Item 1.01. Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the terms of the Merger Agreement, as of immediately prior to the Effective Time, by virtue of the occurrence of the Effective Time and without any action on the part of the holder thereof, each award of restricted stock units relating to Montage Common Shares that vests based on continued service to the Company granted pursuant to the Company's equity plan (other than Montage PSU Awards (defined below)) ("Montage RSU Award") that is outstanding immediately prior to the Effective Time shall be converted into an award (an "Assumed RSU Award"), with respect to a number of Southwestern Common Shares equal to the product obtained by multiplying (i) the applicable number of Montage Common Shares subject to such Montage RSU Award immediately prior to the Effective Time by (ii) the Exchange Ratio. For each holder of a Montage RSU Award, any fractional shares resulting from the conversion of his or her Montage RSU Awards shall be rounded to the nearest whole share. Except as otherwise provided in the Merger Agreement, each Assumed RSU Award shall continue to have, and shall be subject to, the same terms and conditions (including time vesting conditions and, if applicable, any accelerated vesting in connection with a termination of service) that applied to the underlying Montage RSU Award immediately prior to the Effective Time, except that Southwestern (x) may modify terms rendered inoperative by reason of the transactions contemplated by the Merger Agreement or for such other immaterial administrative or ministerial changes as in the reasonable and good faith determination of Southwestern are appropriate to effectuate the administration of the Assumed RSU Award, and (y) may settle the Assumed RSU Award upon vesting in Southwestern Common Shares or cash.
The Merger Agreement provides that the Company shall take all necessary and
appropriate actions so that, prior to the Effective Time, each then outstanding
award of performance-based restricted stock units ("Montage PSU Award") shall be
terminated and vested in accordance with its terms with the number of shares of
Montage Common Shares deliverable with respect to a Montage PSU Award in
connection with such termination and vesting determined by the Compensation
Committee of the Company's board of directors pursuant to the terms of the
applicable Company PSU Award, as such terms are in effect on
The Merger Agreement provides that the Company shall take all necessary and appropriate actions so that prior to the Effective Time each award of restricted shares of Montage common stock ("Montage Restricted Stock Award") granted to non-employee directors of the Company shall vest. Montage Common Shares attributable to such Montage Restricted Stock Awards shall be treated in the manner set forth in the Merger Agreement upon the Effective Time.
The Company and Southwestern each made customary representations and warranties and agreed to customary covenants in the Merger Agreement. The Merger is subject to various closing conditions, including, but not limited to, (i) the approval of the Merger Agreement by the holders of a majority of the Company's outstanding common stock entitled to vote, (ii) the absence of any law, order or injunction prohibiting the Merger, (iii) the expiration
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or earlier termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, (iv) the
The Merger Agreement contains certain termination rights for both the Company
and Southwestern, including if the Merger is not consummated by
The Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated into this Item 1.01 by reference. The foregoing summary of the Merger Agreement has been included to provide investors and security holders with information regarding the terms of the Merger Agreement and is qualified in its entirety by the terms and conditions of the Merger Agreement. It is not intended to provide any other factual information about the Company, Southwestern or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by each of the parties to the Merger Agreement, which were made only for purposes of the Merger Agreement and as of dates specified therein. The representations, warranties and covenants in the Merger Agreement (i) were made solely for the benefit of the parties to the Merger Agreement; (ii) may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts; and (iii) may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, Southwestern or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company's or Southwestern's public disclosures.
Support Agreement
Contemporaneously with the execution of the Merger Agreement, Southwestern and
certain of the Company's stockholders affiliated with
The Support Agreement is attached hereto as Exhibit 10.1 and is incorporated into this Item 1.01 by reference. The foregoing summary has been included to provide investors and security holders with information regarding the terms of the Support Agreement and is qualified in its entirety by the terms and conditions of the Support Agreement. It is not intended to provide any other factual information about the parties or their respective subsidiaries and affiliates. The Support Agreement contains representations and warranties by each of the parties to the Support Agreement, which were made only for purposes of the Support Agreement and as of specified dates. The representations, warranties and covenants in the Support Agreement were made solely for the benefit of the parties to the Support Agreement; may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Support Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Support Agreement, which subsequent information may or may not be fully reflected in the Company's or Southwestern's public disclosures.
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No Offer or Solicitation
This communication relates to a proposed business combination transaction (the "Transaction") between the Company and Southwestern. This communication is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, in any jurisdiction, pursuant to the Transaction or otherwise, nor shall there be any sale, issuance, exchange or transfer of the securities referred to in this document in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Additional Information and Where to Find It
In connection with the Transaction, Southwestern will file with the
Investors and security holders will be able to obtain free copies of the
registration statement and the proxy statement/prospectus (when available) and
all other documents filed or that will be filed with the
Participants in the Solicitation
The Company, Southwestern and certain of their respective directors, executive
officers and certain other members of management and employees may be deemed to
be "participants" in the solicitation of proxies from the stockholders of the
Company in connection with the proposed Merger. Information regarding the
interests of the persons who may, under the rules of the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Description 2.1 Agreement and Plan of Merger, dated as ofAugust 12, 2020 , by and betweenMontage Resources Corporation and Southwestern Energy Company.* 10.1 Support Agreement, dated as ofAugust 12, 2020 , by and among certain stockholders affiliated withEnCap Investments L.P. and Southwestern Energy Company. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company hereby undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the
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