As
filed with the Securities and Exchange Commission on August 30, 2007
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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
(State or other jurisdiction
of incorporation or organization)
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76-0818600
(I.R.S. Employer
Identification Number)
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550 West Texas Avenue, Suite 1300
Midland, Texas 79701
(Address of principal executive offices, including zip code)
Concho Resources Inc. 2006 Stock Incentive Plan
(Full title of the plan)
David W. Copeland
Vice President and General Counsel
550 West Texas Avenue, Suite 1300
Midland, Texas 79701
(Name and address of agent for service)
(432) 683-7443
(Telephone number, including area code, of agent for service)
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 securities
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Amount to be
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offering price
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aggregate offering
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registration
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to be registered
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registered (1)
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per share
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price
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fee
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Common Stock, $0.001 par value
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5,617,784 shares
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$
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10.85
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$
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60,931,037
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(2)
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$
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1,871
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(1)
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This registration statement shall also cover any additional shares of Common Stock which
become issuable under the Concho Resources Inc. 2006 Stock Incentive Plan
being registered pursuant to this registration statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected without the receipt of
consideration which results in an increase in the number of the registrant’s outstanding
shares of Common Stock.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)
and Rule 457(c) under the Securities Act of 1933. The price per share and aggregate offering
prices for the shares registered hereby are calculated on the basis of (i) the exercise price
per share of $8.00 with respect to 2,149,542 shares of common stock subject to previously
granted options under the 2006 Stock Incentive Plan, (ii) the exercise
price per share of $12.00 with respect to 647,180 shares of common stock subject to previously
granted options under the 2006 Stock Incentive Plan and (iii) $12.75,
which is the average of the high and low prices reported on the New York Stock Exchange on
August 23, 2007 with respect to the remaining 2,821,062 shares of common stock available for
future grant under the 2006 Stock Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
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The following documents that we filed (File No. 001-33615) with the Securities and Exchange
Commission (the “Commission”) pursuant to Section 12, 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”) are incorporated by reference and made a part of this registration
statement:
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our Prospectus filed with the Commission pursuant to Rule 424(b) promulgated under the
Securities Act of 1933 (the “Securities Act”) on August 3, 2007 in connection with our
Registration Statement on Form S-1, as amended (No. 333-142315);
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our Current Reports on Form 8-K (excluding any information furnished under Items 2.02 or
7.01 thereof) filed with the Commission on August 8, 2007 and August 24, 2007; and
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the description of our common stock contained in our registration statement on Form 8-A
filed on July 23, 2007 (including any amendments or reports filed for the purpose of updating
such description).
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All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(excluding any information furnished under Items 2.02 or 7.01 on any Current Report on Form 8-K)
subsequent to the effective date of this registration statement, and prior to the filing of a
post-effective amendment to this registration statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold, will be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained in any other 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 to constitute a part of this
registration statement, except as so modified or superseded.
Item 4.
Description of Securities
.
Not applicable.
Item 5.
Interests of Named Experts and Counsel
.
Not applicable.
Item 6.
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 he 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 him in
connection with such action, suit or proceeding if he acted in good faith and in a manner he
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 he 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 he acted in good faith and in a
manner he 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. Our
certificate of incorporation and bylaws provide that indemnification shall be to the fullest extent
permitted by the DGCL for all our current or former directors or officers. As permitted by the
DGCL, our certificate of incorporation provides that we will indemnify our directors against
liability to us or our stockholders for monetary damages for breach of fiduciary duty as a
director, except (1) for any breach of the director’s duty of loyalty to us or our stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (3) under Section 174 of the DGCL or (4) for any transaction from which a
director derived an improper personal benefit.
We have also entered into indemnification agreements with all of our directors and all of our
named executive officers and employment agreements with all of our named executive officers. These
indemnification agreements and employment 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 and the employment 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 and the employment 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 and the employment 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 and the employment 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 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 above
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 named as
an 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.
Item 7.
Exemption from Registration Claimed
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Not applicable.
Item 8.
Exhibits
.
Unless otherwise indicated below as being incorporated by reference to another filing of ours
with the Commission, each of the following exhibits is filed herewith:
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4.1
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Restated Certificate of Incorporation of Concho Resources Inc. (filed with the
Commission as Exhibit 3.1 to our Current Report on Form 8-K on August 8, 2007 and
incorporated herein by reference)
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4.2
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Amended and Restated Bylaws of Concho Resources Inc. (filed with the Commission as
Exhibit 3.2 to our Current Report on Form 8-K on August 8, 2007 and incorporated herein by
reference)
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4.3
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Specimen Common Stock certificate (filed with the Commission as Exhibit 4.1 to our
registration statement on Form S-1 (Commission File No. 333-142315) and incorporated herein
by reference).
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4.4
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Concho Resources Inc. 2006 Stock Incentive Plan (filed with the
Commission as Exhibit 10.13 to our registration statement on Form S-1 (Commission File No.
333-142315) and incorporated herein by reference).
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5.1*
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Opinion of Vinson & Elkins L.L.P.
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23.1*
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Consent of Grant Thornton LLP — Tulsa
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23.2*
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Consent of Grant Thornton LLP — Kansas City
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23.3*
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Consent of Grant Thornton LLP — Dallas
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23.4
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Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
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24.1*
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Powers of Attorney
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Item 9.
Undertakings
The 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 this 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 this 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 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; and
(c) To include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to such
information in this registration statement;
provided, however
, that paragraphs (1)(a) and (1)(b) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic reports filed
with or furnished or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this 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 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
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
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.
(5) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant, the registrant has
been advised that in the opinion of the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Midland, State of Texas, on the 27th day of August, 2007.
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By:
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/s/ Timothy A. Leach
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Timothy A. Leach
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Chairman and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the 27th day of August, 2007.
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Signature
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Title
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/s/ Timothy A. Leach
Timothy A. Leach
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Chairman, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Steven L. Beal
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President, Chief Operating Officer and Director
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Steven L. Beal
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/s/ Curt F. Kamradt
Curt F. Kamradt
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Vice President,
Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
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Director
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Director
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Director
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Director
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*By:
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/s/ Timothy A. Leach
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Attorney-in-Fact
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INDEX TO EXHIBITS
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4.1
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Restated Certificate of Incorporation of Concho Resources Inc. (filed with the
Commission as Exhibit 3.1 to our Current Report on Form 8-K on August 8, 2007 and
incorporated herein by reference)
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4.2
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Amended and Restated Bylaws of Concho Resources Inc. (filed with the Commission
as Exhibit 3.2 to our Current Report on Form 8-K on August 8, 2007 and incorporated
herein by reference)
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4.3
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Specimen Common Stock certificate (filed with the Commission as Exhibit 4.1 to
our registration statement on Form S-1 (Commission File No. 333-142315) and
incorporated herein by reference).
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4.4
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Concho Resources Inc. 2006 Stock Incentive Plan (filed
with the Commission as Exhibit 10.13 to our registration statement on Form S-1
(Commission File No. 333-142315) and incorporated herein by reference).
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5.1*
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Opinion of Vinson & Elkins L.L.P.
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23.1*
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Consent of Grant Thornton LLP — Tulsa
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23.2*
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Consent of Grant Thornton LLP — Kansas City
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23.3*
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Consent of Grant Thornton LLP — Dallas
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23.4
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Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
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24.1*
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Powers of Attorney
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Exhibit 5.1
August 27, 2007
Concho Resources Inc.
550 West Texas Avenue, Suite 1300
Midland, Texas 79701
Re: Concho Resources Inc. 2006 Stock Incentive Plan
Ladies and Gentlemen:
We have acted as counsel for Concho Resources Inc., a Delaware corporation (the
“
Company
”), with respect to certain legal matters in connection with the registration by
the Company under the Securities Act of 1933 (the “
Securities Act
”) of the offer and sale of
5,617,784 shares of common stock, par value $0.001 per share, of the Company (the “
Common
Stock
”) pursuant to the Concho Resources Inc. 2006 Stock Incentive Plan (the “
Plan
”).
The shares of Common Stock that are to be issued under the Plan are referred to herein as the
“
Shares
.”
In connection with the foregoing, we have examined or are familiar with the Restated
Certificate of Incorporation of the Company, the Amended and Restated Bylaws of the Company, the
Plan, the corporate proceedings with respect to the issuance of the Shares, the registration
statement on Form S-8 filed in connection with the registration of the Shares (the
“
Registration Statement
”), and such other certificates, instruments and documents as we
have considered necessary or appropriate for purposes of this opinion.
Based upon the foregoing, we are of the opinion that when the Shares have been duly authorized
and, when issued by the Company and delivered in accordance with the provisions of the Plan, the
Shares will be validly issued, fully paid and non-assessable.
The foregoing opinion is limited in all respects to the General Corporation Law of the State
of Delaware (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 do not express any opinions as to the laws of any other jurisdiction. For purposes of this
opinion, we assume that the Shares will be issued in compliance with all applicable state
securities or Blue Sky laws.
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August 27, 2007 Page 2
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
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.
