issuer as defined under Rule 405.
Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (b) references to Sections refer to Sections of this Agreement; (c) the terms include, includes, including and words of like import shall be deemed to be followed by the words without limitation; (d) the terms hereof, hereto, herein or hereunder refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) unless the context otherwise requires, the term or is not exclusive and shall have the inclusive meaning of and/or; (f) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (g) references to any law or statute shall include all rules and regulations promulgated thereunder, and references to any law or statute shall be construed as including any legal and statutory provisions consolidating, amending, succeeding or replacing the applicable law or statute; (h) references to any Person include such Persons successors and permitted assigns; and (i) references to days are to calendar days unless otherwise indicated.
2. Registration .
(a) Demand Registration .
(i) At any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company (a Demand Notice ), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a Demand Registration ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities to be
included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $25 million (the Minimum Amount ).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the Effectiveness Period ).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Requested Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares from the Demand Registration such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii) .
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3 , in connection with any Demand Registration pursuant to and in accordance with this Section 2(a) , the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided , however , that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall the Company be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
(b) Requested Underwritten Offering . Any Holder then able to effectuate a Demand Registration pursuant to the terms of Section 2(a) , ignoring for purposes of such determination Section 2(a)(iii)(B) , shall have the option and right, exercisable by delivering written notice to the Company of its intention to distribute Registrable Securities by means of an Underwritten Offering (an Underwritten Offering Notice ), to require the Company, pursuant to the terms of and subject to the limitations of this Agreement, to effectuate a distribution of any or all of its Registrable Securities by means of an Underwritten Offering pursuant to a new Demand Registration or pursuant to an effective Registration Statement covering such Registrable Securities (a Requested Underwritten Offering ); provided , that if the Requested Underwritten Offering is pursuant to a new Demand Registration, then the Registrable Securities of such Initiating Holder requested to be included in such Requested Underwritten Offering have an aggregate value of at least equal to the Minimum Amount as of the date of such Underwritten Offering Notice, and if the Requested Underwritten Offering is pursuant to an effective Demand Registration, then the Registrable Securities of such Initiating Holder requested to be included in such Requested Underwritten Offering have an aggregate value of at least equal to 50 percent of the Minimum Amount as of the date of such Underwritten Offering Notice. The Underwritten Offering Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Requested Underwritten Offering. The managing underwriter or managing underwriters of a Requested Underwritten Offering shall be designated by the
Company; provided , however , that such designated managing underwriter or managing underwriters shall be reasonably acceptable to the Initiating Holder. Notwithstanding the foregoing, the Company is not obligated to effect a Requested Underwritten Offering within 90 days after the closing of a Requested Underwritten Offering.
(c) Piggyback Registration and Piggyback Underwritten Offering .
(i) If the Company shall at any time propose to file a registration statement under the Securities Act with respect to an offering of Company Securities (other than a registration statement on Form S-4, Form S-8 or any successor forms thereto or filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan), then the Company shall promptly notify all Holders of such proposal reasonably in advance of (and in any event at least five Business Days before) the anticipated filing date (the Piggyback Registration Notice ). The Piggyback Registration Notice shall offer Holders the opportunity to include for registration in such registration statement the number of Registrable Securities as they may request in writing (a Piggyback Registration ). The Company shall use commercially reasonable efforts to include in each such Piggyback Registration such Registrable Securities for which the Company has received written requests for inclusion therein ( Piggyback Registration Request ) within three Business Days after sending the Piggyback Registration Notice; provided , however , that the Company shall not be required to include in such Piggyback Registration a Holders Registrable Securities in the event such Holder, together with its Affiliates, does not request for inclusion Registrable Securities having an aggregate value, based on the VWAP as of the date of the Piggyback Registration Notice, of at least $10 million. Each Holder shall be permitted to withdraw all or part of such Holders Registrable Securities from a Piggyback Registration by giving written notice to the Company of its request to withdraw; provided that (A) such request must be made in writing prior to the effectiveness of such registration statement and (B) such withdrawal shall be irrevocable and, after making such withdrawal, a Holder shall no longer have any right to include Registrable Securities in the Piggyback Registration as to which such withdrawal was made. Any withdrawing Holder shall continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of Company Securities, all upon the terms and conditions set forth herein.
(ii) If the Company shall at any time propose to conduct an Underwritten Offering, whether or not for its own account, then the Company shall promptly notify all Holders of such proposal reasonably in advance of (and in any event at least five Business Days before or two Business Days before in connection with a bought deal or overnight Underwritten Offering) the commencement of the Underwritten Offering, which notice shall set forth the principal terms and conditions of the issuance, including the proposed offering price (or range of offering prices), the anticipated filing date of the related registration statement (if applicable) and the number of shares of Class A Common Stock that are proposed to be registered (the Underwritten Offering Piggyback Notice ). Receipt of any Underwritten Offering Piggyback Notice provided to any Holder pursuant to this Section 2(c)(ii) shall be kept confidential by each such Holder until such proposed Underwritten Offering is (i) publicly announced or (ii) such Holder receives notice that such proposed Underwritten Offering has been abandoned, which notice shall be provided promptly by the Company to each Holder. The Underwritten Offering Piggyback Notice shall offer Holders the opportunity to include in such
Underwritten Offering (and any related registration, if applicable) the number of Registrable Securities as they may request in writing (an Underwritten Piggyback Offering ); provided , however , that in the event that the Company proposes to effectuate the subject Underwritten Offering pursuant to an effective Shelf Registration Statement of the Company other than an Automatic Shelf Registration Statement, only Registrable Securities of Holders that are subject to an effective Shelf Registration Statement may be included in such Underwritten Piggyback Offering. The Company shall use commercially reasonable efforts to include in each such Underwritten Piggyback Offering such Registrable Securities for which the Company has received written requests for inclusion therein ( Underwritten Offering Piggyback Request ) within three Business Days after sending the Underwritten Offering Piggyback Notice (or one Business Day in connection with a bought deal or overnight Underwritten Offering); provided , however , that the Company shall not be required to include in such Underwritten Piggyback Offering a Holders Registrable Securities in the event such Holder, together with its Affiliates, does not request for inclusion Registrable Securities having an aggregate value, based on the VWAP as of the date of the Underwritten Offering Piggyback Notice, of at least $10 million. Notwithstanding anything to the contrary in this Section 2(c)(ii) , if the Underwritten Offering pursuant to this Section 2(c)(ii) is a bought deal or overnight Underwritten Offering and the managing underwriter advises the Company that the giving of notice pursuant to this Section 2(c)(ii) would adversely affect the Underwritten Offering, no such notice shall be required. Each Holder shall be permitted to withdraw all or part of such Holders Registrable Securities from an Underwritten Piggyback Offering at any time prior to the effectiveness of the applicable registration statement, and such Holder shall continue to have the right to include any Registrable Securities in any subsequent Underwritten Offerings, all upon the terms and conditions set forth herein.
(iii) If the managing underwriter or managing underwriters of an Underwritten Offering advise the Company and the Holders that in their reasonable opinion the inclusion of all of the Holders Registrable Securities requested for inclusion in the subject Underwritten Offering (and any related registration, if applicable) (and any other Class A Common Stock proposed to be included in such offering) exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Underwritten Offering (and any related registration, if applicable) only that number of shares of Class A Common Stock proposed to be included in such Underwritten Offering (and any related registration, if applicable) that, in the reasonable opinion of the managing underwriter or managing underwriters, will not have such adverse effect, with such number to be allocated as follows: (A) in the case of a Requested Underwritten Offering, pro rata among all Holders that have requested to include Registrable Securities in such Requested Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder; and (B) in the case of any other Underwritten Offerings, (x) first, to the Company, (y) second, if there remains availability for additional shares of Class A Common Stock to be included in such Underwritten Offering, pro rata among all Holders desiring to include Registrable Securities in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder, and (z) third, if there remains availability for additional shares of Class A Common Stock to be included in such registration, pro rata among any other holders entitled to participate in such Underwritten Offering, if applicable, based on the relative number of Class A Common Stock then held by each such holder. If any Holder disapproves of
the terms of any such Underwritten Offering, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter(s) delivered on or prior to the time of the commencement of such offering. Any Registrable Securities withdrawn from such underwriting shall be excluded and withdrawn from the registration.
(iv) The Company shall have the right, at any time after giving the Piggyback Registration Notice and prior to the Effective Date of the applicable registration statement, to terminate or withdraw any registration initiated by it under this Section 2(c) at any time in its sole discretion, whether or not any Holder has elected to include Registrable Securities in such Registration Statement, by giving written notice of such termination or withdrawal to each Holder. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 4 hereof.
3. Registration and Underwritten Offering Procedures .
The procedures to be followed by the Company and each Holder electing to sell Registrable Securities in a Registration Statement pursuant to this Agreement, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of such Registration Statement and the effectuation of any Underwritten Offering, are as follows:
(a) In connection with a Demand Registration, the Company will, at least three Business Days prior to the anticipated filing of the Registration Statement and any related Prospectus or any amendment or supplement thereto (other than, after effectiveness of the Registration Statement, any filing made under the Exchange Act that is incorporated by reference into the Registration Statement), (i) furnish to such Holders copies of all such documents prior to filing and (ii) use commercially reasonable efforts to address in each such document when so filed with the Commission such comments as such Holders reasonably shall propose prior to the filing thereof.
(b) In connection with a Piggyback Registration, Underwritten Piggyback Offering or a Requested Underwritten Offering, the Company will, at least three Business Days prior to the anticipated filing of any initial Registration Statement that identifies the Holders and any related Prospectus or any amendment or supplement thereto (other than amendments and supplements that do not materially alter the previous disclosure or do nothing more than name Holders and provide information with respect thereto), as applicable, (i) furnish to such Holders copies of any such Registration Statement or related Prospectus or amendment or supplement thereto that identify the Holders and any related Prospectus or any amendment or supplement thereto (other than amendments and supplements that do not materially alter the previous disclosure or do nothing more than name Holders and provide information with respect thereto) prior to filing and (ii) use commercially reasonable efforts to address in each such document when so filed with the Commission such comments as such Holders reasonably shall propose prior to the filing thereof.
(c) The Company will use commercially reasonable efforts to as promptly as reasonably practicable (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus
used in connection therewith as may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby for its Effectiveness Period and, subject to the limitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Holders; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably practicable provide such Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to such Holders as selling stockholders but not any comments that would result in the disclosure to such Holders of material and non-public information concerning the Company.
(d) The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by each Registration Statement.
(e) The Company will notify such Holders that are included in a Registration Statement as promptly as reasonably practicable: (i) (A) when a Prospectus or any prospectus supplement or post-effective amendment to a Registration Statement in which such Holder is included has been filed; (B) when the Commission notifies the Company whether there will be a review of the applicable Registration Statement and whenever the Commission comments in writing on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of such Holders that pertain to such Holders as selling stockholders); and (C) with respect to each applicable Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to such Registration Statement or Prospectus or for additional information that pertains to such Holders as sellers of Registrable Securities; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement, it will not contain 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, or in the case of such Prospectus, it will not include any untrue statement of a material fact or omit 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 ( provided , however , that no notice by the Company shall be required pursuant to this clause (v) in the event that the Company either promptly files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which in either case, contains the requisite information that results in such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading or such Prospectus no longer including any untrue statement of material fact or omitting 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).
(f) The Company will use commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable, or if any such order or suspension is made effective during any Blackout Period or Suspension Period, as promptly as reasonably practicable after such Blackout Period or Suspension Period is over.
(g) During the Effectiveness Period, the Company will furnish to each such Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Holder (including those incorporated by reference) promptly after the filing of such documents with the Commission; provided , that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commissions EDGAR system.
(h) The Company will promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) authorized by the Company for use and each amendment or supplement thereto as such Holder may reasonably request during the Effectiveness Period. Subject to the terms of this Agreement, including Section 8(b) , the Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(i) The Company will cooperate with such Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request in writing. In connection therewith, if required by the Companys transfer agent, the Company will promptly, after the Effective Date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Holder of such Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(e)(v) , as promptly as reasonably practicable, the Company will prepare a supplement or amendment,
including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no Prospectus will include an untrue statement of a material fact or 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.
(k) With respect to Underwritten Offerings, (i) the right of any Holder to include such Holders Registrable Securities in an Underwritten Offering shall be conditioned upon such Holders participation in such underwriting and the inclusion of such Holders Registrable Securities in the underwriting to the extent provided herein, (ii) each Holder participating in such Underwritten Offering agrees to enter into an underwriting agreement in customary form and sell such Holders Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled to select the managing underwriter or managing underwriters hereunder and (iii) each Holder participating in such Underwritten Offering agrees to complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents customarily and reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any Underwritten Offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary legal opinions and auditor comfort letters.
(l) For a reasonable period prior to the filing of any Registration Statement and throughout the Effectiveness Period, the Company will make available, upon reasonable notice at the Companys principal place of business or such other reasonable place, for inspection during normal business hours by a representative or representatives of the selling Holders, the managing underwriter or managing underwriters and any attorneys or accountants retained by such selling Holders or underwriters, all such financial and other information and books and records of the Company, and cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an attorney-client privilege in such counsels reasonable belief) to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided , however , that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless disclosure of such information is required by court or administrative order or, in the opinion of counsel to such Person, law, in which case, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure.
(m) In connection with any Requested Underwritten Offering, the Company will use commercially reasonable efforts to cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective investors in presentations, meetings and road shows.
(n) Each Holder agrees to furnish to the Company any other information regarding the Holder and the distribution of such securities as the Company reasonably determines is required to be included in any Registration Statement or any Prospectus or prospectus supplement relating to an Underwritten Offering.
(o) Notwithstanding any other provision of this Agreement, the Company shall not be required to file a Registration Statement (or any amendment thereto) or effect a Requested Underwritten Offering (or, if the Company has filed a Shelf Registration Statement and has included Registrable Securities therein, the Company shall be entitled to suspend the offer and sale of Registrable Securities pursuant to such Registration Statement) for a period of up to 45 days if (i) the Board or the Chief Executive Officer of the Company determines that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company), (ii) the Board or the Chief Executive Officer of the Company determines such registration would render the Company unable to comply with applicable securities laws or (iii) the Board or the Chief Executive Officer of the Company determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential (any such period, a Blackout Period ). In the event of a Blackout Period resulting from a pending transaction identified in Section 3(o)(i) above that is an Underwritten Offering, such Blackout Period may be extended for up to an additional 45 days if the managing underwriter or managing underwriters for such Underwritten Offering have notified the Company of the need to extend such Blackout Period.
(p) In connection with an Underwritten Offering, the Company shall use all commercially reasonable efforts to provide to each Holder named as a selling securityholder in any Registration Statement a copy of any auditor comfort letters or customary legal opinions, in each case that have been provided to the managing underwriter or managing underwriters in connection with the Underwritten Offering, not later than the Business Day prior to the Effective Date of such Registration Statement.
(q) In connection with any Underwritten Offering initiated by the Company for the sale of securities for its own account, any Holder that together with its Affiliates owns 10% or more of the outstanding Common Stock (or otherwise retains the right to appoint one or more directors to the Board pursuant to that certain Stockholders Agreement, dated as of the date hereof, among the Company and the other signatories thereto), shall execute a customary lock-up agreement with the underwriters of such Underwritten Offering containing a lock-up period equal to the shorter of (i) the shortest number of days that a director of the Company, executive officer (as defined under Section 16 of the Exchange Act) of the Company or any stockholder of the Company (other than a Holder or director or employee of, or consultant to, the Company) who owns 10% or more of the outstanding Common Stock contractually agrees to with the underwriters of such Underwritten Offering not to sell any securities of the Company following such Underwritten Offering and (ii) 45 days from the date of the execution of the underwriting agreement with respect to such Underwritten Offering (each such period, a Holder Lock-Up Period ).
4. No Inconsistent Agreements; Additional Rights . The Company shall not hereafter enter into, and is not currently a party to, any agreement with respect to its securities
that is inconsistent in any material respect with, or superior to, the rights granted to the Holders by this Agreement.
5. Registration Expenses . All Registration Expenses incident to the Parties performance of or compliance with their respective obligations under this Agreement or otherwise in connection with any Demand Registration, Requested Underwritten Offering, Piggyback Registration or Underwritten Piggyback Offering (in each case, excluding any Selling Expenses) shall be borne by the Company, whether or not any Registrable Securities are sold pursuant to a Registration Statement. Registration Expenses shall include, without limitation, (i) all registration and filing fees (including fees and expenses (A) with respect to filings required to be made with the Trading Market and (B) in compliance with applicable state securities or Blue Sky laws), (ii) printing expenses (including expenses of printing certificates for Company Securities and of printing Prospectuses if the printing of Prospectuses is reasonably requested by a Holder of Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel, auditors and accountants for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, (vii) the reasonable fees and expenses of one law firm of national standing selected by the Holders owning the majority of the Registrable Securities to be included in any such registration or offering and (viii) all expenses relating to marketing the sale of the Registrable Securities, including expenses related to conducting a road show. In addition, the Company shall be responsible for all of its expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including expenses payable to third parties and including all salaries and expenses of their officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on the Trading Market.
6. Indemnification .
(a) The Company shall indemnify and hold harmless each Holder, its Affiliates and each of their respective officers and directors and any agent thereof (collectively, Holder Indemnified Persons ), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Holder Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, Losses ), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which any Registrable Securities were registered, or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading, or included in any preliminary prospectus (if the Company authorized the use of such preliminary prospectus prior to the Effective Date), any summary or final prospectus or free writing prospectus (if such free writing prospectus was authorized for use by the Company) or in any amendment or supplement thereto (if used during the period the Company is required to keep the
Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company shall not be liable to any Holder Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder Indemnified Person specifically for use in the preparation thereof. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement. This indemnity shall be in addition to any liability the Company may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder Indemnified Person or any indemnified party and shall survive the transfer of such securities by such Holder. Notwithstanding anything to the contrary herein, this Section 6 shall survive any termination or expiration of this Agreement indefinitely.
(b) In connection with any Registration Statement in which a Holder participates, such Holder shall, severally and not jointly, indemnify and hold harmless the Company, its Affiliates and each of their respective officers, directors and any agent thereof, to the fullest extent permitted by applicable law, from and against any and all Losses as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any such Registration Statement, or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading, or in any preliminary prospectus (if used prior to the Effective Date of such Registration Statement), any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto (if used during the period the Company is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to the Holder furnished in writing to the Company by such Holder for use therein. This indemnity shall be in addition to any liability such Holder may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any indemnified party. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder from the sale of the Registrable Securities giving rise to such indemnification obligation
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified partys reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party that is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to any local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party that are in addition to or may conflict with those available to another indemnified party with respect to such claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder.
(d) If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any Losses referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the untrue or alleged untrue statement of a material fact or the omission to state a material fact that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided , that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder.
7. Facilitation of Sales Pursuant to Rule 144 . To the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any Holder in connection with that Holders sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.
8. Miscellaneous .
(a) Remedies . In the event of actual or potential breach by the Company of any of its obligations under this Agreement, each Holder, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.
(b) Discontinued Disposition . Subject to the last sentence of Section 3(o) , each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in clauses (ii) through (v) of Section 3(e) , such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holders receipt of the copies of the supplemental Prospectus or amended Registration Statement as contemplated by Section 3(j) or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement (a Suspension Period ). The Company may provide appropriate stop orders to enforce the provisions of this Section 8(b) .
(c) Amendments and Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and Holders that hold a majority of the Registrable Securities as of the date of such waiver or amendment; provided , that any waiver or amendment that would have a disproportionate adverse effect on a Holder relative to the other Holders shall require the consent of such Holder. The Company shall provide prior notice to all Holders of any proposed waiver or amendment. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.
(d) Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Section 8(d) prior to 5:00 p.m. Central Time on a Business Day, (ii) the Business Day after the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Agreement later than 5:00 p.m. Central Time on any date and earlier than 11:59 p.m. Central Time on such date, (iii) the Business Day following the date of mailing, if sent by nationally recognized overnight courier service (iv) upon actual receipt by the Party to whom such notice is required to be given. The address for such notices and communications shall be as follows:
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Ranger Energy Services, Inc. Attention: Chief Executive Officer 800 Gessner Street, Suite 1000 Houston, Texas 77024 Electronic mail: darron.anderson@rangerenergy.com |
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Vinson & Elkins L.L.P. Attention: Douglas E. McWilliams; Julian J. Seiguer 1001 Fannin Street, Suite 2500 Houston, Texas 77002 Electronic mail: dmcwilliams@velaw.com; jseiguer@velaw.com |
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To the address of such Holder as it appears in the applicable register for the Registrable Securities or such other address as may be designated in writing by such Holder (including on the signature pages hereto). |
(e) Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns. Except as provided in this Section 8(e) , this Agreement, and any rights or obligations hereunder, may not be assigned without the prior written consent of the Company (acting through the Board of Directors) and the Holders. Notwithstanding anything in the foregoing to the contrary, the rights of a Holder pursuant to this Agreement with respect to all or any portion of its Registrable Securities may be assigned without such consent (but only with all related obligations) with respect to such Registrable Securities (and any Registrable Securities issued as a dividend or other distribution with respect to, in exchange for or in replacement of such Registrable Securities) by such Holder to a transferee of such Registrable Securities; provided (i) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Registrable Securities with respect to which such registration rights are being assigned and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms set forth in this Agreement. The Company may not assign its rights or obligations hereunder without the prior written consent of the Holders.
(f) No Third Party Beneficiaries . Nothing in this Agreement, whether express or implied, shall be construed to give any Person, other than the parties hereto or their respective successors and permitted assigns, any legal or equitable right, remedy, claim or benefit under or in respect of this Agreement.
(g) Execution and Counterparts . This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile or electronic mail transmission, such signature shall create a valid binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such signature delivered by facsimile or electronic mail transmission were the original thereof.
(h) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York. Each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in in the Borough of Manhattan in the City of New York and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each Party anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HEREBY
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(i) Cumulative Remedies . The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(j) Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(k) Entire Agreement . This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and the matters addressed or governed hereby, whether oral or written.
(l) Termination . Except for Section 6 , this Agreement shall terminate as to any Holder, when all Registrable Securities held by such Holder no longer constitute Registrable Securities.
[THIS SPACE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
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RANGER ENERGY HOLDINGS, LLC |
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TORRENT ENERGY HOLDINGS, LLC |
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RANGER ENERGY HOLDINGS II, LLC |
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TORRENT ENERGY HOLDINGS II, LLC |
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CSL ENERGY OPPORTUNITIES FUND II, L.P. |
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CSL ENERGY HOLDINGS II, LLC |
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BAYOU WELL HOLDINGS COMPANY, LLC |
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Signature Page to Registration Rights Agreement
Exhibit 5.1
August 1 , 2017
Ranger Energy Services, Inc.
800 Gessner Street, Suite 1000
Houston, Texas 77024
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel for Ranger Energy Services, Inc., a Delaware corporation (the Company ), in connection with the proposed offer and sale (the Offering ) by the Company, pursuant to a prospectus forming a part of a Registration Statement on Form S-1, Registration No. 333-218139, originally filed with the Securities and Exchange Commission on May 22, 2017 (such Registration Statement, as amended at the effective date thereof, being referred to herein as the Registration Statement ), of up to 5,750,000 shares of Class A common stock, par value $0.01 per share, of the Company (the Common Shares ).
Pursuant to the terms of a corporate reorganization (the Reorganization ) that will be completed in connection with the Offering, as further described in the Registration Statement and the prospectus relating thereto, the Company will indirectly acquire all of the membership interests in the predecessor companies, Ranger Energy Services, LLC, a Delaware limited liability company, and Torrent Energy Services, LLC, a Delaware limited liability company, and take certain other actions in connection therewith.
In connection with this opinion, we have assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective, (ii) the Common Shares will be issued and sold in the manner described in the Registration Statement and the prospectus relating thereto, (iii) the Reorganization will have been consummated in the manner described in the Registration Statement and the prospectus relating thereto and (iv) a definitive underwriting agreement, in the form filed as an exhibit to the Registration Statement, with respect to the sale of the Common Shares will have been duly authorized and validly executed and delivered by the Company and the other parties thereto.
In connection with the opinion expressed herein, we have examined, among other things, (i) the form of Amended and Restated Certificate of Incorporation of the Company and the form of Amended and Restated Bylaws of the Company, (ii) the records of corporate proceedings that have occurred prior to the date hereof with respect to the Offering, (iii) the Registration Statement and (iv) the form of underwriting agreement filed as an exhibit to the Registration Statement. We have also reviewed such questions of law as we have deemed necessary or appropriate. As to matters of fact relevant to the opinion expressed herein, and as to factual matters arising in connection with our examination of corporate documents, records
Vinson & Elkins LLP Attorneys at Law Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Richmond Riyadh San Francisco Tokyo Washington |
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1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Tel +1.713.758.2222 Fax +1.713.758.2346 www.velaw.com |
and other documents and writings, we relied upon certificates and other communications of corporate officers of the Company, without further investigation as to the facts set forth therein.
Based upon the foregoing, we are of the opinion that when the Common Shares have been delivered in accordance with a definitive underwriting agreement approved by the Board of Directors of the Company and upon payment of the consideration therefor provided for therein (not less than the par value of the Common Shares), such Common Shares will be duly authorized, validly issued, fully paid and nonassessable.
The foregoing opinions are limited in all respects to the General Corporation Law of the State of Delaware (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws) and the federal laws of the United States of America, and we do not express any opinions as to the laws of any other jurisdiction.
We hereby consent to the statements with respect to us under the heading Legal Matters in the prospectus forming a part of the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
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/s/ Vinson & Elkins L.L.P. |
Exhibit 10.13
RANGER ENERGY HOLDINGS, LLC
1000 Louisiana Street
Suite 3850
Houston, Texas 77002
March 30, 2017
Mr. Scott Milliren
6 Glade Park Drive
Missouri City, Texas 77459
Re: Employment Agreement between Ranger Energy Services, LLC (Ranger Energy) and Scott Milliren (Milliren), dated July 29, 2014 (Employment Agreement); Second Amended and Restated Limited Liability Company Agreement of Ranger Energy Holdings, LLC (Ranger Holdings), and those certain Restricted Unit Award Agreements between Ranger Holdings and Milliren dated , , and (collectively, the RUAAs) for Class A Units, Class B Units, Class C Units and Class D Units, respectively (together, the Ranger Equity)
Dear Mr. Milliren:
This letter agreement (Agreement), effective as of the date written above (Effective Date), contains the terms and conditions of Millirens association with Ranger Energy and its affiliates, including Ranger Energy Services, Inc. (Ranger Inc.) and Ranger Holdings (Ranger Energy, Ranger Holdings, Academy Oilfield Tools, LLC, and Ranger Inc., collectively, Ranger), with respect to the Employment Agreement and other related matters referenced herein.
1. Board Position
As of the Effective Date, Milliren hereby resigns as Chairman of the Board of Ranger Holdings (Board); provided that, Milliren shall continue to remain on the Board as a non-executive member of the Board following such resignation (Board Duties) and receive compensation on the same basis as other non-management Board Members. Ranger and Milliren (the Parties) acknowledge that Millirens continued involvement with Ranger shall consist solely of the Board Duties. In lieu of submitting a separate resignation to Ranger, the Parties acknowledge that Millirens undersigned signature shall serve as Millirens formal notice of resignation as Chairman of the Board to Ranger. With respect to the Board Duties, Millirens tenure on the Board is subject to and governed by Rangers governing documents. For the avoidance of doubt, any compensation provided in this Section 1 is in addition to the Compensation (as defined below) and shall not in any way be construed to be in lieu of, modify or diminish the Compensation, in any respect.
2. Compensation
Milliren will be compensated on a monthly basis (Compensation) based on Millirens current annual base salary, which shall continue until the first to occur of (i) the termination of Millirens tenure on the Board, (ii) the closing of an IPO or a Significant Transaction (each as defined below), or (iii) Millirens acceptance and commencement of employment on a full-time basis with a person or entity unaffiliated with Ranger.
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3. Bonus
In the event of the closing of an initial public offering of equity securities by Ranger (IPO) or the acquisition of all or substantially all of the equity or assets of Ranger by an unaffiliated third party (a Significant Transaction), Ranger will pay a one-time bonus in the gross amount of $275,000 to Milliren, less applicable taxes and other withholdings (Bonus); provided that, Milliren executes and does not revoke a release of claims in a form reasonably acceptable to and to be provided by Ranger (the Release) and is in compliance with this Agreement. The Bonus will be paid in one cash installment by wire within thirty (30) days following Millirens delivery to Ranger of an executed Release.
4. Ranger Equity Ownership
Ranger and Milliren agree and acknowledge that the Ranger Equity shall continue to be governed by the applicable RUAAs and the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of October 3, 2016, as the same may be amended or restated from time to time (the LLC Agreement). Notwithstanding any contrary provision in the RUAAs or the LLC Agreement, the Ranger Equity shall continue to vest in accordance with its terms and shall be deemed fully vested for Milliren as of the earlier of the closing of an IPO or a Significant Transaction, subject to forfeiture in accordance with its terms upon any breach of the provisions of this Agreement, as determined by a court of competent jurisdiction.
5. Restrictive Covenants
A. Non-Solicitation . Milliren acknowledges, and Ranger agrees, that in the course of Millirens employment with Ranger and tenure on the Board, Milliren has and will be provided by Ranger, and has and will become familiar, with Rangers and its affiliates trade secrets and Confidential Information (as defined in the Employment Agreement). Milliren further acknowledges that having access to and knowledge of the Confidential Information of Ranger and its affiliates was and is essential to the performance of his duties with Ranger and that such information is an extremely valuable and unique asset of Ranger and its affiliates that gives them a competitive advantage over persons or entities that do not possess such information and knowledge. Therefore, Milliren agrees as follows:
(i) Milliren will not, during the Milliren Customer Non-Solicitation Period (as defined below), directly or indirectly solicit Customers or Clients of Ranger or its affiliates with whom Milliren had direct contact or about whom Milliren received proprietary, confidential or otherwise non-public information for the purpose of providing services relating to work over rigs and services related to work over rigs or the tool rental business currently engaged in by Academy Oilfield Rentals, LLC (collectively, the Business) or interfere or attempt to interfere with the relationship, contractual or otherwise, between Ranger or any Customer or Client of Ranger in the Business. Milliren further agrees that, during the Milliren
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Customer Non-Solicitation Period, he shall not, directly or indirectly, provide any products or services related to the Business to Rangers Customers and Clients, with whom Milliren had direct or indirect contact or about whom Milliren received proprietary, confidential or otherwise non-public information. Ranger Customers and Clients shall mean and only include those customers and clients who contacted or were contacted by Ranger to do business with Ranger and in the territory wherein Ranger provided products or service with respect to the Business during Millirens employment as CEO of Ranger. Milliren Customer Non-Solicitation Period shall mean that period of time during the Board Tenure and continuing until the later of (i) six (6) months from the termination of the Board Tenure or (ii) eighteen (18) months following the earlier of the closing of (1) an IPO or (2) a Significant Transaction.
(ii) Milliren further agrees that, during the Milliren Employee Non-Solicitation Period (as defined below), he will not directly or indirectly solicit or hire (as an independent contractor, employee or otherwise) or attempt to solicit or hire any employee, independent contractor or any individual who is or was within the preceding sixty (60) days prior to the date of hire an employee or independent contractor of Ranger. The Milliren Employee Non-Solicitation Period means that period of time from the date hereof until the later of (i) twelve (12) months following the occurrence of a Significant Transaction, or (ii) October 30, 2018, but in no event shall such Milliren Employee Non-Solicitation Period last beyond December 31, 2018; provided, however, that in no event shall the Milliren Employee Non-Solicitation Period expire earlier than ninety (90) days following the termination of the Board Tenure.
B. Non-Competition . Milliren further agrees that, except for services and duties performed pursuant to this Agreement by Milliren for or on behalf of Ranger and its affiliates during the Transition Period, Milliren agrees that, during his tenure on the Board and until the later of the termination of the Board Tenure or July 31, 2017, Milliren will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or other entity of whatever nature, engage in, make loans to, own, operate, manage, control, become financially interested in or otherwise have any connection with, whether as an officer, director, manager, employee, independent contractor, advisor, sales representative, consultant, shareholder, owner, partner, member or in any other capacity, the Business in the United States; provided, however, that the passive ownership by Milliren of less than one percent (1%) of any class of equity securities of any corporation, if such equity securities are listed on a national securities exchange or are quoted on NASDAQ, will not be deemed to be a breach of this restriction.
The Parties agree that the foregoing Non-Solicitation and Non-Competition provisions shall supersede and replace any other non-solicitation or non-competition provisions to which Milliren would otherwise be subject, including without limitation such non-solicitation or non-competition provisions set forth in the LLC Agreement.
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6. Miscellaneous Provisions
A. Severability . In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, then such provision shall be deemed limited and restricted to the maximum extent deemed to be enforceable; in the event that this is not possible, the provision shall be severed and the same shall not invalidate or otherwise affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein.
B. Amendments; Waivers . No modification, amendment, change or discharge of any term or provision of this Agreement shall be valid or binding unless the same is in writing and signed by the parties hereto. No waiver of any of the terms of this Agreement shall be valid unless signed by the party against whom such waiver is asserted. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
C. Assignment . Neither this Agreement nor any portion hereof may be assigned by either party without the prior written consent of the other party which may not be unreasonably withheld. Any attempted assignment by either party without such consent shall be null and void ab initio. Notwithstanding the foregoing the Parties agree that the Restrictive Covenants set forth herein may be assigned to, and enforced by, any successor or assign of Ranger.
D. Government Agencies . Notwithstanding any other provision of this Agreement, the Parties agrees that: (i) Milliren is not prohibited from reporting information to, or participating in any investigation or proceeding conducted by, the Securities and Exchange Commission or any other federal, state, or local governmental agency or entity and that he need not notify Ranger in advance of any such reporting or participation; and (ii) Milliren is not precluded from providing truthful testimony in response to a valid subpoena, court order, or regulatory request.
E. Incorporation of Employment Agreement Provisions . The Parties agree that Sections 6, 7, 9, 20 and 24 of the Employment Agreement shall survive the execution of this Agreement and are incorporated fully into this Agreement by this reference.
F. Entire Agreement . This Agreement, along with the RUAAs and LLC Agreement, shall constitute the entire agreement between Ranger and Milliren relating to the subject matters hereof and shall supersede all previous agreements, both oral and written, relating to the subject matters hereof, except as otherwise specified herein. The Parties agree that, except as expressly provided herein, the Employment Agreement is fully superseded and replaced by this Agreement, and that, except as expressly provided herein, no party shall have any rights or obligations under the Employment Agreement following the execution of this Agreement.
G. Governing Law and Venue . This Agreement shall be governed by the laws of the State of Texas without regard to principles of conflicts of laws. Any suit, action or proceeding that
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arises with respect to the validity, construction, enforcement or interpretation of this Agreement, and all issues relating in any manner thereto, shall be brought in the Texas courts in Houston, Harris County, Texas.
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RANGER ENERGY SERVICES, LLC |
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RANGER ENERGY HOLDINGS, LLC |
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RANGER ENERGY SERVICES, INC. |
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/s/ Charles S. Leykum |
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Charles S. Leykum |
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Manager and Director |
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Acknowledged and Agreed to as of the Effective Date: |
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By: |
/s/ Scott A. Milliren |
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Scott A Milliren |
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Exhibit 10.14
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this Agreement ) is entered into as of the date set forth on the signature page below ( Effective Date ) between RANGER ENERGY SERVICES, LLC, a Delaware limited liability company (the Company ), with its principal place of business located at 800 Gessner, Suite 1000, Houston, TX 77024 and BRETT AGEE, with an address of 861 Country Lane, Houston, TX 77024 ( Consultant ).
1. CONSULTANTS SERVICES . Consultant wishes to provide advice, consultation, assistance and other services to the Company and the Company wishes to engage Consultant in such capacity as an independent contractor. In performing services under this Agreement, Consultant shall comply with all applicable laws, regulations, ordinances, codes and regulations. Consultant will provide services to the Company with a focus on the tasks and responsibilities as set forth on Schedule A (the Services ).
2. CONSULTANTS INDEPENDENT CONTRACTOR STATUS . The Company and Consultant mutually intend that this Agreement establish between them an independent contractor relationship. All of the terms and conditions of this Agreement will be interpreted in light of that relationship.
3. CONSULTANTS FEE AND EXPENSE OBLIGATIONS .
(a) For satisfactory performance of the Services described in this Agreement, the Company shall pay to Consultant a USD rate of thirty-eight thousand six hundred dollars ($38,600.00) per month.
(b) Consultant will not receive any additional fee, benefits or compensation for the Services except as expressly set forth herein.
4. REIMBURSEMENT OF CONSULTANTS EXPENSES . Unless otherwise set forth herein, the Company will reimburse Consultant for reasonable and necessary expenses directly incurred by Consultant in performing the Services in accordance with this Agreement. All such expenses shall be substantiated, submitted and reimbursed in accordance with the policies and regulations established from time to time by the Company and within ten (10) business days following their incurrence ( Company Policies ).
5. REPRESENTATIONS OF CONSULTANT . Consultant hereby represents and warrants to the Company as follows:
(a) This Agreement constitutes the legal, valid and binding obligation of Consultant, enforceable in accordance with its terms; and
(b) Consultants execution of this Agreement and the performance of the Services under this Agreement does not conflict with, violate or cause a breach of any agreement, contract or policy to which Consultant is a party or by which Consultant may be bound,
6. TERM; TERMINATION . This Agreement shall have a term of five (5) months from the Effective Date (such period, subject to adjustment pursuant to the following sentence, the Term ). Either party may terminate this Agreement for convenience and without cause prior to the end of the five-month period upon thirty (30) days advance written notice to the other party.
7. PROTECTION OF THE COMPANYS CONFIDENTIAL INFORMATION . Consultant acknowledges that he shall have access to the Companys and its affiliates trade secrets and other nonpublic information belonging to the Company, its affiliated companies, partners, joint ventures, or clients in connection with the performance of this Agreement, including, without limitation, trade secrets, know-how, business plans, information and knowledge pertaining to products, services, inventions, discoveries, improvements, innovations, designs, ideas, manufacturing, advertising, marketing, vendors, distribution and sales methods, sales and profit figures, pricing, cost structure, customer and client lists and relationships between the Company and dealers, distributors, sales representatives, customers, clients, suppliers and others who have business dealings with them (collectively, Confidential Information ). Consultant shall at all times maintain such Confidential Information in strict confidence and shall not divulge it to third parties and shall not use it for purposes outside the scope of this Agreement without the prior written consent of the Company.
8. SUCCESSORS, ASSIGNS AND AFFILIATES . Consultant may not assign this Agreement or any rights obtained hereunder or delegate or subcontract any duty of performance owed hereunder without the prior written approval of the Company. Notwithstanding the foregoing, the Company may assign this Agreement or its rights and duties hereunder, without Consultants approval, to one or more affiliates or subsidiaries of the Company, or in connection with a merger, consolidation, reorganization or the sale of substantially all of its assets (or of any permitted assignee, as applicable). Any assignment made in contravention of this Section 8 shall be null and void for all purposes.
9. NON-WAIVER . The failure of either party to exercise its rights under this Agreement shall not be deemed a waiver or such rights or a waiver of any subsequent breach.
10. ENTIRE AGREEMENT . This Agreement embodies the entire understanding between the parties with regard to Consultants services as an independent contractor to the Company and no change, alteration or modification may be made except by a written amendment to this Agreement signed by Consultant and an officer of the Company.
11. NOTICES . All notices required or permitted to be given under this Agreement shall be given to the parties at their addresses as stated in this Agreement. The parties may change such addresses by following the notice provision set forth in this paragraph.
12. MISCELLANEOUS . If any provision of this Agreement is or may be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. The language of this Agreement will be construed according to its fair meaning, and not strictly for or against either party. This Agreement shall be governed by the laws of the State of Texas. This Agreement may be executed in duplicate originals, each of which shall be deemed an original for all purposes.
[Signature Page Follows]
Effective as of this 1 st day of March, 2017. |
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CONSULTANT: |
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/s/ Brett T. Agee |
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Brett T. Agee |
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Company: |
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RANGER ENERGY SERVICES, LLC |
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By: |
/s/ Charles S. Leykum |
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Name: Charles S. Leykum |
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Title: Manager |
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Signature Page
Consulting Agreement
SCHEDULE A
SERVICES
1. Provide advice and guidance with respect to existing and prospective customer relationships.
2. Provide advice and guidance with respect to existing and prospective vendor relationships.
3. Provide advice and guidance with respect to the Companys current and contemplated business lines.
4. Provide advice and guidance with respect to acquisitions and dispositions of equity and assets with respect to the Company and its affiliates.
Exhibit 10.15
SEPARATION AGREEMENT
This is an agreement between Dennis Douglas ( Douglas ) and Ranger Energy Services, LLC ( Ranger ) relating to the separation of Douglas from Ranger:
Whereas, Douglas entered into that one certain Employment Agreement ( Agreement ) dated June 24, 2016, between himself and Magna Energy Services, LLC, a Delaware limited liability company;
Whereas, by virtue of a subsequent merger, Ranger became the successor in interest in all regards with respect to the Agreement;
Whereas, on about October 3, 2016, Douglas executed and entered into that one certain Second Amended and Restated Limited Liability Company Agreement of Ranger Energy Holdings L.L.C. ( Ranger LLC Agreement ), Ranger Energy Holdings LLC Restricted Unit Award Agreement (Class D Units) ( D Unit Award ) and Ranger Energy Holdings Restricted Unit Award Agreement (Class C Units) ( C Unit Award ) under which Douglas was granted 100,000 Class D Units and 133,333 Class C Units (collectively, the Units );
Whereas, on April 28, 2017, Douglas was notified by the Chief Executive Officer of Ranger that he was being terminated effective May 31, 2017, and was tendered a severance proposal and release; and
Whereas, Douglas and Ranger wish to sever their relationship with one another amicably per the terms contained herein, acknowledging that same represent good and sufficient and complete consideration for the promises reflected here, they therefore AGREE as follows:
1. Consideration from Ranger to Douglas;
(a) Ranger shall pay Douglas the sum of $118,500 for his out-of-pocket expenses relating to his move from Denver, Colorado to Houston, Texas upon the execution of this Separation Agreement and the presentation of reasonable supporting documentation for such expenses;
(b) Ranger shall pay Douglas the sum of $300,000 in severance, payable in twelve (12) equal monthly installments, the first to be paid on June 8, 2017 and continuing thereafter on the first business day of each calendar month until completed.
(c) Ranger shall pay Douglas counsel up to $20,000 in connection with the negotiation of this Separation Agreement and preparation of necessary documentation.
(d) Up to seventy-five percent (75%) of the Class D Units and Class C Units (75,000 and 99,999.75 Units, respectively) shall vest in two equal installments. The first such vesting shall occur on September 28, 2017, the second on March 28, 2018. Neither Ranger, the Directors, nor any other party under their control shall exercise the Call Option to acquire such Units before the first anniversary of Rangers initial public offering of its stock or July 31, 2018, whichever is earlier, other than pursuant to a Trigger Event of the type described in clause (b)(vii) of the
definition thereof in the Ranger LLC Agreement and that arises from a Material Breach of the type described in clauses (c)(ii)-(iii) of the definition thereof that is not cured in the manner described below in Section 1(a). Should Ranger reasonably believe that the Units are subject to forfeiture for a violation of this Separation Agreement, the Employment Agreement, the LLC Agreement, the Unit Award Agreements or otherwise, it shall deliver a written notice to Douglas explaining in detail the basis for the claim that the Units are subject to forfeiture. Douglas shall have the right to respond and to cure any claim forfeiture within 30 days of such notice and, provided that he has initiated reasonable and good-faith efforts to cure, he shall be permitted a reasonable period of time to complete the cure process. Capitalized terms not otherwise defined in this Section 1(d) shall have the meanings set forth in the Ranger LLC Agreement.
(e) Subject to the terms and provisions set forth herein, Ranger shall continue to recognize and preserve all of the rights of the Class C and Class D Units held by Douglas in the same manner as such units held by other unitholders, and Ranger shall take no action to discriminate against, impair or circumvent the rights and privileges of Douglas as compared to other holders of such Class C and Class D units. .
2. Consideration by Douglas to Ranger:
(a) Douglas continue to abide by all terms of the Agreement, save and except that the duration of his obligations against competition with Ranger shall, beginning April 28, 2017, be limited to twelve (12) months and his obligations against solicitation shall be limited to eighteen (18) months. Consistent with the provisions of Section 8(g) of the Agreement, the duration of his obligations against competition shall be extended by any time period he is in breach or has not cured such breach.
(b) Douglas shall execute a general release in the form tendered to him on April 28, 2017, provided that the obligations set forth here for both Parties shall survive the execution of the Release Agreement.
(c) Neither Douglas nor Ranger shall disparage one another or place one another in a false or negative light. Should any third party inquire regarding the nature of or events surrounding the separation, each side shall relay that the Parties reached an amicable agreement to separate from one another and continue to hold one another in high regard.
3. This Separation Agreement shall be confidential by and between the Parties and shall not be disclosed to any third party, save and except (a) in the event of a subpoena or like legal process requiring one of the Parties to produce and report this Separation Agreement; or (b) if disclosure of this Separation Agreement is required by any law or regulation relating to the listing or registration of Ranger equity. In the event legal process is served upon either Party requesting disclosure of this Separation Agreement, then the Party receiving such process shall immediately (within 48 hours) send notice of the subpoena or other process to the counter-party hereto so that, if they wish, they might intervene to protect the confidentiality of this document and Agreement.
4. To the extent not inconsistent herewith, any dispute arising out of or relating to this Separation Agreement shall be resolved within the jurisdictions and by the procedures set forth in the Agreement, Ranger LLC Agreement and Unit Award Agreements.
Signed on this, the 7th day of June, 2017.
Ranger Energy Services, LLC
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/s/ Charles Leykum |
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/s/ Dennis Douglas |
Printed Name: Charles Leykum |
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Dennis Douglas |
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Title: Manager |
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Exhibit 21.1
Subsidiaries of Ranger Energy Services, Inc.(1)
Entity |
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State of Formation |
RNGR Energy Services, LLC |
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Delaware |
Ranger Energy Services, LLC |
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Delaware |
Torrent Energy Services, LLC |
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Delaware |
Academy Oilfield Rentals, LLC |
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Delaware |
Ranger Energy Leasing, LLC |
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Delaware |
Ranger Energy Properties, LLC |
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Delaware |
Ranger Energy Equipment, LLC |
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Delaware |
Mallard Completions, LLC |
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Delaware |
(1) Following the completion of the corporate reorganization described in the prospectus that forms a part of this registration statement.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Ranger Energy Services, Inc.
Houston, Texas
We hereby consent to the use in the Prospectus constituting a part of this Registration Statement of (i) our report dated March 9, 2017, relating to the combined consolidated financial statements of Ranger Energy Services, Inc. Predecessor and (ii) our report dated July 23, 2017, relating to the balance sheet of Ranger Energy Services, Inc. as of March 31, 2017, which are contained in that Prospectus.
We also consent to the reference to us under the caption Experts in the Prospectus.
/s/ BDO USA LLP
Houston, Texas
August 1, 2017
Exhibit 23.2
Consent of Independent Auditor
Ranger Energy Services, Inc.
Houston, Texas
We hereby consent to the use in the Prospectus constituting a part of this Registration Statement of our report dated March 9, 2017, relating to the financial statements of Bayou Workover Services which are contained in that Prospectus.
We also consent to the reference to us under the caption Experts in the Prospectus.
/s/ BDO USA, LLP
Houston, Texas
August 1, 2017
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the inclusion in this Prospectus related to the Registration Statement on Form S-1 of Ranger Energy Services, Inc. of our report dated March 1, 2017 relating to our audits of the financial statements of Torrent Energy Services, LLC as of and for the years ended December 31, 2016 and 2015. We also consent to the reference to our firm under the heading Experts in such Registration Statement.
/s/ Whitley Penn LLP
Houston, Texas
July 31, 2017
Exhibit 23.4
Consent of Independent Auditor
We consent to the use in this Amendment No. 3 to the Registration Statement (No. 333-218139) on Form S-1 of Ranger Energy Services, Inc. of our report dated February 3, 2017, relating to the financial statements of Magna Energy Services, LLC, appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference of our firm under the heading Experts in such Registration Statement.
/s/ Hein & Associates LLP
Denver, Colorado
August 1, 2017
Exhibit 23.5
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form S-1 of Ranger Energy Services, Inc. of our report dated June 9, 2017 relating to the financial statements of ESCO Leasing, LLC, which appears in such Registration Statement. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
August 1 , 2017