Item 7.01
Regulation FD Disclosure.
On May 10, 2019, the Company issued a press release announcing the filing of the Bankruptcy Petitions. A copy of the press release is attached hereto as Exhibit 99.2.
As previously disclosed, prior to the filing of the Bankruptcy Petitions, we had
discussions with certain of our creditor groups financial and legal advisors and certain holders of the 2021 Notes regarding potential alternatives
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including asset sales, a debt restructuring, or some combination thereof, and we had discussions regarding our related financing needs
. In connection with these discussions, on March 19, 2019, the members of an ad hoc group of holders of 2021 Notes (the Ad Hoc Group) each entered into confidentiality agreements with the Company (the Confidentiality Agreements). Pursuant to the Confidentiality Agreements, we agreed to provide the members of the Ad Hoc Group with certain confidential information in connection with such discussions and to publicly disclose material non-public information relating to or provided in connection with such discussions (such information, the Disclosed Information). The Disclosed Information, attached hereto as Exhibit 99.1. includes certain presentation materials presented to the Ad Hoc Group in connection with the discussions and negotiations that ultimately resulted in the Ad Hoc Groups support for the Chapter 11 Cases, the sale and marketing process, and the DIP Financing described above and set forth in the Amended and Restated Sale and Plan Support Agreement.
Beginning today, we also expect to make available information regarding the Chapter 11 Cases on or through our website under the Restructuring Information tab throughout the course of the Chapter 11 Cases, which will contain a link to the claims agents website, https://cases.primeclerk.com/cloudpeak.
The information in the Disclosed Information is dependent upon assumptions with respect to commodity prices, production, development capital, exploration capital, operating expenses, availability and cost of capital and performance as set forth in the Disclosed Information. Any financial projections or forecasts included in the Disclosed Information were not prepared with a view toward public disclosure or compliance with the published guidelines of the Securities and Exchange Commission or the guidelines established by the American Institute of Certified Public Accountants regarding projections or forecasts. The projections do not purport to present the Companys financial condition in accordance with accounting principles generally accepted in the United States. The Companys independent accountants have not examined, compiled or otherwise applied procedures to the projections and, accordingly, do not express an opinion or any other form of assurance with respect to the projections. The inclusion of the projections herein should not be regarded as an indication that the Company or its representatives consider the projections to be a reliable prediction of future events, and the projections should not be relied upon as such. Neither the Company nor any of its representatives has made or makes any representation to any person regarding the ultimate outcome of the Companys proposed restructuring compared to the projections, and none of them undertakes any obligation to publicly update the projections to reflect circumstances existing after the date when the projections were made or to reflect the occurrence of future events, even in the event that any or all of the assumptions underlying the projections are shown to be in error.
The information contained in this Item 7.01 (including Exhibits 99.1 and 99.2) is furnished pursuant to this Item 7.01 and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liabilities of that Section, notwithstanding any general incorporation by reference language in other filings by the Company.
Cautionary Note Regarding Forward Looking Statements
This Report on Form 8-K, including Item 7.01, contains forward-looking statements within the meaning of the safe harbor provisions of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are not statements of historical facts and often contain words such as may, will, expect, believe, anticipate, plan, estimate, seek, could, should, intend, potential, or words of similar meaning. Forward-looking statements are based on managements current expectations, beliefs, assumptions and estimates regarding the company, industry, economic conditions, government regulations and energy policies and other factors. Forward-looking statements may include, for example, statements regarding the Board of Directors strategic evaluation process, the Companys operational and financial priorities, the Companys responses to the structural changes in the U.S. coal industry, the Companys efforts to position the Company for future growth opportunities, and other statements regarding the Companys plans, strategies, prospects and expectations concerning the Companys business, operating results, financial condition, liquidity and other
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matters that do not relate strictly to historical facts. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, including risks and uncertainties regarding the Companys ability to continue as a going concern, the Companys ability to successfully complete a sale process under Chapter 11; potential adverse effects of the Chapter 11 Cases on the Companys liquidity and results of operations; the Companys ability to obtain timely approval by the Court with respect to the motions filed in the Chapter 11 Cases; objections to the Companys sale process, DIP Financing, or other pleadings filed that could protract the Chapter 11 Cases; employee attrition and the Companys ability to retain senior management and other key personnel due to the distractions and uncertainties, including the Companys ability to provide adequate compensation and benefits during the Chapter 11 Cases; the Companys ability to comply with the restrictions imposed by the A/R Securitization Program, DIP Financing and other financing arrangements; the Companys ability to maintain relationships with suppliers, customers, employees and other third parties and regulatory authorities as a result of the Chapter 11 filing; the effects of the Bankruptcy Petitions on the Company and on the interests of various constituents, including holders of the Companys common stock; the Courts rulings in the Chapter 11 Cases, including the approvals of the Amended and Restated Sale and Plan Support Agreement, the Receivables Purchase Agreement Amendment and the DIP Financing, and the outcome of the Chapter 11 Cases generally; the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings; risks associated with third party motions in the Chapter 11 Cases, which may interfere with the Companys ability to consummate a sale; and increased administrative and legal costs related to the Chapter 11 process and other litigation and inherent risks involved in a bankruptcy process. Forward-looking statements are also subject to the risk factors and cautionary language described from time to time in the reports and registration statements the Company files with the Securities and Exchange Commission, including those in Item 1A - Risk Factors in the Companys most recent Form 10-K and any updates thereto in the Companys Forms 10-Q and current reports on Form 8-K. Additional factors, events, or uncertainties that may emerge from time to time, or those that the Company currently deems to be immaterial, could cause the Companys actual results to differ, and it is not possible for the Company to predict all of them. The Company makes forward-looking statements based on currently available information, and the Company assumes no obligation to, and expressly disclaim any obligation to, update or revise publicly any forward-looking statements made in this Report, whether as a result of new information, future events or otherwise, except as required by law.
Item 9.01
Financial Statements and Exhibits
(d)
Exhibits. The following exhibit is being furnished herewith.
Exhibit
Number
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Description
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10.1
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Amended and Restated Sale and Plan Support Agreement, dated May 9, 2019, by and among Cloud Peak Energy Inc. and certain of its direct and indirect subsidiaries, certain holders of 2021 Notes, and certain holders of 2024 Notes
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10.2
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Receivables Purchase Agreement Amendment, dated as of May 10, 2019, by and among Cloud Peak Energy Receivables LLC, Cloud Peak Energy Resources LLC and PNC Bank, National Association, as Administrator
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99.1
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Ad Hoc Group Presentations
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99.2
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Furnished Press Release of Cloud Peak Energy Inc., dated May 10, 2019, Announcing Bankruptcy Filing
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