Item 1.01. Entry into a Material Definitive Agreement.
Crestone Peak Merger Agreement
On
The Crestone Peak Merger Agreement, among other things, provides for BCEI's
acquisition of Crestone Peak through (i) the merger of Merger Sub 1 with and
into Crestone Peak (the "Merger Sub 1 Merger"), with Crestone Peak continuing
its existence as the surviving corporation following the Merger Sub 1 Merger
(the "Surviving Corporation"), and (ii) the subsequent merger of the
The closing of the Crestone Peak Merger is expressly conditioned on the closing
of the previously announced merger of equals between BCEI and XOG (the "BCEI
Merger") pursuant to that certain Agreement and Plan of Merger, dated as of
The board of directors of each of XOG, BCEI (the "BCEI Board"), the general
partner of
Subject to the terms and conditions of the Crestone Peak Merger Agreement, at
the effective time of the Merger Sub 1 Merger (the "Merger Sub 1 Merger
Effective Time"), the issued and outstanding as of immediately prior to the
Merger Sub 1 Merger Effective Time shares of Crestone Peak common stock, par
value
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Following the closing of the BCEI Merger and the Crestone Peak Merger, XOG's existing stockholders will own 37%, BCEI's existing stockholders will own 37%, and Crestone Peak's stockholders will own approximately 26% of the issued and outstanding capital stock of the combined company.
Governance
The Crestone Peak Merger Agreement provides at the Merger Sub 1 Merger Effective
Time that the board of the combined company will consist of nine members, one of
whom will be designated by the
Conditions to the Merger
The closing of the Crestone Peak Merger is subject to certain conditions,
including, among others, (i) the receipt of the required approvals from each of
BCEI's stockholders and Crestone Peak's stockholder, (ii) the expiration or
termination of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iii) the absence of any law or order
prohibiting the consummation of the Crestone Peak Merger, (iv) the effectiveness
of the registration statement on Form S-4 pursuant to which the shares of BCEI
Common Stock issuable in the BCEI Merger are registered with the
Termination Rights
The Crestone Peak Merger Agreement contains certain termination rights for both BCEI and Crestone Peak, including, among others:
(a) by either BCEI or Crestone Peak, if any governmental entity shall have issued
an order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Crestone Peak Merger and the same shall have become final and nonappealable;
(b) by either BCEI or Crestone Peak, if the Mergers shall not have been
consummated by5:00 p.m. Denver, Colorado time onDecember 6, 2021 (the "Outside Date");
(c) by BCEI or Crestone Peak, as applicable, if the other party breaches any of
its representations, warranties, covenants or other agreements in the Crestone Peak Merger Agreement and such breach cannot be or is not cured in accordance with the terms of the Crestone Peak Merger Agreement and such breach would cause applicable closing conditions not to be satisfied;
(d) by either BCEI or Crestone, if the requisite BCEI stockholder approval shall
not have been obtained upon a vote at a duly held BCEI stockholder meeting or any adjournment or postponement thereof;
(e) by Crestone Peak, prior to the receipt of the requisite BCEI stockholder
approval, if the BCEI Board changes its recommendation with respect to the Crestone Peak Merger and the other transactions contemplated by the Crestone Peak Merger Agreement; 3
(f) by Crestone Peak if any wavier of any of the conditions to the closing of the
BCEI Merger has been provided by BCEI or XOG in a manner materially adverse to Crestone Peak; or
(g) by BCEI, if Crestone Peak has not delivered the Crestone Peak Financial
Statements byJuly 2, 2021 , provided that BCEI delivers notice of termination prior to filing the Joint Proxy Statement, or if certain of the Crestone Peak Financial Statements are materially different in an adverse manner from certain previously delivered financial statements of Crestone Peak, provided that BCEI delivers notice of termination no later than five business days after the event giving rise to BCEI's termination rights thereunder.
The Crestone Peak Merger Agreement shall be terminated automatically if the BCEI Merger Agreement is terminated for any reason.
If the Crestone Peak Merger Agreement is terminated by Crestone Peak in
accordance with clause (e) above, then BCEI shall be required to pay the other
party a termination fee of
Other Terms of the Merger Agreement
BCEI, XOG and Crestone Peak each have made customary representations, warranties and covenants in the Crestone Peak Merger Agreement, in each case generally subject to customary materiality qualifiers. Among other things, each party has agreed, subject to certain exceptions, (i) to conduct its business in the ordinary course, from the date of the Crestone Peak Merger Agreement until the earlier of the Merger Sub 1 Merger Effective Time and the termination of the Crestone Peak Merger Agreement, and not to take certain actions prior to the closing of the Crestone Peak Merger without the prior written consent of the other party, (ii) not to solicit alternative business combination transactions and (iii) not to engage in discussions or negotiations regarding any alternative business combination transactions.
The foregoing summary of the Crestone Peak Merger Agreement does not purport to be complete and is subject to, and is qualified in its entirety by, the full text of the Crestone Peak Merger Agreement, which is attached hereto as Exhibit 2.1 and incorporated herein by reference.
The Crestone Peak Merger Agreement and the above description of the Crestone
Peak Merger Agreement have been included to provide investors and security
holders with information regarding the terms of the Crestone Peak Merger
Agreement. They are not intended to provide any other factual information about
XOG, BCEI, Crestone Peak or their respective subsidiaries or affiliates. The
representations, warranties and covenants contained in the Crestone Peak Merger
Agreement were made only for purposes of the Crestone Peak Merger Agreement and
as of specific dates, were solely for the benefit of the parties to the Crestone
Peak Merger Agreement, and may be subject to limitations agreed upon by the
parties, including being qualified by confidential disclosures made by each
contracting party to the other for the purposes of allocating contractual risk
between them that differ from those applicable to investors. Investors should
not rely on the representations, warranties and covenants or any description
thereof as characterizations of the actual state of facts or condition of XOG,
BCEI Crestone Peak or any of their respective subsidiaries, affiliates or
businesses. Moreover, information concerning the subject matter of the
representations, warranties and covenants may change after the date of the
Crestone Peak Merger Agreement, which subsequent information may or may not be
fully reflected in public disclosures by XOG. Accordingly, investors should read
the representations and warranties in the Crestone Peak Merger Agreement not in
isolation but only in conjunction with the other information about XOG or
Crestone Peak and their respective subsidiaries that XOG includes in reports,
statements and other filings it makes with the
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Amendment to BCEI Merger Agreement
Concurrently with the execution and delivery of the Crestone Peak Merger
Agreement, XOG,
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofJune 6, 2021 , by and among Bonanza Creek Energy, Inc., Raptor Condor Merger Sub 1, Inc., Raptor Condor Merger Sub 2, LLC,Crestone Peak Resources LP ,CPPIB Crestone Peak Resources America Inc. ,Crestone Peak Resources Management LP andExtraction Oil & Gas, Inc. 2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as ofJune 6, 2021 , by and among Bonanza Creek Energy, Inc.,Raptor Eagle Merger Sub, Inc. andExtraction Oil & Gas, Inc. 10.1 Amended and Restated Voting Agreement, dated as ofJune 6, 2021 and effective as ofMay 9, 2021 , by and among Bonanza Creek Energy, Inc.,Extraction Oil & Gas, Inc. andKimmeridge Energy Management Company, LLC . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules and similar attachments have been omitted pursuant to Item 601(a)(5)
of Regulation S-K. XOG agrees to furnish a supplemental copy of any omitted
schedule or attachment to the
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