Intrepid Potash, Inc. 10-K/A

ipi-20211231 Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A (Amendment No.1) ☒ Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31 , 2021 or ☐ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to Commission File Number: 001-34025 INTREPID POTASH, INC. (Exact Name of Registrant as Specified in its Charter) Delaware 26-1501877 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 1001 17th Street, Suite 1050 Denver, Colorado 80202 (Address of principal executive offices) (Zip Code) ( 303 ) 296-3006 (Registrant's telephone number, including area code) Securities registered pursuant to Section 12(b) of the Act: Title of each class Trading Symbol Name of each exchange on which registered Common Stock, par value $0.001 per share IPI New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ¨ No x Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨ Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files.) Yes x No ¨ 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 ¨ Accelerated filer x Non - accelerated filer ¨ Smaller reporting company ¨ Emerging growth company ¨ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨ Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. x Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Act). Yes ☐ No x The aggregate market value of the registrant's common stock held by non-affiliates of the registrant, based upon the closing sale price of the common stock on June 30, 2021, the last trading day of the registrant's most recently completed second fiscal quarter, of $31.86 per share as reported on the New York Stock Exchange was $ 266 million. Shares of common stock held by each director and executive officer and by each person who owns 10% or more of the registrant's outstanding common stock and is believed by the registrant to be in a control position were excluded. The determination of affiliate status for this purpose is not a conclusive determination of affiliate status for any other purposes. As of February 28, 2022, the registrant had 13,528,556 shares of common stock, par value $0.001, outstanding. Table of Contents Auditor Name: KPMG Auditor Location: Denver, Colorado DOCUMENTS INCORPORATED BY REFERENCE Certain information required by Items 10, 11, 12, 13 and 14 of Part III is incorporated by reference from portions of the registrant's definitive proxy statement relating to its 2022 annual meeting of stockholders to be filed within 120 days after December 31, 2021. Table of Contents EXPLANATORY NOTE Intrepid Potash Inc. (IPI) is filing this Amendment No. 1 (this Amendment) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2021, previously filed with the Securities and Exchange Commission (SEC) on March 8, 2022 (the Original Filing), for the sole purpose of filing corrected versions of Exhibits 96.1, 96.2, and 96.3, which inadvertently contained the incorrect versions of certain figures. Accordingly, Exhibits 96.1, 96.2, and 96.3 to this Amendment supersede and replace in their entirety Exhibits 96.1, 96.2, and 96.3 to the Original Filing. Pursuant to Rule 12b-15 under the Securities and Exchange Act of 1934, as amended, this Amendment also includes as exhibits the certifications by IPI’s principal executive officer and principal financial officer required in accordance with Rule 13a-14(a); however, paragraphs 3, 4 and 5 of the certifications have been omitted because this Amendment does not contain any financial statements nor does it contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K. Except as described above, this Amendment does not amend, update or change any other items or disclosures contained in the Original Filing. This Amendment does not reflect or purport to reflect any information or events occurring after the date of the Original Filing nor does it modify or update the disclosures contained in the Original Filing that may be affected by subsequent events. Accordingly, this Amendment should be read in conjunction with the Original Filing and IPI’s other filings made with the SEC subsequent to the filing of the Original Filing. Table of Contents PART IV ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES (a) Financial Statements, Financial Statement Schedules and Exhibits The following are filed as a part of this Annual Report on Form 10-K: (1) Financial Statements Management's Report on Internal Control over Financial Reporting Report of Independent Registered Accounting Firm (PCAOB ID 185 ) Consolidated Balance Sheets as of December 31, 2021, and 2020 Consolidated Statements of Operations for the years ended December 31, 2021, 2020, and 2019 Consolidated Statements of Stockholders' Equity for the years ended December 31, 2021, 2020, and 2019 Consolidated Statements of Cash Flows for the years ended December 31, 2021, 2020, and 2019 Notes to Consolidated Financial Statements (2) Financial Statement Schedule Schedule Schedule Description Schedule II Schedule of Valuation and Qualifying Accounts Schedule II is filed as part of this Annual Report on Form 10-K and is set forth immediately following the Notes to the Consolidated Financial Statements referred to above. All other financial statement schedules have been omitted because they are not required, are not applicable, or the information is included in the consolidated financial statements or notes thereto. (3) Exhibits The following exhibits are filed or incorporated by reference in this report: Incorporated by Reference from the Below-Listed Form (Each Filed under SEC File Number 001-34025) Exhibit Number Exhibit Description Form Filing Date 3.1 Restated Certificate of Incorporation of Intrepid Potash, Inc. 8-K April 25, 2008 3.2 Certificate of Amendment to Restated Certificate of Incorporation of Intrepid Potash, Inc. 8-K May 26, 2016 3.3 Certificate of Amendment to Restated Certificate of Incorporation of Intrepid Potash, Inc. 8-K August 14, 2020 3.4 Amended and Restated Bylaws of Intrepid Potash, Inc. 8-K June 25, 2015 4.1 Description of Registrant's Securities 10-K March 3, 2020 10.1 Form of Indemnification Agreement with each director and officer 8-K April 25, 2008 10.2 Director Designation and Voting Agreement, dated as of April 25, 2008, by and among Intrepid Potash, Inc., Harvey Operating and Production Company, Intrepid Production Corporation, and Potash Acquisition, LLC 8-K May 1, 2008 10.3 Registration Rights Agreement, dated as of April 25, 2008, by and among Intrepid Potash, Inc., Harvey Operating & Production Company, Intrepid Production Corporation, and Potash Acquisition, LLC 8-K May 1, 2008 10.4 Acknowledgment and Relinquishment, dated as of December 19, 2011, by and among Intrepid Potash, Inc., Harvey Operating and Production Company, Intrepid Production Corporation, and Potash Acquisition, LLC 10-K February 16, 2012 Table of Contents 10.5 Amended and Restated Credit Agreement, dated as of August 1, 2019, by and among Intrepid Potash, Inc., the subsidiaries party thereto, Bank of Montreal, as administrative agent, swing line lender, lead arranger, and book runner, and the lenders party thereto. 8-K August 1, 2019 10.6 First Amended and Restated Credit Agreement, dated as of April 17, 2020, by and among Intrepid Potash, Inc., the subsidiaries party thereto, Bank of Montreal, as administrative agent, swing line lender, lead arranger, and book runner, and the lenders party thereto. 8-K April 23, 2020 10.11 Amended and Restated Employment Agreement, dated as of May 19, 2010, by and between Intrepid Potash, Inc. and Robert P. Jornayvaz III+ 8-K May 19, 2010 10.12 Amendment to Employment Agreement, dated February 23, 2011, by and between Intrepid Potash, Inc. and Robert P. Jornayvaz III+ 8-K March 1, 2011 10.13 Second Amendment to Employment Agreement, dated as of February 14, 2013, by and between Intrepid Potash, Inc. and Robert P. Jornayvaz III+ 8-K February 19, 2013 10.14 Third Amendment to Employment Agreement, dated as of March 22, 2016, by and between Intrepid Potash, Inc. and Robert P. Jornayvaz III+ 8-K March 23, 2016 10.15 Fourth Amendment to Employment Agreement, dated as of March 12, 2019, by and between Intrepid Potash, Inc. and Robert P. Jornayvaz III+ 8-K March 15, 2019 10.16 Amended and Restated Employment Agreement, dated as of May 19, 2010, by and between Intrepid Potash, Inc. and Hugh E. Harvey, Jr.+ 8-K May 19, 2010 10.17 Intrepid Potash, Inc. Amended and Restated Equity Incentive Plan+ 8-K May 24, 2019 10.18 Form of Restricted Stock Agreement under Intrepid Potash, Inc. Amended and Restated Equity Incentive Plan+ 10-K March 2, 2021 10.19 Form of Stock Option Agreement under Intrepid Potash, Inc. Amended and Restated Equity Incentive Plan+ 10-K March 2, 2021 10.20 Intrepid Potash, Inc. Amended and Restated Short-Term Incentive Plan+ 8-K May 26, 2016 10.21 Form of Change-of-Control Severance Agreement with Robert P. Jornayvaz III and Hugh E. Harvey, Jr.+ 10-Q November 3, 2011 10.22 Form of Change-in-Control Severance Agreement with Margaret E. McCandless and Mark A. McDonald+ 10-K March 12, 2019 10.23 Form of Noncompete Agreement with executives other than Robert P. Jornayvaz III+ 10-K February 28, 2017 10.24 Form of Retention Agreement+ 10-K March 12, 2019 10.25 Aircraft Dry Lease, dated as of January 9, 2009, by and between Intrepid Potash, Inc. and Intrepid Production Holdings LLC 8-K January 12, 2009 10.26 First Amendment to Aircraft Dry Lease, dated as of September 1, 2014, by and between Intrepid Potash, Inc. and Intrepid Production Holdings LLC 8-K August 18, 2014 10.27 Aircraft Dry Lease, dated as of September 1, 2014, by and between Intrepid Potash, Inc. and Odyssey Adventures, LLC 8-K August 18, 2014 21.1 List of Subsidiaries† 10-K March 8, 2022 23.1 Consent of KPMG LLP† 10-K March 8, 2022 23.2 Consent of Agapito Associates, Inc.† 10-K March 8, 2022 31.1 Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a)† 10-K March 8, 2022 31.2 Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a)† 10-K March 8, 2022 31.3 Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) * 31.4 Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) * 32.1 Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002† 10-K March 8, 2022 Table of Contents 32.2 Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002† 10-K March 8, 2022 95.1 Mine Safety Disclosure Exhibit† 10-K March 8, 2022 96.1 Technical Report Summary for Intrepid Potash - New Mexico ** 96.2 Technical Report Summary for Intrepid Potash - Moab ** 96.3 Technical Report Summary for Intrepid Potash - Wendover ** 99.1 Transition Services Agreement, dated as of April 25, 2008, by and between Intrepid Potash, Inc., Intrepid Oil & Gas, LLC, and Intrepid Potash-Moab, LLC 8-K May 1, 2008 99.2 Extension and Amendment to Transition Services Agreement dated July 14, 2009, to be effective as of April 25, 2009, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC 10-Q August 7, 2009 99.3 Third Amendment to Transition Services Agreement dated March 26, 2010, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC 10-Q May 5, 2010 99.4 Fourth Amendment to Transition Services Agreement dated March 25, 2011, between Intrepid Potash, Inc. and Intrepid Oil and Gas, LLC 10-Q May 5, 2011 99.5 Sixth Amendment to Transition Services Agreement dated April 3, 2013, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC 10-Q May 2, 2013 99.6 Seventh Amendment to Transition Services Agreement dated March 24, 2015, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC 10-Q April 28, 2015 99.7 Eighth Amendment to Transition Services Agreement dated March 22, 2017, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC 10-Q May 2, 2017 99.8 Ninth Amendment to Transition Services Agreement dated February 20, 2019, between Intrepid Potash, Inc. and Intrepid Oil & Gas, LLC. 10-K March 12, 2019 101.INS XBRL Instance Document * 101.SCH XBRL Taxonomy Extension Schema * 101.CAL XBRL Extension Calculation Linkbase * 101.DEF XBRL Extension Definition Linkbase * 101.LAB XBRL Extension Label Linkbase * 101.PRE XBRL Extension Presentation Linkbase * 104 Cover Page Interactive Date File (formatted as inline XBRL with applicable taxonomy extension information contain in Exhibits 101. * Filed herewith ** Furnished herewith + Management contract or compensatory plan or arrangement † Indicates documents previously filed or furnished, as applicable, with our Annual Report on Form 10-K for the year ended December 31, 2021, originally filed with the SEC on March 8, 2022, which is being amended hereby. Table of Contents SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. INTREPID POTASH, INC. (Registrant) March 14, 2022 /s/ Robert P. Jornayvaz III Robert P. Jornayvaz III - Executive Chairman of the Board and Chief Executive Officer (Principal Executive Officer and Duly Authorized Officer)