SM Energy Company (NYSE:SM) Files An 8-K Entry into a Material Definitive AgreementItem 1.01 Entry into a Material Definitive Agreement.
On January8, 2018, SM Energy Company, a Delaware corporation (the “Company”), entered into a Purchase and Sale Agreement (the “Agreement”) with Converse Energy Acquisitions, LLC, a Delaware limited liability company (“Buyer”), to which the Company will sell to Buyer certain of the Company’s oil and gas assets located in the Powder River Basin in the State of Wyoming (the “Assets”). The transactions contemplated by the Agreement are referred to herein as the “Transaction.”
Under the Agreement, the Company agreed to sell the Assets to Buyer for $500 million in cash consideration. The cash consideration is subject to certain purchase price adjustments, including adjustments for certain title defects and certain environmental defects asserted on or prior to March15, 2018. Except for its remedy of a breach by the Company of certain limited representations and interim period covenants, Buyer’s exclusive remedy for title matters and environmental matters, with certain exceptions, will be handled through a title or environmental defect mechanism. Following the execution of the Agreement, Buyer deposited $50.0 million (the “Deposit”) into an escrow account as the deposit to be applied against the purchase price at the closing.
Conditions to the Closing of the Transaction and Termination Rights
The completion of the Transaction is subject to the satisfaction or waiver of certain customary conditions, including, among others: (a)the absence of certain legal impediments to the consummation of the Transaction; (b)the material accuracy of the parties’ representations and warranties as of the closing; and (c)aggregate adjustments to the purchase price due to title and environmental defects, casualty losses, exercised preferential purchase rights and certain unobtained consents to assign not exceeding 20% of the unadjusted purchase price.
The Agreement may be terminated (a)by mutual agreement of the parties; (b)by Buyer or the Company if the closing has not occurred by April25, 2018, and such party seeking to terminate the Agreement is not in breach of the Agreement in a manner that causes the other party’s conditions to closing not to be satisfied; or (c)by Buyer or the Company if the closing has not occurred by April25, 2018, and neither party has the right to terminate the Agreement under Section12.1(b)of the Agreement.
If Buyer terminates the Agreement and the Company is in material breach of its covenants under the Agreement, then Buyer shall be entitled to return of the Deposit and to recover for all liabilities incurred by Buyer as a result of the Company’s breach of the Agreement. In the alternative, Buyer may also seek to enforce specific performance of the Agreement. If the Company terminates the Agreement and Buyer is in breach of its obligations to close the Transaction, then the Company will be entitled to retain the Deposit as liquidated damages. If the Agreement is terminated for any other reason, the Deposit will be returned to Buyer.
Other Terms of the Agreement
The Agreement contains customary representations, warranties and covenants for a transaction of this nature. The Agreement also contains customary mutual pre-closing covenants, including the obligation of the Company to own and operate the Assets in the regular course of business and to refrain from taking certain actions. In addition, the Company has agreed to indemnify Buyer for certain losses, including those related to a breach of the Company’s representations or warranties.
The foregoing summary of the Agreement and the Transaction does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Agreement, which is filed as Exhibit2.1 to this Current Report on Form8-K. The Agreement has been included to provide investors with information regarding its terms and is not intended to provide any financial or other factual information about the Company. In particular, the representations, warranties and covenants contained in the Agreement (a)were made only for purposes of the Agreement and as of specific dates, (b)were solely for the benefit of the parties to the Agreement, (c)may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures, (d)were made for the purposes of allocating contractual risk between the parties to the Agreement instead of establishing matters subject to representations and warranties as facts, and (e)may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company. Accordingly, investors should read the representations and warranties in the Agreement not in isolation but only in conjunction with the other information about the Company that is included in reports, statements and other filings it makes with the U.S. Securities and Exchange Commission.
Item 7.01Regulation FD Disclosure.
In accordance with General Instruction B.2. of Form8-K, the following information, including Exhibit99.1, shall not be deemed filed for purposes of Section18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information and Exhibitbe deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
On January9, 2018, the Company issued a press release announcing that it had entered into the Agreement. A copy of the press release is furnished as Exhibit99.1 to this report and is incorporated by reference herein.
Item 9.01Financial Statements and Exhibits.
* Schedules and Exhibits have been omitted to Item 601(b)(2)of Regulation S-K. The Company undertakes to furnish supplemental copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission.
SM Energy Co ExhibitEX-2.1 2 a18-2695_1ex2d1.htm EX-2.1 Exhibit 2.1 EXECUTION VERSION PURCHASE AND SALE AGREEMENT BETWEEN SM ENERGY COMPANY as Seller and CONVERSE ENERGY ACQUISITIONS,…To view the full exhibit click here About SM Energy Company (NYSE:SM) SM Energy Company is an independent energy company. The Company is engaged in the acquisition, exploration, development and production of crude oil and condensate, natural gas and natural gas liquids (NGLs) in onshore North America. The Company operates in the exploration and production segment of the oil and gas industry within the United States. Its operations are concentrated in onshore operating areas in the United States: South Texas & Gulf Coast Region, Rocky Mountain Region and Permian Region. It has working interests in approximately 1,460 gross (approximately 870 net) productive oil wells and approximately 1,770 gross (approximately 650 net) productive gas wells. Within South Texas & Gulf Coast Region, the Company has both operated and non-operated Eagle Ford shale programs on approximately 200,000 net acres. It has approximately 162,000 net acres being developed in the Bakken and Three Forks formations. It has approximately 23,000 net acres in its Permian Region.