Form 8-K WPX ENERGY, INC. For: Jan 07

 

Exhibit 10.1 

 

WPX ENERGY, INC.

 

GLOBAL AMENDMENT TO PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENTS

 

This GLOBAL AMENDMENT (this “Amendment”) is dated [ ], 2020 and amends each outstanding Performance-Based Restricted Stock Unit Agreement (each, an “Agreement” and collectively, the “Agreements”) issued by WPX Energy, Inc. (the “Company”), pursuant to the WPX Energy, Inc. 2013 Incentive Plan, as amended and restated from time to time (the “Plan”). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Agreement and the Plan.

 

RECITALS

 

WHEREAS, the Company has previously entered into an Agreement with each Participant receiving a Performance-Based Restricted Stock Unit; and

 

WHEREAS, the Company has entered into that certain Agreement and Plan of Merger with Devon Energy Corporation and East Merger Sub, Inc. (the “Merger Agreement”), pursuant to which the Company will become a wholly-owned subsidiary of Devon Energy Corporation (the “Merger”);

 

WHEREAS, the Merger constitutes a Change in Control under the Plan;

 

WHEREAS, pursuant to its authority under Section 13.3 the Plan, the Company desires to amend the Agreement.

 

NOW, THEREFORE, each Agreement is hereby amended as set forth herein, effective as of immediately prior to the Closing (as defined in the Merger Agreement):

 

 

1.                  Subparagraph 4(a) of each Agreement is hereby amended and restated in its entirety as follows:

 

“Performance measures established by the Committee shall be based on targeted levels of relative Total Shareholder Return (“TSR”), as defined by the Committee. The Committee has established a designated percentage of the Target Number of Shares (as defined in Subparagraph 4(b) below) that may be received by the Participant based on the Company’s relative TSR for the Performance Period within the peer group established by the Committee, all as more fully described in Subparagraphs 4(b) and 4(c) below.

 

2.                  Subparagraph 4(b) of of each Agreement is hereby amended and restated in its entirety as follows:.

 

“The RSUs awarded to the Participant and subject to this Agreement as reflected in Paragraph 1 above represent the Participant’s opportunity to earn the right to payment of an equal number of Shares (“Target Number of Shares”) upon satisfaction of all the other conditions set forth in Paragraph 5 below.”

 

 

3.                  Subparagraph 4(c) of each Agreement is hereby amended and restated in its entirety as follows:

 

“Subject to the satisfaction of all other conditions set forth in Paragraph 5 below, notwithstanding Subparagraph 5(b)(ii), the actual number of Shares earned by and payable to the Participant upon certification of TSR results and satisfaction of all other conditions set forth in Paragraph 5 below will be based upon the range set by the Committee from 30% (for relative TSR above the 25th percentile of the peer group established by the Committee) to 200% (for relative TSR at the first or second ranking within the peer group established by the Committee) of the Target Number of Shares depending on the level of relative TSR certified by the Committee measured using the average closing price of the Shares for the five trading days ending on the day immediately preceding the Closing Date (as defined in that certain Agreement and Plan of Merger with the Company, Devon Energy Corporation and East Merger Sub, Inc. (the “Merger Agreement”)), based on the table as set forth in Appendix B. ”

 

4.                  Subparagraph 4(d) of each Agreement (including any references thereto) is hereby deleted in its entirety.

 

5.                  Subparagraph 5(b)(ii) of each Agreement is hereby amended by adding the following sentence to the end thereof:

 

“Notwithstanding the foregoing, effective as of the Closing Date (as defined in the Merger Agreement), the requirement for Committee certification set forth in this Subparagraph 5(b)(ii) will no longer apply.”

 

6.                  Subparagraph 5(c)(i) of each Agreement is hereby amended and restated in its entirety as follows:

 

“If the Participant dies, becomes Disabled, or qualifies for Retirement (as defined in Subparagraph 5(c)(iii) below) prior to the Maturity Date while an active employee of the Company or any of its Affiliates, the Participant shall vest in that number of Shares the Participant might otherwise have received in accordance with Paragraph 4 above prorated in accordance with Subparagraph 5(c)(ii) to reflect that portion of the Performance Period prior to such Participant’s ceasing being an active employee of the Company and its Affiliates. Notwithstanding the foregoing, if a Participant has attained age 55 and completed at least five years of continuous service with the Company and is an active employee of the Company and its Affiliates as of the last day of any year during the Performance Period, such Participant shall be deemed to vest in an additional amount of Shares prorated to the last day of such year, with the pro rata number of Shares equal to that number determined by multiplying (i) the number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above times (ii) a fraction, the numerator of which is the number of full and partial months in the period that begins the month following the month that contains the Effective Date and ends on (and includes) the last day of the applicable year, and the denominator of which is thirty-six (36), less any Shares that have already become vested and payable pursuant to this Subparagraph and Subparagraph 6(b).”

 

 

7.                  Subparagraph 5(c)(ii) of each Agreement is hereby amended and restated in its entirety as follows:

 

“The pro rata number of Shares in which the Participant may become vested on death, Disability or Retirement pursuant to Subparagraph 5(c)(i) shall equal that number determined by multiplying (i) the number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above times (ii) a fraction, the numerator of which is the number of full and partial months in the period that begins the month following the month that contains the Effective Date and ends on (and includes) the date that the Participant ceases being an active employee of the Company and its Affiliates, and the denominator of which is thirty-six (36), less any Shares that have already become vested and payable pursuant to the last sentence of Subparagraph 5(c)(i) and Subparagraph 6(b).

 

8.                  Subparagraph 5(d) of each Agreement is hereby amended and restated in its entirety as follows:

 

“If the Participant experiences a Separation from Service prior to the Maturity Date within two years following a Change in Control, either voluntarily for Good Reason or involuntarily (other than due to Cause), the Participant shall vest in a number of Shares calculated based on the Company’s actual performance as of the date of the Change in Control, determined according to the provisions of Subparagraph 4(c).”

 

9.                  Subparagraph 5(e) of each Agreement is hereby amended and restated in its entirety as follows:

 

“If the Participant experiences an involuntary Separation from Service prior to the Maturity Date in circumstances not covered by Subparagraphs 5(c), 5(d) or 5(f) and the Participant either receives benefits under a severance pay plan or program maintained by the Company or any of its Affiliates or receives benefits under a separation agreement with the Company or any of its Affiliates, then the Participant shall become vested in that number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above prorated to reflect that portion of the Performance Period prior to the Participant’s ceasing being an active employee of the Company and its Affiliates. The pro rata number of Shares in which the Participant may become vested on, but not prior to, the Maturity Date in such case shall equal that number determined by multiplying (i) the number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above times (ii) a fraction, the numerator of which is the number of full and partial months in the period that begins the month following the month that includes the Effective Date and ends on (and includes) the date the Participant ceases being an active employee of the Company and its Affiliates, and the denominator of which is the total number of full and partial months in the period that begins the month following the month that contains the Effective Date and ends on (and includes) the Maturity Date.”

 

 

10.                Subparagraph 5(f) of each Agreement is hereby amended and restated in its entirety as follows:

 

“If (i) the Participant experiences an involuntary Separation from Service prior to the Maturity Date in circumstances not covered by Subparagraphs 5(c), 5(d) or 5(e) due to a sale of a business or the outsourcing of any portion of a business, and (ii) the Company or any of its Affiliates fails to make an offer of comparable employment, as defined in a severance plan or program maintained by the Company or any of its Affiliates, to the Participant, then the Participant shall become vested in that number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above prorated to reflect that portion of the Performance Period prior to the Participant’s ceasing being an active employee of the Company and its Affiliates. The pro rata number of Shares in which the Participant may become vested on, but not prior to, the Maturity Date in such case shall equal that number of Shares determined by multiplying (i) the number of Shares the Participant might otherwise have received for the Performance Period in accordance with Paragraph 4 above times (ii) a fraction, the numerator of which is the number of full and partial months in the period that begins the month following the month that contains the Effective Date and ends on (and includes) the date the Participant ceases being an active employee of the Company and its Affiliates, and the denominator of which is the total number of full and partial months in the period that begins the month following the month that contains the Effective Date and ends on (and includes) the Maturity Date.

 

For purposes of this Subparagraph 5(f), a Termination of Affiliation shall constitute an involuntary Separation from Service, excluding any Termination of Affiliation that results from a voluntary Separation from Service.”

 

11.                Subparagraph 6(a) of each Agreement is hereby amended and restated in its entirety as follows:

 

“Payment of all Shares in which the Participant becomes vested pursuant to the Participant’s death, becoming Disabled or qualifying for Retirement pursuant to Subparagraph 5(c), or on Separation from Service under the terms provided in Subparagraphs 5(d), 5(e) or 5(f) above shall occur within 30 days after the Participant’s Separation from Service or the date the Participant is determined to be Disabled, as applicable.”

 

 

12.                Subparagraph 6(b) of each Agreement is hereby amended and restated in its entirety as follows:

 

     “Payment of all Shares in which the Participant becomes vested pursuant to Paragraph 5 above, other than due to death, becoming Disabled or qualifying for Retirement pursuant to Subparagraph 5(c) or pursuant to Subparagraph 5(d), 5(e) or 5(f) (as to which the payment date is determined in accordance with Subparagraph 6(a) above), shall occur during the calendar year containing the Maturity Date; provided, however, that notwithstanding any other provision of this Agreement to the contrary, payment of all Shares in which the Participant becomes vested pursuant to Paragraph 5 above shall occur no later than March 15 of the next succeeding year after such amounts are no longer subject to a substantial risk of forfeiture, as such term is defined in Section 409A of the Code. For the avoidance of doubt, if the Participant has attained age 55 and completed at least five years of continuous service with the Company or any of its Affiliates as of the last day of any calendar year ending during the Performance Period, then the Participant shall receive a payment of the prorated Shares in which the Participant is vested pursuant to Paragraph 5(c)(i) during such calendar year, which payment will be made between January 1 and March 15 of the next succeeding calendar year.”

 

13.               Appendix B of each Agreement (including any references thereto) is hereby amended by deleting the last sentence of the second paragraph.

 

14.                For the avoidance of doubt, all other terms and conditions of the Agreements shall remain in effect as amended by this Amendment.

 

15.                This Amendment shall only serve to amend and modify the Agreements to the extent specifically provided herein. All terms, conditions, provisions and references of and to the Agreements which are not specifically modified, amended and/or waived herein shall remain in full force and effect and shall not be altered by any provisions herein contained. All prior agreements, promises, negotiations and representations, either oral or written, relating to the subject matter of this Amendment not expressly set forth in this Amendment are of no force or effect.

 

 

 

 

 

 

 

 

Exhibit 99.1

 

	Devon Energy Corporation
	333 West Sheridan Avenue
	Oklahoma City, OK  73102-5015

 

Devon Energy and WPX Energy Complete Merger of Equals Transaction

 

OKLAHOMA CITY & TULSA, Okla. – Jan. 7, 2021 – Devon Energy Corporation (“Devon”) (NYSE: DVN) and WPX Energy, Inc. (“WPX”) (NYSE: WPX) today announced the successful completion of their previously announced all-stock merger of equals, creating a leading energy producer in the U.S., with an asset base underpinned by a premium acreage position in the economic core of the Delaware Basin. The combined company will operate under the name Devon Energy and be headquartered in Oklahoma City.

 

“This transformational merger enhances the scale of our operations, builds a dominant position in the Delaware Basin and accelerates our cash-return business model that prioritizes free cash flow generation and the return of capital to shareholders,” said Dave Hager, executive chairman. “We are excited to combine our teams and we look forward to executing on our disciplined strategy to create value for all of our stakeholders.”

 

“I want to thank employees for their determined work to complete a transaction of this size and scale in basically just three months,” said Rick Muncrief, president and CEO. “This paves the way for our integration to pick up even more steam and establishes Devon as one of the strongest energy producers in the U.S.

 

“The combined company’s advantaged assets, operating capabilities, balance sheet, and our resolve to pursue efficient, innovative ways of doing business positions Devon to deliver differentiated financial and operational results for many years to come.”

 

In accordance with the merger agreement, WPX shareholders received a fixed exchange of 0.5165 shares of Devon common stock for each share of WPX common stock owned. WPX common stock will no longer be listed for trading on the NYSE.

 

BOARD OF DIRECTORS

 

The company’s combined new board of directors consists of 12 members:

 

·

David A. Hager, executive chairman of the board

·

Barbara M. Baumann

·

John E. Bethancourt

·

Ann G. Fox

·

Kelt Kindick

·

John Krenicki Jr.

·

Karl F. Kurz

·

Robert A. Mosbacher Jr.

·

Richard E. Muncrief

·

D. Martin Phillips

·

Duane C. Radtke

·

Valerie M. Williams

 

ABOUT DEVON ENERGY

 

Devon Energy is a leading oil and gas producer in the U.S. with a premier multi-basin portfolio headlined by a world-class acreage position in the Delaware Basin. Devon’s disciplined cash-return business model is designed to achieve strong returns, generate free cash flow and return capital to shareholders, while focusing on safe and sustainable operations. For more information, please visit www.devonenergy.com.

 

Investor Contacts		Media Contacts
Scott Coody, 405-552-4735		Lisa Adams, 405-228-1732
Chris Carr, 405-228-2496		Kelly Swan, 539-573-4944
David Sullivan, 539-573-9360

 

 

FORWARD LOOKING STATEMENTS

 

This communication includes “forward-looking statements” as defined by the Securities and Exchange Commission (“SEC”). Such statements include those concerning strategic plans, Devon’s expectations and objectives for future operations, as well as other future events or conditions, and are often identified by use of the words and phrases such as “expects,” “believes,” “will,” “would,” “could,” “continue,” “may,” “aims,” “likely to be,” “intends,” “forecasts,” “projections,” “estimates,” “plans,” “expectations,” “targets,” “opportunities,” “potential,” “anticipates,” “outlook” and other similar terminology. All statements, other than statements of historical facts, included in this communication that address activities, events or developments that Devon expects, believes or anticipates will or may occur in the future are forward-looking statements. Such statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond Devon’s control. Consequently, actual future results could differ materially from Devon’s expectations due to a number of factors, including, but not limited to: the risk that Devon’s and WPX’s businesses will not be integrated successfully; the risk that the cost savings, synergies, growth and other benefits from the merger may not be fully realized (if at all) or may take longer to realize than expected; the diversion of management time on transaction-related issues; the effect of future regulatory or legislative actions, including the risk of new restrictions with respect to hydraulic fracturing or other development activities on federal acreage or other assets; the risk that the credit ratings of Devon or its subsidiaries (including WPX) may be different from what was previously expect; potential liability resulting from pending or future litigation; changes in the general economic environment, or social or political conditions, that could affect the businesses; the ability to hire and retain key personnel; reliance on and integration of information technology systems; the risks associated with assumptions the parties make in connection with the parties’ critical accounting estimates and legal proceedings; the volatility of oil, gas and natural gas liquids (NGL) prices; uncertainties inherent in estimating oil, gas and NGL reserves; the impact of reduced demand for our products and products made from them due to governmental and societal actions taken in response to the COVID-19 pandemic; the uncertainties, costs and risks involved in Devon’s operations, including as a result of employee misconduct; natural disasters, pandemics, epidemics (including COVID-19 and any escalation or worsening thereof) or other public health conditions; counterparty credit risks; risks relating to indebtedness; risks related to hedging activities; competition for assets, materials, people and capital; regulatory restrictions, compliance costs and other risks relating to governmental regulation, including with respect to environmental matters; cyberattack risks; Devon’s limited control over third parties who operate some of its oil and gas properties; midstream capacity constraints and potential interruptions in production; the extent to which insurance covers any losses Devon may experience; risks related to investors attempting to effect change; general domestic and international economic and political conditions, including the impact of COVID-19; and changes in tax, environmental and other laws, including court rulings, applicable to Devon’s business. For a more detailed discussion of such risks and other factors, see Devon’s and WPX’s 2019 Annual Reports on Form 10-K and their other filings with the SEC.

 

In addition to the foregoing, the COVID-19 pandemic and its related repercussions have created significant volatility, uncertainty and turmoil in the global economy and Devon’s industry. This turmoil has included an unprecedented supply-and-demand imbalance for oil and other commodities, resulting in a swift and material decline in commodity prices in early 2020. Devon’s future actual results could differ materially from the forward-looking statements in this communication due to the COVID-19 pandemic and related impacts, including, by, among other things: contributing to a sustained or further deterioration in commodity prices; causing takeaway capacity constraints for production, resulting in further production shut-ins and additional downward pressure on impacted regional pricing differentials; limiting Devon’s ability to access sources of capital due to disruptions in financial markets; increasing the risk of a downgrade from credit rating agencies; exacerbating counterparty credit risks and the risk of supply chain interruptions; and increasing the risk of operational disruptions due to social distancing measures and other changes to business practices. Additional information concerning other risk factors is also contained in Devon’s most recently filed Annual Reports on Form 10-K, subsequent Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other SEC filings.

 

Many of these risks, uncertainties and assumptions are beyond Devon’s ability to control or predict. Because of these risks, uncertainties and assumptions, you should not place undue reliance on these forward-looking statements.

 

All subsequent written and oral forward-looking statements concerning Devon, WPX, the merger or other matters and attributable to Devon or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Devon assumes no duty to update or revise their respective forward-looking statements based on new information, future events or otherwise.

 

 

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