UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): January 1, 2019

 

 

Concho Resources Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-33615   76-0818600

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

One Concho Center

600 W. Illinois Avenue

Midland, Texas

  79701
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (432) 683-7443

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

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

 

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

 

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

 

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

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company  ☐

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

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

On January 2, 2019, the Board of Directors (the “ Board ”) of Concho Resources Inc. (the “ Company ”), approved a new form of indemnification agreement (the “ Indemnification Agreement ”) between the Company and individuals who may serve from time to time as directors or officers of the Company. The Indemnification Agreement replaces the Company’s existing form of indemnification agreement and will take effect January 2, 2019 for the Company’s current directors and officers. Under the Indemnification Agreement, the Company agrees to indemnify directors and officers against liability arising out of the performance of their duties to the Company and to other entities where they provide services at the request of the Company. The Indemnification Agreement requires indemnification to the fullest extent authorized or permitted by law, including the Delaware General Corporation Law, for amounts that directors and officers become legally obligated to pay in connection with a range of legal proceedings, including attorneys’ fees, on the terms and conditions set forth in the Indemnification Agreement. The Indemnification Agreement also requires the advancement of defense expenses, on the terms and conditions set forth therein. Further, the Indemnification Agreement provides procedures for requesting and obtaining indemnification and advancement of expenses.

The foregoing description of the Indemnification Agreement is a general description only and is qualified in its entirety by reference to the form of Indemnification Agreement, a copy of which is attached hereto as Exhibit 10.1, and incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(b) Retirement and Resignation of Officers

Effective January 1, 2019, E. Joseph Wright retired from his position as Chief Operating Officer of the Company and, effective January 5, 2019, will retire from the Company.

Effective January 1, 2019 and in connection with the other officer changes described below, Jack F. Harper discontinued serving as the Company’s Chief Financial Officer but will continue serving as the Company’s President, and Brenda R. Schroer discontinued serving as the Company’s Chief Accounting Officer but will continue serving as the Company’s Treasurer and as a Senior Vice President of the Company.

Effective January 1, 2019, J. Steve Guthrie retired from his position as Senior Vice President of Business Operations and Engineering of the Company, though Mr. Guthrie is expected to continue to serve as a Special Advisor of the Company through January 5, 2020.

(c) Appointment of Officers

On January 1, 2019, the Board made certain changes regarding the appointed officers of the Company, among other things.

The Board appointed C. William Giraud Chief Operating Officer of the Company to serve until his successor is chosen and qualified or until his resignation, retirement, disqualification or removal from office. Mr. Giraud will continue to serve as an Executive Vice President of the Company.

Mr. Giraud has no familial relationships with any director or other executive officer of the Company. There are no arrangements or understandings between Mr. Giraud and any other persons pursuant to which Mr. Giraud was appointed as Executive Vice President and Chief Operating Officer. For additional information about Mr. Giraud, including biographical information and information regarding related party transactions, please refer to the Company’s Proxy Statement filed with the Securities and Exchange Commission on April 5, 2018 (File No. 001-33615), which information is incorporated herein by reference.

The Board appointed Brenda R. Schroer Chief Financial Officer of the Company to serve until her successor is chosen and qualified or until her resignation, retirement, disqualification or removal from office. Ms. Schroer will continue to serve as the Company’s Treasurer and as a Senior Vice President of the Company.

Ms. Schroer has no familial relationships with any director or other executive officer of the Company. There are no arrangements or understandings between Ms. Schroer and any other persons pursuant to which Ms. Schroer was appointed as Senior Vice President, Chief Financial Officer and Treasurer. For additional information about Ms. Schroer, including biographical information and information regarding related party transactions, please refer to the Company’s Proxy Statement filed with the Securities and Exchange Commission on April 5, 2018 (File No. 001-33615), which information is incorporated herein by reference.

The Board appointed Jacob Gobar, age 38, Vice President and Chief Accounting Officer of the Company to serve until his successor is chosen and qualified or until his resignation, retirement, disqualification or removal from office.


Mr. Gobar has no familial relationships with any director or other executive officer of the Company. There are no arrangements or understandings between Mr. Gobar and any other persons pursuant to which Mr. Gobar was appointed as Vice President and Chief Accounting Officer. Mr. Gobar has served as the Controller – Financial Accounting of the Company since October 2018. Mr. Gobar was also the Director of Accounting and Special Projects from December 2016 to September 2018. Before joining the Company, Mr. Gobar was employed by Memorial Resource Development Corp. as Controller from November 2014 until its merger with Range Resources Corporation in September 2016. Prior to that, Mr. Gobar served as Corporate Controller of VAALCO Energy, Inc. from December 2013 to November 2014. Mr. Gobar started his career in the Assurance practice of PricewaterhouseCoopers. Mr. Gobar holds a Bachelor of Business Administration Degree in Accounting and a Masters of Accountancy from Texas State University, and he is a licensed certified public accountant in the State of Texas.

(e) Compensatory Plans and Agreements

On January 2, 2019, the Compensation Committee of the Board (the “ Compensation Committee ”) granted performance units (the “ Performance Units ”) and restricted stock to officers of the Company, among other things. The Performance Units and restricted stock grants were made under the Company’s 2015 Stock Incentive Plan, which was approved by the Company’s stockholders in June 2015. In addition, the Compensation Committee also granted special succession equity awards to Messrs. Harper and Giraud. Further, effective January 1, 2019, the Company adopted an Executive Severance Plan and entered into a participation agreement thereunder with each of the Company’s officers (other than Mr. Wright and Mr. Guthrie). Also, on January 1, 2019, the Company entered into a new Employment Agreement with Mr. Guthrie.

Performance Unit Awards

The Performance Units granted to each recipient are payable in shares of the Company’s common stock (the “ Common Stock ”) based upon the achievement by the Company over a performance period commencing on January 1, 2019 and ending on December 31, 2021 of performance goals established by the Compensation Committee. The number of shares of Common Stock that may be issued pursuant to an award will be determined by multiplying the number of Performance Units granted under the award by the result of multiplying the “Relative TSR Percentage” by the “Absolute TSR Percentage.” The “ Relative TSR Percentage ” is the percentage, if any, achieved by attainment of the following performance goals for the performance period, as certified by the Compensation Committee: (i) if the Company’s total shareholder return (“ TSR ”) measured against the Company’s peer group is at or below the 20th percentile, the Relative TSR Percentage is 0%; (ii) if the TSR measured against the Company’s peer group is at the 27th percentile, the Relative TSR Percentage is 54%; (iii) if the TSR measured against the Company’s peer group is at the 40th percentile, the Relative TSR Percentage is 80%; (iv) if the TSR measured against the Company’s peer group is at the 60th percentile, the Relative TSR Percentage is 125%; (v) if the TSR measured against the Company’s peer group is in the 80th percentile, the Relative TSR Percentage is 175%; and (vi) if the TSR measured against the Company’s peer group is in the 93rd percentile or above, the Relative TSR Percentage is 200%, with 200% being the maximum and the Compensation Committee applying straight line interpolation for all points between such performance levels. The “ Absolute TSR Percentage ” is the percentage achieved by attainment of the following performance goals for the performance period, as certified by the Compensation Committee: (a) if the Company’s absolute annualized TSR is less than 0%, the Absolute TSR Percentage is 50%; (b) if the Company’s absolute annualized TSR is at least 0% and not greater than 5%, the Absolute TSR Percentage is 75%; (c) if the Company’s absolute annualized TSR is at least 5% and not greater than 10%, the Absolute TSR Percentage is 100%; (d) if the Company’s absolute annualized TSR is at least 10% and not greater than 15%, the Absolute TSR Percentage is 125%; and (e) if the Company’s absolute annualized TSR is greater than 15%, the Absolute TSR Percentage is 150%. TSR for the Company and each of the peer companies is generally determined by dividing (A) the average closing stock prices on each trading day during the period beginning on the first day of the calendar month in which the last day of the performance period occurs and ending on the last day of the performance period  plus  cash dividends paid over the performance period  minus the starting average stock price by (B) the starting average stock price, with the starting average stock price being the average of the closing stock prices on each trading day in the calendar month immediately preceding the first day of the performance period.

Dividend equivalents with respect to any cash dividends paid during the performance period are paid at the same time, and subject to the same terms and conditions, as are applicable to Performance Units, except that if more than one share of Common Stock becomes payable in respect of a Performance Unit, then the maximum amount of dividend equivalents payable with respect to such unit equals the aggregate amount of cash dividends paid during the performance period on one share of Common Stock.

Unless otherwise determined by the Compensation Committee, each recipient will forfeit his or her Performance Units if the recipient’s employment with the Company terminates during the performance period for any reason other than a termination of employment by the Company without cause, or the recipient’s death, disability or retirement on or after


attainment of age 65. If the recipient’s employment is terminated by the Company without cause (and not by reason of death or disability) during the performance period, the recipient is entitled to pro-rated vesting of his or her Performance Units based on the number of days employed during the performance period and based upon the lower of the target level of performance or the actual level of performance through the date of termination. If the recipient’s employment is terminated during the performance period due to his or her death or disability, the recipient is entitled to receive payment with respect to all of his or her Performance Units based on the higher of the target level or actual level of performance through the date of termination. If the recipient’s employment is terminated during the performance period due to his or her retirement, the recipient is entitled to pro-rated vesting of his or her Performance Units based on the number of days employed during the performance period and based upon the actual level of performance through the end of the performance period. In the event of a change of control of the Company during the performance period, the Relative TSR Percentage and the Absolute TSR Percentage will be determined based on actual performance as if the performance period ended on the date of the change of control, and outstanding Performance Units will be paid in the form of restricted stock on the date of the change in control, which restricted stock will continue to vest based on continued employment through the end of the original performance period. Upon a termination without cause or resignation for good reason upon or following a change in control, such restricted stock shall immediately vest in full.

The number of Performance Units granted on January 2, 2019 by the Compensation Committee to the Company’s named executive officers is as follows: Timothy A. Leach, 53,879 Performance Units; Jack F. Harper, 23,954 Performance Units; and C. William Giraud, 18,014 Performance Units.

The foregoing description of the award of Performance Units on January 2, 2019, to the Company’s named executive officers is qualified in its entirety by reference to the complete text of a Performance Unit Award Agreement that contains the terms of the award. The Performance Units awarded to each of Messrs. Leach, Harper and Giraud are based on a form Performance Unit Award Agreement previously approved by the Compensation Committee, a copy of which is attached hereto as Exhibit 10.2, and incorporated herein by reference.

Restricted Stock Awards

The restricted stock awards for each of Messrs. Leach, Harper and Giraud vest in four equal annual installments beginning on January 2, 2020. The number of shares subject to the restricted stock awards granted on January 2, 2019 by the Compensation Committee to the Company’s named executive officers is as follows: Timothy A. Leach, 26,940 shares of restricted stock; Jack F. Harper, 15,969 shares of restricted stock; and C. William Giraud, 18,014 shares of restricted stock.

Unless otherwise determined by the Compensation Committee, each recipient will forfeit his or her restricted stock if the recipient’s employment with the Company terminates during the vesting period applicable to the award for any reason other than a termination of employment by the Company without cause, or the recipient’s death or disability. If the recipient’s employment is terminated by the Company without cause (and not by reason of death or disability) during the vesting period, the recipient is entitled to pro-rated vesting of his or her restricted stock based on the number of days employed during the vesting period. If the recipient’s employment is terminated during the vesting period due to his or her death or disability, the recipient is entitled to vest with respect to all of his or her restricted stock as of the date of termination. In the event a change of control of the Company occurs and within two years thereafter the recipient is terminated by the Company without cause or by the recipient for good reason, the recipient is entitled to vest with respect to all of his or her restricted stock as of the date of termination.

The foregoing description of the restricted stock awards granted on January 2, 2019 to the Company’s named executive officers is qualified in its entirety by reference to the complete text of a Restricted Stock Agreement which contains the terms of the award. The restricted stock awards to each of Messrs. Leach, Harper and Giraud are based on a form Restricted Stock Agreement previously approved by the Compensation Committee, a copy of which is attached hereto as Exhibit 10.3, and incorporated herein by reference.

Succession Equity Awards

The succession equity awards to Messrs. Harper and Giraud are comprised of an award of restricted stock and two separate awards of Performance Units. The number of shares subject to the restricted stock portion of the succession equity awards granted on January 2, 2019 by the Compensation Committee were as follows: Jack F. Harper, 19,475 shares of restricted stock; and C. William Giraud, 19,475 shares of restricted stock. These restricted stock awards have terms and conditions substantially similar to the restricted stock awards described above, except that these restricted stock awards will vest over a period of ten years at a rate of 20% per year commencing on the sixth anniversary of the grant date and continuing each year until the tenth anniversary of the grant date.

The portion of the succession equity awards granted in the form of Performance Units will have terms and conditions substantially similar to the Performance Units described above, except that one grant of Performance Units to each executive will have a 3-year performance period beginning on January 1, 2019 and ending on December 31, 2021, and the


other grant will have a 5-year performance period beginning on January 1, 2019 and ending on December 31, 2023. In addition, each award will provide that following the completion of the applicable performance period, the award will be converted into an award of restricted stock (with the number of shares determined based upon performance with respect to the performance criteria established by the Compensation Committee and described above). These restricted stock awards will then be subject to vesting based on continued employment with the Company, with the awards vesting at a rate of 20% per year commencing on the sixth anniversary of the date of grant of the Performance Units and continuing each year until the tenth anniversary of the grant date of the Performance Units. Once converted into restricted stock, the awards will have such other terms and conditions substantially similar to the restricted stock awards described above.

The number of Performance Units subject to the succession equity awards granted on January 2, 2019 by the Compensation Committee were as follows: 9,738 3-Year Performance Units, Jack F. Harper; 9,738 3-Year Performance Units, C. William Giraud; 9,738 5-Year Performance Units, Jack F. Harper; and 9,738 5-Year Performance Units, C. William Giraud.

The foregoing description of the succession equity awards granted on January 2, 2019 to Messrs. Harper and Giraud is qualified in its entirety by reference to the complete text of the forms of Succession Restricted Stock Agreement, Succession 3-Year Performance Unit Award Agreement and Succession 5-Year Performance Unit Award Agreement, which contains the terms of the awards, copies of which are attached hereto as Exhibits 10.4, 10.5 and 10.6, respectively, and incorporated herein by reference.

Executive Severance Plan

Effective January 1, 2019, the Company adopted an Executive Severance Plan and entered into a participation agreement thereunder with each of the Company’s officers (other than Mr. Wright and Mr. Guthrie). Pursuant to the participation agreements, effective January 1, 2019, the benefits under the Executive Severance Plan will replace the existing employment agreements between the Company and each of the executives. The Executive Severance Plan provides that in the event that employment of a participating executive is terminated by the Company other than for cause (and not by reason of death or disability) or if the executive terminates his or her employment for good reason, the executive is entitled to receive severance benefits consisting of: (i) base salary continuation for a specified number of months (24 for the Chief Executive Officer, 21 for the President, 18 for Executive Vice Presidents and 15 for Senior Vice Presidents); (ii) a pro-rated target annual cash bonus for the year of termination (based on the number of days employed during the year of termination); (iii) up to 18 months of Company-paid COBRA coverage, (iv) up to $15,000 of outplacement services; (v) pro-rated vesting of all outstanding and unvested time-based equity awards (based on the number of days employed during the applicable vesting period); and (vi) pro-rated vesting of outstanding and unvested performance-based equity awards (based on the number of days employed during the applicable performance period and assuming performance over the performance period at a rate equal to the lower of target or the actual level of performance through the date of termination). Under the Executive Severance Plan, if such a termination of employment occurs within the two-year period immediately following a change of control, the executive would be entitled to the benefits described in the preceding sentence, except that the salary continuation described in clause (i) would be replaced by a lump sum cash payment equal to a multiple of the executive’s base salary plus their average three year bonus (3.0 for the Chief Executive Officer, 2.75 for the President, 2.5 for Executive Vice Presidents and 2.25 for Senior Vice Presidents), the vesting acceleration described in clause (v) would be 100% of the unvested time-based equity awards rather than a pro-rated portion and the vesting acceleration described in clause (vi) would be 100% of the unvested performance-based equity awards based on the actual level of performance through the date of the change in control rather than a pro-rated portion. The Executive Severance Plan also provides for a lump sum cash payment equal to the executive’s base salary and a pro-rated target annual bonus payment, along with full vesting acceleration of time-based and performance-based equity awards (based on the greater of target or actual performance) in the event that a participating executive officer dies or becomes disabled while employed by the Company.

The foregoing description of the Executive Severance Plan is qualified in its entirety by reference to the complete text of the Executive Severance Plan, a copy of which is attached hereto as Exhibit 10.7, and incorporated herein by reference.

Guthrie Employment Agreement

In connection with Mr. Guthrie’s anticipated retirement as described in paragraph (b) above, the Company entered into a new Employment Agreement (the “ Employment Agreement ”) with Mr. Guthrie effective January 1, 2019, which agreement was approved by the Compensation Committee. The Employment Agreement supersedes Mr. Guthrie’s former employment agreement with the Company dated January 25, 2011.

Pursuant to the terms of the Employment Agreement, Mr. Guthrie shall serve the Company as a non-officer Special Advisor from January 1, 2019 through January 5, 2020. Mr. Guthrie will be entitled to receive an annual salary of $480,000 during the term of the agreement, which is the same as his current base salary. Mr. Guthrie is also entitled to participate in customary Company-sponsored employee benefit plans and receive financial planning benefits and wellness benefits consistent with his previous employment arrangement. The Employment Agreement provides that Mr. Guthrie will not be eligible to receive an annual bonus for 2019.


Upon the cessation of Mr. Guthrie’s employment with the Company, contingent upon his execution and non-revocation of a release agreement in connection with such termination, the Company shall pay Mr. Guthrie a lump sum severance payment of $384,000, plus 18 months of Company-paid COBRA coverage. In addition, the Company and Mr. Guthrie have agreed to a non-competition agreement that runs during the term of his employment and, at the Company’s sole option, for 12 months thereafter. In the event that the Company elects to enforce the non-competition agreement for the 12-month period following Mr. Guthrie’s termination of employment, the Company has agreed to pay Mr. Guthrie an aggregate amount equal to $480,000.

In connection with Mr. Guthrie’s service as a non-officer Special Advisor, under the Company’s 2015 Stock Incentive Plan on January 2, 2019, Mr. Guthrie received a restricted stock award with a value on the date of the grant equal to approximately $1,000,000, a one-year of service vesting requirement and otherwise the same terms and conditions as the restricted stock awards made to similarly situated executives on or about the date of the grant.

The foregoing description of the Employment Agreement is qualified in its entirety by reference to the complete text of the Employment Agreement, a copy of which is attached hereto as Exhibit 10.8, and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
Number

  

Description

10.1    Form of Indemnification Agreement.
10.2    Form of Performance Unit Award Agreement.
10.3    Form of Restricted Stock Agreement.
10.4    Form of Succession Restricted Stock Agreement.
10.5    Form of Succession 3-Year Performance Unit Award Agreement.
10.6    Form of Succession 5-Year Performance Unit Award Agreement.
10.7    Executive Severance Plan, dated January 1, 2019, by and between Concho Resources Inc. and its officers.
10.8    Employment Agreement, dated January 1, 2019, by and between Concho Resources Inc. and J. Steve Guthrie.


SIGNATURES

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

 

    CONCHO RESOURCES INC.
Date: January 4, 2019     By:   /s/ Travis L. Counts
    Name:   Travis L. Counts
    Title:  

Senior Vice President, General Counsel and

Corporate Secretary

Exhibit 10.1

INDEMNIFICATION AGREEMENT

THIS AGREEMENT is effective as of January 2, 2019, between Concho Resources Inc., a Delaware corporation (the “Corporation”), and the undersigned director or officer of the Corporation (“Indemnitee”).

WHEREAS, the Corporation has adopted its Fourth Amended and Restated Bylaws (as the same may be amended from time to time, the “Bylaws”) providing for indemnification and advancement of expenses of the Corporation’s directors and officers; and

WHEREAS, the Bylaws and the Delaware General Corporation Law (the “DGCL”) contemplate that contracts and insurance policies may be entered into with respect to indemnification and advancement of expenses of directors and officers; and

WHEREAS, the Corporation recognizes that competent and experienced persons may be reluctant to serve as directors or officers of corporations unless they have adequate and reliable protection through indemnification, advancement of expenses, and policies of Directors and Officers Liability Insurance (“D&O Insurance”), covering certain liabilities which might be incurred by directors and officers in the performance of their services; and

WHEREAS, in order to induce and encourage competent and experienced persons such as Indemnitee to serve and continue to serve as directors and officers of the Corporation and in any other capacity with respect to the Corporation as the Corporation may request, the Board of Directors of the Corporation (the “Board”) has determined that it is reasonable, prudent and necessary for the Corporation to obligate itself contractually to indemnify Indemnitee so that she/he will serve or continue to serve the Corporation free from undue concern that she/he will not be adequately protected, and that the following Agreement is in the best interests of the Corporation and its stockholders.

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Corporation and Indemnitee do hereby covenant and agree as follows:

1.      Definitions. As used in this Agreement:

(a)    The term “Proceeding” shall include any threatened, pending or completed action, suit, claim, arbitration, alternative dispute resolution mechanism, investigation, inquiry, judicial, administrative or legislative hearing, or other proceeding, whether brought by or in the right of the Corporation or otherwise, including any and all appeals, and whether of a civil, criminal, administrative, arbitrative, legislative, investigative or other nature, in which Indemnitee is or is reasonably expected to be involved as a party, as a witness or otherwise, by reason of the fact that Indemnitee is or was a director, officer, trustee, employee or agent of the Corporation, by reason of any action taken by her/him or of any inaction on her/his part while serving as a director, officer, trustee, employee or agent of the Corporation, or by reason of the fact that, while a director, officer, trustee, employee or agent of the Corporation, she/he is or was serving at the request of the

 

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Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise; in each case whether or not she/he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification or advancement can be provided under this Agreement; provided that any action, suit, claim or proceeding (or part thereof) which is brought by Indemnitee against the Corporation, other than an action brought by Indemnitee to enforce her/his rights under this Agreement, shall not be deemed a Proceeding unless authorized or ratified by the Board under Section 15(b).

(b)    The term “Expenses” shall include, without limitation, all attorneys’ fees and disbursements, accountants’ fees, private investigation fees and disbursements, retainers, court costs, transcript costs, fees of experts, fees and expenses of witnesses, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements, or expenses, incurred by or for Indemnitee in connection with prosecuting, defending, preparing to prosecute or defend, investigating or being or preparing to be a witness in, a Proceeding, or establishing Indemnitee’s right of entitlement to indemnification or advancement under this Agreement, but shall not include the amount of judgments, fines, ERISA excise taxes, or penalties actually levied against Indemnitee, or any amounts paid in settlement.

(c)    A “Change in Control” will be deemed to have occurred if, with respect to any particular 24-month period, the individuals who, at the beginning of such 24-month period, constituted the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the beginning of such 24-month period whose election, or nomination for election by the stockholders of the Corporation, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board.

(d)    A “Disinterested Director” means a director of the Corporation who is not or was not a party to the Proceeding in respect of which indemnification is being sought by Indemnitee.

(e)    “Independent Legal Counsel” means a law firm or a member of a law firm that neither is presently nor in the past five years has been retained to represent (i) the Corporation or Indemnitee in any matter material to either such party or (ii) any other party to the Proceeding giving rise to a request for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee’s right to indemnification under this Agreement.

(f)    References to Indemnitee’s being or acting as “a director, officer, trustee, employee or agent of the Corporation” or “serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise” shall include in each case service to or actions taken while a director, officer, trustee, employee or agent of any subsidiary of the Corporation or while serving as a member of a committee of the Board of the Corporation.

 

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(g)    References to “other enterprise” shall include employee benefit plans; references to “fines” shall include any excise tax assessed with respect to any employee benefit plan; references to “serving at the request of the Corporation” shall include any service as a director, officer, trustee, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, trustee, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner she/he reasonably believed to be in the interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Agreement.

(h)    The term “substantiating documentation” shall mean copies of bills or invoices for costs incurred by or for Indemnitee, or copies of court, agency or other orders or decrees or settlement agreements, as the case may be.

2.      Indemnity and Advances—General. The Corporation hereby agrees to hold harmless and indemnify Indemnitee, and to pay to Indemnitee in advance of the final disposition of any Proceeding all Expenses actually and reasonably incurred by Indemnitee in defending any such Proceeding, to the fullest extent authorized or permitted by law (including the applicable provisions of the DGCL), all on the terms and conditions set forth in this Agreement. The phrase “to the fullest extent permitted by law” shall include, but not be limited to (a) to the fullest extent permitted by any provision of the DGCL that authorizes or permits additional indemnification or advancement by agreement, or the corresponding provision of any amendment to or replacement of the DGCL and (b) to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify or advance Expenses to its officers and directors. Any amendment, alteration or repeal of the DGCL that adversely affects any right of Indemnitee shall be prospective only and shall not limit or eliminate any such right with respect to any Proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.

3.      Indemnity. Except as limited by Section 15, the Corporation hereby agrees to hold harmless and indemnify Indemnitee against all expense, liability and loss (including judgments, fines, ERISA excess taxes, penalties, amounts paid in settlement, and Expenses actually and reasonably incurred by Indemnitee) by reason of the fact that Indemnitee is or was a director, officer, trustee, employee or agent of the Corporation, or while a director, officer, trustee, employee or agent of the Corporation, Indemnitee is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise, but only if Indemnitee acted in good faith and in a manner she/he reasonably believed to be in or not opposed to the best interests of the Corporation. Additionally, in the case of a criminal proceeding, Indemnitee must have had no reasonable cause to believe that her/his conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself (a) create a presumption that Indemnitee did not act in good faith and in a manner which she/he reasonably believed to be in or not opposed to the best interests of

 

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the Corporation, and with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that her/his conduct was unlawful or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein. To receive indemnification, Indemnitee shall submit a written request in accordance with Section 7.

4.      Contribution. If the indemnification provided under Section 2 or Section 3 is unavailable by reason of a court decision finding that Indemnitee is not eligible to receive indemnification under this Agreement, based on grounds other than any of those set forth in Section 15, then, in respect of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Corporation shall contribute to the amount of Expenses actually and reasonably incurred and paid or payable by Indemnitee in such proportion as is appropriate to reflect (a) the relative benefits received by the Corporation on one hand and Indemnitee on the other from the transaction from which such Proceeding arose and (b) the relative fault of the Corporation on the one hand and of Indemnitee on the other in connection with the events that resulted in such Expenses as well as any other relevant equitable considerations. The relative fault of the Corporation on the one hand and of Indemnitee on the other shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. The Corporation agrees that it would not be just and equitable if contribution pursuant to this Section 4 were determined by pro rata allocation or any other method of allocation that does not take into account the foregoing equitable considerations.

5.    Defense of Proceedings; Choice of Counsel.

(a)    Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee shall, if a request for indemnification or an advancement of Expenses in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation in writing of the commencement thereof; but the omission to notify the Corporation shall not relieve it from any liability that it may have to Indemnitee. Notwithstanding any other provision of this Agreement, with respect to any such Proceeding of which Indemnitee notifies the Corporation, the Corporation shall be entitled to participate therein at its own expense.

(b)    Except as otherwise provided in this Section 5(b), to the extent that it may wish, the Corporation, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense of the Proceeding, with counsel satisfactory to Indemnitee. The Corporation may satisfy its obligations under this Agreement by paying for single counsel for a group of indemnitees, and legal counsel may represent both Indemnitee and the Corporation (and/or any other indemnitees entitled to receive advancement or indemnification from the Corporation with respect to such matter), in each case unless (i) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee or any other such indemnitees or (ii) under the applicable standards of professional conduct then prevailing, such legal counsel would have a conflict of interest. Any counsel retained in accordance with the preceding sentence shall be approved by a majority vote of the indemnitees, which approval shall not be unreasonably withheld.

(c)    In any Proceeding brought by or in the right of the Corporation to procure a judgment in its favor, Indemnitee (and/or any other indemnitees entitled to receive advancement

 

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of Expenses or indemnification from the Corporation with respect to such matter) shall be entitled to select single counsel of their choice to represent such group of indemnitees, and such counsel shall represent the group of indemnitees unless (i) Indemnitee or another indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee or any other such indemnitees or (ii) under the applicable standards of professional conduct then prevailing, such legal counsel would have a conflict of interest. Counsel for the group of indemnitees shall be selected and approved by majority vote of the indemnitees, which approval shall not be unreasonably withheld. If the Corporation has D&O Insurance, or other insurance, with a panel counsel requirement that may cover the matter for which advancement of Expenses or indemnification is sought, then such counsel shall be selected from among the panel counsel or other counsel approved by the insurers, unless the Corporation waives such requirement in writing. The Corporation shall not be entitled to assume the defense of any Proceeding brought by or in the right of the Corporation to procure a judgment in its favor.

(d)    Notwithstanding any other provision of this Agreement, Indemnitee shall have the right to employ Indemnitee’s own counsel in any Proceeding, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) there is a conflict of interest as described above or (ii) the employment of counsel by Indemnitee has been authorized by the Corporation.

6.      Advances of Expenses. To receive an advancement of Expenses under this Agreement, Indemnitee shall submit a written request to the Corporation, accompanied by substantiating documentation. Expenses incurred by Indemnitee in connection with a Proceeding shall be paid by the Corporation, in advance of the final disposition of the Proceeding, within 20 calendar days after receipt of Indemnitee’s written request, accompanied by substantiating documentation and by Indemnitee’s written undertaking to repay any amounts advanced to the extent it is ultimately determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that Indemnitee is not entitled to indemnification. Indemnitee’s undertaking to repay such amounts is not required to be secured. Indemnitee’s right to advancement shall not be subject to the satisfaction of any standard of conduct and advances shall be made without regard to Indemnitee’s ultimate entitlement to indemnification under the provisions of this Agreement or otherwise. No objections based on or involving the question whether such charges meet the definition of “Expenses,” including any question regarding the reasonableness of such Expenses, shall be grounds for failure to advance such amounts to Indemnitee, or to reimburse such Indemnitee for, the amounts claimed within such 20-day period, and the undertaking of Indemnitee to repay any such amounts to the extent it is ultimately determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that Indemnitee is not entitled to indemnification shall be deemed to include an undertaking to repay any such amounts determined not to have met such definition.

7.    Procedure for Requesting and Obtaining Indemnification.

(a)     Written Request . To receive indemnification under this Agreement, Indemnitee shall submit a written request to the Corporation, accompanied by substantiating documentation. Any indemnification under this Agreement shall be paid in full no later than 60 calendar days after receipt by the Corporation of the written request of Indemnitee, accompanied by substantiating documentation, unless, in the case of Proceedings addressed in Section 7(d), a determination is made that Indemnitee is not entitled to indemnification.

 

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(b)     Successful Proceedings . Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of any Proceeding, or in defense of any claim, issue, or matter therein, including, without limitation, the dismissal of any action without prejudice, or if it is ultimately determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that Indemnitee is otherwise entitled to be indemnified against Expenses, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee in connection therewith.

(c)     Witness Expenses . Notwithstanding any other provision of this Agreement, to the maximum extent permitted by the DGCL, Indemnitee shall be entitled to indemnification against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf if Indemnitee appears as a witness or otherwise incurs legal expenses as a result of or related to Indemnitee’s service as a director, officer, trustee, employee or agent of the Corporation, in any Proceeding to which Indemnitee neither is, nor is threatened to be made, a party.

(d)     Other Proceedings . To the extent Sections 7(b) and Section 7(c) do not apply, the entitlement of Indemnitee to indemnification shall be determined by the following person or persons, who shall be empowered to make such determination (as selected by the Board, except with respect to clause (v) below): (i) the Board by a majority vote Disinterested Directors, whether or not such majority constitutes a quorum, (ii) a committee of Disinterested Directors designated by majority vote of such directors, whether or not such majority constitutes a quorum, (iii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, (iv) the stockholders or (v) in the event that a Change in Control has occurred, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. Such Independent Legal Counsel shall be selected by the Board and approved by Indemnitee, except that in the event that a Change in Control has occurred, Independent Legal Counsel shall be selected by Indemnitee. Upon failure of the Board to select such Independent Legal Counsel or upon failure of Indemnitee to approve (or to select, in the event a Change in Control has occurred), such Independent Legal Counsel shall be selected upon application to a court of competent jurisdiction. If the person making such determination shall determine that Indemnitee is entitled to indemnification as to part (but not all) of the application for indemnification, such person shall reasonably prorate such partial indemnification among the claims, issues or matters at issue at the time of the determination.

8.    Presumptions and Effect of Certain Proceedings.

(a)    Upon making a written request for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder and the Corporation shall have the burden of proof in making any determination to the contrary. If the person or persons so empowered to make such determination shall have failed to make the requested determination with respect to indemnification within 60 calendar days after receipt by the Corporation of such request, a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent actual fraud in the request for indemnification.

 

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(b)    In the event that a determination is made that Indemnitee is not entitled to indemnification hereunder or if payment is not timely made following a determination of entitlement to indemnification pursuant to Section 7(d) or Section 8(a), or if an advancement of Expenses is not timely made pursuant to Section 6, Indemnitee may at any time thereafter bring suit against the Corporation seeking an adjudication of entitlement to such indemnification or advancement of Expenses, and any such suit shall be brought in the Court of Chancery of the State of Delaware, unless otherwise required by the law of the state in which Indemnitee primarily resides and works. The Corporation shall not oppose Indemnitee’s right to seek any such adjudication. In any suit brought by Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by Indemnitee to enforce a right to an advancement of Expenses), it shall be a defense that Indemnitee has not met any applicable standard of conduct for indemnification set forth in the DGCL, including the standard described in Section 4 or 5, as applicable. Further, in any suit brought by the Corporation to recover an advancement of Expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such Expenses upon a final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that Indemnitee has not met the standard of conduct described above. Neither the failure of the Corporation (including the Disinterested Directors, any committee thereof, Independent Legal Counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct described above, nor an actual determination by the Corporation (including the Disinterested Directors, any committee thereof, Independent Legal Counsel or its stockholders) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by Indemnitee, be a defense to such suit. In any suit brought by Indemnitee to enforce a right to indemnification or to an advancement of Expenses hereunder, or brought by the Corporation to recover an advancement of Expenses pursuant to the terms of an undertaking, the burden of proving that Indemnitee is not entitled to be indemnified, or to such advancement of Expenses, under this Agreement or otherwise shall be on the Corporation. If a determination is made or deemed to have been made pursuant to the terms of Section 7(d) or Section 8(a) that Indemnitee is entitled to indemnification, the Corporation shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding, and enforceable. The Corporation further agrees to stipulate in any court pursuant to this Section 8 that the Corporation is bound by all the provisions of this Agreement and is precluded from making any assertions to the contrary. If the court shall determine that Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Corporation shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings) to the fullest extent permitted by law, and in any suit brought by the Corporation to recover an advancement of Expenses pursuant to the terms of an undertaking, the Corporation shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such suit to the extent Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of such suit, to the fullest extent permitted by law.

9.      Indemnification Hereunder Not Exclusive; Prior Indemnification Agreements. The indemnification and advancement of expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may now or hereafter be entitled under the provisions of a certificate of incorporation or bylaws (including the

 

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Corporation’s Restated Certificate of Incorporation and the Bylaws), the DGCL or other applicable law, any D&O Insurance, any agreement or otherwise. This Agreement supersedes and replaces all prior written indemnification agreements between the Corporation (or any predecessor thereof) and Indemnitee with respect to the subject matter hereof and any such prior agreements shall be terminated upon execution of this Agreement. However, Indemnitee shall reimburse the Corporation for amounts paid to her/him pursuant to such other rights to the extent such payments duplicate any payments received pursuant to this Agreement.

10.      Continuation of Indemnity. All agreements and obligations of the Corporation contained herein shall continue during the period Indemnitee is a director, officer, trustee, employee or agent of the Corporation (or while a director, officer, trustee, employee or agent of the Corporation, Indemnitee is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, limited liability company or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (notwithstanding the fact that Indemnitee has ceased to serve the Corporation).

11.      Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for a portion of any expense, liability or loss (including judgments, fines, ERISA excess taxes, penalties, amounts paid in settlement, and Expenses actually and reasonably incurred by Indemnitee), but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such amounts to which Indemnitee is entitled.

12.      Settlement of Claims. The Corporation shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Corporation’s prior written consent. The Corporation shall not settle any Proceeding in any manner which would impose any penalty or limitation on or disclosure obligation with respect to Indemnitee, or that would directly or indirectly constitute or impose any admission or acknowledgment of fault or culpability with respect to Indemnitee, without Indemnitee’s prior written consent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay their consent to any proposed settlement. The Corporation shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Corporation’s written consent, or with regard to any judicial award, if the Corporation was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such Proceeding.

13.    Acknowledgements.

(a)     Corporation Acknowledgement . The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Corporation hereby in order to induce Indemnitee to serve or to continue to serve as a director or officer of the Corporation, and acknowledges that Indemnitee is relying upon this Agreement in agreeing to serve or in continuing to serve as a director or officer of the Corporation.

 

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(b)     Mutual Acknowledgment . Both the Corporation and Indemnitee acknowledge that in certain instances, Federal law or public policy may override applicable state law and prohibit the Corporation from indemnifying its directors and officers under this Agreement or otherwise. For example, the Corporation and Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”) has taken the position that indemnification is not permissible for liabilities arising under certain federal securities laws, and federal legislation prohibits indemnification for certain ERISA violations. Indemnitee understands and acknowledges that the Corporation has undertaken or may be required in the future to undertake with the SEC to submit the question of indemnification to a court in certain circumstances for a determination of the Corporation’s right under public policy to indemnify Indemnitee.

14.      Enforcement. In the event Indemnitee is required to bring any action to enforce rights or to collect moneys due under this Agreement, to the extent Indemnitee has been successful, on the merits or otherwise, in whole or in part, in such action, the Corporation shall reimburse Indemnitee for Expenses actually and reasonably incurred by Indemnitee in bringing and pursuing such action.

15.      Exceptions. Any other provision herein to the contrary notwithstanding, the Corporation shall not be obligated pursuant to the terms of this Agreement:

(a)     No Entitlement to Indemnification or Advancement . To indemnify Indemnitee for any amounts incurred by Indemnitee with respect to any action instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that Indemnitee was not entitled to indemnification or advancement of Expenses hereunder;

(b)     Claims Brought by Indemnitee . To indemnify or advance Expenses to Indemnitee in connection with an action, suit or proceeding, or part thereof, voluntarily initiated by Indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (i) Indemnitee or (ii) the Corporation in an action, suit or proceeding initiated by Indemnitee), except a proceeding pursuant to Section 8(b) to enforce or interpret this Agreement, unless the action, suit or proceeding, or part thereof, was authorized or ratified by the Board or the Board otherwise determines that indemnification or advancement of Expenses is appropriate;

(c)     Insured Claims . To indemnify or advance Expenses to Indemnitee for Expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement) to the extent such Expenses or liabilities have been paid directly to Indemnitee by an insurance carrier under a D&O Insurance policy maintained by the Corporation; or

(d)     Indemnification Unlawful . To indemnify or advance Expenses to Indemnitee to the extent (i) expressly prohibited by applicable law, or (ii) it is ultimately determined, by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal, that such indemnification or advancement is not lawful.

16.      Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable (a) the validity, legality and enforceability of the remaining provisions of this Agreement shall not be in any way affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. Each section of this Agreement

 

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is a separate and independent portion of this Agreement. If the indemnification or advancement of Expenses to which Indemnitee is entitled with respect to any aspect of any claim varies between two or more sections of this Agreement, that section providing the most comprehensive protection shall apply.

17.    Miscellaneous.

(a)     Governing Law . This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflict of law, unless otherwise required by the law of the state in which Indemnitee primarily resides and works.

(b)     Amendment; Enforcement of Rights . No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.

(c)     Construction . This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

(d)     Notices . All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when delivered personally to the recipient, (ii) one business day after the date when sent to the recipient by reputable overnight courier service (charges prepaid), (iii) five business days after the date when mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid or (iv) when sent by email to the recipient. Such notices, demands and other communications shall be sent to the parties at the addresses indicated on the signature page hereto, or to such other address or such email as any party hereto may from time to time provide.

(e)     Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(f)     Successors and Assigns . This Agreement shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, legal representatives and assigns.

(g)     Subrogation . In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (excluding insurance obtained on Indemnitee’s own behalf), who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Corporation to effectively bring suit to enforce such rights.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

CONCHO RESOURCES INC.
By:    
  Travis L. Counts, Senior Vice President, General Counsel and Corporate Secretary
  Address:  

One Concho Center

600 W. Illinois Ave.

Midland, Texas 79701

 

INDEMNITEE:
               
Print:    
Title:    
Address:    
   

 

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Exhibit 10.2

CONCHO RESOURCES INC.

2015 STOCK INCENTIVE PLAN

PERFORMANCE UNIT AWARD AGREEMENT

JANUARY 2, 2019

To:     <first_name> <last_name>

Concho Resources Inc., a Delaware corporation (the “ Company ”), is pleased to grant you an award (the “ Award ”) consisting of an aggregate of <shares_awarded> performance units (each, a “ Performance Unit ”) that have a performance period beginning on January 1, 2019 through December 31, 2021 (the “ Performance Period ”). The Award is subject to your acceptance of and agreement to all the applicable terms, conditions and restrictions described in this Performance Unit Award Agreement (this “ Agreement ”) and the Concho Resources Inc. 2015 Stock Incentive Plan (as such plan may be amended or restated thereafter from time to time, the “ Plan ”). A copy of the Plan is available upon request. To the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable provisions of this Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. Terms that have their initial letters capitalized, but that are not otherwise defined in this Agreement, shall have the meanings given to them in the Plan in effect as of the date of this Agreement. The Performance Units contemplated herein are granted as Performance Awards under the Plan and are subject to the award limitations applicable to awards denominated in shares of the Company’s common stock (the “ Common Stock ”) that are set forth in Paragraph V(a) of the Plan.

This Agreement sets forth the terms of the agreement between you and the Company with respect to the Performance Units. By accepting this Agreement, you agree to be bound by all of the terms hereof.

1.     Overview of Performance Units .

(a)     Performance Units Generally . Each Performance Unit represents a contractual right to receive one share of Common Stock, subject to the terms and conditions of this Agreement; provided that, based on the achievement of the performance objective outlined in Section 2 hereof (the “ Performance Objective ”), the number of shares of Common Stock that may be deliverable hereunder in respect of the Performance Units may range from 0% to 300% of the number of Performance Units stated in the preamble to this Agreement (such stated number of Performance Units hereafter called the “ Initial Performance Units ”). Your right to receive Common Stock in respect of Performance Units is generally contingent, in whole or in part, upon (i) the achievement of the Performance Objective and (ii) except as provided in Section 4(a) or Section 5 hereof, your continued employment with the Company through the end of the Performance Period.

 

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(b)     Dividend Equivalents . With respect to each outstanding Performance Unit, the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid during the Performance Period on one share of Common Stock. The amount credited to such book entry account shall be payable to you at the same time or times, and subject to the same terms and conditions as are applicable to, your Performance Units; provided that, if more than the Initial Performance Units shall become payable in accordance with this Agreement, then the maximum amount payable in respect of such dividend equivalents shall be the amount credited to your book entry account. Dividends and distributions payable on Common Stock other than in cash shall have a value equal to the amount of such dividends reported by the issuer to its shareholders for purposes of Federal income taxation and will be addressed in accordance with Section 9 hereof.

2.     Performance Objective . The Performance Objective with respect to the Initial Performance Units is based on both (a) the Total Shareholder Return achieved by the Company relative to the Peer Companies (as defined below) for the Performance Period (the “ Relative Total Shareholder Return ”) and (b) the absolute annualized Total Shareholder Return achieved by the Company for the Performance Period (the “ Absolute Total Shareholder Return ”). “ Total Shareholder Return ” shall mean, as to the Company and each of the Peer Companies, the percentage rate of return shareholders receive through stock price changes and the receipt of cash dividends paid over the Performance Period, determined in accordance with the following formula: ( Closing Value minus Initial Value plus Cash Dividends ) divided by Initial Value , where:

Closing Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day during the period beginning on the first day of the calendar month in which the last day of the Performance Period occurs and ending on the last day of the Performance Period; provided, however, that if a Peer Company ceases to have a class of common equity securities listed to trade under Section 12(b) or Section 12(g) of the Exchange Act during the Performance Period (determined after any applicable adjustment by the Committee pursuant to Section 9 hereof), then the Total Shareholder Return for such Peer Company shall be determined by the Committee as provided in the preceding provisions of this sentence but, from and after the date of such cessation, the price per share of such Peer Company’s common stock shall be deemed to be equal to the price per share of such common stock immediately prior to such cessation increased by the interest that would be earned on such amount if it were invested in U.S. Treasury securities of approximate equal duration to the portion of the Performance Period remaining after such cessation.

Notwithstanding the foregoing, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 5 hereof, then the Closing Value shall be determined as described above, except that (i) the last day of the Performance Period shall be deemed to be the Change of Control Date and the Closing Value with respect to the Peer Companies shall be based on the 30-day period ending on the date of such termination of employment, and (ii) the Closing Value with respect to the Company shall mean the fair market value (as determined in good faith by the Committee) of the consideration received by the stockholders of the Company with respect to each share of Common Stock as of the effective time of the Change of Control; provided, however, that if such Change of Control is effected in a manner that does not result in the

 

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stockholders of the Company receiving consideration in exchange for their Common Stock, then such Closing Value shall mean the average of the closing stock prices of the Company on each trading day during the 30-day period immediately preceding the date of the Change of Control Date (as defined in Section 5 hereof).

In addition, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 4(a) or 4(b) hereof, then the Closing Value shall be determined as described above, except that the last day of the Performance Period shall be deemed to be the Termination Date (as defined in Section 4(a) hereof) and the Closing Value shall be based on the 30-day period ending on the date of such termination of employment.

Initial Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day in the calendar month immediately preceding the first day of the Performance Period. The Initial Value of the Common Stock to be used to determine the Company’s Total Shareholder Return over the Performance Period is $              per share.

Cash Dividends means the aggregate amount of cash dividends per share paid over the Performance Period by the Company or such Peer Company, as applicable.

Achievement with respect to the portion of the Performance Objective that is based on Relative Total Shareholder Return shall be determined by the Committee based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies, and shall be a percentage determined in accordance with the table set forth in Appendix A hereto. A company shall be a “ Peer Company ” if it is one of the companies listed on Appendix A hereto. Achievement with respect to the portion of the Performance Objective that is based on Absolute Total Shareholder Return shall be determined by the Committee based on the Company’s annualized Total Shareholder Return achieved over the Performance Period, and shall be a percentage determined in accordance with the provisions set forth in Appendix A hereto. As soon as administratively practicable following the end of the Performance Period (but in no event later than the 15 th day of the third calendar month following the calendar month in which the Performance Period ends), the Committee shall certify whether and to the extent that the Performance Objective has been achieved and will determine the number of Performance Units, if any, determined to be earned for the Performance Period (which number of Performance Units shall equal the product of the Initial Performance Units (subject to adjustment as set forth in Section 9 hereof) multiplied by the percentage determined with respect to Relative Total Shareholder Return pursuant to the table set forth in Appendix A hereto multiplied by the percentage determined with respect to Absolute Total Shareholder Return in accordance with the provisions set forth in Appendix A hereto). The number of Performance Units, if any, determined by the Committee to be earned pursuant to the preceding provisions of this Section 2 shall be referred to as the “ Earned Performance Units .”

3.     Conversion of Performance Units; Delivery of Common Stock with respect to Performance Units . Unless an earlier date applies pursuant to Section 5(d) hereof, payment in respect of Earned Performance Units shall be made not later than the 15 th day of the third calendar

 

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month following the calendar month in which the Performance Period ends. All payments in respect of Earned Performance Units shall be made in freely transferable shares of Common Stock. Neither this Section 3 nor any action taken pursuant to or in accordance with this Section 3 shall be construed to create a trust of any kind. Any shares of Common Stock issued to you pursuant to this Agreement in settlement of Earned Performance Units shall be in book entry form registered in your name. Any fractional Earned Performance Units shall be rounded up to the nearest whole share of Common Stock.

4.     Termination of Employment .

(a)     Termination without Cause . In the event that your employment with the Company terminates during the Performance Period due to your termination of employment by the Company without Cause (as defined in the Severance Plan (as defined below)) (and not by reason of your death or Disability (as in the Severance Plan)), then you shall be deemed to have earned, as of the date of your termination of employment (the “ Termination Date ”), that number of Performance Units equal to the product of (i) and (ii), where:

 

  (i)

equals the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the lower of the target level of performance and the actual performance against the stated performance criteria through the Termination Date; and

 

  (ii)

equals a fraction (the “ Pro-Ration Fraction ”), (A) the numerator of which is the number of days during the Performance Period during which you were employed by the Company and (B) the denominator of which is the total number of days in the Performance Period.

Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units determined to be earned by reason of this Section 4(a) shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

(b)     Death or Disability . In the event that your employment with the Company terminates during the Performance Period due to your death or Disability, then you shall be deemed to have earned, as of the Termination Date, that number of Performance Units equal to the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the higher of the target level of performance and the actual performance against the stated performance criteria through the Termination Date. Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units determined to be earned by reason of this Section 4(b) shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

 

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(c)     Retirement . In the event that your employment with the Company terminates during the Performance Period due to your retirement at or after having attained age 65, then you shall be deemed to have earned, as of the end of the Performance Period, that number of Performance Units equal to the product of (i) and (ii), where:

 

  (i)

equals the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof had you remained employed through the end of the Performance Period; and

 

  (ii)

the Pro-Ration Fraction.

Any portion of your Performance Units that is eligible to be earned pursuant to first sentence of this subparagraph (c), but is not earned as of the end of the Performance Period, shall terminate and be canceled upon the expiration of the Performance Period. Distribution of shares of Common Stock in respect of the Performance Units determined to be earned by reason of this Section 4(c) shall be made at the time provided in Section 3 hereof.

(d)     Other Termination of Employment . Unless otherwise determined by the Committee at or after grant, in the event that your employment with the Company terminates prior to the end of the Performance Period for any reason other than those listed in Section 4(a), 4(b) or 4(c) hereof, all of your Performance Units shall terminate and automatically be canceled upon such termination of employment.

(e)     Definitions of Severance Plan . As used in this Agreement, the term “ Severance Plan ” shall mean that certain Concho Resources Inc. Executive Severance Plan, as amended from time to time in accordance with the terms thereof.

(f)     Termination of Employment . For all purposes of this Agreement, you will be considered to have terminated from employment with the Company when you incur a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance thereunder; provided, however, that whether such a separation from service has occurred shall be determined based upon a reasonably anticipated permanent reduction in the level of bona fide services to be performed to no more than 49% of the average level of bona fide services provided in the immediately preceding 36 months.

5.     Change of Control . Notwithstanding the provisions of Section 1 through Section 4 hereof or the terms of any Employment Agreement between you and the Company or any Affiliate, if you have been continuously employed from the grant date specified above until the date that a Change of Control (as in the Severance Plan) occurs (the “ Change of Control Date ”), then upon the occurrence of a Change of Control your rights in respect of the Performance Units shall be determined as provided in Section 5(a) hereof. If your employment shall have terminated prior to the Change of Control Date, but at least some of your Performance Units remain outstanding pursuant to Section 4(c) hereof, then your rights in respect of your outstanding Performance Units shall be determined as provided in Section 5(b) hereof.

 

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(a)     Continuous Employment . If a Change of Control occurs and your employment has not terminated prior to the Change of Control Date, then on the Change in Control Date, your outstanding Performance Units will be automatically converted into a number of time-based Restricted Stock that will vest, subject solely to your continued employment, on the last date of the Performance Period. The number of such time-based Restricted Stock will be equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

In the event your Performance Units are converted into time-based Restricted Stock pursuant to this Section 5(a), and your employment is terminated as a result of a Qualifying Termination (as defined in the Severance Plan) within the two-year period beginning on the Change of Control Date, 100% of your then-unvested Restricted Stock shall immediately vest as of your Termination Date.

(b)     Termination of Employment Upon Change of Control . If a Change of Control occurs and your employment is terminated upon the Change of Control Date as a result of a Qualifying Termination, then you will be issued a number of shares of Common Stock equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

(c)     Prior Termination of Employment . If your employment terminated prior to the Change of Control Date, but some or all of your Performance Units are still outstanding on such date pursuant to Section 4(c) hereof, then you shall receive a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock that would have been issued to you determined as though Section 5(a) hereof was applicable to you, times (ii) the Pro-Ration Fraction.

(d)     Time and Form of Payment . Any shares of Common Stock issuable pursuant to Section 5(a) shall be issued at the time provided in Section 3 hereof, or, if sooner, immediately upon your Termination Date. Any shares of Common Stock issuable pursuant to Section 5(b) or 5(c) shall be issued immediately following (and not later than five business days after) the Change of Control Date and shall be fully earned and freely transferable as of the Change of Control Date. Notwithstanding anything else contained in this Section 5 to the contrary (other than Section 5(e)), if the Change of Control involves a merger, reclassification or other reorganization or business

 

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combination pursuant to which the Common Stock is exchanged for or converted to stock of the surviving or continuing corporation in such transaction, the successor or continuing entity to the Company or the direct or indirect parent of the Company (collectively, the “ Successor Corporation ”), then you shall receive, instead of each share of Common Stock otherwise deliverable hereunder, the same consideration (whether stock, cash or other property) payable or distributable in such transaction in respect of a share of Common Stock. Any property distributed pursuant to this Section 5(d), whether in shares of the Successor Corporation or otherwise, shall in all cases be freely transferable without any restriction (other than any such restriction that may be imposed by applicable law), and any securities issued hereunder shall be registered to trade under the Exchange Act, and shall have been registered under the Securities Act of 1933, as amended (the “ Securities Act ”).

(e)     Alternative Form of Payment . Notwithstanding anything else contained in this Section 5 to the contrary, the Committee may elect, at its sole discretion by resolution adopted prior to the Change of Control Date, to have the Company satisfy your rights in respect of the Performance Units (as determined pursuant to the foregoing provisions of this Section 5), in whole or in part, by having the Company make a cash payment to you within five business days of the Change of Control Date in respect of all such Performance Units or such portion of such Performance Units as the Committee shall determine. Any cash payment for any Performance Unit shall be equal to the Fair Market Value of the number of shares of Common Stock into which it would convert, determined on the Change of Control Date.

6.     Clawback and Forfeiture under Certain Circumstances . Notwithstanding any provisions in this Agreement to the contrary, any portion of the payments and benefits provided under this Agreement or the sale of shares of Common Stock shall be subject to a clawback to the extent necessary to comply with applicable law including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule. In addition, notwithstanding any provisions herein to the contrary, the Committee may terminate your Award if it determines that you have engaged in conduct that would permit the Company to terminate your employment for cause. For purposes of the preceding sentence, the term “cause” has the meaning assigned to such term in your employment agreement with the Company or an Affiliate; provided, however, that in the absence of such an employment agreement or if such employment agreement does not define the term “cause,” then “cause” means a determination by the Company that you have (a) engaged in conduct that is injurious (monetarily or otherwise) to the Company or any Affiliate (including, without limitation, misuse of any of the Company’s funds or other property), (b) been convicted of, or pleaded no contest to, or received adjudicated probation or deferred adjudication in connection with any felony or any other crime involving fraud, dishonesty or moral turpitude, (c) breached any material provision of the Plan, this Agreement or any other written agreement or corporate policy or code of conduct established by the Company or its Affiliates, (d) engaged in gross negligence or willful misconduct in the performance of your duties, or (e) refused without proper legal reason to perform your duties.

7.     Nontransferability of Awards . The Performance Units granted hereunder may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, other than by will or by the laws of descent and distribution. Following your death, any shares distributable (or cash payable) in respect of Performance Units will be delivered or paid, at the time specified in Section 3 hereof or, if applicable, Section 5 hereof, to your beneficiary in accordance with, and subject to, the terms and conditions hereof and of the Plan.

 

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8.     [Reserved] .

9.     Adjustments in Respect of Performance Units . In the event of any common stock dividend or common stock split, recapitalization (including, but not limited to, the payment of an extraordinary dividend), merger, consolidation, combination, spin-off, distribution of assets to stockholders, exchange of shares, or other similar corporate change with regard to the Company or any Peer Company (other than the payment of cash dividends), appropriate adjustments shall be made by the Committee to the Initial Value of the corresponding common stock, and, if any such event occurs with respect to the Company, in the aggregate number of Performance Units subject to this Agreement. The Committee’s determination with respect to any such adjustment shall be conclusive.

10.     Effect of Settlement . Upon conversion into shares of Common Stock (or Successor Corporation common stock) pursuant to Section 3 or Section 5 hereof, a cash settlement of your rights, at the election of the Committee at its sole discretion pursuant to Section 5(e) hereof, or a combination of the issuance of Common Stock and the payment of cash in accordance with any applicable provisions of this Agreement, all of your Performance Units subject to the Award shall be cancelled and terminated. If and to the extent that you are still employed at the end of the Performance Period, and none of your Performance Units shall have become earned in accordance with the terms of this Agreement, all such Performance Units subject to the Award shall be cancelled and terminated.

11.     Furnish Information . You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.

12.     Remedies . The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.

13.     Information Confidential . As partial consideration for the granting of the Award hereunder, you hereby agree with the Company that you will keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse, tax and financial advisors, or to a financial institution to the extent that such information is necessary to secure a loan.

14.     Payment of Taxes . The Company may from time to time require you to pay to the Company (or an Affiliate if you are an employee of an Affiliate) the amount that the Company deems necessary to satisfy the Company’s or its Affiliate’s current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award. With respect

 

8


to any required tax withholding, unless another arrangement is permitted by the Company in its discretion, the Company shall withhold from the shares of Common Stock to be issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, that determination to be based on the shares’ Fair Market Value at the time as of which such determination is made. In the event the Company subsequently determines that the aggregate Fair Market Value of any shares of Common Stock withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you shall pay to the Company, immediately upon the Company’s request, the amount of that deficiency.

15.     Right of the Company and Affiliates to Terminate Your Employment . Nothing contained in this Agreement shall confer upon you the right to continue in the employ of the Company or any Affiliate, or interfere in any way with the rights of the Company or any Affiliate to terminate your employment at any time for any or no reason; provided, however, that any such termination shall be subject to the terms and conditions of any employment agreement between you and the Company or any Affiliate.

16.     No Liability for Good Faith Determinations . Neither the Company nor the members of the Board and the Committee shall be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Performance Units granted hereunder.

17.     No Guarantee of Interests . The Board, the Committee and the Company do not guarantee the Common Stock of the Company from loss or depreciation.

18.     Company Records . Records of the Company or its Affiliates regarding your period of employment, termination of employment and the reason therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.

19.     Severability . If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.

20.     Notices . Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by mail. Any such notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered, or, whether actually received or not, on the third business day after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which such person has theretofore specified by written notice delivered in accordance herewith. The Company or you may change, at any time and from time to time, by written notice to the other, the address which it or you had previously specified for receiving notices.

 

9


The Company and you agree that any notices shall be given to the Company or to you at the following addresses:

Company:

Concho Resources Inc.

Attn: Corporate Secretary

One Concho Center

600 W. Illinois Avenue

Midland, Texas 79701

Holder:    At your current address as shown in the Company’s records.

21.     Waiver of Notice . Any person entitled to notice hereunder may waive such notice in writing.

22.     Successor . This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.

23.     Headings . The titles and headings of Sections and paragraphs are included for convenience of reference only and are not to be considered in construction of the provisions hereof.

24.     Governing Law . All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of the State of Texas except to the extent Texas law is preempted by federal law. The obligation of the Company to sell and deliver Common Stock hereunder is subject to applicable laws and to the approval of any governmental or regulatory authority (including any applicable stock exchange) required in connection with the authorization, issuance, sale, or delivery of such Common Stock.

25.     Execution of Receipts and Releases . Any payment of cash or any issuance or transfer of shares of Common Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.

26.     Amendment . This Agreement may be amended at any time unilaterally by the Company provided that such amendment is consistent with all applicable laws and does not reduce any rights or benefits you have accrued pursuant to this Agreement. This Agreement may also be amended at any time unilaterally by the Company to the extent the Company believes in good faith that such amendment is necessary or advisable to bring this Agreement into compliance with any applicable laws, including Section 409A of the Code.

27.     The Plan . This Agreement is subject to all the terms, conditions, limitations and restrictions contained in the Plan.

28.     Agreement Respecting Securities Act . You represent and agree that you will not sell the Common Stock that may be issued to you pursuant to your Performance Units except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act (including Rule 144).

 

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29.     No Stockholder Rights . The Performance Units granted pursuant to this Agreement do not and shall not entitle you to any rights as a stockholder of Common Stock until such time as you receive shares of Common Stock pursuant to this Agreement. Your rights with respect to the Performance Units shall remain forfeitable at all times prior to the date on which rights become earned in accordance with this Agreement.

[Signatures on the following page.]

 

11


If you accept this Performance Unit Award Agreement and agree to its terms and conditions, please so confirm by signing and returning the duplicate of this Agreement enclosed for that purpose.

 

Very Truly Yours,
CONCHO RESOURCES INC.
By:    
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer

ACKNOWLEDGED AND AGREED:

 

By:    
  <first_name> <last_name>

 

12


Appendix A

Determination of Earned Performance Units

A.     Relative Total Shareholder Return

Peer Companies:

 

OXY   Occidental Petroleum Corporation
EOG   EOG Resources, Inc.
APC   Anadarko Petroleum Corporation
DVN   Devon Energy Corporation
APA   Apache Corporation
MRO   Marathon Oil Corporation
PXD   Pioneer Natural Resources
CLR   Continental Resources, Inc.
NBL   Noble Energy, Inc.
HES   Hess Corporation
COG   Cabot Oil & Gas Corporation
XEC   Cimarex Energy Co.
FANG   Diamondback Energy, Inc.
PE   Parsley Energy Inc.
COP   ConocoPhillips

Determination of Percentage Attributable to Relative Total Shareholder Return:

The percentage attributable to the achievement of Relative Total Shareholder Return shall be determined in accordance with the following table based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies (straight line interpolation will be used between levels):

 

Company’s Relative Ranking

  

Applicable Percentage

93 rd Percentile or Above    200%
80 th Percentile    175%
60 th Percentile    125%
40 th Percentile    80%
27 th Percentile    54%
20 th Percentile or Below    0%

 

13


B.     Absolute Total Shareholder Return

The percentage attributable to the achievement of Absolute Total Shareholder Return shall be determined in accordance with the following table based on the Company’s annualized Total Shareholder Return for the Performance Period:

 

Company’s annualized Total Shareholder

Return for the Performance Period

  

Applicable Percentage

Less than 0%    50%
0% to 5%    75%
5% to 10%    100%
10% to 15%    125%
Greater than 15%    150%

 

14

Exhibit 10.3

CONCHO RESOURCES INC.

2015 STOCK INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made on <award_date> (the “Date of Grant”), between CONCHO RESOURCES INC., a Delaware corporation (the “Company”), and <first_name> <last_name> (the “Employee”).

1.     Award . Pursuant to the CONCHO RESOURCES INC. 2015 STOCK INCENTIVE PLAN (the “Plan”), as of the Date of Grant, <shares_awarded> shares (the “Restricted Shares”) of the Company’s common stock, par value $0.001 per share, shall be issued as hereinafter provided in the Employee’s name subject to certain restrictions thereon. The Restricted Shares shall be issued upon acceptance hereof by the Employee and upon satisfaction of the conditions of this Agreement. The Employee acknowledges receipt of a copy of the Plan, and agrees that this award of Restricted Shares shall be subject to all of the terms and provisions of the Plan, including future amendments thereto, if any, pursuant to the terms thereof.

2.     Definitions . Capitalized terms used in this Agreement that are not defined below or in the body of this Agreement shall have the meanings given to them in the Plan. In addition to the terms defined in the body of this Agreement, the following capitalized words and terms shall have the meanings indicated below:

(a)    “Cause” shall have the meaning assigned to such term under the Severance Plan.

(b)    “Change of Control” shall have the meaning assigned to such term under the Severance Plan.

(c)    “Disability” shall have the meaning assigned to such term under the Severance Plan.

(d)    “Earned Shares” means the Restricted Shares after the lapse of the Forfeiture Restrictions without forfeiture.

(e)    “Forfeiture Restrictions” shall have the meaning specified in Section 3(a) hereof.

(f)    “Qualifying Termination” shall have the meaning assigned to such term under the Severance Plan.

(g)    “Severance Plan” shall mean that certain Concho Resources Inc. Executive Severance Plan, as amended from time to time in accordance with the terms thereof.

 

1


3.     Restricted Shares . The Employee hereby accepts the Restricted Shares when issued and agrees with respect thereto as follows:

(a)     Forfeiture Restrictions . The Restricted Shares may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, and in the event of termination of the Employee’s employment with the Company for any reason other than as described in Section 3(b) below, the Employee shall, for no consideration, forfeit to the Company all Restricted Shares. The prohibition against transfer and the obligation to forfeit and surrender Restricted Shares to the Company upon termination of employment as provided in the preceding sentence are herein referred to as the “Forfeiture Restrictions.” The Forfeiture Restrictions shall be binding upon and enforceable against any transferee of Restricted Shares.

(b)     Lapse of Forfeiture Restrictions . Provided that the Employee has been continuously employed by the Company from the Date of Grant through the lapse date set forth in the following schedule, the Forfeiture Restrictions shall lapse with respect to a percentage of the Restricted Shares determined in accordance with the following schedule: <vesting_schedule>

Notwithstanding the foregoing, (i) subject to Section 3.4 (relating to a release agreement) of the Severance Plan, if the Employee’s employment with the Company is terminated by the Company without Cause, and not by reason of death or Disability, then the Forfeiture Restrictions shall lapse with respect to a pro-rated number of then unvested Restricted Shares based upon the number of days that the Employee was employed by the Company during the vesting period applicable to such unvested Restricted Shares divided by the total number of days in such vesting period, (ii) if the Employee’s employment with the Company is terminated by reason of death or Disability, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Shares effective as of the date of such termination, and (iii) subject to the provisions of Section 3.4 (relating to a release agreement) and Section 3.5 (relating to parachute payments) of the Severance Plan, if the Employee’s employment with the Company shall be subject to an Qualifiying Termination within the two-year period beginning on the date upon which a Change of Control occurs, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Shares effective as of the date of such Qualifying Termination. Any shares with respect to which the Forfeiture Restrictions do not lapse in accordance with the preceding provisions of this Section 3(b) shall be forfeited to the Company for no consideration as of the date of the termination of the Employee’s employment with the Company.

(c)     Certificates . A certificate evidencing the Restricted Shares shall be issued by the Company in the Employee’s name, pursuant to which the Employee shall have all of the rights of a stockholder of the Company with respect to the Restricted Shares, including, without limitation, voting rights and the right to receive dividends (provided, however, that dividends paid in shares of the Company’s stock shall be subject to the Forfeiture Restrictions and further provided that dividends that are paid other than in shares of the Company’s stock shall be paid no later than the end of the calendar year in which the dividend for such class of stock is paid to stockholders of such class or, if later, the 15th day of the third month following the date the dividend is paid to stockholders of such class of stock). Notwithstanding the foregoing, the Company may, in its discretion, elect to complete the delivery of the Restricted Shares by means of electronic, book-entry statement, rather than issuing physical share certificates. The Employee may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the stock until the Forfeiture

 

2


Restrictions have expired, and a breach of the terms of this Agreement shall cause a forfeiture of the Restricted Shares. The certificate, if any, shall be delivered upon issuance to the Secretary of the Company or to such other depository as may be designated by the Committee as a depository for safekeeping until the forfeiture of such Restricted Shares occurs or the Forfeiture Restrictions lapse pursuant to the terms of the Plan and this Agreement. At the Company’s request, the Employee shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Shares. Upon the lapse of the Forfeiture Restrictions without forfeiture, the Company shall cause a new certificate or certificates to be issued without legend (except for any legend required pursuant to applicable securities laws or any other agreement to which the Employee is a party) in the name of the Employee in exchange for the certificate evidencing the Restricted Shares or, as may be the case, the Company shall issue appropriate instructions to the transfer agent if the electronic, book-entry method is utilized.

(d)     Corporate Acts . The existence of the Restricted Shares shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of debt or equity securities, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding. The prohibitions of Section 3(a) hereof shall not apply to the transfer of Restricted Shares pursuant to a plan of reorganization of the Company, but the stock, securities or other property received in exchange therefor shall also become subject to the Forfeiture Restrictions and provisions governing the lapsing of such Forfeiture Restrictions applicable to the original Restricted Shares for all purposes of this Agreement, and the certificates, if any, representing such stock, securities or other property shall be legended to show such restrictions.

4.     Withholding of Tax . To the extent that the receipt of the Restricted Shares or the lapse of any Forfeiture Restrictions results in compensation income or wages to the Employee for federal, state or local tax purposes, the Employee shall deliver to the Company at the time of such receipt or lapse, as the case may be, such amount of money as the Company may require to meet its minimum obligation under applicable tax laws or regulations, and if the Employee fails to do so, the Company is authorized to withhold from any cash or stock remuneration (including withholding any Restricted Shares or Earned Shares distributable to the Employee under this Agreement) then or thereafter payable to the Employee any tax required to be withheld by reason of such resulting compensation income or wages. The Employee acknowledges and agrees that the Company is making no representation or warranty as to the tax consequences to the Employee as a result of the receipt of the Restricted Shares, the lapse of any Forfeiture Restrictions or the forfeiture of any Restricted Shares pursuant to the Forfeiture Restrictions.

5.     Status of Stock . The Employee agrees that the Restricted Shares and Earned Shares issued under this Agreement will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable federal or state securities laws. The Employee also agrees that (a) the certificates, if any, representing the Restricted Shares and Earned Shares may bear such legend or legends as the Committee deems appropriate in order to reflect the Forfeiture Restrictions and to assure compliance with the terms and provisions of this Agreement and applicable securities laws, (b) the Company may refuse to register the transfer of the Restricted Shares or Earned Shares on the stock transfer records of the Company if such proposed transfer

 

3


would constitute a violation of the Forfeiture Restrictions or, in the opinion of counsel satisfactory to the Company, of any applicable securities law, and (c) the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the Restricted Shares.

6.     Employment Relationship . For purposes of this Agreement, the Employee shall be considered to be in the employment of the Company as long as the Employee remains an employee of either the Company or an Affiliate. Without limiting the scope of the preceding sentence, it is specifically provided that the Employee shall be considered to have terminated employment with the Company at the time of the termination of the “Affiliate” status of the entity or other organization that employs the Employee. Nothing in the adoption of the Plan, nor the award of the Restricted Shares thereunder pursuant to this Agreement, shall confer upon the Employee the right to continued employment by the Company or affect in any way the right of the Company to terminate such employment at any time. Unless otherwise provided in a written employment agreement or by applicable law, the Employee’s employment by the Company shall be on an at-will basis, and the employment relationship may be terminated at any time by either the Employee or the Company for any reason whatsoever, with or without cause or notice. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Committee or its delegate, and its determination shall be final.

7.     Notices . Any notices or other communications provided for in this Agreement shall be sufficient if in writing. In the case of the Employee, such notices or communications shall be effectively delivered if hand delivered to the Employee at the Employee’s principal place of employment or if sent by registered or certified mail to the Employee at the last address the Employee has filed with the Company. In the case of the Company, such notices or communications shall be effectively delivered if sent by registered or certified mail to the Company at its principal executive offices.

8.     Entire Agreement; Amendment . This Agreement replaces and merges all previous agreements and discussions relating to the same or similar subject matters between the Employee and the Company and constitutes the entire agreement between the Employee and the Company with respect to the subject matter of this Agreement. This Agreement may not be modified in any respect by any verbal statement, representation or agreement made by any employee, officer, or representative of the Company or by any written agreement unless signed by an officer of the Company who is expressly authorized by the Company to execute such document.

9.     Binding Effect; Survival . This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under the Employee. The provisions of Section 5 shall survive the lapse of the Forfeiture Restrictions without forfeiture.

10.     Controlling Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, without regard to conflicts of law principles thereof, or, if applicable, the laws of the United States.

[Signatures begin on next page.]

 

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IN WITNESS WHEREOF , the Company has caused this Agreement to be duly executed by an officer thereunto duly authorized, and the Employee has executed this Agreement, all as of the date first above written.

 

CONCHO RESOURCES INC.
By:    
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer
 
<first_name> <last_name>

 

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Exhibit 10.4

CONCHO RESOURCES INC.

2015 STOCK INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made on January 2, 2019 (the “Date of Grant”), between CONCHO RESOURCES INC., a Delaware corporation (the “Company”), and [Jack Harper][Will Giraud] (the “Employee”).

1.     Award . Pursuant to the CONCHO RESOURCES INC. 2015 STOCK INCENTIVE PLAN (the “Plan”), as of the Date of Grant, <shares_awarded> shares (the “Restricted Shares”) of the Company’s common stock, par value $0.001 per share, shall be issued as hereinafter provided in the Employee’s name subject to certain restrictions thereon. The Restricted Shares shall be issued upon acceptance hereof by the Employee and upon satisfaction of the conditions of this Agreement. The Employee acknowledges receipt of a copy of the Plan, and agrees that this award of Restricted Shares shall be subject to all of the terms and provisions of the Plan, including future amendments thereto, if any, pursuant to the terms thereof.

2.     Definitions . Capitalized terms used in this Agreement that are not defined below or in the body of this Agreement shall have the meanings given to them in the Plan. In addition to the terms defined in the body of this Agreement, the following capitalized words and terms shall have the meanings indicated below:

(a)    “Cause” shall have the meaning assigned to such term under the Severance Plan.

(b)    “Change of Control” shall have the meaning assigned to such term under the Severance Plan.

(c)    “Disability” shall have the meaning assigned to such term under the Severance Plan.

(d)    “Earned Shares” means the Restricted Shares after the lapse of the Forfeiture Restrictions without forfeiture.

(e)    “Forfeiture Restrictions” shall have the meaning specified in Section 3(a) hereof.

(f)    “Qualifying Termination” shall have the meaning assigned to such term under the Severance Plan.

(g)    “Severance Plan” shall mean that certain Concho Resources Inc. Executive Severance Plan, as amended from time to time in accordance with the terms thereof.

 

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3.     Restricted Shares . The Employee hereby accepts the Restricted Shares when issued and agrees with respect thereto as follows:

(a)     Forfeiture Restrictions . The Restricted Shares may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, and in the event of termination of the Employee’s employment with the Company for any reason other than as described in Section 3(b) below, the Employee shall, for no consideration, forfeit to the Company all Restricted Shares. The prohibition against transfer and the obligation to forfeit and surrender Restricted Shares to the Company upon termination of employment as provided in the preceding sentence are herein referred to as the “Forfeiture Restrictions.” The Forfeiture Restrictions shall be binding upon and enforceable against any transferee of Restricted Shares.

(b)     Lapse of Forfeiture Restrictions . Provided that the Employee has been continuously employed by the Company from the Date of Grant through the applicable lapse dates set forth in the following schedule, the Forfeiture Restrictions shall lapse with respect to a percentage of the Restricted Shares determined in accordance with the following schedule: the Forfeiture Restrictions shall lapse over a period of ten (10) years from the Date of Grant at a rate of 20% per year commencing on the sixth (6 th ) anniversary of the Date of Grant and continuing annually thereafter until the tenth (10 th ) anniversary of the Date of Grant.

Notwithstanding the foregoing, (i) subject to Section 3.4 (relating to a release agreement) of the Severance Plan, if the Employee’s employment with the Company is terminated by the Company without Cause, and not by reason of death or Disability, then the Forfeiture Restrictions shall lapse with respect to a pro-rated number of then unvested Restricted Shares based upon the number of days that the Employee was employed by the Company during the period commencing the Date of Grant through the date of termination divided by 3,653 (the number of days between the Date of Grant and the tenth (10 th ) anniversary of the Date of Grant), (ii) if the Employee’s employment with the Company is terminated by reason of death or Disability, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Shares effective as of the date of such termination, and (iii) subject to the provisions of Section 3.4 (relating to a release agreement) and Section 3.5 (relating to parachute payments) of the Severance Plan, if the Employee’s employment with the Company shall be subject to an Qualifiying Termination within the two-year period beginning on the date upon which a Change of Control occurs, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Shares effective as of the date of such Qualifying Termination. Any shares with respect to which the Forfeiture Restrictions do not lapse in accordance with the preceding provisions of this Section 3(b) shall be forfeited to the Company for no consideration as of the date of the termination of the Employee’s employment with the Company.

(c)     Certificates . A certificate evidencing the Restricted Shares shall be issued by the Company in the Employee’s name, pursuant to which the Employee shall have all of the rights of a stockholder of the Company with respect to the Restricted Shares, including, without limitation, voting rights and the right to receive dividends (provided, however, that dividends paid in shares of the Company’s stock shall be subject to the Forfeiture Restrictions and further provided that dividends that are paid other than in shares of the Company’s stock shall be paid no later than the end of the calendar year in which the dividend for such class of stock is paid to stockholders of such class or, if later, the 15th day of the third month following the date the dividend is paid to

 

2


stockholders of such class of stock). Notwithstanding the foregoing, the Company may, in its discretion, elect to complete the delivery of the Restricted Shares by means of electronic, book-entry statement, rather than issuing physical share certificates. The Employee may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the stock until the Forfeiture Restrictions have expired, and a breach of the terms of this Agreement shall cause a forfeiture of the Restricted Shares. The certificate, if any, shall be delivered upon issuance to the Secretary of the Company or to such other depository as may be designated by the Committee as a depository for safekeeping until the forfeiture of such Restricted Shares occurs or the Forfeiture Restrictions lapse pursuant to the terms of the Plan and this Agreement. At the Company’s request, the Employee shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Shares. Upon the lapse of the Forfeiture Restrictions without forfeiture, the Company shall cause a new certificate or certificates to be issued without legend (except for any legend required pursuant to applicable securities laws or any other agreement to which the Employee is a party) in the name of the Employee in exchange for the certificate evidencing the Restricted Shares or, as may be the case, the Company shall issue appropriate instructions to the transfer agent if the electronic, book-entry method is utilized.

(d)     Corporate Acts . The existence of the Restricted Shares shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of debt or equity securities, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding. The prohibitions of Section 3(a) hereof shall not apply to the transfer of Restricted Shares pursuant to a plan of reorganization of the Company, but the stock, securities or other property received in exchange therefor shall also become subject to the Forfeiture Restrictions and provisions governing the lapsing of such Forfeiture Restrictions applicable to the original Restricted Shares for all purposes of this Agreement, and the certificates, if any, representing such stock, securities or other property shall be legended to show such restrictions.

4.     Withholding of Tax . To the extent that the receipt of the Restricted Shares or the lapse of any Forfeiture Restrictions results in compensation income or wages to the Employee for federal, state or local tax purposes, the Employee shall deliver to the Company at the time of such receipt or lapse, as the case may be, such amount of money as the Company may require to meet its minimum obligation under applicable tax laws or regulations, and if the Employee fails to do so, the Company is authorized to withhold from any cash or stock remuneration (including withholding any Restricted Shares or Earned Shares distributable to the Employee under this Agreement) then or thereafter payable to the Employee any tax required to be withheld by reason of such resulting compensation income or wages. The Employee acknowledges and agrees that the Company is making no representation or warranty as to the tax consequences to the Employee as a result of the receipt of the Restricted Shares, the lapse of any Forfeiture Restrictions or the forfeiture of any Restricted Shares pursuant to the Forfeiture Restrictions.

5.     Status of Stock . The Employee agrees that the Restricted Shares and Earned Shares issued under this Agreement will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable federal or state securities laws. The Employee also agrees that (a) the certificates, if any, representing the Restricted Shares and Earned Shares may bear such

 

3


legend or legends as the Committee deems appropriate in order to reflect the Forfeiture Restrictions and to assure compliance with the terms and provisions of this Agreement and applicable securities laws, (b) the Company may refuse to register the transfer of the Restricted Shares or Earned Shares on the stock transfer records of the Company if such proposed transfer would constitute a violation of the Forfeiture Restrictions or, in the opinion of counsel satisfactory to the Company, of any applicable securities law, and (c) the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the Restricted Shares.

6.     Employment Relationship . For purposes of this Agreement, the Employee shall be considered to be in the employment of the Company as long as the Employee remains an employee of either the Company or an Affiliate. Without limiting the scope of the preceding sentence, it is specifically provided that the Employee shall be considered to have terminated employment with the Company at the time of the termination of the “Affiliate” status of the entity or other organization that employs the Employee. Nothing in the adoption of the Plan, nor the award of the Restricted Shares thereunder pursuant to this Agreement, shall confer upon the Employee the right to continued employment by the Company or affect in any way the right of the Company to terminate such employment at any time. Unless otherwise provided in a written employment agreement or by applicable law, the Employee’s employment by the Company shall be on an at-will basis, and the employment relationship may be terminated at any time by either the Employee or the Company for any reason whatsoever, with or without cause or notice. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Committee or its delegate, and its determination shall be final.

7.     Notices . Any notices or other communications provided for in this Agreement shall be sufficient if in writing. In the case of the Employee, such notices or communications shall be effectively delivered if hand delivered to the Employee at the Employee’s principal place of employment or if sent by registered or certified mail to the Employee at the last address the Employee has filed with the Company. In the case of the Company, such notices or communications shall be effectively delivered if sent by registered or certified mail to the Company at its principal executive offices.

8.     Entire Agreement; Amendment . This Agreement replaces and merges all previous agreements and discussions relating to the same or similar subject matters between the Employee and the Company and constitutes the entire agreement between the Employee and the Company with respect to the subject matter of this Agreement. This Agreement may not be modified in any respect by any verbal statement, representation or agreement made by any employee, officer, or representative of the Company or by any written agreement unless signed by an officer of the Company who is expressly authorized by the Company to execute such document.

9.     Binding Effect; Survival . This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under the Employee. The provisions of Section 5 shall survive the lapse of the Forfeiture Restrictions without forfeiture.

10.     Controlling Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, without regard to conflicts of law principles thereof, or, if applicable, the laws of the United States.

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IN WITNESS WHEREOF , the Company has caused this Agreement to be duly executed by an officer thereunto duly authorized, and the Employee has executed this Agreement, all as of the date first above written.

 

CONCHO RESOURCES INC.
By:    
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer
 
<first_name> <last_name>

 

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Exhibit 10.5

CONCHO RESOURCES INC.

2015 STOCK INCENTIVE PLAN

PERFORMANCE UNIT AWARD AGREEMENT

JANUARY 2, 2019

To:     [Jack Harper][Will Giraud]

Concho Resources Inc., a Delaware corporation (the “ Company ”), is pleased to grant you an award (the “ Award ”) consisting of an aggregate of <shares_awarded> performance units (each, a “ Performance Unit ”) that have a performance period beginning on January 1, 2019 through December 31, 2021 (the “ Performance Period ”). The Award is subject to your acceptance of and agreement to all the applicable terms, conditions and restrictions described in this Performance Unit Award Agreement (this “ Agreement ”) and the Concho Resources Inc. 2015 Stock Incentive Plan (as such plan may be amended or restated thereafter from time to time, the “ Plan ”). A copy of the Plan is available upon request. To the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable provisions of this Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. Terms that have their initial letters capitalized, but that are not otherwise defined in this Agreement, shall have the meanings given to them in the Plan in effect as of the date of this Agreement (such date the “ Date of Grant ”). The Performance Units contemplated herein are granted as Performance Awards under the Plan and are subject to the award limitations applicable to awards denominated in shares of the Company’s common stock (the “ Common Stock ”) that are set forth in Paragraph V(a) of the Plan.

This Agreement sets forth the terms of the agreement between you and the Company with respect to the Performance Units. By accepting this Agreement, you agree to be bound by all of the terms hereof.

1.     Overview of Performance Units .

(a)     Performance Units Generally . Each Performance Unit represents a contractual right to receive one share of Common Stock, subject to the terms and conditions of this Agreement; provided that, based on the achievement of the performance objective outlined in Section 2 hereof (the “ Performance Objective ”), the number of shares of Common Stock that may be deliverable hereunder in respect of the Performance Units may range from 0% to 300% of the number of Performance Units stated in the preamble to this Agreement (such stated number of Performance Units hereafter called the “ Initial Performance Units ”). Your right to receive Common Stock in respect of Performance Units is generally contingent, in whole or in part, upon (i) the achievement of the Performance Objective and (ii) except as provided in Section 4(a) or Section 5 hereof, your continued employment with the Company through the end of the Vesting Period.

 

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(b)     Dividend Equivalents . With respect to each outstanding Performance Unit, the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid during the Performance Period on one share of Common Stock. The amount credited to such book entry account shall be payable to you at the same time or times, and subject to the same terms and conditions as are applicable to, your Performance Units; provided that, if more than the Initial Performance Units shall become payable in accordance with this Agreement, then the maximum amount payable in respect of such dividend equivalents shall be the amount credited to your book entry account. Dividends and distributions payable on Common Stock other than in cash shall have a value equal to the amount of such dividends reported by the issuer to its shareholders for purposes of Federal income taxation and will be addressed in accordance with Section 9 hereof.

2.     Performance Objective . The Performance Objective with respect to the Initial Performance Units is based on both (a) the Total Shareholder Return achieved by the Company relative to the Peer Companies (as defined below) for the Performance Period (the “ Relative Total Shareholder Return ”) and (b) the absolute annualized Total Shareholder Return achieved by the Company for the Performance Period (the “ Absolute Total Shareholder Return ”). “ Total Shareholder Return ” shall mean, as to the Company and each of the Peer Companies, the percentage rate of return shareholders receive through stock price changes and the receipt of cash dividends paid over the Performance Period, determined in accordance with the following formula: ( Closing Value minus Initial Value plus Cash Dividends ) divided by Initial Value , where:

Closing Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day during the period beginning on the first day of the calendar month in which the last day of the Performance Period occurs and ending on the last day of the Performance Period; provided, however, that if a Peer Company ceases to have a class of common equity securities listed to trade under Section 12(b) or Section 12(g) of the Exchange Act during the Performance Period (determined after any applicable adjustment by the Committee pursuant to Section 9 hereof), then the Total Shareholder Return for such Peer Company shall be determined by the Committee as provided in the preceding provisions of this sentence but, from and after the date of such cessation, the price per share of such Peer Company’s common stock shall be deemed to be equal to the price per share of such common stock immediately prior to such cessation increased by the interest that would be earned on such amount if it were invested in U.S. Treasury securities of approximate equal duration to the portion of the Performance Period remaining after such cessation.

Notwithstanding the foregoing, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 5 hereof, then the Closing Value shall be determined as described above, except that (i) the last day of the Performance Period shall be deemed to be the Change of Control Date and the Closing Value with respect to the Peer Companies shall be based on the 30-day period ending on the date of such termination of employment, and (ii) the Closing Value with respect to the Company shall mean the fair market value (as determined in good faith by the Committee) of the consideration received by the stockholders of the Company with respect to each share of Common Stock as of the effective time of the Change of Control; provided, however, that if such Change of Control is effected in a manner that does not result in the

 

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stockholders of the Company receiving consideration in exchange for their Common Stock, then such Closing Value shall mean the average of the closing stock prices of the Company on each trading day during the 30-day period immediately preceding the date of the Change of Control Date (as defined in Section 5 hereof).

In addition, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 4(a) or 4(b) hereof, then the Closing Value shall be determined as described above, except that the last day of the Performance Period shall be deemed to be the Termination Date (as defined in Section 4(a) hereof) and the Closing Value shall be based on the 30-day period ending on the date of such termination of employment.

Initial Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day in the calendar month immediately preceding the first day of the Performance Period. The Initial Value of the Common Stock to be used to determine the Company’s Total Shareholder Return over the Performance Period is $              per share.

Cash Dividends means the aggregate amount of cash dividends per share paid over the Performance Period by the Company or such Peer Company, as applicable.

Achievement with respect to the portion of the Performance Objective that is based on Relative Total Shareholder Return shall be determined by the Committee based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies, and shall be a percentage determined in accordance with the table set forth in Appendix A hereto. A company shall be a “ Peer Company ” if it is one of the companies listed on Appendix A hereto. Achievement with respect to the portion of the Performance Objective that is based on Absolute Total Shareholder Return shall be determined by the Committee based on the Company’s annualized Total Shareholder Return achieved over the Performance Period, and shall be a percentage determined in accordance with the provisions set forth in Appendix A hereto. As soon as administratively practicable following the end of the Performance Period (but in no event later than the 15 th day of the third calendar month following the calendar month in which the Performance Period ends), the Committee shall certify whether and to the extent that the Performance Objective has been achieved and will determine the number of Performance Units, if any, determined to be earned for the Performance Period (which number of Performance Units shall equal the product of the Initial Performance Units (subject to adjustment as set forth in Section 9 hereof) multiplied by the percentage determined with respect to Relative Total Shareholder Return pursuant to the table set forth in Appendix A hereto multiplied by the percentage determined with respect to Absolute Total Shareholder Return in accordance with the provisions set forth in Appendix A hereto). The number of Performance Units, if any, determined by the Committee to be earned pursuant to the preceding provisions of this Section 2 shall be referred to as the “ Earned Performance Units .”

 

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3.     Conversion of Performance Units; Delivery and Vesting of Restricted Stock with respect to Performance Units .

(a)     Conversion of Performance Units . Unless an earlier date applies pursuant to Section 5(d) hereof, payment in respect of Earned Performance Units (and any related dividend equivalents) shall be made not later than the 15 th day of the third calendar month following the calendar month in which the Performance Period ends. All payments in respect of Earned Performance Units shall be made in the form of time-based Restricted Stock that will be subject to the Forfeiture Restrictions in Section 3(b). Neither this Section 3 nor any action taken pursuant to or in accordance with this Section 3 shall be construed to create a trust of any kind. Any shares of Common Stock issued to you pursuant to this Agreement shall be in book entry form registered in your name. Any fractional Earned Performance Units shall be rounded up to the nearest whole share of Common Stock.

(b)     Forfeiture Restrictions . The Restricted Stock issued hereunder in settlement of Earned Performance Units may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, and in the event of termination of your employment with the Company for any reason other than as described in Section 4(a) or (b) below, you shall, for no consideration, forfeit to the Company all Restricted Stock. The prohibition against transfer and the obligation to forfeit and surrender the Restricted Stock to the Company upon termination of employment as provided in the preceding sentence are herein referred to as the “ Forfeiture Restrictions .” The Forfeiture Restrictions shall be binding upon and enforceable against any transferee of the Restricted Stock.

(c)     Lapse of Forfeiture Restrictions . Provided that you have been continuously employed by the Company from the Date of Grant through the applicable lapse dates set forth in the following schedule, the Forfeiture Restrictions shall lapse with respect to a percentage of the Restricted Stock determined in accordance with the following schedule: the Forfeiture Restrictions shall lapse over a period of five (5) years commencing on the fifth (5 th ) anniversary of the Date of Grant (the “ Vesting Period ”) at a rate of 20% per year, with the Forfeiture Restrictions applicable to 20% of the total number of shares of Restricted Stock lapsing on the sixth (6 th ) anniversary of the Date of Grant, and the Forfeiture Restrictions with respect to an additional 20% of the Restricted Stock lapsing annually thereafter until the tenth (10 th ) anniversary of the Date of Grant.

(d)     Certificates . A certificate evidencing the Restricted Stock shall be issued by the Company in the your name, pursuant to which you shall have all of the rights of a stockholder of the Company with respect to the Restricted Stock, including, without limitation, voting rights and the right to receive dividends (provided, however, that dividends paid in shares of the Company’s stock shall be subject to the Forfeiture Restrictions and further provided that dividends that are paid other than in shares of the Company’s stock shall be paid no later than the end of the calendar year in which the dividend for such class of stock is paid to stockholders of such class or, if later, the 15th day of the third month following the date the dividend is paid to stockholders of such class of stock). Notwithstanding the foregoing, the Company may, in its discretion, elect to complete the delivery of the Restricted Stock by means of electronic, book-entry statement, rather than issuing physical share certificates. You may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the stock until the Forfeiture Restrictions have expired, and a breach of the

 

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terms of this Agreement shall cause a forfeiture of the Restricted Stock. The certificate, if any, shall be delivered upon issuance to the Secretary of the Company or to such other depository as may be designated by the Committee as a depository for safekeeping until the forfeiture of such Restricted Stock occurs or the Forfeiture Restrictions lapse pursuant to the terms of the Plan and this Agreement. At the Company’s request, you shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Stock. Upon the lapse of the Forfeiture Restrictions without forfeiture, the Company shall cause a new certificate or certificates to be issued without legend (except for any legend required pursuant to applicable securities laws or any other agreement to which you are a party) in your name in exchange for the certificate evidencing the Restricted Stock or, as may be the case, the Company shall issue appropriate instructions to the transfer agent if the electronic, book-entry method is utilized.

4.     Termination of Employment .

(a)     Termination without Cause . In the event that your employment with the Company terminates during the Performance Period due to your termination of employment by the Company without Cause (as defined in the Severance Plan (as defined below)) (and not by reason of your death or Disability (as in the Severance Plan)), then you shall be deemed to have earned, as of the date of your termination of employment (the “ Termination Date ”), that number of Performance Units equal to the product of (i) and (ii), where:

 

  (i)

equals the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the lower of the target level of performance and the actual performance against the stated performance criteria through the Termination Date; and

 

  (ii)

equals a fraction (the “ Pro-Ration Fraction ”), (A) the numerator of which is the number of days you were employed from the Date of Grant through the date of your termination of employment (the “ Termination Date ”) and (B) the denominator of which is 3,653 (the number of days between the Date of Grant and the tenth (10 th ) anniversary of the Date of Grant).

Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units determined to be earned by reason of this Section 4(a) shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

In the event that your employment with the Company terminates following the Performance Period and prior to the end of the Vesting Period due to your termination of employment by the Company without Cause (and not by reason of your death or Disability), then the Forfeiture Restrictions shall lapse with respect to a pro-rated number of then unvested Restricted Stock issued pursuant to Section 3(a) based upon the number of days you were employed by the Company during the period commencing the Date of Grant through the Termination Date divided by 3,653.

 

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(b)     Death or Disability . In the event that your employment with the Company terminates during the Performance Period due to your death or Disability, then you shall be deemed to have earned, as of the Termination Date, that number of Performance Units equal to the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the higher of the target level of performance and the actual performance against the stated performance criteria through the Termination Date. Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units (and any related dividend equivalents) that become earned and/or payable by reason of this paragraph shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

In the event that your employment with the Company terminates following the Performance Period and prior to the end of the Vesting Period due to your death or Disability, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Stock effective as of the Termination Date.

(c)     Other Termination of Employment . Unless otherwise determined by the Committee at or after grant, in the event that your employment with the Company terminates prior to the end of the Performance Period for any reason other than those listed in Section 4(a) or 4(b) hereof, all of your Performance Units shall terminate and automatically be canceled upon such termination of employment. In addition, any shares of Restricted Stock issued pursuant to Section 3(a) with respect to which the Forfeiture Restrictions do not lapse in accordance with the preceding provisions of Section 4(a) or Section 4(b) shall be forfeited to the Company for no consideration as of the date of the termination of your employment with the Company.

(d)     Definitions of Severance Plan . As used in this Agreement, the term “ Severance Plan ” shall mean that certain Concho Resources Inc. Executive Severance Plan, as amended from time to time in accordance with the terms thereof.

(e)     Termination of Employment . For all purposes of this Agreement, you will be considered to have terminated from employment with the Company when you incur a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance thereunder; provided, however, that whether such a separation from service has occurred shall be determined based upon a reasonably anticipated permanent reduction in the level of bona fide services to be performed to no more than 49% of the average level of bona fide services provided in the immediately preceding 36 months.

5.     Change of Control . Notwithstanding the provisions of Section 1 through Section 4 hereof or the terms of any Employment Agreement between you and the Company or any Affiliate, if you have been continuously employed from the grant date specified above until the date that a Change of Control (as in the Severance Plan) occurs (the “ Change of Control Date ”), then upon the occurrence of a Change of Control your rights in respect of the Performance Units shall be determined as provided in Section 5(a) hereof.

 

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(a)     Continuous Employment . If a Change of Control occurs prior to the end of the Performance Period and your employment has not terminated prior to the Change of Control Date, then on the Change in Control Date, your outstanding Performance Units will be automatically converted into a number of time-based Restricted Stock that will vest, subject solely to your continued employment, over the Vesting Period in accordance with Section 3(c). The number of such time-based Restricted Stock will be equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

In the event your Performance Units are converted into time-based Restricted Stock pursuant to this Section 5(a) or a Change of Control occurs after the end of the Performance Period and prior to the end of the Vesting Period, and your employment is terminated as a result of a Qualifying Termination (as defined in the Severance Plan) within the two-year period beginning on the Change of Control Date, 100% of your then-unvested and outstanding portion of this Award shall immediately vest and become payable as of your Termination Date.

(b)     Termination of Employment Upon Change of Control . If a Change of Control occurs during the Performance Period and your employment is terminated upon the Change of Control Date as a result of a Qualifying Termination, then you will be issued a number of shares of Common Stock equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

If a Change of Control occurs after the end of the Performance Period and prior to the end of the Vesting Period and your employment is terminated upon the Change of Control Date as a result of a Qualifying Termination, 100% of your then-unvested and outstanding portion of this Award shall immediately vest and become payable as of your Termination Date.

(c)     Time and Form of Payment . Any shares of Common Stock issuable pursuant to Section 5(a) shall be issued at the time provided in Section 3 hereof, or, if sooner, immediately upon your Termination Date. Any shares of Common Stock issuable pursuant to Section 5(b) shall be issued immediately following (and not later than five business days after) the Change of Control Date and shall be fully earned and freely transferable as of the Change of Control Date. Notwithstanding anything else contained in this Section 5 to the contrary (other than Section 5(d)), if the Change of Control involves a merger, reclassification or other reorganization or business

 

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combination pursuant to which the Common Stock is exchanged for or converted to stock of the surviving or continuing corporation in such transaction, the successor or continuing entity to the Company or the direct or indirect parent of the Company (collectively, the “ Successor Corporation ”), then you shall receive, instead of each share of Common Stock otherwise deliverable hereunder, the same consideration (whether stock, cash or other property) payable or distributable in such transaction in respect of a share of Common Stock. Any property distributed pursuant to this Section 5(c), whether in shares of the Successor Corporation or otherwise, shall in all cases be freely transferable without any restriction (other than any such restriction that may be imposed by applicable law), and any securities issued hereunder shall be registered to trade under the Exchange Act, and shall have been registered under the Securities Act of 1933, as amended (the “ Securities Act ”).

(d)     Alternative Form of Payment . Notwithstanding anything else contained in this Section 5 to the contrary, the Committee may elect, at its sole discretion by resolution adopted prior to the Change of Control Date, to have the Company satisfy your rights in respect of the Performance Units (as determined pursuant to the foregoing provisions of this Section 5), in whole or in part, by having the Company make a cash payment to you within five business days of the Change of Control Date in respect of all such Performance Units or such portion of such Performance Units as the Committee shall determine. Any cash payment for any Performance Unit shall be equal to the Fair Market Value of the number of shares of Common Stock into which it would convert, determined on the Change of Control Date.

6.     Clawback and Forfeiture under Certain Circumstances . Notwithstanding any provisions in this Agreement to the contrary, any portion of the payments and benefits provided under this Agreement or the sale of shares of Common Stock shall be subject to a clawback to the extent necessary to comply with applicable law including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule. In addition, notwithstanding any provisions herein to the contrary, the Committee may terminate your Award if it determines that you have engaged in conduct that would permit the Company to terminate your employment for cause. For purposes of the preceding sentence, the term “cause” has the meaning assigned to such term in your employment agreement with the Company or an Affiliate; provided, however, that in the absence of such an employment agreement or if such employment agreement does not define the term “cause,” then “cause” means a determination by the Company that you have (a) engaged in conduct that is injurious (monetarily or otherwise) to the Company or any Affiliate (including, without limitation, misuse of any of the Company’s funds or other property), (b) been convicted of, or pleaded no contest to, or received adjudicated probation or deferred adjudication in connection with any felony or any other crime involving fraud, dishonesty or moral turpitude, (c) breached any material provision of the Plan, this Agreement or any other written agreement or corporate policy or code of conduct established by the Company or its Affiliates, (d) engaged in gross negligence or willful misconduct in the performance of your duties, or (e) refused without proper legal reason to perform your duties.

7.     Nontransferability of Awards . The Performance Units granted hereunder may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, other than by will or by the laws of descent and distribution. Following your death, any shares distributable (or cash payable) in respect of Performance Units will be delivered or paid, at the time specified in Section 3 hereof or, if applicable, Section 5 hereof, to your beneficiary in accordance with, and subject to, the terms and conditions hereof and of the Plan.

 

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8.     [Reserved] .

9.     Adjustments in Respect of Performance Units . In the event of any common stock dividend or common stock split, recapitalization (including, but not limited to, the payment of an extraordinary dividend), merger, consolidation, combination, spin-off, distribution of assets to stockholders, exchange of shares, or other similar corporate change with regard to the Company or any Peer Company (other than the payment of cash dividends), appropriate adjustments shall be made by the Committee to the Initial Value of the corresponding common stock, and, if any such event occurs with respect to the Company, in the aggregate number of Performance Units subject to this Agreement. The Committee’s determination with respect to any such adjustment shall be conclusive.

10.     Effect of Settlement . Upon conversion into shares of Restricted Stock (or Successor Corporation common stock) pursuant to Section 3 or Section 5 hereof, a cash settlement of your rights, at the election of the Committee at its sole discretion pursuant to Section 5(d) hereof, or a combination of the issuance of Restricted Stock and the payment of cash in accordance with any applicable provisions of this Agreement, all of your Performance Units subject to the Award shall be cancelled and terminated. If and to the extent that you are still employed at the end of the Performance Period, any portion of your Performance Units that have not become earned in accordance with the terms of this Agreement shall be cancelled and terminated.

11.     Furnish Information . You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.

12.     Remedies . The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.

13.     Information Confidential . As partial consideration for the granting of the Award hereunder, you hereby agree with the Company that you will keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse, tax and financial advisors, or to a financial institution to the extent that such information is necessary to secure a loan.

14.     Payment of Taxes . The Company may from time to time require you to pay to the Company (or an Affiliate if you are an employee of an Affiliate) the amount that the Company deems necessary to satisfy the Company’s or its Affiliate’s current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award. With respect to any required tax withholding, unless another arrangement is permitted by the Company in its

 

9


discretion, the Company shall withhold from the shares of Common Stock issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, that determination to be based on the shares’ Fair Market Value at the time as of which such determination is made. In the event the Company subsequently determines that the aggregate Fair Market Value of any shares of Common Stock withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you shall pay to the Company, immediately upon the Company’s request, the amount of that deficiency.

15.     Right of the Company and Affiliates to Terminate Your Employment . Nothing contained in this Agreement shall confer upon you the right to continue in the employ of the Company or any Affiliate, or interfere in any way with the rights of the Company or any Affiliate to terminate your employment at any time for any or no reason; provided, however, that any such termination shall be subject to the terms and conditions of any employment agreement between you and the Company or any Affiliate.

16.     No Liability for Good Faith Determinations . Neither the Company nor the members of the Board and the Committee shall be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Performance Units granted hereunder.

17.     No Guarantee of Interests . The Board, the Committee and the Company do not guarantee the Common Stock of the Company from loss or depreciation.

18.     Company Records . Records of the Company or its Affiliates regarding your period of employment, termination of employment and the reason therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.

19.     Severability . If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.

20.     Notices . Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by mail. Any such notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered, or, whether actually received or not, on the third business day after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which such person has theretofore specified by written notice delivered in accordance herewith. The Company or you may change, at any time and from time to time, by written notice to the other, the address which it or you had previously specified for receiving notices.

 

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The Company and you agree that any notices shall be given to the Company or to you at the following addresses:

Company:

Concho Resources Inc.

Attn: Corporate Secretary

One Concho Center

600 W. Illinois Avenue

Midland, Texas 79701

Holder:    At your current address as shown in the Company’s records.

21.     Waiver of Notice . Any person entitled to notice hereunder may waive such notice in writing.

22.     Successor . This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.

23.     Headings . The titles and headings of Sections and paragraphs are included for convenience of reference only and are not to be considered in construction of the provisions hereof.

24.     Governing Law . All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of the State of Texas except to the extent Texas law is preempted by federal law. The obligation of the Company to sell and deliver Common Stock hereunder is subject to applicable laws and to the approval of any governmental or regulatory authority (including any applicable stock exchange) required in connection with the authorization, issuance, sale, or delivery of such Common Stock.

25.     Execution of Receipts and Releases . Any payment of cash or any issuance or transfer of shares of Common Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.

26.     Amendment . This Agreement may be amended at any time unilaterally by the Company provided that such amendment is consistent with all applicable laws and does not reduce any rights or benefits you have accrued pursuant to this Agreement. This Agreement may also be amended at any time unilaterally by the Company to the extent the Company believes in good faith that such amendment is necessary or advisable to bring this Agreement into compliance with any applicable laws, including Section 409A of the Code.

27.     The Plan . This Agreement is subject to all the terms, conditions, limitations and restrictions contained in the Plan.

28.     Agreement Respecting Securities Act . You represent and agree that you will not sell the Common Stock that may be issued to you pursuant to your Performance Units except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act (including Rule 144).

 

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29.     No Stockholder Rights . The Performance Units granted pursuant to this Agreement do not and shall not entitle you to any rights as a stockholder of Common Stock until such time as you receive shares of Restricted Stock pursuant to this Agreement. Your rights with respect to the Performance Units shall remain forfeitable at all times prior to the date on which rights become earned in accordance with this Agreement.

[Signatures on the following page.]

 

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If you accept this Performance Unit Award Agreement and agree to its terms and conditions, please so confirm by signing and returning the duplicate of this Agreement enclosed for that purpose.

 

Very Truly Yours,
CONCHO RESOURCES INC.
By:    
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer

ACKNOWLEDGED AND AGREED:

 

By:    
  <first_name> <last_name>

 

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Appendix A

Determination of Earned Performance Units

A.     Relative Total Shareholder Return

Peer Companies:

 

OXY   Occidental Petroleum Corporation
EOG   EOG Resources, Inc.
APC   Anadarko Petroleum Corporation
DVN   Devon Energy Corporation
APA   Apache Corporation
MRO   Marathon Oil Corporation
PXD   Pioneer Natural Resources
CLR   Continental Resources, Inc.
NBL   Noble Energy, Inc.
HES   Hess Corporation
COG   Cabot Oil & Gas Corporation
XEC   Cimarex Energy Co.
FANG   Diamondback Energy, Inc.
PE   Parsley Energy Inc.
COP   ConocoPhillips

Determination of Percentage Attributable to Relative Total Shareholder Return :

The percentage attributable to the achievement of Relative Total Shareholder Return shall be determined in accordance with the following table based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies (straight line interpolation will be used between levels):

 

Company’s Relative Ranking

  

Applicable Percentage

93 rd Percentile or Above    200%
80 th Percentile    175%
60 th Percentile    125%
40 th Percentile    80%
27 th Percentile    54%
20 th Percentile or Below    0%

 

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B.     Absolute Total Shareholder Return

The percentage attributable to the achievement of Absolute Total Shareholder Return shall be determined in accordance with the following table based on the Company’s annualized Total Shareholder Return for the Performance Period:

 

Company’s annualized Total Shareholder

Return for the Performance Period

  

Applicable Percentage

Less than 0%    50%
0% to 5%    75%
5% to 10%    100%
10% to 15%    125%
Greater than 15%    150%

 

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Exhibit 10.6

CONCHO RESOURCES INC.

2015 STOCK INCENTIVE PLAN

PERFORMANCE UNIT AWARD AGREEMENT

JANUARY 2, 2019

To:     [Jack Harper][Will Giraud]

Concho Resources Inc., a Delaware corporation (the “ Company ”), is pleased to grant you an award (the “ Award ”) consisting of an aggregate of <shares_awarded> performance units (each, a “ Performance Unit ”) that have a performance period beginning on January 1, 2019 through December 31, 2023 (the “ Performance Period ”). The Award is subject to your acceptance of and agreement to all the applicable terms, conditions and restrictions described in this Performance Unit Award Agreement (this “ Agreement ”) and the Concho Resources Inc. 2015 Stock Incentive Plan (as such plan may be amended or restated thereafter from time to time, the “ Plan ”). A copy of the Plan is available upon request. To the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable provisions of this Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. Terms that have their initial letters capitalized, but that are not otherwise defined in this Agreement, shall have the meanings given to them in the Plan in effect as of the date of this Agreement (such date the “ Date of Grant ”). The Performance Units contemplated herein are granted as Performance Awards under the Plan and are subject to the award limitations applicable to awards denominated in shares of the Company’s common stock (the “ Common Stock ”) that are set forth in Paragraph V(a) of the Plan.

This Agreement sets forth the terms of the agreement between you and the Company with respect to the Performance Units. By accepting this Agreement, you agree to be bound by all of the terms hereof.

1.     Overview of Performance Units .

(a)     Performance Units Generally . Each Performance Unit represents a contractual right to receive one share of Common Stock, subject to the terms and conditions of this Agreement; provided that, based on the achievement of the performance objective outlined in Section 2 hereof (the “ Performance Objective ”), the number of shares of Common Stock that may be deliverable hereunder in respect of the Performance Units may range from 0% to 300% of the number of Performance Units stated in the preamble to this Agreement (such stated number of Performance Units hereafter called the “ Initial Performance Units ”). Your right to receive Common Stock in respect of Performance Units is generally contingent, in whole or in part, upon (i) the achievement of the Performance Objective and (ii) except as provided in Section 4(a) or Section 5 hereof, your continued employment with the Company through the end of the Vesting Period.

 

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(b)     Dividend Equivalents . With respect to each outstanding Performance Unit, the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid during the Performance Period on one share of Common Stock. The amount credited to such book entry account shall be payable to you at the same time or times, and subject to the same terms and conditions as are applicable to, your Performance Units; provided that, if more than the Initial Performance Units shall become payable in accordance with this Agreement, then the maximum amount payable in respect of such dividend equivalents shall be the amount credited to your book entry account. Dividends and distributions payable on Common Stock other than in cash shall have a value equal to the amount of such dividends reported by the issuer to its shareholders for purposes of Federal income taxation and will be addressed in accordance with Section 9 hereof.

2.     Performance Objective . The Performance Objective with respect to the Initial Performance Units is based on both (a) the Total Shareholder Return achieved by the Company relative to the Peer Companies (as defined below) for the Performance Period (the “ Relative Total Shareholder Return ”) and (b) the absolute annualized Total Shareholder Return achieved by the Company for the Performance Period (the “ Absolute Total Shareholder Return ”). “ Total Shareholder Return ” shall mean, as to the Company and each of the Peer Companies, the percentage rate of return shareholders receive through stock price changes and the receipt of cash dividends paid over the Performance Period, determined in accordance with the following formula: ( Closing Value minus Initial Value plus Cash Dividends ) divided by Initial Value , where:

Closing Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day during the period beginning on the first day of the calendar month in which the last day of the Performance Period occurs and ending on the last day of the Performance Period; provided, however, that if a Peer Company ceases to have a class of common equity securities listed to trade under Section 12(b) or Section 12(g) of the Exchange Act during the Performance Period (determined after any applicable adjustment by the Committee pursuant to Section 9 hereof), then the Total Shareholder Return for such Peer Company shall be determined by the Committee as provided in the preceding provisions of this sentence but, from and after the date of such cessation, the price per share of such Peer Company’s common stock shall be deemed to be equal to the price per share of such common stock immediately prior to such cessation increased by the interest that would be earned on such amount if it were invested in U.S. Treasury securities of approximate equal duration to the portion of the Performance Period remaining after such cessation.

Notwithstanding the foregoing, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 5 hereof, then the Closing Value shall be determined as described above, except that (i) the last day of the Performance Period shall be deemed to be the Change of Control Date and the Closing Value with respect to the Peer Companies shall be based on the 30-day period ending on the date of such termination of employment, and (ii) the Closing Value with respect to the Company shall mean the fair market value (as determined in good faith by the Committee) of the consideration received by the stockholders of the Company with respect to each share of Common Stock as of the effective time of the Change of Control; provided, however, that if such Change of Control is effected in a manner that does not result in the

 

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stockholders of the Company receiving consideration in exchange for their Common Stock, then such Closing Value shall mean the average of the closing stock prices of the Company on each trading day during the 30-day period immediately preceding the date of the Change of Control Date (as defined in Section 5 hereof).

In addition, if Total Shareholder Return for the Company and the Peer Companies is required to be determined for purposes of Section 4(a) or 4(b) hereof, then the Closing Value shall be determined as described above, except that the last day of the Performance Period shall be deemed to be the Termination Date (as defined in Section 4(a) hereof) and the Closing Value shall be based on the 30-day period ending on the date of such termination of employment.

Initial Value means the average of the closing stock prices of the Company or such Peer Company, as applicable, on each trading day in the calendar month immediately preceding the first day of the Performance Period. The Initial Value of the Common Stock to be used to determine the Company’s Total Shareholder Return over the Performance Period is $              per share.

Cash Dividends means the aggregate amount of cash dividends per share paid over the Performance Period by the Company or such Peer Company, as applicable.

Achievement with respect to the portion of the Performance Objective that is based on Relative Total Shareholder Return shall be determined by the Committee based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies, and shall be a percentage determined in accordance with the table set forth in Appendix A hereto. A company shall be a “ Peer Company ” if it is one of the companies listed on Appendix A hereto. Achievement with respect to the portion of the Performance Objective that is based on Absolute Total Shareholder Return shall be determined by the Committee based on the Company’s annualized Total Shareholder Return achieved over the Performance Period, and shall be a percentage determined in accordance with the provisions set forth in Appendix A hereto. As soon as administratively practicable following the end of the Performance Period (but in no event later than the 15 th day of the third calendar month following the calendar month in which the Performance Period ends), the Committee shall certify whether and to the extent that the Performance Objective has been achieved and will determine the number of Performance Units, if any, determined to be earned for the Performance Period (which number of Performance Units shall equal the product of the Initial Performance Units (subject to adjustment as set forth in Section 9 hereof) multiplied by the percentage determined with respect to Relative Total Shareholder Return pursuant to the table set forth in Appendix A hereto multiplied by the percentage determined with respect to Absolute Total Shareholder Return in accordance with the provisions set forth in Appendix A hereto). The number of Performance Units, if any, determined by the Committee to be earned pursuant to the preceding provisions of this Section 2 shall be referred to as the “ Earned Performance Units .”

 

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3.     Conversion of Performance Units; Delivery and Vesting of Restricted Stock with respect to Performance Units .

(a)     Conversion of Performance Units . Unless an earlier date applies pursuant to Section 5(d) hereof, payment in respect of Earned Performance Units (and any related dividend equivalents) shall be made not later than the 15 th day of the third calendar month following the calendar month in which the Performance Period ends. All payments in respect of Earned Performance Units shall be made in the form of time-based Restricted Stock that will be subject to the Forfeiture Restrictions in Section 3(b). Neither this Section 3 nor any action taken pursuant to or in accordance with this Section 3 shall be construed to create a trust of any kind. Any shares of Common Stock issued to you pursuant to this Agreement shall be in book entry form registered in your name. Any fractional Earned Performance Units shall be rounded up to the nearest whole share of Common Stock.

(b)     Forfeiture Restrictions . The Restricted Stock issued hereunder in settlement of Earned Performance Units may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, and in the event of termination of your employment with the Company for any reason other than as described in Section 4(a) or (b) below, you shall, for no consideration, forfeit to the Company all Restricted Stock. The prohibition against transfer and the obligation to forfeit and surrender the Restricted Stock to the Company upon termination of employment as provided in the preceding sentence are herein referred to as the “ Forfeiture Restrictions .” The Forfeiture Restrictions shall be binding upon and enforceable against any transferee of the Restricted Stock.

(c)     Lapse of Forfeiture Restrictions . Provided that you have been continuously employed by the Company from the Date of Grant through the applicable lapse dates set forth in the following schedule, the Forfeiture Restrictions shall lapse with respect to a percentage of the Restricted Stock determined in accordance with the following schedule: the Forfeiture Restrictions shall lapse over a period of five (5) years commencing on the fifth (5 th ) anniversary of the Date of Grant (the “ Vesting Period ”) at a rate of 20% per year, with the Forfeiture Restrictions applicable to 20% of the total number of shares of Restricted Stock lapsing on the sixth (6 th ) anniversary of the Date of Grant, and the Forfeiture Restrictions with respect to an additional 20% of the Restricted Stock lapsing annually thereafter until the tenth (10 th ) anniversary of the Date of Grant.

(d)     Certificates . A certificate evidencing the Restricted Stock shall be issued by the Company in the your name, pursuant to which you shall have all of the rights of a stockholder of the Company with respect to the Restricted Stock, including, without limitation, voting rights and the right to receive dividends (provided, however, that dividends paid in shares of the Company’s stock shall be subject to the Forfeiture Restrictions and further provided that dividends that are paid other than in shares of the Company’s stock shall be paid no later than the end of the calendar year in which the dividend for such class of stock is paid to stockholders of such class or, if later, the 15th day of the third month following the date the dividend is paid to stockholders of such class of stock). Notwithstanding the foregoing, the Company may, in its discretion, elect to complete the delivery of the Restricted Stock by means of electronic, book-entry statement, rather than issuing physical share certificates. You may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the stock until the Forfeiture Restrictions have expired, and a breach of the

 

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terms of this Agreement shall cause a forfeiture of the Restricted Stock. The certificate, if any, shall be delivered upon issuance to the Secretary of the Company or to such other depository as may be designated by the Committee as a depository for safekeeping until the forfeiture of such Restricted Stock occurs or the Forfeiture Restrictions lapse pursuant to the terms of the Plan and this Agreement. At the Company’s request, you shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Stock. Upon the lapse of the Forfeiture Restrictions without forfeiture, the Company shall cause a new certificate or certificates to be issued without legend (except for any legend required pursuant to applicable securities laws or any other agreement to which you are a party) in your name in exchange for the certificate evidencing the Restricted Stock or, as may be the case, the Company shall issue appropriate instructions to the transfer agent if the electronic, book-entry method is utilized.

4.     Termination of Employment .

(a)     Termination without Cause . In the event that your employment with the Company terminates during the Performance Period due to your termination of employment by the Company without Cause (as defined in the Severance Plan (as defined below)) (and not by reason of your death or Disability (as in the Severance Plan)), then you shall be deemed to have earned, as of the date of your termination of employment (the “ Termination Date ”), that number of Performance Units equal to the product of (i) and (ii), where:

 

  (i)

equals the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the lower of the target level of performance and the actual performance against the stated performance criteria through the Termination Date; and

 

  (ii)

equals a fraction (the “ Pro-Ration Fraction ”), (A) the numerator of which is the number of days you were employed from the Date of Grant through the date of your termination of employment (the “ Termination Date ”) and (B) the denominator of which is 3,653 (the number of days between the Date of Grant and the tenth (10 th ) anniversary of the Date of Grant).

Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units determined to be earned by reason of this Section 4(a) shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

In the event that your employment with the Company terminates following the Performance Period and prior to the end of the Vesting Period due to your termination of employment by the Company without Cause (and not by reason of your death or Disability), then the Forfeiture Restrictions shall lapse with respect to a pro-rated number of then unvested Restricted Stock issued pursuant to Section 3(a) based upon the number of days you were employed by the Company during the period commencing the Date of Grant through the Termination Date divided by 3,653.

 

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(b)     Death or Disability . In the event that your employment with the Company terminates during the Performance Period due to your death or Disability, then you shall be deemed to have earned, as of the Termination Date, that number of Performance Units equal to the number of Earned Performance Units that you would have earned in accordance with Section 2 hereof assuming that (A) the Performance Period ended on the Termination Date and (B) the determination of whether, and to what extent, the Performance Objective is achieved is based on the higher of the target level of performance and the actual performance against the stated performance criteria through the Termination Date. Any portion of the Performance Units that do not become earned and payable in accordance with the preceding sentence shall terminate and automatically be cancelled as of the Termination Date. Distribution of shares of Common Stock in respect of the Performance Units (and any related dividend equivalents) that become earned and/or payable by reason of this paragraph shall be made made not later than the 15 th day of the third calendar month following the calendar month in which the Termination Date occurs.

In the event that your employment with the Company terminates following the Performance Period and prior to the end of the Vesting Period due to your death or Disability, then the Forfeiture Restrictions shall lapse with respect to 100% of the Restricted Stock effective as of the Termination Date.

(c)     Other Termination of Employment . Unless otherwise determined by the Committee at or after grant, in the event that your employment with the Company terminates prior to the end of the Performance Period for any reason other than those listed in Section 4(a) or 4(b) hereof, all of your Performance Units shall terminate and automatically be canceled upon such termination of employment. In addition, any shares of Restricted Stock issued pursuant to Section 3(a) with respect to which the Forfeiture Restrictions do not lapse in accordance with the preceding provisions of Section 4(a) or Section 4(b) shall be forfeited to the Company for no consideration as of the date of the termination of your employment with the Company.

(d)     Definitions of Severance Plan . As used in this Agreement, the term “ Severance Plan ” shall mean that certain Concho Resources Inc. Executive Severance Plan, as amended from time to time in accordance with the terms thereof.

(e)     Termination of Employment . For all purposes of this Agreement, you will be considered to have terminated from employment with the Company when you incur a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance thereunder; provided, however, that whether such a separation from service has occurred shall be determined based upon a reasonably anticipated permanent reduction in the level of bona fide services to be performed to no more than 49% of the average level of bona fide services provided in the immediately preceding 36 months.

5.     Change of Control . Notwithstanding the provisions of Section 1 through Section 4 hereof or the terms of any Employment Agreement between you and the Company or any Affiliate, if you have been continuously employed from the grant date specified above until the date that a Change of Control (as in the Severance Plan) occurs (the “ Change of Control Date ”), then upon the occurrence of a Change of Control your rights in respect of the Performance Units shall be determined as provided in Section 5(a) hereof.

 

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(a)     Continuous Employment . If a Change of Control occurs prior to the end of the Performance Period and your employment has not terminated prior to the Change of Control Date, then on the Change in Control Date, your outstanding Performance Units will be automatically converted into a number of time-based Restricted Stock that will vest, subject solely to your continued employment, over the Vesting Period in accordance with Section 3(c). The number of such time-based Restricted Stock will be equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

In the event your Performance Units are converted into time-based Restricted Stock pursuant to this Section 5(a) or a Change of Control occurs after the end of the Performance Period and prior to the end of the Vesting Period, and your employment is terminated as a result of a Qualifying Termination (as defined in the Severance Plan) within the two-year period beginning on the Change of Control Date, 100% of your then-unvested and outstanding portion of this Award shall immediately vest and become payable as of your Termination Date.

(b)     Termination of Employment Upon Change of Control . If a Change of Control occurs during the Performance Period and your employment is terminated upon the Change of Control Date as a result of a Qualifying Termination, then you will be issued a number of shares of Common Stock equal to the number of Performance Units that would have become Earned Performance Units in accordance with the provisions of Section 2 hereof assuming that:

(i)    the Performance Period ended on the Change of Control Date; and

(ii)    the determination of whether, and to what extent, the Performance Objective is achieved is based on the actual performance against the stated performance criteria through the Change of Control Date.

If a Change of Control occurs after the end of the Performance Period and prior to the end of the Vesting Period and your employment is terminated upon the Change of Control Date as a result of a Qualifying Termination, 100% of your then-unvested and outstanding portion of this Award shall immediately vest and become payable as of your Termination Date.

(c)     Time and Form of Payment . Any shares of Common Stock issuable pursuant to Section 5(a) shall be issued at the time provided in Section 3 hereof, or, if sooner, immediately upon your Termination Date. Any shares of Common Stock issuable pursuant to Section 5(b) shall be issued immediately following (and not later than five business days after) the Change of Control Date and shall be fully earned and freely transferable as of the Change of Control Date. Notwithstanding anything else contained in this Section 5 to the contrary (other than Section 5(d)), if the Change of Control involves a merger, reclassification or other reorganization or business

 

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combination pursuant to which the Common Stock is exchanged for or converted to stock of the surviving or continuing corporation in such transaction, the successor or continuing entity to the Company or the direct or indirect parent of the Company (collectively, the “ Successor Corporation ”), then you shall receive, instead of each share of Common Stock otherwise deliverable hereunder, the same consideration (whether stock, cash or other property) payable or distributable in such transaction in respect of a share of Common Stock. Any property distributed pursuant to this Section 5(c), whether in shares of the Successor Corporation or otherwise, shall in all cases be freely transferable without any restriction (other than any such restriction that may be imposed by applicable law), and any securities issued hereunder shall be registered to trade under the Exchange Act, and shall have been registered under the Securities Act of 1933, as amended (the “ Securities Act ”).

(d)     Alternative Form of Payment . Notwithstanding anything else contained in this Section 5 to the contrary, the Committee may elect, at its sole discretion by resolution adopted prior to the Change of Control Date, to have the Company satisfy your rights in respect of the Performance Units (as determined pursuant to the foregoing provisions of this Section 5), in whole or in part, by having the Company make a cash payment to you within five business days of the Change of Control Date in respect of all such Performance Units or such portion of such Performance Units as the Committee shall determine. Any cash payment for any Performance Unit shall be equal to the Fair Market Value of the number of shares of Common Stock into which it would convert, determined on the Change of Control Date.

6.     Clawback and Forfeiture under Certain Circumstances . Notwithstanding any provisions in this Agreement to the contrary, any portion of the payments and benefits provided under this Agreement or the sale of shares of Common Stock shall be subject to a clawback to the extent necessary to comply with applicable law including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule. In addition, notwithstanding any provisions herein to the contrary, the Committee may terminate your Award if it determines that you have engaged in conduct that would permit the Company to terminate your employment for cause. For purposes of the preceding sentence, the term “cause” has the meaning assigned to such term in your employment agreement with the Company or an Affiliate; provided, however, that in the absence of such an employment agreement or if such employment agreement does not define the term “cause,” then “cause” means a determination by the Company that you have (a) engaged in conduct that is injurious (monetarily or otherwise) to the Company or any Affiliate (including, without limitation, misuse of any of the Company’s funds or other property), (b) been convicted of, or pleaded no contest to, or received adjudicated probation or deferred adjudication in connection with any felony or any other crime involving fraud, dishonesty or moral turpitude, (c) breached any material provision of the Plan, this Agreement or any other written agreement or corporate policy or code of conduct established by the Company or its Affiliates, (d) engaged in gross negligence or willful misconduct in the performance of your duties, or (e) refused without proper legal reason to perform your duties.

7.     Nontransferability of Awards . The Performance Units granted hereunder may not be sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of, other than by will or by the laws of descent and distribution. Following your death, any shares distributable (or cash payable) in respect of Performance Units will be delivered or paid, at the time specified in Section 3 hereof or, if applicable, Section 5 hereof, to your beneficiary in accordance with, and subject to, the terms and conditions hereof and of the Plan.

 

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8.     [Reserved] .

9.     Adjustments in Respect of Performance Units . In the event of any common stock dividend or common stock split, recapitalization (including, but not limited to, the payment of an extraordinary dividend), merger, consolidation, combination, spin-off, distribution of assets to stockholders, exchange of shares, or other similar corporate change with regard to the Company or any Peer Company (other than the payment of cash dividends), appropriate adjustments shall be made by the Committee to the Initial Value of the corresponding common stock, and, if any such event occurs with respect to the Company, in the aggregate number of Performance Units subject to this Agreement. The Committee’s determination with respect to any such adjustment shall be conclusive.

10.     Effect of Settlement . Upon conversion into shares of Restricted Stock (or Successor Corporation common stock) pursuant to Section 3 or Section 5 hereof, a cash settlement of your rights, at the election of the Committee at its sole discretion pursuant to Section 5(d) hereof, or a combination of the issuance of Restricted Stock and the payment of cash in accordance with any applicable provisions of this Agreement, all of your Performance Units subject to the Award shall be cancelled and terminated. If and to the extent that you are still employed at the end of the Performance Period, any portion of your Performance Units that have not become earned in accordance with the terms of this Agreement shall be cancelled and terminated.

11.     Furnish Information . You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.

12.     Remedies . The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.

13.     Information Confidential . As partial consideration for the granting of the Award hereunder, you hereby agree with the Company that you will keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse, tax and financial advisors, or to a financial institution to the extent that such information is necessary to secure a loan.

14.     Payment of Taxes . The Company may from time to time require you to pay to the Company (or an Affiliate if you are an employee of an Affiliate) the amount that the Company deems necessary to satisfy the Company’s or its Affiliate’s current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award. With respect to any required tax withholding, unless another arrangement is permitted by the Company in its

 

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discretion, the Company shall withhold from the shares of Common Stock issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, that determination to be based on the shares’ Fair Market Value at the time as of which such determination is made. In the event the Company subsequently determines that the aggregate Fair Market Value of any shares of Common Stock withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you shall pay to the Company, immediately upon the Company’s request, the amount of that deficiency.

15.     Right of the Company and Affiliates to Terminate Your Employment . Nothing contained in this Agreement shall confer upon you the right to continue in the employ of the Company or any Affiliate, or interfere in any way with the rights of the Company or any Affiliate to terminate your employment at any time for any or no reason; provided, however, that any such termination shall be subject to the terms and conditions of any employment agreement between you and the Company or any Affiliate.

16.     No Liability for Good Faith Determinations . Neither the Company nor the members of the Board and the Committee shall be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Performance Units granted hereunder.

17.     No Guarantee of Interests . The Board, the Committee and the Company do not guarantee the Common Stock of the Company from loss or depreciation.

18.     Company Records . Records of the Company or its Affiliates regarding your period of employment, termination of employment and the reason therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.

19.     Severability . If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.

20.     Notices . Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by mail. Any such notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered, or, whether actually received or not, on the third business day after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which such person has theretofore specified by written notice delivered in accordance herewith. The Company or you may change, at any time and from time to time, by written notice to the other, the address which it or you had previously specified for receiving notices.

 

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The Company and you agree that any notices shall be given to the Company or to you at the following addresses:

Company:

Concho Resources Inc.

Attn: Corporate Secretary

One Concho Center

600 W. Illinois Avenue

Midland, Texas 79701

Holder:    At your current address as shown in the Company’s records.

21.     Waiver of Notice . Any person entitled to notice hereunder may waive such notice in writing.

22.     Successor . This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.

23.     Headings . The titles and headings of Sections and paragraphs are included for convenience of reference only and are not to be considered in construction of the provisions hereof.

24.     Governing Law . All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of the State of Texas except to the extent Texas law is preempted by federal law. The obligation of the Company to sell and deliver Common Stock hereunder is subject to applicable laws and to the approval of any governmental or regulatory authority (including any applicable stock exchange) required in connection with the authorization, issuance, sale, or delivery of such Common Stock.

25.     Execution of Receipts and Releases . Any payment of cash or any issuance or transfer of shares of Common Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.

26.     Amendment . This Agreement may be amended at any time unilaterally by the Company provided that such amendment is consistent with all applicable laws and does not reduce any rights or benefits you have accrued pursuant to this Agreement. This Agreement may also be amended at any time unilaterally by the Company to the extent the Company believes in good faith that such amendment is necessary or advisable to bring this Agreement into compliance with any applicable laws, including Section 409A of the Code.

27.     The Plan . This Agreement is subject to all the terms, conditions, limitations and restrictions contained in the Plan.

28.     Agreement Respecting Securities Act . You represent and agree that you will not sell the Common Stock that may be issued to you pursuant to your Performance Units except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act (including Rule 144).

 

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29.     No Stockholder Rights . The Performance Units granted pursuant to this Agreement do not and shall not entitle you to any rights as a stockholder of Common Stock until such time as you receive shares of Restricted Stock pursuant to this Agreement. Your rights with respect to the Performance Units shall remain forfeitable at all times prior to the date on which rights become earned in accordance with this Agreement.

[Signatures on the following page.]

 

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If you accept this Performance Unit Award Agreement and agree to its terms and conditions, please so confirm by signing and returning the duplicate of this Agreement enclosed for that purpose.

 

Very Truly Yours,
CONCHO RESOURCES INC.
By:    
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer

ACKNOWLEDGED AND AGREED:

 

By:    
  <first_name> <last_name>

 

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Appendix A

Determination of Earned Performance Units

A.     Relative Total Shareholder Return

Peer Companies :

 

OXY   Occidental Petroleum Corporation
EOG   EOG Resources, Inc.
APC   Anadarko Petroleum Corporation
DVN   Devon Energy Corporation
APA   Apache Corporation
MRO   Marathon Oil Corporation
PXD   Pioneer Natural Resources
CLR   Continental Resources, Inc.
NBL   Noble Energy, Inc.
HES   Hess Corporation
COG   Cabot Oil & Gas Corporation
XEC   Cimarex Energy Co.
FANG   Diamondback Energy, Inc.
PE   Parsley Energy Inc.
COP   ConocoPhillips

Determination of Percentage Attributable to Relative Total Shareholder Return :

The percentage attributable to the achievement of Relative Total Shareholder Return shall be determined in accordance with the following table based on the Company’s relative ranking in respect of the Performance Period with regard to Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies (straight line interpolation will be used between levels):

 

Company’s Relative Ranking

  

Applicable Percentage

93 rd Percentile or Above    200%
80 th Percentile    175%
60 th Percentile    125%
40 th Percentile    80%
27 th Percentile    54%
20 th Percentile or Below    0%

 

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B.     Absolute Total Shareholder Return

The percentage attributable to the achievement of Absolute Total Shareholder Return shall be determined in accordance with the following table based on the Company’s annualized Total Shareholder Return for the Performance Period:

 

Company’s annualized Total Shareholder

Return for the Performance Period

  

Applicable Percentage

Less than 0%    50%
0% to 5%    75%
5% to 10%    100%
10% to 15%    125%
Greater than 15%    150%

 

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Exhibit 10.7

CONCHO RESOURCES INC.

EXECUTIVE SEVERANCE PLAN

I.    INTRODUCTION

This Concho Resources Inc. Executive Severance Plan (this “Plan” ) is being adopted pursuant to the authorization of the Compensation Committee of the Board for the benefit of certain executives of the Company. This Plan is intended to provide severance benefits to certain executives who experience a Qualifying Termination or a termination due to death or Disability.

II.    DEFINITIONS AND CONSTRUCTION

2.1     Definitions . Where the following words and phrases appear in this Plan, they shall have the respective meanings set forth below, unless their context clearly indicates otherwise.

(a) “Applicable Factor” shall mean the relevant factor specified as applicable to the Executive, as set forth on the attached Schedule A.

(b) “Board” shall mean the Board of Directors of the Company.

(c) “Cause” shall mean the Executive (i) has engaged in gross negligence, gross incompetence or willful misconduct in the performance of the Executive’s duties, (ii) has refused, without proper reason, to perform the Executive’s duties, (iii) has materially breached any material provision of this Plan or corporate policy or code of conduct established by the Company, (iv) has willfully engaged in conduct which is materially injurious to the Company or its subsidiaries (monetarily or otherwise), (v) has committed an act of fraud, embezzlement or willful breach of a fiduciary duty to the Company or an affiliate (including the unauthorized disclosure of confidential or proprietary material information of Company or an affiliate), (vi) has been convicted of (or pleaded no contest to) a crime involving fraud, dishonesty or moral turpitude or any felony, or (vii) has used Company securities owned or controlled by the Executive as collateral for a securities margin account.

(d) “Change of Control” shall mean the first to occur of any of the following:

(i) a merger of the Company with another entity, a consolidation involving the Company, or the sale of all or substantially all of the assets of the Company to another entity if, in any such case, (1) the holders of equity securities of the Company immediately prior to such transaction or event do not beneficially own immediately after such transaction or event equity securities of the resulting entity entitled to 50% or more of the votes then eligible to be cast in the election of directors generally (or comparable governing body) of the resulting entity in substantially the same proportions that they owned the equity securities of the Company immediately prior to such transaction or event or (2) the persons who were members of the Board immediately prior to such transaction or event shall not constitute at least a majority of the board of directors of the resulting entity immediately after such transaction or event;

(ii) the Company is dissolved and liquidated;

(iii) any person or entity, including a “group” as contemplated by section 13(d)(3) of the Securities Exchange Act of 1934, as amended, acquires or gains ownership or control of (including, without limitation, the power to vote) more than 30% of the outstanding shares of the Company’s voting stock (based upon voting power); or

(iv) the individuals who, as of the original adoption date of this Plan, constitute members of the Board (the “Incumbent Board” ) cease for any reason to constitute at least a majority of the Board (provided, however, that any individual becoming a director subsequent to such date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered for purposes of this definition as though such individual was a member of the Incumbent Board, but excluding, for these purposes, any such individual whose initial assumption of office as a director occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of any individual, entity or group other than the Board).


(e) “Code” shall mean the Internal Revenue Code of 1986, as amended.

(f) “Company” shall mean Concho Resources Inc., a Delaware corporation, and shall include its successors and assigns.

(g) “ Disability ” shall mean that, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from the full-time performance of the Executive’s duties for six consecutive months and the Executive shall not have returned to full-time performance of the Executive’s duties within 30 days after written notice of termination is given to the Executive by the Employer (provided, however, that such notice may not be given prior to 30 days before the expiration of such six-month period).

(h) “Employer” shall mean the Company and each of its subsidiaries and affiliates that is treated as an Employer in accordance with the provisions of Section 5.1.

(i) “ Executive” shall mean an individual who is in one of the positions specified on Schedules A and B who has entered into a Participation Agreement with the Company in substantially the form set forth on the attached Schedule C.

(j) “Good Reason” shall mean, with respect to each Executive, the occurrence of any one or more of the following: (i) a material reduction in the nature or scope of the Executive’s position, authority, duties or responsibilities; (ii) a reduction in the Executive’s annual base salary or target annual cash incentive opportunity; or (iii) a required change in the location of the Executive’s principal place of employment by 50 miles or more from the location where the Executive was previously principally employed. In each such case of Good Reason, the Executive shall provide the Company with written notice of the grounds for a Good Reason termination within thirty (30) days of the initial occurrence thereof, and the Company shall have a period of thirty (30) days to cure after receipt of the written notice (the “Cure Period” ). Resignation by the Executive following the Company’s cure or before the expiration of the Cure Period shall constitute a voluntary resignation and not a termination or resignation for Good Reason and shall not entitle the Executive to any benefits under this Plan.

(k) “Payment Date” shall mean the first regularly scheduled payroll date that is at least sixty (60) days following the effective date of the Qualifying Termination.

(l) “Protection Period” shall mean the period commencing on the consummation of a Change of Control and ending on the second anniversary of such Change of Control.

(m) “Qualifying Termination” shall mean a termination of the Executive’s employment by the Company without Cause, and not by reason of death or Disability, or a resignation by the Executive for Good Reason.

(n) “Restricted Period” shall mean, the period of the Executive’s employment with the Employer and a period of one year following the termination of the Executive’s employment with the Employer for any reason or such applicable shorter period as may be specified pursuant to Section 4.2.

(o) “Section  409A” means section 409A of the Code and the Department of Treasury rules and regulations issued thereunder.

(p) “Specified Employee” means a person who is, as of the date of the person’s termination of employment, a “specified employee” within the meaning of Section 409A, taking into account the elections made and procedures established by the Company.

2.2     Number and Gender . Wherever appropriate herein, a word used in the singular shall be considered to include the plural and the plural to include the singular. The masculine gender, where appearing in this Plan, shall be deemed to include the feminine gender.

2.3     Headings . The headings of Articles and Sections herein are included solely for convenience and if there is any conflict between such headings and the text of this Plan, the text shall control.

 

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III.    SEVERANCE BENEFITS

3.1     Payments and Benefits upon a Qualifying Termination (Unrelated to a Change of Control) . Subject to the further provisions of this Article III and the Executive’s continued compliance with his or her obligations under Article IV hereof, upon an Executive’s Qualifying Termination that does not occur within the Protection Period:

(a) the Employer shall pay or provide to the Executive the Executive’s unpaid base salary through the date of termination, any unreimbursed business expenses, and any amount arising from the Executive’s participation in, or benefits under, any employee benefit plans, programs or arrangements, which amounts shall be payable in accordance with the requirements of applicable law and the terms and conditions of such employee benefit plans, programs or arrangements;

(b) the Employer shall continue to pay to the Executive his base salary, as in effect immediately prior to the Qualifying Termination (or immediately prior to any event constituting Good Reason, if applicable), for the number of months that applies to the Executive as specified in Schedule B following such Qualifying Termination, which amount shall be payable in accordance with the normal payroll practices of the Employer;

(c) the Employer shall pay to the Executive an amount in cash equal to the Executive’s target annual bonus for the year that includes the date of termination pro-rated to reflect the number of days that the Executive was employed by the Company and its subsidiaries during such calendar year, and which shall be payable on the first regularly scheduled payroll date that is at least sixty (60) days following the effective date of termination;

(d) during the portion, if any, of the 18-month period commencing on the date of termination that the Executive properly elects continuation coverage for himself and/or his eligible dependents under the Company’s or a subsidiary’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, the Employer shall promptly reimburse the Executive on a monthly basis for the cost of such coverage;

(e) the Employer shall reimburse the Executive, up to a maximum cumulative amount of $15,000, for the reasonable fees of an outplacement or similar service provider engaged by the Executive to assist in finding employment opportunities for such Executive; provided that the Executive submits documentation of such expenses to the Employer within thirty (30) days following the date of termination;

(f) a pro-rated portion of each outstanding unvested time-based equity-based compensation award held by the Executive shall vest immediately as of the date of termination based on the number of days that the Executive was employed by the Company and its subsidiaries during the vesting period applicable to the unvested portion of such award divided by the total number of days in such vesting period; and

(g) a pro-rated portion of each outstanding unvested performance-based equity-based compensation award held by the Executive shall vest immediately as of the date of termination at the lower of the target level of achievement of any applicable performance conditions or the actual level of achievement of any applicable performance conditions as of the date of termination, and, in either case, based on the number of days that the Executive was employed by the Company and its subsidiaries during the vesting period applicable to such award divided by the total number of days in such vesting period.

3.2     Severance Benefits upon a Qualifying Termination (Related to a Change of Control) . Subject to the further provisions of this Article III, upon an Executive’s Qualifying Termination that occurs within the Protection Period, the Executive shall receive all of the payments and benefits described in Section 3.1 above, except that the following payments shall be substituted for their respective counterparts in Sections 3.1(b), 3.1(f), and 3.1(g):

(a) in lieu of any payment under Section 3.1(b), the Employer shall pay to the Executive in a single lump sum on the Payment Date an amount in cash equal to (1) the sum of (i) the Executive’s annualized base salary as in effect immediately prior to the Qualifying Termination (or immediately prior to any event constituting Good Reason, if applicable), plus (ii) the average of the annual bonuses, if any, paid or payable to the Executive for the three-year period (or for any shorter period of the Executive’s employment, if such Executive has not been employed for three years) immediately preceding the date of termination, (2) multiplied by the Applicable Factor that applies to the Executive;

(b) in lieu of any vesting acceleration under Section 3.1(f), each outstanding unvested time-based equity-based compensation award held by the Executive shall vest in full as of the date of termination; and

(c) in lieu of any vesting acceleration under Section 3.1(g), each outstanding unvested performance-based equity-based compensation award held by the Executive shall vest in full as of the date of termination at the actual level of achievement of any applicable performance conditions as of the date of the Change of Control.

 

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3.3     Payments upon a Termination of Employment Due to Death or Disability . Subject to the further provisions of this Article III, upon an Executive’s termination of employment with the Company due to death or Disability:

(a) the Employer shall pay or provide to the Executive or his personal representative or estate, the Executive’s unpaid base salary through the date of termination, any unreimbursed business expenses, and any amount arising from the Executive’s participation in, or benefits under, any employee benefit plans, programs or arrangements, which amounts shall be payable in accordance with the requirements of applicable law and the terms and conditions of such employee benefit plans, programs or arrangements;

(b) the Employer shall pay to the Executive or his or her personal representative or estate, in a single lump sum cash payment on the first regularly scheduled payroll date that is at least sixty (60) days following the effective date of termination, an amount equal to the sum of (i) the Executive’s annualized base salary as in effect immediately prior to termination plus (ii) the Executive’s target annual bonus for the year that includes the date of termination pro-rated to reflect the number of days that the Executive was employed by the Company and its subsidiaries during such calendar year;

(c) each outstanding unvested time-based equity-based compensation award held by the Executive shall vest in full as of the date of termination; and

(d) each outstanding unvested performance-based equity-based compensation award held by the Executive shall vest in full as of the date of termination at the higher of the target level of achievement of any applicable performance conditions or the actual level of achievement of any applicable performance conditions as of the date of termination.

3.4     Release and Full Settlement; Payment Delay; Repayment Obligations . Any provision of this Plan to the contrary notwithstanding, the payment of any amounts or provision of any benefits under Sections 3.1(b) through (g), 3.2(a) through 3.2(c), 3.3(b) or Section 4.2 hereof shall be subject to the Executive’s (or, if applicable, his personal representative or estate’s) execution, within forty five (45) days following receipt (or such shorter period as set forth in such release), of a waiver and general release of claims in the form provided by the Company, and such waiver and general release of claims becoming effective and irrevocable in accordance with its terms within sixty (60) days following the date of termination. Except as set forth in the following sentence, any payments pursuant to Sections 3.1(b) through (g), 3.2(a) through 3.2(c), 3.3(b) or Section 4.2 hereof that would otherwise be payable in the first sixty (60) days following the date of termination shall be withheld and become payable in a lump sum on the date that is sixty (60) days following the date of termination. However, if the Executive is a Specified Employee, any payments hereunder that constitute a “deferral of compensation” within the meaning of Section 409A and to which the Executive would otherwise be entitled during the first six months following the date of termination shall be accumulated and paid to the Executive on the date that is six months following the date of termination (or if earlier, to the Executive’s estate or personal representative upon the Executive’s death). Furthermore, the payment of any amounts or provision of any benefits under Sections 3.1(b) through (g) or Section 4.2 hereof shall be subject to the Executive’s continued compliance with his or her obligations under Article IV hereof, and, in the event of any breach of such obligations by the Executive, the Executive agrees to promptly repay the Employer the gross amount or value of any payments or benefits provided under Sections 3.1(b) through (g) or Section 4.2 hereof.

3.5     Parachute Payments . Anything to the contrary herein notwithstanding, if an Executive is a “disqualified individual” (as defined in section 280G(c) of the Code), and the severance benefits provided for in Sections 3.1 or 3.2, together with any other payments or benefits which the Executive has the right to receive from the Employer, would constitute a “parachute payment” (as defined in section 280G(b)(2) of the Code), then the severance benefits provided hereunder shall be either (a) reduced (but not below zero) so that the present value of such total amounts received by the Executive from the Employer will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in section 280G(b)(3) of the Code) and so that no portion of such amounts received by the Executive shall be subject to the excise tax imposed by section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to the Executive (taking into account any applicable excise tax under section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the severance benefits is necessary shall be made by the Board (or any committee appointed by the Board) in good faith and any such reduction shall be implemented in a manner consistent with the requirements of Section 409A of the Code. If a reduced cash payment is made and through error or otherwise that payment, when aggregated with other payments or benefits from the Employer (or its affiliates) used in determining if a “parachute payment” exists, exceeds

 

4


one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Employer upon notification that an overpayment has been made. Nothing in this Section 3.5 shall require the Employer to be responsible for, or have any liability or obligation with respect to, any Executive’s excise tax liabilities under section 4999 of the Code.

3.6     Coordination with Certain Other Agreements . The benefits under and participation in this Plan are intended to supersede and replace the severance and separation benefits to which an Executive may be entitled under any other plan, policy, agreement or arrangement. By executing a Participation Agreement with the Company to participate in this Plan, an Executive shall waive any right to severance or separation benefits under any other plan, policy, agreement or arrangement of any Employer.

3.7     No Mitigation . An Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Article III or Section 4.2 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Article III or Section 4.2 be reduced by any compensation or benefit earned by the Executive as the result of employment by another employer.

IV.    RESTRICTIVE COVENANTS

4.1     Non-Competition and Non-Solicitation Obligations. In consideration of the payments and benefits that may be paid or provided to the Executive hereunder and to protect the trade secrets and confidential information of the Company that have been and will in the future be disclosed or entrusted to the Executive, the business goodwill of the Company or its affiliates, and the business opportunities that have been and will in the future be disclosed or entrusted to the Executive by the Company or its affiliates, the Company and the Executive agree to the provisions of this Article IV. The Executive agrees that during the Restricted Period, the Executive will not:

(a) directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for the Executive’s own benefit or for the benefit of any other person or entity either (i) hire, contract or solicit, or attempt any of the foregoing with respect to hiring any employee of the Company or its affiliates, or (i) induce or otherwise counsel, advise, or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or

(b) within any geographic area or market where the Company or any of its affiliates are conducting any business or have, during the twelve months preceding the termination of the Executive’s employment with Company, conducted such business or proposed to conduct business, as applicable:

(i) directly or indirectly participate in the ownership, management, operation or control of, or be connected as an officer, employee, partner, director, contractor or otherwise with, or have any financial interest in or aid or assist anyone else in the conduct of, any business similar to that conducted by the Company or its affiliates or provide or sell a service or product that is the same, substantially similar to or otherwise competitive with the products and services provided or sold by the Company or its affiliates (each, a “ Competitive Operation ”); provided, however, that this provision shall not preclude the Executive from owning less than 2% of the equity securities of any publicly held Competitive Operation so long as the Executive does not serve as an employee, officer, director or consultant to such business;

(ii) directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for the Executive’s own benefit or for the benefit of any other person or entity call upon, solicit, divert or take away, any customer or vendor of the Company or its affiliates with whom the Executive dealt, directly or indirectly, during the Executive’s engagement with Company or its affiliates, in connection with a Competitive Operation; or

(iii) call upon any prospective acquisition candidate on the Executive’s own behalf or on behalf of any Competitive Operation, which candidate is a Competitive Operation or which candidate was, to the Executive’s knowledge after due inquiry, either called upon by the Company or for which the Company or any of its affiliates made an acquisition analysis, for the purpose of acquiring such entity.

 

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4.2     Limitations on Non-Competition . Notwithstanding the provisions of Section 4.1, if the Executive provides written notice to the Company that the Executive will terminate employment with the Employer pursuant to a resignation by the Executive that does not constitute a Qualifying Termination, then, solely for purposes of Section 4.1(b)(i), the Restricted Period shall end on a date selected by the Company and set forth in a written notice provided by the Company to the Executive; provided, however, that (i) the date selected by the Company shall be a whole number of months (not in excess of 12) after the last day of the Executive’s employment with the Employer and (ii) subject to the provisions of Section 3.4 hereof, the Employer shall pay to the Executive an amount equal to one-twelfth of the Executive’s annualized base salary for each month of the Restricted Period following the last day of the Executive’s employment with the Employer, which amount shall be paid on or about the last day of each month of the Restricted Period following the last day of the Executive’s employment with Company. The Executive hereby delegates to the Company the right to select and determine in good faith the duration of the Restricted Period as provided in this Section 4.2.

4.3     Non-Disparagement. During and following the Executive’s employment with the Employer, the Executive agrees not to disparage, either orally or in writing, the Company, any of Company’s affiliates, business, products, services or practices, or any of Company’s or its affiliates’ directors, officers, agents, representatives, stockholders, or employees. During and following the Executive’s employment with the Employer, the Employer agrees not to disparage, either orally or in writing, the Executive.

V.    GENERAL PROVISIONS

5.1     Other Participating Employers . It is contemplated that subsidiaries and affiliates of the Company may adopt this Plan, with the approval of the Board or the Compensation Committee thereof, and thereby become an “Employer” hereunder. Any such entity, whether or not presently existing, may become an “Employer” by appropriate action of its board of directors or non-corporate counterpart. The provisions of this Plan shall apply separately and equally to each Employer and its employees in the same manner as is expressly provided for the Company and its employees, except that the determination of whether a Change of Control has occurred shall be made based solely on the Company. Transfer of employment among the Company and other participating Employers shall not be considered a Qualifying Termination hereunder unless such transfer otherwise constitutes a Good Reason event. Subject to the provisions of Section 5.2, any participating Employer may, by appropriate action of its board of directors or non-corporate counterpart, terminate its participation in this Plan. Amounts payable hereunder shall be paid by the Employer that employs the particular Executive.

5.2     Termination and Amendment . This Plan may be amended from time to time or terminated at the discretion of the Board or the Compensation Committee thereof; provided, however, that notwithstanding the foregoing, (a) any amendment or termination of this Plan prior to a Change of Control will only become effective, to the extent it would adversely affect the benefits or rights to benefits (contingent or otherwise) of any Executive under this Plan, on the date that is six (6) months following adoption thereof by the Board or the Compensation Committee thereof and (b) this Plan may not be amended on or following a Change of Control to adversely affect the benefits or rights to benefits (contingent or otherwise) of any Executive under this Plan or terminated on or following a Change of Control until there are no longer any benefits potentially payable under this Plan. Further, a participating Employer may not terminate its participation in this Plan on or following a Change of Control unless and until it no longer employs any Executives and has otherwise satisfied its obligations to pay benefits under this Plan.

5.3     Funding; Cost of Plan . The benefits provided herein shall be unfunded and shall be provided from the Employers’ general assets. No Executive shall have any right to, or interest in, any assets of any Employer that may be applied by the Employer to the payment of amounts due hereunder.

5.4     Nonalienation; Successors . This Plan shall be binding upon the Employer and any successor of the Employer, by merger, consolidation, acquisition or similar transaction, and shall inure to the benefit of and be enforceable by the Employer’s Executives. Executives shall not have any right to pledge, hypothecate, anticipate or assign benefits or rights under this Plan, except by will or the laws of descent and distribution. An Executive’s rights and interests hereunder shall inure to the benefit of and be enforceable by the Executive’s personal representative.

 

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5.5      Not Contract of Employment . The adoption and maintenance of this Plan shall not be deemed to be a contract of employment between the Employer and any person or to be consideration for the employment of any person. Nothing herein contained shall be deemed to (a) give any person the right to be retained in the employ of the Employer, (b) restrict the right of the Employer to discharge any person at any time, (c) give the Employer the right to require any person to remain in the employ of the Employer, or (d) restrict any person’s right to terminate his employment at any time.

5.6     Indemnification . If an Executive shall obtain any money judgment relating to this Plan or otherwise prevails with respect to any litigation brought by such Executive or the Employer to enforce or interpret any provision contained herein, the Employer, to the fullest extent permitted by applicable law, hereby indemnifies such Executive for his reasonable attorneys’ fees and disbursements incurred in such litigation and hereby agrees to pay in full all such fees and disbursements. Such payments shall be made within ten (10) business days after the delivery of the Executive’s written request for the payment (on or following the date on which he obtains a money judgment relating to this Plan or otherwise prevails with respect to litigation brought by him to enforce or interpret any provision contained herein) accompanied by such evidence of such fees and expenses incurred as the Company may reasonably require. In any event the Employer shall pay the Executive such legal fees and expenses by the last day of the Executive’s taxable year following the taxable year in which the Executive incurred such legal fees and expenses. The legal fees or expenses that are subject to reimbursement pursuant to this Section 5.6 shall not be limited as a result of when the fees or expenses are incurred. The amount of legal fees or expenses that are eligible for reimbursement pursuant to this Section 5.6 during a given taxable year of the Executive shall not affect the amount of expenses eligible for reimbursement in any other taxable year of the Executive. The right to reimbursement pursuant to this Section 5.6 is not subject to liquidation or exchange for another benefit.

5.7     Payment Obligations Absolute . The Employer’s obligation to pay an Executive the amounts provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Employer or any of its subsidiaries may have against such Executive or anyone else. All amounts payable by the Employer shall be paid without notice or demand.

5.8     Withholding . Any benefits or amounts paid or provided pursuant to this Plan shall be subject to all applicable taxes and withholdings.

5.9     Severability . Any provision in this Plan that is prohibited or unenforceable in any jurisdiction by reason of applicable law shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

5.10     Compliance With Section  409A . To the maximum extent permitted by applicable law, amounts payable under this Plan are intended to be exempt from Section 409A or in compliance with the requirements of Section 409A and this Plan shall be administered accordingly. No amounts payable under this Plan that constitute a “deferral of compensation” within the meaning of Section 409A shall be payable unless the Executive’s termination of employment constitutes a “separation from service” within the meaning of Treas. Reg. § 1.409A-1(h). Each payment under this Plan is intended to be a “separate payment” and not a series of payments for purposes of Section 409A. Any payments or reimbursements of any expenses provided for under this Plan shall be made in accordance with Treas. Reg. § 1.409A-3(i)(1)(iv).

5.11     Governing Law . This Plan shall be construed and enforced under and be governed in all respects by the laws of the State of Texas, without regard to the conflict of laws principles thereof.

 

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SCHEDULE A

The Applicable Factor is determined based on the position of the Executive as follows:

 

Position

  

Applicable Factor

Chief Executive Officer    3.0
President    2.75
Executive Vice President    2.5
Senior Vice President    2.25
Vice President    2.0

 

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SCHEDULE B

The number of months that base salary will continue to be paid upon a Qualifying Termination outside of the Protection Period is determined based on the position of the Executive as follows:

 

Position

  

Number of Months

Chief Executive Officer    24
President    21
Executive Vice President    18
Senior Vice President    15
Vice President    12

 

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SCHEDULE C

PARTICIPATION AGREEMENT

CONCHO RESOURCES INC.

EXECUTIVE SEVERANCE PLAN

This Participation Agreement (the “Agreement”) is made and entered into by and between                              (the “Executive”) and Concho Resources Inc., a Delaware corporation (the “Company”), effective as of January 1, 2019 (the “Effective Date”).

The Company maintains the Concho Resources Inc. Executive Severance Plan (the “Plan”) to provide for specified severance benefits in connection with certain Qualifying Terminations (as defined in the Plan). The Executive hereby acknowledges that he has read and understands the terms of the Plan and agrees to participate in the Plan. The Executive also expressly acknowledges and agrees that participation in the Plan replaces and supersedes the Employment Agreement made by and between the Company and the Executive dated                                  , and that such Employment Agreement shall be terminated and the Executive will no longer be entitled to any benefits under such Employment Agreement upon execution of this Agreement and participation in the Plan.

IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first above written.

 

CONCHO RESOURCES INC.       EXECUTIVE
By:            
        Executive Signature
Title:          

 

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Exhibit 10.8

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (“Agreement”) is made by and between Concho Resources Inc., a Delaware corporation (“Company”), and J. Steve Guthrie (“Employee”).

WITNESSETH:

WHEREAS , both Employee and Company seek to enter into an agreement regarding Employee’s employment with Company or a subsidiary of Company and in doing so agree that this Agreement supersedes any previous contracts between Employee and Company relating to such subject matter and identified as an Employment Agreement, including the Employment Agreement dated January 25, 2011 (the “Employment Agreement”); and

WHEREAS , Company is desirous of continuing to employ Employee in a Special Advisor capacity on the terms and conditions, and for the consideration, hereinafter set forth, and Employee is desirous of continuing to be employed by Company on such terms and conditions and for such consideration; and

WHEREAS , Employee shall resign from his position as Senior Vice President of Business Operations and Engineering of the Company, effective as of the Effective Date (defined below).

NOW, THEREFORE , for and in consideration of the mutual promises, covenants and obligations contained herein, Company and Employee agree as follows:

ARTICLE 1

DEFINITIONS AND INTERPRETATIONS

 

1.1.

Definitions .

 

  (a)

“Board” shall mean the Board of Directors of the Company.

 

  (b)

“Cause” shall mean Employee (i) has engaged in gross negligence, gross incompetence or willful misconduct in the performance of Employee’s duties, (ii) has refused, without proper reason, to perform Employee’s duties, (iii) has materially breached any material provision of this Agreement or corporate policy or code of conduct established by Company, (iv) has willfully engaged in conduct which is materially injurious to Company or its subsidiaries (monetarily or otherwise), (v) has committed an act of fraud, embezzlement or willful breach of a fiduciary duty to Company or an affiliate (including the unauthorized disclosure of confidential or proprietary material information of Company or an affiliate), (vi) has been convicted of (or pleaded no contest to) a crime involving fraud, dishonesty or moral turpitude or any felony, or (vii) has used Company securities owned by or controlled by Employee as collateral for a securities margin account.

 

  (c)

“Code” shall mean the Internal Revenue Code of 1986, as amended.

 

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  (d)

“Compensation Committee” shall mean the Compensation Committee of the Board.

 

  (e)

“Disability” shall mean that, as a result of Employee’s incapacity due to physical or mental illness, Employee shall have been absent from the full-time performance of Employee’s duties for six consecutive months and Employee shall not have returned to full-time performance of Employee’s duties within 30 days after written notice of termination is given to Employee by Company (provided, however, that such notice may not be given prior to 30 days before the expiration of such six-month period).

 

  (f)

“Effective Date” shall mean January 1, 2019.

 

  (g)

“Expiration Date” shall mean January 5, 2020.

 

1.2.

Interpretations . In this Agreement, unless a clear contrary intention appears, (a) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not any particular Article, Section or other subdivision, (b) reference to any Article or Section means such Article or Section hereof, (c) the words “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term, and (d) where any provision of this Agreement refers to action to be taken by either party, or which such party is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such party.

ARTICLE 2

EMPLOYMENT AND DUTIES

 

2.1.

Employment . Effective as of the Effective Date and continuing for the period of time set forth in Section 3.1, Employee’s employment by Company shall be subject to the terms and conditions of this Agreement.

 

2.2.

Positions . From and after the Effective Date, (a) Employee shall serve as a Special Advisor to the Company and (b) Employee shall be employed by Company or a subsidiary or affiliate of Company. The Company may at any time and from time to time assign Employee to a different position or positions with the Company and cause Employee to be employed by Company or any subsidiary or affiliate of Company. Subject to the provisions of the last sentence of Section 5.5(a), employment with a subsidiary or affiliate of Company pursuant to the preceding sentence shall be considered as employment with Company for purposes of this Agreement.

 

2.3.

Duties and Services . Employee agrees to serve in the positions referred to in Section 2.2 and to perform diligently and to the best of Employee’s abilities the duties and services appertaining to such positions as determined by the Company from time to time. Employee’s employment shall also be subject to the policies maintained and established by Company that are of general applicability to Company’s employees, as such policies may be amended from time to time.

 

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2.4.

Other Interests . Employee agrees, during the period of Employee’s employment by Company, to devote substantially all of Employee’s business time, energy and best efforts to the business and affairs of Company and its affiliates and not to engage, directly or indirectly, in any other business or businesses, whether or not similar to that of Company, except with the consent of the Company. The foregoing notwithstanding, the parties recognize and agree that, subject to Section 1.1(b)(vii), Employee may engage in passive personal investment and charitable activities that do not conflict with the business and affairs of Company or interfere with Employee’s performance of Employee’s duties hereunder, which shall be at the sole determination of the Company. As of the date of this Agreement, the Company has approved the activities set forth on Attachment A to this Agreement, subject to the limitations set forth thereon; provided, however, that during the period of Employee’s employment by Company, such activities may not interfere with Employee’s performance of his duties and services as an employee of Company.

 

2.5.

Duty of Loyalty . Employee acknowledges and agrees that Employee owes a fiduciary duty of loyalty to act at all times in the best interest of Company. In keeping with such duty, Employee shall make full disclosure to Company of all business opportunities pertaining to Company’s business and shall not appropriate for Employee’s own benefit business opportunities concerning Company’s business.

ARTICLE 3

TERM AND TERMINATION OF EMPLOYMENT

 

3.1.

Term . Unless sooner terminated pursuant to other provisions hereof, Company agrees to employ Employee for the period beginning on the Effective Date and ending on the Expiration Date.

 

3.2.

Company’s Right to Terminate . Notwithstanding the provisions of Section 3.1, Company shall have the right to terminate Employee’s employment under this Agreement at any time for any of the following reasons:

 

  (a)

upon Employee’s death;

 

  (b)

upon Employee’s Disability; or

 

  (c)

for Cause.

 

3.3.

Employee’s Right to Terminate . Notwithstanding the provisions of Section 3.1, Employee shall have the right to terminate Employee’s employment under this Agreement at any time for any reason whatsoever, in the sole discretion of Employee.

 

3.4.

Notice of Termination . If Company desires to terminate Employee’s employment hereunder at any time prior to the Expiration Date, it shall do so by giving written notice to Employee that it has elected to terminate Employee’s employment hereunder and stating the effective date and reason for such termination, provided that no such action shall alter or amend any other provisions hereof or rights arising hereunder. If Employee desires to terminate Employee’s employment hereunder at any time prior to the Expiration Date,

 

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  Employee shall do so by giving a 60-day written notice to Company that Employee has elected to terminate Employee’s employment hereunder and stating the effective date and reason for such termination; provided, however, that (a) no such action shall alter or amend any other provisions hereof or rights arising hereunder and (b) Company may accelerate Employee’s elected effective date of termination to any date of Company’s choice from and after its receipt of such notice, and such action by Company shall not change the basis for Employee’s termination nor be construed or interpreted as a termination of Employee’s employment by Company for any reason whatsoever.

ARTICLE 4

COMPENSATION AND BENEFITS

 

4.1.

Base Salary . During the period of this Agreement, Employee shall receive a minimum base salary of $40,000.00 per month. Employee’s base salary may, in the sole discretion of the Compensation Committee, be increased, but not decreased, effective as of any date determined by the Compensation Committee. Employee’s base salary shall be paid in equal installments in accordance with Company’s standard policy regarding payment of compensation to employees but no less frequently than monthly.

 

4.2.

Bonuses . Employee acknowledges and agrees that he shall be ineligible for participation in Company’s 2019 annual cash incentive plan as approved from time to time by the Board or the Compensation Committee.

 

4.3.

Company Benefits . Employee and, to the extent applicable, Employee’s spouse, dependents and beneficiaries, shall be allowed to participate in all benefits, plans and programs, including improvements or modifications of the same, which are, or may hereafter be, available to other similarly situated employees of Company. Company shall not, however, by reason of this paragraph, be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any such benefit plan or program.

ARTICLE 5

EFFECT OF TERMINATION ON COMPENSATION

 

5.1.

Termination Upon the Expiration Date or Upon Death or Disability . If Employee’s employment hereunder shall terminate upon the Expiration Date or upon death or Disability, then all compensation and benefits to Employee hereunder shall continue to be provided until the date of such termination of employment and such compensation and benefits shall terminate contemporaneously with such termination of employment; provided, however, that subject to the provisions of Sections 5.3, 5.4 and 5.5, Company shall:

 

  (a)

pay Employee an amount equal to $384,000.00, which amount shall be paid in one lump sum within 60 days following the date of such termination of employment; and

 

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  (b)

during the portion, if any, of the 18-month period commencing on the date of such termination of employment that Employee is eligible to elect and timely elects to continue group health plan coverage, as applicable, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and/or Sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended, pay the premiums for such continued group health coverage for Employee and his covered dependents (as of the date of termination of employment) pursuant to COBRA.

 

5.2.

Termination Prior to the Expiration Date . If Employee’s employment hereunder shall terminate prior to the Expiration Date for Cause or by Employee pursuant to Section 3.3, then all compensation and benefits to Employee hereunder shall continue to be provided until the date of such termination of employment and such compensation and benefits shall terminate contemporaneously with such termination of employment.

 

5.3.

Parachute Payments . Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the benefits provided for in this Article, together with any other payments and benefits which Employee has the right to receive from Company and its affiliates, would constitute a ‘‘parachute payment” (as defined in Section 280G(b)(2) of the Code), then the benefits provided hereunder (beginning with any benefit to be paid in cash hereunder) shall be either (1) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from Company will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (2) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any such reduction in the amount of the benefits provided hereunder is necessary shall be made by the Compensation Committee in good faith and in consultation with Employee and tax and legal advisors of Company. If a reduced cash payment is made and through error or otherwise that payment, when aggregated with other payments and benefits from Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to Company upon notification that an overpayment has been made. Nothing in this Section 5.3 shall require Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

 

5.4.

Release and Full Settlement . As a condition to the receipt of any severance compensation and benefits under this Agreement, Employee must first execute a release and agreement, in a form reasonably satisfactory to Company, which (1) shall release and discharge Company and its affiliates, and their officers, directors, employees and agents from any and all claims or causes of action of any kind or character, including all claims or causes of action arising out of Employee’s employment with Company or its affiliates or the termination of such employment, and (2) must be effective and irrevocable by the 55th day after the termination of Employee’s employment. In the event Employee dies or is

 

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  incapacitated prior to the completion of any payment(s) owed pursuant to this Agreement, Company will direct the remaining payment(s) to Employee’s personal representative, provided that the personal representative signs the applicable release and agreement on Employee’s behalf and/or on behalf of Employee’s estate. If Employee is entitled to and receives the benefits provided hereunder, performance of the obligations of Company hereunder will constitute full settlement of all claims that Employee might otherwise assert against Company on account of Employee’s employment and termination of employment.

 

5.5.

Section  409A of the Code . Company and Employee intend that payments and benefits under this Agreement comply with or are exempt from Section 409A of the Internal Revenue Code (the “Code”), and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith or exempt therefrom. If for any reason, such as imprecision in drafting, any provision of this Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Code Section 409A and shall be interpreted by Company in a manner consistent with such intent, as determined in the discretion of Company. It is intended that each installment of the payments and benefits provided under this Agreement shall be treated as a separate “payment” for purposes of Code Section 409A. While the payments and benefits provided hereunder are intended to be structured in a manner to avoid the implication of any penalty taxes under Code Section 409A, in no event whatsoever will Company or any of its respective affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A. Employee hereby acknowledges and agrees that neither the Company nor any of the Company’s representatives or advisors is providing Employee with any legal or tax advice with respect to the matters contemplated in this Agreement, and Employee has had an opportunity to consult with and seek the advice of his or her own legal and tax advisors regarding the payments and benefits under this Agreement, including the application, if any, of Section 409A of the Code. Notwithstanding anything herein to the contrary, to the extent the benefits set forth in this Agreement constitute “non-qualified deferred compensation” subject to Code Section 409A, then the following conditions apply to the payment of such benefits:

 

  (a)

Notwithstanding the foregoing provisions of this Article 5, if the payment of any severance compensation or severance benefits under this Agreement would be subject to additional taxes and interest under Section 409A of the Code because the timing of such payment is not delayed as provided in Section 409A(a)(2)(B) of the Code, then any such payments that Employee would otherwise be entitled to during the first six months following the date of Employee’s termination of employment shall be accumulated and paid on the date that is six months after the date of Employee’s termination of employment (or if such payment date does not fall on a business day of Company, the next following business day of Company), or such earlier date upon which such amount can be paid under Section 409A of the Code without being subject to such additional taxes and interest. Employee hereby agrees to be bound by Company’s determination of its “specified employees” (as such term

 

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  is defined in Section 409A of the Code) in accordance with any of the methods permitted under the regulations issued under Section 409A of the Code. The provisions of this Section 5.5 shall also apply, to the extent required under Section 409A of the Code, to any payment of the Non-Compete Amount (defined below) to Employee pursuant to Section 7.l(b). For the purposes of this Agreement, Employee shall be considered to have terminated employment with Company when Employee incurs a “separation from service” with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; provided, however, that whether such a separation from service has occurred shall be determined based upon a reasonably anticipated permanent reduction in the level of bona fide services to be performed to no more than 49% of the average level of bona fide services provided in the immediately preceding 36 months.

 

  (b)

Neither Employer nor Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Code Section 409A.

If any other payments of money or other benefits due to Employee hereunder could cause the application of an accelerated or additional tax under Code Section 409A, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Code Section 409A, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company that does not cause such an accelerated or additional tax. Employee shall not have any right to determine a date of payment of any amount under this Agreement. Notwithstanding anything herein to the contrary, to the extent required by Section 409A (1) the amount of expenses eligible for reimbursement or in-kind benefits provided under this Agreement during a calendar year will not affect the expenses eligible for reimbursement or in-kind benefits provided in any other calendar year, and (2) the right to reimbursement or in-kind benefits provided under this Agreement shall not be subject to liquidation or exchange for another benefit.

 

5.6.

Liquidated Damages . In light of the difficulties in estimating the damages for an early termination of Employee’s employment under this Agreement, Company and Employee hereby agree that the payments, if any, to be received by Employee pursuant to this Article 5 shall be received by Employee as liquidated damages.

 

5.7.

Other Benefits . This Agreement governs the rights and obligations of Employee and Company with respect to Employee’s base salary and certain perquisites of employment. Except as expressly provided herein, Employee’s rights and obligations both during the term of his employment and thereafter with respect to stock options, restricted stock, incentive and deferred compensation, life insurance policies insuring the life of Employee, and other benefits under the plans and programs maintained by Company shall be governed by the separate agreements, plans and other documents and instruments governing such matters.

 

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ARTICLE 6

PROTECTION OF CONFIDENTIAL INFORMATION

 

6.1.

Disclosure to and Property of Company . All information, designs, ideas, concepts, improvements, product developments, discoveries and inventions, whether patentable or not, that are conceived, made, developed or acquired by Employee, individually or in conjunction with others, during the period of Employee’s employment by Company (whether during business hours or otherwise and whether on Company’s premises or otherwise) that relate to Company’s (or any of its affiliates’) business, trade secrets, products or services (including, without limitation, all such information relating to corporate opportunities, product specification, compositions, manufacturing and distribution methods and processes, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisitions prospects, the identity of customers or their requirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, marketing and merchandising techniques, business plans, computer software or programs, computer software and database technologies, prospective names and marks) (collectively, “Confidential Information”) shall be disclosed to Company and are and shall be the sole and exclusive property of Company (or its affiliates). Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, E-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression (collectively, “Work Product”) are and shall be the sole and exclusive property of Company (or its affiliates). Upon Employee’s termination of employment with Company, for any reason, Employee promptly shall deliver such Confidential Information and Work Product, and all copies thereof, to Company.

 

6.2.

Disclosure to Employee . Company has and will disclose to Employee, or place Employee in a position to have access to or develop, Confidential Information and Work Product of Company (or its affiliates); and/or has and will entrust Employee with business opportunities of Company (or its affiliates); and/or has and will place Employee in a position to develop business good will on behalf of Company (or its affiliates). Employee agrees to preserve and protect the confidentiality of all Confidential Information or Work Product of Company (or its affiliates).

 

6.3.

No Unauthorized Use or Disclosure . Employee agrees that he will not, at any time during or after Employee’s employment by Company, make any unauthorized disclosure of, and will prevent the removal from Company premises of, Confidential Information or Work Product of Company (or its affiliates), or make any use thereof, except in the carrying out of Employee’s responsibilities during the course of Employee’s employment with Company. Employee shall use commercially reasonable efforts to cause all persons or entities to whom any Confidential Information shall be disclosed by him hereunder to observe the terms and conditions set forth herein as though each such person or entity was bound hereby. Employee shall have no obligation hereunder to keep confidential any

 

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  Confidential Information if and to the extent disclosure thereof is specifically required by law; provided, however, that in the event disclosure is required by applicable law, Employee shall provide Company with prompt notice of such requirement prior to making any such disclosure, so that Company may seek an appropriate protective order. At the request of Company at any time, Employee agrees to deliver to Company all Confidential Information that he may possess or control. Employee agrees that all Confidential Information of Company (whether now or hereafter existing) conceived, discovered or made by him during the period of Employee’s employment by Company exclusively belongs to Company (and not to Employee), and Employee will promptly disclose such Confidential Information to Company and perform all actions reasonably requested by Company to establish and confirm such exclusive ownership. Affiliates of Company shall be third party beneficiaries of Employee’s obligations under this Article 6. As a result of Employee’s employment by Company, Employee may also from time to time have access to, or knowledge of, Confidential Information or Work Product of third parties, such as customers, suppliers, partners, joint venturers, and the like, of Company and its affiliates. Employee also agrees to preserve and protect the confidentiality of such third party Confidential Information and Work Product to the same extent, and on the same basis, as Company’s Confidential Information and Work Product. Nothing in this Article, or in any other provision of this Agreement, prohibits Employee from reporting possible violations of federal, state, or local law or regulation to any governmental agency or entity, including to the United States Department of Justice, the Securities and Exchange Commission, Congress, and/or any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions or other provisions of federal, state, or local law or regulation. Employee does not need to provide prior notice to the Company to make any such reports or disclosures and Employee is not required to notify Company that Employee has made such reports or disclosures.

 

6.4.

Ownership by Company . If, during Employee’s employment by Company, Employee creates any work of authorship fixed in any tangible medium of expression that is the subject matter of copyright (such as videotapes, written presentations, or acquisitions, computer programs, E-mail, voice mail, electronic databases, drawings, maps, architectural renditions, models, manuals, brochures, or the like) relating to Company’s business, products, or services, whether such work is created solely by Employee or jointly with others (whether during business hours or otherwise and whether on Company’s premises or otherwise), including any Work Product, Company shall be deemed the author of such work if the work is prepared by Employee in the scope of Employee’s employment; or, if the work is not prepared by Employee within the scope of Employee’s employment but is specially ordered by Company as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, or as an instructional text, then the work shall be considered to be work made for hire and Company shall be the author of the work. If such work is neither prepared by Employee within the scope of Employee’s employment nor a work specially ordered that is deemed to be a work made for hire, then Employee hereby agrees to assign, and by these presents does assign, to Company all of Employee’s worldwide right, title, and interest in and to such work and all rights of copyright therein.

 

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6.5.

Assistance by Employee . During the period of Employee’s employment by Company and thereafter, Employee shall, at Company’s expense, assist Company and its nominee, at any time, in the protection of Company’s (or its affiliates’) worldwide right, title and interest in and to Work Product and the execution of all formal assignment documents requested by Company or its nominee and the execution of all lawful oaths and applications for patents and registration of copyright in the United States and foreign countries.

 

6.6.

Remedies . Employee acknowledges that money damages would not be sufficient remedy for any breach of this Article 6 by Employee, and Company or its affiliates shall be entitled to enforce the provisions of this Article 6 by terminating payments then owing to Employee under this Agreement or otherwise and to specific performance and injunctive relief as remedies for such breach or any threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of this Article 6 but shall be in addition to all remedies available at law or in equity, including the recovery of damages from Employee and his agents.

ARTICLE 7

NON-COMPETITION AND RELATED OBLIGATIONS

 

7.1.

General . (a) As part of the consideration for Company’s employment of Employee and the compensation and benefits that may be paid to Employee hereunder; to protect the trade secrets and Confidential Information of Company or its affiliates that have been and will in the future be disclosed or entrusted to Employee, the business good will of Company or its affiliates that has been and will in the future be developed in Employee, or the business opportunities that have been and will in the future be disclosed or entrusted to Employee by Company or its affiliates; and as an additional incentive for Company to enter into this Agreement, Company and Employee agree to the provisions of this Article 7. Employee agrees that during Employee’s employment with Company and for a period beginning upon the date of the termination of Employee’s employment with Company for any reason and ending on the 12-month anniversary of the date of termination of employment (the “Non-Compete Period”), Employee shall not:

 

  (i)

directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for Employee’s own benefit or for the benefit of any other person or entity either (1) hire, contract or solicit, or attempt any of the foregoing with respect to any employee, former employee (who was employed during the 12 months preceding the termination of Employee’s employment) or contractor of Company or its affiliates, or (2) induce or otherwise counsel, advise, or encourage any employee or contractor of Company or its affiliates to leave the employment of Company or its affiliates or terminate the contractor’s relationship with Company or its affiliates; and

 

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  (ii)

within any geographic area or market where Company or any of its affiliates are conducting any business or have, during the twelve months preceding the termination of Employee’s employment with Company, conducted such business, as applicable:

 

  (1)

directly or indirectly participate in the ownership, management, operation or control of, or be connected as an officer, employee, partner, director, contractor or otherwise with, or have any financial interest in or aid or assist anyone else in the conduct of, any business in any of the business territories in which Company is presently or from time-to-time conducting business that either conducts a business similar to that conducted by Company or its affiliates or provides or sells a service or product that is the same, substantially similar to or otherwise competitive with the products and services provided or sold by Company or its affiliates (a “Competitive Operation”); provided, however, that this provision shall not preclude Employee after the termination of Employee’s employment with Company from owning less than 2% of the equity securities of any publicly held Competitive Operation so long as Employee does not serve as an employee, officer, director or consultant to such business and further provided that this provision shall not preclude Employee from continuing the approved activities listed on Attachment A to this Agreement;

 

  (2)

directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for Employee’s own benefit or for the benefit of any other person or entity call upon, solicit, divert or take away, any customer or vendor of Company or its affiliates with whom Employee dealt, directly or indirectly, during Employee’s engagement with Company or its affiliates, in connection with a Competitive Operation; or

 

  (3)

call upon any prospective acquisition candidate on Employee’s own behalf or on behalf of any Competitive Operation, which candidate is a Competitive Operation or which candidate was, to Employee’s knowledge after due inquiry, either called upon by Company or for which Company or any of its affiliates made an acquisition analysis, for the purpose of acquiring such entity.

 

  (b)

If Employee’s employment with the Company terminates other than for Cause, then subject to Sections 5.3, 5.4 and 5.5, Company shall pay to Employee an aggregate amount equal to $480,000.00 (the “Non-Compete Amount”), which aggregate amount shall be divided into two equal installments with one such installment to be paid on July 31, 2020, and the other such installment to be paid on December 31, 2020.

 

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7.2.

Non-Disparagement . During Employee’s employment with Company and following termination of employment with Company, Employee agrees not to disparage, either orally or in writing, Company, any of Company’s affiliates, businesses, products, services or practices, or any of Company’s or its affiliates’ directors, officers, agents, representatives, stockholders, or employees.

 

7.3.

New Employer . Employee agrees that prior to accepting any new employment during the Non-Compete Period, Employee shall advise Company of the identity of the potential new employer. Company may serve such new employer with notice of the non-competition restrictions set forth in this Article 7 and may furnish such employer with a copy of this Agreement or the relevant portions thereof.

 

7.4.

Remedies . Employee acknowledges that money damages would not be a sufficient remedy for any breach of this Article 7 by Employee, and Company or its affiliates shall be entitled to enforce the provisions of this Article 7 by terminating payments then owing to Employee under this Agreement or otherwise and to specific performance and injunctive relief as remedies for such breach or any threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of this Article 7 but shall be in addition to all remedies available at law or in equity, including the recovery of damages from Employee and his agents.

 

7.5.

Reformation . Company and Employee agree that the foregoing restrictions are reasonable under the circumstances and that any breach of the covenants contained in this Article 7 would cause irreparable injury to Company. Employee understands that the foregoing restrictions may limit Employee’s ability to engage in certain businesses anywhere in the United States or such other geographic areas or markets in which Company or any of its affiliates are conducting business or have, during the 12 months preceding the termination of Employee’s employment, conducted such business, as applicable, during the Non-Compete Period, but acknowledges that Employee will receive sufficiently high remuneration and other benefits from Company to justify such restriction. Nevertheless, if any of the aforesaid restrictions are found by a court of competent jurisdiction to be unreasonable, or overly broad as to geographic area or time, or otherwise unenforceable, the parties intend for the restrictions therein set forth to be modified by the court making such determination so as to be reasonable and enforceable and, as so modified, to be fully enforced. By agreeing to this contractual modification prospectively at this time, Company and Employee intend to make this provision enforceable under the law or laws of all applicable States so that the entire agreement not to compete and this Agreement as prospectively modified shall remain in full force and effect and shall not be rendered void or illegal. Such modification shall not affect the payments made to Employee under this Agreement.

ARTICLE 8

MISCELLANEOUS

 

8.1.

Payment Obligations Absolute . Except as specifically provided in Sections 6.6 and 7.4, Company’s obligation to pay (or cause one of its subsidiaries to pay) Employee the amounts

 

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  and to make the arrangements provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which Company (including its subsidiaries) may have against him or anyone else. All amounts payable by Company (including its subsidiaries hereunder) shall be paid without notice or demand. Employee shall not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement, and the obtaining of any such other employment shall in no event effect any reduction of Company’s obligations to make (or cause to be made) the payments and arrangements required to be made under this Agreement.

 

8.2.

Notices . For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

 

If to Company to:

  Concho Resources Inc.
  600 W. Illinois Avenue
  Midland, Texas 79701
  Attention: Vice President and Chief of Staff
  With a copy to:
  Concho Resources Inc.
  600 W. Illinois Avenue
  Midland, Texas 79701
  Attention: Senior Vice President, General Counsel

If to Employee to:

  Mr. J. Steve Guthrie
  5305 Scottsboro
  Midland, Texas 79707

or to such other address as either party may furnish to the other in writing in accordance herewith, except that notices or changes of address shall be effective only upon receipt.

 

8.3.

Applicable Law . This Agreement is entered into under, and shall be governed for all purposes by, the laws of the State of Texas.

 

8.4.

No Waiver . No failure by either party hereto at any time to give notice of any breach by the other party of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

 

8.5.

Severability . Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction by reason of applicable law shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

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8.6.

Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.

 

8.7.

Withholding of Taxes and Other Employee Deductions . Company may withhold from any benefits and payments made pursuant to this Agreement all federal, state, city and other taxes as may be required pursuant to any law or governmental regulation or ruling and all other normal employee deductions made with respect to Company’s employees generally.

 

8.8.

Headings . The paragraph headings have been inserted for purposes of convenience and shall not be used for interpretive purposes.

 

8.9.

Gender and Plurals . Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely.

 

8.10.

Assignment . This Agreement shall be binding upon and inure to the benefit of Company and any successor of Company, by merger or otherwise. This Agreement shall also be binding upon and inure to the benefit of Employee and his estate. If Employee shall die prior to full payment of amounts due pursuant to this Agreement, such amounts shall be payable pursuant to the terms of this Agreement to his estate. Employee shall not have any right to pledge, hypothecate, anticipate or assign this Agreement or the rights hereunder, except by will or the laws of descent and distribution.

 

8.11.

Term . This Agreement has a term co-extensive with the term of employment provided in Section 3.1. Termination shall not affect any right or obligation of any party which is accrued or vested prior to such termination. The provisions of Articles 6 and 7 shall survive the termination of this Agreement.

 

8.12.

Entire Agreement . This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to such subject matter. Without limiting the scope of the preceding sentence, all understandings and agreements preceding the date of execution of this Agreement and relating to the subject matter hereof are hereby null and void and of no further force and effect, including, without limitation, all prior employment and severance agreements, if any, by and between Company and Employee, including, without limitation, the Employment Agreement. Any modification of this Agreement will be effective only if it is in writing and signed by the party to be charged.

[Signatures begin on next page.]

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement on the 1st day of January, 2019, to be effective as of the Effective Date.

 

Concho Resources Inc.
By:   /s/ Timothy A. Leach
  Name:   Timothy A. Leach
  Title:   Chief Executive Officer
    COMPANY
J. Steve Guthrie
/s/ J. Steve Guthrie
EMPLOYEE

 

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ATTACHMENT A

TO

EMPLOYMENT AGREEMENT

BETWEEN

CONCHO RESOURCES INC.

AND

J. STEVE GUTHRIE

PERMITTED ACTIVITIES

As of the Effective Date, the Company has approved Employee’s participation in the following activities:

 

   

As disclosed on the Employment Agreement between J. Steve Guthrie and Company dated January 25, 2011

 

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