sv3asr
As filed with the Securities and Exchange Commission on
September 9, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Concho Resources
Inc.*
(Exact name of Registrant as
specified in its charter)
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Delaware
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76-0818600
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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550 West Texas Avenue, Suite 100
Midland, Texas 79701
(432) 683-7443
(Address, including zip code,
and telephone number, including area code,
of Registrants principal executive offices)
David W. Copeland
550 West Texas Avenue, Suite 100
Midland, Texas 79701
(432) 683-7443
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
T. Mark Kelly
W. Matthew Strock
Vinson & Elkins LLP
1001 Fannin, Suite 2500
Houston, Texas 77002
(713) 758-2222
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box:
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box: o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer
or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer þ
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller
reporting company)
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Smaller reporting
company o
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering Price per
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Aggregate Offering
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Registration
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Securities to be Registered(1)
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Registered
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Security
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Price(5)
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Fee(6)
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Debt Securities(2)
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Preferred Stock(2)
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Common Stock, par value $0.001(2)
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Depositary Shares(2)(3)
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Warrants(2)
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Guarantee of Debt Securities(4)
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(1) |
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Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder. |
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(2) |
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There is being registered hereunder such indeterminate number or
amount of Debt Securities, Preferred Stock, Common Stock,
Depositary Shares and Warrants as may from time to time be
issued by the registrant at indeterminate prices and as may be
issuable upon conversion, redemption, exchange, exercise or
settlement of any securities registered hereunder, including
under any applicable antidilution provisions. |
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(3) |
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The Depositary Shares being registered will be evidenced by
depositary receipts issued under a depositary agreement. If
Concho Resources Inc. elects to offer fractional interests in
shares of Preferred Stock to the public, Depositary Receipts
will be distributed to the investors purchasing the fractional
interests, and the shares will be issued to the depositary under
the depositary agreement. |
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Subsidiaries of Concho Resources Inc. named as co-registrants
may fully and unconditionally guarantee on an unsecured basis
the Debt Securities of Concho Resources Inc. In accordance with
Rule 457(n), no separate fee is payable with respect to the
guarantee of the Debt Securities being registered. |
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No separate consideration will be received for any securities
being registered that are issued in exchange for, or upon
conversion or exercise of, the Debt Securities, Preferred
Stock, Depositary Shares or Warrants being registered hereunder. |
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In reliance on Rule 456(b) and Rule 457(r) under the
Securities Act, the registrants hereby defer payment of the
registration fee required in connection with this Registration
Statement. |
*ADDITIONAL
SUBSIDIARY GUARANTOR REGISTRANTS
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State of Incorporation or
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IRS Employee
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Exact Name of Additional Registrant as Specified in its
Charter
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Organization
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Identification No.
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COG Operating LLC
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Delaware
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611469854
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COG Realty LLC
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Texas
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841661959
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Concho Energy Services LLC
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Texas
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743158759
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Quail Ranch LLC
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Texas
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320086461
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PROSPECTUS
Concho
Resources Inc.
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Warrants
Guarantee
of Debt Securities of Concho Resources Inc. by:
COG Operating LLC
COG Realty LLC
Concho Energy Services LLC
Quail Ranch LLC
We may offer and sell the securities listed above from time to
time in one or more offerings in one or more classes or series.
Any debt securities we offer pursuant to this prospectus may be
fully and unconditionally guaranteed by certain of our
subsidiaries, including COG Operating LLC, COG Realty LLC,
Concho Energy Services LLC, and Quail Ranch LLC.
This prospectus provides you with a general description of the
securities that may be offered. Each time securities are
offered, we will provide a prospectus supplement and attach it
to this prospectus. The prospectus supplement will contain more
specific information about the offering and the terms of the
securities being offered, including any guarantees by our
subsidiaries. A prospectus supplement may also add, update or
change information contained in this prospectus. This prospectus
may not be used to offer or sell securities without a prospectus
supplement describing the method and terms of the offering.
We may sell these securities directly or through agents,
underwriters or dealers, or through a combination of these
methods. See Plan of Distribution. The prospectus
supplement will list any agents, underwriters or dealers that
may be involved and the compensation they will receive. The
prospectus supplement will also show you the total amount of
money that we will receive from selling the securities being
offered, after the expenses of the offering. You should
carefully read this prospectus and any accompanying prospectus
supplement, together with the documents we incorporate by
reference, before you invest in any of our securities.
Investing in any of our securities involves
risk. Please read carefully the information included
and incorporated by reference in this prospectus and in any
applicable prospectus supplement for a discussion of the factors
you should consider before deciding to purchase our securities.
See Risk Factors beginning on page 4 of this
prospectus.
Our common stock is listed on the New York Stock Exchange under
the symbol CXO.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
This
prospectus is dated September 9, 2009.
TABLE OF
CONTENTS
You should rely only on the information contained in or
incorporated by reference into this prospectus and any
prospectus supplement. We have not authorized any dealer,
salesman or other person to provide you with additional or
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. This
prospectus and any prospectus supplement are not an offer to
sell or the solicitation of an offer to buy any securities other
than the securities to which they relate and are not an offer to
sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make an
offer or solicitation in that jurisdiction. You should not
assume that the information contained in this prospectus is
accurate as of any date other than the date on the front cover
of this prospectus, or that the information contained in any
document incorporated by reference is accurate as of any date
other than the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus or any
sale of a security.
i
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, which we
refer to as the SEC, using a shelf registration
process. Under this shelf registration process, we may offer and
sell any combination of the securities described in this
prospectus in one or more offerings. This prospectus provides
you with a general description of the securities we may offer.
Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the
terms of the offering and the offered securities. The prospectus
supplement may also add, update or change information contained
in this prospectus. Any statement that we make in this
prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement. You should read
both this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
Unless the context requires otherwise or unless otherwise noted,
all references in this prospectus or any accompanying prospectus
supplement to Concho, we or
our are to Concho Resources Inc. and its
subsidiaries.
THE
COMPANY
We are an independent oil and natural gas company engaged in the
acquisition, development, exploitation and exploration of oil
and natural gas properties. Our core operations are focused in
the Permian Basin of Southeast New Mexico and West Texas. These
core operating areas are complemented by activities in our
emerging plays. We intend to grow our reserves and production
through development drilling, exploitation and exploration
activities on our multi-year project inventory and through
acquisitions that meet our strategic and financial objectives.
We were formed in February 2006 as a result of the combination
of Concho Equity Holdings Corp. and a portion of the oil and
natural gas properties and related assets owned by Chase Oil
Corporation and certain of its affiliates. Concho Equity
Holdings Corp., which was subsequently merged into one of our
wholly-owned subsidiaries, was formed in April 2004 and
represented the third of three Permian Basin-focused companies
that have been formed since 1997 by certain members of our
current management team (the prior two companies were sold to
large domestic independent oil and gas companies).
Our principal executive offices are located at 550 West
Texas Avenue, Suite 100, Midland, Texas 79701. Our common
stock is listed on the New York Stock Exchange under the symbol
CXO.
1
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other
information with the SEC (File
No. 001-33615)
pursuant to the Securities Exchange Act of 1934 (the
Exchange Act). You may read and copy any documents
that are filed at the SECs public reference room at
100 F Street, N.E., Washington, D.C. 20549. You
may also obtain copies of these documents at prescribed rates
from the public reference section of the SEC at its Washington
address. Please call the SEC at
1-800-SEC-0330
for further information.
Our filings are also available to the public through the
SECs website at
http://www.sec.gov.
The SEC allows us to incorporate by reference
information that we file with it, which means that we can
disclose important information to you by referring you to
documents previously filed with the SEC. The information
incorporated by reference is an important part of this
prospectus, and the information that we later file with the SEC
will automatically update and supersede this information. The
following documents we filed with the SEC pursuant to the
Exchange Act are incorporated herein by reference:
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our Annual Report on
Form 10-K
for the year ended December 31, 2008;
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our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2009;
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our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2009;
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our Current Reports on
Form 8-K
and 8-K/A
filed on each of August 6, 2008, October 7, 2008,
January 28, 2009, March 4, 2009, April 9, 2009,
June 12, 2009, August 12, 2009 and September 9,
2009 (excluding any information furnished pursuant to
Item 2.02 or Item 7.01 of any such Current Report on
Form 8-K); and
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the description of our common stock contained in our
registration statement on
Form 8-A12B
filed on July 23, 2007, including any amendment to that
form that we may file in the future for the purpose of updating
the description of our common stock.
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These reports contain important information about us, our
financial condition and our results of operations.
All future documents filed pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act (excluding any
information furnished pursuant to Item 2.02 or
Item 7.01 on any Current Report on
Form 8-K)
before the termination of each offering under this prospectus
shall be deemed to be incorporated in this prospectus by
reference and to be a part hereof from the date of filing of
such documents. Any statement contained herein, or in a document
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein
or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address and telephone number:
Concho Resources Inc.
550 West Texas Avenue, Suite 100
Midland, Texas 79701
Attention: General Counsel
(432) 683-7443
We also maintain a website at
http://www.conchoresources.com.
However, the information on our website is not part of this
prospectus.
2
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Various statements contained in or incorporated by reference
into this prospectus, our filings with the SEC and our public
releases, including those that express a belief, expectation, or
intention, as well as those that are not statements of
historical fact, are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 (the
Securities Act) and Section 21E of the Exchange
Act. These forward-looking statements may include projections
and estimates concerning capital expenditures, our liquidity and
capital resources, the timing and success of specific projects,
outcomes and effects of litigation, claims and disputes,
elements of our business strategy and other statements
concerning our operations, economic performance and financial
condition. Forward-looking statements are generally accompanied
by words such as estimate, project,
predict, believe, expect,
anticipate, potential,
could, may, foresee,
plan, goal or other words that convey
the uncertainty of future events or outcomes. We have based
these forward-looking statements on our current expectations and
assumptions about future events. These statements are based on
certain assumptions and analyses made by us in light of our
experience and our perception of historical trends, current
conditions and expected future developments as well as other
factors we believe are appropriate under the circumstances.
These forward-looking statements speak only as of the date of
this prospectus; we disclaim any obligation to update or revise
these statements unless required by securities law, and we
caution you not to rely on them unduly. While our management
considers these expectations and assumptions to be reasonable,
they are inherently subject to significant business, economic,
competitive, regulatory and other risks, contingencies and
uncertainties relating to, among other matters, the risks
discussed in our Annual Report on
Form 10-K
for the year ended December 31, 2008, our Quarterly Reports
on
Form 10-Q
for the quarters ended March 31, 2009 and June 30,
2009 and our subsequent SEC filings, as well as those factors
summarized below:
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our business and financial strategy;
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the estimated quantities of crude oil and natural gas reserves;
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our use of industry technology;
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our realized oil and natural gas prices;
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the timing and amount of the future production of our oil and
natural gas;
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the amount, nature and timing of our capital expenditures;
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the drilling of our wells;
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our competition and government regulations;
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the marketing of our oil and natural gas;
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our exploitation activities or property acquisitions;
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the costs of exploiting and developing our properties and
conducting other operations;
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general economic and business conditions;
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our cash flow and anticipated liquidity;
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hedging results;
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uncertainty regarding our future operating results;
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our plans, objectives, expectations and intentions contained in
this prospectus that are not historical; and
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our ability to integrate acquisitions.
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Reserve engineering is a process of estimating underground
accumulations of oil and natural gas that cannot be measured in
an exact way. The accuracy of any reserve estimate depends on
the quality of available data, the interpretation of such data
and price and cost assumptions made by our reserve engineers. In
addition, the results of drilling, testing and production
activities may justify revisions of estimates that were made
previously. If significant, such revisions would change the
schedule of any further production and development drilling.
Accordingly, reserve estimates may differ from the quantities of
oil and natural gas that are ultimately recovered.
3
RISK
FACTORS
An investment in our securities involves a significant degree of
risk. Before you invest in our securities you should carefully
consider those risk factors included in our most recent Annual
Report on
Form 10-K,
any Quarterly Reports on
Form 10-Q
and any Current Reports on
Form 8-K,
which are incorporated herein by reference, and those risk
factors that may be included in any applicable prospectus
supplement, together with all of the other information included
in this prospectus, any prospectus supplement and the documents
we incorporate by reference, in evaluating an investment in our
securities. If any of the risks discussed in the foregoing
documents were to occur, our business, financial condition,
results of operations and cash flows could be materially
adversely affected. Please read Cautionary Statement
Regarding Forward-Looking Statements.
RATIOS OF
EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table contains our consolidated ratios of earnings
to fixed charges and earnings to fixed charges and preferred
stock dividends for the periods indicated.
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Concho Resources Inc.
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Inception
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Chase Group
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(April 21,
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Properties
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Six Months
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Years Ended
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2004) through
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Years Ended
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Ended June 30,
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December 31,
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December 31,
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December 31,
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2009
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2008
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2007
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2006
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2005
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2004
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2005
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2004
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Ratios of earnings to fixed charges(a)
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(c
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15.36
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2.00
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1.97
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2.01
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(c
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NM(d
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NM(d
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Ratios of earnings to fixed charges and preferred stock
dividends(b)
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(e
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15.36
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2.00
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1.90
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(f
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(e
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NM(d
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NM(d
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(a) |
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The ratio has been computed by dividing earnings by fixed
charges. For purposes of computing the ratio: |
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earnings include income (loss) before income taxes, adjusted for
interest expense and the portion of rental expense deemed to be
representative of the interest component of rental expense; and |
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fixed charges consist of interest expense, capitalized interest
and the portion of rental expense deemed to be representative of
the interest component of rental expense. |
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(b) |
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The ratio has been computed by dividing earnings by fixed
charges and preferred stock dividends. For purposes of computing
the ratio: |
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earnings include income (loss) before income taxes, adjusted for
interest expense and the portion of rental expense deemed to be
representative of the interest component of rental expense; and |
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fixed charges and preferred stock dividends consist of interest
expense, capitalized interest, the portion of rental expense
deemed to be representative of the interest component of rental
expense and preferred stock dividends. |
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Due to our net loss for the six months ended June 30, 2009
and from inception (April 21, 2004) through
December 31, 2004, the ratio coverage was less than 1:1. To
achieve ratio coverage of 1:1, we would have needed additional
earnings of approximately $80.3 million and
$3.6 million, respectively. |
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Not meaningful, as there were no fixed charges or preferred
stock dividends for these periods. |
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Due to our net loss for the six months ended June 30, 2009
and from inception (April 21, 2004) through
December 31, 2004, the ratio coverage was less than 1:1. To
achieve a ratio coverage of 1:1, we would have needed additional
earnings of approximately $80.3 million and
$4.4 million, respectively. |
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(f) |
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Due to the fixed charges and preferred stock dividends exceeding
earnings for the period, we would have needed additional
earnings of approximately $1.1 million to achieve a ratio
coverage of 1:1. |
4
USE OF
PROCEEDS
Except as may be stated in the applicable prospectus supplement,
we intend to use the net proceeds from any sales of securities
by us under this prospectus for general corporate purposes,
which may include repayment or refinancing of borrowings,
working capital, capital expenditures, investments and
acquisitions. Pending any specific application, we may initially
invest funds in short-term marketable securities or apply them
to repayments of indebtedness.
5
DESCRIPTION
OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities
(Senior Debt Securities) or our subordinated debt
securities (Subordinated Debt Securities). The
Senior Debt Securities and the Subordinated Debt Securities will
be issued under separate indentures among us, the Subsidiary
Guarantors of such Debt Securities, if any, and a trustee to be
determined (the Trustee). Senior Debt Securities
will be issued under a Senior Indenture and
Subordinated Debt Securities will be issued under a
Subordinated Indenture. Together, the Senior
Indenture and the Subordinated Indenture are called
Indentures.
The Debt Securities may be issued from time to time in one or
more series. The particular terms of each series that are
offered by a prospectus supplement will be described in the
prospectus supplement.
Unless the Debt Securities are guaranteed by our subsidiaries as
described below, the rights of Concho and our creditors,
including holders of the Debt Securities, to participate in the
assets of any subsidiary upon the latters liquidation or
reorganization, will be subject to the prior claims of the
subsidiarys creditors, except to the extent that we may
ourself be a creditor with recognized claims against such
subsidiary.
We have summarized selected provisions of the Indentures below.
The summary is not complete. The form of each Indenture has been
filed with the SEC as an exhibit to the registration statement
of which this prospectus is a part, and you should read the
Indentures for provisions that may be important to you.
Capitalized terms used in the summary have the meanings
specified in the Indentures.
General
The Indentures provide that Debt Securities in separate series
may be issued thereunder from time to time without limitation as
to aggregate principal amount. We may specify a maximum
aggregate principal amount for the Debt Securities of any
series. We will determine the terms and conditions of the Debt
Securities, including the maturity, principal and interest, but
those terms must be consistent with the Indenture. The Debt
Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right
of payment to the prior payment in full of all of our Senior
Debt as described under Subordination of
Subordinated Debt Securities and in the prospectus
supplement applicable to any Subordinated Debt Securities. If
the prospectus supplement so indicates, the Debt Securities will
be convertible into our common stock.
If specified in the prospectus supplement respecting a
particular series of Debt Securities, certain subsidiaries of
Concho (each a Subsidiary Guarantor) will fully and
unconditionally guarantee (the Subsidiary Guarantee)
that series as described under Subsidiary
Guarantee and in the prospectus supplement. Each
Subsidiary Guarantee will be an unsecured obligation of the
Subsidiary Guarantor. A Subsidiary Guarantee of Subordinated
Debt Securities will be subordinated to the Senior Debt of the
Subsidiary Guarantor on the same basis as the Subordinated Debt
Securities are subordinated to our Senior Debt.
The applicable prospectus supplement will set forth the price or
prices at which the Debt Securities to be issued will be offered
for sale and will describe the following terms of such Debt
Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities
or Subordinated Debt Securities and, if Subordinated Debt
Securities, the related subordination terms;
(3) whether any Subsidiary Guarantor will provide a
Subsidiary Guarantee of the Debt Securities;
(4) any limit on the aggregate principal amount of the Debt
Securities;
(5) each date on which the principal of the Debt Securities
will be payable;
(6) the interest rate that the Debt Securities will bear
and the interest payment dates for the Debt Securities;
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(7) each place where payments on the Debt Securities will
be payable;
(8) any terms upon which the Debt Securities may be
redeemed, in whole or in part, at our option;
(9) any sinking fund or other provisions that would
obligate us to redeem or otherwise repurchase the Debt
Securities;
(10) the portion of the principal amount, if less than all,
of the Debt Securities that will be payable upon declaration of
acceleration of the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default;
(13) whether the Debt Securities are convertible into our
common stock and, if so, the terms and conditions upon which
conversion will be effected, including the initial conversion
price or conversion rate and any adjustments thereto and the
conversion period;
(14) any addition to or change in the covenants in the
Indenture applicable to the Debt Securities; and
(15) any other terms of the Debt Securities not
inconsistent with the provisions of the Indenture.
Debt Securities, including any Debt Securities that provide for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof (Original Issue Discount Securities), may be
sold at a substantial discount below their principal amount.
Special United States federal income tax considerations
applicable to Debt Securities sold at an original issue discount
may be described in the applicable prospectus supplement. In
addition, special United States federal income tax or other
considerations applicable to any Debt Securities that are
denominated in a currency or currency unit other than United
States dollars may be described in the applicable prospectus
supplement.
Subordination
of Subordinated Debt Securities
The indebtedness evidenced by the Subordinated Debt Securities
will, to the extent set forth in the Subordinated Indenture with
respect to each series of Subordinated Debt Securities, be
subordinated in right of payment to the prior payment in full of
all of our Senior Debt, including the Senior Debt Securities,
and it may also be senior in right of payment to all of our
Subordinated Debt. The prospectus supplement relating to any
Subordinated Debt Securities will summarize the subordination
provisions of the Subordinated Indenture applicable to that
series including:
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the applicability and effect of such provisions upon any payment
or distribution respecting that series following any
liquidation, dissolution or other
winding-up,
or any assignment for the benefit of creditors or other
marshalling of assets or any bankruptcy, insolvency or similar
proceedings;
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the applicability and effect of such provisions in the event of
specified defaults with respect to any Senior Debt, including
the circumstances under which and the periods during which we
will be prohibited from making payments on the Subordinated Debt
Securities; and
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the definition of Senior Debt applicable to the Subordinated
Debt Securities of that series and, if the series is issued on a
senior subordinated basis, the definition of Subordinated Debt
applicable to that series.
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The prospectus supplement will also describe as of a recent date
the approximate amount of Senior Debt to which the Subordinated
Debt Securities of that series will be subordinated.
The failure to make any payment on any of the Subordinated Debt
Securities by reason of the subordination provisions of the
Subordinated Indenture described in the prospectus supplement
will not be construed as preventing the occurrence of an Event
of Default with respect to the Subordinated Debt Securities
arising from any such failure to make payment.
The subordination provisions described above will not be
applicable to payments in respect of the Subordinated Debt
Securities from a defeasance trust established in connection
with any legal defeasance or
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covenant defeasance of the Subordinated Debt Securities as
described under Legal Defeasance and Covenant
Defeasance.
Subsidiary
Guarantee
If specified in the prospectus supplement, one or more of the
Subsidiary Guarantors will guarantee the Debt Securities of a
series. Unless otherwise indicated in the prospectus supplement,
the following provisions will apply to the Subsidiary Guarantee
of the Subsidiary Guarantor.
Subject to the limitations described below and in the prospectus
supplement, one or more of the Subsidiary Guarantors will
jointly and severally, fully and unconditionally guarantee the
punctual payment when due, whether at Stated Maturity, by
acceleration or otherwise, of all our payment obligations under
the Indentures and the Debt Securities of a series, whether for
principal of, premium, if any, or interest on the Debt
Securities or otherwise (all such obligations guaranteed by a
Subsidiary Guarantor being herein called the Guaranteed
Obligations). The Subsidiary Guarantors will also pay all
expenses (including reasonable counsel fees and expenses)
incurred by the applicable Trustee in enforcing any rights under
a Subsidiary Guarantee with respect to a Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary
Guarantors Subsidiary Guarantee will be subordinated in
right of payment to the Senior Debt of such Subsidiary Guarantor
on the same basis as the Subordinated Debt Securities are
subordinated to our Senior Debt. No payment will be made by any
Subsidiary Guarantor under its Subsidiary Guarantee during any
period in which payments by us on the Subordinated Debt
Securities are suspended by the subordination provisions of the
Subordinated Indenture.
Each Subsidiary Guarantee will be limited in amount to an amount
not to exceed the maximum amount that can be guaranteed by the
relevant Subsidiary Guarantor without rendering such Subsidiary
Guarantee voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and
will:
(1) remain in full force and effect until either
(a) payment in full of all the applicable Debt Securities
(or such Debt Securities are otherwise satisfied and discharged
in accordance with the provisions of the applicable Indenture)
or (b) released as described in the following paragraph;
(2) be binding upon each Subsidiary Guarantor; and
(3) inure to the benefit of and be enforceable by the
applicable Trustee, the Holders and their successors,
transferees and assigns.
In the event that (a) a Subsidiary Guarantor ceases to be a
Subsidiary, (b) either legal defeasance or covenant
defeasance occurs with respect to the series or (c) all or
substantially all of the assets or all of the Capital Stock of
such Subsidiary Guarantor is sold, including by way of sale,
merger, consolidation or otherwise, such Subsidiary Guarantor
will be released and discharged of its obligations under its
Subsidiary Guarantee without any further action required on the
part of the Trustee or any Holder, and no other person acquiring
or owning the assets or Capital Stock of such Subsidiary
Guarantor will be required to enter into a Subsidiary Guarantee.
In addition, the prospectus supplement may specify additional
circumstances under which a Subsidiary Guarantor can be released
from its Subsidiary Guarantee.
Form,
Exchange and Transfer
The Debt Securities of each series will be issuable only in
fully registered form, without coupons, and, unless otherwise
specified in the applicable prospectus supplement, only in
denominations of $1,000 and integral multiples thereof.
At the option of the Holder, subject to the terms of the
applicable Indenture and the limitations applicable to Global
Securities, Debt Securities of each series will be exchangeable
for other Debt Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount.
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Subject to the terms of the applicable Indenture and the
limitations applicable to Global Securities, Debt Securities may
be presented for exchange as provided above or for registration
of transfer (duly endorsed or with the form of transfer endorsed
thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by us for such
purpose. No service charge will be made for any registration of
transfer or exchange of Debt Securities, but we may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in that connection. Such transfer or
exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the
request. The Security Registrar and any other transfer agent
initially designated by us for any Debt Securities will be named
in the applicable prospectus supplement. We may at any time
designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through
which any transfer agent acts, except that we will be required
to maintain a transfer agent in each Place of Payment for the
Debt Securities of each series.
If the Debt Securities of any series (or of any series and
specified tenor) are to be redeemed in part, we will not be
required to (1) issue, register the transfer of or exchange
any Debt Security of that series (or of that series and
specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of
mailing of a notice of redemption of any such Debt Security that
may be selected for redemption and ending at the close of
business on the day of such mailing or (2) register the
transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion
of any such Debt Security being redeemed in part.
Global
Securities
Some or all of the Debt Securities of any series may be
represented, in whole or in part, by one or more Global
Securities that will have an aggregate principal amount equal to
that of the Debt Securities they represent. Each Global Security
will be registered in the name of a Depositary or its nominee
identified in the applicable prospectus supplement, will be
deposited with such Depositary or nominee or its custodian and
will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such
other matters as may be provided for pursuant to the applicable
Indenture.
Notwithstanding any provision of the Indentures or any Debt
Security described in this prospectus, no Global Security may be
exchanged in whole or in part for Debt Securities registered,
and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary
for such Global Security or any nominee of such Depositary
unless:
(1) the Depositary has notified us that it is unwilling or
unable to continue as Depositary for such Global Security or has
ceased to be qualified to act as such as required by the
applicable Indenture, and in either case we fail to appoint a
successor Depositary within 90 days;
(2) an Event of Default with respect to the Debt Securities
represented by such Global Security has occurred and is
continuing and the Trustee has received a written request from
the Depositary to issue certificated Debt Securities;
(3) subject to the rules of the Depositary, we shall have
elected to terminate the book-entry system through the
Depositary; or
(4) other circumstances exist, in addition to or in lieu of
those described above, as may be described in the applicable
prospectus supplement.
All certificated Debt Securities issued in exchange for a Global
Security or any portion thereof will be registered in such names
as the Depositary may direct.
As long as the Depositary, or its nominee, is the registered
holder of a Global Security, the Depositary or such nominee, as
the case may be, will be considered the sole owner and Holder of
such Global Security and the Debt Securities that it represents
for all purposes under the Debt Securities and the applicable
Indenture. Except in the limited circumstances referred to
above, owners of beneficial interests in a Global Security will
not be entitled to have such Global Security or any Debt
Securities that it represents registered in their names,
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will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange for those interests and
will not be considered to be the owners or Holders of such
Global Security or any Debt Securities that it represents for
any purpose under the Debt Securities or the applicable
Indenture. All payments on a Global Security will be made to the
Depositary or its nominee, as the case may be, as the Holder of
the security. The laws of some jurisdictions may require that
some purchasers of Debt Securities take physical delivery of
such Debt Securities in certificated form. These laws may impair
the ability to transfer beneficial interests in a Global
Security.
Ownership of beneficial interests in a Global Security will be
limited to institutions that have accounts with the Depositary
or its nominee (participants) and to persons that
may hold beneficial interests through participants. In
connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of Debt
Securities represented by the Global Security to the accounts of
its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those
ownership interests will be effected only through, records
maintained by the Depositary (with respect to participants
interests) or any such participant (with respect to interests of
Persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial
interests in a Global Security may be subject to various
policies and procedures adopted by the Depositary from time to
time. None of us, the Subsidiary Guarantors, the Trustees or the
agents of us, the Subsidiary Guarantors or the Trustees will
have any responsibility or liability for any aspect of the
Depositarys or any participants records relating to,
or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
Payment
and Paying Agents
Unless otherwise indicated in the applicable prospectus
supplement, payment of interest on a Debt Security on any
Interest Payment Date will be made to the Person in whose name
such Debt Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest.
Unless otherwise indicated in the applicable prospectus
supplement, principal of and any premium and interest on the
Debt Securities of a particular series will be payable at the
office of such Paying Agent or Paying Agents as we may designate
for such purpose from time to time, except that at our option
payment of any interest on Debt Securities in certificated form
may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable
prospectus supplement, the corporate trust office of the Trustee
under the Senior Indenture in The City of New York will be
designated as sole Paying Agent for payments with respect to
Senior Debt Securities of each series, and the corporate trust
office of the Trustee under the Subordinated Indenture in The
City of New York will be designated as the sole Paying Agent for
payment with respect to Subordinated Debt Securities of each
series. Any other Paying Agents initially designated by us for
the Debt Securities of a particular series will be named in the
applicable prospectus supplement. We may at any time designate
additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any
Paying Agent acts, except that we will be required to maintain a
Paying Agent in each Place of Payment for the Debt Securities of
a particular series.
All money paid by us to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security
which remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will
be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment.
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Consolidation,
Merger and Sale of Assets
Unless otherwise specified in the prospectus supplement, we may
not consolidate with or merge into, or transfer, lease or
otherwise dispose of all or substantially all of our assets to,
any Person (a successor Person), and may not permit
any Person to consolidate with or merge into us, unless:
(1) the successor Person (if not us) is a corporation,
partnership, trust or other entity organized and validly
existing under the laws of any domestic jurisdiction and assumes
our obligations on the Debt Securities and under the Indentures;
(2) immediately before and after giving pro forma effect to
the transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing; and
(3) several other conditions, including any additional
conditions with respect to any particular Debt Securities
specified in the applicable prospectus supplement, are met.
The successor Person (if not us) will be substituted for us
under the applicable Indenture with the same effect as if it had
been an original party to such Indenture, and, except in the
case of a lease, we will be relieved from any further
obligations under such Indenture and the Debt Securities.
Events of
Default
Unless otherwise specified in the prospectus supplement, each of
the following will constitute an Event of Default under the
applicable Indenture with respect to Debt Securities of any
series:
(1) failure to pay principal of or any premium on any Debt
Security of that series when due, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of
that series when due, continued for 30 days, whether or
not, in the case of Subordinated Debt Securities, such payment
is prohibited by the subordination provisions of the
Subordinated Indenture;
(3) failure to deposit any sinking fund payment, when due,
in respect of any Debt Security of that series, whether or not,
in the case of Subordinated Debt Securities, such deposit is
prohibited by the subordination provisions of the Subordinated
Indenture;
(4) failure to perform or comply with the provisions
described under Consolidation, Merger and Sale
of Assets;
(5) failure to perform any of our other covenants in such
Indenture (other than a covenant included in such Indenture
solely for the benefit of a series other than that series),
continued for 60 days after written notice has been given
by the applicable Trustee, or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that
series, as provided in such Indenture;
(6) any Debt of ourself, any Significant Subsidiary or, if
a Subsidiary Guarantor has guaranteed the series, such
Subsidiary Guarantor, is not paid within any applicable grace
period after final maturity or is accelerated by its holders
because of a default and the total amount of such Debt unpaid or
accelerated exceeds $20.0 million;
(7) any judgment or decree for the payment of money in
excess of $20.0 million is entered against us, any
Significant Subsidiary or, if a Subsidiary Guarantor has
guaranteed the series, such Subsidiary Guarantor, remains
outstanding for a period of 60 consecutive days following entry
of such judgment and is not discharged, waived or stayed;
(8) certain events of bankruptcy, insolvency or
reorganization affecting us, any Significant Subsidiary or, if a
Subsidiary Guarantor has guaranteed the series, such Subsidiary
Guarantor; and
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(9) if any Subsidiary Guarantor has guaranteed such series,
the Subsidiary Guarantee of any such Subsidiary Guarantor is
held by a final non-appealable order or judgment of a court of
competent jurisdiction to be unenforceable or invalid or ceases
for any reason to be in full force and effect (other than in
accordance with the terms of the applicable Indenture) or any
Subsidiary Guarantor or any Person acting on behalf of any
Subsidiary Guarantor denies or disaffirms such Subsidiary
Guarantors obligations under its Subsidiary Guarantee
(other than by reason of a release of such Subsidiary Guarantor
from its Subsidiary Guarantee in accordance with the terms of
the applicable Indenture).
If an Event of Default (other than an Event of Default with
respect to Concho Resources Inc. described in clause (8)
above) with respect to the Debt Securities of any series at the
time Outstanding occurs and is continuing, either the applicable
Trustee or the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of that series by notice as
provided in the Indenture may declare the principal amount of
the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Debt Security, such
portion of the principal amount of such Debt Security as may be
specified in the terms of such Debt Security) to be due and
payable immediately, together with any accrued and unpaid
interest thereon. If an Event of Default with respect to Concho
Resources Inc. described in clause (8) above with respect
to the Debt Securities of any series at the time Outstanding
occurs, the principal amount of all the Debt Securities of that
series (or, in the case of any such Original Issue Discount
Security, such specified amount) will automatically, and without
any action by the applicable Trustee or any Holder, become
immediately due and payable, together with any accrued and
unpaid interest thereon. After any such acceleration and its
consequences, but before a judgment or decree based on
acceleration, the Holders of a majority in principal amount of
the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if
all Events of Default with respect to that series, other than
the non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the applicable
Indenture. For information as to waiver of defaults, see
Modification and Waiver below.
Subject to the provisions of the Indentures relating to the
duties of the Trustees in case an Event of Default has occurred
and is continuing, no Trustee will be under any obligation to
exercise any of its rights or powers under the applicable
Indenture at the request or direction of any of the Holders,
unless such Holders have offered to such Trustee reasonable
security or indemnity. Subject to such provisions for the
indemnification of the Trustees, the Holders of a majority in
principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of that series.
No Holder of a Debt Security of any series will have any right
to institute any proceeding with respect to the applicable
Indenture, or for the appointment of a receiver or a trustee, or
for any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under
the applicable Indenture written notice of a continuing Event of
Default with respect to the Debt Securities of that series;
(2) the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series have made written
request, and such Holder or Holders have offered reasonable
security or indemnity, to the Trustee to institute such
proceeding as trustee; and
(3) the Trustee has failed to institute such proceeding,
and has not received from the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request, within 60 days
after such notice, request and offer.
However, such limitations do not apply to a suit instituted by a
Holder of a Debt Security for the enforcement of payment of the
principal of or any premium or interest on such Debt Security on
or after the applicable due date specified in such Debt Security
or, if applicable, to convert such Debt Security.
We will be required to furnish to each Trustee annually a
statement by certain of our officers as to whether or not we, to
their knowledge, are in default in the performance or observance
of any of the terms, provisions and conditions of the applicable
Indenture and, if so, specifying all such known defaults.
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Modification
and Waiver
We may modify or amend an Indenture without the consent of any
holders of the Debt Securities in certain circumstances,
including:
(1) to evidence the succession under the Indenture of
another Person to us or any Subsidiary Guarantor and to provide
for its assumption of our or such Subsidiary Guarantors
obligations to holders of Debt Securities;
(2) to make any changes that would add any additional
covenants of us or the Subsidiary Guarantors for the benefit of
the holders of Debt Securities or that do not adversely affect
the rights under the Indenture of the Holders of Debt Securities
in any material respect;
(3) to add any additional Events of Default;
(4) to provide for uncertificated notes in addition to or
in place of certificated notes;
(5) to secure the Debt Securities;
(6) to establish the form or terms of any series of Debt
Securities;
(7) to evidence and provide for the acceptance of
appointment under the Indenture of a successor Trustee;
(8) to cure any ambiguity, defect or inconsistency;
(9) to add Subsidiary Guarantors; or
(10) in the case of any Subordinated Debt Security, to make
any change in the subordination provisions that limits or
terminates the benefits applicable to any Holder of Senior Debt.
Other modifications and amendments of an Indenture may be made
by us, the Subsidiary Guarantors, if applicable, and the
applicable Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt
Securities of each series affected by such modification or
amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security;
(2) reduce the principal amount of, or any premium or
interest on, any Debt Security;
(3) reduce the amount of principal of an Original Issue
Discount Security or any other Debt Security payable upon
acceleration of the Maturity thereof;
(4) change the place or currency of payment of principal
of, or any premium or interest on, any Debt Security;
(5) impair the right to institute suit for the enforcement
of any payment due on or any conversion right with respect to
any Debt Security;
(6) modify the subordination provisions in the case of
Subordinated Debt Securities, or modify any conversion
provisions, in either case in a manner adverse to the Holders of
the Subordinated Debt Securities;
(7) except as provided in the applicable Indenture, release
the Subsidiary Guarantee of a Subsidiary Guarantor;
(8) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose
Holders is required for modification or amendment of the
Indenture;
(9) reduce the percentage in principal amount of
Outstanding Debt Securities of any series necessary for waiver
of compliance with certain provisions of the Indenture or for
waiver of certain defaults;
(10) modify such provisions with respect to modification,
amendment or waiver; or
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(11) following the making of an offer to purchase Debt
Securities from any Holder that has been made pursuant to a
covenant in such Indenture, modify such covenant in a manner
adverse to such Holder.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may waive
compliance by us with certain restrictive provisions of the
applicable Indenture. The Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any
series may waive any past default under the applicable
Indenture, except a default in the payment of principal, premium
or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the
Holder of each Outstanding Debt Security of such series.
Each of the Indentures provides that in determining whether the
Holders of the requisite principal amount of the Outstanding
Debt Securities have given or taken any direction, notice,
consent, waiver or other action under such Indenture as of any
date:
(1) the principal amount of an Original Issue Discount
Security that will be deemed to be Outstanding will be the
amount of the principal that would be due and payable as of such
date upon acceleration of maturity to such date;
(2) if, as of such date, the principal amount payable at
the Stated Maturity of a Debt Security is not determinable (for
example, because it is based on an index), the principal amount
of such Debt Security deemed to be Outstanding as of such date
will be an amount determined in the manner prescribed for such
Debt Security;
(3) the principal amount of a Debt Security denominated in
one or more foreign currencies or currency units that will be
deemed to be Outstanding will be the United States-dollar
equivalent, determined as of such date in the manner prescribed
for such Debt Security, of the principal amount of such Debt
Security (or, in the case of a Debt Security described in
clause (1) or (2) above, of the amount described in
such clause); and
(4) certain Debt Securities, including those owned by us,
any Subsidiary Guarantor or any of our other Affiliates, will
not be deemed to be Outstanding.
Except in certain limited circumstances, we will be entitled to
set any day as a record date for the purpose of determining the
Holders of Outstanding Debt Securities of any series entitled to
give or take any direction, notice, consent, waiver or other
action under the applicable Indenture, in the manner and subject
to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date
for action by Holders. If a record date is set for any action to
be taken by Holders of a particular series, only persons who are
Holders of Outstanding Debt Securities of that series on the
record date may take such action. To be effective, such action
must be taken by Holders of the requisite principal amount of
such Debt Securities within a specified period following the
record date. For any particular record date, this period will be
180 days or such other period as may be specified by us (or
the Trustee, if it set the record date), and may be shortened or
lengthened (but not beyond 180 days) from time to time.
Satisfaction
and Discharge
Each Indenture will be discharged and will cease to be of
further effect as to all outstanding Debt Securities of any
series issued thereunder, when:
(1) either:
(a) all outstanding Debt Securities of that series that
have been authenticated (except lost, stolen or destroyed Debt
Securities that have been replaced or paid and Debt Securities
for whose payment money has theretofore been deposited in trust
and thereafter repaid to us) have been delivered to the Trustee
for cancellation; or
(b) all outstanding Debt Securities of that series that
have been not delivered to the Trustee for cancellation have
become due and payable or will become due and payable at their
Stated Maturity within one year or are to be called for
redemption within one year under arrangements satisfactory to
the Trustee and in any case we have irrevocably deposited with
the Trustee as trust funds money in an
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amount sufficient, without consideration of any reinvestment of
interest, to pay the entire indebtedness of such Debt Securities
not delivered to the Trustee for cancellation, for principal,
premium, if any, and accrued interest to the Stated Maturity or
redemption date;
(2) we have paid or caused to be paid all other sums
payable by us under the Indenture with respect to the Debt
Securities of that series; and
(3) we have delivered an Officers Certificate and an
Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge of the Indenture with
respect to the Debt Securities of that series have been
satisfied.
Legal
Defeasance and Covenant Defeasance
To the extent indicated in the applicable prospectus supplement,
we may elect, at our option at any time, to have our obligations
discharged under provisions relating to defeasance and discharge
of indebtedness, which we call legal defeasance, or
relating to defeasance of certain restrictive covenants applied
to the Debt Securities of any series, or to any specified part
of a series, which we call covenant defeasance.
Legal Defeasance. The Indentures provide that,
upon our exercise of our option (if any) to have the legal
defeasance provisions applied to any series of Debt Securities,
we and, if applicable, each Subsidiary Guarantor will be
discharged from all our obligations, and, if such Debt
Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination will cease
to be effective, with respect to such Debt Securities (except
for certain obligations to convert, exchange or register the
transfer of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies and to
hold moneys for payment in trust) upon the deposit in trust for
the benefit of the Holders of such Debt Securities of money or
U.S. Government Obligations, or both, which, through the
payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants) to pay the principal of and any
premium and interest on such Debt Securities on the respective
Stated Maturities in accordance with the terms of the applicable
Indenture and such Debt Securities. Such defeasance or discharge
may occur only if, among other things:
(1) we have delivered to the applicable Trustee an Opinion
of Counsel to the effect that we have received from, or there
has been published by, the United States Internal Revenue
Service a ruling, or there has been a change in tax law, in
either case to the effect that Holders of such Debt Securities
will not recognize gain or loss for federal income tax purposes
as a result of such deposit and legal defeasance and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and legal defeasance were not to occur;
(2) no Event of Default or event that with the passing of
time or the giving of notice, or both, shall constitute an Event
of Default shall have occurred and be continuing at the time of
such deposit or, with respect to any Event of Default described
in clause (8) under Events of
Default, at any time until 121 days after such
deposit;
(3) such deposit and legal defeasance will not result in a
breach or violation of, or constitute a default under, any
agreement or instrument (other than the applicable Indenture) to
which we are a party or by which we are bound;
(4) in the case of Subordinated Debt Securities, at the
time of such deposit, no default in the payment of all or a
portion of principal of (or premium, if any) or interest on any
Senior Debt shall have occurred and be continuing, no event of
default shall have resulted in the acceleration of any Senior
Debt and no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting after
notice or the lapse of time, or both, the acceleration
thereof; and
(5) we have delivered to the Trustee an Opinion of Counsel
to the effect that such deposit shall not cause the Trustee or
the trust so created to be subject to the Investment Company Act
of 1940.
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Covenant Defeasance. The Indentures provide
that, upon our exercise of our option (if any) to have the
covenant defeasance provisions applied to any Debt Securities,
we may fail to comply with certain restrictive covenants (but
not with respect to conversion, if applicable), including those
that may be described in the applicable prospectus supplement,
and the occurrence of certain Events of Default, which are
described above in clause (5) (with respect to such restrictive
covenants) and clauses (6), (7) and (9) under
Events of Default and any that may be described in
the applicable prospectus supplement, will not be deemed to
either be or result in an Event of Default and, if such Debt
Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination will cease
to be effective, in each case with respect to such Debt
Securities. In order to exercise such option, we must deposit,
in trust for the benefit of the Holders of such Debt Securities,
money or U.S. Government Obligations, or both, which,
through the payment of principal and interest in respect thereof
in accordance with their terms, will provide money in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants) to pay the principal of and any
premium and interest on such Debt Securities on the respective
Stated Maturities in accordance with the terms of the applicable
Indenture and such Debt Securities. Such covenant defeasance may
occur only if we have delivered to the applicable Trustee an
Opinion of Counsel to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit and covenant defeasance
and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the
case if such deposit and covenant defeasance were not to occur,
and the requirements set forth in clauses (2), (3), (4) and
(5) above are satisfied. If we exercise this option with
respect to any series of Debt Securities and such Debt
Securities were declared due and payable because of the
occurrence of any Event of Default, the amount of money and
U.S. Government Obligations so deposited in trust would be
sufficient to pay amounts due on such Debt Securities at the
time of their respective Stated Maturities but may not be
sufficient to pay amounts due on such Debt Securities upon any
acceleration resulting from such Event of Default. In such case,
we would remain liable for such payments.
If we exercise either our legal defeasance or covenant
defeasance option, any Subsidiary Guarantee will terminate.
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator, stockholder,
member, partner or trustee of the Company or any Subsidiary
Guarantor, as such, shall have any liability for any obligations
of the Company or any Subsidiary Guarantor under the Debt
Securities, the Indentures or any Subsidiary Guarantees or for
any claim based on, in respect of, or by reason of, such
obligations or their creation. By accepting a Debt Security,
each Holder shall be deemed to have waived and released all such
liability. The waiver and release shall be a part of the
consideration for the issue of the Debt Securities. The waiver
may not be effective to waive liabilities under the federal
securities laws, and it is the view of the SEC that such a
waiver is against public policy.
Notices
Notices to Holders of Debt Securities will be given by mail to
the addresses of such Holders as they may appear in the Security
Register.
Title
We, the Subsidiary Guarantors, the Trustees and any agent of us,
the Subsidiary Guarantors or a Trustee may treat the Person in
whose name a Debt Security is registered as the absolute owner
of the Debt Security (whether or not such Debt Security may be
overdue) for the purpose of making payment and for all other
purposes.
Governing
Law
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York.
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The
Trustee
We will enter into the Indentures with a Trustee that is
qualified to act under the Trust Indenture Act of 1939, as
amended, and with any other Trustees chosen by us and appointed
in a supplemental indenture for a particular series of Debt
Securities. We may maintain a banking relationship in the
ordinary course of business with our Trustee and one or more of
its affiliates.
Resignation or Removal of Trustee. If the
Trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee must either
eliminate its conflicting interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and the applicable Indenture. Any
resignation will require the appointment of a successor Trustee
under the applicable Indenture in accordance with the terms and
conditions of such Indenture.
The Trustee may resign or be removed by us with respect to one
or more series of Debt Securities and a successor Trustee may be
appointed to act with respect to any such series. The holders of
a majority in aggregate principal amount of the Debt Securities
of any series may remove the Trustee with respect to the Debt
Securities of such series.
Limitations on Trustee if It Is Our
Creditor. Each Indenture will contain certain
limitations on the right of the Trustee, in the event that it
becomes our creditor, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of
any such claim as security or otherwise.
Certificates and Opinions to Be Furnished to
Trustee. Each Indenture will provide that, in
addition to other certificates or opinions that may be
specifically required by other provisions of an Indenture, every
application by us for action by the Trustee must be accompanied
by an Officers Certificate and an Opinion of Counsel
stating that, in the opinion of the signers, all conditions
precedent to such action have been complied with by us.
17
DESCRIPTION
OF CAPITAL STOCK
The following summary of our capital stock, Restated Certificate
of Incorporation (the Certificate of Incorporation)
and Amended and Restated Bylaws (the Bylaws) does
not purport to be complete and is qualified in its entirety by
reference to the provisions of applicable law and to our
Certificate of Incorporation and Bylaws.
Our authorized capital stock consists of 300,000,000 shares
of common stock, $0.001 par value per share, and
10,000,000 shares of preferred stock, $0.001 par value
per share.
Common
Stock
As of September 1, 2009, we had 85,562,638 shares of
voting common stock outstanding, including 467,692 shares
of restricted stock. The shares of restricted stock have voting
rights, rights to receive dividends and are subject to certain
forfeiture restrictions.
Our common stock commenced trading on the NYSE under the symbol
CXO on August 3, 2007 in connection with our
initial public offering. As of September 1, 2009, there
were 41,941 holders of record of our common stock.
Holders of our common stock are entitled to one vote for each
share held on all matters submitted to a vote of stockholders
and do not have cumulative voting rights. Accordingly, holders
of a majority of the shares of our common stock entitled to vote
in any election of directors may elect all of the directors
standing for election.
Holders of our common stock are entitled to receive
proportionately any dividends if and when such dividends are
declared by our board of directors, subject to any preferential
dividend rights of preferred stock that may be outstanding at
the time such dividends are declared. Upon the liquidation,
dissolution or winding up of our company, the holders of our
common stock are entitled to receive ratably our net assets
available after the payment of all debts and other liabilities
and subject to the prior rights of any outstanding preferred
stock. Holders of our common stock have no preemptive,
subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of our common stock are
subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock that we may
designate and issue in the future.
We have not paid, and do not intend to pay in the foreseeable
future, cash dividends on our common stock.
There are no redemption or sinking fund provisions applicable to
our common stock. All outstanding shares of our common stock are
fully paid and non-assessable.
Preferred
Stock
Under the terms of our Certificate of Incorporation, our board
of directors is authorized to designate and issue shares of
preferred stock in one or more series without further vote or
action by our stockholders. Our board of directors has the
discretion to determine the rights, preferences, privileges and
restrictions, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation
preferences, of each series of preferred stock. It is not
possible to state the actual effect of the issuance of any
shares of preferred stock upon the rights of holders of the
common stock until the board of directors determines the
specific rights of the holders of the preferred stock. However,
these effects might include:
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; and
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delaying or preventing a change in control of our company.
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We currently have no shares of preferred stock outstanding, and
we have no present plans to issue any shares of preferred stock.
Anti-Takeover
Provisions of Our Certificate of Incorporation and
Bylaws
Our Certificate of Incorporation and Bylaws contain several
provisions that could delay or make more difficult the
acquisition of us through a hostile tender offer, open market
purchases, proxy contest, merger or other takeover attempt that
a stockholder might consider in his or her best interest,
including those attempts that might result in a premium over the
market price of our common stock.
Written
Consent of Stockholders
Our Certificate of Incorporation and Bylaws provide that any
action required or permitted to be taken by our stockholders
must be taken at a duly called meeting of stockholders and not
by written consent.
Special
Meetings of Stockholders
Subject to the rights of the holders of any series of preferred
stock, our Bylaws provide that special meetings of the
stockholders may only be called by the chairman of the board of
directors or by the resolution of our board of directors
approved by a majority of the total number of authorized
directors. No business other than that stated in a notice may be
transacted at any special meeting.
Advance
Notice Procedure for Director Nominations and Stockholder
Proposals
Our Bylaws provide that adequate notice must be given to
nominate candidates for election as directors or to make
proposals for consideration at annual meetings of our
stockholders. For nominations or other business to be properly
brought before an annual meeting by a stockholder, the
stockholder must have delivered a written notice to the
Secretary of our company at our principal executive offices not
less than 45 calendar days nor more than 75 calendar days prior
to the first anniversary of the date on which we first mailed
our proxy materials for the preceding years annual
meeting; provided, however, that in the event that the date of
the annual meeting is more than 30 calendar days before or more
than 30 calendar days after the first anniversary of the date of
the preceding years annual meeting notice by the
stockholder to be timely must be so delivered not later than the
close of business on the later of the 90th calendar day
prior to such annual meeting or the 10th calendar day
following the calendar day on which public announcement, if any,
of the date of such meeting is first made by us.
Nominations of persons for election to our board of directors
may be made at a special meeting of stockholders at which
directors are to be elected pursuant to our notice of meeting
(i) by or at the direction of our board of directors, or
(ii) by any stockholder of our company who is a stockholder
of record at the time of the giving of notice of the meeting,
who is entitled to vote at the meeting and who complies with the
notice procedures set forth in our Bylaws. In the event we call
a special meeting of stockholders for the purpose of electing
one or more directors to our board of directors, any stockholder
may nominate a person or persons (as the case may be) for
election to such position(s) if the stockholder provides written
notice to the Secretary of our company at our principal
executive offices not earlier than the close of business on the
90th calendar day prior to such special meeting, nor later
than the close of business on the later of the
70th calendar day prior to such special meeting or the
10th calendar day following the day on which public
announcement, if any, is first made of the date of the special
meeting and of the nominees proposed by our board of directors
to be elected at such meeting.
These procedures may operate to limit the ability of
stockholders to bring business before a stockholders meeting,
including the nomination of directors and the consideration of
any transaction that could result in a change in control and
that may result in a premium to our stockholders
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Classified
Board
Our Certificate of Incorporation divides our directors into
three classes serving staggered three-year terms. As a result,
stockholders will elect approximately one-third of the board of
directors each year. This provision, when coupled with
provisions of our Certificate of Incorporation authorizing only
the board of directors to fill vacant or newly created
directorships or increase the size of the board of directors and
provisions providing that directors may only be removed for
cause and then only by the holders of not less than
662/3%
of the voting power of all outstanding voting stock, may deter a
stockholder from gaining control of our board of directors by
removing incumbent directors or increasing the number of
directorships and simultaneously filling the vacancies or newly
created directorships with its own nominees.
Authorized
Capital Stock
Our Certificate of Incorporation contains provisions that the
authorized but unissued shares of common stock and preferred
stock are available for future issuance, subject to various
limitations imposed by the New York Stock Exchange. These
additional shares may be utilized for a variety of corporate
purposes, including public offerings to raise capital, corporate
acquisitions and employee benefit plans. The existence of
authorized but unissued shares of common stock and preferred
stock could make it more difficult or discourage an attempt to
obtain control of our company by means of a proxy contest,
tender offer, merger or otherwise.
Amendment
of Bylaws
Under Delaware law, the power to adopt, amend or repeal bylaws
is conferred upon the stockholders. A corporation may, however,
in its certificate of incorporation also confer upon the board
of directors the power to adopt, amend or repeal its bylaws. Our
Certificate of Incorporation and Bylaws grant our board of
directors the power to adopt, amend and repeal our Bylaws on the
affirmative vote of a majority of the directors then in office.
Our stockholders may adopt, amend or repeal our Bylaws but only
at any regular or special meeting of stockholders by the holders
of not less than
662/3%
of the voting power of all outstanding voting stock.
Certain
Oil and Natural Gas Opportunities
Certain of our stockholders who received shares of common stock
in the combination transaction and our non-employee
directors may from time to time have investments in other
exploration and production companies that may compete with us.
Our certificate of incorporation and our Business Opportunities
Agreement provide a safe harbor under which these entities and
directors may participate in the oil and gas exploration,
exploitation, development and production business without
breaching their fiduciary duties as controlling stockholders or
directors. No participation is allowed with respect to:
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any business opportunity that is brought to the attention of a
covered individual or entity solely in such persons
capacity as a director or officer of our company and with
respect to which, at the time of such presentment, no other
covered individual or entity has independently received notice
or otherwise identified such opportunity; or
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any business opportunity that is identified by a covered
individual or entity solely through the disclosure of
information by or on behalf of us.
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The covered individuals and entities have no obligation to offer
such opportunities to us, but interested directors are required
to disclose conflicts of interest. We are not prohibited from
pursuing any business opportunity with respect to which we have
renounced any interest.
Limitation
of Liability of Directors
Our Certificate of Incorporation provides that no director shall
be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability as follows:
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for any breach of the directors duty of loyalty to us or
our stockholders;
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for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of laws;
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for unlawful payment of a dividend or unlawful stock purchase or
stock redemption; and
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for any transaction from which the director derived an improper
personal benefit.
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The effect of these provisions is to eliminate our rights and
our stockholders rights, through stockholders
derivative suits on our behalf, to recover monetary damages
against a director for a breach of fiduciary duty as a director,
including breaches resulting from grossly negligent behavior,
except in the situations described above.
Delaware
Takeover Statute
We are subject to Section 203 of the Delaware General
Corporation Law, which prohibits a Delaware corporation from
engaging in any business combination with any interested
stockholder for a period of three years after the date that such
stockholder became an interested stockholder, with the following
exceptions:
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before such date, the board of directors of the corporation
approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder
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upon completion of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction began,
excluding for purposes of determining the voting stock
outstanding (but not the outstanding voting stock owned by the
interested stockholder) those shares owned (1) by persons
who are directors and also officers and (2) employee stock
plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
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on or after such date, the business combination is approved by
the board of directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the
affirmative vote of at least
662/3%
of the outstanding voting stock that is not owned by the
interested stockholder.
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In general, Section 203 defines a business combination to
include the following:
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any merger or consolidation involving the corporation and the
interested stockholder;
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any sale, transfer, pledge or other disposition (in one
transaction or a series of transactions) of 10% or more of the
assets of the corporation involving the interested stockholder;
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subject to certain exceptions, any transaction that results in
the issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock or any class or
series of the corporation beneficially owned by the interested
stockholder; or
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the receipt by the interested stockholder of the benefit of any
loss, advances, guarantees, pledges or other financial benefits
by or through the corporation.
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In general, Section 203 defines an interested
stockholder as an entity or person who, together with the
persons affiliates and associates, beneficially owns, or
within three years prior to the time of determination of
interested stockholder status did own, 15% or more of the
outstanding voting stock of the corporation.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company.
21
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of our common stock.
Warrants may be issued independently or together with Debt
Securities, preferred stock or common stock offered by any
prospectus supplement and may be attached to or separate from
any such offered securities. Each series of warrants will be
issued under a separate warrant agreement to be entered into
between us and a bank or trust company, as warrant agent, all as
set forth in the prospectus supplement relating to the
particular issue of warrants. The warrant agent will act solely
as our agent in connection with the warrants and will not assume
any obligation or relationship of agency or trust for or with
any holders of warrants or beneficial owners of warrants. The
following summary of certain provisions of the warrants does not
purport to be complete and is subject to, and is qualified in
its entirety by reference to, all provisions of the warrant
agreements.
You should refer to the prospectus supplement relating to a
particular issue of warrants for the terms of and information
relating to the warrants, including, where applicable:
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(1)
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the number of shares of common stock purchasable upon exercise
of the warrants and the price at which such number of shares of
common stock may be purchased upon exercise of the warrants;
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(2)
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the date on which the right to exercise the warrants commences
and the date on which such right expires (the Expiration
Date);
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(3)
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United States federal income tax consequences applicable to the
warrants;
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(4)
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the amount of the warrants outstanding as of the most recent
practicable date; and
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(5)
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any other terms of the warrants.
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Warrants will be offered and exercisable for United States
dollars only. Warrants will be issued in registered form only.
Each warrant will entitle its holder to purchase such number of
shares of common stock at such exercise price as is in each case
set forth in, or calculable from, the prospectus supplement
relating to the warrants. The exercise price may be subject to
adjustment upon the occurrence of events described in such
prospectus supplement. After the close of business on the
Expiration Date (or such later date to which we may extend such
Expiration Date), unexercised warrants will become void. The
place or places where, and the manner in which, warrants may be
exercised will be specified in the prospectus supplement
relating to such warrants.
Prior to the exercise of any warrants, holders of the warrants
will not have any of the rights of holders of common stock,
including the right to receive payments of any dividends on the
common stock purchasable upon exercise of the warrants, or to
exercise any applicable right to vote.
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PLAN OF
DISTRIBUTION
We may sell the offered securities in and outside the United
States (1) through underwriters or dealers,
(2) directly to purchasers, including our affiliates and
stockholders, (3) through agents or (4) through a
combination of any of these methods. The prospectus supplement
will include the following information:
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the terms of the offering;
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the names of any underwriters or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities;
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the estimated net proceeds to us from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items
constituting underwriters compensation;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any commissions paid to agents.
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Sale
Through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will
acquire the securities for their own account for resale to the
public, either on a firm commitment basis or a best efforts
basis. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying
prices determined at the time of sale. Underwriters may offer
securities to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by
one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to
certain conditions. The underwriters may change from time to
time any offering price and any discounts or concessions allowed
or reallowed or paid to dealers.
During and after an offering through underwriters, the
underwriters may purchase and sell the securities in the open
market. These transactions may include overallotment and
stabilizing transactions and purchases to cover syndicate short
positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that
selling concessions allowed to syndicate members or other
broker-dealers for the offered securities sold for their account
may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail
in the open market. If commenced, the underwriters may
discontinue these activities at any time.
If dealers are used, we will sell the securities to them as
principals. The dealers may then resell those securities to the
public at varying prices determined by the dealers at the time
of resale. We will include in the prospectus supplement the
names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may sell the securities directly. In this case, no
underwriters or agents would be involved. We may also sell the
securities through agents designated from time to time. In the
prospectus supplement, we will name any agent involved in the
offer or sale of the offered securities, and we will describe
any commissions payable to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to
use its reasonable best efforts to solicit purchases for the
period of its appointment.
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We may sell the securities directly to institutional investors
or others who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any sale of
securities. We will describe the terms of any such sales in the
prospectus supplement.
Remarketing
Arrangements
Offered securities may also be offered and sold, if so indicated
in the applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more remarketing firms, acting as principals for their own
accounts or as agents for us. Any remarketing firm will be
identified and the terms of its agreements, if any, with us and
its compensation will be described in the applicable prospectus
supplement. Remarketing firms may be deemed to be underwriters,
as that term is defined in the Securities Act, in connection
with the securities remarketed.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities from us at the
public offering price under delayed delivery contracts. These
contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those
conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for
solicitation of those contracts.
General
Information
We may have agreements with the agents, dealers, underwriters
and remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or
to contribute with respect to payments that the agents, dealers,
underwriters or remarketing firms may be required to make.
Agents, dealers, underwriters and remarketing firms may be
customers of, engage in transactions with, or perform services
for us in the ordinary course of their businesses.
LEGAL
MATTERS
Certain legal matters in connection with the securities will be
passed upon by Vinson & Elkins L.L.P., Houston, Texas,
as our counsel. Any underwriter or agent will be advised about
other issues relating to any offering by its own legal counsel.
EXPERTS
The (i) consolidated financial statements of Concho
Resources Inc. and subsidiaries incorporated in this prospectus
by reference to our Annual Report on
Form 10-K
for the year ended December 31, 2008, retrospectively
adjusted by our Current Report on
Form 8-K
filed on September 9, 2009 and (ii) managements
assessment of the effectiveness of internal control over
financial reporting incorporated in this prospectus by reference
to our Annual Report on
Form 10-K
for the year ended December 31, 2008 have been so
incorporated by reference in reliance upon the reports of Grant
Thornton LLP, independent registered public accountants, upon
the authority of said firm as experts in auditing and accounting
in giving said reports.
The special-purpose combined financial statements of the Henry
Group Properties as of December 31, 2007 and 2006, and for
each of the years in the three-year period ended
December 31, 2007 incorporated in this prospectus by
reference to the Current Reports on
Form 8-K
filed on August 6, 2008 and October 7, 2008 have been
so incorporated by reference in reliance upon the report of
Davis, Kinard & Co., P.C., independent registered
public accounting firm, upon the authority of said firm as
experts in accounting and auditing.
Certain estimates of our net crude oil and natural gas reserves
and related information included or incorporated by reference in
this prospectus have been derived from reports prepared by
Cawley, Gillespie & Associates, Inc. and Netherland,
Sewell & Associates, Inc. All such information has
been so included or incorporated by reference on the authority
of such firms as experts regarding the matters contained in
their reports.
24
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14.
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Other
Expenses of Issuance and Distribution
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Set forth below are the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities registered
hereby:
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Securities and Exchange Commission registration fee
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$
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*
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FINRA filing fee
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$
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75,500
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Legal fees and expenses
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$
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**
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Accounting fees and expenses
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$
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**
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Printing and engraving expenses
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$
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**
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Rating agency fees
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$
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**
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Miscellaneous
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$
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**
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TOTAL
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$
|
**
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* |
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The registrants are deferring payment of the registration fee in
reliance on Rule 456(b) and Rule 457(r). |
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** |
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These fees are calculated based on the number of issuances and
amount of securities offered and accordingly cannot be estimated
at this time. |
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ITEM 15.
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Indemnification
of Directors and Officers
|
Section 145 of the Delaware General Corporation Law
(DGCL) provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Section 145 further provides that a
corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys fees) actually and reasonably
incurred in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed
to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or such other court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
Delaware law provides that directors of a corporation will not
be personally liable to the corporation or its stockholders for
monetary damages for breach of their fiduciary duties as
directors, except for liability:
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for any breach of their duty of loyalty to the corporation or
its stockholders;
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for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
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II-1
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under Section 174 of the DGCL relating to unlawful payments
of dividends or unlawful stock repurchases or
redemptions; or
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for any transaction from which the director derived an improper
personal benefit.
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Our Restated Certificate of Incorporation provides that we shall
indemnify our officers and directors to the extent provided in
our Amended and Restated Bylaws (our Bylaws). In
turn, our Bylaws provide that we will indemnify and hold
harmless, to the full extent provided by the DGCL, any of our
officers or directors (including those persons serving as an
officer or director of another entity at our request) who is
party to a suit or other proceeding by reason of his or her
position as an officer or director against all reasonably
incurred expense, liability or loss. We may only indemnify an
officer or director who brought the suit or proceeding if our
board of directors had previously authorized such suit or
proceeding. The rights to indemnification provided by our Bylaws
include the right to advancement of expenses to the full extent
provided by the DGCL. In addition, our Bylaws allow us to
indemnify our non-officer employees and agents to the extent
(i) permitted by the DGCL and (ii) authorized by our
Chief Executive Officer and at least one other authorized
officer.
We have also entered into indemnification agreements with all of
our directors and executive officers These indemnification
agreements are intended to permit indemnification to the fullest
extent now or hereafter permitted by the DGCL. It is possible
that the applicable law could change the degree to which
indemnification is expressly permitted.
The indemnification agreements cover expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement incurred as a result of the fact that such person, in
his or her capacity as a director or officer, is made or
threatened to be made a party to any suit or proceeding. The
indemnification agreements generally cover claims relating to
the fact that the indemnified party is or was an officer,
director, employee or agent of us or any of our affiliates, or
is or was serving at our request in such a position for another
entity. The indemnification agreements also obligate us to
promptly advance all reasonable expenses incurred in connection
with any claim. The indemnitee is, in turn, obligated to
reimburse us for all amounts so advanced if it is later
determined that the indemnitee is not entitled to
indemnification. The indemnification provided under the
indemnification agreements is not exclusive of any other
indemnity rights; however, double payment to the indemnitee is
prohibited.
We are not obligated to indemnify the indemnitee with respect to
claims brought by the indemnitee against:
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claims regarding the indemnitees rights under the
indemnification agreement;
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claims to enforce a right to indemnification under any statute
or law; and
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counter-claims against us in a proceeding brought by us against
the indemnitee; or
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any other person, except for claims approved by our board of
directors.
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We have obtained director and officer liability insurance for
the benefit of each of the indemnitees. These policies include
coverage for losses for wrongful acts and omissions and to
ensure our performance under the indemnification agreements.
Each of the indemnitees are insured under such policies and
provided with the same rights and benefits as are accorded to
the most favorably insured of our directors and officers.
II-2
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ITEM 16.
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Exhibits
and Financial Statement Schedules
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The following documents are filed as exhibits to this
registration statement:
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Exhibit
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Number
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Exhibit Title
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1
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.1**
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Form of Underwriting Agreement.
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3
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.1
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Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on August 8, 2007).
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3
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.2
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Amended and Restated Bylaws of Concho Resources Inc., as amended
March 25, 2008 (incorporated by reference to
Exhibit 3.1 to the Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on March 26, 2008).
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4
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.1
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Specimen Stock Certificate (incorporated by reference to
Exhibit 4.1 of the Registration Statement on
Form S-1
(file
no. 333-142315)
filed on July 5, 2007).
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4
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.2*
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Form of Senior Indenture.
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4
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.3*
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Form of Subordinated Indenture.
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4
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.4**
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Form of Warrant Agreement.
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4
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.5**
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Form of Depositary Agreement.
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4
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.6
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Registration Rights Agreement dated February 27, 2006,
among Concho Resources Inc. and the other signatories thereto
(incorporated by reference to Exhibit 10.12 to the
Registration Statement on
Form S-1
(file
no. 333-142315)
filed on April 24, 2007).
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4
|
.7
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Registration Rights Agreement, dated July 31, 2008, by and
between Concho Resources Inc. and the purchasers named therein
(incorporated by reference to Exhibit 10.1 to the
Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on August 6, 2008).
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5
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.1*
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Opinion of Vinson & Elkins L.L.P. as to the legality
of the securities being registered.
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12
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.1*
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Statement of Computation of Ratios of Earnings to Fixed Charges
and Earnings to Fixed Charges and Preferred Stock Dividends.
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23
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.1*
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Consent of Grant Thornton LLP, independent registered public
accounting firm.
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23
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.2*
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Consent of Davis, Kinard & Co., P.C., independent
registered public accounting firm.
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23
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.3*
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Consent of Vinson & Elkins L.L.P. (contained in
Exhibit 5.1 hereto).
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23
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.4*
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Consent of Cawley, Gillespie & Associates, Inc.
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23
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.5*
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Consent of Netherland, Sewell & Associates, Inc.
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24
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.1*
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Power of Attorney (included on the signature page to this
Registration Statement).
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25
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.1*
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Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 respecting the Senior Indenture.
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25
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.2***
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Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 respecting the Subordinated
Indenture.
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* |
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Filed herewith. |
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** |
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To be filed as an exhibit to a report pursuant to
Section 13(a) or 15(d) of the Exchange Act or in a
post-effective amendment to this registration statement. |
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*** |
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To be filed in accordance with Section 310(a) of the
Trust Indenture Act of 1939, as amended. |
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(b)
|
Financial
Statement Schedules.
|
No financial statement schedules are included herein. All other
schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission
are not required under the related instructions, are
inapplicable, or the information is included in the consolidated
financial statements, and have therefore been omitted.
II-3
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(c)
|
Reports,
Opinions, and Appraisals.
|
The following reports, opinions, and appraisals are included
herein: None.
Each undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
a. To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933 (the
Securities Act);
b. To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement;
c. To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs 1(a), 1(b)
and 1(c) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or
15(d) of the Exchange Act that are incorporated by reference in
the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
2. That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
4. That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
a. Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
b. Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser
II-4
with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
5. That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
a. Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
b. Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
c. The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
d. Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
6. That, for purposes of determining any liability under
the Securities Act, each filing of the registrants annual
report pursuant to section 13(a) or section 15(d) of
the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
7. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
8. To file an application for the purpose of determining
the eligibility of the trustee under the Subordinated Indenture
to act under subsection (a) of Section 310 of the
Trust Indenture Act of 1939, as amended (the
Act) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the
Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Midland, in the State of Texas, on September 9,
2009.
CONCHO RESOURCES INC.
Name: Timothy A. Leach
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Title:
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Chairman, Chief Executive Officer and President
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POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy A. Leach, Darin
G. Holderness and David W. Copeland, and each of them severally,
his true and lawful attorney or attorneys-in-fact and agents,
with full power to act with or without the others and with full
power of substitution and resubstitution, to execute in his
name, place and stead, in any and all capacities, any or all
amendments (including pre-effective and post-effective
amendments) to this Registration Statement and any registration
statement for the same offering filed pursuant to Rule 462
under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents and
each of them, full power and authority to do and perform in the
name of on behalf of the undersigned, in any and all capacities,
each and every act and thing necessary or desirable to be done
in and about the premises, to all intents and purposes and as
fully as they might or could do in person, hereby ratifying,
approving and confirming all that said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done
by virtue hereof. Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been
signed below by the following persons in the capacities and on
the dates indicated.
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Signature
|
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Title
|
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Date
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/s/ TIMOTHY
A. LEACH
Timothy
A. Leach
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Chairman, Chief Executive Officer, President and Director
(principal executive officer)
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September 9, 2009
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/s/ DARIN
G. HOLDERNESS
Darin
G. Holderness
|
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Vice President, Chief Financial Officer and Treasurer (principal
financial and accounting officer)
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September 9, 2009
|
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/s/ STEVEN
L. BEAL
Steven
L. Beal
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Director
|
|
September 9, 2009
|
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/s/ TUCKER
S. BRIDWELL
Tucker
S. Bridwell
|
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Director
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|
September 9, 2009
|
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/s/ WILLIAM
H. EASTER III
William
H. Easter III
|
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Director
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|
September 9, 2009
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II-6
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Signature
|
|
Title
|
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Date
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/s/ W.
HOWARD KEENAN, JR.
W.
Howard Keenan, Jr.
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Director
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September 9, 2009
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/s/ RAY
M. POAGE
Ray
M. Poage
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Director
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September 9, 2009
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/s/ A.
WELLFORD TABOR
A.
Wellford Tabor
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Director
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September 9, 2009
|
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, each of the registrants has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Midland,
in the State of Texas, on September 9, 2009.
COG OPERATING LLC
COG REALTY LLC
CONCHO ENERGY SERVICES LLC
QUAIL RANCH LLC
Name: Timothy A. Leach
Title: Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy A. Leach, Darin
G. Holderness and David W. Copeland, and each of them severally,
his true and lawful attorney or attorneys-in-fact and agents,
with full power to act with or without the others and with full
power of substitution and resubstitution, to execute in his
name, place and stead, in any and all capacities, any or all
amendments (including pre-effective and post-effective
amendments) to this Registration Statement and any registration
statement for the same offering filed pursuant to Rule 462
under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents and
each of them, full power and authority to do and perform in the
name of on behalf of the undersigned, in any and all capacities,
each and every act and thing necessary or desirable to be done
in and about the premises, to all intents and purposes and as
fully as they might or could do in person, hereby ratifying,
approving and confirming all that said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by
the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/ TIMOTHY
A. LEACH
Timothy
A. Leach
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Chief Executive Officer*
(principal executive officer)
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September 9, 2009
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/s/ DARIN
G. HOLDERNESS
Darin
G. Holderness
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Vice President, Chief Financial Officer and Treasurer
(principal financial and accounting officer)
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September 9, 2009
|
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* |
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Timothy A. Leach serves as (i) the Chief Executive Officer
of Concho Resources Inc., which is the sole member of COG
Operating LLC and COG Realty LLC and (ii) the Chief
Executive Officer of COG Operating LLC, which is the sole member
of Concho Energy Services LLC and Quail Ranch LLC. |
II-8
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Exhibit
|
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Number
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Exhibit Title
|
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1
|
.1**
|
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Form of Underwriting Agreement.
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3
|
.1
|
|
Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on August 8, 2007).
|
|
3
|
.2
|
|
Amended and Restated Bylaws of Concho Resources Inc., as amended
March 25, 2008 (incorporated by reference to
Exhibit 3.1 to the Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on March 26, 2008).
|
|
4
|
.1
|
|
Specimen Stock Certificate (incorporated by reference to
Exhibit 4.1 of the Registration Statement on
Form S-1
(file
no. 333-142315)
filed on July 5, 2007).
|
|
4
|
.2*
|
|
Form of Senior Indenture.
|
|
4
|
.3*
|
|
Form of Subordinated Indenture.
|
|
4
|
.4**
|
|
Form of Warrant Agreement.
|
|
4
|
.5**
|
|
Form of Depositary Agreement.
|
|
4
|
.6
|
|
Registration Rights Agreement dated February 27, 2006,
among Concho Resources Inc. and the other signatories thereto
(incorporated by reference to Exhibit 10.12 to the
Registration Statement on
Form S-1
(file
no. 333-142315)
filed on April 24, 2007).
|
|
4
|
.7
|
|
Registration Rights Agreement, dated July 31, 2008, by and
between Concho Resources Inc. and the purchasers named therein
(incorporated by reference to Exhibit 10.1 to the
Companys Current Report on
Form 8-K
(file
no. 1-33615)
filed on August 6, 2008).
|
|
5
|
.1*
|
|
Opinion of Vinson & Elkins L.L.P. as to the legality
of the securities being registered.
|
|
12
|
.1*
|
|
Statement of Computation of Ratios of Earnings to Fixed Charges
and Earnings to Fixed Charges and Preferred Stock Dividends.
|
|
23
|
.1*
|
|
Consent of Grant Thornton LLP, independent registered public
accounting firm.
|
|
23
|
.2*
|
|
Consent of Davis, Kinard & Co., P.C., independent
registered public accounting firm.
|
|
23
|
.3*
|
|
Consent of Vinson & Elkins L.L.P. (contained in
Exhibit 5.1 hereto).
|
|
23
|
.4*
|
|
Consent of Cawley, Gillespie & Associates, Inc.
|
|
23
|
.5*
|
|
Consent of Netherland, Sewell & Associates, Inc.
|
|
24
|
.1*
|
|
Power of Attorney (included on the signature page to this
Registration Statement).
|
|
25
|
.1*
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 respecting the Senior Indenture.
|
|
25
|
.2***
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 respecting the Subordinated
Indenture.
|
|
|
|
* |
|
Filed herewith. |
|
** |
|
To be filed as an exhibit to a report pursuant to
Section 13(a) or 15(d) of the Exchange Act or in a
post-effective amendment to this registration statement. |
|
*** |
|
To be filed in accordance with Section 310(a) of the
Trust Indenture Act of 1939, as amended. |
II-9