UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 14A

(Rule 14a-101)

SCHEDULE 14A INFORMATION

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

 

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CNX Midstream Partners LP

(Name of Registrant as Specified in Its Charter)

 

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On July 26, 2020, CNX Resources Corporation, a Delaware corporation (“CNX”), CNX Resources Holdings LLC, a Delaware limited liability company and a wholly owned subsidiary of CNX (“Merger Sub”), CNX Midstream Partners LP, a Delaware limited partnership (“CNXM”), and CNX Midstream GP LLC, a Delaware limited liability company and the general partner of CNXM (the “General Partner”), entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the Merger Agreement, Merger Sub will merge with and into CNXM, with CNXM surviving as a wholly owned subsidiary of CNX (the “Merger”).

Pursuant to the Merger Agreement, each outstanding common unit representing limited partner interests in CNXM (“CNXM Common Units”) immediately prior to the effective time of the Merger, other than CNXM Common Units held directly or indirectly by CNX and its subsidiaries (all such CNXM Common Units held by persons other than CNX or its subsidiaries, the “CNXM Public Common Units,” and the holders of such units, the “CNXM Public Unitholders”), will be converted into the right to receive 0.88 shares (the “Exchange Ratio”) of CNX common stock, par value $0.01 per share (“CNX Common Stock,” and the shares of CNX Common Stock to be issued in the Merger, the “Merger Consideration”). Except for the Class B units representing limited partner interests in CNXM (the “CNXM Class B units”), which shall automatically be canceled immediately prior to the effective time of the Merger for no consideration in accordance with the Third Amended and Restated Agreement of Limited Partnership of CNX Midstream Partners LP, dated as of January 29, 2020 (the “Partnership Agreement”), the interests in CNXM owned by CNX and its subsidiaries will remain outstanding as limited partner interests in the surviving entity. The General Partner will continue to own the non-economic general partner interest in the surviving entity.

On July 26, 2020, the board of directors of CNX (the “CNX Board”) determined, by unanimous vote, that the Merger Agreement and the transactions contemplated thereby, including the Merger and the issuance of the Merger Consideration, are advisable, fair and reasonable to and in the best interests of CNX and its stockholders, approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger and the issuance of Merger Consideration in the Merger, and authorized and empowered CNX to enter into the Merger Agreement and to consummate the transactions contemplated thereby (including the Merger) on the terms and subject to the conditions set forth in the Merger Agreement.

On July 26, 2020, the conflicts committee (the “CNXM Conflicts Committee”) of the board of directors of the General Partner (the “GP Board”), by unanimous vote, (i) determined that the Merger Agreement and the Merger are in the best interests of CNXM and the CNXM Unitholders (other than CNX, the General Partner and their respective affiliates (the “CNXM Unaffiliated Unitholders”)), (ii) approved the Merger and the execution, delivery and performance by CNXM of the Merger Agreement (such approval constituting Special Approval as defined in the Partnership Agreement), (iii) recommended that the GP Board approve the Merger Agreement and the Merger and (iv) recommended that the GP Board direct that the Merger Agreement be submitted to a vote of the Limited Partners (as defined in the Partnership Agreement) and authorized the Limited Partners to act by written consent to approve the Merger pursuant to the Partnership Agreement.

Upon receipt of such recommendation by the CNXM Conflicts Committee, the GP Board, by unanimous vote at a meeting held on July 26, 2020, determined (i) that the Merger and the Related Arrangements (as defined in the Merger Agreement), including the Merger Agreement and the Support Agreement (as defined below), are in the best interests of CNXM, including the CNXM Unitholders, (ii) to approve the Merger and the Related Arrangements, including the Merger Agreement and the Support Agreement, and (iii) to submit the Merger Agreement to a vote of the Limited Partners and authorized the Limited Partners to act by written consent to approve the Merger pursuant to the Partnership Agreement.

Pursuant to the Partnership Agreement, the approval of the Merger Agreement and the Merger by CNXM requires the affirmative vote or consent of the holders of a majority of the outstanding CNXM Common Units and CNXM Class B units, voting as a single class (the “Required Limited Partner Written Consent”). CNXM has entered into a Support Agreement, dated as of July 26, 2020 (the “Support Agreement”), with CNX Gas Company LLC, a Virginia limited liability company and wholly owned subsidiary of CNX (“CNX Gas”), and CNX Gas Holdings, Inc., a Delaware corporation and wholly owned subsidiary of CNX (“Holdings”), pursuant to which CNX Gas and Holdings have irrevocably and unconditionally agreed to deliver a written consent, covering all of the CNXM Common Units beneficially owned by them, approving the adoption of the Merger, the Merger Agreement and the transactions contemplated in the Merger Agreement (together, the “Support Written Consents”), within two business days following the effectiveness of the registration statement of which this consent statement/prospectus forms a part. As of the Record Date (as defined below), CNX Gas beneficially owned 46,794,206 CNXM Common Units and Holdings beneficially owned 897,992 CNXM Common Units, which collectively represent approximately 51.4% of the outstanding CNXM Common Units and CNXM Class B units (collectively, the “CNXM Limited Partner Interests”). Accordingly, the delivery of the Support Written Consents will be sufficient to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, on behalf of holders of the CNXM Limited Partner Interests (the “CNXM Limited Partners”).

The GP Board has set August 27, 2020 as the record date (the “Record Date”) for determining the CNXM Limited Partners entitled to execute and deliver written consents with respect to the Merger. If you were a record holder of outstanding CNXM Limited Partner Interests as of the close of business on the Record Date, you may complete, date and sign the enclosed written consent and promptly return it to CNXM. See the section titled “Written Consents of CNXM Limited Partners” beginning on page 27 of this consent statement/prospectus.

 

 

This consent statement/prospectus provides you with detailed information about the proposed Merger and related matters. CNX and CNXM both encourage you to read the entire document carefully. In particular, please read “Risk Factors” beginning on page 17 of this consent statement/prospectus for a discussion of risks relevant to the Merger, the tax consequences of the Merger and owning the CNX Common Stock received in the Merger, an investment in CNX Common Stock and CNX’s business following the Merger.

CNX Common Stock is listed on the NYSE under the symbol “CNX” and CNXM Common Units are listed on the New York Stock Exchange (“NYSE”) under the symbol “CNXM.”

On behalf of the GP Board,

Nicholas J. DeIuliis

Chairman of the Board of Directors

Chief Executive Officer

CNX Midstream GP LLC

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE MERGER OR DETERMINED THAT THIS CONSENT STATEMENT/PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

This consent statement/prospectus is dated August 28, 2020 and is first being mailed to CNXM Limited Partners on or about August 28, 2020.

IMPORTANT NOTE ABOUT THIS CONSENT STATEMENT/PROSPECTUS

This consent statement/prospectus incorporates by reference important business and financial information about CNX and CNXM and their respective subsidiaries from documents filed with the Securities and Exchange Commission (“SEC”) that have not been included in or delivered with this consent statement/prospectus. This information is available without charge at the SEC’s website at www.sec.gov, as well as from other sources. See “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

CNXM Limited Partners may also request copies of these publicly filed documents from CNXM without charge by requesting them in writing or by telephone at the following address and telephone number: 1000 CONSOL Energy Drive, Suite 400, Canonsburg, Pennsylvania 15317-6506, and (724) 485-4000:

If you request any documents, CNXM will mail them to you by first class mail or another equally prompt means, after receipt of your request. To obtain timely delivery of these documents prior to the conclusion of the written consent process, CNXM Limited Partners must request the information no later than September 18, 2020.

Except as otherwise specifically noted, or the context otherwise requires, as used in this consent statement/prospectus:

 

•

“CNX” refers to CNX Resources Corporation, a Delaware corporation;

 

•

“CNX Board” refers to the board of directors of CNX;

 

•

“CNX Common Stock” refers to the common stock, par value $0.01 per share, of CNX;

 

•

“CNX Gas” refers to CNX Gas Company LLC, a Virginia limited liability company and a wholly owned subsidiary of CNX;

 

•

“CNX Gathering” refers to CNX Gathering LLC, a Delaware limited liability company and a wholly owned subsidiary of CNX;

 

•

“CNX Parties” refers to CNX and its subsidiaries (other than CNXM and its subsidiaries), including CNX Gas, Holdings and the General Partner;

 

•

“CNXM” refers to CNX Midstream Partners LP, a Delaware limited partnership;

 

•

“CNXM Class B units” refers to the Class B units representing limited partner interests in CNXM;

 

•

“CNXM Common Units” refers to the common units representing limited partner interests in CNXM;

 

•

“CNXM Conflicts Committee” refers to the conflicts committee of the GP Board;

 

•

“CNXM Limited Partner Interests” refers to the CNXM Common Units together with the CNXM Class B units;

 

•

“CNXM Limited Partners” refers to the holders of CNXM Limited Partner Interests;

 

•

“CNXM Parties” refers to CNXM and the General Partner together;

 

•

“CNXM Public Common Units” refers to all of the CNXM Common Units other than those held by CNX or its subsidiaries;

 

•

“CNXM Public Unitholders” refers to the holders of the CNXM Public Common Units;

 

•

“CNXM Unaffiliated Unitholders” refers to the CNXM Unitholders (other than CNX, the General Partner and their respective affiliates);

 

•

“CNXM Unitholder” refers to a holder of CNXM Common Units;

 

i

•

“Effective Time” refers to such time as the certificate of merger has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by CNXM and CNX in writing and specified in the certificate of merger;

 

•

“Exchange Ratio” refers to 0.88 shares of CNX Common Stock per CNXM Public Common Unit;

 

•

“General Partner” refers to CNX Midstream GP LLC, the general partner of CNXM;

 

•

“GP Board” refers to the board of directors of the General Partner;

 

•

“Holdings” refers to CNX Gas Holdings, Inc., a Delaware corporation and a direct, wholly owned subsidiary of CNX Gas;

 

•

“Merger Agreement” refers to the Agreement and Plan of Merger entered into on July 26, 2020, by and among CNX, Merger Sub, the General Partner and CNXM, as it may be amended or modified from time to time, a copy of which is attached as Annex A to this consent statement/prospectus;

 

•

“Merger Consideration” refers to the shares of CNX Common Stock to be issued to CNXM Public Unitholders pursuant to the Merger Agreement;

 

•

“Merger Sub” refers to CNX Resources Holdings LLC, a Delaware limited liability company and a wholly owned subsidiary of CNX;

 

•

“Partnership Agreement” refers to the Third Amended and Restated Agreement of Limited Partnership of CNXM, dated as of January 29, 2020;

 

•

“Record Date” refers to August 27, 2020, the record date for determining the CNXM Limited Partners entitled to execute and deliver written consents with respect to the Merger;

 

•

“Required Limited Partner Written Consent” refers to the affirmative vote or consent of the holders of a majority of the outstanding CNXM Common Units and CNXM Class B units, voting as a single class;

 

•

“Support Agreement” refers to the Support Agreement, dated as of July 26, 2020, by and among CNXM, CNX Gas and Holdings, a copy of which is attached as Annex B to this consent statement/prospectus; and

 

•

“Support Written Consents” refers to the written consents approving in all respects the Merger Agreement and the transactions contemplated thereby, including the Merger, to be delivered by CNX Gas and Holdings pursuant to the Support Agreement.

The sections entitled “Questions and Answers” and “Summary” below highlight selected information from this consent statement/prospectus, but they do not include all of the information that may be important to you. To better understand the Merger Agreement and the Merger, and for a more complete description of its legal terms, you should carefully read this entire consent statement/prospectus, including the section entitled “Risk Factors” beginning on page 17 and the Merger Agreement, a copy of which is attached at Annex A hereto, as well as the documents that are incorporated by reference into this consent statement/prospectus. See “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

You should rely only on the information contained in, or incorporated by reference into, this consent statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this consent statement/prospectus. This consent statement/prospectus is dated August 28, 2020. You should not assume that the information contained in or incorporated by reference into, this consent statement/prospectus is accurate as of any date other than, in the case of this consent statement/prospectus, the date on the front cover of this consent statement/prospectus and, in the case of information incorporated by reference, the respective dates of such referenced documents. Neither the mailing of this consent statement/prospectus to CNXM Limited Partners nor the issuance by CNX of shares of CNX Common Stock in connection with the Merger will create any implication to the contrary.

 

ii

TABLE OF CONTENTS

 

QUESTIONS AND ANSWERS			vi
SUMMARY			1
Information about the Companies (see page 25)			1
The Merger (see page 28)			2
Merger Consideration (see page 28)			2
CNXM Limited Partner Interests Entitled To Consent and Consent Required (see page 27)			2
CNX’s Ownership Interest In and Control of CNXM (see page 28)			2
Approval by the CNXM Conflicts Committee and the GP Board (see page 42)			3
Opinion of the CNXM Conflicts Committee Financial Advisor (see page 62)			3
Interests of Certain Persons in the Merger (see page 68)			4
The Merger Agreement (see page 73)			4
The Support Agreement (see page 86)			4
Material U.S. Federal Income Tax Consequences (see page 102)			6
Summary of Risk Factors (see page 17)			7
Litigation Relating to the Merger (see page 72)			8
SELECTED HISTORICAL FINANCIAL INFORMATION OF CNX			9
SELECTED HISTORICAL FINANCIAL INFORMATION OF CNXM			11
SELECTED UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION			13
COMPARATIVE AND PRO FORMA PER SHARE/UNIT DATA			14
COMPARATIVE MARKET PRICES AND CASH DIVIDEND/DISTRIBUTION INFORMATION			15
Dividend and Share Data—CNX			15
Distribution and Unit Data—CNXM			15
RISK FACTORS			17
Risks Related to the Merger			17
Tax Risks Related to the Merger and the Ownership of CNX Common Stock Received in the Merger			20
Risks Inherent in an Investment in CNX			21
Risks Relating to CNX’s Business			22
Risks Relating to CNXM’s Business			22
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS			23
INFORMATION ABOUT THE COMPANIES			25
WRITTEN CONSENTS OF CNXM LIMITED PARTNERS			27
CNXM Limited Partner Interests Entitled to Consent and Consent Required			27
Submission of Consents			27
Revocation of Consents			27
Expenses			27
THE MERGER			28
General			28
CNX’s Ownership Interest in and Control of CNXM			28
Background of the Merger			29
Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties			41
Approval of the CNXM Conflicts Committee and the GP Board			42

 

iii

Reasons for the CNXM Conflicts Committee’s Recommendation			42
Unaudited Financial Projections of CNX and CNXM			47
Opinion of the CNXM Conflicts Committee Financial Advisor			51
Approval by the CNX Board and its Reasons for the Merger			66
Interests of Certain Persons in the Merger			68
No Appraisal Rights			71
Regulatory Matters			71
Listing of the CNX Common Stock to be Issued in the Merger			71
Post-Closing Status of CNXM			71
Accounting Treatment			72
Litigation Relating to the Merger			72
THE MERGER AGREEMENT			73
The Merger; Effective Time; Closing			73
Conditions to Completion of the Merger			74
Representations and Warranties			76
Conduct of Business Prior to Closing			77
Required Limited Partner Written Consent			80
Agreement to Take Further Action and to Use Reasonable Best Efforts			80
CNXM Conflicts Committee			81
Access to Information			81
Indemnification and Insurance			81
Certain Tax Matters			82
Withholding			82
Adjustments to Prevent Dilution			82
NYSE Listing, Delisting and Deregistration			82
Section 16 Matters			82
Other Covenants and Agreements			83
Termination of the Merger Agreement			83
Effect of Termination; Termination Expenses			84
Amendment and Supplement; Waiver			84
Assignment			84
Specific Performance			84
Governing Law			85
THE SUPPORT AGREEMENT			86
COMPARISON OF RIGHTS OF CNX STOCKHOLDERS AND CNXM UNITHOLDERS			87
Purpose and Term of Existence			87
Authorized and Issued Capital			88
CNX Dividends; CNXM Distributions			88
Merger, Consolidation and Certain Other Transactions; Business Combination Statutes			90
Management by Board of Directors / General Partner			91
Nomination and Election of Directors / General Partner			91
Removal of Directors; Withdrawal or Removal of General Partner			92
Filling Vacancies on the Board; Replacing the General Partner			93
Transfer of General Partner Interest			94
Limited Call Rights			94
Amendment of Governing Documents			95
Meetings; Voting; Action by Written Consent			98
Stockholder Proposals and Director Nominations			99
Indemnification and Limitation on Liability			99

 

iv

Conflicts of Interest; Fiduciary Duties			100
Taxation			101
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES			102
Tax Consequences of the Merger to U.S. Holders of CNXM Common Units			103
Tax Consequences to U.S. Holders of Owning and Disposing of Shares of CNX Common Stock Received in the Merger			104
LEGAL MATTERS			106
EXPERTS			107
CNX			107
CNXM			107
WHERE YOU CAN FIND MORE INFORMATION			108
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS			F-1
ANNEX A: THE MERGER AGREEMENT
ANNEX B: THE SUPPORT AGREEMENT
ANNEX C: OPINION OF INTREPID PARTNERS, LLC

 

v

QUESTIONS AND ANSWERS

The following questions and answers are intended to briefly address some questions that you, as a CNXM Limited Partner, may have regarding the Merger, the Merger Agreement and the execution and delivery of written consents with respect to the Merger. CNX and CNXM urge you to carefully read the remainder of this consent statement/prospectus because these questions and answers may not address all questions or provide all information that might be important to you with respect to the Merger, the Merger Agreement and the execution and delivery of written consents with respect to the Merger. Additional important information is also contained in the annexes and the documents incorporated by reference into this consent statement/prospectus. You may obtain the information incorporated by reference into this consent statement/prospectus without charge by following the instructions under the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

 

Q:	Why am I receiving these materials?

 

A:	CNX and CNXM have agreed that, with the approval of the Merger Agreement and the Merger by the CNXM Limited Partners and subject to certain other conditions, Merger Sub, a wholly owned subsidiary of CNX, will merge with and into CNXM, with CNXM surviving as a wholly owned subsidiary of CNX.

The approval of the Merger Agreement and the Merger by CNXM requires the affirmative consent of the holders of a majority of the outstanding CNXM Limited Partner Interests. If you are a record holder of outstanding CNXM Limited Partner Interests as of the Record Date, you may complete, date and sign the enclosed written consent and promptly return it to CNXM. Pursuant to the terms of the Support Agreement, CNX Gas and Holdings have irrevocably and unconditionally agreed to deliver the Support Written Consents within two business days following the effectiveness of the registration statement of which this consent statement/prospectus forms a part. As of the Record Date, CNX Gas beneficially owned 46,794,206 CNXM Common Units and Holdings beneficially owned 897,992 CNXM Common Units, which collectively represent approximately 51.4% of the outstanding CNXM Limited Partner Interests. Accordingly, the delivery of the Support Written Consents will be sufficient to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, on behalf of the CNXM Limited Partners.

This document constitutes both a prospectus of CNX and a consent statement of CNXM. This document is a prospectus because CNX, in connection with the Merger, is offering CNX Common Stock in exchange for the CNXM Public Common Units outstanding immediately prior to the Effective Time. This document is a consent statement because CNXM Limited Partners are being afforded the opportunity to sign a written consent approving the Merger using this document.

 

Q:	What will happen to CNXM as a result of the Merger?

 

A:	If the Merger is successfully completed, Merger Sub will be merged with and into CNXM, with CNXM surviving as a wholly owned subsidiary of CNX. There are no immediate plans to terminate CNXM’s legal existence or transfer, assign or otherwise dispose of any of CNXM’s assets following the Merger.

 

Q:	When will the Merger be completed?

 

A:

CNX and CNXM are working to complete the Merger as soon as possible. A number of conditions must be satisfied or waived before CNX and CNXM can complete the Merger. See the section entitled “The Merger Agreement—Conditions to Completion of the Merger” beginning on page 74. Assuming timely satisfaction or waiver of the closing conditions, the Merger is targeted to close in the fourth quarter of 2020.

 

vi

Q:	What will CNXM Public Unitholders be entitled to receive in the Merger?

 

A:	Each CNXM Public Unitholder as of the Effective Time will be entitled to receive 0.88 shares of CNX Common Stock in exchange for each CNXM Common Unit held by such CNXM Public Unitholder at the Effective Time.

No fractional shares of CNX Common Stock will be issued in the Merger. Instead of receiving any fractions of a share of CNX Common Stock, all fractions of shares of CNX Common Stock to which a CNXM Public Unitholder would otherwise have been entitled shall be aggregated and the resulting fraction will be rounded up to the nearest whole share of CNX Common Stock. See the section entitled “The Merger Agreement—The Merger; Effective Time; Closing” beginning on page 73.

 

Q:	What percentage of outstanding CNX Common Stock will CNXM Public Unitholders own after the successful consummation of the Merger?

 

A:

If the Merger is successfully completed, based on the number of shares of CNX Common Stock and CNXM Common Units outstanding as of the Record Date, the shares of CNX Common Stock that the CNXM Public Unitholders receive in the Merger will collectively represent approximately 16.5% of the outstanding shares of CNX Common Stock following completion of the Merger.

 

Q:	Will the shares of CNX Common Stock acquired in the Merger be entitled to receive dividends?

 

A:

After the closing of the Merger (the “Closing”), all shares of CNX Common Stock issued in exchange for CNXM Public Common Units will entitle the holder to the same dividends (if any) that all other holders of CNX Common Stock will receive with respect to any dividend record date that occurs after the Effective Time. CNX suspended its quarterly dividend in March 2016. See the section entitled “Comparative Market Prices and Cash Dividend/Distribution Information” beginning on page 15.

 

Q:	Should CNXM Public Unitholders deliver their CNXM Public Common Units now?

 

A:

No. After the Merger is completed, any CNXM Public Common Units you hold as of the Effective Time in book entry form will automatically be converted into the right to receive the Merger Consideration. Because all CNXM Common Units are held in book entry form, no holder will need to deliver certificates to receive the Merger Consideration. If you own CNXM Public Common Units in street name, the shares of CNX Common Stock you will receive in connection with the Merger should be credited to your account in accordance with the policies and procedures of your bank, broker or other nominee within a few days following the closing date of the Merger.

 

Q:	Where will CNXM Common Units trade after the Merger?

 

A:	CNXM Common Units will no longer be publicly traded following the Merger and will be delisted from the NYSE. CNX Common Stock will continue to trade on the NYSE under the symbol “CNX.”

 

Q:	What happens to future distributions with respect to CNXM Public Common Units?

 

A:

If the Merger is successfully consummated, all outstanding CNXM Public Common Units will be converted into the right to receive CNX Common Stock at the Exchange Ratio and will no longer receive quarterly distributions from CNXM. For a description of the differences between the rights of holders of CNX stockholders and CNXM Unitholders, please read “Comparison of Rights of CNX Stockholders and CNXM Unitholders” beginning on page 87.

 

Q:	How can CNXM Limited Partners return their written consents with respect to the Merger?

 

A:	CNXM Limited Partners of record at the close of business on the Record Date may consent to the approval of the Merger Agreement and the Merger with respect to their CNXM Limited Partner Interests by completing,

 

vii

dating and signing the written consent furnished with this consent statement/prospectus and returning it in the postage-paid envelope CNXM provides or by mailing the written consent to CNX Midstream Partners LP, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717, or by submitting a written consent online by visiting proxyvote.com and following the instructions described therein. See the section entitled “Written Consents of CNXM Limited Partners—Submission of Consents” beginning on page 27. CNXM does not intend to hold a meeting of CNXM Limited Partners to consider the Merger Agreement and the Merger.

 

Q:	Can CNXM Limited Partners change or revoke their written consents?

 

A:

Yes. If you are a record holder of CNXM Limited Partner Interests on the Record Date, you may revoke or change your consent by mailing a notice of revocation or a new written consent with a later date to CNX Midstream Partners LP, c/o Broadridge, 51 Mercedes Way, Edgewood, New York 11717, or by submitting a new written consent online by visiting proxyvote.com and following the instructions described therein, in each case, that is received by the later of (i) 11:59 p.m. (Eastern Time) on September 25, 2020 and (ii) the date on which the consents of a sufficient number of CNXM Limited Partner Interests to approve the Merger Agreement have been delivered to Broadridge. See the section entitled “Written Consents of CNXM Limited Partners—Submission of Consents” beginning on page 27.

 

Q:	What are the expected U.S. federal income tax consequences for a CNXM Public Unitholder as a result of the Merger?

 

A:

The receipt of CNX Common Stock in exchange for CNXM Public Common Units pursuant to the Merger Agreement will be a taxable transaction to U.S. Holders (as defined in “Material U.S. Federal Income Tax Consequences”) for U.S. federal income tax purposes. In such case, a U.S. Holder will generally recognize capital gain or loss on the receipt of CNX Common Stock in exchange for CNXM Public Common Units. However, a portion of this gain or loss, which could be substantial, will be separately computed and taxed as ordinary income or loss to the extent attributable to “unrealized receivables,” including depreciation recapture, or to “inventory items” owned by CNXM and its subsidiaries. Passive losses that were not deductible by a U.S. Holder in prior taxable periods because they exceeded a U.S. Holder’s share of CNXM’s income may become available to offset a portion of the gain recognized by such U.S. Holder. A U.S. Holder’s tax basis in the shares of CNX Common Stock received in the Merger will equal the fair market value of such shares. The U.S. federal income tax consequences of the Merger to CNXM Public Unitholders and of the ownership and disposition of any CNX Common Stock received pursuant thereto will depend on the CNXM Public Unitholder’s particular tax situation. Accordingly, you are strongly urged to consult your tax advisor for a full understanding of the particular tax consequences to you of the merger and of the ownership and disposition of any CNX Common Stock received by you in the Merger. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the U.S. federal income tax consequences of the Merger.

 

Q:	What are the expected U.S. federal income tax consequences for a CNXM Public Unitholder of the ownership of shares of CNX Common Stock after the Merger is completed?

 

A:

CNX is classified as a corporation for U.S. federal income tax purposes and is subject to U.S. federal income tax on its taxable income. A distribution of cash by CNX to a stockholder who is a U.S. Holder will generally be included in such U.S. Holder’s income as ordinary dividend income to the extent of CNX’s current or accumulated “earnings and profits” as determined under U.S. federal income tax principles. A portion of the cash distributed to CNX stockholders after the Merger may exceed CNX’s current and accumulated earnings and profits. Distributions of cash in excess of CNX’s current and accumulated earnings and profits will be treated as a non-taxable return of capital reducing a U.S. Holder’s adjusted tax basis in such U.S. Holder’s CNX Common Stock and, to the extent the distribution exceeds such stockholder’s adjusted tax basis, as capital gain from the sale or exchange of such CNX Common Stock. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the U.S. federal income tax consequences of owning and disposing of CNX Common Stock received in the Merger.

 

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Q:	Are CNXM Unitholders entitled to appraisal rights in connection with the Merger?

 

A:	No. CNXM Unitholders do not have appraisal rights under applicable law or contractual appraisal rights under the Partnership Agreement.

 

Q:	Who do I call if I have further questions about the Merger Agreement or the Merger?

 

A:	If CNXM Limited Partners have further questions or if they would like additional copies, without charge, of this document, they may call CNXM’s Investor Relations Department by phone at (724) 485-4000.

 

Q:	What happens if the Merger is not consummated?

 

A:

If the Merger is not completed for any reason, you will not receive the Merger Consideration for any CNXM Public Common Units that you hold. CNXM Common Units will remain outstanding, CNXM will remain a public limited partnership, none of the CNXM Class B units will be canceled and the CNXM Common Units will continue to be listed and traded on the NYSE.

 

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RISK FACTORS

In addition to the other information included or incorporated by reference into this consent statement/prospectus, including the matters addressed in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 23 of this consent statement/prospectus, you should carefully consider the following risks before deciding whether to sign and deliver a written consent. In addition, you should read and consider the risks associated with each of the businesses of CNX and CNXM, because these risks may also affect the combined company. A description of the material risks can be found in Part I, Item 1A of CNX’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Part II, Item 1A of CNX’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020 and June 30, 2020 and in Part I, Item 1A of CNXM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Part II, Item 1A of CNXM’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020 and June 30, 2020, each of which are filed with the SEC and incorporated by reference into this consent statement/prospectus. See the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

Risks Related to the Merger

Because the Exchange Ratio is fixed and because the market price of CNX Common Stock will fluctuate prior to the completion of the Merger, CNXM Public Unitholders cannot be sure of the market value of CNX Common Stock they will receive as Merger Consideration relative to the value of CNXM Common Units they exchange.

The market value of the consideration that CNXM Unitholders will receive in the Merger will depend on the trading price of CNX Common Stock at the Closing. The Exchange Ratio that determines the number of shares of CNX Common Stock that CNXM Public Unitholders will receive in the Merger is fixed at 0.88 shares of CNX Common Stock for each CNXM Common Unit. This means that there is no mechanism contained in the Merger Agreement that would adjust the number of shares of CNX Common Stock that CNXM Public Unitholders will receive based on any decreases or increases in the trading price of CNX Common Stock. Stock or unit price changes may result from a variety of factors (many of which are beyond CNX’s and CNXM’s control), including:

 

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changes in CNX’s or CNXM’s business, operations and prospects;

 

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changes in market assessments of CNX’s or CNXM’s business, operations and prospects;

 

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changes in market assessments of the likelihood that the Merger will be completed;

 

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interest rates, commodity prices, general market, industry and economic conditions and other factors generally affecting the price of CNX Common Stock or CNXM Common Units; and

 

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federal, state and local legislation, governmental regulation and legal developments in the businesses in which CNX and CNXM operate.

If the price of CNX Common Stock at the Closing is less than the price of CNX Common Stock on the date that the Merger Agreement was signed, then the market value of the Merger Consideration will be less than contemplated at the time the Merger Agreement was signed.

The Merger is subject to conditions, including some conditions that may not be satisfied on a timely basis, if at all. Failure to complete the Merger, or significant delays in completing the Merger, could negatively affect each party’s future business and financial results and the trading prices of CNX Common Stock and CNXM Common Units.

The completion of the Merger is subject to a number of conditions. The completion of the Merger is not assured and is subject to risks. The Merger Agreement contains conditions, some of which are beyond the parties’ control, that, if not satisfied or waived, may prevent, delay or otherwise result in the Merger not occurring.

 

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If the Merger is not completed, or if there are significant delays in completing the Merger, CNX’s and CNXM’s future business and financial results and the trading prices of CNX Common Stock and CNXM Common Units could be negatively affected, and each of the parties will be subject to several risks, including the following:

 

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the parties may be liable for fees or expenses to one another under the terms and conditions of the Merger Agreement;

 

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there may be negative reactions from the financial markets due to the fact that current prices of CNX Common Stock and CNXM Common Units may reflect a market assumption that the Merger will be completed; and

 

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the attention of management will have been diverted to the Merger rather than their own operations and pursuit of other opportunities that could have been beneficial to their respective businesses.

The date CNXM Public Unitholders will receive the Merger Consideration depends on the completion date of the Merger, which is uncertain.

Completing the Merger is subject to several conditions, not all of which are controllable by CNX or CNXM. Accordingly, the date on which CNXM Public Unitholders will receive Merger Consideration depends on the completion date of the Merger, which is uncertain and subject to several other closing conditions.

CNX and CNXM may incur substantial transaction-related costs in connection with the Merger. If the Merger does not occur, CNX and CNXM will not benefit from these costs.

CNX and CNXM expect to incur substantial expenses in connection with completing the Merger, including fees paid to legal, financial and accounting advisors, filing fees, written consent costs and printing costs. Many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time.

If the Merger Agreement is terminated under specified circumstances, CNX and CNXM may be responsible for the terminating party’s expenses in an amount up to $3.5 million.

If the Merger Agreement is terminated under specified circumstances, either CNX or CNXM may be required to make a payment of up to $3.5 million in respect of the other party’s expenses. If such termination expenses are payable, the payment of such termination expenses could have material and adverse consequences to the financial condition and operations of the party responsible for such payment.

CNX and CNXM are and in the future may be targets of securities class action and derivative lawsuits, which could result in substantial costs and may delay or prevent the completion of the Merger.

Securities class action lawsuits and derivative lawsuits are often brought against companies that have entered into merger agreements in an effort to enjoin the relevant merger or seek monetary relief. CNX and CNXM are currently defendants in a lawsuit relating to the Merger Agreement and the Merger and, even if the pending or any future lawsuits are without merit, defending against these claims can result in substantial costs and divert management time and resources. CNX and CNXM cannot predict the outcome of these lawsuits, or others, nor can either company predict the amount of time and expense that will be required to resolve such litigation. An unfavorable resolution of any such litigation surrounding the Merger could delay or prevent its consummation. In addition, the costs of defending the litigation, even if resolved in CNX’s or CNXM’s favor, could be substantial and such litigation could distract CNX and CNXM from pursuing the consummation of the Merger and other potentially beneficial business opportunities. See “The Merger—Litigation Relating to the Merger.”

 

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The Partnership Agreement limits the duties of the General Partner to CNXM Unitholders and restricts the remedies available to CNXM Unitholders for actions taken by the General Partner that might otherwise constitute breaches of its duties.

In light of potential conflicts of interest between CNX and the General Partner, on the one hand, and CNXM and the CNXM Unitholders other than the CNX Parties, on the other hand, the GP Board submitted the Merger and related matters to the CNXM Conflicts Committee for, among other things, review, evaluation, negotiation and possible approval of a majority of its members, which is referred to as “Special Approval” in the Partnership Agreement and this consent statement/prospectus. Under the Partnership Agreement:

 

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any resolutions or course of action by the General Partner or its affiliates in respect of a conflict of interest is permitted or deemed approved by all partners of CNXM and will not constitute a breach of the Partnership Agreement or of any duty stated or implied by law, in equity or otherwise, if the resolution or course of action is approved by Special Approval; and

 

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the General Partner may consult with legal counsel and investment bankers selected by it, and any action taken or omitted to be taken in reliance upon the opinion of such persons as to matters that the General Partner reasonably believes to be within such person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.

The CNXM Conflicts Committee reviewed, negotiated and evaluated the Merger Agreement, the Support Agreement, the Merger and related matters on behalf of the CNXM Unaffiliated Unitholders and CNXM. Among other things, the CNXM Conflicts Committee, by unanimous vote, (i) determined that the Merger Agreement and the Merger are in the best interests of CNXM and the CNXM Unaffiliated Unitholders, (ii) approved the Merger and the execution, delivery and performance by CNXM of the Merger Agreement (such approval constituting Special Approval as defined in the Partnership Agreement), (iii) recommended that the GP Board approve the Merger Agreement and the Merger and (iv) recommended that the GP Board direct that the Merger Agreement be submitted to a vote of the Limited Partners and authorized the Limited Partners to act by written consent to approve the Merger pursuant to the Partnership Agreement. The duties of the General Partner, the GP Board and the CNXM Conflicts Committee to CNXM Limited Partners in connection with the Merger are substantially limited by the Partnership Agreement.

Certain executive officers and directors of the General Partner and CNX have interests in the Merger that are different from, or in addition to, the interests they may have as CNXM Unitholders or CNX stockholders, respectively, which could have influenced their decision to support or approve the Merger.

Certain executive officers and directors of the General Partner own equity interests in CNX, receive fees and other compensation from CNX and will have rights to ongoing indemnification and insurance coverage by the surviving company that give them interests in the Merger that may be different from, or be in addition to, interests of a CNXM Public Unitholder.

Additionally, certain of CNX’s executive officers and directors beneficially own CNXM Common Units and will receive the applicable Merger Consideration upon completion of the Merger, receive fees and other compensation from CNX and are entitled to indemnification arrangements with CNX that give them interests in the Merger that may be different from, or be in addition to, interests a holder of CNX Common Stock may have as an CNX stockholder.

Financial projections by CNX and CNXM may not prove to be reflective of actual future results.

In connection with the Merger, CNX and CNXM prepared and considered, among other things, internal financial forecasts for CNX and CNXM, respectively. These forecasts speak only as of the date made and will not be updated. These financial projections were not provided with a view to public disclosure, are subject to

 

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significant economic, competitive, industry and other uncertainties and may not be achieved in full, at all or within projected time frames. In addition, the failure of businesses to achieve projected results could have a material adverse effect on our share price and financial position following the Merger.

Tax Risks Related to the Merger and the Ownership of CNX Common Stock Received in the Merger

In addition to reading the following risk factors, you are urged to read “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected U.S. federal income tax consequences of the Merger and owning and disposing of CNX Common Stock received in the Merger.

The Merger will be a taxable transaction and, in such case, the resulting tax liability of a CNXM Public Unitholder, if any, will depend on the unitholder’s particular situation. The tax liability of a CNXM Public Unitholder as a result of the Merger could be more than expected.

CNXM Public Unitholders will receive CNX Common Stock as the Merger Consideration. Although CNXM’s Public Unitholders will receive no cash consideration, the Merger will be treated as a taxable sale by U.S. Holders (as defined in “Material U.S. Federal Income Tax Consequences”) of CNXM Common Units for U.S. federal income tax purposes. In such case, as a result of the Merger, a CNXM Public Unitholder will recognize gain or loss for U.S. federal income tax purposes equal to the difference between such unitholder’s amount realized and the unitholder’s adjusted tax basis in the CNXM Common Units, which will be increased by the U.S. Holder’s share of certain items related to business interest not yet deductible by such U.S. Holder due to applicable limitations on the deductibility of such business interest. The amount of gain or loss recognized by each CNXM Public Unitholder in the Merger will vary depending on each unitholder’s particular situation, including the value of the shares of CNX Common Stock received by each unitholder in the Merger, the adjusted tax basis in the CNXM Common Units exchanged by each unitholder in the Merger, and the amount of any suspended passive losses that may be available to a particular unitholder to offset a portion of the gain recognized by the unitholder.

Because the value of any CNX Common Stock received in the Merger will not be known until the Effective Time, a CNXM Public Unitholder will not be able to determine its amount realized, and therefore its taxable gain or loss, until such time. In addition, because prior distributions in excess of a CNXM Public Unitholder’s allocable share of CNXM’s net taxable income decrease the unitholder’s tax basis in its common units, the amount, if any, of the prior excess distributions with respect to such CNXM Common Units will, in effect, become taxable income to a unitholder if the aggregate value of the consideration received in the Merger is greater than the unitholder’s adjusted tax basis in its common units, even if the aggregate value of the consideration received in the Merger is less than the unitholder’s original cost basis in its common units. Furthermore, a portion of any gain or loss, which could be substantial, will be separately computed and taxed as ordinary income to the extent attributable to “unrealized receivables,” including depreciation recapture, or to “inventory items” owned by CNXM and its subsidiaries. Consequently, a CNXM Public Unitholder may recognize both ordinary income and capital loss upon the exchange of CNXM Common Units in the Merger.

For a more complete discussion of the U.S. federal income tax consequences of the Merger, please read “Material U.S. Federal Income Tax Consequences.”

The U.S. federal income tax treatment of owning and disposing of CNX Common Stock received in the Merger will be different than the U.S. federal income tax treatment of owning and disposing of CNXM Common Units.

CNXM is classified as a partnership for U.S. federal income tax purposes and, generally, is not subject to entity-level U.S. federal income tax. Instead, each CNXM Unitholder is required to take into account its respective share of CNXM’s items of income, gain, loss and deduction in computing its federal income tax liability, even if no cash distributions are made by CNXM to the unitholder. A pro rata distribution of cash by

 

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CNXM to a CNXM Public Unitholder who is a U.S. Holder is generally not taxable for U.S. federal income tax purposes unless the amount of cash distributed is in excess of the CNXM Public Unitholder’s adjusted tax basis in its CNXM Common Units.

In contrast, CNX is classified as a corporation for U.S. federal income tax purposes and is subject to U.S. federal income tax on its taxable income. A distribution of cash by CNX to a stockholder who is a U.S. Holder will generally be included in such U.S. Holder’s income as ordinary dividend income to the extent of CNX’s current or accumulated “earnings and profits,” as determined under U.S. federal income tax principles. A portion of the cash distributed to CNX stockholders by CNX after the Merger may exceed CNX’s current and accumulated earnings and profits. Cash distributions to a CNX stockholder who is a U.S. Holder in excess of CNX’s current and accumulated earnings and profits will be treated as a non-taxable return of capital, reducing the U.S. Holder’s adjusted tax basis in the holder’s CNX Common Stock and, to the extent the cash distribution exceeds the holder’s adjusted tax basis, as capital gain from the sale or exchange of such CNX Common Stock. See “Material U.S. Federal Income Tax Consequences.”

Risks Inherent in an Investment in CNX

The CNX Common Stock to be received as a result of the Merger has different rights from CNXM Common Units.

Following completion of the Merger, CNXM Public Unitholders will no longer hold CNXM Public Common Units, but will instead hold shares of CNX Common Stock. CNX is a corporation, and CNXM is a limited partnership. There are important differences between the rights of CNXM Unitholders and the rights of CNX stockholders. See “Comparison of Rights of CNX Stockholders and CNXM Unitholders” beginning on page 87.

While CNXM is a midstream company, CNX is an upstream company and CNXM Public Unitholders will therefore have direct exposure to the risks of the upstream sector, such as greater exposure to commodity price volatility.

If the Merger is consummated, CNXM Public Unitholders will become CNX stockholders. CNX is an independent oil and gas company principally focused on exploration, development, production, gathering, processing and acquisition of natural gas properties. CNX’s existing business has different risks associated with it than those associated with CNXM, which is focused on the ownership, operation, development and acquisition of midstream energy infrastructure. For example, CNX is exposed to greater direct commodity price volatility than CNXM. Accordingly, the performance of the combined company is likely to be different from the performance of CNXM Common Units in the absence of the Merger. Some of these risks include, but are not limited to, those described below and in more detail under the headings “Risk Factors—Risks Relating to CNX’s Business.”

The market value of CNX Common Stock could decline if large amounts of such stock are sold following the Merger; the market value of CNX Common Stock could also decline as a result of issuances and sales of shares of CNX Common Stock other than in connection with the Merger.

Following the Merger, holders of CNXM Public Common Units as of the Effective Time will own interests in a combined company operating an expanded business with more assets and a different mix of liabilities. Current CNX stockholders and former CNXM Public Unitholders may not wish to continue to invest in the combined company, or may wish to reduce their investment in the combined company, in order to comply with institutional investing guidelines, to increase diversification or to track any rebalancing of stock indices in which CNX Common Stock or CNXM Common Units are or were included. If, following the Merger, large amounts of CNX Common Stock are sold, the price of CNX Common Stock could decline.

Furthermore, CNX cannot predict the effect that issuances and sales of CNX Common Stock, whether taking place before the Merger (subject to the limitations of the Merger Agreement) or after the Merger,

 

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including issuances and sales in connection with capital markets transactions, acquisition transactions or other transactions, may have on the market value of CNX Common Stock. The issuance and sale of substantial amounts of CNX Common Stock could adversely affect the market value of such common stock.

The Merger may not be accretive to certain financial metrics, which may negatively affect the market price of CNX Common Stock.

Preliminary financial estimates used in projected accretion may materially change. CNX may encounter additional transaction and integration-related costs, may fail to realize all of the benefits anticipated in the Merger or be subject to other factors that affect preliminary estimates or its ability to realize operational efficiencies. Any of these factors could cause a decrease in CNX’s operating earnings per share or decrease or delay the expected effect of the Merger and contribute to a decrease in the price of CNX Common Stock.

Risks Relating to CNX’s Business

You should read and consider risk factors specific to CNX’s businesses that will also affect the combined company after the completion of the Merger. These risks are described in Part I, Item 1A of CNX’s Annual Report on Form 10-K for the year ended December 31, 2019 and Part II, Item 1A of CNX’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020 and June 30, 2020, and in other documents that are incorporated by reference herein. For more information, see the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

Risks Relating to CNXM’s Business

You should read and consider risk factors specific to CNXM’s businesses that will also affect the combined company after the completion of the Merger. These risks are described in Part I, Item 1A of CNXM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Part II, Item 1A of CNXM’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020 and June 30, 2020, and in other documents that are incorporated by reference herein. For more information, see the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This consent statement/prospectus and the information incorporated by reference in this consent statement/prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements are subject to risks and uncertainties, and actual results might differ materially from those discussed in, or implied by, the forward-looking statements. Forward-looking statements are based on the current beliefs and assumptions of the management of CNX and CNXM and can often be identified by terms and phrases that include “anticipate,” “believe,” “intend,” “estimate,” “expect,” “continue,” “should,” “would,” “could,” “may,” “plan,” “project,” “predict,” “will,” “potential,” “forecast,” “target,” “guidance,” “outlook,” or other similar terminology. Various factors may cause actual results to be materially different than the suggested outcomes within forward-looking statements. Accordingly, there is no assurance that such results will be realized.

In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements included or incorporated by reference in this consent statement/prospectus might not occur or might occur to a different extent or at a different time than described. Actual results may differ materially from the current expectations of CNX and CNXM depending on a number of factors affecting their businesses and risks associated with the successful execution of the Merger. In evaluating these forward-looking statements, you should carefully consider the risks described herein and in other reports that CNX and CNXM file with the SEC. See the sections entitled “Risk Factors” beginning on page 17 of this consent statement/prospectus and “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus. Factors which could have a material adverse effect on operations and future prospects or which could cause events or circumstances to differ from the forward-looking statements include, but are not limited to:

 

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the risk that a condition to the Closing may not be satisfied on a timely basis, if at all;

 

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the possibility that the market price of CNX Common Stock will fluctuate prior to the completion of the Merger causing the value of the Merger Consideration to change;

 

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the timing of the completion of the Merger;

 

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the substantial transaction-related costs that may be incurred by CNX and CNXM in connection with the Merger;

 

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the possibility that CNX and CNXM may, under certain specified circumstances, be responsible for the other party’s expenses;

 

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the possibility that CNX and CNXM may be the targets of securities class actions and derivative lawsuits;

 

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the limited duties the Partnership Agreement places on the General Partner for actions taken by the General Partner;

 

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the risk that certain officers and directors of CNX and the General Partner have interests in the Merger that are different from, or in addition to, the interests they may have as CNXM Unitholders or CNX stockholders, respectively;

 

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the loss of CNXM’s status as a partnership for U.S. federal income tax purposes;

 

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the possibility that financial projections by CNX and CNXM may not prove to be reflective of actual future results;

 

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the different rights associated with owning shares of CNX Common Stock rather than CNXM Common Units;

 

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the risk that the market value of the CNX Common Stock will decline;

 

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the potential dilution of CNX’s earnings per share; and

 

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other business, financial operational and legal risks and uncertainties detailed from time to time in CNX’s and CNXM’s SEC filings, including, but not limited to those discussed under Part I, Item 1A, “Risk Factors” in Part I, Item 1A of CNX’s Annual Report on Form 10-K for the year ended December 31, 2019 and Part II, Item 1A of CNX’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2020 and June 30, 2020 and Part I, Item 1A of CNXM’s Annual Report on Form 10-K for the year ended December 31, 2019 and Part II, Item 1A of CNXM’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2020 and June 30, 2020, each of which are incorporated by reference into this consent statement/prospectus.

Except as otherwise required by law, neither CNX nor CNXM is under any obligation, and each expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this consent statement/prospectus are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date such statement is made.

 

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INFORMATION ABOUT THE COMPANIES

CNX Resources Corporation

Headquartered in Canonsburg, Pennsylvania and incorporated in Delaware in 1991, CNX is a premier independent oil and gas company focused on the exploration, development, production, gathering, processing and acquisition of natural gas properties primarily in the Appalachian Basin. CNX’s operations are centered on unconventional shale formations, primarily the Marcellus Shale and Utica Shale.

CNX currently operates, develops and explores for natural gas in Appalachia (Pennsylvania, West Virginia, Ohio, and Virginia). CNX’s primary focus is the continued development of its Marcellus Shale acreage and delineation and development of its unique Utica Shale acreage and stacked pay opportunity set. Over the past ten years, CNX’s natural gas production has grown by approximately 471% to produce a total of 539.1 net Bcfe in 2019. CNX’s land holdings in the Marcellus and Utica Shale plays cover large areas, provide multi-year drilling opportunities and, collectively, have sustainable lower-risk growth profiles. CNX controls approximately 519,000 net acres in the Marcellus Shale and approximately 608,000 net acres that have Utica Shale potential in Ohio, West Virginia, and Pennsylvania. CNX also has approximately 2.4 million net acres in its coalbed methane play.

CNX’s wholly owned subsidiary, CNX Gathering, which owns the general partner of and a limited partner interest in CNXM, which was formed to own, operate, and develop midstream energy assets to service CNX and third-party production, drilling, and completion activities under long-term service contracts.

CNX Common Stock is listed on the NYSE under the symbol “CNX.”

Additional information about CNX is included in the documents incorporated by reference into this consent statement/prospectus. See the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

CNX’s principal executive offices are located at 1000 CONSOL Energy Drive, Suite 400, Canonsburg, Pennsylvania 15317-6506, and its telephone number is (724) 485-4000.

CNXM Midstream Partners LP and CNXM Midstream GP LLC

CNXM is a Delaware limited partnership formed in May 2014 as a joint venture between CNX and Noble. In 2018, CNX acquired Noble’s 50% interest in CNXM and became CNXM’s sole sponsor.

CNXM is a growth-oriented master limited partnership (“MLP”) focused on the ownership, operation, development and acquisition of midstream energy infrastructure in the Appalachian Basin. CNXM currently provide midstream services to its customers’ production in the Marcellus Shale and Utica Shale in Pennsylvania and West Virginia under long-term, fixed-fee contracts. CNXM’s assets include natural gas gathering pipelines and compression and dehydration facilities, as well as condensate gathering, collection, separation and stabilization facilities. CNXM is managed by the General Partner, a wholly-owned subsidiary of CNX Gathering. CNX Gathering is a wholly owned subsidiary of CNX.

CNXM generates substantially all of its revenues under long-term, fixed-fee gathering agreements with each of CNX and HG Energy II Appalachia, LLC that are intended to mitigate its direct commodity price exposure and enhance the stability of its cash flows. The gathering agreements currently include acreage dedications of approximately 363,000 aggregate net acres, comprised of approximately 262,000 Marcellus acres and approximately 101,000 Utica acres, subject to the release provisions set forth in its gas gathering agreements.

CNXM Common Units are listed on the NYSE under the symbol “CNXM.”

 

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Additional information about CNXM is included in the documents incorporated by reference into this consent statement/prospectus. See the section entitled “Where You Can Find More Information” beginning on page 108 of this consent statement/prospectus.

CNXM Midstream GP LLC is the general partner of CNXM. Its board of directors and executive officers manage CNXM. The General Partner is indirectly wholly owned by CNX through CNX Gathering.

CNXM’s and the General Partner’s principal executive offices are located at 1000 CONSOL Energy Drive, Suite 400, Canonsburg, Pennsylvania 15317-6506, and its telephone number is (724) 485-4000.

CNX Resources Holdings LLC

Merger Sub is a Delaware limited liability company and a wholly owned subsidiary of CNX. Merger Sub was formed on July 24, 2020 solely for the purpose of consummating a merger with CNXM and has no operating assets. Merger Sub has not carried on any activities to date except for activities incidental to its formation and activities undertaken in connection with a potential merger with CNXM.

Merger Sub’s principal executive offices are located at 1000 CONSOL Energy Drive, Suite 400, Canonsburg, Pennsylvania 15317-6506, and its telephone number is (724) 485-4000.

 

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WRITTEN CONSENTS OF CNXM LIMITED PARTNERS

CNXM Limited Partner Interests Entitled to Consent and Consent Required

Only CNXM Limited Partners of record at the close of business on the Record Date will be notified of and be entitled to execute and deliver a written consent with respect to the Merger Agreement and the Merger. The approval of the Merger Agreement and the Merger by CNXM requires the affirmative vote or consent of a majority of the outstanding CNXM Limited Partner Interests.

Pursuant to the terms of the Support Agreement, CNX Gas and Holdings have irrevocably and unconditionally agreed to deliver the Support Written Consents within two business days following the effectiveness of the registration statement of which this consent statement/prospectus forms a part. As of the Record Date, CNX Gas beneficially owned 46,794,206 CNXM Common Units and Holdings beneficially owned 897,992 CNXM Common Units, which collectively represent approximately 51.4% of the outstanding CNXM Limited Partner Interests. Accordingly, the delivery of the Support Written Consents will be sufficient to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, on behalf of the CNXM Limited Partners.

Submission of Consents

CNXM Limited Partners of record at the close of business on the Record Date may consent to the approval of the Merger Agreement and the Merger with respect to their CNXM Limited Partner Interests by completing, dating and signing the written consent furnished with this consent statement/prospectus and returning it in the postage-paid envelope CNXM provides or by mailing the written consent to CNX Midstream Partners LP, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717, or by submitting a written consent online by visiting proxyvote.com and following the instructions described therein. If you do not return your written consent, it will have the same effect as a vote against the approval of the Merger Agreement and the transactions contemplated thereby, including the Merger.

Upon the later of (i) 11:59 p.m. (Eastern Time) on September 25, 2020 and (ii) the date on which a sufficient number of consents to approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger, have been delivered to Broadridge, the consent process will conclude. The delivery of the Support Written Consents will be sufficient to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, on behalf of the CNXM Limited Partners.

Revocation of Consents

You may revoke or change your consent by mailing a notice of revocation or a new written consent with a later date to CNX Midstream Partners LP, c/o Broadridge, 51 Mercedes Way, Edgewood, New York 11717, or by submitting a new written consent online by visiting proxyvote.com and following the instructions described therein, in each case, that is received by the later of (i) 11:59 p.m. (Eastern Time) on September 25, 2020 and (ii) the date on which the consents of a sufficient number of CNXM Limited Partner Interests to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, have been delivered to Broadridge.

Expenses

CNX and CNXM will each pay one-half of the cost of printing and mailing these consent materials to the CNXM Limited Partners.

 

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THE MERGER

General

On July 26, 2020, CNX, Merger Sub, CNXM and the General Partner entered into the Merger Agreement pursuant to which Merger Sub will merge with and into CNXM, with CNXM surviving as a wholly owned subsidiary of CNX.

Pursuant to the Merger Agreement, each outstanding CNXM Public Common Unit immediately prior to the Effective Time will be converted into the right to receive the Merger Consideration, and each such CNXM Public Common Unit will cease to be outstanding and will automatically be canceled and will cease to exist. No fractional shares of CNX Common Stock will be issued in the Merger. Instead of receiving any fractions of a share of CNX Common Stock, all fractions of shares of CNX Common Stock to which a holder of CNXM Public Common Units would otherwise have been entitled shall be aggregated and the resulting fraction will be rounded up to the nearest whole share of CNX Common Stock.

Upon completion of the Merger, (i) the CNXM Public Common Units outstanding immediately prior to the Effective Time will be converted into the right to receive the Merger Consideration; and (ii) (x) each Partnership LTIP Award (other than the Director LTIP Awards), whether or not vested, that is outstanding immediately prior to the Effective Time, will cease to relate to or represent any right to receive CNXM Common Units and will be converted into an equivalent award of restricted stock units relating to CNX Common Stock on the same terms and conditions as were applicable to the corresponding Partnership LTIP Award, including any applicable payment timing provisions and dividend equivalent rights, as applicable, subject to the terms of the Merger Agreement and (y) each Director LTIP Award will become fully vested and will be automatically converted into the right to receive, with respect to each CNXM Common Unit subject thereto, the Merger Consideration (plus any accrued but unpaid amounts in relation to distribution equivalent rights). Except for the CNXM Class B units, which shall automatically be canceled immediately prior to the Effective Time for no consideration in accordance with the Partnership Agreement, the interests in CNXM owned by CNX and its subsidiaries will remain outstanding as limited partner interests in the surviving entity. The General Partner will continue to own the non-economic general partner interest in the surviving entity.

The approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by CNXM requires the affirmative vote or written consent of the holders of a majority of the outstanding CNXM Limited Partner Interests.

Pursuant to the terms of the Support Agreement, CNX Gas and Holdings have irrevocably and unconditionally agreed to deliver the Support Written Consents within two business days following the effectiveness of the registration statement of which this consent statement/prospectus forms a part. As of the Record Date, CNX Gas beneficially owned 46,794,206 CNXM Common Units and Holdings beneficially owned 897,992 CNXM Common Units, which collectively represent approximately 51.4% of the outstanding CNXM Limited Partner Interests. Accordingly, the delivery of the Support Written Consents will be sufficient to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, on behalf of the CNXM Limited Partners.

CNX’s Ownership Interest in and Control of CNXM

CNXM Limited Partners should be aware that CNXM is controlled by CNX through CNX’s 100% indirect ownership of the General Partner. The General Partner owns all of the outstanding general partner interests in CNXM. As a result, CNX appoints the members of the GP Board and thereby could be seen as controlling all of CNXM’s decisions, other than those involving certain conflicts of interest with CNX or that require an affirmative vote of holders of the limited partner interests in CNXM pursuant to and in the percentages specified by the Partnership Agreement. In addition, as of the Record Date, CNX, through its ownership of CNX Gas and Holdings, owned approximately 53.1% of the outstanding CNXM Common Units and all of the outstanding CNXM Class B units.

 

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Certain persons associated with CNX have a relationship with CNXM.

 

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Nicholas J. DeIuliis, who serves as Chairman of the GP Board and as Chief Executive Officer of the General Partner, also serves as a Director of the CNX Board and the President and Chief Executive Officer of CNX.

 

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Donald W. Rush, who serves as a Director on the GP Board and as Chief Financial Officer of the General Partner, also serves as the Chief Financial Officer of CNX.

 

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Chad A. Griffith, who serves as a Director on the GP Board and as the President and Chief Operating Officer of the General Partner, also serves as Chief Operating Officer of CNX.

 

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Hayley F. Scott, who serves as a Director of the General Partner, also serves as Vice President, Financial Planning and Analysis of CNX.

 

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Jason L. Mumford, who serves as Chief Accounting Officer of the General Partner, also serves as the Vice President-SEC Financial Reporting and Controller of CNX.

Background of the Merger

As part of their ongoing evaluation of CNX and CNXM, the CNX Board and the GP Board and management of both entities regularly review operational and strategic opportunities to increase value for CNX’s and CNXM’s respective investors. In connection with their regular review of operational and strategic opportunities, the CNX Board and the GP Board considered the external environment for MLPs generally and CNXM specifically, including, without limitation:

 

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growing investor preference for larger, diversified midstream companies and the increasing dominance of those companies as a proportion of the midstream sector’s aggregate market capitalization;

 

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a coincident decline of MLPs as a proportion of the midstream sector;

 

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limited access to liquidity in midstream capital markets, including the general inaccessibility of equity capital markets and the growing inaccessibility of debt capital markets for non-investment grade companies;

 

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the effects of regulatory reform, including the passage of the Tax Cuts and Jobs Act of 2017, which lowered the U.S. federal corporate income tax rate from 35% to 21% and thereby reduced the tax benefits of the MLP pass-through structure; and

 

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the perceived effects of such market dynamics on the trading prices for CNX Common Stock and CNXM Common Units.

These market trends have led to numerous transactions involving MLPs, including buy-ins of MLPs by their corporate sponsors, acquisition of MLPs by third parties, conversions of MLPs to corporations for income tax and state law purposes and simplifications of MLPs in which incentive distribution rights are modified or eliminated to improve the MLP’s cost of capital. These trends have resulted in a significant reduction in the number of outstanding MLPs and a greater reduction in the number of outstanding MLPs with incentive distribution rights.

With this market backdrop and in an effort to reduce CNXM’s cost of capital, further align CNX’s equity interest with CNXM Common Unitholders and respond to market trends that disfavored MLPs with incentive distribution rights, on January 29, 2020, following extensive negotiation between CNX and the CNXM Conflicts Committee, which was assisted by independent legal and financial advisors, CNXM, the General Partner and CNX Gas, a wholly owned subsidiary of CNX and the owner of the General Partner, entered into an exchange agreement to effect an IDR simplification transaction (the “IDR Transaction”). As part of the IDR Transaction, CNX Gas and the General Partner agreed to the cancellation of all of the incentive distribution rights in CNXM and the conversion of the economic portion of the general partner interest in CNXM to a non-economic general

 

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partner interest. In exchange, CNXM issued to CNX Gas 26 million newly issued CNXM Common Units and 3 million newly issued Class B units, which units were not entitled to receive distributions and would automatically convert into CNXM Common Units on a one-for-one basis on January 1, 2022, and agreed to pay CNX Gas an aggregate cash amount of $135.0 million, payable in installments of $50.0 million due December 31, 2020, $50.0 million due December 31, 2021 and $35.0 million due December 31, 2022.

In addition to the accelerating market transition away from the MLP structure, CNXM faced a number of major macroeconomic events arising after the IDR Transaction that adversely impacted the oil and gas industry, exacerbating the challenges facing MLPs generally and CNXM specifically. These events included: the COVID-19 pandemic and its drastic adverse impact on consumer demand for oil and gas and refined products; the oil price war between the Organization of the Petroleum Exporting Countries and Russia (“OPEC+”) that began in March 2020 and the intensified dislocation in supply and demand for oil; and general uncertainty in global capital markets. These events resulted in an extended lack of access to capital through the debt and equity capital markets, a significant decline in the trading price of CNXM’s senior notes and CNXM Common Units, and the collapse of oil, NGL and natural gas prices due to the oversupply and lack of storage for the commodities ultimately leading to a temporary negative price of oil. These events also intensified financial and operational challenges facing oil and gas producers, increasing the risk of shut-ins and bankruptcies in the upstream sector, and magnified the limitations of the MLP model, particularly with respect to non-investment grade MLPs that rely primarily on a single upstream sponsor for commercial and dropdown opportunities.

In light of these events, at a regular meeting of the GP Board on March 6, 2020, the GP Board directed management to establish a proactive approach to capital allocation and managing leverage risk and to provide regular updates to the GP Board regarding the COVID-19 pandemic and its impact on CNXM’s business. On March 17, 2020, CNXM announced, in response to the uncertainty surrounding the global macroeconomic environment, oil and gas markets, debt and equity capital markets and the continued impact of the COVID-19 pandemic, that it was re-evaluating its capital allocation opportunities.

From mid-March through late April 2020, consistent with the GP Board’s directive, management provided regular updates to the GP Board regarding, among other things:

 

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CNXM’s response to the COVID-19 pandemic and its impact on the operations of CNXM and its customers;

 

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the declining performance of global capital markets, oil and gas futures and the debt and equity securities of CNXM and its peers;

 

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the increasing risk of shut-in activity, volume curtailments and bankruptcy facing oil and gas producers;

 

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the reduction of volumes on CNXM’s systems commencing in March 2020 as a result of low commodity prices and downstream NGL constraints that curtailed physical deliveries;

 

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suspensions of customer development activity that resulted in volume deferrals;

 

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the potential impact of shut-in activity on CNXM’s financial condition, business and ability to make distributions to the CNXM Unitholders;

 

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the risk that CNXM may exceed the maximum leverage ratio set forth in its revolving credit facility in future periods in the event of prolonged customer shut-ins and volume deferrals, particularly if CNXM were to preserve its historical cash distribution level;

 

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the rising yield on CNXM’s senior notes and the need for CNXM to retain cash and self-fund in light of an expected inability to obtain external financing; increasing investor focus on diversified commercial arrangements, investment-grade credit ratings, free cash flow, lower leverage and balance sheet preservation;

 

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the financial and operational performance of CNX and CNXM during the first quarter of 2020; and

 

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the effects of the COVID-19 pandemic, the OPEC+ price war and deteriorating market conditions on the midstream sector, including significant distribution cuts, capital expenditure reductions among MLPs generally and several of CNXM’s peers specifically from mid-March through late April 2020 and downward pressure on prices amid concerns over available storage capacity for refined products such as crude, and refinery inputs including condensate, c5+ and butane.

Ultimately, due to the confluence of these factors, the GP Board determined, and on April 27, 2020 announced, a reduction in the regular quarterly distribution to holders of CNXM Common Units by 80% (from $0.4143 per CNXM Common Unit for the quarter ended December 31, 2019 to $0.0829 per CNXM Common Unit for the quarter ended March 31, 2020) and a reduction in planned capital expenditures for 2020 by 16%. These decisions were made to bolster CNXM’s balance sheet, enhance CNXM’s liquidity position and create long-term financial flexibility. Throughout this period, CNX also consulted with various outside financial advisors, including Citigroup Global Markets Inc. (“Citi”), regarding CNXM’s capital allocation priorities, the challenges facing the MLP market, macroeconomic factors impacting the oil and gas industry and the uncertain effects of the COVID-19 pandemic, a substantial contraction of global gross domestic product and increasing unemployment on the midstream sector’s ability to return to normal operating conditions.

On May 6, 2020, at a regularly scheduled meeting of the CNX Board attended by management and representatives of Latham & Watkins LLP (“Latham”), CNX’s legal advisor, and Citi, management provided an overview to the CNX Board of: recent and growing challenges to the oil and natural gas industry, including the substantial decline in recent oil and natural gas prices as a result of the COVID-19 pandemic and OPEC+ price war; the impact of the COVID-19 pandemic on the businesses of CNX and CNXM and CNX’s response to the pandemic; and CNX’s continuing need to address the growing challenges associated with the MLP market and its investment in CNXM. As part of this discussion, the CNX Board reviewed the current status of shut-in activity in the oil and gas market, noting the dramatic decline in demand for natural resources, as reflected in historically low commodity prices, and the impact of shut-in and bankruptcy risk on the sector. The CNX Board also discussed the historical financial performance of CNX and CNXM. Citi discussed with the CNX Board the then-current state of the energy markets, the implications of market conditions and midstream trends on CNXM’s business, the challenges facing the MLP model (and the effect of the COVID-19 pandemic in exacerbating these challenges) and several strategic options with respect to CNXM, including potential merits and certain considerations of an acquisition transaction relative to full or partial monetization transactions involving third-party sponsors and possible transaction structures for such an acquisition transaction. Latham then reviewed the preliminary benefits, considerations and processes associated with potential transaction structures. In addition, Latham reviewed with the CNX Board the fiduciary duties and responsibilities of directors in connection with the alternatives discussed. After discussion, the CNX Board directed management, among other things, to further evaluate, with the assistance of CNX’s legal and financial advisors, the potential acquisition of all of the outstanding publicly held CNXM Common Units. Throughout May 2020, management, with the assistance of CNX’s outside advisors, continued to evaluate the rationale, benefits and considerations of a potential transaction, including alternative structures to effect the transaction and the relative performance of CNX Common Stock and CNXM Common Units.

On May 26, 2020, at a special meeting of the CNX Board, management provided the CNX Board with its perspectives regarding a potential acquisition of all of the outstanding publicly held CNXM Common Units. Among other things, management reviewed with the CNX Board certain illustrative combination scenarios with respect to CNXM and provided an overview of: the initial financial and strategic rationale for, and the potential benefits to CNX and CNXM of, a combination transaction, including the positive impact on cash flows, reduced combined cost of capital, improved credit metrics, lower production costs and other benefits; and the potential risks to CNX and CNXM associated with a combination, including the dilution associated with issuing CNX Common Stock in the proposed transaction, the tax consequences of the proposed transaction, the allocation of resources toward effecting a transaction and other considerations. Management also discussed with the CNX

 

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Board, among other things, recent midstream simplification transactions, the implications of the COVID-19 pandemic and other recent macroeconomic events on the single sponsor MLP model, potential structures for, and the types of consideration that may be provided as part of, the potential transaction, potential approvals, including by CNXM Unitholders, that may be required to consummate such transaction and potential market reactions to a combination transaction. The CNX Board recommended that management continue to evaluate a potential transaction with the assistance of CNX’s outside advisors, including further evaluating the rationale for, and preliminary terms of, a potential transaction with CNXM.

That same day, at a special meeting of the GP Board, management provided the GP Board with a summary of the state of the midstream energy markets. Among other things, management reviewed the evolution of the broader MLP market, including the overall contraction and concentration of the MLP market in favor of larger, more diversified midstream companies with diversified assets and commercial arrangements less dependent on a single sponsor. Management reviewed the potential benefits to CNXM of a combination transaction, including the improved cost of capital, trading liquidity and market capitalization of the combined company, and the ability for CNXM Unitholders to participate in the upside of the combined company through an all-equity transaction, as well as the potential risks to CNXM of a combination transaction. Management also reviewed with the GP Board the relative values of CNX and CNXM, as well as precedent roll-up transactions and the associated premiums paid in such transactions. The GP Board noted that if a transaction were to be considered, it would be advisable for the GP Board to defer further evaluation of a potential transaction to a conflicts committee of the GP Board consisting solely of independent directors, comprising Raymond T. Betler, John E. Jackson and John A. Maher, in the event CNX made a proposal to CNXM and to permit the CNXM Conflicts Committee to engage independent legal and financial advisors.

On May 27, 2020, Mr. Jackson held a teleconference with management to discuss the process for formally engaging the CNXM Conflicts Committee and the process for the CNXM Conflicts Committee to engage outside advisors on its behalf in the event a transaction involving a potential conflict of interest arose. Following the discussion, Mr. Jackson, on behalf of the CNXM Conflicts Committee, contacted representatives of Baker Botts L.L.P. (“Baker Botts”) to discuss engaging Baker Botts as legal counsel to represent the CNXM Conflicts Committee in connection with considering various alternatives, including a potential transaction involving the acquisition by CNX of the CNXM Public Common Units. The CNXM Conflicts Committee engaged Baker Botts because of Baker Botts’ knowledge, expertise and experience with respect to public merger and acquisition transactions and conflicts committee engagements and because of Baker Botts’ performance during prior representations of the CNXM Conflicts Committee, including with respect to prior drop-down transactions and the IDR Transaction.

Throughout late May and early June 2020, CNX continued to evaluate a potential combination involving CNX and CNXM with the assistance of CNX’s legal and financial advisors, including further evaluation of the potential benefits, considerations and processes associated with such a transaction.

On June 1, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts to discuss preliminary considerations with respect to a potential transaction (among various alternatives being considered), including the process for evaluating financial models from CNX management and for analyzing the expected tax impacts of the potential transaction on the CNXM Public Unitholders. Representatives of Baker Botts and the CNXM Conflicts Committee discussed the engagement of an independent financial advisor that would assist the CNXM Conflicts Committee in its evaluation of the potential transaction. The members of the CNXM Conflicts Committee determined to interview several potential financial advisors. During the meeting, representatives of Baker Botts delivered a presentation to the CNXM Conflicts Committee providing an overview of the process by which the GP Board would authorize the CNXM Conflicts Committee to evaluate a potential transaction. Representatives of Baker Botts also reviewed with the CNXM Conflicts Committee its duties under the CNXM Partnership Agreement and applicable law with respect to the potential transaction and engaged in a discussion of such duties with the directors.

 

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Between June 10, 2020 and June 12, 2020, the CNXM Conflicts Committee and representatives from Baker Botts interviewed representatives from Intrepid Partners, LLC (“Intrepid”) and other leading investment banks, each with significant experience advising midstream MLPs in similar transactions, as well as deep technical capabilities for evaluating upstream oil and gas assets like those of CNX. After deliberation, the CNXM Conflicts Committee determined to engage Intrepid, subject to the successful negotiation of the terms of that engagement. The CNXM Conflicts Committee selected Intrepid to act as its financial advisor on the basis of Intrepid’s qualifications and expertise, knowledge of the oil and gas industry, reputation in the investment community, independence, and experience in transactions similar to the transactions described in the Merger Agreement, as well as familiarity with CNXM and its business. An engagement letter detailing the terms of Intrepid’s engagement was executed on July 11, 2020, after the CNXM Conflicts Committee, with Baker Botts’ assistance, had reviewed and negotiated acceptable terms thereof.

On June 15, 2020, management of CNX and the General Partner, consistent with the directives of the CNX Board and in order to provide adequate time for the CNXM Conflicts Committee to engage advisors, informed the GP Board that CNX was considering proposing that CNX, or a wholly owned subsidiary of CNX, acquire all of the outstanding publicly-held CNXM Common Units through a merger of CNXM with a wholly owned subsidiary of CNX (the “Proposed Transaction”), and the delivery of such a proposal to the CNXM Conflicts Committee in respect of the Proposed Transaction could be forthcoming.

Later on June 15, 2020, at a special meeting of the GP Board, the members of the GP Board adopted resolutions confirming Messrs. Betler, Jackson and Maher as members of the CNXM Conflicts Committee in accordance with the Partnership Agreement and authorizing the CNXM Conflicts Committee to: (i) consider, review, evaluate and analyze any potential conflicts of interest arising in connection with the Proposed Transaction and related arrangements; (ii) consider, review, evaluate and analyze the terms and conditions of the Proposed Transaction and related arrangements on behalf of CNXM and the CNXM Public Unitholders; (iii) negotiate the terms and conditions of the Proposed Transaction and related arrangements; (iv) determine whether the Proposed Transaction and related arrangements are advisable and in the best interests of CNXM and the CNXM Public Unitholders; and (v) determine whether to approve, and to recommend that the GP Board approve, the Proposed Transaction and related arrangements, with any such approvals constituting “Special Approval” for all purposes under the Partnership Agreement. Such authorization also ratified any actions previously taken by the CNXM Conflicts Committee in connection with the process.

In addition, on June 15, 2020, management provided to the CNX Board an initial proposal (the “Initial Proposal”) to be sent to the CNXM Conflicts Committee setting forth the terms of the Proposed Transaction between CNXM and a wholly owned subsidiary of CNX pursuant to which CNXM would become a wholly owned subsidiary of CNX in an all-equity, share-for-unit exchange at an exchange ratio of 0.800 of a share of CNX Common Stock for each outstanding publicly held CNXM Common Unit, which represented an approximate 4.5% premium based on closing prices on June 12, 2020, an approximate 14.9% premium based on the 30-day trailing volume-weighted average market prices, and an approximate 6.8% discount based on the 60-day trailing volume-weighted average market prices. The CNX Board unanimously authorized management to submit a non-binding letter to the CNXM Conflicts Committee setting forth the Initial Proposal and to work with CNX’s outside advisors to further review and prepare documentation in respect of the Proposed Transaction.

On June 16, 2020, Donald W. Rush, the Chief Financial Officer of CNX, on behalf of the CNX Board, submitted the Initial Proposal in writing to the CNXM Conflicts Committee. Later that day, in accordance with the directives of CNX, representatives of Citi contacted representatives of Intrepid to discuss the Initial Proposal.

On June 18, 2020, a special meeting of the CNXM Conflicts Committee was held, attended by management, the CNXM Conflicts Committee’s legal and financial advisors and CNX’s legal and financial advisors, at which management discussed with the CNXM Conflicts Committee the Proposed Transaction. Among other things, management reviewed a summary of the Initial Proposal with the GP Board and its outside advisors, as well as

 

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the CNXM Conflicts Committee and its outside advisors, and explained the strategic rationale for the Proposed Transaction, including increased combined cash flows, a lower combined cost of capital, credit accretion, a reduction in production costs, a simplified organizational structure and corporate governance for CNXM Unitholders and other strategic considerations. During the discussion, management also reviewed CNXM’s financial performance and unit price and the challenges facing the MLP model and midstream sector, which had been exacerbated as a result of the COVID-19 pandemic. In addition, management reviewed with the GP Board standalone financial forecasts for each of CNX and CNXM through 2026 and the expected benefits of the Proposed Transaction to the combined company as well as the potential risks of the Proposed Transaction to the combined company. During the meeting, representatives of CNX management noted that CNX did not anticipate future drop downs or other acquisition opportunities involving CNXM, among other reasons, because of CNXM’s inability to access the equity capital markets, the yield on CNXM senior notes and the disadvantages associated with CNXM’s cost of capital relative to CNX’s cost of capital to fund continued development of midstream assets. During the course of the meeting, members of the CNXM Conflicts Committee and representatives of Intrepid asked questions regarding the Proposed Transaction and the Initial Proposal.

On June 19, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid to discuss (i) the Initial Proposal, (ii) the presentation that the CNXM Conflicts Committee had received from CNX management on June 18, 2020 and (iii) anticipated information to be provided by CNX management for the CNXM Conflicts Committee’s review and evaluation of the Proposed Transaction. Later that day, at the request of the CNXM Conflicts Committee, Intrepid provided an initial information request to CNX management.

In addition, on June 19, 2020, at CNX’s direction, representatives of Citi delivered to representatives of Intrepid CNX’s financial projections for each of CNX and CNXM as of that date.

On June 22, 2020, at a special meeting of the CNX Board, management provided an update to the CNX Board with respect to the delivery of the Initial Proposal and the session held with the CNXM Conflicts Committee on June 18, 2020. At the direction of the CNX Board, throughout late June and July 2020, management continued to evaluate the Proposed Transaction with the assistance of CNX’s legal and financial advisors, including preparing draft documentation with respect to the Proposed Transaction.

Throughout this period, management, together with CNX’s legal and financial advisors, held various discussions with the CNXM Conflicts Committee and its legal and financial advisors. As part of these discussions, on June 24, 2020, the CNXM Conflicts Committee, together with its legal and financial advisors, held a due diligence call with management, which also was attended by CNX’s outside advisors, regarding financial, operational, legal and other matters involving CNX and CNXM. Also on June 24, 2020, CNX opened a virtual data room and granted access to the CNXM Conflicts Committee and its advisors.

On June 29, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid regarding Intrepid’s due diligence efforts to date and various valuation considerations in connection with the Initial Proposal. In addition, at the CNXM Conflicts Committee’s direction, Intrepid relayed to Citi the CNXM Conflicts Committee’s request that CNX management prepare projections reflecting different commodity price levels and drilling scenarios (the “sensitivity cases”) to assist the CNXM Conflicts Committee in fully understanding the operational and financial implications to CNX and CNXM if both companies remained stand-alone entities. Please read “The Merger—Unaudited Financial Projections of CNX and CNXM” beginning on page 47 for a discussion of the sensitivity cases.

Later that day, representatives of Baker Botts sent a due diligence request to CNX enumerating the various materials requested in connection with its review and evaluation of the Proposed Transaction. Intrepid and Baker Botts continued their ongoing financial and legal analyses, respectively, and due diligence review of the Proposed Transaction.

 

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On July 6, 2020, in accordance with the directives of CNX, Citi sent to Intrepid the financial projections prepared by CNX’s and the General Partner’s management reflecting the sensitivity cases (consisting of two upside cases and one downside case) that had been requested by the CNXM Conflicts Committee. See “The Merger—Unaudited Financial Projections of CNX and CNXM.”

On July 7, 2020 and again on July 13, 2020, Baker Botts conducted a legal due diligence call with management and Latham regarding pending litigation matters and the potential exposure to CNX and CNXM. In addition, on July 9, 2020, the CNXM Conflicts Committee and Intrepid conducted a financial due diligence update call with CNX, which call also was attended by CNX’s financial advisor.

On July 10, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid during which Intrepid presented materials regarding its preliminary financial analysis of the Initial Proposal. During the presentation, Intrepid provided, among other things, (i) a summary of the terms of the Proposed Transaction, (ii) a situational analysis for each of CNX and CNXM, (iii) a summary of both the CNX and CNXM projections, including the underlying assumptions, and (iv) detailed financial analyses of CNX and CNXM, including a review of comparable public transactions, discounted cash flow analysis, public trading comparables analysis, premiums paid analysis and illustrative contribution analysis. Representatives of Intrepid then described, for the benefit of the CNXM Conflicts Committee, the significance of each valuation analysis method. Intrepid also presented preliminary analyses relating to the sensitivity cases, but noted that its analyses were incomplete due to outstanding information requests. During the presentation, the CNXM Conflicts Committee asked, and representatives of Intrepid answered, questions with respect to Intrepid’s financial analyses. Following additional discussion, the CNXM Conflicts Committee agreed that it would wait to finalize a response to the Initial Proposal until (i) Intrepid had received responses to its outstanding information requests and updated the CNXM Conflicts Committee on the sensitivity cases and (ii) Baker Botts had presented to the CNXM Conflicts Committee on the tax consequences of the Proposed Transaction and the results of its legal due diligence review.

On July 14, 2020, the CNXM Conflicts Committee met with representatives of Intrepid and Baker Botts so that the CNXM Conflicts Committee could receive Intrepid’s updated financial analyses and an update on Baker Botts’ due diligence progress. Intrepid discussed its updated financial analyses, including (i) an overview of CNX’s development locations in the various sensitivity cases that Intrepid had requested from CNX and (ii) illustrative contribution analyses for the various sensitivity cases. Baker Botts then discussed with the CNXM Conflicts Committee its review of legal matters. The CNXM Conflicts Committee discussed potential next steps, including delivering a response to CNX’s Initial Proposal.

On July 15, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid during which Baker Botts presented materials regarding the anticipated tax consequences of the Proposed Transaction and the CNXM Conflicts Committee gave further consideration to CNX’s Initial Proposal. Following additional discussion with Baker Botts and Intrepid, the CNXM Conflicts Committee agreed that it would deliver a counterproposal to CNX’s Initial Proposal that reflected an exchange ratio of 1.000x.

Later that day, representatives of Baker Botts provided a supplemental legal due diligence request list to CNX requesting additional materials in connection with its review and evaluation of the Proposed Transaction. Intrepid and Baker Botts continued their ongoing financial and legal analyses, respectively.

On July 16, 2020, Mr. Jackson, on behalf of the CNXM Conflicts Committee, sent a letter to Mr. Rush at CNX setting forth the terms of the CNXM Conflicts Committee’s counterproposal to the Initial Proposal (the “Initial Response”). The Initial Response provided for a revised exchange ratio with respect to the Proposed Transaction of 1.000 share of CNX Common Stock for each publicly held CNXM Common Unit. Shortly thereafter, Mr. Rush called Mr. Jackson to discuss the Initial Response, and, at the request of the CNXM Conflicts Committee and CNX, representatives of Intrepid and Citi separately discussed the Initial Response and CNX management’s initial reactions thereto.

 

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In addition, later on July 16, 2020, Latham, on behalf of CNX, distributed a draft of the Merger Agreement to Baker Botts. The draft Merger Agreement, among other things: (i) provided that the obligations of CNX and CNXM to consummate the Merger would be conditioned on, among other things, obtaining the approval of the holders of a majority of the outstanding CNXM Common Units (including CNXM Common Units owned by the General Partner and its affiliates) and Class B units, voting as a single class, but did not provide for a separate “majority of the minority” vote by the CNXM Public Unitholders; (ii) included substantially reciprocal representations and warranties; (iii) included substantially reciprocal restrictions on each party’s business during the period between execution of the Merger Agreement and Closing; (iv) included a “fiduciary out” provision, applicable if CNX was required to obtain the support of CNX stockholders, that would permit the CNX Board to change its recommendation to approve the Merger and the Merger Agreement if the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to CNX stockholders under applicable law; (v) provided for expense reimbursement and a termination fee under specified circumstances; and (vi) specified that CNXM’s quarterly distribution with respect to any quarter concluded prior to Closing would be subject to a cap in an amount to be determined.

On July 20, 2020, at a special meeting of the CNX Board, management provided an update to the CNX Board regarding the Proposed Transaction, including the status of ongoing discussions with the CNXM Conflicts Committee and its advisors, a summary of the Initial Response, an overview of the relative price performance of CNX Common Stock and CNXM Common Units and a potential response to the CNXM Conflicts Committee. Citi discussed with the CNX Board financial matters relating to the Proposed Transaction. After discussion, the CNX Board authorized management to propose a revised exchange ratio with respect to the Proposed Transaction of 0.85 of a share of CNX Common Stock for each publicly held CNXM Common Unit (the “July 20 Proposal”). Later that day, Mr. Rush, at the request of the CNX Board, submitted the July 20 Proposal to Mr. Jackson.

Also on July 20, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts to discuss the proposed Merger Agreement and to develop an issues list regarding the Merger Agreement that would be communicated to CNX and Latham. Baker Botts and the CNXM Conflicts Committee discussed the value of including a majority of the minority voting requirement in the draft Merger Agreement, which would require separate approval of the Proposed Transaction by the affirmative vote of a majority of the CNXM Common Units held by CNXM Public Unitholders. Baker Botts and the CNXM Conflicts Committee agreed that, unless CNX was willing to increase the exchange ratio proposed in the Initial Proposal, a majority of the minority voting requirement was important to the CNXM Conflicts Committee. Following further discussion, the CNXM Conflicts Committee authorized Baker Botts to communicate to CNX its desire that the Merger Agreement: (i) contain a majority of the minority voting requirement, (ii) include a “fiduciary out” provision in connection with the GP Board’s recommendation that CNXM unitholders vote in favor of the Proposed Transaction (in connection with the majority of the minority voting requirement), (iii) provide sufficient flexibility for CNXM to make certain capital expenditures or make loans or incur or refinance debt prior to Closing and (iv) provide for additional representations by CNX regarding its business and operations.

Later on July 20, 2020, Baker Botts, Latham and representatives of CNX discussed the issues presented by the CNXM Conflicts Committee with regard to the proposed Merger Agreement. Later that evening, Latham sent an initial draft of the Support Agreement contemplated by the Merger Agreement to Baker Botts, pursuant to which CNX would commit to vote its CNXM Common Units in favor of the Merger Agreement and the Merger, and CNX, Latham and Baker Botts continued to negotiate the issues with respect to the Merger Agreement that Baker Botts revised on behalf of the CNXM Conflicts Committee.

On the morning of July 21, 2020, at the request of the CNXM Conflicts Committee and CNX, representatives of Intrepid and Citi participated in a teleconference to further discuss the July 20 Proposal.

Also on July 21, 2020, at a regularly scheduled meeting of the GP Board, management provided an update to the GP Board regarding CNXM’s operational and business performance during the second quarter of 2020, as

 

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well as the performance of CNXM’s debt and equity securities. Among other things, management noted that CNXM’s net income, adjusted EBITDA and distributable cash flow had declined approximately 28%, 18% and 21%, respectively, compared to the first quarter of 2020, and approximately 30%, 16% and 21%, respectively, compared to the second quarter of 2019. The GP Board also reviewed the impacts of the COVID-19 pandemic and shut-ins commencing in March 2020 involving CNX and one of CNXM’s largest customers on CNXM’s business. In light of the continuing uncertainty in the global macroeconomic environment, oil and gas markets, debt and equity capital markets and the continuing adverse effects of the COVID-19 pandemic, the GP Board discussed maintaining the distribution with respect to the second quarter of 2020 consistent with the previous quarter. After discussion, the GP Board proposed reconvening prior to the anticipated distribution declaration date to determine the appropriate distribution for the second quarter of 2020.

Later that afternoon, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid to discuss the July 20 Proposal and receive updates from both advisors. Baker Botts discussed with the CNXM Conflicts Committee its discussions with Latham and representatives of CNX regarding the Merger Agreement issues. Baker Botts informed the CNXM Conflicts Committee of CNX’s strong opposition to a majority of the minority voting provision, noting that such provisions were uncommon in MLP buy-ins by corporate sponsors where a conflicts committee consisting of independent directors provided “Special Approval” under the MLP’s partnership agreement. The CNXM Conflicts Committee decided that, nonetheless, it would continue to seek such provisions unless CNX further improved the economics of its proposal for the benefit of the CNXM Public Unitholders. Representatives of Intrepid summarized for the CNXM Conflicts Committee the updated financial analyses that Intrepid had completed in connection with the July 20 Proposal. Following additional discussion, the CNXM Conflicts Committee agreed that it would deliver a counterproposal to CNX that reflected an exchange ratio of 0.950x (the “July 21 Response”). Shortly thereafter, Mr. Jackson, on behalf of the CNXM Conflicts Committee, sent Mr. Rush the July 21 Response providing for an exchange ratio of 0.950 of a share of CNX Common Stock for each publicly held CNXM Common Unit. That evening, at the request of the CNXM Conflicts Committee and CNX, representatives of Intrepid and Citi discussed the July 21 Response and CNX management’s initial reactions thereto.

That evening, Baker Botts, on behalf of the CNXM Conflicts Committee, sent revised drafts of the Merger Agreement and Support Agreement to Latham. Among other things, the revised draft of the Merger Agreement reflected: (i) the removal of certain representations and warranties applicable to CNXM and its subsidiaries; (ii) the addition of several representations and warranties relating to CNX’s business and operations; (iii) the removal of certain restrictions on the conduct of CNXM’s business prior to Closing, including restrictions on CNXM’s ability to make capital expenditures and to make loans or incur or refinance debt; (iv) the addition of certain restrictions on the conduct of CNX’s business prior to Closing, including restrictions on CNX’s ability to undertake certain strategic transactions prior to Closing; (v) the addition of a minimum cash distribution in an amount to be determined for CNXM for all quarters prior to Closing (including requiring the General Partner to designate the record date for the quarterly cash distribution related to the quarter immediately prior to the quarter in which the Closing occurs so that such record date precedes the Effective Time); (vi) the addition of a unilateral right for the CNXM Conflicts Committee to enforce CNXM’s termination right without the consent of the GP Board; and (vii) the addition of a termination fee in an amount equal to the greater of 4.0% of the transaction value and the maximum amount that could be paid without causing CNXM to fail the qualifying income test, which would be payable in the event of a change in recommendation by CNX or the failure to obtain approval from the holders of CNX Common Stock, if required, by the outside date. In addition, the draft Merger Agreement provided by Baker Botts noted that the CNXM Conflicts Committee required that (i) the Proposed Transaction be subject to a separate approval by the CNXM Public Unitholders and (ii) the CNXM Conflicts Committee have the ability to change its recommendation in the event the Proposed Transaction was submitted to a vote of CNXM Public Unitholders. Latham delivered to Baker Botts an initial draft of the disclosure schedules relating to the Merger Agreement that evening.

Later on July 21, 2020, Mr. Rush, at the request of the CNX Board, sent Mr. Jackson a letter with CNX’s revised proposal (the “July 21 Proposal”) providing for a revised exchange ratio of 0.880 shares of CNX

 

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Common Stock for each publicly held CNXM Common Unit. In the teleconference, Mr. Rush noted that CNX had significantly improved upon the Initial Proposal and was unwilling to approve an exchange ratio higher than the proposed exchange ratio of 0.880x.

On July 22, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid to discuss the July 21 Proposal. Intrepid updated the CNXM Conflicts Committee on its discussions with Citi. Representatives of Intrepid summarized for the CNXM Conflicts Committee the updated financial analyses that Intrepid had completed in connection with the July 21 Proposal. Following a discussion among the CNXM Conflicts Committee, Baker Botts and Intrepid, the CNXM Conflicts Committee authorized Intrepid to communicate to Citi a counterproposal that reflected an exchange ratio of 0.880x and requiring that CNX direct its designees to the GP Board to support, subject to the terms of the Partnership Agreement and applicable law, increasing the distribution for the quarter ended June 30, 2020 (the “Second Quarter Distribution”) by approximately $0.92 per CNXM Common Unit (for a total second quarter distribution of $1.00 per CNXM Common Unit) (the “July 22 Response”). After Intrepid delivered the July 22 Response, at the request of the CNXM Conflicts Committee and CNX, representatives of Intrepid and Citi participated in a teleconference to further discuss the July 22 Response.

In addition, on July 22, 2020 and July 23, 2020, CNX, Latham and Baker Botts continued to negotiate the Merger Agreement.

On July 23, 2020, in accordance with the CNX Board’s directives, representatives of Citi, on behalf of CNX, relayed to representatives of Intrepid CNX’s further revised proposal (the “July 23 Proposal”) reflecting the same exchange ratio set forth in the July 21 Proposal and noting that the CNX designees to the GP Board would support a Second Quarter Distribution of $0.30 per CNXM Common Unit if the GP Board determined that such distribution was in the best interests of CNXM Unitholders.

Later on July 23, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid regarding Intrepid’s discussions with Citi. Intrepid informed the CNXM Conflicts Committee of the July 23 Proposal. Representatives of Intrepid summarized for the CNXM Conflicts Committee the updated financial analyses that Intrepid had completed in connection with the July 23 Proposal. Following additional discussion, the CNXM Conflicts Committee agreed that Mr. Jackson should contact Mr. Rush, on behalf of the CNXM Conflicts Committee, to discuss the CNXM Conflicts Committee’s reactions to the July 23 Proposal and further negotiate an increase in the Second Quarter Distribution. Shortly thereafter, Mr. Jackson met with Mr. Rush to discuss an increase in the Second Quarter Distribution.

On the evening of July 23, 2020, Mr. Jackson provided an update to the CNXM Conflicts Committee and representatives of Baker Botts and Intrepid regarding his discussions with CNX. Mr. Jackson noted that after his discussions with Mr. Rush earlier in the day, Mr. Rush, on behalf of CNX, communicated a revised offer for the Proposed Transaction that reflected an exchange ratio of 0.880x shares of CNX Common Stock per CNXM Common Unit and an increase in the distribution for the quarter ended June 30, 2020 of approximately $0.42 per CNXM Common Unit (for a total distribution amount of $0.50 per CNXM Common Unit) (the “Revised July 23 Proposal”). Mr. Jackson noted that Mr. Rush had informed him that CNX was not prepared to support any distribution greater than $0.50 per CNXM Common Unit. Representatives of Intrepid then summarized for the CNXM Conflicts Committee the updated financial analyses that Intrepid had completed in connection with the Revised July 23 Proposal. Baker Botts outlined the tax consequences to CNXM Public Unitholders of the Revised July 23 Proposal. Following additional discussion, the CNXM Conflicts Committee agreed that Mr. Jackson should communicate to Mr. Rush, at the request of the CNXM Conflicts Committee, that the CNXM Conflicts Committee was prepared to proceed on the terms of the Revised July 23 Proposal, subject to finalization of the definitive agreements.

On July 24, 2020, Latham, on behalf of CNX, sent a revised draft of the Merger Agreement to Baker Botts. Among other things, the revised draft of the Merger Agreement reflected: (i) the removal of the requirement that

 

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the Merger be subject to a separate approval by the CNXM Public Unitholders; (ii) the removal of the CNXM Conflicts Committee’s ability to change its recommendation in the event the Proposed Transaction was submitted to a vote of CNXM Public Unitholders; (iii) the addition of the condition that Closing would not occur prior to the record date for the regular quarterly cash distribution for the third quarter of 2020, the amount of which was not specified; (iv) the acceptance of certain representations and warranties requested by the CNXM Conflicts Committee; (v) the acceptance of restrictions on CNX’s ability to pursue certain strategic transactions prior to Closing; (vi) the removal of a minimum regularly quarterly cash distribution to CNXM Unitholders for any quarter prior to Closing; (vii) the addition of a $200.0 million basket to provide CNXM with the flexibility to pursue acquisitions or dispositions outside the ordinary course of business prior to Closing; and (viii) the removal of a termination fee.

Also on July 24, 2020, representatives of Baker Botts, Latham and CNX discussed the specifics of the Revised July 23 Proposal and the draft Merger Agreement. During the discussion, CNX and Latham informed Baker Botts that CNX had modified the Revised July 23 Proposal such that (i) CNX would declare and announce a distribution for the quarter ended June 30, 2020 of $0.25 per CNXM Common Unit concurrently with the announcement of the Proposed Transaction and (ii) CNX would covenant in the Merger Agreement that (A) the General Partner would declare a distribution for the quarter ending September 30, 2020, which would not be less than $0.25 per CNXM Common Unit (unless a lesser amount were approved by the CNXM Conflicts Committee), and (B) the Merger would not close until after the record date of such third quarter distribution (the “July 24 Proposal”).

Following that discussion, Baker Botts communicated to the CNXM Conflicts Committee and representatives of Intrepid the July 24 Proposal. Baker Botts also discussed the progress that had been made on the Merger Agreement since the prior meeting of the CNXM Conflicts Committee, noting that CNX had accepted the majority of the changes proposed by the CNXM Conflicts Committee. Intrepid summarized for the CNXM Conflicts Committee the potential market impact of bifurcating the distribution amounts between two quarters. Following the discussion, the CNXM Conflicts Committee authorized Baker Botts to communicate to Latham, on behalf of the CNXM Conflicts Committee, that the CNXM Conflicts Committee insisted that the transaction proceed on the basis of the Revised July 23 Proposal, whereby approximately $0.42 per CNXM Common Unit would be added to the regular distribution for the quarter ended June 30, 2020 (for a total distribution amount of $0.50 per CNXM Common Unit) rather than the July 24 Proposal. Representatives of Intrepid similarly expressed the CNXM Conflicts Committee’s views to Citi regarding the July 24 Proposal.

After such discussions, in accordance with the directives of CNX, Citi communicated to Intrepid CNX’s best and final proposals with respect to quarterly distributions—a choice of a Second Quarter Distribution of $0.50 per CNXM Common Unit (representing an increase of approximately $0.42 per CNXM Common Unit, which was the basis of the Revised July 23 Proposal) with no specification of a minimum distribution for the quarter ending September 30, 2020 or a distribution of $0.27 per CNXM Common Unit for each of the quarter ended June 30, 2020 and the quarter ending September 30, 2020 (representing an increase of approximately $0.19 per CNXM Common Unit for each quarter).

Also on July 24, 2020, at a special meeting of the CNX Board attended by management and representatives of CNX’s legal and financial advisors, management provided an update to the CNX Board regarding the Proposed Transaction, the recent performance of CNX Common Stock and CNXM Common Units and the proposed communications strategy with respect to the Proposed Transaction. Citi updated the CNX Board regarding certain financial matters relating to the Proposed Transaction, including the premiums implied by CNX’s July 23 Proposal and July 24 Proposal. Management then discussed the potential tax impact of the Proposed Transaction. Latham reviewed the directors’ duties in considering the Proposed Transaction, and management reviewed the principal legal terms of the Merger Agreement. After discussion, the CNX Board decided to reconvene once the terms of the Merger Agreement were substantially final to determine whether to approve the Proposed Transaction on the terms set forth therein.

 

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On the evening of July 24, 2020, the CNXM Conflicts Committee again met with representatives of Intrepid and Baker Botts. Intrepid informed the CNXM Conflicts Committee of the two options that CNX presented as its best and final offer. The CNXM Conflicts Committee discussed each option with its advisors, weighing the protection associated with the certainty and timing of receiving a Second Quarter Distribution of $0.50 per CNXM Common Unit irrespective of the closing of the Merger against the potential to receive an additional $0.04 per CNXM Common Unit at a later date and subject to potential risk that the Merger Agreement could be terminated prior to the payment of a third quarter distribution or that intervening factors could occur that would preclude the GP Board from declaring such a distribution. After deliberation, the CNXM Conflicts Committee instructed Intrepid to communicate to Citi, on behalf of the CNXM Conflicts Committee, that the CNXM Conflicts Committee would proceed with a Second Quarter Distribution of $0.50 per CNXM Common Unit.

Later in the evening, Baker Botts sent a revised draft of the Merger Agreement to Latham. Among other things, the revised draft of the Merger Agreement contemplated that CNXM would declare a Second Quarter Distribution of $0.50 per CNXM Common Unit.

Over the course of July 25, 2020 and July 26, 2020, representatives of Latham, in consultation with CNX, and representatives of Baker Botts, in consultation with the CNXM Conflicts Committee, participated in multiple conference calls and negotiated and finalized the terms of the proposed Merger Agreement and Support Agreement.

On July 26, 2020, the CNXM Conflicts Committee met with representatives of Baker Botts and Intrepid. Prior to the meeting, copies of the Merger Agreement and the Support Agreement, Baker Botts’ legal presentation, proposed approval resolutions and Intrepid’s fairness presentation were delivered to the CNXM Conflicts Committee. During the meeting, Baker Botts reviewed with the CNXM Conflicts Committee the final terms of the Proposed Transaction that had been negotiated with CNX. Baker Botts reviewed the process undertaken by the CNXM Conflicts Committee and its advisors, noting that the CNXM Conflicts Committee had met frequently to review and evaluate the Proposed Transaction. Baker Botts also summarized its legal due diligence review in connection with the Proposed Transaction. Finally, Baker Botts reviewed with the CNXM Conflicts Committee its duties with respect to the Proposed Transaction and discussed the “Special Approval” standard under the Partnership Agreement. Following the presentation by Baker Botts, Intrepid reviewed the financial aspects of the Proposed Transaction and provided the CNXM Conflicts Committee with its final valuation analysis with respect to the Proposed Transaction, noting that the final terms represented an approximate 36.8% premium based on current market prices, an approximate 17.3% premium based on the 30-day trailing volume-weighted average market prices and an approximate 26.9% premium based on the 60-day trailing volume-weighted average market prices, in each case taken together with the incremental $0.4171 declared by the General Partner in connection with the Merger Agreement. Upon the request of the CNXM Conflicts Committee, Intrepid then rendered its oral opinion, which was subsequently confirmed by delivery of a written opinion, that, as of July 26, 2020 and based upon and subject to the assumptions, procedures, factors, qualifications, limitations and other matters set forth in Intrepid’s opinion, as of the date thereof, the exchange ratio in the Proposed Transaction was fair, from a financial point of view, to the CNXM Public Unitholders.

Following receipt of Intrepid’s fairness opinion and further discussion with Intrepid and Baker Botts, the CNXM Conflicts Committee unanimously adopted resolutions that (i) determined that the Proposed Transaction was advisable and in the best interests of CNXM and the CNXM Public Unitholders, (ii) approved the Proposed Transaction and the transaction documents, (iii) recommended to the GP Board the approval of the Proposed Transaction and the transaction documents and (iv) recommended that the GP Board direct that the Merger Agreement be submitted to a vote of the Limited Partners (as defined in the Partnership Agreement) and authorize the Limited Partners to act by written consent pursuant to Section 13.11 of the Partnership Agreement. Following the meeting, the parties worked to finalize the Merger Agreement and other related documents. The Merger Agreement and the Support Agreement were executed on the afternoon of July 26, 2020. See “—Approval of the CNXM Conflicts Committee and the GP Board” and “—Reasons for the CNXM Conflicts Committee’s Approval.”

 

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Later on July 26, 2020, at a special meeting of the GP Board, the CNXM Conflicts Committee provided a report to the full GP Board as to its determinations in respect of the Proposed Transaction and as to its receipt of the oral opinion of Intrepid described above. The full GP Board discussed the report and the Proposed Transaction with the CNXM Conflicts Committee. At this meeting, the GP Board unanimously (i) determined that the consummation of the Merger and the related arrangements contemplated by the Merger Agreement are in the best interests of CNXM, including the CNXM Public Unitholders, (ii) approved the Merger and the related arrangements, including the execution, delivery and performance of the Merger Agreement and the transactions contemplated thereby, and (iii) determined to submit the Merger Agreement to a vote of the CNXM Unitholders for approval and authorized the CNXM Unitholders to act by written consent pursuant to the Partnership Agreement. The GP Board also reviewed an overview prepared by management with respect to the proposed distribution payment for the second quarter of 2020. Among other things, the GP Board reviewed CNXM’s financing needs following the completion of the Proposed Transaction. After discussion, the GP Board approved a Second Quarter Distribution of $0.50 per CNXM Common Unit, payable on August 14, 2020 to holders of record as of August 7, 2020.

Also on July 26, 2020, at a special meeting of the CNX Board attended by management and CNX’s legal and financial advisors, the CNX Board reviewed the final terms of the Merger. At this meeting, management and Latham reviewed the principal legal terms of the Merger Agreement, focusing primarily on the updates from the draft reviewed with the CNX Board on July 24, 2020, and reviewed the directors’ duties in considering the Proposed Transaction. Citi discussed with the CNX Board financial matters relating to the Proposed Transaction. The CNX Board also discussed the potential market reaction to the transaction, as well as the perceived benefits of, and other considerations relating to, the Merger. After discussion, the CNX Board unanimously (i) determined that the transactions contemplated by the Merger Agreement were advisable, fair and reasonable to and in the best interests of CNX and its stockholders, (ii) approved the execution, delivery and performance of the Merger Agreement and the transactions contemplated thereby, including the Merger and the Parent Stock Issuance, and (iii) authorized the Company to enter into the Merger Agreement and to consummate the transactions contemplated thereby, including the Merger. See “—Approval by the CNX Board and Its Reasons for the Merger.”

Later on July 26, 2020, CNX and CNXM executed the Merger Agreement.

On July 27, 2020, CNX and CNXM issued a joint press release announcing the execution of the Merger Agreement.

Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties

The unanimous approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by the members of the CNXM Conflicts Committee constitutes “Special Approval” under the Partnership Agreement. Under Section 7.09 of the Partnership Agreement, whenever a potential conflict of interest exists or arises between the General Partner or any of its affiliates, on the one hand, and CNXM, any partner of CNXM or any person with an interest in partnership interests of CNXM, on the other hand, any resolution, course of action or transaction will be conclusively deemed approved by all of the partners of CNXM and any person with an interest in the limited partner interests of CNXM and will not constitute a breach of the Partnership Agreement or of any duty stated or implied by law or equity, if the resolution or course of action is approved by Special Approval, namely approval by a majority of the members of the CNXM Conflicts Committee.

Under Section 7.10(b) of the Partnership Agreement, any action taken or omitted to be taken by the General Partner in reliance upon the advice or opinion of an investment banker, among others, as to matters reasonably believed to be in such person’s professional or expert competence shall be conclusively presumed to have been taken or omitted to be taken in good faith and in accordance with such opinion.

 

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Approval of the CNXM Conflicts Committee and the GP Board

The CNXM Conflicts Committee consists of three independent directors of the GP Board: Raymond T. Betler, John E. Jackson and John A. Maher. The GP Board authorized the CNXM Conflicts Committee to (i) consider, review, evaluate and analyze the Merger and the Related Arrangements, including, without limitation, any potential conflicts arising in connection therewith, (ii) consider, review, evaluate and analyze the terms and conditions of the Merger and the Related Arrangements on behalf of CNXM and the CNXM Unaffiliated Unitholders, (iii) negotiate, or delegate to any person the authority to negotiate, any terms of the Merger and the Related Arrangements as it may deem necessary or appropriate, in its sole discretion, (iv) determine whether the Merger and Related Arrangements are in the best interests of CNXM and the CNXM Unaffiliated Unitholders and (v) determine whether to approve, and, if so approved, whether to recommend that the GP Board approve, the Merger and Related Arrangements, with such approval of the CNXM Conflicts Committee constituting “Special Approval” for all purposes under the Partnership Agreement.

The CNXM Conflicts Committee retained Baker Botts as its legal counsel and Intrepid as its independent financial advisor. The CNXM Conflicts Committee believed that Intrepid was independent based on the lack of material business relationships between Intrepid and CNX, CNXM or their affiliates. The CNXM Conflicts Committee oversaw the performance of financial and legal due diligence by its advisors, conducted an extensive review and evaluation of the potential transaction, including with respect to withholding Special Approval and maintaining the status quo, and conducted negotiations with CNX and its representatives with respect to the Merger Agreement and other Related Arrangements.

The CNXM Conflicts Committee, at a meeting held on July 26, 2020, by unanimous vote, (i) determined that the Merger Agreement and the Merger are in the best interests of CNXM and the CNXM Unaffiliated Unitholders, (ii) approved the Merger and the execution, delivery and performance by CNXM of the Merger Agreement (such approval constituting Special Approval as defined in the Partnership Agreement), (iii) recommended that the GP Board approve the Merger Agreement and the Merger and (iv) recommended that the GP Board direct that the Merger Agreement be submitted to a vote of the Limited Partners and authorized the Limited Partners to act by written consent to approve the Merger pursuant to the Partnership Agreement.

Upon receipt of such recommendation, the GP Board, by unanimous vote at a meeting held on July 26, 2020, determined (i) that the Merger and the Related Arrangements, including the Merger Agreement and the Support Agreement, are in the best interests of CNXM, including the CNXM Unitholders, (ii) to approve the Merger and the Related Arrangements, including the Merger Agreement and the Support Agreement and (iii) to submit the Merger Agreement to a vote of the Limited Partners and authorized the Limited Partners to act by written consent to approve the Merger pursuant to the Partnership Agreement.

Reasons for the CNXM Conflicts Committee’s Recommendation

The CNXM Conflicts Committee consulted with its financial and legal advisors and considered both positive and negative factors in making its determination and approvals, and the related recommendation to the GP Board.

The CNXM Conflicts Committee considered the following factors to be generally positive or favorable in making its determination and approvals, and the related recommendation to the GP Board:

 

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The Exchange Ratio of 0.880 represents a premium to the CNXM Public Unitholders of 36.8% based on closing prices on July 24, 2020, the last trading day prior to the date on which the CNXM Conflicts Committee made its determination regarding the Merger Agreement, or a premium of 17.3% to the volume-weighted average market prices, in each case taken together with the incremental $0.4171 distribution per CNXM Common Unit declared by the General Partner in connection with the Merger Agreement, during the 30 trading days ended July 24, 2020.

 

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The Exchange Ratio, with an implied value of $8.47 based on the closing price of CNX Common Stock on July 24, 2020 (the last trading day before the announcement of the Merger Agreement), plus the

 

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incremental $0.4171 distribution per CNXM Common Unit, represents a significant improvement over CNX’s Initial Proposal on June 16, 2020 of 0.800 shares of CNX Common Stock for each CNXM Public Common Unit.

 

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The CNXM Conflicts Committee also believed that the Exchange Ratio of 0.880 shares of CNX Common Stock for each CNXM Public Common Unit was the highest exchange ratio that CNX would be willing to pay the CNXM Public Unitholders.

 

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In connection with the Merger Agreement, the CNXM Conflicts Committee negotiated with CNX that its representatives on the GP Board would support, and the GP Board would declare, a Second Quarter Distribution on the CNXM Common Units of $0.50 per CNXM Common Unit (representing an increase of $0.4171 from CNXM’s distribution for the quarter ended March 31, 2020), which distribution is expected to be paid on August 14, 2020 to CNXM Unitholders of record as of the close of business on August 7, 2020 irrespective of whether the Merger is completed.

 

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The CNXM Conflicts Committee also believed that the Second Quarter Distribution of $0.50 per CNXM Common Unit was the highest cash distribution for the second quarter of 2020 payable by CNXM that CNX would be willing to support.

 

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The Exchange Ratio is fixed, and therefore the value of the consideration payable to CNXM Public Unitholders based on the ratio will increase in the event that the market price of CNX Common Stock increases relative to any change in the market price of CNXM Common Units prior to the closing of the Merger.

 

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Absent a significant and sustained improvement in macroeconomic, industry and business conditions facing CNXM and its customers, the CNXM Conflicts Committee believed that it was unlikely for CNXM to return to distribution levels similar to those that CNXM paid prior to the distribution paid with respect to the quarter ended March 31, 2020, when the GP Board reduced the quarterly distribution by 80% as compared to the distribution for the preceding quarter.

 

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CNX management had indicated that it did not anticipate future drop down transactions with CNXM, due to, among other reasons, CNXM’s inability to access the equity capital markets, the yield on CNXM senior notes and the disadvantages associated with CNXM’s cost of capital relative to CNX’s cost of capital and the cost of capital of its peers and its third-party partners to fund continued development of midstream assets, limiting growth opportunities for CNXM, and the CNXM Conflicts Committee believed that there would be limited prospects for growing CNXM’s business with third-party customers.

 

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The CNXM Conflicts Committee believed that, after evaluating alternative transaction structures (including maintaining the status quo) between CNXM and CNX, none of the alternatives is more attractive than the Merger. Further, the CNXM Conflicts Committee also believed that there are no viable alternative transactions for the General Partner in lieu of a transaction with CNX, in light of the controlling position of CNX through CNX’s indirect ownership of the General Partner and 53.1% of the CNXM Common Units and CNX’s stated unwillingness to sell its ownership of the General Partner and its CNXM Common Units, among other reasons, because of CNX’s belief in the strategic advantages, capital efficiencies and cost savings associated with retaining its interest in the midstream business.

 

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The CNXM Conflicts Committee’s beliefs and expectations that CNX’s status as a corporation and its size following the Merger provide a number of benefits relative to CNXM’s MLP structure, including:

 

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market sentiment currently favors corporate structures over MLP structures;

 

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corporations attract a broader set of investors as compared to MLPs because certain types of institutional investors face prohibitions or limitations on investing in entities other than corporations;

 

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implications of the COVID-19 pandemic and other recent macroeconomic events on the single upstream sponsor MLP model;

 

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•

implications of the oil price war among the OPEC+ and the future structure of Appalachian natural gas industry;

 

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equity financing and access to debt markets have become more restrictive to MLPs, which could lead to the diminished ability to fund growth expenditures;

 

•

CNX Common Stock will provide greater trading liquidity than CNXM Common Units because of the larger average daily trading volume of CNX Common Stock as a result of the broader investor base and larger public float; and

 

•

CNXM Public Unitholders will receive equity ownership in a corporate entity with traditional fiduciary duties owed to stockholders (which are more robust than those under the Partnership Agreement), the ability to vote in the election of directors and a simplified capital structure relative to an MLP.

 

•

The public listing of CNX Common Stock will allow the CNXM Public Unitholders to make their own decision whether to sell the CNX Common Stock they receive in the Merger for cash or retain the CNX Common Stock they receive and participate in the equity value of CNX, including the potential future growth and synergies resulting from the Merger.

 

•

CNXM will benefit from the anticipated elimination of the $135.0 million deferred payments in connection with the IDR Transaction upon the completion of the Merger as a result of CNXM becoming a wholly-owned subsidiary of CNX. This is expected to mitigate CNXM’s risk of non-compliance with certain covenants in its credit facility.

 

•

The CNXM Conflicts Committee’s expectations that the Merger will increase financial flexibility, reduce cost of capital and optimize cash flows.

 

•

CNX’s and CNXM’s expectations that the Merger will create one of the lowest cost producers in the Appalachian Basin and will have a positive impact on the combined entity’s cash flows, cost of capital and credit metrics.

 

•

The projected tax benefits to CNX resulting from CNX’s ability to claim additional depreciation and amortization deductions on a stepped-up basis in the assets underlying the CNXM Common Units it acquires in the Merger will indirectly benefit the CNXM Public Unitholders following the consummation of the Merger.

 

•

The CNXM Public Unitholders’ aggregate tax obligations resulting from the Merger are expected to be mitigated to some extent because a large proportion of the unitholders have a relatively high adjusted tax basis in their CNXM Common Units and many of the unitholders have suspended passive losses available to offset a portion of the taxable gain, including ordinary income, that will be recognized in the Merger.

 

•

The financial presentation and opinion of Intrepid, dated July 26, 2020, to the CNXM Conflicts Committee that, as of that date and based upon and subject to the various assumptions, procedures, factors, qualifications, and limitations and other matters set forth in Intrepid’s opinion, the Exchange Ratio in the potential transaction was fair, from a financial point of view, to the CNXM Public Unitholders.

 

•

The terms of the Merger Agreement, principally:

 

•

each CNXM Public Unitholder will receive 0.880 shares of CNX Common Stock per outstanding CNXM Common Unit;

 

•

CNX’s obligation to reimburse certain CNXM expenses in connection with the termination of the Merger Agreement as a result of a material uncured breach by CNX under the Merger Agreement;

 

•

the operating covenants of CNX providing protection to the CNXM Public Unitholders prior to Closing by restricting CNX’s ability to take certain actions prior to the closing of the Merger that could reduce the value of the CNX Common Stock received by the CNXM Public Unitholders in the Merger;

 

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•

under the terms of the Merger Agreement, prior to the Effective Time, CNX and the General Partner are prohibited from revoking or diminishing the authority of the CNXM Conflicts Committee or from removing any member of the CNXM Conflicts Committee without the consent of the CNXM Conflicts Committee prior to the closing of the Merger;

 

•

the Merger Agreement requires CNXM Conflicts Committee approval with respect to the mutual agreement by CNX and CNXM to terminate the Merger Agreement, and any amendment to, waiver of, or consent under the Merger Agreement by CNXM requires the CNXM Conflicts Committee’s approval in writing; and

 

•

the Merger Agreement contains only limited conditions and exceptions to the closing conditions.

 

•

The probability that CNX and CNXM will be able to consummate the Merger is significantly increased by the Support Agreement, requiring CNX and its subsidiaries to provide a written consent in favor of the Merger Agreement, which is the only CNXM Unitholder approval required to be obtained.

 

•

The probability that CNX and CNXM will be able to consummate the Merger is significantly increased by the fact that no CNX stockholder vote is required.

The CNXM Conflicts Committee considered the following factors to be generally negative or unfavorable in arriving at its determinations and approvals, and the related recommendation to the GP Board:

 

•

The Exchange Ratio is fixed, and therefore the value of the consideration payable to the CNXM Public Unitholders based on the ratio will decrease in the event that the market price of CNX Common Stock decreases relative to any change in the market price of CNXM Common Units prior to the closing of the Merger.

 

•

The CNXM Common Units have, in the past, traded at levels that exceed the amount implied by the exchange ratio as of July 24, 2020 of $8.47 per CNXM Common Unit. As of July 24, 2020, the 52-week high for the CNXM Common Units was $16.94 on January 17, 2020.

 

•

CNX suspended its quarterly dividend in March 2016 and does not currently pay quarterly dividends on its CNX Common Stock.

 

•

The Merger Agreement does not require CNXM to pay a cash distribution in respect of the third quarter of 2020 or any subsequent quarter and prohibits CNXM from paying any distributions on the CNXM Common Units without CNX’s consent.

 

•

The CNXM Conflicts Committee believed that because CNXM is a midstream company and CNX is an upstream company, CNXM Public Unitholders will have direct exposure to the risks of the upstream sector, such as greater exposure to commodity price volatility.

 

•

The Merger will be a taxable transaction to the CNXM Public Unitholders for U.S. federal and state income tax purposes. Depending on each CNXM Public Unitholder’s individual tax situation, the unitholder will recognize taxable gain or loss upon the exchange of the CNXM Common Units for CNX Common Stock in the Merger. Additionally, a portion of any such taxable gain or loss will be separately computed and any gain will be taxed as ordinary income.

 

•

For the CNXM Public Unitholders, the increased Second Quarter Distribution on their CNXM Common Units will increase the taxable gain or decrease the taxable loss recognized under the exchange of the CNXM Common Units for CNX Common Stock in the Merger relative to the taxable gain or taxable loss that would be recognized if the Second Quarter Distribution was not increased.

 

•

Following the Merger, the income of the resulting combined entity will be subject to double taxation (at the combined company and stockholder levels) for U.S. federal income tax purposes because CNX is a corporation, while the income of CNXM is currently subject to only one level of tax (at the unitholder level) because CNXM is a partnership.

 

•

The CNXM Conflicts Committee was not authorized to, and did not, conduct an auction process or other solicitation of interest from third parties for the acquisition of CNXM. CNX indicated that

 

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(among acquisition or merger alternatives considered) it was interested only in a business combination with CNXM and that it was not interested in disposing of its controlling interest in CNXM to a third party at such time, among other reasons, because of CNX’s belief in the strategic advantages, capital efficiencies and cost savings associated with retaining its interest in the midstream business. Because of this, and because CNX indirectly controls CNXM and has significant commercial arrangements with CNXM, it was considered unrealistic to expect or pursue an unsolicited third-party acquisition proposal or offer for the assets or control of CNXM, and unlikely that the CNXM Conflicts Committee could conduct a meaningful auction for the acquisition of the assets or control of CNXM.

 

•

Because the Merger is subject to the approval of holders of a majority of the outstanding CNXM Common Units and CNXM Class B units, voting as a single class, and CNX and its affiliates own a sufficient number of outstanding CNXM Common Units to approve the Merger and have agreed to vote all such CNXM Common Units in favor of the Merger, the affirmative vote of the CNXM Public Unitholders is not needed to approve the Merger.

 

•

The Merger Agreement does not include a “majority of the minority” approval condition, and therefore approval of the Merger does not require the affirmative vote of the CNXM Public Unitholders.

 

•

The combined company may be unable to realize fully the potential benefits sought in the Merger.

 

•

The Merger may not be completed in a timely manner, or at all, which could result in significant costs and disruption to CNXM’s normal business and a decline in the trading price of CNXM Common Units.

 

•

Certain terms of the Merger Agreement, principally the provisions obligating CNXM to reimburse certain CNX expenses in connection with the termination of the Merger Agreement as a result of a material uncured breach by CNXM or the General Partner under the Merger Agreement and the operating covenants of CNXM restricting CNXM’s ability to take certain actions prior to the closing of the Merger.

 

•

The CNXM Public Unitholders are not entitled to dissenters’ or appraisal rights under the Merger Agreement, CNXM’s Partnership Agreement or Delaware law.

 

•

The CNXM Public Unitholders will be foregoing the potential benefits that would be realized by remaining unitholders of CNXM on a standalone basis.

 

•

Litigation may occur in connection with the Merger and such litigation may increase costs and result in a diversion of management focus.

 

•

Some of the executive officers and directors of CNXM have interests in the Merger that are different from, or in addition to, the interests of the CNXM Public Unitholders generally.

In addition to the factors described above, the CNXM Conflicts Committee considered the following procedural factors in making its determination that the Merger Agreement and the transactions contemplated thereby are in the best interests of CNXM and the CNXM Public Unitholders:

 

•

The terms and conditions of the Merger were determined through arm’s-length negotiations between CNX and the CNXM Conflicts Committee and their respective representatives and advisors.

 

•

Each of the members of the CNXM Conflicts Committee satisfies the requirements for serving on the CNXM Conflicts Committee as required under the Partnership Agreement, including the requirement that all members of the CNXM Conflicts Committee be independent directors.

 

•

The CNXM Conflicts Committee retained independent financial and legal advisors with reputations, knowledge and experience with respect to public merger and acquisition transactions, MLPs, and the midstream and oil and gas industries, as well as substantial experience advising MLPs and other companies with respect to transactions similar to the Merger, as well as familiarity with CNXM and its business.

 

•

The members of the CNXM Conflicts Committee have served on the GP Board and are familiar with, and understand, the businesses, assets, liabilities, results of operations, financial condition and competitive positions and prospects of CNXM.

 

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•

The compensation of the members of the CNXM Conflicts Committee is in no way contingent on their approving the Merger Agreement or the Merger.

 

•

Other than with respect to the Director LTIP Awards, which will become fully vested and will be automatically converted into the right to receive, with respect to each CNXM Common Unit subject thereto, the Merger Consideration (plus any accrued but unpaid amounts in relation to distribution equivalent rights), the members of the CNXM Conflicts Committee will not personally benefit from the consummation of the Merger in a manner different from the CNXM Public Unitholders.

 

•

The members of the CNXM Conflicts Committee have not been requested to serve on the CNX Board after the Merger.

 

•

Although no specific issues came to the attention of the CNXM Conflicts Committee with respect to information it was provided, the CNXM Conflicts Committee was aware that CNX, as the control party of CNXM, controlled the delivery and presentation of information the CNXM Conflicts Committee received for purposes of evaluating the Merger and the fairness of the Merger Consideration to the CNXM Public Unitholders.

 

•

The CNXM Conflicts Committee had no obligation to recommend any transaction, including the proposal put forth by CNX.

After taking into account all of the factors set forth above, as well as others, the CNXM Conflicts Committee concluded that the potential benefits of the Merger outweighed any negative or unfavorable considerations and determined that the Merger Agreement and the transactions contemplated thereby are in the best interests of CNXM and the CNXM Unaffiliated Unitholders.

The foregoing discussion is not intended to be exhaustive but is intended to address the material information and principal factors considered by the CNXM Conflicts Committee in considering the Merger. In view of the number and variety of factors and the amount of information considered, the CNXM Conflicts Committee did not find it practicable to, and did not make specific assessments of, quantify or otherwise assign relative weights to, the specific factors considered in reaching its determination. In addition, the CNXM Conflicts Committee did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to its ultimate determination, and individual members of the CNXM Conflicts Committee may have given different weights to different factors. The CNXM Conflicts Committee made its recommendation based on the totality of information presented to, and the investigation conducted by, the CNXM Conflicts Committee. It should be noted that certain statements and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors discussed under the heading “Cautionary Statement Regarding Forward-Looking Statements.”

Unaudited Financial Projections of CNX and CNXM

In connection with the proposed Merger, management of CNX provided projections relating to CNX and management of the General Partner provided projections relating to CNXM, each on a standalone basis (without giving effect to the Merger) that included future financial and operating performance. These non-public projections were provided to Intrepid for use and consideration in its financial analysis and, with respect to the base case shown below, in preparation of its opinion to the CNXM Conflicts Committee. A summary of these projections is included below to give holders of CNXM Public Common Units access to certain non-public unaudited prospective financial information that was made available to Intrepid, the CNXM Conflicts Committee, the GP Board and the CNX Board in connection with the proposed Merger.

You should be aware that uncertainties are inherent in prospective financial information of any kind. None of CNX or CNXM or any of their affiliates, advisors, officers, directors or representatives has made or makes any representation or can give any assurance to any CNXM Limited Partner or CNX stockholder, or any other person regarding the ultimate performance of CNX or CNXM compared to the summarized information set forth below or that any such results will be achieved.

 

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The summary projections set forth below summarize the projections made available to the parties to the transaction and their respective legal and financial advisors. The inclusion of the following summary projections in this consent statement/prospectus should not be regarded as an indication that CNX, CNXM or their respective representatives considered or consider the projections to be necessarily predictive of actual future performance or events, and the summary projections set forth below should not be relied upon as such.

While CNX and CNXM provide public earnings guidance from time to time, CNX and CNXM do not as a matter of course publicly disclose other financial forecasts as to future earnings or financial performance or results because of, among other reasons, the uncertainty underlying assumptions and estimates. The CNX and CNXM projections summarized below were prepared by employees of CNX. The CNX and CNXM projections were only prepared for internal planning purposes and not with a view toward public disclosure or toward compliance with GAAP, the published guidelines of the SEC, or the guidelines established by the American Institute of Certified Public Accountants, but in the view of CNX’s management, were prepared on a reasonable basis, reflect the best currently available estimates and judgments, and, with respect to the base case, present, to the best of management’s knowledge and belief, the expected course of action and the expected future financial performance of CNX and CNXM. However, this information is not fact and should not be relied upon as necessarily indicative of actual future results, and readers of this consent statement/prospectus are cautioned not to place undue reliance on the prospective financial information.

Neither CNX’s and CNXM’s independent registered public accounting firm, nor any other independent accountants, have compiled, examined, or performed any procedures with respect to the prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information.

The Ernst & Young LLP reports incorporated by reference into this consent statement/prospectus with respect to CNX and CNXM relate to the historical financial information of CNX and CNXM, respectively. Such reports do not extend to the projections included below and should not be read to do so. Neither the CNX Board nor the GP Board prepared, and none of the GP Board, the CNXM Conflicts Committee, the General Partner, CNX nor the CNX Board gives any assurance regarding, the summarized information.

The internal financial projections of CNX and CNXM are, in general, prepared primarily for internal use. Such internal forecasts are inherently subjective in nature, susceptible to interpretation and, accordingly, such forecasts may not be achieved. The internal financial forecasts also reflect numerous assumptions made by management, including material assumptions that may not be realized and are subject to significant uncertainties and contingencies, all of which are difficult to predict and many of which are beyond the control of CNX or CNXM. CNX management, consistent with past presentations to the CNX Board and public guidance representations, develops its financial forecasts according to several criteria. Additionally, prospective mergers and acquisitions and any prospective projects were excluded from the financial projections. Accordingly, there can be no assurance that the assumptions made in preparing the internal financial forecasts upon which the following projected financial information was based will be realized. There will be differences between actual and forecasted results, and the differences may be material. The risk that these uncertainties and contingencies could cause the assumptions to fail to be reflective of actual results is further increased given the length of time in the future over which these assumptions apply. Any assumptions and projections in early periods could have a compounding effect on the projections shown for later periods. Thus, any failure of an assumption or projections to be reflective of actual results in an early period could have a greater effect on the projected results failing to be reflective of actual events in later periods.

All of these assumptions involve variables making them difficult to predict, and some are beyond the control of CNX and CNXM. Although CNX’s management believes that there was a reasonable basis for its projections and underlying assumptions, any assumptions for near-term projected cases remain uncertain, and become less predictive with the length of the forecasted period. The projections are forward-looking statements and are subject to risks and uncertainties. See the section of this consent statement/prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 23.

 

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The following tables set forth a summary of the projections with respect to CNX and CNXM for 2020 through 2026. These projections include the base case, as well as three sensitivity cases to the base case that CNX management prepared solely for informational purposes at the request of the CNXM Conflicts Committee. These sensitivity cases involved various West Texas Intermediate (“WTI”) oil and Henry Hub natural gas commodity price scenarios during the periods presented. The prices assumptions in each sensitivity case represent the annual low and high commodity price range for the forecast period of 2021 to 2026, with the exception of the oil price in the Upside Case 1, which was held constant throughout the forecast period. Specifically, (i) Downside Case assumed oil prices of $32-40 per barrel and natural gas prices of $2.10-2.20 per million british thermal units (“mmbtu”), (ii) Upside Case 1 assumed an oil price of $35 per barrel and natural gas prices of $2.75-3.25 per mmbtu and (iii) Upside Case 2 assumed oil prices of $45-50 per barrel and natural gas prices of $2.75-$3.00 per mmbtu.

 

		Year Ended December 31,
CNX(1)		2020				2021				2022				2023				2024				2025				2026
		(In millions, except per share amounts)
Base Case
Adjusted EBITDAX(2)		$	683			$	677			$	625			$	569			$	603			$	593			$	637
Operating Cash Flow		$	651			$	540			$	551			$	537			$	553			$	544			$	574
Levered Free Cash Flow(3)		$	285			$	241			$	284			$	210			$	148			$	214			$	305
Levered Free Cash Flow plus proportionate interest in CNXM Levered Free Cash Flow(4)		$	264			$	322			$	371			$	319			$	267			$	325			$	404
Levered Free Cash Flow per Fully Diluted Share Outstanding(5)		$	0.88			$	1.26			$	1.49			$	1.10			$	0.78			$	1.12			$	1.60
Downside Case
Adjusted EBITDAX(2)		$	673			$	631			$	529			$	416			$	419			$	443			$	523
Operating Cash Flow		$	674			$	491			$	447			$	371			$	361			$	418			$	463
Levered Free Cash Flow(3)		$	332			$	248			$	249			$	234			$	78			$	144			$	235
Levered Free Cash Flow plus proportionate interest in CNXM Levered Free Cash Flow(4)		$	311			$	329			$	343			$	345			$	184			$	231			$	317
Levered Free Cash Flow per Fully Diluted Share Outstanding(5)		$	1.13			$	1.30			$	1.30			$	1.23			$	0.41			$	0.75			$	1.23
Upside Case 1
Adjusted EBITDAX(2)		$	678			$	723			$	796			$	1,096			$	1,293			$	1,374			$	1,578
Operating Cash Flow		$	685			$	551			$	748			$	1,001			$	1,219			$	1,358			$	1,553
Levered Free Cash Flow(3)		$	319			$	234			$	269			$	414			$	787			$	848			$	902
Levered Free Cash Flow plus proportionate interest in CNXM Levered Free Cash Flow(4)		$	293			$	320			$	373			$	514			$	912			$	986			$	1,025
Levered Free Cash Flow per Fully Diluted Share Outstanding(5)		$	1.06			$	1.23			$	1.41			$	2.17			$	4.13			$	4.45			$	4.73
Upside Case 2
Adjusted EBITDAX(2)		$	680			$	725			$	799			$	984			$	1,158			$	1,210			$	1,388
Operating Cash Flow		$	677			$	563			$	752			$	900			$	1,086			$	1,191			$	1,360
Levered Free Cash Flow(3)		$	312			$	246			$	272			$	314			$	654			$	682			$	710
Levered Free Cash Flow plus proportionate interest in CNXM Levered Free Cash Flow(4)		$	285			$	332			$	376			$	413			$	778			$	820			$	832
Levered Free Cash Flow per Fully Diluted Share Outstanding(5)		$	1.02			$	1.29			$	1.43			$	1.65			$	3.43			$	3.57			$	3.72

 

(1)

Given the forward-looking nature of these non-GAAP projections, CNX and CNXM are unable, without unreasonable efforts, to provide a quantitative reconciliation of Adjusted EBITDAX, Levered Free Cash Flow and Levered Free Cash Flow per Fully Diluted Share Outstanding to their most directly comparable GAAP financial measure because CNX and CNXM are unable to project certain reconciling items.

(2)	Adjusted EBITDAX, a non-GAAP measure, is defined as earnings before deducting net interest expense (interest expense less interest income), income taxes, depreciation, depletion and amortization, exploration, and certain discrete items.

 

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