Item 1.01 Entry into a Material Definitive Agreement.
On
The Merger Agreement provides that, among other things and subject to the terms and conditions of the Merger Agreement, (a) Merger Sub will be merged with and into Concho (the "Merger"), with Concho surviving and continuing as the surviving corporation in the Merger, and, (b) at the effective time of the Merger (the "Effective Time"), each outstanding share of common stock of Concho (other than certain Excluded Shares and Converted Shares (each as defined in the Merger Agreement)) will be converted into the right to receive 1.46 (the "Exchange Ratio") shares of common stock of ConocoPhillips (the "Merger Consideration").
The Merger Agreement also specifies the treatment of outstanding Concho equity awards in connection with the Merger, which shall be treated as follows at the Effective Time: (a) each outstanding award of restricted common stock of Concho (other than an award that fully vests by its terms at the Effective Time) will be converted into an award in respect of a number of shares of restricted common stock of ConocoPhillips equal to the product of the number of shares of common stock of Concho subject to the award multiplied by the Exchange Ratio; (b) each outstanding award of restricted common stock of Concho that fully vests by its terms at the Effective Time will vest and be converted into the right to receive the Merger Consideration in respect of each share subject to the award; (c) each outstanding award of performance units (other than any such award that might be granted following the execution of the Merger Agreement) will vest (with applicable performance goals deemed satisfied at 200% of target (which is two-thirds of maximum performance) for active employees and based on actual performance for former employees) and be converted into the right to receive an amount in cash equal to the value of the Merger Consideration in respect of each share subject to the award; and (d) each outstanding award of performance units granted following the execution of the Merger Agreement will be converted into a time-vesting award in respect of a number of shares of restricted common stock of ConocoPhillips equal to the product of the target number of shares of common stock of Concho subject to the award multiplied by the Exchange Ratio.
The board of directors of Concho has unanimously (a) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the holders of Concho's common stock, (b) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and (c) resolved to recommend that the holders of Concho's common stock approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger.
The completion of the Merger is subject to satisfaction or waiver of certain
customary mutual closing conditions, including (a) the receipt of the required
approvals from Concho stockholders and ConocoPhillips stockholders, (b) the
expiration or termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (c) the absence
of any governmental order or law that makes consummation of the Merger illegal
or otherwise prohibited, (d) the effectiveness of the registration statement on
Form S-4 to be filed by ConocoPhillips pursuant to which the shares of
ConocoPhillips common stock to be issued in connection with the Merger are
registered with the
The Merger Agreement contains customary representations and warranties of Concho and ConocoPhillips relating to their respective businesses, financial statements and public filings, in each case generally subject to customary materiality qualifiers. Additionally, the Merger Agreement provides for customary pre-closing covenants of Concho and ConocoPhillips, including, subject to certain exceptions, covenants relating to conducting their respective businesses in the ordinary course consistent with past practice, excluding any commercially reasonable deviations due to COVID-19, and to refraining from taking certain actions without the other party's consent. Concho and ConocoPhillips also agreed to use their respective reasonable best efforts to cause the Merger to be consummated and to obtain expiration or termination of the waiting period under the HSR Act, subject to certain limitations set forth in the Merger Agreement.
The Merger Agreement provides that, during the period from the date of the Merger Agreement until the Effective Time, each of Concho and ConocoPhillips will be subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide non-public information to third parties and to engage in discussions with third parties regarding alternative acquisition proposals, subject to customary exceptions. Concho is required to call a meeting of its stockholders to approve the Merger Agreement . . .
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
The foregoing description is not complete and is qualified in its entirety by reference to the complete text of the Fifth Amended and Restated Bylaws, a copy of which are filed as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference.
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Item 7.01 Regulation FD Disclosure.
On
On
The information in this Item 7.01 of Form 8-K (including Exhibit 99.1 and Exhibit 99.2) shall not be deemed to be "filed" for the purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liability of such section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of the general incorporation language of such filing, except as shall be expressly set forth by specific reference in such filing.
Item 8.01 Other Events.
Item 7.01 above is incorporated by reference in this Item 8.01.
Additional Information and Where to Find It
In connection with the proposed transaction, ConocoPhillips ("ConocoPhillips")
intends to file with the
No Offer or Solicitation
This communication is not intended to and shall not constitute an offer to buy
or sell or the solicitation of an offer to buy or sell any securities, or a
solicitation of any vote or approval, nor shall there be any sale of securities
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made, except by means of a
prospectus meeting the requirements of Section 10 of the
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Participants in the Solicitation
Concho, ConocoPhillips, and certain of their respective directors and executive
officers may be deemed to be participants in the solicitation of proxies in
respect of the proposed transaction. Information about the directors and
executive officers of Concho, including a description of their direct or
indirect interests, by security holdings or otherwise, is set forth in Concho's
proxy statement for its 2020 Annual Meeting of Stockholders, which was filed
with the
Cautionary Statement Regarding Forward-Looking Statements
The foregoing contains statements that may constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995, as
amended. All statements, other than statements of historical fact, included in
this communication that address activities, events or developments that Concho
or ConocoPhillips expects, believes or anticipates will or may occur in the
future are forward-looking statements. Words such as "estimate," "project,"
"predict," "believe," "expect," "anticipate," "potential," "create," "intend,"
"could," "may," "foresee," "plan," "will," "guidance," "look," "outlook,"
"goal," "future," "assume," "forecast," "build," "focus," "work," "continue" or
the negative of such terms or other variations thereof and words and terms of
similar substance used in connection with any discussion of future plans,
actions, or events identify forward-looking statements. However, the absence of
these words does not mean that the statements are not forward-looking. These
forward-looking statements include, but are not limited to, statements regarding
the proposed transaction, pro forma descriptions of the combined company and its
operations, integration and transition plans, synergies, opportunities and
anticipated future performance. There are a number of risks and uncertainties
that could cause actual results to differ materially from the forward-looking
statements included in this document. These include, but are not limited to, the
following: the risk factors discussed or referenced in Concho's and
ConocoPhillips' most recent Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q and Current Reports on Forms 8-K and other filings with the
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. . .
Item 9.01 Financial Statements and Exhibits.
Exhibit No. Description 2.1 Agreement and Plan of Merger, datedOctober 18, 2020 , by and amongConcho Resources Inc. , ConocoPhillips andFalcon Merger Sub Corp. 3.1 Fifth Amended and Restated Bylaws ofConcho Resources Inc. , datedOctober 18, 2020 . 99.1 Joint Press Release issued byConcho Resources Inc. and ConocoPhillips, datedOctober 19, 2020 . 99.2 Investor Presentation, datedOctober 19, 2020 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document). 6
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