Hugoton Royalty Trust SC TO-T/A, filed May 13, 2020
Hugoton Royalty Trust (HGTXU)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
HUGOTON ROYALTY TRUST
(Name of Subject Company (Issuer))
XTO ENERGY INC.
(Offeror)
(Names of Filing Persons)
Units of Beneficial Interest
(Title of Class of Securities)
444717102
(CUSIP Number of Class of Securities)
Staale Gjervik
XTO Energy Inc.
22777 Springwoods Village Pkwy.
Spring, Texas 77389
Telephone: (817) 870-2800
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
George R. Bason, Jr., Esq.
William J. Chudd, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
|
$8,000,000.00 |
$1,038.40 | |
|
| ||
| * | Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation assumes the purchase of all outstanding units of beneficial interest in Hugoton Royalty Trust (the “Units”) and was calculated by multiplying (i) 40,000,000, which is the total number of outstanding Units and (ii) $0.20, which is the per Unit tender offer price. The number of outstanding Units is reported in the subject company’s Annual Report on Form 10-K for the period ended December 31, 2019. |
| ** | The amount of the filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory # 1 for Fiscal Year 2020 issued by the Securities and Exchange Commission, by multiplying the Transaction Valuation by 0.0001298. |
| ☒ | Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| Amount Previously Paid: | $1,038.40 | Filing Party: | XTO Energy Inc. | |||
| Form or Registration No.: | Schedule TO | Date Filed: | April 1, 2020 |
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| ☒ | third-party tender offer subject to Rule 14d-1. |
| ☐ | issuer tender offer subject to Rule 13e-4. |
| ☐ | going-private transaction subject to Rule 13e-3. |
| ☐ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer. ☐
This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by XTO Energy Inc., a Delaware corporation (the “Offeror”), with the U.S. Securities and Exchange Commission on April 1, 2020 (as previously amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by the Offeror to purchase all outstanding units of beneficial interest (the “Units”), in Hugoton Royalty Trust, a Texas express trust (the “Trust”), at $0.20 per Unit, net to the seller in cash, without interest but subject to any withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 1, 2020 (the “Offer to Purchase”), and in the related Letter of Transmittal, copies of which are attached as Exhibits (a)(1)(i) and (a)(1)(ii), respectively, to the Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Items 1 through 9 and Item 11.
(a) Items 1 through 9, and Item 11 of the Schedule TO are hereby amended and supplemented by adding the following text thereto:
On May 13, 2020, the Offeror announced it has extended the Expiration Date of the Offer to 5:00 p.m., New York City time, on Tuesday, May 26, 2020, unless the Offer is further extended or earlier terminated in accordance with the terms set forth in the Offer to Purchase. The Offer was previously scheduled to expire at 5:00 p.m., New York City time, on Tuesday, May 12, 2020.
As of 5:00 p.m., New York City time, on Tuesday, May 12, 2020, 6,772,120 Units (excluding 21,000 Units with respect to which “Notices of Guaranteed Delivery” were delivered) had been validly tendered and not withdrawn, representing approximately 16.9% of the outstanding Units.
The full text of the press release issued by the Offeror on May 13, 2020 announcing the extension of the Expiration Date is attached hereto as Exhibit (a)(1)(viii) and is incorporated herein by reference.
(b) Amendments to the Offer to Purchase and the Other Exhibits to Schedule TO:
The information set forth in the Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, is hereby amended and supplemented as follows:
All references to “5:00 p.m., New York City time, on Tuesday, May 12, 2020” set forth in the Offer to Purchase (Exhibit (a)(1)(i)), Letter of Transmittal (Exhibit (a)(1)(ii)), Notice of Guaranteed Delivery (Exhibit (a)(1)(iii)), Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(iv)), and Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(v)) are hereby amended and replaced with “5:00 p.m., New York City time, on Tuesday, May 26, 2020.”
Item 12. Exhibits
Items 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| (a)(1)(viii) | Press Release issued by XTO Energy Inc., on May 13, 2020. | |
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
| Date: May 13, 2020 | XTO ENERGY INC. | |||||
| By: | /s/ Staale Gjervik | |||||
| Name: | Staale Gjervik | |||||
| Title: | President | |||||
[Signature Page to Schedule TO – Amendment No. 3]
EXHIBIT INDEX
| Exhibit No. |
Description | |
| (a)(1)(i)* |
Offer to Purchase, dated as of April 1, 2020. | |
| (a)(1)(ii)* |
Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9). | |
| (a)(1)(iii)* |
Notice of Guaranteed Delivery. | |
| (a)(1)(iv)* |
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(v)* |
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(vi)* |
Summary Advertisement as published in the New York Times on April 1, 2020. | |
| (a)(1)(vii)* |
Press Release issued by XTO Energy Inc., on April 29, 2020. | |
| (a)(1)(viii) |
Press Release issued by XTO Energy Inc., on May 13, 2020. | |
| (b) |
Not applicable. | |
| (d)(1) |
Hugoton Royalty Trust Royalty Trust Indenture by and between Cross Timbers Oil Company and NationsBank, N.A., as amended and restated as of March 24, 1999 (incorporated by reference to Exhibit 4.1.1 of Amendment No. 3 to the Registration Statement on Form S-1 of Hugoton Royalty Trust, filed April 8, 1999). | |
| (d)(2) |
Net Overriding Royalty Conveyance – Kansas by and between Cross Timbers Oil Company and NationsBank, N.A. (incorporated by reference to Exhibit 10.1.1 of Amendment No. 2 to the Registration Statement on Form S-1 of Hugoton Royalty Trust, filed March 16, 1999). | |
| (d)(3) |
Net Overriding Royalty Conveyance – Oklahoma by and between Cross Timbers Oil Company and NationsBank, N.A. (incorporated by reference to Exhibit 10.2.1 of Amendment No. 2 to the Registration Statement on Form S-1 of Hugoton Royalty Trust, filed March 16, 1999). | |
| (d)(4) |
Net Overriding Royalty Conveyance – Wyoming by and between Cross Timbers Oil Company and NationsBank, N.A. (incorporated by reference to Exhibit 10.3.1 of Amendment No. 2 to the Registration Statement on Form S-1 of Hugoton Royalty Trust, filed March 16, 1999). | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * | Previously filed |
Exhibit (a)(1)(viii)
XTO Energy Inc. Extends Tender Offer to Purchase All Outstanding Units in Hugoton Royalty Trust
Offer Now Scheduled to Expire at 5:00 p.m., New York City Time, on Tuesday, May 26, 2020
Spring, Texas, May 13, 2020 /PRNewswire/ – XTO Energy Inc. (“XTO Energy”) today announced that it has extended the offering period of its previously announced tender offer to purchase all outstanding units of beneficial interest (the “Units”) in Hugoton Royalty Trust (OTCQX: HGTXU, the “Trust”) at a price of $0.20 per Unit, net to the seller in cash, without interest and subject to any withholding of taxes. The tender offer is now scheduled to expire at 5:00 p.m., New York City time, on Tuesday, May 26, 2020, unless the tender offer is further extended or earlier terminated in accordance with the terms set forth in the Tender Offer Statement. The tender offer was extended to allow additional time, in light of the impacts of the COVID-19 pandemic, for unitholders to complete and return the transmittal documentation and to give instructions to their brokers.
As of 5:00 p.m., New York City time, on May 12, 2020, the last business day prior to the announcement of the extension of the tender offer, 6,772,120 Units (excluding 21,000 Units with respect to which “Notices of Guaranteed Delivery” were delivered) had been validly tendered and not withdrawn, representing approximately 16.9% of the outstanding Units. Unitholders of the Trust who have already tendered their Units do not need to re-tender their Units or take any other action as a result of the extension of the expiration date of the tender offer.
The tender offer is being made pursuant to the tender offer materials (including an Offer to Purchase, a related Letter of Transmittal and certain other offer documents) in the Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the “Tender Offer Statement”) filed by XTO Energy with the United States Securities and Exchange Commission (the “SEC”) on April 1, 2020, as amended. Consummation of the tender offer remains subject to the conditions described in the Tender Offer Statement, including that there be validly tendered and not withdrawn a number of Units (excluding Units with respect to which “Notices of Guaranteed Delivery” were delivered) that represents at least 80% of the Units outstanding as of the date of acceptance and completion of the tender offer.
Requests for documents and questions regarding the tender offer may be directed to Georgeson LLC toll free at (800) 676-0281 (for unitholders, banks and brokers) or by email to hugoton@georgeson.com.
About XTO Energy Inc.
XTO Energy, a wholly owned subsidiary of Exxon Mobil Corporation, is a leading oil and natural gas producer in the United States with expertise in developing tight gas, shale gas and unconventional oil resources.
Additional Information and Where to Find It
The tender offer referenced herein commenced on April 1, 2020. This announcement is neither an offer to purchase nor a solicitation of an offer to sell Units of the Trust, nor is it a substitute for the tender offer materials that XTO Energy has filed with the SEC. On April 1, 2020, XTO Energy filed the Tender Offer Statement with the SEC, as amended from time to time. Unitholders of the Trust and other investors are urged to read the Tender Offer Statement because it contains important information which should be read carefully before any decision is made with respect to the tender offer.
The Tender Offer Statement, including any amendments related thereto, are available for free at the SEC’s web site at www.sec.gov. In addition, the Tender Offer Statement may be obtained free of charge from the information agent by contacting Georgeson LLC toll free at (800) 676-0281 (for unitholders, banks and brokers), or by email to hugoton@georgeson.com.
Cautionary Note on Forward-Looking Statements
This press release contains forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “would,” “could,” “expects,” “plans,” “contemplate,” “anticipates,” “believes,” “estimates,” “predicts,” “projects,” “intend” or “continue” or the negative of such terms or other comparable terminology, although not all forward-looking statements contain these identifying words. Forward-looking statements are subject to inherent risks and uncertainties in predicting future results and conditions that could cause the actual results to differ materially from those projected in these forward-looking statements. Forward-looking statements are not guarantees of future performance, and our actual results of operations, financial condition and liquidity, and the development of the industry in which we operate, may differ materially from the forward-looking statements contained in this press release. Any forward-looking statements that we make in this press release speak only as of the date of this press release. We assume no obligation to update our forward-looking statements whether as a result of new information, future events or otherwise, after the date of this press release.