As
filed with the Securities and Exchange Commission on December 7, 2010
Registration No. 333-161809
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
post-effective amendment no. 1
to
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 Registrant’s principal executive offices)
C. William Giraud
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:
þ
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
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Non-accelerated filer
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(Do not check if a
smaller reporting company)
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Smaller reporting
company
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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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(4)
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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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(5)
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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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(6)
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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.
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*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 Holdings LLC
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Texas
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800648934
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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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Concho Oil & Gas LLC
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Texas
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900617040
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Quail Ranch LLC
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Texas
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320086461
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TABLE OF CONTENTS
EXPLANATORY NOTE
This Registration Statement on Form S-3 (Registration No. 333-161809) of Concho Resources Inc.
and its subsidiary guarantor registrants (the “Registration Statement”) is being amended to add COG
Holdings LLC and Concho Oil & Gas LLC, all subsidiaries of Concho Resources Inc., as co-registrants
that are, or may potentially be, guarantors of some or all of the debt securities with respect to
which offers and sales are registered under this Registration Statement. No changes or additions
are being made hereby to the base prospectus that already forms a part of the Registration
Statement. Accordingly, such base prospectus is being omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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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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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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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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. 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:
II-1
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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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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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us, except for:
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claims regarding the indemnitee’s 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
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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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1.1
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Form of Underwriting Agreement.
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3.1
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Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Company’s Current Report on Form 8-K (file no. 1-33615) filed on August 8, 2007).
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3.2
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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 Company’s Current Report on Form 8-K
(file no. 1-33615) filed on March 26, 2008).
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4.1
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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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4.2
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Indenture, dated September 18, 2009, between Concho Resources Inc., the subsidiary
guarantors named therein, and Wells Fargo Bank, National Association, as trustee
(incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K
(file no. 001-33615) filed on September 22, 2009).
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4.3
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First Supplemental Indenture, dated September 18, 2009, between Concho Resources Inc.,
the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as
trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on
Form 8-K (file no. 001-33615) filed on September 22, 2009).
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4.4
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Second Supplemental Indenture, dated November 3, 2010, between Concho Resources Inc.,
the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as
trustee.
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4.5
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Form of Subordinated Indenture.
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4.6
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***
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Form of Warrant Agreement.
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4.7
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***
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Form of Depositary Agreement.
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4.6
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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
Company’s Current Report on Form 8-K (file no. 001-33615) filed on August 6, 2008).
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4.8
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Registration Rights Agreement, dated October 7, 2010, by and between Concho Resources
Inc. and the purchasers named therein (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K (file no. 001-33615) filed on October 13, 2010).
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5.1
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**
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Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered.
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5.2
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Opinion of Vinson & Elkins L.L.P. as to the legality of the guarantees covered by this
Post-Effective Amendment No. 1 to Form S-3.
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12.1
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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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23.1
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Consent of
Grant Thornton LLP.
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23.2
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Consent of Netherland, Sewell & Associates, Inc.
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23.3
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Consent of Cawley, Gillespie & Associates, Inc.
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23.4
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Consent of
Grant Thornton LLP.
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II-3
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Exhibit
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Number
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Exhibit Title
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23.5
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*
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Consent of
Vinson & Elkins L.L.P. (contained in Exhibit 5.2 hereto).
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24.1
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Power of Attorney (included on the signature page to the original Registration
Statement).
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25.1
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**
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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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25.2
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†
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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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Previously filed as an Exhibit to the Registration Statement.
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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 the 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)
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Financial Statement Schedules.
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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.
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(c)
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Reports, Opinions, and Appraisals.
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The following reports, opinions, and appraisals are included herein: None.
ITEM 17. UNDERTAKINGS
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.
II-4
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 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 registrant’s 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
II-5
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-6
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
December 7, 2010.
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CONCHO RESOURCES INC.
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By:
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/s/ Timothy A. Leach
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Timothy A. Leach
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Director, Chairman of the Board of Directors, Chief Executive Officer
and President
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Pursuant to the requirements of the Securities Act this Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
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Name
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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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Director, Chairman of the
Board of Directors, Chief
Executive Officer and
President (Principal
Executive Officer)
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December 7, 2010
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/s/ Darin G. Holderness*
Darin G. Holderness
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Senior Vice President, Chief
Financial Officer and
Treasurer
(Principal Financial Officer)
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December 7, 2010
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/s/ Don O. McCormack
Don O. McCormack
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Vice President and Chief
Accounting Officer
(Principal Accounting Officer)
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December 7, 2010
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/s/ Steven L. Beal*
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Director
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December 7, 2010
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Steven L. Beal
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/s/ Tucker S. Bridwell*
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Director
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December 7, 2010
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Tucker S. Bridwell
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/s/ William H. Easter III*
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Director
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December 7, 2010
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William H. Easter III
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/s/ W. Howard Keenan, Jr.*
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Director
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December 7, 2010
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W. Howard Keenan, Jr.
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/s/ Ray M. Poage*
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Director
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December 7, 2010
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Ray M. Poage
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/s/ Mark B. Puckett
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Director
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December 7, 2010
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Mark B. Puckett
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/s/ A. Wellford Tabor*
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Director
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December 7, 2010
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A. Wellford Tabor
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*By:
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/s/ Timothy A. Leach
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Timothy A. Leach,
as attorney-in fact
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II-7
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
December 7, 2010.
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COG HOLDINGS LLC
COG OPERATING LLC
COG REALTY LLC
CONCHO ENERGY SERVICES LLC
CONCHO OIL & GAS LLC
QUAIL RANCH LLC
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By:
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/s/ Timothy A. Leach
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Timothy A. Leach
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act this Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
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Name
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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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December 7, 2010
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/s/ Darin G. Holderness*
Darin G. Holderness
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Senior Vice President, Chief
Financial Officer and
Treasurer
(Principal Financial Officer)
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December 7, 2010
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/s/ Don O. McCormack
Don O. McCormack
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Vice President and Chief
Accounting Officer
(Principal Accounting Officer)
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December 7, 2010
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*By:
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/s/ Timothy A. Leach
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Timothy A. Leach,
as attorney-in fact
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**
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Timothy A. Leach serves as (i) the Chief Executive Officer and President of Concho Resources
Inc., which is the sole member of COG Operating LLC, COG Realty LLC and Concho Oil & Gas LLC and
(ii) the Chief Executive Officer of COG Operating LLC, which is the sole member of COG Holdings
LLC, Concho Energy Services LLC and Quail Ranch LLC.
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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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***
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Form of Underwriting Agreement.
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3.1
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Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Company’s Current Report on Form 8-K (file no. 1-33615) filed on August 8, 2007).
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3.2
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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 Company’s Current Report on Form 8-K
(file no. 1-33615) filed on March 26, 2008).
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4.1
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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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4.2
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Indenture, dated September 18, 2009, between Concho Resources Inc., the subsidiary
guarantors named therein, and Wells Fargo Bank, National Association, as trustee
(incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K
(file no. 001-33615) filed on September 22, 2009).
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4.3
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First Supplemental Indenture, dated September 18, 2009, between Concho Resources Inc.,
the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as
trustee (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on
Form 8-K (file no. 001-33615) filed on September 22, 2009).
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4.4
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*
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Second Supplemental Indenture, dated November 3, 2010, between Concho Resources Inc.,
the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as
trustee.
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4.5
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**
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Form of Subordinated Indenture.
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4.6
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***
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Form of Warrant Agreement.
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4.7
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***
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Form of Depositary Agreement.
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4.6
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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
Company’s Current Report on Form 8-K (file no. 001-33615) filed on August 6, 2008).
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4.8
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Registration Rights Agreement, dated October 7, 2010, by and between Concho Resources
Inc. and the purchasers named therein (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K (file no. 001-33615) filed on October 13, 2010).
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5.1
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**
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Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered.
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5.2
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*
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Opinion of Vinson & Elkins L.L.P. as to the legality of the guarantees covered by this
Post-Effective Amendment No. 1 to Form S-3.
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12.1
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*
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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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23.1
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*
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Consent of
Grant Thornton LLP.
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23.2
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*
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Consent of Netherland, Sewell & Associates, Inc.
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23.3
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*
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Consent of Cawley, Gillespie & Associates, Inc.
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23.4
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*
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Consent of
Grant Thornton LLP.
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23.5
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*
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Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.2 hereto).
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24.1
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**
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Power of Attorney (included on the signature page to the original Registration
Statement).
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25.1
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**
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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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25.2
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†
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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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Previously filed as an Exhibit to the Registration Statement.
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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 the 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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II-9
Exhibit 4.4
SECOND SUPPLEMENTAL INDENTURE
SECOND
SUPPLEMENTAL INDENTURE
(this
“Supplemental Indenture”
), dated as of November 3, 2010,
among (i) Concho Oil & Gas LLC, a Texas limited liability company (
“Concho Oil & Gas”
) and a
subsidiary of Concho Resources Inc., a Delaware corporation (the
“Company”
), (ii) COG Holdings LLC,
a Texas limited liability company (
“COG Holdings”
) and a subsidiary of the Company, (iii) COG
Exchange Properties LLC, a Texas limited liability company (together with Concho Oil & Gas and COG
Holdings, the
“New Subsidiary Guarantors”
) and a subsidiary of the Company, (iv) the Company, (v)
the existing Subsidiary Guarantors (as defined in the First Supplemental Indenture referred to
herein) and (vi) Wells Fargo Bank, National Association, as trustee under the Indenture referred to
herein (the
“Trustee”
). The New Subsidiary Guarantors and the existing Subsidiary Guarantors are
sometimes referred to collectively herein as the
“Subsidiary Guarantors”
or individually as a
“Subsidiary Guarantor.”
W I T N E S S E T H
WHEREAS
, the Company and the existing Subsidiary Guarantors have heretofore executed and
delivered to the Trustee an indenture (the
“Indenture”
), dated as of September 18, 2009, and a
First Supplemental Indenture (herein so called) of even date therewith relating to the 8.625%
Senior Notes due 2017 (the
“Securities”
) of the Company;
WHEREAS
, Section 1117 of the First Supplemental Indenture obligates the Company to cause
certain Restricted Subsidiaries to become Subsidiary Guarantors by executing a supplemental
indenture as provided in such Section; and
WHEREAS
, pursuant to Section 1001 of the First Supplemental Indenture, the Company, the
Subsidiary Guarantors and the Trustee are authorized to execute and deliver this Supplemental
Indenture to amend or supplement the Indenture without the consent of any Holder;
NOW THEREFORE
, to comply with the provisions of the First Supplemental Indenture and in
consideration of the foregoing and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the New Subsidiary Guarantors, the other Subsidiary Guarantors, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
1.
Capitalized Terms
. Capitalized terms used herein without definition shall have the
meanings assigned to them in the First Supplemental Indenture.
2.
Agreement to Guarantee
. The New Subsidiary Guarantors hereby agree, jointly and
severally, with all other Subsidiary Guarantors, to fully and unconditionally Guarantee to each
Holder and to the Trustee the Obligations, to the extent set forth in Article Sixteen of the First
Supplemental Indenture and subject to the provisions thereof. The obligations of the Subsidiary
Guarantors to the Holders of Securities and to the Trustee pursuant to the Subsidiary Guarantees
and the Indenture are expressly set forth in Article Sixteen of the First Supplemental Indenture
and reference is hereby made to such Article for the precise terms of the Subsidiary Guarantees.
3.
NEW YORK LAW TO GOVERN
. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.
4.
Counterparts
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. This Supplemental Indenture may be executed in multiple counterparts which, when taken
together, shall constitute one instrument.
5.
Effect of Headings
. The Section headings herein are for convenience only and shall
not affect the construction hereof.
1
6.
The Trustee
. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this Supplemental Indenture. This Supplemental Indenture is executed and accepted by the
Trustee subject to all the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made applicable to the
Trustee with respect hereto.
[Remainder of Page Intentionally Left Blank. Signature Page Follows.]
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
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NEW SUBSIDIARY GUARANTORS
:
CONCHO OIL & GAS LLC
COG HOLDINGS LLC
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By:
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/s/ Darin G. Holderness
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Name:
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Darin G. Holderness
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Title:
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Senior Vice President -- Chief Financial
Officer and Treasurer
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COG EXCHANGE PROPERTIES LLC
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By:
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/s/ Dale A. Brown
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Name:
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Dale A. Brown
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Title:
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President
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OTHER SUBSIDIARY GUARANTORS
:
COG OPERATING LLC
COG REALTY LLC
CONCHO ENERGY SERVICES LLC
QUAIL RANCH LLC
|
|
|
|
By:
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/s/ Darin G. Holderness
|
|
|
|
|
Name:
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Darin G. Holderness
|
|
|
|
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Title:
|
Senior Vice President -- Chief Financial
Officer and Treasurer
|
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|
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COMPANY
:
CONCHO RESOURCES INC.
|
|
|
|
By:
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/s/ Darin G. Holderness
|
|
|
|
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Name:
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Darin G. Holderness
|
|
|
|
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Title:
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Senior Vice President -- Chief Financial
Officer and Treasurer
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TRUSTEE
:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ John C. Stohlmann
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Authorized Signatory
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[Signature Page to Supplemental Indenture]
Exhibit 5.2
December 7, 2010
Concho Resources Inc.
550 West Texas Avenue, Suite 100
Midland, Texas 79701
RE: Post-Effective Amendment No. 1 to Registration Statement (File No. 333-161809) on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Concho Resources Inc., a Delaware corporation (the “
Company
”),
and certain of its subsidiaries with respect to the preparation of the Registration Statement on
Form S-3 (the “
Initial Registration Statement
”) filed on September 9, 2009 and Post-Effective
Amendment No. 1 to the Initial Registration Statement (the “
Amendment
,” and together with the
Initial Registration Statement, the “
Registration Statement
”) filed or about the date hereof with
the Securities and Exchange Commission (the “
Commission
”). The Amendment relates to the issuance
and sale by the Company from time to time, pursuant to Rule 415 under the Securities Act of 1933
(the “
Securities Act
”), of full and unconditional guarantees (the “
Guarantees
”) by the Company’s
subsidiaries listed as co-registrants in the Registration Statement (the “
Subsidiary Guarantors
”)
of the Company’s debt securities.
We have also participated in the preparation of the Prospectus (the “
Prospectus
”) contained in
the Registration Statement to which this opinion is an exhibit.
In connection with the opinions expressed herein, we have examined, among other things, the
(i) the Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company,
(ii) the Registration Statement, (iii) the Prospectus, (iv) the senior indenture and the first
supplemental indenture thereto, each dated as of September 18, 2009, by and among the Company, the
Subsidiary Guarantors and Wells Fargo Bank, National Association, as trustee (collectively, the
“
Senior Indenture
”), (v) the form of Subordinated Indenture (the “
Subordinated Indenture
,” and
together with the Senior Indenture, the “
Indentures
”) filed as an exhibit to the Registration
Statement and (vi) the records of corporate proceedings that have occurred prior to the date hereof
with respect to the Registration Statement. We have also reviewed such questions of law as we have
deemed necessary or appropriate. As to matters of fact relevant to the opinions expressed herein,
and as to factual matters arising in connection with our examination of corporate documents,
records and other documents and writings, we relied upon certificates and other communications of
corporate officers of the Company, without further investigation as to the facts set forth therein.
In connection with this opinion, we have assumed that:
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Vinson & Elkins LLP Attorneys at Law
|
|
First City Tower, 1001 Fannin Street, Suite 2500
|
|
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston
|
|
Houston, TX 77002-6760
|
|
London Moscow New York Palo Alto Shanghai Tokyo Washington
|
|
Tel
+1.713.758.2222
Fax
+1.713.758.2346
www.velaw.com
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|
December 7, 2010
Page 2
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|
1.
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the Registration Statement, and any amendments thereto (including the Amendment and
any other post-effective amendments), will have become effective;
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2.
|
|
a supplement to the Prospectus (a “
Prospectus Supplement
”) will have been prepared
and filed with the Commission describing the Guarantees offered thereby;
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3.
|
|
all Guarantees will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration Statement and the
appropriate Prospectus Supplement;
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4.
|
|
a definitive purchase, underwriting or similar agreement with respect to any
Guarantees offered will have been duly authorized and validly executed and delivered by
the Company and the other parties thereto;
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5.
|
|
the Indentures relating to the Guarantees will be duly authorized, executed and
delivered by the parties thereto;
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|
6.
|
|
the Subsidiary Guarantors are duly incorporated or organized under the laws of and
are validly existing and in good standing under the laws of their respective jurisdictions
of incorporation or organization; and
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7.
|
|
each person signing the Indentures will have the legal capacity and authority to do
so.
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Based upon and subject to the foregoing, we are of the opinion that when (a) the applicable
Indenture relating either to the Guarantees has been duly qualified under the Trust Indenture Act
of 1939, as amended, (b) the board of directors of the Company (or a committee thereof) (the
“
Board
”) and the sole member or manager of each of the Subsidiary Guarantors have taken all
necessary corporate action to approve the issuance and terms of any such Guarantees, (c) the terms
of such Gurantees and of their issuance and sale have been duly established in conformity with the
applicable Indenture so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company or the Subsidiary Guarantors and so as to
comply with any requirements or restrictions imposed by any court or governmental body having
jurisdiction over the Company or the Subsidiary Guarantors and (d) such Guarantees have been duly
executed and authenticated in accordance with the applicable Indenture and issued and sold as
contemplated in the applicable Prospectus Supplement and upon payment of the consideration for such
Guarantees as provided for in the applicable definitive purchase, underwriting or similar
agreement, such Guarantees will be legally issued and will constitute valid and binding obligations
of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with
their terms, except as such enforcement is subject to any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium and similar laws relating to or affecting creditors’ rights generally and to
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December 7, 2010
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general equitable principles and covenants of good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding in equity or at law).
We express no opinions concerning (a) the validity or enforceability of any provisions
contained in the Indentures that purport to waive or not give effect to rights to notices,
defenses, subrogation or other rights or benefits that cannot be effectively waived under
applicable law or (b) the enforceability of indemnification provisions to the extent they purport
to relate to liabilities resulting from or based upon negligence or any violation of federal or
state securities or blue sky laws.
The foregoing opinions are limited to the laws of the State of Texas, the State of New York,
the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act
(including the applicable provisions of the Delaware Constitution and the reported judicial
decisions interpreting these laws) and the federal laws of the United States of America, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement
and to the use of our name in the Prospectus forming a part of the Registration Statement under the
caption Legal Matters. In giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act and the rules and
regulations thereunder.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
