SOUTHWESTERN ENERGY CO false 0000007332 0000007332 2022-01-05 2022-01-05

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): January 5, 2022

 

 

SOUTHWESTERN ENERGY COMPANY

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-08246   71-0205415

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

10000 Energy Drive

Spring, TX 77389

(Address of principal executive offices)(Zip Code)

(832) 796-1000

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, Par Value $0.01   SWN   New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 8.01

Other Events.

On January 5, 2022, Southwestern Energy Company (the “Company”) filed with the Securities and Exchange Commission a prospectus supplement (the “Resale Prospectus Supplement”) to the prospectus dated August 16, 2021 included in the Company’s automatic shelf registration statement on Form S-3ASR (File No. 333-238633). The Resale Prospectus Supplement was filed for the purpose of registering the sale from time to time by certain selling stockholders (collectively, the “Selling Stockholders”) of up to 99,337,748 shares of the Company’s common stock, par value $0.01 per share (“Common Stock”).

The Company will not receive any of the proceeds from the sale of Common Stock by the Selling Stockholders.

In connection with the filing of the Resale Prospectus Supplement, the Company is filing an opinion of its counsel, Skadden, Arps, Slate, Meagher & Flom LLP, regarding the legality of the securities being registered, which opinion is attached as Exhibit 5.1 to this Current Report on Form 8-K.

 

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.
   Description
  5.1    Opinion of Skadden, Arps, Slate, Meagher & Flom LLP relating to the Resale Prospectus Supplement.
23.1    Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).
 104    Cover Page Interactive Data File (embedded within the Inline XBRL document)


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    SOUTHWESTERN ENERGY COMPANY
Dated: January 5, 2022     By:  

/s/ Chris Lacy

    Name:   Chris Lacy
    Title:   Executive Vice President, General Counsel and
      Corporate Secretary

Exhibit 5.1

 

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP   
1000 LOUISIANA, SUITE 6800   
HOUSTON, TEXAS 77002-5026    FIRM/AFFILIATE
——————      OFFICES
TEL: (713) 655-5100    ——————  
FAX: (713) 655-5200    BOSTON
www.skadden.com    CHICAGO
   LOS ANGELES
   NEW YORK
   PALO ALTO
   WASHINGTON, D.C.
   WILMINGTON
   ——————  
   BEIJING
   BRUSSELS
   FRANKFURT
   HONG KONG
   LONDON
   MOSCOW
January 5, 2022    MUNICH
   PARIS
   SÃO PAULO
   SEOUL
   SHANGHAI
Southwestern Energy Company    SINGAPORE
10000 Energy Drive    TOKYO
Spring, Texas 77389    TORONTO

 

  Re:

Southwestern Energy Company

Registration Statement on Form S-3

Ladies and Gentlemen:

We have acted as special United States counsel to Southwestern Energy Company, a Delaware corporation (the “Company”), in connection with the resale by the selling stockholders listed on the signature pages to the Registration Rights Agreement (as defined below) (the “Selling Stockholders”) of up to an aggregate of 99,337,748 shares (the “Secondary Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The Secondary Shares were previously issued to the Selling Stockholders in connection with the Agreement and Plan of Merger, dated as of November 3, 2021, by and among the Company, GEP Haynesville, LLC, a Delaware limited liability company, and GEPH Unitholder Rep, LLC, a Delaware limited liability company (the “Unitholder Representative”), solely in its capacity as the representative of the Holders (as defined in the Merger Agreement) (the “Merger Agreement”).

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

(a) the registration statement on Form S-3ASR (File No. 333-238633) of the Company relating to Common Stock and other securities of the Company filed on May 22, 2020 with the Securities and Exchange Commission (the “Commission”) under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”) and Post-Effective Amendments No. 1, No. 2 and No. 3 thereto, including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);


(b) the prospectus, dated August 16, 2021 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement;

(c) the prospectus supplement, dated January 5, 2022 (together with the Base Prospectus, the “Prospectus”), relating to the offering of the Secondary Shares, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;

(d) an executed copy of the Merger Agreement;

(e) an executed copy of the Registration Rights Agreement, dated as of December 31, 2021, by and among the Company, each of the other parties listed on the signature pages attached thereto, the other Holders from time to time parties thereto, and the Unitholder Representative, solely in its capacity as the representative of the Holders (the “Registration Rights Agreement”);

(f) an executed copy of a certificate of Chris Lacy, Vice President, General Counsel and Corporate Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

(g) a copy of the Company’s Certificate of Incorporation, as amended, certified by the Secretary of State of the State of Delaware as of the date hereof, and certified pursuant to the Secretary’s Certificate (the “Certificate of Incorporation”);

(h) a copy of the Company’s bylaws, as amended and in effect as of the date hereof and certified pursuant to the Secretary’s Certificate (the “Bylaws”); and

(i) a copy of certain resolutions of the Board of Directors of the Company, adopted on November 3, 2021, certified pursuant to the Secretary’s Certificate.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Selling Stockholders and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Selling Stockholders and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below, including the facts and conclusions set forth in the Secretary’s Certificate.

In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties and the enforceability thereof against such parties. As to any facts relevant to the opinion stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and the Selling Stockholders and others and of public officials.


In rendering the opinion stated herein, we have also assumed that: (i) the Company received the consideration for the Secondary Shares set forth in the Merger Agreement and the applicable board resolutions, (ii) the issuance of the Secondary Shares has been registered in the Company’s share registry and (iii) the issuance of the Secondary Shares did not violate or conflict with any agreement or instrument binding on the Company (except that we do not make this assumption with respect to the Certificate of Incorporation, the Bylaws or those agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration Statement or the Company’s Annual Report on Form 10-K for the year ended December 31, 2020).

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Secondary Shares have been duly authorized by all requisite corporate action on the part of the Company under the DGCL and have been validly issued and are fully paid and nonassessable.

We hereby consent to the reference to our firm under the heading “Legal Matters” in the Prospectus. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in the applicable laws.

 

Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP

ECO

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