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Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2022
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
 Commission File Number:  001-35371
civi-20220930_g1.jpg
Civitas Resources, Inc.
(Exact name of registrant as specified in its charter) 
Delaware 61-1630631
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
555 17th Street,Suite 3700
Denver,Colorado 80202
(Address of principal executive offices) (Zip Code)
(303) 293-9100
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading SymbolName of exchange on which registered
Common Stock, par value $0.01 per shareCIVINew York Stock Exchange
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.   Yes   No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).   Yes   No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large Accelerated FilerAccelerated Filer
Non-accelerated FilerSmaller reporting company 
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.
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes  No
As of October 28, 2022, the registrant had 85,110,799 shares of common stock outstanding.
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Table of Contents
CIVITAS RESOURCES, INC.
FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 2022

TABLE OF CONTENTS

         PAGE
 
Condensed Consolidated Balance Sheets as of September 30, 2022 and December 31, 2021
 
Condensed Consolidated Statements of Stockholders' Equity for the Three and Nine Months Ended September 30, 2022 and 2021
 
 
 
 
 
 
 
 
 
 
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Table of Contents

Information Regarding Forward-Looking Statements
This Quarterly Report on Form 10-Q contains various statements, including those that express belief, expectation or intention, as well as those that are not statements of historic fact, that are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”). When used in this Quarterly Report on Form 10-Q, the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “may,” “continue,” “predict,” “potential,” “project,” “plan,” “will,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. These forward-looking statements are based on management's current belief, based on currently available information, as to the outcome and timing of future events.
Forward-looking statements include statements related to, among other things:
the Company’s business strategies;
reserves estimates;
estimated sales volumes;
the amount and allocation of forecasted capital expenditures and plans for funding capital expenditures and operating expenses;
our ability to modify future capital expenditures;
anticipated costs;
compliance with debt covenants;
our ability to fund and satisfy obligations related to ongoing operations;
compliance with government regulations, including environmental, health, and safety regulations and liabilities thereunder;
the adequacy of gathering systems and continuous improvement of such gathering systems;
the impact from the lack of available gathering systems and processing facilities in certain areas;
the impact of any pandemic or other public health epidemic, including the ongoing COVID-19 pandemic;
oil, natural gas, and natural gas liquid prices and factors affecting the volatility of such prices;
the impact of lower commodity prices;
sufficiency of impairments;
the ability to use derivative instruments to manage commodity price risk and ability to use such instruments in the future;
our drilling inventory and drilling intentions;
the impact of potentially disruptive technologies;
our estimated revenue gains and losses;
the timing and success of specific projects;
our implementation of standard and long reach laterals;
our intention to continue to optimize enhanced completion techniques and well design changes;
stated working interest percentages;
our management and technical team;
outcomes and effects of litigation, claims, and disputes;
primary sources of future production growth;
our ability to replace oil and natural gas reserves;
our ability to convert proved undeveloped reserves to producing properties within five years of their initial proved booking;
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our ability to pay future cash dividends on our common stock;
the impact of the loss of a single customer or any purchaser of our products;
the timing and ability to meet certain volume commitments related to purchase and transportation agreements;
the impact of customary royalty interests, overriding royalty interests, obligations incident to operating agreements, liens for current taxes, and other industry-related constraints;
our anticipated financial position, including our cash flow and liquidity;
the adequacy of our insurance;
the results, effects, benefits, and synergies of our recent mergers and acquisitions, future opportunities for the combined companies, other plans and expectations with respect to these transactions, and the anticipated impact of these transactions on the combined company’s results of operations, financial position, growth opportunities, and competitive position; and
other statements concerning our anticipated operations, economic performance, and financial condition.
We have based these forward-looking statements on certain assumptions and analyses we have made in light of our experience and our perception of historical trends, current conditions, and expected future developments as well as other factors we believe are appropriate under the circumstances. They can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Many such factors will be important in determining actual future results. The actual results or developments anticipated by these forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond our control, and may not be realized or, even if substantially realized, may not have the expected consequences. Actual results could differ materially from those expressed or implied in the forward-looking statements.
Factors that could cause actual results to differ materially include, but are not limited to, the following:
the risk factors discussed in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2021 and in Part II, Item 1A of this report;
declines or volatility in the prices we receive for our oil, natural gas, and natural gas liquids;
general economic conditions, whether internationally, nationally or in the regional and local market areas in which we do business, including any future economic downturn, the impact of inflation, disruption in the financial markets, and the availability of credit;
the effects of disruption of our operations or excess supply of oil and natural gas due to world health events, including the COVID-19 pandemic, and the actions by certain oil and natural gas producing countries;
the continuing effects of the COVID-19 pandemic, including any recurrence or the worsening thereof;
the ability of our customers to meet their obligations to us;
our access to capital;
our ability to generate sufficient cash flow from operations, borrowings, or other sources to enable us to fully develop our undeveloped acreage positions;
the presence or recoverability of estimated oil and natural gas reserves and the actual future sales volume rates and associated costs;
uncertainties associated with estimates of proved oil and gas reserves;
the possibility that the industry may be subject to future local, state, and federal regulatory or legislative actions (including additional taxes and changes in environmental regulation);
environmental risks;
seasonal weather conditions;
lease stipulations;
drilling and operating risks, including the risks associated with the employment of horizontal drilling and completion techniques;
our ability to acquire adequate supplies of water for drilling and completion operations;
availability of oilfield equipment, services, and personnel;
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exploration and development risks;
operational interruption of centralized oil and natural gas processing facilities;
competition in the oil and natural gas industry;
management’s ability to execute our plans to meet our goals;
our ability to attract and retain key members of our senior management and key technical employees;
our ability to maintain effective internal controls;
access to adequate gathering systems and pipeline take-away capacity;
our ability to secure adequate processing capacity for natural gas we produce, to secure adequate transportation for oil, natural gas, and natural gas liquids we produce, and to sell the oil, natural gas, and natural gas liquids at market prices;
costs and other risks associated with perfecting title for mineral rights in some of our properties;
political conditions in or affecting other producing countries, including conflicts in or relating to the Middle East, South America, and Russia (including the current events involving Russia and Ukraine), and other sustained military campaigns or acts of terrorism or sabotage; and
other economic, competitive, governmental, legislative, regulatory, geopolitical, and technological factors that may negatively impact our businesses, operations, or pricing.
All forward-looking statements speak only as of the filing date of this report. We disclaim any obligation to update or revise these statements unless required by law, and you should not place undue reliance on these forward-looking statements. Although we believe that our plans, intentions, and expectations reflected in or suggested by the forward-looking statements we make in this report are reasonable, we can give no assurance that these plans, intentions, or expectations will be achieved. We disclose other important factors that could cause our actual results to differ materially from our expectations under “Item 1A. Risk Factors” and other sections of our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as updated by subsequent reports we file with the SEC (including this report). These cautionary statements qualify all forward-looking statements attributable to us or persons acting on our behalf.
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
CIVITAS RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(in thousands, except per share amounts)
September 30, 2022December 31, 2021
ASSETS  
Current assets:  
Cash and cash equivalents$682,138 $254,454 
Accounts receivable, net:  
Oil, natural gas, and NGL sales337,946 362,262 
Joint interest and other101,401 66,390 
Prepaid expenses and other33,069 21,052 
Inventory of oilfield equipment27,488 12,386 
Derivative assets5,727 3,393 
Total current assets1,187,769 719,937 
Property and equipment (successful efforts method):
  
Proved properties6,538,973 5,457,213 
Less: accumulated depreciation, depletion, and amortization(1,010,340)(430,201)
Total proved properties, net5,528,633 5,027,012 
Unproved properties631,117 688,895 
Wells in progress251,779 177,296 
Other property and equipment, net of accumulated depreciation of $6,715 in 2022 and $4,742 in 2021
49,764 51,639 
Total property and equipment, net6,461,293 5,944,842 
Long-term derivative assets2,764 — 
Right-of-use assets28,150 39,885 
Deferred income tax assets— 22,284 
Other noncurrent assets8,821 14,085 
Total assets$7,688,797 $6,741,033 
LIABILITIES AND STOCKHOLDERS’ EQUITY  
Current liabilities:  
Accounts payable and accrued expenses$288,720 $246,188 
Production taxes payable282,893 144,408 
Oil and natural gas revenue distribution payable494,548 466,233 
Lease liability15,616 18,873 
Derivative liability144,176 219,804 
Income tax payable18,897 — 
Asset retirement obligations24,000 24,000 
Total current liabilities1,268,850 1,119,506 
Long-term liabilities:  
Senior notes392,897 491,710 
Lease liability13,122 21,398 
Ad valorem taxes304,016 232,147 
Derivative liability32,916 19,959 
Deferred income tax liabilities221,904 — 
Asset retirement obligations201,567 201,315 
Total liabilities2,435,272 2,086,035 
Commitments and contingencies (Note 6)
Stockholders’ equity:  
Preferred stock, $.01 par value, 25,000,000 shares authorized, none outstanding
— — 
Common stock, $.01 par value, 225,000,000 shares authorized, 85,105,363 and 84,572,846 issued and outstanding as of September 30, 2022 and December 31, 2021, respectively
4,917 4,912 
Additional paid-in capital4,204,742 4,199,108 
Retained earnings1,043,866 450,978 
Total stockholders’ equity5,253,525 4,654,998 
Total liabilities and stockholders’ equity$7,688,797 $6,741,033 
The accompanying notes are an integral part of these condensed consolidated financial statements.
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CIVITAS RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (UNAUDITED)
(in thousands, except per share amounts)
Three Months Ended September 30,Nine Months Ended September 30,
 2022202120222021
Operating net revenues:
Oil, natural gas, and NGL sales$1,007,951 $189,963 $2,977,125 $420,157 
Operating expenses:
Lease operating expense45,063 11,560 122,959 28,649 
Midstream operating expense9,214 3,163 22,395 11,314 
Gathering, transportation, and processing84,482 14,105 214,404 32,793 
Severance and ad valorem taxes85,029 9,205 234,203 23,622 
Exploration4,355 1,513 6,436 5,156 
Depreciation, depletion, and amortization212,070 35,604 601,449 89,433 
Abandonment and impairment of unproved properties— — 17,975 2,215 
Unused commitments193 3,364 2,700 7,692 
Bad debt expense (recovery)(11)279 (7)279 
Merger transaction costs1,814 5,580 23,766 27,121 
General and administrative expense (including $10,244, $2,289, $24,469, and $6,096, respectively, of stock-based compensation)
37,296 11,724 102,682 33,119 
Total operating expenses479,505 96,097 1,348,962 261,393 
Other income (expense):
Derivative gain (loss)9,281 (36,224)(358,862)(133,613)
Interest expense(7,468)(3,025)(24,650)(6,685)
Gain (loss) on property transactions, net(938)951 15,859 951 
Other income12,769 687 17,865 964 
Total other income (expense)13,644 (37,611)(349,788)(138,383)
Income from operations before income taxes542,090 56,255 1,278,375 20,381 
Income tax expense(136,338)(15,596)(312,163)(5,160)
Net income$405,752 $40,659 $966,212 $15,221 
Comprehensive income$405,752 $40,659 $966,212 $15,221 
Net income per common share:
Basic$4.77 $1.32 $11.37 $0.55 
Diluted$4.74 $1.31 $11.30 $0.55 
Weighted-average common shares outstanding
Basic85,069 30,849 84,968 27,485 
Diluted85,554 31,138 85,495 27,839 
The accompanying notes are an integral part of these condensed consolidated financial statements.

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CIVITAS RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (UNAUDITED)
(in thousands, except per share amounts)
Additional
Common StockPaid-InRetained
SharesAmountCapitalEarningsTotal
Balances, December 31, 2021
84,572,846 $4,912 $4,199,108 $450,978 $4,654,998 
Restricted common stock issued579,229 — — 
Stock used for tax withholdings(215,811)(2)(12,932)— (12,934)
Exercise of stock options5,294 — 178 — 178 
Stock-based compensation— — 8,090 — 8,090 
Cash dividends, $1.2125 per share
— — — (104,444)(104,444)
Net income— — — 91,639 91,639 
Balances, March 31, 202284,941,558 4,916 4,194,444 438,173 4,637,533 
Restricted common stock issued130,309 — — 
Stock used for tax withholdings(40,646)— (2,813)— (2,813)
Exercise of stock options742 — 24 — 24 
Stock-based compensation— — 6,135 — 6,135 
Cash dividends, $1.3625 per share
— — — (117,151)(117,151)
Net income— — — 468,821 468,821 
Balances, June 30, 202285,031,963 4,917 4,197,790 789,843 4,992,550 
Restricted common stock issued125,381 — — 
Stock used for tax withholdings(52,879)(1)(3,322)— (3,323)
Exercise of stock options898 — 30 — 30 
Stock-based compensation— — 10,244 — 10,244 
Cash dividends, 1.7625 per share
— — — (151,729)(151,729)
Net income— — — 405,752 405,752 
Balances, September 30, 2022
85,105,363 $4,917 $4,204,742 $1,043,866 $5,253,525 

Balances, December 31, 2020
20,839,227 $4,282 $707,209 $333,761 $1,045,252 
Restricted common stock issued109 — — — — 
Stock used for tax withholdings(38)— — — — 
Exercise of stock options429 — 15 — 15 
Stock-based compensation— — 1,612 — 1,612 
Net loss— — — (119)(119)
Balances, March 31, 202120,839,727 4,282 708,836 333,642 1,046,760 
Issuance pursuant to acquisition9,802,166 98 374,835 — 374,933 
Restricted common stock issued261,539 — — — — 
Stock used for tax withholdings(70,330)(2)(2,814)— (2,816)
Exercise of stock options11,523 — 394 — 394 
Stock-based compensation— — 2,195 — 2,195 
Dividends declared, $0.3500 per share
— — — (11,033)(11,033)
Net loss— — — (25,319)(25,319)
Balances, June 30, 202130,844,625 4,378 1,083,446 297,290 1,385,114 
Restricted common stock issued5,987 — — — — 
Stock used for tax withholdings(1,725)— (74)— (74)
Exercise of stock options9,926 — 307 — 307 
Stock-based compensation— — 2,289 — 2,289 
Dividends declared, $0.3500 per share
— — — (11,045)(11,045)
Net income— — — 40,659 40,659 
Balances, September 30, 2021
30,858,813 $4,378 $1,085,968 $326,904 $1,417,250 
The accompanying notes are an integral part of these condensed consolidated financial statements.

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CIVITAS RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(in thousands)
 Nine Months Ended September 30,
 20222021
Cash flows from operating activities:
Net income$966,212 $15,221 
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation, depletion, and amortization601,449 89,433 
Deferred income tax expense239,766 5,368 
Abandonment and impairment of unproved properties17,975 2,215 
Stock-based compensation24,469 6,096 
Amortization of deferred financing costs3,319 963 
Derivative loss358,862 133,613 
Derivative cash settlements loss(492,120)(50,536)
Gain on property transactions, net(15,859)(951)
Other202 14 
Changes in current assets and liabilities:
Accounts receivable, net39,027 (17,050)
Prepaid expenses and other assets(2,099)2,244 
Accounts payable and accrued liabilities241,662 9,504 
Settlement of asset retirement obligations(18,002)(3,891)
Net cash provided by operating activities1,964,863 192,243 
Cash flows from investing activities:
Acquisition of oil and natural gas properties(374,769)(620)
Cash acquired44,310 49,827 
Exploration and development of oil and natural gas properties(708,958)(104,207)
Purchases of carbon offsets(7,196)— 
Additions to other property and equipment(97)(72)
Other126 204 
Net cash used in investing activities(1,046,584)(54,868)
Cash flows from financing activities:
Proceeds from credit facility100,000 155,000 
Payments to credit facility(100,000)(249,000)
Redemption of senior notes(100,000)— 
Proceeds from exercise of stock options232 716 
Dividends paid(370,591)(21,598)
Payment of employee tax withholdings in exchange for the return of common stock(19,062)(2,890)
Deferred financing costs(1,174)(3,915)
Other— (21)
Net cash used in financing activities(490,595)(121,708)
Net change in cash, cash equivalents, and restricted cash427,684 15,667 
Cash, cash equivalents, and restricted cash:
Beginning of period(1)
254,556 24,845 
End of period(1)
$682,240 $40,512 
Supplemental cash flow disclosure:
Cash paid for interest$(17,124)$(1,684)
Cash paid for income taxes$(59,800)$— 
Changes in working capital related to drilling expenditures$33 $(22,175)
(1) Includes $0.1 million of restricted cash and consists of funds for road maintenance and repairs that is presented in other noncurrent assets within the accompanying unaudited condensed consolidated balance sheets (“balance sheets”) as of September 30, 2022 and 2021.
The accompanying notes are an integral part of these condensed consolidated financial statements.
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CIVITAS RESOURCES, INC. AND SUBSIDIARIES
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
 
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES 
Description of Operations
When we use the terms “Civitas,” the “Company,” “we,” “us,” or “our,” we are referring to Civitas Resources, Inc. and its consolidated subsidiaries unless the context otherwise requires. Effective November 1, 2021, Bonanza Creek Energy, Inc. changed its name to Civitas Resources, Inc. Civitas is an independent Denver-based exploration and production company focused on the acquisition, development, and production of oil and associated liquids-rich natural gas in the Rocky Mountain region, primarily in the Wattenberg Field of the Denver-Julesburg Basin (“DJ Basin”).
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements include the accounts of the Company and have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) for interim financial information, the instructions to Quarterly Report on Form 10-Q, and Regulation S-X. Accordingly, pursuant to such rules and regulations, certain notes and other financial information included in audited financial statements have been condensed or omitted. In the opinion of management, all adjustments, consisting of normal recurring adjustments considered necessary for a fair presentation of interim financial information, have been included. All significant intercompany balances and transactions have been eliminated in consolidation.
The December 31, 2021 unaudited condensed consolidated balance sheet data has been derived from the audited consolidated financial statements contained in our Annual Report on Form 10-K for the year ended December 31, 2021 (“2021 Form 10-K”), but does not include all disclosures, including notes required by GAAP. As such, this quarterly report should be read in conjunction with the audited consolidated financial statements and related notes included in our 2021 Form 10-K. In connection with the preparation of the unaudited condensed consolidated financial statements, the Company evaluated subsequent events after the balance sheet date of September 30, 2022, through the filing date of this report. The results of operations for the three and nine months ended September 30, 2022 are not necessarily indicative of the results that may be expected for the full year or any other future period.
Significant Accounting Policies
The significant accounting policies followed by the Company are set forth in Note 1 - Summary of Significant Accounting Policies in the 2021 Form 10-K and are supplemented by the notes to the unaudited condensed consolidated financial statements included in this report.
Recently Issued and Adopted Accounting Standards
In March 2020, the FASB issued Update No. 2020-04, Reference Rate Reform (Topic 848), which provides temporary optional guidance to companies impacted by the transition away from the LIBOR. The amendment provides certain expedients and exceptions to applying GAAP in order to lessen the potential accounting burden when contracts, hedging relationships, and other transactions that reference LIBOR as a benchmark rate are modified. Further, in January 2021, the FASB issued Update No. 2021-01, Reference Rate Reform (Topic 848), which clarifies the scope of Topic 848 so that derivatives affected by the discounting transition are explicitly eligible for certain optional expedients and exceptions in Topic 848. These amendments are effective upon issuance and expire on December 31, 2022. We do not anticipate a material impact on the Company’s consolidated financial statements or related disclosures.
There are no other accounting standards applicable to the Company that would have a material effect on the Company’s financial statements and disclosures that have been issued but not yet adopted by the Company as of September 30, 2022, and through the filing date of this report.
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NOTE 2 - ACQUISITIONS AND DIVESTITURES
All mergers and acquisitions disclosed were accounted for under the acquisition method of accounting for business combinations. Accordingly, we conducted assessments of the net assets acquired and recognized amounts for identifiable assets acquired and liabilities assumed at their estimated acquisition date fair values, while transaction and integration costs associated with the acquisition were expensed as incurred. The fair value measurements of assets acquired and liabilities assumed were based on inputs that are not observable in the market, and therefore represent Level 3 inputs. The fair values of crude oil and natural gas properties and asset retirement obligations were measured using valuation techniques that convert future cash flows to a single discounted amount. Significant inputs to the valuation of proved oil properties include estimates of reserves, future operating and development costs, future commodity prices, estimated future cash flows, and a market-based weighted-average cost of capital. These inputs required significant judgments and estimates by management at the time of the valuation.
HighPoint Merger
On April 1, 2021, Civitas acquired HighPoint Resources Corporation (“HighPoint”), pursuant to the terms of HighPoint’s prepackaged plan of reorganization under Chapter 11 of the United States Bankruptcy Code (the “Prepackaged Plan”), which was confirmed by the U.S. Bankruptcy Court for the District of Delaware (the “HighPoint Merger”). Each eligible share of common stock of HighPoint issued and outstanding was automatically converted into the right to receive 0.11464 shares of common stock of Civitas (“Civitas Common Stock”). As a result, Civitas issued 487,952 shares of Civitas Common Stock to former HighPoint stockholders.
Concurrently with the HighPoint Merger and pursuant to the Prepackaged Plan, in exchange for the aggregate principal amount outstanding of HighPoint Operating Corporation's senior notes, Civitas issued an aggregate of (i) 9,314,214 shares of Civitas Common Stock and (ii) $100.0 million aggregate principal amount of 7.5% Senior Notes due 2026 (“7.5% Senior Notes”). Please refer to Note 5 - Long-Term Debt for further discussion of the 7.5% Senior Notes.
Total merger consideration transferred under the HighPoint Merger was $474.9 million.
Extraction Merger
On November 1, 2021, Civitas completed its merger with Extraction Oil & Gas, Inc. (“Extraction”), pursuant to the terms of the related Agreement and Plan of Merger (the “Extraction Merger Agreement”) (the “Extraction Merger”). Pursuant to the Extraction Merger Agreement, each share of common stock of Extraction (the “Extraction Common Stock”) issued and outstanding was converted into the right to receive 1.1711 shares of Civitas Common Stock for each share of Extraction Common Stock (the “Extraction Exchange Ratio”).
Additionally, each unvested award of restricted stock units issued pursuant to Extraction’s 2021 Long Term Incentive Plan (the “Extraction Equity Plan”) was assumed by Civitas and converted into a number of restricted stock units with respect to shares of Civitas Common Stock (such restricted stock unit, a “Converted RSU”) using the Extraction Exchange Ratio. Each Converted RSU continued to be governed by the same terms and conditions that were applicable immediately prior to the Extraction Merger closing date.
Further, Civitas executed warrant agreements to replace the warrants previously issued by Extraction consisting of (i) 3.4 million Tranche A warrants to purchase Civitas Common Stock at an exercise price of $91.91 in whole or in part, at any time or from time to time on or before January 20, 2025, issued pursuant to a warrant agreement by and between Civitas and Broadridge Corporate Issuer Solutions, Inc., as warrant agent (“Broadridge”), dated as of November 1, 2021 (the “Tranche A Warrants”), and (ii) 1.7 million Tranche B warrants to purchase Civitas Common Stock at an exercise price of $104.45 in whole or in part, at any time or from time to time on or before (i) January 20, 2026, issued pursuant to a warrant agreement by and between Civitas and Broadridge, as warrant agent, dated as of November 1, 2021 (the “Tranche B Warrants,” and, together with the Tranche A Warrants, the “Warrants”). A holder of a warrant, in its capacity as such, is not entitled to any rights whatsoever as a stockholder of Civitas, except to the extent expressly provided in the applicable warrant agreement. Please refer to Note 8 - Fair Value Measurements for further discussion.
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Total merger consideration transferred under the Extraction Merger was $1.8 billion. The following table presents the preliminary purchase price allocation of the assets acquired and the liabilities assumed in the Extraction Merger:
Preliminary Purchase Price Allocation (in thousands)
Assets Acquired
Cash and cash equivalents$106,360 
Accounts receivable - oil and natural gas sales119,585 
Accounts receivable - joint interest and other33,054 
Prepaid expenses and other3,044 
Inventory of oilfield equipment9,291 
Derivative assets5,834 
Proved properties1,876,014 
Unproved properties193,400 
Other property and equipment, net of accumulated depreciation40,068 
Right-of-use assets6,883 
Deferred income tax assets49,194 
Other noncurrent assets4,248 
Total assets acquired$2,446,975 
Liabilities Assumed
Accounts payable and accrued expenses$90,353 
Production taxes payable63,572 
Oil and natural gas revenue distribution payable170,002 
Income tax payable14,000 
Lease liability6,883 
Derivative liability100,474 
Ad valorem taxes87,071 
Asset retirement obligations68,741 
Other noncurrent liabilities1,750 
Total liabilities assumed602,846 
Net assets acquired$1,844,129 
The valuation of proved properties for the Extraction Merger applied a market-based weighted-average cost of capital rate of approximately 10%. The purchase price allocation is preliminary, and Civitas is continuing to assess the fair values of certain of the assets acquired and liabilities assumed in the Extraction Merger as adjustments may be made to these measurements in subsequent periods (up to one year from the acquisition date). In particular, assets and liabilities subject to potential adjustment, in amounts that could be material to the pro forma financial statements, include, but are not limited to, proved properties, unproved properties, and accounts payable and accrued expenses related to our continued assessment over the application of lease contracts and related deductions. We cannot reasonably estimate the impact of such conclusions as there is still a high level of uncertainty regarding the potential outcomes of the assessment.
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Crestone Peak Merger
On November 1, 2021, Civitas completed its merger with CPPIB Crestone Peak Resources America Inc. (“Crestone Peak”), pursuant to the terms of the related Agreement and Plan of Merger (the “Crestone Merger Agreement”) (the “Crestone Peak Merger”). Pursuant to the Crestone Merger Agreement, the shares of Crestone Peak common stock were converted into the right to collectively receive 22.5 million shares of Civitas Common Stock, representing total merger consideration of $1.3 billion.
The following table presents the preliminary purchase price allocation of the assets acquired and the liabilities assumed in the Crestone Peak Merger:
Preliminary Purchase Price Allocation (in thousands)
Assets Acquired
Cash and cash equivalents$67,505 
Accounts receivable - oil and natural gas sales81,340 
Accounts receivable - joint interest and other9,917 
Prepaid expenses and other2,929 
Inventory of oilfield equipment11,951 
Proved properties1,797,814 
Unproved properties453,321 
Other property and equipment, net of accumulated depreciation7,980 
Right-of-use assets7,934 
Total assets acquired$2,440,691 
Liabilities Assumed
Accounts payable and accrued expenses$134,791 
Production taxes payable52,435 
Oil and natural gas revenue distribution payable83,950 
Lease liability7,934 
Derivative liability338,383 
Credit facility280,000 
Ad valorem taxes66,913 
Deferred income tax liabilities125,086 
Asset retirement obligations88,949 
Total liabilities assumed1,178,441 
Net assets acquired$1,262,250 
The valuation of proved properties for the Crestone Peak Merger applied a market-based weighted-average cost of capital rate of approximately 10%. The purchase price allocation is preliminary, and Civitas is continuing to assess the fair values of certain of the assets acquired and liabilities assumed in the Crestone Peak Merger as adjustments may be made to these measurements in subsequent periods (up to one year from the acquisition date). In particular, assets and liabilities subject to potential adjustment, in amounts that could be material to the pro forma financial statements, include, but are not limited to, proved properties, unproved properties, and accounts payable and accrued expenses related to our continued assessment over the application of lease contracts and related deductions. We cannot reasonably estimate the impact of such conclusions as there is still a high level of uncertainty regarding the potential outcomes of the assessment.
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Revenue and earnings of the acquiree
The amount of revenue of HighPoint included in our statement of operations during the three and nine months ended September 30, 2021 was $84.7 million and $159.4 million, respectively, as the HighPoint Merger was completed on April 1, 2021. There was no revenue included in our statement of operations during the three and nine months ended September 30, 2021 related to the Extraction and Crestone Peak mergers as both mergers were completed after September 30, 2021. We determined that disclosing the amount of HighPoint, Extraction, and Crestone Peak related earnings included in the unaudited condensed consolidated statements of operations and comprehensive income (“statements of operations”) is impracticable, as the operations from these mergers were integrated into the operations of the Company from the dates of each acquisition.
Supplemental pro forma financial information
The following unaudited pro forma financial information (in thousands, except per share amounts) represents a summary of the condensed consolidated results of operations for the three and nine months ended September 30, 2021, assuming the HighPoint, Extraction, and Crestone Peak mergers had been completed as of January 1, 2020. The pro forma financial information is not necessarily indicative of the results of operations that would have been achieved if the mergers had been effective as of this date, or of future results, and includes certain non-recurring pro forma adjustments that were directly attributable to the business combinations (in thousands, except per share amounts).
Three Months Ended September 30, 2021Nine Months Ended September 30, 2021
Total revenue$619,913 $1,713,023 
Net income103,485 859,756 
Net income per common share - basic$1.23 $10.20 
Net income per common share - diluted$1.22 $10.15 
Bison Acquisition
On March 1, 2022, the Company completed the acquisition of privately held DJ Basin operator Bison Oil & Gas II, LLC (“Bison”) for merger consideration of approximately $280.4 million (the “Bison Acquisition”). Net assets acquired under the preliminary purchase price allocation were $294.0 million and consequently resulted in a bargain purchase gain of $13.6 million. Because of the immateriality of the Bison Acquisition, the related revenue and earnings, supplemental pro forma financial information, and detailed purchase price allocation are not disclosed.
Merger transaction costs
Merger transaction costs related to the aforementioned mergers and acquisitions are accounted for separately from the assets acquired and liabilities assumed and are included in merger transaction costs in the statements of operations. The Company incurred merger transaction costs of $1.8 million and $5.6 million during the three months ended September 30, 2022 and 2021, respectively, and $23.8 million and $27.1 million during the nine months ended September 30, 2022 and 2021, respectively.
Acquisition of additional working interests in Company-operated wells
On July 5, 2022, the Company entered into and closed on Purchase and Sale Agreements to acquire additional working interests in certain Company-operated wells for cash consideration of $81.6 million, subject to customary purchase price adjustments.
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NOTE 3 - REVENUE RECOGNITION
Oil, natural gas, and natural gas liquid (“NGL”) sales revenue presented within the accompanying statements of operations is reflective of the revenue generated from contracts with customers. Revenue attributable to each identified revenue stream is disaggregated below (in thousands):
Three Months Ended September 30,Nine Months Ended September 30,
2022202120222021
Operating net revenues:
Oil sales$653,548 $131,360 $1,981,308 $297,515 
Natural gas sales216,917 24,764 535,918 53,064 
NGL sales137,486 33,839 459,899 69,578 
Oil, natural gas, and NGL sales$1,007,951 $189,963 $2,977,125 $420,157 
The Company recognizes revenue from the sale of produced oil, natural gas, and NGL at the point in time when control of produced oil, natural gas, or NGL volumes transfer to the purchaser, which may differ depending on the applicable contractual terms. The Company considers the transfer of control to have occurred when the purchaser has the ability to direct the use of, and obtain substantially all of the remaining benefits from, the oil, natural gas, or NGL production. Transfer of control dictates the presentation of gathering, transportation, and processing expenses within the accompanying statements of operations. Gathering, transportation, and processing expenses incurred by the Company prior to the transfer of control are recorded gross within the gathering, transportation, and processing line item on the accompanying statements of operations. Conversely, gathering, transportation, and processing expenses incurred by the Company subsequent to the transfer of control are recorded net within the oil, natural gas, and NGL sales line item on the accompanying statements of operations. Please refer to Note 1 - Summary of Significant Accounting Policies in the 2021 Form 10-K for more information regarding the types of contracts under which oil, gas, and NGL sales revenue is generated.
The Company records revenue in the month production is delivered and control is transferred to the purchaser. However, settlement statements and payment may not be received for 30 to 60 days after the date production is delivered and control is transferred. Until such time settlement statements and payment are received, the Company records a revenue accrual based on, amongst other factors, an estimate of the volumes delivered at estimated prices as determined by the applicable contractual terms. The Company records the differences between its estimates and the actual amounts received for product sales in the month in which payment is received from the purchaser. For the three and nine months ended September 30, 2022 and 2021, revenue recognized in the reporting period related to performance obligations satisfied in prior reporting periods was insignificant. As of September 30, 2022 and December 31, 2021, the Company's receivables from contracts with customers were $337.9 million and $362.3 million, respectively.
NOTE 4 - ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses contain the following as of the dates indicated (in thousands):
 September 30, 2022December 31, 2021
Accounts payable trade$15,885 $19,623 
Accrued drilling and completion costs130,397 129,430 
Accrued lease operating expense and gathering, transportation, and processing83,793 19,077 
Accrued general and administrative expense15,927 21,163 
Accrued merger transaction costs— 1,475 
Accrued oil and NGL hedging19,406 26,601 
Accrued interest expense10,509 6,303 
Accrued settlement4,997 20,791 
Other accrued expenses7,806 1,725 
Total accounts payable and accrued expenses$288,720 $246,188 
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NOTE 5 - LONG-TERM DEBT
5.0% Senior Notes
On October 13, 2021, the Company issued $400.0 million aggregate principal amount of 5.0% Senior Notes due 2026 (the “5.0% Senior Notes”) pursuant to an indenture (the “5.0% Indenture”), among Civitas Resources, Wells Fargo Bank, National Association, as trustee, and the guarantors party thereto. The Company used the net proceeds and cash on hand to repay all borrowings under the Credit Facility (as defined below), all borrowings outstanding under the Crestone Peak credit facility, and for general corporate purposes. Interest accrues at the rate of 5.0% per annum and is payable semiannually in arrears on April 15 and October 15 of each year. Payments commenced on April 15, 2022.
The 5.0% Indenture contains covenants that limit, among other things, the Company’s ability to: (i) incur or guarantee additional indebtedness; (ii) create liens securing indebtedness; (iii) pay dividends on or redeem or repurchase stock or subordinated debt; (iv) make specified types of investments and acquisitions; (v) enter into or permit to exist contractual limits on the ability of the Company’s subsidiaries to pay dividends to Civitas Resources; (vi) enter into transactions with affiliates; and (vii) sell assets or merge with other companies. These covenants are subject to a number of important limitations and exceptions. The Company was in compliance with all covenants under the 5.0% Indenture as of September 30, 2022, and through the filing of this report. In addition, certain of these covenants will be terminated before the 5.0% Senior Notes mature if at any time no default or event of default exists under the 5.0% Indenture and the 5.0% Senior Notes receive an investment-grade rating from at least two ratings agencies. The 5.0% Indenture also contains customary events of default.
At any time prior to October 15, 2023, the Company may redeem the 5.0% Senior Notes, in whole or in part, at a redemption price equal to the sum of (i) the principal amount thereof, plus (ii) the “make-whole” premium at the redemption date, plus (iii) accrued and unpaid interest, if any. On or after October 15, 2023, the Company may redeem all or part of the 5.0% Senior Notes at redemption prices (expressed as percentages of the principal amount redeemed) equal to (i) 102.5% for the twelve-month period beginning on October 15, 2023; (ii) 101.25% for the twelve-month period beginning on October 15, 2024; and (iii) 100.0% for the twelve-month period beginning October 15, 2025 and at any time thereafter, plus accrued and unpaid interest, if any.
The Company may redeem up to 35% of the aggregate principal amount of the 5.0% Senior Notes at any time prior to October 15, 2023 with an amount not to exceed the net cash proceeds from certain equity offerings at a redemption price equal to 105.0% of the principal amount of the 5.0% Senior Notes redeemed, plus accrued and unpaid interest, if any, provided, however, that (i) at least 65.0% of the aggregate principal amount of the 5.0% Senior Notes originally issued on the issue date (but excluding 5.0% Senior Notes held by the Company) remains outstanding immediately after the occurrence of such redemption (unless all such 5.0% Senior Notes are redeemed substantially concurrently) and (ii) the redemption occurs within 180 days after the date of the closing of such equity offering.
The 5.0% Senior Notes are fully and unconditionally guaranteed on a senior unsecured basis by all of Civitas' existing subsidiaries.
7.5% Senior Notes
In conjunction with the HighPoint Merger, the Company issued $100.0 million aggregate principal amount of 7.5% Senior Notes due 2026 (the “7.5% Senior Notes”) pursuant to an indenture, dated April 1, 2021 , by and among Civitas Resources, U.S. Bank National Association, as trustee, and the guarantors party thereto. Interest accrued at the rate of 7.5% per annum and was payable semiannually in arrears on April 30 and October 31 of each year. On May 1, 2022, the Company redeemed all of the issued and outstanding 7.5% Senior Notes at 100.0% of their aggregate principal amount, plus accrued and unpaid interest thereon to the redemption date.
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The 7.5% Senior Notes and 5.0% Senior Notes are recorded net of unamortized deferred financing costs within the senior notes line item on the accompanying balance sheets. There were no discounts or premiums associated with either issuance. The tables below present the related carrying values as of September 30, 2022 and December 31, 2021 (in thousands):
As of September 30, 2022
Principal AmountUnamortized Deferred Financing CostsNet Amount
5.0% Senior Notes
$400,000 $7,103 $392,897 
As of December 31, 2021
Principal AmountUnamortized Deferred Financing CostsNet Amount
7.5% Senior Notes
$100,000 $— $100,000 
5.0% Senior Notes
$400,000 $8,290 $391,710 
Credit Facility
The Company is party to a reserve-based revolving facility, as the borrower, with JPMorgan Chase Bank, N.A. (“JPMorgan”), as the administrative agent, and a syndicate of financial institutions (the “Lender Syndicate”), as lenders, that has an aggregate maximum commitment amount of $2.0 billion and matures on November 1, 2025 (with all subsequent amendments, the “Credit Facility” or the “Credit Agreement”).
The Credit Facility is guaranteed by all restricted domestic subsidiaries of the Company, and is secured by first priority security interests on substantially all assets, including a mortgage on at least 90% of the total value of the proved properties evaluated in the most recently delivered reserve reports prior to the amendment effective date, including any engineering reports relating to the oil and natural gas properties of the restricted domestic subsidiaries of the Company, subject to customary exceptions.
The Credit Facility contains customary representations and affirmative covenants. The Credit Facility also contains customary negative covenants, which, among other things, and subject to certain exceptions, include restrictions on (i) liens, (ii) indebtedness, guarantees and other obligations, (iii) restrictions in agreements on liens and distributions, (iv) mergers or consolidations, (v) asset sales, (vi) restricted payments, (vii) investments, (viii) affiliate transactions, (ix) change of business, (x) foreign operations or subsidiaries, (xi) name changes, (xii) use of proceeds, letters of credit, (xiii) gas imbalances, (xiv) hedging transactions, (xv) additional subsidiaries, (xvi) changes in fiscal year or fiscal quarter, (xvii) operating leases, (xviii) prepayments of certain debt and other obligations, (xix) sales or discounts of receivables, (xx) dividend payment thresholds, and (xi) cash balances. 
In addition, the Company is subject to certain financial covenants under the Credit Facility, as tested on the last day of each fiscal quarter, including, without limitation, (a) a maximum ratio of the Company's consolidated indebtedness (subject to certain exclusions) to earnings before interest, income taxes, depreciation, depletion, and amortization, exploration expense, and other non-cash charges (“permitted net leverage ratio”) of 3.00 to 1 and (b) a current ratio, as defined in the agreement, inclusive of the unused commitments then available to be borrowed, to not be less than 1.00 to 1. The Company was in compliance with all covenants under the Credit Facility as of September 30, 2022 and through the filing of this report.
On April 20, 2022, the Company entered into an amendment to the Credit Agreement that increased the Company’s borrowing base from $1.0 billion to $1.7 billion and increased the aggregate elected commitments from $800.0 million to $1.0 billion.
In addition, this amendment resulted in the removal and replacement of LIBOR with the Secured Overnight Financing Rate (“SOFR”) as a mechanism to determine interest for borrowings made under the Credit Facility using a term-specific SOFR. As a result, borrowings under the Credit Facility bear interest at a per annum rate equal to, at the option of the Company, either (i) the Alternate Base Rate (“ABR”, for ABR Revolving Credit Loans) plus the applicable margin, or (ii) the term-specific SOFR plus the applicable margin. ABR is established as a rate per annum equal to the greatest of (a) the rate of interest publicly announced by JPMorgan as its prime rate, (b) the applicable rate of interest published by the Federal Reserve Bank of New York plus 0.5%, or (c) the term-specific SOFR plus 1.0%, subject to a 1.50% floor plus the applicable margin of 1.00% to 2.00%, based on the utilization of the Credit Facility. Term-specific SOFR is based on one-, three-, or six-month terms as selected by the Company and is subject to a 0.50% floor plus the applicable margin of 2.00% to 3.00%, based on the utilization of the Credit Facility. Interest on borrowings that bear interest at the SOFR shall be payable on the last day of the applicable interest period selected by the Company, and interest on borrowings that bear interest at the ABR shall be payable quarterly in arrears. 
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On October 27, 2022, and as part of the regularly scheduled, semi-annual borrowing base redetermination under the Credit Facility, the Company’s aggregate elected commitments of $1.0 billion were reaffirmed and borrowing base was increased from $1.7 billion to $1.85 billion. The next scheduled borrowing base redetermination date is set to occur in April 2023.
The following table presents the outstanding balance, total amount of letters of credit outstanding, and available borrowing capacity under the Credit Facility as of the dates indicated (in thousands):
October 31, 2022September 30, 2022December 31, 2021
Revolving credit facility
$— $— $— 
Letters of credit12,100 12,156 21,656 
Available borrowing capacity987,900 987,844 778,344 
Total aggregate elected commitments
$1,000,000 $1,000,000 $800,000 
In connection with the amendments to the Credit Facility, the Company capitalized a total of approximately $11.9 million in deferred financing costs. Of the total post-amortization net capitalized amounts, (i) $6.3 million and $7.5 million are presented within the other noncurrent assets line item on the accompanying balance sheets as of September 30, 2022 and December 31, 2021, respectively, and (ii) $3.0 million and $2.7 million are presented within the prepaid expenses and other line item on the accompanying balance sheets as of September 30, 2022 and December 31, 2021, respectively.
Interest Expense
For the three months ended September 30, 2022 and 2021, the Company incurred interest expense of $7.5 million and $3.7 million and capitalized zero and $0.6 million, respectively. For the nine months ended September 30, 2022 and 2021, the Company incurred interest expense of $24.7 million and $7.9 million and capitalized zero and $1.2 million, respectively.
NOTE 6 - COMMITMENTS AND CONTINGENCIES
Legal Proceedings 
From time to time, the Company is involved in various commercial and regulatory claims, litigation, and other legal proceedings that arise in the ordinary course of its business. The Company assesses these claims in an effort to determine the degree of probability and range of possible loss for potential accrual in its consolidated financial statements. In accordance with authoritative accounting guidance, an accrual is recorded for a loss contingency when its occurrence is probable and damages can be reasonably estimated based on the most likely anticipated outcome or the minimum amount within a range of possible outcomes. Because legal proceedings are inherently unpredictable and unfavorable resolutions could occur, assessing contingencies is highly subjective and requires judgments about uncertain future events. When evaluating contingencies, the Company may be unable to provide a meaningful estimate due to a number of factors, including the procedural status of the matter in question, the presence of complex or novel legal theories, and/or the ongoing discovery and development of information important to the matters. The Company regularly reviews contingencies to determine the adequacy of its accruals and related disclosures. No claims have been made, nor is the Company aware of any material uninsured liability which the Company may have, as it relates to any environmental cleanup, restoration, or the violation of any rules or regulations.
Upon closing of the HighPoint, Extraction, and Crestone Peak mergers and Bison Acquisition, the Company assumed all obligations, whether asserted or unasserted, of HighPoint, Extraction, Crestone Peak, and Bison. As of the filing date of this report, there were no probable, material pending, or overtly threatened legal actions against the Company of which it was aware, other than the following:
Boulder County. In prior periods, there was ongoing litigation between Boulder County and Extraction which has been previously disclosed as having the potential to prevent oil and gas operations for the development of minerals contained within Boulder County, Colorado. Boulder County had initiated suit in District Court for Boulder County that was primarily a contract case, where the relevant contracts were the conservation easement over the Blue Paintbrush location, Extraction’s Surface Use Agreement for the Blue Paintbrush location, and the leases that Boulder owns within the Blue Paintbrush drilling and spacing unit. Boulder sought invalidation of these leases in the litigation. This litigation has been resolved as to all substantive issues, and the Company is awaiting final dismissal of the matter by the trial court.
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In May 2022, the Company became aware that Boulder County is alleging new legal theories and requesting termination of the leases previously at issue in the Blue Paintbrush litigation. No formal action has been initiated, but the Company intends to vigorously defend against all claims alleged by Boulder County. If an action is brought by Boulder County, an adverse outcome in any such litigation could result in the Company failing to meet its development objectives in Blue Paintbrush.
Enforcement. Disclosure of certain environmental matters is required when a governmental authority is a party to the proceedings and the proceedings involve potential monetary sanctions that the Company believes could exceed $0.3 million. The Company has received Notices of Alleged Violations (“NOAV”) from the COGCC alleging violations of various Colorado statutes and COGCC regulations governing oil and gas operations. The Company has further received notices from the Colorado Air Pollution Control Division. The Company continues to engage in discussions regarding resolution of the alleged violations. As of September 30, 2022 and December 31, 2021, the Company has accrued approximately $1.0 million associated with the NOAVs and Colorado Air Pollution Control Division notices, as they are probable and reasonably estimable.
Commitments
Firm Transportation Agreements. The Company is party to one firm pipeline transportation contract to provide a guaranteed outlet for production on an oil pipeline system. The contract requires the Company to pay minimum volume transportation charges on 12,500 barrels (“Bbl”) per day through April 2025, regardless of the amount of pipeline capacity utilized by the Company. The aggregate financial commitment fee over the remaining term was $37.7 million as of September 30, 2022. The Company expects to utilize most, if not all, of the firm capacity on the oil pipeline system.
Minimum Volume Agreement - Oil. The Company is party to a purchase agreement to deliver fixed and determinable quantities of crude oil. Under the terms of the agreement, the Company is required to make periodic deficiency payments for any shortfalls in delivering the minimum gross volume commitment of 16,000 Bbls per day over a term ending in 2023. The aggregate financial commitment fee over the remaining term is $12.0 million as of September 30, 2022. Upon notifying the purchaser at least twelve months prior to the expiration date of the agreement, the Company may elect to extend the term of the agreement for up to three additional years. The Company has not, and does not, expect to incur any deficiency payments.
Minimum Volume Agreement - Gas and Other. The Company is party to a long-term gas gathering and processing agreement (the “Gathering Agreement”) with a third-party midstream provider over a term ending in 2029 with an annual minimum volume commitment of 13.0 billion cubic feet of natural gas. The Gathering Agreement also includes a commitment to sell take-in-kind NGLs from other processing agreements of 7,500 Bbls a day through 2026 with the ability to roll forward up to a 10% shortfall in a given month to the subsequent month. The aggregate financial commitment over the remaining term is $141.1 million as of September 30, 2022, which fluctuates with commodity prices as this is a value-based percentage of proceeds sales contract. Based on current projections, the Company may incur approximately $59.0 million of shortfall payments under the Gathering Agreement during the remaining term of approximately seven years; however, the Company is actively engaging alternative strategies to reduce any potential contract deficiencies incurred in future periods.
Additionally, the Company is also party to a gas gathering and processing agreement with several third-party producers and a third-party midstream provider to deliver to two different plants over terms that end in August 2025 and July 2026. The Company’s share of these commitments requires an incremental 51.5 and 20.6 million cubic feet of natural gas (“MMcf”) per day, respectively, over a baseline volume of 65 MMcf per day for a period of seven years following the in-service dates of the plants. The Company may be required to pay a shortfall fee for any incremental volume deficiencies under these commitments. These contractual obligations can be reduced by the Company’s proportionate share of the collective volumes delivered to the plants by other incremental third-party volumes available to the midstream provider that are in excess of the total commitments. Because of the third-party producer reduction provision, we believe that the aggregate financial commitment fee over the remaining term is zero as of September 30, 2022. The Company has not, and does not, expect to incur any deficiency payments.
The Company is also party to additional individually immaterial agreements that require the Company to pay a fee associated with the minimum volumes regardless of the amount delivered. The aggregate financial commitment fee over the remaining term for these contracts was $10.7 million as of September 30, 2022.
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The minimum annual payments under these agreements for the next five years as of September 30, 2022 are presented below (in thousands):
Firm Transportation
Minimum Volume(1)
Remainder of 2022
$3,680 $11,764 
202314,600 33,192 
202414,640 23,582 
20254,800 20,688 
2026— 19,025 
2027 and thereafter— 55,578 
Total$37,720 $163,829 
___________________________
(1)The above calculation is based on the minimum volume commitment schedule (as defined in the relevant agreement) and applicable differential fees.
Other commitments. The Company is party to a drilling commitment agreement with a third-party midstream provider such that the Company is required to drill a total of 106 horizontal wells, whereby a minimum number of wells out of the total must be drilled by a deadline occurring every two years over a period ending December 31, 2026. The drilling commitment agreement provides for, among other things, a number of specifications such as minimum consecutive days of production, well performance, and lateral length. Wells operated by others can satisfy this commitment, subject to limitations. If the Company were to fail to complete the wells by the applicable deadline, it would be in breach of the agreement and the third-party midstream provider could attempt to assert damages against Civitas and its affiliates. As of the date of filing, the Company cannot reasonably estimate how much, if any, damages will be paid.
Refer to Note 13 - Leases for lease commitments.
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NOTE 7 - STOCK-BASED COMPENSATION
Long Term Incentive Plans
In April 2017, the Company adopted the 2017 Long Term Incentive Plan (“2017 LTIP”), which provides for the issuance of restricted stock units, performance stock units, and stock options, and reserved 2,467,430 shares of common stock. In June 2021, the Company adopted the 2021 Long Term Incentive Plan (“2021 LTIP”), which reserved an incremental 700,000 shares of common stock to those previously reserved under the 2017 LTIP. Finally, pursuant to the Extraction Merger Agreement, Civitas assumed the Extraction Equity Plan, which reserved 3,305,080 shares of common stock now issuable by Civitas. The 2017 LTIP, 2021 LTIP, and Extraction Equity Plan are collectively referred to herein as the “LTIP”.
In November 2021, the Company adopted a non-employee director compensation program (the “Director Compensation Program”), which provides that non-employee directors will receive grants of deferred stock units (“DSUs”). In connection with the adoption of the Director Compensation Program, the Company adopted a First Amendment to the 2021 LTIP that, among other things, allows the Company to determine whether dividend rights granted pursuant to the LTIP should be reinvested, paid currently or paid in accordance with the terms of an associated award.
The Company records compensation expense associated with the issuance of awards under the LTIP on a straight-line basis over the vesting period based on the fair value of the awards as of the date of grant within general and administrative expense. The following table outlines the compensation expense recorded by type of award (in thousands):
Three Months Ended September 30,
Nine Months Ended September 30,
2022202120222021
Restricted and deferred stock units$5,809 $1,561 $14,991 $4,628 
Performance stock units4,435 728 9,478 1,468 
Total stock-based compensation$10,244 $2,289 $24,469 $6,096 
As of September 30, 2022, unrecognized compensation expense related to the awards granted under the LTIP will be amortized through the relevant periods as follows (in thousands):
Unrecognized Compensation ExpenseFinal Year of Recognition
Restricted and deferred stock units$21,047 2025
Performance stock units17,828 2024
Total unrecognized stock-based compensation$38,875 
Restricted Stock Units (“RSUs”) and Deferred Stock Units
The Company typically grants RSUs to officers, directors, and employees and DSUs to directors as part of its LTIP. Each RSU and DSU represents a right to receive one share of the Company's common stock upon settlement of the award at the end of the specified vesting period.
RSUs generally vest and settle either over a (i) one-year vesting period, with the entire grant vesting and settling on the anniversary date or (ii) three-year vesting period, with one-third of the total grant vesting and settling on each anniversary date. DSUs generally vest in quarterly installments over a one-year period following the grant date. DSUs are settled in shares of the Company's common stock upon the director’s separation of service from the Board. The fair value of RSUs and DSUs is equal to the closing price of the Company’s common stock on the date of the grant.
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A summary of the status and activity of non-vested RSUs and DSUs for the nine months ended September 30, 2022 is presented below:
 RSUs and DSUsWeighted-Average Grant-Date Fair Value
Non-vested, beginning of year815,062 $42.18 
Granted565,578 51.16 
Vested(628,363)42.38 
Forfeited(56,764)39.31 
Non-vested, end of period695,513 $49.54 
The fair value of the RSUs and DSUs granted under the LTIP during the nine months ended September 30, 2022 was $28.9 million.
Performance Stock Units (“PSUs”)
The Company grants PSUs to officers as part of its LTIP. The number of shares of the Company’s common stock issued to settle PSUs ranges from zero to two times the number of PSUs granted and is determined based on performance achievement against certain criteria over a three-year performance period. PSUs generally vest and settle on the third anniversary of the date of the grant.
Performance achievement is determined based on one to two criteria. The first criterion is based on either, or a combination of, the Company’s absolute and relative total shareholder return (“TSR”) over the performance period. Absolute TSR is determined based upon the performance of the Company's common stock over the performance period relative to the price of the Company's common stock at the grant date. For awards with a relative TSR component, the Company's absolute TSR is compared with the absolute TSRs of a group of peer companies over the performance period. The absolute TSR for the Company and each of the peer companies is determined by dividing (A) (i) the volume-weighted average share price for the last 30 trading days of the performance period, minus (ii) the volume-weighted average share price for the 30 trading days preceding the beginning of the performance period, plus (iii) dividends paid by (B) the volume-weighted average share price for the 30 trading days preceding the beginning of the performance period. The second criterion, if applicable, is based on the Company's annual return on average capital employed (“ROCE”) for each year during the three-year performance period.
The total number of PSUs granted under the LTIP was split as follows for the relevant grant years:
202220212020
TSR100 %100 %67 %
ROCE— %— %33 %
As a portion of the 2020 PSUs depend on a performance-based settlement criterion, compensation expense may be adjusted in future periods as the number of units expected to vest increases or decreases based on the Company’s expected ROCE performance.
Of the grant-date fair value, the portion of the PSUs tied to TSR performance required a stochastic process method using a Brownian Motion simulation. A stochastic process is a mathematically defined equation that can create a series of outcomes over time. These outcomes are not deterministic in nature, which means that by iterating the equations multiple times, different results will be obtained for those iterations. In the case of the PSUs tied to TSR performance, the Company could not predict with certainty the path its stock price or the stock prices of its peers would take over the performance period. By using a stochastic simulation, the Company created multiple prospective stock pathways, statistically analyzed these simulations, and ultimately made inferences regarding the most likely path the stock price would take. As such, because future stock prices are stochastic, or probabilistic with some direction in nature, the stochastic method, specifically the Brownian Motion Model, was deemed an appropriate method by which to determine the fair value of the portion of the PSUs tied to TSR performance. Significant assumptions used in this simulation include the Company’s expected volatility, risk-free interest rate based on U.S. Treasury yield curve rates with maturities consistent with the performance period, as well as the volatilities for each of the Company’s peers.
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A summary of the status and activity of non-vested PSUs for the nine months ended September 30, 2022 is presented below:
 
PSUs (1)
Weighted-Average Grant-Date Fair Value
Non-vested, beginning of year319,367 $57.58 
Granted282,224 65.65 
Vested(163,406)40.90 
Forfeited(48,892)49.39 
Expired(41,955)22.77 
Non-vested, end of period347,338 $77.35 
___________________________
(1)The number of awards assumes that the associated performance condition is met at the target amount (multiplier of one). The final number of shares of the Company’s common stock issued may vary depending on the performance multiplier, which ranges from zero to two, depending on the level of satisfaction of the performance condition.
The fair value of the PSUs granted under the LTIP during the nine months ended September 30, 2022 was $18.5 million.
The PSUs tied to TSR performance granted in 2019 vested as of December 31, 2021 and were released during the three months ended March 31, 2022 with a 200% distribution of shares to the recipients. The PSUs tied to ROCE performance granted in 2019 expired, with zero distribution of shares to the recipients. In addition, certain PSUs vested during 2022 pursuant to change in control provisions in the applicable award agreements.
Stock Options
The LTIP allows for the issuance of stock options to the Company's employees at the sole discretion of the Board. Options expire ten years from the grant date unless otherwise determined by the Board.
Stock options are valued using a Black-Scholes Model where expected volatility is based on an average historical volatility of a peer group selected by management over a period consistent with the expected life assumption on the grant date, the risk-free rate of return is based on the U.S. Treasury constant maturity yield on the grant date with a remaining term equal to the expected term of the awards, and the Company’s expected life of stock option awards is derived from the midpoint of the average vesting time and contractual term of the awards.
A summary of the status and activity of non-vested stock options for the nine months ended September 30, 2022 is presented below:
 Stock OptionsWeighted-
Average
Exercise Price
Weighted-Average Remaining Contractual Term (in years)Aggregate Intrinsic Value (in thousands)
Outstanding, beginning of year25,549 $34.36 
Exercised(6,934)34.36 
Forfeited(1,218)34.36 
Outstanding, end of period17,397 $34.36 0.8$401 
Options outstanding and exercisable17,397 $34.36 0.8$401 
The aggregate intrinsic value of options exercised during the nine months ended September 30, 2022 was $0.2 million.
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NOTE 8 - FAIR VALUE MEASUREMENTS
The Company follows authoritative accounting guidance for measuring the fair value of assets and liabilities in its financial statements. This guidance defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Further, this guidance establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available.
The fair value hierarchy is broken down into three levels based on the reliability of the inputs as follows:
Level 1: Quoted prices in active markets for identical assets or liabilities 
Level 2: Quoted prices in active markets for similar assets and liabilities, quoted prices for identical or similar instruments in markets that are not active, and model-derived valuations whose inputs are observable or whose significant value drivers are observable
Level 3: Significant inputs to the valuation model are unobservable
Financial and non-financial assets and liabilities are classified based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the valuation of the fair value of assets and liabilities and their placement within the fair value hierarchy.
Derivatives
The Company uses Level 2 inputs to measure the fair value of oil, gas, and NGL commodity price derivatives. The fair value of the Company's commodity price derivatives is estimated using industry-standard models that contemplate various inputs including, but not limited to, the contractual price of the underlying position, current market prices, forward commodity price curves, volatility factors, time value of money, and the credit risk of both the Company and its counterparties. We validate our fair value estimate by corroborating the original source of inputs, monitoring changes in valuation methods and assumptions, and reviewing counterparty mark-to-market statements and other supporting documentation. Refer to Note 9 - Derivatives for more information regarding the Company’s derivative instruments.
The following tables present the Company’s financial assets and liabilities that were accounted for at fair value on a recurring basis as of September 30, 2022 and December 31, 2021 and their classification within the fair value hierarchy (in thousands):
 As of September 30, 2022
Level 1Level 2Level 3
Derivative assets$— $8,491 $— 
Derivative liabilities$— $177,092 $— 
 As of December 31, 2021
 Level 1Level 2Level 3
Derivative assets$— $3,393 $— 
Derivative liabilities$— $239,763 $— 
Long-Term Debt
The 5.0% Senior Notes are recorded at cost, net of any unamortized deferred financing costs. As of September 30, 2022, the fair value of the 5.0% Senior Notes was $362.8 million. This fair value is based on quoted market prices, and as such, is designated as Level 1 within the fair value hierarchy. The recorded value of the Credit Facility approximates its fair value as it bears interest at a floating rate that approximates a current market rate. Please refer to Note 5 - Long-Term Debt for additional information.
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Warrants
As discussed in Note 2 - Acquisitions and Divestitures, the Company issued warrants in connection with the Extraction Merger. The warrants issued are indexed to the Company’s common stock and are required to be net share settled via a cashless exercise. The Company evaluated the warrants under authoritative accounting guidance and determined that they should be classified as equity instruments. The Company’s share price traded below the exercise price of the warrants and therefore were not exercisable during the three and nine months ended September 30, 2022.
The fair value of the warrants on the issuance date was determined using Level 3 inputs including, but not limited to, volatility, risk-free rate, and dividend yield under the Cox-Ross-Rubinstein binomial option pricing model. The warrants were included as a component of merger consideration and are recorded within additional paid-in capital on the accompanying balance sheets at a fair value of $77.5 million, with no recurring fair value measurement required. There have been no changes to the initial carrying amount of the warrants since issuance.
Acquisitions and Impairments of Proved Properties
We utilize the acquisition method to account for acquisitions of businesses. Pursuant to this method, we allocate the cost of the acquisition, or purchase price, to assets acquired and liabilities assumed based on fair values as of the acquisition date. Proved and unproved properties are valued based on a discounted cash flow approach utilizing Level 3 inputs, including, amongst other things, reserve quantities and classification, pace of drilling plans, future commodity prices, future development and lease operating costs, and discount rates using a market-based weighted average cost of capital determined at the time of the acquisition. When estimating the fair value of unproved properties, additional risk-weighting adjustments are applied to probable and possible reserves. Net derivative liabilities assumed are valued based on Level 2 inputs similar to the Company's other commodity price derivatives.
Whenever events or circumstances indicate that the carrying value of proved properties may not be recoverable, the Company uses Level 3 inputs to measure and record impairment at fair value. There were no proved property impairments during the three and nine months ended September 30, 2022 and 2021.
Impairments of Unproved Properties
Unproved properties are routinely evaluated for continued capitalization or impairment. On a quarterly basis, management assesses undeveloped leasehold costs for impairment by considering, among other things, remaining lease terms, future drilling plans and capital availability to execute such plans, commodity price outlooks, recent operational results, reservoir performance and geology, and estimated acreage value based on prices received for similar, recent acreage transactions by the Company or other market participants. No abandonment and impairment of unproved properties expense was recorded during the three months ended September 30, 2022 and 2021. During the nine months ended September 30, 2022 and 2021, the Company incurred abandonment and impairment of unproved properties expense of $18.0 million and $2.2 million, respectively.
NOTE 9 - DERIVATIVES
The Company periodically enters into commodity derivative contracts to mitigate a portion of its exposure to potentially adverse market changes in commodity prices for its expected future oil, natural gas, and NGL production and the associated impact on cash flows. The Company's commodity derivative contracts consist of swap and collar arrangements as well as Roll Differential swaps. As of September 30, 2022, all derivative counterparties were members of the Credit Facility lender group and all commodity derivative contracts are entered into for other-than-trading purposes. The Company does not designate its commodity derivative contracts as hedging instruments.
In a typical swap arrangement, if the agreed upon published third-party index price (“index price”) is lower than the fixed contract price at the time of settlement, the Company receives the difference between the index price and the fixed contract price. If the index price is higher than the fixed contact price at the time of settlement, the Company pays the difference between the index price and the fixed contract price. In a fixed for floating swap arrangement, if the index price is lower than the fixed contract price at the time of settlement, the Company pays the difference between the index price and the fixed contract price. If the index price is higher than the fixed contact price at the time of settlement, the Company receives the difference between the index price and the fixed contract price.
A typical collar arrangement effectively establishes a floor and ceiling price on contracted volumes through the use of a short call and a long put (“two-way collar”). When the index price is above the ceiling price at the time of settlement, the Company pays the difference between the index price and the ceiling price. When the index price is below the floor price at the time of settlement, the Company receives the difference between the index price and floor price. When the index price is between the floor price and ceiling price, no payment or receipt occurs. A minority of our collar arrangements combine a two-way collar with a short put that holds an exercise price below the floor price (“three-way collar”). In these arrangements, when the index price is below the floor price at the time of settlement, the Company receives the difference between the index price and the floor price, capped at the difference between the floor price and the exercise price of the short put.
The Company has also entered into crude oil swap contracts to fix the differential in pricing between the NYMEX calendar month average and the physical crude oil delivery month (“Roll Differential”) in which the Company pays the periodic variable Roll Differential and receives a weighted-average fixed price differential. The weighted-average differential represents the amount of reduction to NYMEX West Texas Intermediate (“WTI”) prices for the notional volumes covered by the swap contracts.
As of September 30, 2022, the Company had entered into the following commodity price derivative contracts:
Contract Period
Q4 2022Q1 2023Q2 2023Q3 2023Q4 20232024
Oil Derivatives (volumes in Bbl/day and prices in $/Bbls)
Swaps
NYMEX WTI Volumes10,5431,3201,2051,0539841,019
Weighted-Average Contract Price$51.94 $74.29 $73.49 $70.92 $70.61 $66.78 
Swaps (Fixed for Floating) (1)
NYMEX WTI Volumes9,538
Weighted-Average Contract Price$77.55 $— $— $— $— $— 
Two-Way Collars
NYMEX WTI Volumes9,1311,054
Weighted-Average Ceiling Price$67.38 $72.70 $— $— $— $— 
Weighted-Average Floor Price$42.39 $40.00 $— $— $— $— 
Three-Way Collars
NYMEX WTI Volumes1,7211,4361,3021,172143
Weighted-Average Ceiling Price$— $58.75 $57.69 $57.48 $56.49 $56.25 
Weighted-Average Floor Price$— $49.31 $48.10 $47.91 $49.04 $45.00 
Weighted-Average Sold Put Price$— $39.25 $37.70 $37.41 $39.04 $35.00 
Roll Differential Swaps (2)
NYMEX WTI Volumes2,000
Weighted-Average Contract Price$0.22 $— $— $— $— $— 
Natural Gas Derivatives (volumes in MMBtu/day and prices in $/million British thermal units (“MMBtu”))
Swaps
NYMEX HH Volumes57,72047,36846,37446,12045,94724,148
Weighted-Average Contract Price$2.92 $2.65 $2.64 $2.61 $2.60 $2.70 
CIG Volumes10,000
Weighted-Average Contract Price$2.13 $— $— $— $— $— 
Two-Way Collars
NYMEX HH Volumes79,1489,5581,5631,8871,7561,033
Weighted-Average Ceiling Price$3.69 $3.23 $2.78 $2.96 $2.96 $3.05 
Weighted-Average Floor Price$2.60 $2.03 $2.21 $2.34 $2.38 $2.38 
Three-Way Collars
NYMEX HH Volumes127899505303
Weighted-Average Ceiling Price$2.74 $3.19 $3.33 $— $— $3.49 
Weighted-Average Floor Price$2.50 $2.50 $2.50 $— $— $2.50 
Weighted-Average Sold Put Price$2.00 $2.00 $2.00 $— $— $2.00 
NGL Derivatives (volumes in Bbls/day and prices in $/Bbl)
Swaps
OPIS Basket Volumes4,000
Weighted-Average Contract Price$20.22 $— $— $— $— $— 
______________________________
(1) During the third quarter of 2022, the Company entered into fixed for floating swaps to achieve a fixed settlement of $30.71 per Bbl on the majority of its fourth quarter 2022 oil swap positions (weighted-average contract price of $46.84 per Bbl).
(2) The weighted-average differential represents the amount of reduction to NYMEX WTI prices for the notional volumes covered by the swap contracts.


Derivative Assets and Liabilities Fair Value 
The Company’s commodity price derivatives are measured at fair value and are included in the accompanying balance sheets as derivative assets and liabilities. The following table contains a summary of all the Company’s derivative positions reported on the accompanying balance sheets as well as a reconciliation between the gross assets and liabilities and the potential effects of master netting arrangements on the fair value of the Company’s commodity derivative contracts as of the dates indicated (in thousands):
September 30, 2022December 31, 2021
Derivative Assets: 
Commodity contracts - current$5,727 $3,393 
Commodity contracts - noncurrent2,764 — 
Total derivative assets8,491 3,393 
Amounts not offset in the accompanying balance sheets(8,491)(3,393)
Total derivative assets, net$— $— 
Derivative Liabilities:  
Commodity contracts - current$(144,176)$(219,804)
Commodity contracts - long-term(32,916)(19,959)
Total derivative liabilities(177,092)(239,763)
Amounts not offset in the accompanying balance sheets8,491 3,393 
Total derivative liabilities, net$(168,601)$(236,370)
The following table summarizes the components of the derivative gain (loss) presented on the accompanying statements of operations for the periods below (in thousands):
 Three Months Ended September 30,Nine Months Ended September 30,
2022202120222021
Derivative cash settlement loss:
Oil contracts$(67,623)$(19,838)$(307,563)$(41,454)
Gas contracts(66,610)(6,708)(149,485)(9,082)
NGL contracts(9,678)— (35,072)— 
Total derivative cash settlement loss(143,911)(26,546)(492,120)(50,536)
Change in fair value gain (loss)153,192 (9,678)133,258 (83,077)
Total derivative gain (loss)$9,281 $(36,224)$(358,862)$(133,613)

NOTE 10 - ASSET RETIREMENT OBLIGATIONS
The Company recognizes an estimated liability for future costs associated with the abandonment of its oil and gas properties, including facilities requiring decommissioning. A liability for the fair value of an asset retirement obligation and corresponding increase to the carrying value of the related long-lived asset are recorded at the time a well is drilled or acquired, or a facility is constructed. The increase in carrying value is included in the proved properties line item in the accompanying balance sheets. The Company depletes the amount added to proved properties and recognizes expense in connection with the accretion of the discounted liability over the remaining estimated economic lives of the respective long-lived assets. Cash paid to settle asset retirement obligations is included in the cash flows from operating activities section of the accompanying statements of cash flows.
The Company’s estimated asset retirement obligation liability is based on historical experience plugging and abandoning wells, estimated economic lives, estimated plugging and abandonment cost, and regulatory requirements. The liability is discounted using the credit-adjusted risk-free rate estimated at the time the liability is incurred or revised.
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A roll-forward of the Company's asset retirement obligation is as follows (in thousands):
Amount
Balance as of December 31, 2021
$225,315 
Additional liabilities incurred2,718 
Accretion expense12,254 
Liabilities settled(14,720)
Balance as of September 30, 2022
$225,567 
Current portion24,000 
Long-term portion$201,567 
NOTE 11 - EARNINGS PER SHARE
Earnings per basic and diluted share are calculated under the treasury stock method. Basic net income per common share is calculated by dividing net income by the basic weighted-average common shares outstanding for the respective period. Diluted net income per common share is calculated by dividing net income by the diluted weighted-average common shares outstanding, which includes the effect of potentially dilutive securities. Potentially dilutive securities consist of unvested RSUs, DSUs, PSUs as well as outstanding in-the-money stock options and warrants. When the Company recognizes a loss from continuing operations, all potentially dilutive shares are anti-dilutive and are consequently excluded from the calculation of diluted earnings per share.
The Company issues RSUs and DSUs, which represent the right to receive, upon vesting, one share of the Company's common stock. The number of potentially dilutive shares related to unvested RSUs and DSUs is based on the number of shares, if any, that would be issuable at the end of the respective reporting period, assuming that date was the end of the vesting period. The Company issues PSUs, which represent the right to receive, upon settlement of the PSUs, a number of shares of the Company's common stock that ranges from zero to two times the number of PSUs granted on the award date. The number of potentially dilutive shares related to PSUs is based on the number of shares, if any, that would be issuable at the end of the respective reporting period, assuming that date was the end of the performance period applicable to such PSUs. The Company has also issued stock options and warrants, which both represent the right to purchase the Company's common stock at a specified exercise price. The number of potentially dilutive shares related to the stock options and warrants is based on the number of shares, if any, that would be exercisable at the end of the respective reporting period, assuming the date was the end of such stock options' or warrants' term. Stock options and warrants are only dilutive when the average price of the common stock during the period exceeds the exercise price. Please refer to Note 7 - Stock-Based Compensation for additional discussion.
The following table sets forth the calculations of basic and diluted net income per common share (in thousands, except per share amounts):
Three Months Ended September 30,Nine Months Ended September 30,
2022202120222021
Net income$405,752 $40,659 $966,212 $15,221 
Basic net income per common share$4.77 $1.32 $11.37 $0.55 
Diluted net income per common share$4.74 $1.31 $11.30 $0.55 
Weighted-average shares outstanding - basic85,069 30,849 84,968 27,485 
Add: dilutive effect of contingent stock awards485 289 527 354 
Weighted-average shares outstanding - diluted85,554 31,138 85,495 27,839 
There were 109,519 and 115,448 shares that were anti-dilutive for the three months ended September 30, 2022 and 2021, respectively. There were 68,171 and 81,142 shares that were anti-dilutive for the nine months ended September 30, 2022 and 2021, respectively.
The exercise price of the Company's warrants was in excess of the Company's stock price during the three and nine months ended September 30, 2022; therefore, they were excluded from the earnings per share calculation.
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NOTE 12 - INCOME TAXES
Deferred tax assets and liabilities are measured by applying the provisions of enacted tax laws to determine the amount of taxes payable or refundable currently or in future years related to cumulative temporary differences between the tax basis of assets and liabilities and amounts reported in the accompanying balance sheets. The tax effect of the net change in the cumulative temporary differences during each period in the deferred tax assets and liabilities determines the periodic provision for deferred taxes.
The following table outlines the Federal net operating loss (“NOL”) carryforwards acquired and deferred tax assets and liabilities recorded as a result of the mergers that closed in 2021 (in millions):
HighPoint MergerExtraction MergerCrestone Peak Merger
Federal NOL carryforwards$219.0 $479.9 $555.7 
Deferred tax asset (liability)$110.5 $49.2 $(125.1)
Valuation allowance(48.1)— — 
Net$62.4 $49.2 $(125.1)
The Company assesses the recoverability of its deferred tax assets each period by considering whether it is more likely than not that all or a portion of the deferred tax assets will be realized. In making such determination, the Company considers all available (both positive and negative) evidence, including future reversals of temporary differences, tax-planning strategies, projected future taxable income, and results of operations. As a result of the HighPoint Merger, the Company recorded a valuation allowance of $48.1 million during 2021 against certain acquired net operating losses and other tax attributes due to the limitation on realizability caused by the change of ownership provisions of Section 382 of the Code. The net deferred tax liability as of September 30, 2022 was $221.9 million, and the net deferred tax asset as of December 31, 2021 was $22.3 million. Additionally, income tax payable under current liabilities as of September 30, 2022 was $18.9 million. The Company will continue to monitor facts and circumstances in the reassessment of the likelihood that the deferred tax assets will be realized.
Federal income tax expense differs from the amount that would be provided by applying the statutory United States federal income tax rate of 21% to income before income taxes primarily due to the effect of state income taxes, equity-based compensation, and other permanent differences including bargain purchase gain. During the three months ended September 30, 2022 and 2021, the Company recorded income tax expense of $136.3 million and $15.6 million, respectively. During the nine months ended September 30, 2022 and 2021, the Company recorded income tax expense of $312.2 million and $5.2 million, respectively.
The Company had no unrecognized tax benefits as of September 30, 2022 and December 31, 2021. The Company’s management does not believe that there are any new items or changes in facts or judgments that would impact the Company’s tax position taken thus far in 2022.
On August 16, 2022, the Inflation Reduction Act (“IRA”) was signed into law. Among other provisions, the IRA imposes a 15% corporate alternative minimum tax (“Corporate AMT”) for tax years beginning after December 31, 2022, imposes a 1% excise tax on corporate stock repurchases after December 31, 2022, and provides tax incentives to promote various energy efficient initiatives. The Company is evaluating the potential impact of the Corporate AMT on our current income tax expense and income taxes payable; however, we currently do not believe this will materially affect our income taxes paid for the 2023 tax year.

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NOTE 13 - LEASES
The Company’s right-of-use assets and lease liabilities are recognized on the accompanying balance sheets based on the present value of the expected lease payments over the lease term. The following table summarizes the asset classes of the Company’s operating leases (in thousands):
September 30, 2022December 31, 2021
Operating Leases
Field equipment(1)
$18,524 $29,312 
Corporate leases8,956 9,484 
Vehicles 670 1,089 
Total right-of-use asset$28,150 $39,885 
Field equipment(1)
$18,524 $29,312 
Corporate leases9,544 9,870 
Vehicles670 1,089 
Total lease liability$28,738 $40,271 
____________________________
(1) Includes compressors, certain natural gas processing equipment, and other field equipment.
Future commitments by year for the Company’s leases with a lease term of one year or more as of September 30, 2022 are presented in the table below. Such commitments are reflected at undiscounted values and are reconciled to the discounted present value recognized on the accompanying balance sheets as follows (in thousands):
Operating Leases
Remainder of 2022$5,000 
202313,737 
20245,414 
20252,067 
20261,775 
Thereafter2,369 
Total lease payments30,362 
Less: imputed interest(1,624)
Total lease liability$28,738 



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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in our 2021 Form 10-K, as well as the unaudited condensed consolidated financial statements and notes thereto included in this Quarterly Report on Form 10-Q.
Executive Summary
We are an independent Denver-based exploration and production company focused on the acquisition, development, and production of oil and associated liquids-rich natural gas in the Rocky Mountain region, primarily in the Wattenberg Field of the DJ Basin of Colorado. We believe our acreage in the DJ Basin has been significantly delineated by our own drilling success and by the success of offset operators, providing confidence that our inventory is repeatable and will continue to generate economic returns. The majority of our revenues are generated through the sale of oil, natural gas, and natural gas liquids production.
The Company’s primary objective is to maximize shareholder returns by responsibly developing our oil and natural gas resources. Key aspects of our strategy include multi-well pad development across our leasehold, continuous safety improvement, strict adherence to health and safety regulations, environmental stewardship, disciplined approach to acquisitions and divestitures and capital allocation, and prudent risk management.
Financial and Operating Results
Our financial and operational results include:
Crude oil equivalent sales volumes increased 303% for the three months ended September 30, 2022 when compared to the same period during 2021 primarily due to the Extraction and Crestone Peak mergers as well as the Bison Acquisition;
General and administrative expense per barrel of oil equivalent (“Boe”) decreased by 21% for the three months ended September 30, 2022 when compared to the same period during 2021 due to the synergies achieved through the Extraction and Crestone Peak mergers as well as the Bison Acquisition;
Lease operating expense per Boe decreased by 3% for the three months ended September 30, 2022 when compared to the same period during 2021;
Total liquidity was $1.7 billion as of September 30, 2022, consisting of cash on hand plus funds available under our Credit Facility. Please refer to Liquidity and Capital Resources below for additional discussion;
Cash dividends of $150.8 million, or $1.7625 per share, declared and paid during the three months ended September 30, 2022;
Cash flows provided by operating activities for the nine months ended September 30, 2022 were $2.0 billion, as compared to $192.2 million during the nine months ended September 30, 2021. Please refer to Liquidity and Capital Resources below for additional discussion; and
Capital expenditures, inclusive of accruals, were $710.2 million during the nine months ended September 30, 2022, of which $55.7 million represents land and midstream capital expenditures.
Midstream Assets
The Company’s midstream assets provide reliable gathering, treating, and storage for the Company’s operated production while reducing facility site footprints, leading to more cost-efficient operations and reduced emissions and surface disturbance per Boe produced. Additionally, this infrastructure helps ensure that the Company’s production is not constrained by any single midstream service provider. The net book value of the Company’s midstream assets was $313.9 million as of September 30, 2022.
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Table of Contents
Current Events and Outlook
Oil and natural gas prices continue to be impacted by efforts to contain COVID-19, uncertainty regarding the depth and duration of the post-pandemic economic recovery and changes to OPEC+ production levels. In addition, Russia’s invasion of Ukraine has led to regional instability. Although Russian export volumes of oil and gas have been only modestly impacted so far, uncertainty regarding potential future impacts of sanctions and buyer aversion to Russian hydrocarbons presents significant risk to future supply and demand balances. Furthermore, the economy is experiencing elevated inflation levels as a result of global supply and demand imbalances resulting from COVID-19. Inflationary pressures could result in increases to our capital and operating expenses that are not fixed and could impact the cost of oilfield services, equipment, and personnel retention, among other things. Increases in interest rates as a result of inflation and a resulting potentially recessionary economic environment in the United States could also have a negative effect on the demand for oil and natural gas. The foregoing destabilizing factors have caused dramatic fluctuations in global financial markets and uncertainty about world-wide oil and natural gas supply and demand, which in turn has increased the volatility of oil and natural gas prices. While WTI oil prices have recovered to pre-pandemic levels, averaging approximately $98 per Bbl during the first nine months of 2022, in light of uncertainty associated with oil and natural gas demand, future monetary policy relating to inflationary pressures, and governmental policies aimed at transitions toward lower carbon energy, we cannot predict any future volatility in or levels of commodity prices or demand for oil and natural gas.
On April 1, 2021, we acquired HighPoint, and on November 1, 2021, we merged with Extraction and Crestone Peak. Additionally, on March 1, 2022, we acquired Bison. The Company believes it has successfully integrated the operations, production, and accounting databases derived from each of these mergers and acquisitions.

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Table of Contents
Results of Operations
The following table summarizes our product revenues, sales volumes, and average sales prices for the periods indicated:
Three Months Ended September 30,
 20222021ChangePercent Change
Revenues (in thousands): 
Crude oil sales(1)
$653,831 $131,103 $522,728 399 %
Natural gas sales(2)
215,853 23,387 192,466 823 %
NGL sales137,486 33,838 103,648 306 %
Product revenue$1,007,170 $188,328 $818,842 435 %
Sales Volumes:
Crude oil (MBbls)7,234.3 2,036.4 5,197.9 255 %
Natural gas (MMcf)29,192.8 6,647.5 22,545.3 339 %
NGL (MBbls)4,118.5 880.2 3,238.3 368 %
Crude oil equivalent (MBoe)(3)
16,218.3 4,024.5 12,193.8 303 %
Average Sales Prices (before derivatives)(4):
 
Crude oil (per Bbl)$90.38 $64.38 $26.00 40 %
Natural gas (per Mcf)$7.39 $3.52 $3.87 110 %
NGL (per Bbl)$33.38 $38.44 $(5.06)(13)%
Crude oil equivalent (per Boe)(3)
$62.10 $46.80 $15.30 33 %
Average Sales Prices (after derivatives)(4):
Crude oil (per Bbl)$81.03 $54.64 $26.39 48 %
Natural gas (per Mcf)$5.11 $2.51 $2.60 104 %
NGL (per Bbl)$31.03 $38.44 $(7.41)(19)%
Crude oil equivalent (per Boe)(3)
$53.23 $40.20 $13.03 32 %
_____________________________
(1)Crude oil sales excludes $(0.3) million and $0.2 million of oil transportation revenues from third parties, which do not have associated sales volumes, for the three months ended September 30, 2022 and 2021, respectively.
(2)Natural gas sales excludes $1.1 million and $1.4 million of gas gathering revenues from third parties, which do not have associated sales volumes, for the three months ended September 30, 2022 and 2021, respectively.
(3)Determined using the ratio of 6 thousand cubic feet (“Mcf”) of natural gas to 1 Bbl of crude oil.
(4)Derivatives economically hedge the price we receive for oil, natural gas, and NGL. For the three months ended September 30, 2022, the derivative cash settlement loss for oil, natural gas, and NGLs was $67.6 million, $66.6 million, and $9.7 million, respectively. For the three months ended September 30, 2021, the derivative cash settlement loss for oil and natural gas was $19.8 million and $6.7 million, respectively. Please refer to Note 9 - Derivatives under Part I, Item 1 of this report for additional disclosures.
Product revenues increased by 435% to $1.0 billion for the three months ended September 30, 2022 compared to $188.3 million for the three months ended September 30, 2021. The increase was largely due to a 303% increase in sales volumes and a $15.30, or 33%, increase in oil equivalent pricing, excluding the impact of derivatives. The increase in sales volumes is due to the Extraction and Crestone Peak mergers that closed on November 1, 2021, and the Bison Acquisition that closed on March 1, 2022. Additionally, we turned 168 gross wells to sales during the twelve-month period ending September 30, 2022.
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Table of Contents
The following table summarizes our operating expenses for the periods indicated (in thousands, except per Boe amounts):
Three Months Ended September 30,
 20222021ChangePercent Change
Operating Expenses: 
Lease operating expense$45,063 $11,560 $33,503 290 %
Midstream operating expense9,214 3,163 6,051 191 %
Gathering, transportation, and processing84,482 14,105 70,377 499 %
Severance and ad valorem taxes85,029 9,205 75,824 824 %
Exploration4,355 1,513 2,842 188 %
Depreciation, depletion, and amortization212,070 35,604 176,466 496 %
Unused commitments193 3,364 (3,171)(94)%
Bad debt expense (recovery)(11)279 (290)(104)%
Merger transaction costs1,814 5,580 (3,766)(67)%
General and administrative expense37,296 11,724 25,572 218 %
Operating expenses$479,505 $96,097 $383,408 399 %
Selected Costs ($ per Boe): 
Lease operating expense$2.78 $2.87 $(0.09)(3)%
Midstream operating expense0.57 0.79 (0.22)(28)%
Gathering, transportation, and processing5.21 3.50 1.71 49 %
Severance and ad valorem taxes5.24 2.29 2.95 129 %
Exploration0.27 0.38 (0.11)(29)%
Depreciation, depletion, and amortization13.08 8.85 4.23 48 %
Unused commitments0.01 0.84 (0.83)(99)%
Bad debt expense (recovery)— 0.07 (0.07)(100)%
Merger transaction costs0.11 1.39 (1.28)(92)%
General and administrative expense2.30 2.91 (0.61)(21)%
Operating expenses$29.57 $23.89 $5.68 24 %
Lease operating expense.  Our lease operating expense increased $33.5 million, or 290%, to $45.1 million for the three months ended September 30, 2022 from $11.6 million for the three months ended September 30, 2021, and decreased 3% on an equivalent basis per Boe. Lease operating expense increased on an aggregate basis as a result of the Extraction and Crestone Peak mergers as well as the Bison Acquisition. Lease operating expense per Boe decreased as a result of the synergies achieved through the aforementioned mergers.
Midstream operating expense. Our midstream operating expense increased $6.0 million, or 191%, to $9.2 million for the three months ended September 30, 2022 from $3.2 million for the three months ended September 30, 2021, and decreased 28% on an equivalent basis per Boe. Midstream operating expense increased on an aggregate basis due to the acquisition of certain midstream assets through the Crestone Peak Merger. Conversely, while certain midstream operating expenses correlate to sales volumes, the majority of the costs, such as compression, are fixed and thereby result in a decrease in midstream operating expense per Boe period over period.
Gathering, transportation, and processing. Gathering, transportation, and processing expense increased $70.4 million, or 499%, to $84.5 million for the three months ended September 30, 2022 from $14.1 million for the three months ended September 30, 2021, and increased 49% on an equivalent basis per Boe. Sales volumes have a direct correlation to gathering, transportation, and processing expense and increased 303% during the comparable periods. Additionally, we are party to a number of value-based percentage of proceeds sales contracts, which track solely with natural gas and NGL pricing and thereby have further contributed to the increase in gathering, transportation, and processing expense. Finally, the Company continually monitors for the best sales volumes outlet and thereby incurred increased gathering, transportation, and processing expense during the three months ended September 30, 2022 relative to oil differentials (that would otherwise be recorded as a direct reduction of revenue) in order to receive an improvement in net margins.
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Severance and ad valorem taxes.  Our severance and ad valorem taxes increased $75.8 million, or 824%, to $85.0 million for the three months ended September 30, 2022 from $9.2 million for the three months ended September 30, 2021, and increased 129% on an equivalent basis per Boe. Severance and ad valorem taxes primarily correlate to revenues, which increased by 435% for the three months ended September 30, 2022 when compared to the same period in 2021. Additionally, through the Extraction and Crestone Peak mergers, we now operate in certain taxing districts with incrementally higher severance and ad valorem tax rates that are thereby contributing to the aggregate increase in severance and ad valorem taxes.
Depreciation, depletion, and amortization.  Our depreciation, depletion, and amortization expense increased $176.5 million, or 496%, to $212.1 million for the three months ended September 30, 2022 from $35.6 million for the three months ended September 30, 2021, and increased 48% on an equivalent basis per Boe. The increase in depreciation, depletion, and amortization expense is the result of (i) a $4.8 billion increase in the depletable property base primarily due to the Extraction and Crestone Peak mergers as well as the Bison Acquisition and (ii) a 303% increase in production between the comparable periods.
Unused commitments. During the three months ended September 30, 2022, we incurred $0.2 million in unused commitments primarily due to certain deficiency payments incurred under a minimum volume water commitment. During the three months ended September 30, 2021, we incurred $3.4 million in unused commitments primarily due to the assumption of two firm natural gas pipeline transportation contracts in the HighPoint Merger to provide a guaranteed outlet for production from properties HighPoint had previously sold. Both firm transportation contracts, which expired on July 31, 2021, required us to pay transportation charges regardless of the amount of pipeline capacity utilized.
Merger transaction costs. During the three months ended September 30, 2022, we incurred $1.8 million in legal, advisor, and other costs associated with the Extraction and Crestone Peak mergers. During the three months ended September 30, 2021, we incurred $5.6 million in legal, advisor, and other costs associated with the HighPoint, Extraction, and Crestone Peak mergers. Merger transaction costs include zero and $0.6 million of severance payments associated with merger activity for the three months ended September 30, 2022 and 2021, respectively.
General and administrative expense. Our general and administrative expense increased $25.6 million, or 218%, to $37.3 million for the three months ended September 30, 2022 from $11.7 million for the three months ended September 30, 2021, and decreased 21% on an equivalent basis per Boe. The primary drivers of the aggregate increase relate to an increase in salaries, benefits, and stock compensation expense associated with the Extraction and Crestone Peak mergers and an increase in charitable contributions. General and administrative expense per Boe decreased due to oil equivalent sales volumes being 303% higher during the three months ended September 30, 2022 as compared to the same period in 2021.
Derivative gain (loss).  Our derivative gain for the three months ended September 30, 2022 was $9.3 million as compared to a loss of $36.2 million for the three months ended September 30, 2021. Our derivative gain for the three months ended September 30, 2022 is due to fair market value adjustments caused by market prices being lower relative to our future contracted hedge prices, partially offset by settlement losses caused by market prices being higher than our current contracted hedge prices. Please refer to Note 9 - Derivatives under Part I, Item 1 of this report for additional discussion.
Interest expense.  Our interest expense for the three months ended September 30, 2022 and 2021 was $7.5 million and $3.0 million, respectively. Average debt outstanding for the three months ended September 30, 2022 and 2021 was $400.0 million and $86.8 million, respectively. The components of interest expense for the periods presented are as follows (in thousands):
Three Months Ended September 30,
20222021
Senior Notes$5,000 $1,875 
Credit Facility— 777 
Commitment and letter of credit fees under the Credit Facility1,329 577 
Amortization of deferred financing costs1,139 437 
Capitalized interest— (641)
Total interest expense$7,468 $3,025 
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The following table summarizes our product revenues, sales volumes, and average sales prices for the periods indicated:
Nine Months Ended September 30,
 20222021ChangePercent Change
Revenues (in thousands): 
Crude oil sales(1)
$1,981,015 $296,826 $1,684,189 567 %
Natural gas sales(2)
533,581 50,451 483,130 958 %
NGL sales459,899 69,578 390,321 561 %
Product revenue$2,974,495 $416,855 $2,557,640 614 %
Sales Volumes:
Crude oil (MBbls)20,666.2 4,884.3 15,781.9 323 %
Natural gas (MMcf)84,882.7 16,267.0 68,615.7 422 %
NGL (MBbls)11,660.8 2,156.9 9,503.9 441 %
Crude oil equivalent (MBoe)(3)
46,474.1 9,752.4 36,721.7 377 %
Average Sales Prices (before derivatives)(4):
 
Crude oil (per Bbl)$95.86 $60.77 $35.09 58 %
Natural gas (per Mcf)$6.29 $3.10 $3.19 103 %
NGL (per Bbl)$39.44 $32.26 $7.18 22 %
Crude oil equivalent (per Boe)(3)
$64.00 $42.74 $21.26 50 %
Average Sales Prices (after derivatives)(4):
Crude oil (per Bbl)$80.98 $52.28 $28.70 55 %
Natural gas (per Mcf)$4.53 $2.54 $1.99 78 %
NGL (per Bbl)$36.43 $32.26 $4.17 13 %
Crude oil equivalent (per Boe)(3)
$53.41 $37.56 $15.85 42 %
_____________________________
(1)Crude oil sales excludes $0.3 million and $0.7 million of oil transportation revenues from third parties, which do not have associated sales volumes, for the nine months ended September 30, 2022 and 2021, respectively.
(2)Natural gas sales excludes $2.3 million and $2.6 million of gas gathering revenues from third parties, which do not have associated sales volumes, for the nine months ended September 30, 2022 and 2021, respectively.
(3)Determined using the ratio of 6 Mcf of natural gas to 1 Bbl of crude oil.
(4)Derivatives economically hedge the price we receive for oil, natural gas, and NGL. For the nine months ended September 30, 2022, the derivative cash settlement loss for oil, natural gas, and NGLs was $307.6 million, $149.5 million, and $35.1 million, respectively. For the nine months ended September 30, 2021, the derivative cash settlement loss for oil and natural gas was $41.5 million and $9.1 million, respectively. Please refer to Note 9 - Derivatives under Part I, Item 1 of this report for additional disclosures.
Product revenues increased by 614% to $3.0 billion for the nine months ended September 30, 2022 compared to $416.9 million for the nine months ended September 30, 2021. The increase was largely due to a 377% increase in sales volumes and a $21.26, or 50%, increase in oil equivalent pricing, excluding the impact of derivatives. The increase in sales volumes is due to the HighPoint Merger that closed on April 1, 2021, the Extraction and Crestone Peak mergers that closed on November 1, 2021, and the Bison Acquisition that closed on March 1, 2022. Additionally, we turned 168 gross wells to sales during the twelve-month period ending September 30, 2022.
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The following table summarizes our operating expenses for the periods indicated (in thousands, except per Boe amounts):
Nine Months Ended September 30,
 20222021ChangePercent Change
Operating Expenses: 
Lease operating expense$122,959 $28,649 $94,310 329 %
Midstream operating expense22,395 11,314 11,081 98 %
Gathering, transportation, and processing214,404 32,793 181,611 554 %
Severance and ad valorem taxes234,203 23,622 210,581 891 %
Exploration6,436 5,156 1,280 25 %
Depreciation, depletion, and amortization601,449 89,433 512,016 573 %
Abandonment and impairment of unproved properties17,975 2,215 15,760 712 %
Unused commitments2,700 7,692 (4,992)(65)%
Bad debt expense (recovery)(7)279 (286)(103)%
Merger transaction costs23,766 27,121 (3,355)(12)%
General and administrative expense102,682 33,119 69,563 210 %
Operating expenses$1,348,962 $261,393 $1,087,569 416 %
Selected Costs ($ per Boe): 
Lease operating expense$2.65 $2.94 $(0.29)(10)%
Midstream operating expense0.48 1.16 (0.68)(59)%
Gathering, transportation, and processing4.61 3.36 1.25 37 %
Severance and ad valorem taxes5.04 2.42 2.62 108 %
Exploration0.14 0.53 (0.39)(74)%
Depreciation, depletion, and amortization12.94 9.17 3.77 41 %
Abandonment and impairment of unproved properties0.39 0.23 0.16 70 %
Unused commitments0.06 0.79 (0.73)(92)%
Bad debt expense (recovery)— 0.03 (0.03)(100)%
Merger transaction costs0.51 2.78 (2.27)(82)%
General and administrative expense2.21 3.40 (1.19)(35)%
Operating expenses$29.03 $26.81 $2.22 %
Lease operating expense.  Our lease operating expense increased $94.3 million, or 329%, to $123.0 million for the nine months ended September 30, 2022 from $28.7 million for the nine months ended September 30, 2021, and decreased 10% on an equivalent basis per Boe. Lease operating expense increased on an aggregate basis as a result of the HighPoint, Extraction, and Crestone Peak mergers as well as the Bison Acquisition. Lease operating expense per Boe decreased as a result of the synergies achieved through the aforementioned mergers.
Midstream operating expense. Our midstream operating expense increased $11.1 million, or 98%, to $22.4 million for the nine months ended September 30, 2022 from $11.3 million for the nine months ended September 30, 2021, and decreased 59% on an equivalent basis per Boe. Midstream operating expense increased on an aggregate basis due to the acquisition of certain midstream assets through the HighPoint and Crestone Peak mergers. Conversely, while certain midstream operating expenses correlate to sales volumes, the majority of the costs, such as compression, are fixed and thereby result in a decrease in midstream operating expense per Boe period over period.
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Gathering, transportation, and processing. Gathering, transportation, and processing expense increased $181.6 million, or 554%, to $214.4 million for the nine months ended September 30, 2022 from $32.8 million for the nine months ended September 30, 2021, and increased 37% on an equivalent basis per Boe. Sales volumes have a direct correlation to gathering, transportation, and processing expense and increased 377% during the comparable periods. Additionally, we are party to a number of value-based percentage of proceeds sales contracts, which track solely with natural gas and NGL pricing and thereby have further contributed to the increase in gathering, transportation, and processing expense. Finally, the Company continually monitors for the best sales volumes outlet and thereby incurred increased gathering, transportation, and processing expense during the nine months ended September 30, 2022 relative to oil differentials (that would otherwise be recorded as a direct reduction of revenue) in order to receive an improvement in net margins.
Severance and ad valorem taxes.  Our severance and ad valorem taxes increased $210.6 million, or 891%, to $234.2 million for the nine months ended September 30, 2022 from $23.6 million for the nine months ended September 30, 2021, and increased 108% on an equivalent basis per Boe. Severance and ad valorem taxes primarily correlate to revenues, which increased by 614% for the nine months ended September 30, 2022 when compared to the same period in 2021. Additionally, through the Extraction and Crestone Peak mergers, we now operate in certain taxing districts with incrementally higher severance and ad valorem tax rates that are thereby contributing to the aggregate increase in severance and ad valorem taxes.
Depreciation, depletion, and amortization.  Our depreciation, depletion, and amortization expense increased $512.0 million, or 573%, to $601.4 million for the nine months ended September 30, 2022 from $89.4 million for the nine months ended September 30, 2021, and increased 41% on an equivalent basis per Boe. The increase in depreciation, depletion, and amortization expense is the result of (i) a $4.8 billion increase in the depletable property base primarily due to the Extraction and Crestone Peak mergers as well as the Bison Acquisition and (ii) a 377% increase in production between the comparable periods.
Abandonment and impairment of unproved properties. During the nine months ended September 30, 2022, we incurred $18.0 million in abandonment and impairment of unproved properties due the Company’s assessment of its locations and replacement of non-core legacy locations with newly acquired locations. During the nine months ended September 30, 2021, we incurred $2.2 million in abandonment and impairment of unproved properties due to the reassessment of estimated probable and possible reserve locations based primarily upon economic viability and the expiration of non-core leases.
Unused commitments. During the nine months ended September 30, 2022, we incurred $2.7 million in unused commitments primarily due to certain deficiency payments incurred under a minimum volume crude oil and a minimum volume water commitment. During the nine months ended September 30, 2021, we incurred $7.7 million in unused commitments primarily due to the assumption of two firm natural gas pipeline transportation contracts in the HighPoint Merger to provide a guaranteed outlet for production from properties HighPoint had previously sold. Both firm transportation contracts, which expired on July 31, 2021, required us to pay transportation charges regardless of the amount of pipeline capacity utilized.
Merger transaction costs. During the nine months ended September 30, 2022 and 2021, we incurred $23.8 million and $27.1 million, respectively, in legal, advisor, and other costs associated with the HighPoint, Extraction, and Crestone Peak mergers as well as the Bison Acquisition. Merger transaction costs include $7.6 million and $1.7 million of severance payments associated with merger activity for the nine months ended September 30, 2022 and 2021, respectively.
General and administrative expense. Our general and administrative expense increased $69.6 million, or 210%, to $102.7 million for the nine months ended September 30, 2022 from $33.1 million for the nine months ended September 30, 2021, and decreased 35% on an equivalent basis per Boe. The primary drivers of the aggregate increase relate to an increase in salaries, benefits, and stock compensation expense associated with the HighPoint, Extraction, and Crestone Peak mergers and an increase in charitable contributions. General and administrative expense per Boe decreased due to oil equivalent sales volumes being 377% higher during the nine months ended September 30, 2022 as compared to the same period in 2021.
Derivative loss.  Our derivative loss for the nine months ended September 30, 2022 was $358.9 million as compared to a loss of $133.6 million for the nine months ended September 30, 2021. Our derivative loss for the nine months ended September 30, 2022 is due to settlement losses caused by market prices being higher than our current contracted hedge prices, partially offset by fair market value adjustments caused by market prices being lower relative to our future contracted hedge prices. Please refer to Note 9 - Derivatives under Part I, Item 1 of this report for additional discussion.
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Interest expense.  Our interest expense for the nine months ended September 30, 2022 and 2021 was $24.7 million and $6.7 million, respectively. Average debt outstanding for the nine months ended September 30, 2022 and 2021 was $447.4 million and $70.3 million, respectively. The components of interest expense for the periods presented are as follows (in thousands):
Nine Months Ended September 30,
20222021
Senior Notes$17,521 $3,750 
Credit Facility116 1,937 
Commitment and letter of credit fees under the Credit Facility3,694 1,232 
Amortization of deferred financing costs3,319 963 
Capitalized interest— (1,197)
Total interest expense$24,650 $6,685 
Liquidity and Capital Resources
The Company's anticipated sources of liquidity include cash from operating activities, borrowings under the Credit Facility, potential proceeds from sales of assets, and potential proceeds from equity and/or debt capital markets transactions. Our cash flows from operating activities are subject to significant volatility due to changes in commodity prices, as well as variations in our production. The prices for these commodities are driven by a number of factors beyond our control, including global and regional product supply and demand, the impact of inflation and monetary policy, weather, product distribution, refining and processing capacity, regulatory constraints, and other supply chain dynamics, among other factors.
Although we cannot provide any assurance, we believe cash flows from operating activities and availability under our Credit Facility should be sufficient to meet our cash requirements inclusive of, but not limited to, normal operating needs, debt service obligations, planned capital expenditures and commitments for at least the next twelve months and, based on current expectations, for the long term.
As of September 30, 2022, our liquidity was $1.7 billion, consisting of cash on hand of $682.1 million and $987.8 million of available borrowing capacity on our Credit Facility. Please refer to Note 5 - Long-Term Debt under Part I, Item 1 of this report for additional discussion.
During the three months ended September 30, 2022, there were no borrowings on our Credit Facility. As of September 30, 2022 and as of the date of filing, we had zero outstanding on our Credit Facility.
On April 20, 2022, the Company entered into an amendment to the Credit Agreement that increased the Company's borrowing base from $1.0 billion to $1.7 billion and the aggregate elected commitment amount from $800.0 million to $1.0 billion. On October 27, 2022, and as part of the regularly scheduled, semi-annual borrowing base redetermination under the Credit Facility, the Company’s aggregate elected commitments of $1.0 billion were reaffirmed and borrowing base was increased from $1.7 billion to $1.85 billion. Additionally, on May 1, 2022, we exercised an optional redemption on the 7.5% Senior Notes to redeem the full amount outstanding of $100.0 million. Please refer to Note 5 - Long-Term Debt under Part I, Item 1 of this report for additional information.
The following table summarizes our cash flows and other financial measures for the periods indicated (in thousands):
Nine Months Ended September 30,
 20222021
Net cash provided by operating activities$1,964,863 $192,243 
Net cash used in investing activities(1,046,584)(54,868)
Net cash used in financing activities(490,595)(121,708)
Cash, cash equivalents, and restricted cash682,240 40,512 
Acquisition of oil and gas properties(374,769)(620)
Exploration and development of oil and gas properties(708,958)(104,207)
Cash flows provided by operating activities
For the nine months ended September 30, 2022 and 2021, the cash receipts and disbursements were attributable to our normal operating cycle. See Results of Operations above for more information on the factors driving these changes.
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Cash flows provided by (used in) investing activities
Net cash used in investing activities for the nine months ended September 30, 2022 and 2021 was primarily driven by $709.0 million and $104.2 million, respectively, on the exploration and development of oil and gas properties. Additionally, we invested $374.8 million and $0.6 million in acquisitions of oil and gas properties, partially offset by cash acquired of $44.3 million and $49.8 million during the nine months ended September 30, 2022 and 2021, respectively.
Cash flows used in financing activities
Net cash used in financing activities for the nine months ended September 30, 2022 and 2021 was $490.6 million and $121.7 million, respectively. The change was primarily due to increased dividends paid of $349.0 million, the optional redemption of the 7.5% Senior Notes principal of $100.0 million, and increased payments of employee tax withholdings in exchange for the return of common stock of $16.2 million, partially offset by a decrease in net payments on the Credit Facility of $94.0 million.
Non-GAAP Financial Measures
Adjusted EBITDAX represents earnings before interest, income taxes, depreciation, depletion, and amortization, exploration expense, and other non-cash and non-recurring charges. Adjusted EBITDAX excludes certain items that we believe affect the comparability of operating results and can exclude items that are generally non-recurring in nature or whose timing and/or amount cannot be reasonably estimated. Adjusted EBITDAX is a non-GAAP measure that we present because we believe it provides useful additional information to investors and analysts, as a performance measure, for analysis of our ability to internally generate funds for exploration, development, acquisitions, and to service debt. We are also subject to financial covenants under our Credit Facility based on adjusted EBITDAX ratios. See Note 5 - Long-Term Debt under Part I, Item 1 of this report for more information about financial covenants under our Credit Facility. In addition, adjusted EBITDAX is widely used by professional research analysts and others in the valuation, comparison, and investment recommendations of companies in the oil and gas exploration and production industry. Adjusted EBITDAX should not be considered in isolation or as a substitute for net income, net cash provided by operating activities, or other profitability or liquidity measures prepared under GAAP. Because adjusted EBITDAX excludes some, but not all items that affect net income and may vary among companies, the adjusted EBITDAX amounts presented may not be comparable to similar metrics of other companies.

The following table presents a reconciliation of the GAAP financial measure of net income to the non-GAAP financial measure of adjusted EBITDAX (in thousands):
Three Months Ended September 30,Nine Months Ended September 30,
2022202120222021
Net income$405,752 $40,659 $966,212 $15,221 
Exploration4,355 1,513 6,436 5,156 
Depreciation, depletion, and amortization212,070 35,604 601,449 89,433 
Abandonment and impairment of unproved properties— — 17,975 2,215 
Stock-based compensation(1)
10,244 2,289 24,469 6,096 
Non-recurring general and administrative expense(1)
5,481 150 11,816 1,444 
Merger transaction costs1,814 5,580 23,766 27,121 
Unused commitments193 3,364 2,700 7,692 
(Gain) loss on property transactions, net938 (951)(15,859)(951)
Interest expense7,468 3,025 24,650 6,685 
Derivative (gain) loss(9,281)36,224 358,862 133,613 
Derivative cash settlements loss(143,911)(26,546)(492,120)(50,536)
Income tax expense136,338 15,596 312,163 5,160 
Adjusted EBITDAX$631,461 $116,507 $1,842,519 $248,349 
_______________________________
(1) Included as a portion of general and administrative expense in the accompanying statements of operations.

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New Accounting Pronouncements 
Please refer to Note 1 - Summary of Significant Accounting Policies, Basis of Presentation under Part I, Item 1 of this report and Note 2 - Basis of Presentation in the 2021 Form 10-K for any recently issued or adopted accounting standards.
Critical Accounting Estimates
Information regarding our critical accounting estimates is contained in Part II, Item 7 of our 2021 Form 10-K. During the three months ended September 30, 2022, there were no significant changes in the application of critical accounting policies.
Material Commitments
There have been no significant changes from our 2021 Form 10-K in our obligations and commitments, other than what is disclosed within Note 6 - Commitments and Contingencies and Note 13 - Leases under Part I, Item 1 of this report.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Oil, Natural Gas, and NGL Price Risk
Our financial condition, results of operations, and capital resources are highly dependent upon the prevailing market prices of oil, natural gas, and NGL. These commodity prices are subject to wide fluctuations and market uncertainties due to a variety of factors that are beyond our control. Factors influencing oil, natural gas, and NGL prices include the level of global demand for oil, natural gas, and NGL, the global supply of oil, natural gas, the establishment of and compliance with production quotas by oil exporting countries, weather conditions which determine the demand for natural gas, the price and availability of alternative fuels, local and global politics, and overall economic conditions. It is impossible to predict future oil, natural gas, and NGL prices with any degree of certainty. Sustained weakness in oil, natural gas, and NGL prices may adversely affect our financial condition and results of operations, and may also reduce the amount of oil and natural gas reserves that we can produce economically. Any reduction in our oil and natural gas reserves, including reductions due to price fluctuations, can have an adverse effect on our ability to obtain capital for our exploration and development activities. Similarly, any improvements in oil, natural gas, and NGL prices can have a favorable impact on our financial condition, results of operations, and capital resources.
Commodity Price Derivative Contracts
Our primary commodity risk management objective is to protect the Company’s balance sheet via the reduction in cash flow volatility. We enter into derivative contracts for oil, natural gas, and NGL using NYMEX futures or over-the-counter derivative financial instruments. The types of derivative instruments that we use include swaps, collars, and puts.
Upon settlement of a derivative contract, if the relevant market commodity price exceeds our contracted swap price, or the collar’s ceiling strike price, we are required to pay our counterparty the difference for the volume of production associated with the contract. Generally, this payment is made up to 15 business days prior to the receipt of cash payments from our customers. This could have an adverse impact on our cash flows for the period between derivative settlements and payments for revenue earned.
While we may reduce the potential negative impact of lower commodity prices, we may also be prevented from realizing the benefits of favorable price changes in the physical market.
Presently, our derivative contracts have been executed with 10 counterparties, all of which are members of our Credit Facility syndicate. We enter into contracts with counterparties whom we believe are well capitalized. However, if our counterparties fail to perform their obligations under the contracts, we could suffer financial loss. Please refer to the Note 9 - Derivatives under Part I, Item 1 of this report for summary derivative activity tables.
Interest Rates
As of September 30, 2022 and on the filing date of this report, we had a zero balance on our Credit Facility. Borrowings under our Credit Facility bear interest at a fluctuating rate that is tied to an Alternate Base Rate or Secured Overnight Financing Rate, at our option. Any increases in these interest rates can have an adverse impact on our results of operations and cash flows. As of September 30, 2022 and through the filing date of this report, the Company was in compliance with all financial and non-financial covenants under the Credit Facility.
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Counterparty and Customer Credit Risk
In connection with our derivatives activity, we have exposure to financial institutions in the form of derivative transactions. Presently, our derivative contracts have been executed with 10 counterparties, all of which are members of our Credit Facility syndicate. All counterparties on our derivative instruments currently in place have investment grade credit ratings.
We are also subject to credit risk due to concentration of our oil, natural gas, and NGL receivables with certain significant customers. The inability or failure of our significant customers to meet their obligations to us or their insolvency or liquidation may adversely affect our financial results. We review the credit rating, payment history, and financial resources of our customers, but we do not require our customers to post collateral.
Marketability of Our Production
The marketability of our production depends in part upon the availability, proximity, and capacity of third-party refineries, access to regional trucking, pipeline and rail infrastructure, natural gas gathering systems, and processing facilities. We deliver crude oil, natural gas, and NGL produced through trucking services, pipelines, and rail facilities that we do not own. The lack of availability or capacity on these systems and facilities could reduce the price offered for our production or result in the shut-in of producing wells or the delay or discontinuance of development plans for properties.
A portion of our production may also be interrupted, or shut in, from time to time for numerous other reasons, including as a result of accidents, weather, field labor issues or strikes, or we might voluntarily curtail production in response to market conditions. If a substantial amount of our production is interrupted at the same time, it could adversely affect our cash flow.
Currently, there are no pipeline systems that service wells in our French Lake area of the Wattenberg Field. If neither we nor a third-party constructs the required pipeline system, we may not be able to fully test or develop our resources in French Lake.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures 
Our management, with the participation of our principal executive officer and principal financial officer, evaluated the effectiveness of our disclosure controls and procedures as of September 30, 2022. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized, and reported, within the time periods specified in SEC rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers and internal audit function, as appropriate, to allow timely decisions regarding required disclosure. Based on the evaluation of our disclosure controls and procedures as of September 30, 2022, our principal executive officer and principal financial officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level. 
Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives, and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. To assist management, we have established an internal audit function to verify and monitor our internal controls and procedures. The Company’s internal control system is supported by written policies and procedures, contains self-monitoring mechanisms, and is audited by the internal audit function. Appropriate actions are taken by management to correct deficiencies as they are identified.
Changes in Internal Control over Financial Reporting 
There were no changes in our internal control over financial reporting identified in management’s evaluation pursuant to Rules 13a-15(d) or 15d-15(d) of the Exchange Act during the quarter ended September 30, 2022 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Information regarding our legal proceedings can be found in Note 6 - Commitments and Contingencies under Part I, Item 1 of this report.

Item 1A. Risk Factors.
Our business faces many risks. Any of the risk factors discussed in this report or our other SEC filings could have a material impact on our business, financial position, or results of operations. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also impair our business operation. For a discussion of our potential risks and uncertainties, see the risk factors in Part I, Item 1A in our 2021 Form 10-K, together with other information in this report and other reports and materials we file with the SEC. We have identified these risk factors as important factors that could cause our actual results to differ materially from those contained in any written or oral forward-looking statements made by us or on our behalf.
The following risk factor supplements the risk factors included in our 2021 Form 10-K:
Continuing or worsening inflationary pressures and associated changes in monetary policy may result in increases to the cost of our goods, services, and personnel, which in turn could cause our capital expenditures and operating costs to rise.
The U.S. inflation rate has been steadily increasing since 2021 and into 2022. These inflationary pressures may result in increases to the costs of our oilfield goods, services, and personnel, which would in turn cause our capital expenditures and operating costs to rise. Sustained levels of high inflation could cause the U.S. Federal Reserve and other central banks to continue to increase interest rates, which could have the effects of raising the cost of capital and depressing economic growth, either of which, or the combination thereof, could hurt the financial and operating results of our business.
Item 2.  Unregistered Sales of Equity Securities and Use of Proceeds.
Unregistered sales of securities. There were no sales of unregistered equity securities during the three month period ended September 30, 2022.
Issuer Purchases of Equity Securities. The following table contains information about our acquisition of equity securities during the three months ended September 30, 2022.
Total Number of SharesMaximum Number of
Total NumberPurchased as Part ofShares that May Be
of SharesAverage PricePublicly AnnouncedPurchased Under Plans
Purchased(1)
Paid per SharePlans or Programsor Programs
July 1, 2022 - July 31, 2022— $— — — 
August 1, 2022 - August 31, 202251,455 $60.95 — — 
September 1, 2022 - September 30, 20221,515 $61.87 — — 
Total52,970 $61.09 — — 
_________________________
(1)Represent shares that employees surrendered back to us that equaled in value the amount of taxes needed for payroll tax withholding obligations upon the vesting of restricted stock awards. These repurchases were not part of a publicly announced plan or program to repurchase shares of our common stock, nor do we have a publicly announced plan or program to repurchase shares of our common stock.
Dividend Policy. In May 2021, we announced the initiation of a quarterly base cash dividend on our common stock. In March 2022, the Board approved the initiation of a quarterly variable cash dividend in addition to the aforementioned base dividend, equal to 50% of free cash flow after the base cash dividend for the preceding twelve-month period and pro forma for all acquisition and divestiture activity, assuming pro forma compliance with certain leverage targets. During the nine months ended September 30, 2022, the quarterly base dividend was $0.45 per share of common stock ($1.85 annually) and was increased to $0.50 per share of common stock ($2.00 annually) beginning in the fourth quarter of 2022.
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The decision to pay any future dividends is solely within the discretion of, and subject to approval by, the Board. The Board's’ determination with respect to any such dividends, including the record date, the payment date, and the actual amount of the dividend, will depend upon our profitability and financial condition, contractual restrictions, restrictions imposed by applicable law, and other factors that the Board deems relevant at the time of such determination. Additionally, covenants contained in our Credit Facility and the indentures governing our senior notes restrict the payment of cash dividends on our common stock, as discussed further in Note 5 - Long-Term Debt under Part I, Item 1 of this report.
Item 3.  Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On October 26, 2022, the Civitas Resources, Inc. (the “Company”) announced that its Board of Directors (the “Board”) had approved and recommended for adoption by its stockholders at the Company’s 2023 annual meeting of stockholders certain amendments to the Company’s Third Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”). If adopted, the amendments to the Certificate of Incorporation would, among other things: (i) allow special meetings to be called at request of holders of 15% of the Company’s outstanding common stock who have held such shares for at least one year, subject to certain conditions; (ii) allow stockholders to act by written consent, subject to certain conditions; and (iii) allow stockholders to fill vacancies in the Board resulting from the removal of directors. Further details about the proposed amendments to the Certificate of Incorporation will be included in the Company’s proxy statement for its 2023 annual meeting.
On October 26, 2022, the Board also adopted and approved, effective immediately, amended and restated bylaws (as amended, the “Sixth Amended and Restated Bylaws”) of the Company. The Sixth Amended and Restated Bylaws, among other things:
a.provide for majority voting in uncontested director elections, instead of plurality voting;
b.provide for “proxy access” that allows a stockholder, or a group of stockholders, owning at least three percent of the Company’s outstanding stock continuously for at least three years, with no limit on stockholders who may aggregate ownership, to nominate and include in the Company’s annual meeting proxy materials director nominees constituting up to the greater of two directors or 20% of the Board, provided that the stockholders and nominees satisfy the disclosure and procedural requirements specified in the Sixth Amended and Restated Bylaws;
c.revise procedures and disclosure requirements for the nomination of directors (outside of “proxy access”) and the submission of proposals for consideration at annual meetings of the stockholders of the Company;
d.clarify the powers of the Board and the chair of a stockholder meeting to establish rules for the conduct of any meeting of stockholders;
e.provide that the Board may delegate powers to any committee thereof to the fullest extent permitted by Section 141(c)(2) of the Delaware General Corporation Law; and
f.make certain other administrative, modernizing, clarifying and conforming changes, including making updates to reflect recent amendments to the Delaware General Corporation Law.
The foregoing description of the Sixth Amended and Restated Bylaws is not complete and is qualified in its entirety by reference to the complete text of the Sixth Amended and Restated Bylaws, which is filed as Exhibit 3.4 hereto and are incorporated herein by reference.
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Item 6. Exhibits.
Exhibit
Number
Description
101.INS†
XBRL Instance Document
101.SCH†
XBRL Taxonomy Extension Schema
101.CAL†
XBRL Taxonomy Extension Calculation Linkbase
101.DEF†
XBRL Taxonomy Extension Definition Linkbase
101.LAB†
XBRL Taxonomy Extension Label Linkbase
101.PRE†
XBRL Taxonomy Extension Presentation Linkbase
104Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
_________________________
*            Management Contract or Compensatory Plan or Arrangement
†            Filed or furnished herewith
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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 thereunto duly authorized.
   CIVITAS RESOURCES, INC.
    
Date:October 31, 2022    By:/s/ Chris Doyle
    Chris Doyle
    
President and Chief Executive Officer (principal executive officer)
     
   By:/s/ Marianella Foschi
    Marianella Foschi
    
Chief Financial Officer (principal financial officer)
By:/s/ Sandi K. Garbiso
 Sandi K. Garbiso
 
Chief Accounting Officer and Treasurer (chief accounting officer)
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Exhibit 3.4
SIXTH AMENDED AND RESTATED BYLAWS
OF
CIVITAS RESOURCES, INC.
1.OFFICES
1.1     Registered Office
The registered office of the Corporation shall be in Wilmington, Delaware, and the initial registered agent shall be The Corporation Trust Company, or such other office or agent as the Board of Directors of the Corporation (the “Board of Directors”) shall from time to time select.
1.2     Other Offices
The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as may be necessary or useful in connection with the business of the Corporation.

2.MEETINGS OF STOCKHOLDERS
2.1     Place of Meetings
All meetings of the stockholders shall be held at such place, if any, within or without the State of Delaware as may be fixed from time to time by the Board of Directors, the Chairperson or the President. Notwithstanding the foregoing, the Board of Directors may determine that the meeting shall not be held at any place, but may instead be held by means of remote communication.
2.2     Annual Meetings
The Corporation shall hold annual meetings of stockholders on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. At each annual meeting, stockholders shall elect directors of the Corporation and may transact such other business as may properly be brought before the meeting. Any previously scheduled annual meeting of the stockholders may be postponed by action of the Board of Directors taken prior to the time previously scheduled for such annual meeting of the stockholders.
2.3     Special Meetings
Except as otherwise required by applicable law, special meetings of stockholders may be called only in the manner set forth in the certificate of incorporation of the Corporation, as the same may be amended and restated from time to time (the “Certificate of Incorporation”). Notice of every special meeting of the stockholders shall state the purpose or purposes of such meeting. Except as otherwise required by law, the business conducted at a special meeting of stockholders shall be limited exclusively to the business set forth in the Corporation’s notice of meeting.
2.4     Notice of Meetings
Notice of any meeting of stockholders, stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and (if it is a special meeting) the purpose or purposes for which the meeting is called, shall be given to each stockholder of record entitled to vote at such meeting not less than ten nor more than 60 days before the date of the meeting (except to the extent that such notice is waived or is not required as provided in the General Corporation Law of the State of Delaware (the “DGCL”) or these Bylaws), either personally, by mail or by other lawful means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his, her or its address as it appears on the stock transfer books of the Corporation. Such further notice shall be given as may be required by law.
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2.5     Waivers of Notice
Whenever the giving of any notice is required by law, the Certificate of Incorporation or these Bylaws, a written waiver thereof signed by the person or persons entitled to said notice, or a waiver thereof by electronic transmission by the person entitled to said notice, delivered to the Corporation, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice (A) of such meeting, except when the stockholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (B) if it is a special meeting, of consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the stockholder objects to considering the matter at the beginning of the meeting.
2.6     Advance Notice of Stockholder Nominations and Other Business
(A)    Annual Meetings of Stockholders.
(1)    Nominations of persons for election to the Board of Directors and the proposal of business other than nominations to be considered by the stockholders may be made at an annual meeting of stockholders only: (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto); (b) by or at the direction of the Board of Directors or any duly authorized committee of the Board of Directors; (c) by any stockholder of the Corporation who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (A)(2) and (A)(3) of this Section 2.6 and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation, at the time of the record date of the annual meeting and at the time of the annual meeting; or (d) by one or more Eligible Holders (as defined below) pursuant to and in accordance with Section 2.6(B).
(2)    For nominations or other business to be properly brought before an annual meeting by a stockholder of record pursuant to clause (c) of paragraph (A)(1) of this Section 2.6, the stockholder of record bringing the notice (the “Noticing Stockholder”) must have delivered timely notice thereof in proper written form to the Secretary of the Corporation at the principal executives offices of the Corporation, and any such proposed business other than nominations of persons for election to the Board of Directors must constitute a proper matter for stockholder action or must be otherwise appropriate for stockholder action under the provisions of the laws of the State of Delaware. To be timely, the Noticing Stockholder’s notice must be delivered to the Secretary at the principal executive offices of the Corporation not later than the Close of Business on the 120th day, nor earlier than the Close of Business on the 150th day, prior to the first anniversary of the date of the Corporation’s proxy statement released to stockholders for the preceding year’s annual meeting; provided, however, that if the date of the meeting is advanced or delayed by more than 30 days from such anniversary date, such notice shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the Close of Business on the 150th day prior to such annual meeting and not later than the Close of Business on the later of the 120th day prior to such annual meeting or the tenth day following the day on which the public announcement (as defined below) of the date of such meeting is first made by the Corporation. An adjournment, recess, rescheduling or postponement of an annual meeting (or the public announcement of an adjournment, recess, rescheduling or postponement thereof) shall not commence a new time period (or extend any time period) for the giving of a Noticing Stockholder’s notice. For the avoidance of doubt, a Noticing Stockholder shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in these Bylaws. Notwithstanding anything in this paragraph (A)(2) of this Section 2.6 to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Corporation naming all of the nominees for director proposed by the Board of Directors or specifying the size of the increased Board of Directors at least ten days prior to the last day a Noticing Stockholder may deliver a notice of nominations in accordance with the second sentence of this paragraph (A)(2) of this Section 2.6, a Noticing Stockholder’s notice required by this Section 2.6(A) shall also be considered timely, but only with respect to proposed nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the Close of Business on the tenth day following the day on which a public announcement of such increase in the number of directors to be elected is first made by the Corporation.
(3)    Information in Notice. To be in proper written form, such Noticing Stockholder’s notice to the Secretary given pursuant to this Section 2.6(A) also shall set forth:
(a)    as to each person whom the Noticing Stockholder proposes to nominate for election or re-election as a director: (i) the name, age and address (business and residential) of such person, (ii) a complete biography and statement of such person’s qualifications, including the principal occupation or employment of such person (at present and for the past five years), (iii) the Specified Information (as defined below) for such person and any member of the immediate family of such person, or any Affiliate or Associate (as such terms are defined below) of such person, or any person acting in concert therewith, (iv) (A) a complete and accurate description of all agreements, arrangements and understandings (whether written or oral, and including promises) between each
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Holder and any Stockholder Associated Person (as such terms are defined below), on the one hand, and such person, on the other hand, including, without limitation, (x) to consult or advise on any investment or potential investment in a publicly listed company (including the Corporation) or (y) to nominate, submit or otherwise recommend (including, without limitation, supporting, advocating for, or otherwise taking action to further the consideration of) such person for appointment (or, for the avoidance of doubt, as a candidate for appointment) to any officer, executive officer or director role of any publicly listed company (including the Corporation) during the past ten years, and (B) a complete and accurate description of the outcome of any situations described pursuant to the foregoing clause (A), (v) whether such person has (A) notified the Board of Directors of each publicly listed company at which such person serves as an officer, executive officer or director with respect to such person’s proposed nomination for election to the Board of Directors, and, (B) as applicable, received all necessary consents to serve on the Board of Directors if so nominated and elected or otherwise appointed (or, if any such consents have not been received, how such person intends to address such failure to receive such necessary consents), (vi) whether such person’s nomination, election or appointment, as applicable, would violate or contravene a corporate governance policy, including, without limitation, a conflicts of interest or “overboarding” policy of any publicly listed company at which such person serves as an officer, executive officer or director, and, if so, a description of how such person intends to address such violation or contravention, (vii) the first date of contact between any Holder and/or Stockholder Associated Person, on the one hand, and such person, on the other hand, with respect to the Corporation, (viii) the amount and nature of any direct or indirect economic or financial interest, if any, of such person, or of any immediate family member of such person, in any funds or vehicles managed by, under common management with, or affiliated with any Holder or any Stockholder Associated Person, (ix) a complete and accurate description of all direct and indirect compensation and other monetary or non-monetary agreements, arrangements and understandings (whether written or oral) existing presently, that existed during the past three years or were offered during the past three years (whether accepted or declined), and any other material relationships, between or among the Holders or any Stockholder Associated Person, on the one hand, and such person, and any member of the immediate family of such person, and such person’s respective Affiliates and Associates, or others acting in concert therewith, or any other person or persons, on the other hand (including the names of such persons) and all biographical, related party transaction and other information that would be required to be disclosed pursuant to the federal and state securities laws, including Rule 404 promulgated under Regulation S-K (“Regulation S-K”) under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), if any Holder or any Stockholder Associated Person were the “registrant” for purposes of such rule and such person were a director or executive officer of such registrant, (x) information relevant to a determination of whether such person can be considered an independent director, (xi) any other information relating to such person that would be required to be disclosed in a proxy statement or any other filings required to be made in connection with solicitation of proxies for the election of directors in a contested election or that is otherwise required pursuant to and in accordance with Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (including such person’s written consent to being named in proxy statements as a proposed nominee of the Noticing Stockholder and to serving as a director if elected), and (xii) a completed and signed questionnaire, representation and agreement and any and all other information required by paragraph (A)(3)(e) of this Section 2.6;
(b)    as to any other business that the Noticing Stockholder proposes to bring before the meeting: (i) a brief description of the business desired to be brought before the meeting, (ii) the reasons for conducting such business at the meeting, (iii) any material interest of each Holder and each Stockholder Associated Person, if any, in such business, (iv) the text of the proposal or business (including the specific text of any resolutions or actions proposed for consideration and if such business includes a proposal to amend the Certificate of Incorporation or these Bylaws, the specific language of the proposed amendment), and (v) a description of all agreements, arrangements and understandings between each Holder and any Stockholder Associated Person and any other person or persons (including their names) in connection with the proposal of such business by the Noticing Stockholder;
(c)    as to the Noticing Stockholder and the beneficial owner, if any, on whose behalf the nomination is made or the other business is being proposed (collectively with the Noticing Stockholder, the “Holders” and each a “Holder”): (i) the name and address of each Holder, as the name and address appear on the Corporation’s books, and the name and address of each Stockholder Associated Person, if any, (ii) as of the date of the notice (which information, for the avoidance of doubt, shall be updated and supplemented pursuant to paragraph (D)(3) of this Section 2.6), (A) the class or series and number of shares of capital stock of the Corporation which are, directly or indirectly, held of record or owned beneficially by each Holder and any Stockholder Associated Person (provided that, for the purposes of this Section 2.6(A), any such person shall in all events be deemed to beneficially own any shares of stock of the Corporation as to which such person has a right to acquire beneficial ownership at any time in the future (whether such right is exercisable immediately or only after the passage of time or the fulfillment of a condition or both)), (B) any short position, profits interest, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, or any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Corporation, or any contract, derivative, swap
3


or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Corporation, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the Holder and any Stockholder Associated Person may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned or held, including beneficially, by each Holder and any Stockholder Associated Person, (C) a description of any proxy, contract, arrangement, understanding, or relationship pursuant to which each Holder and any Stockholder Associated Person has any right to vote or has granted a right to vote any shares of stock or any other security of the Corporation, (D) any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, involving any Holder or any Stockholder Associated Person, on the one hand, and any person acting in concert therewith, on the other hand, directly or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of the Corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Holder or any Stockholder Associated Person with respect to any class or series of the shares or other securities of the Corporation, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of the shares or other securities of the Corporation (any of the foregoing, a “Short Interest”), and any Short Interest held by each Holder or any Stockholder Associated Person within the last 12 months in any class or series of the shares or other securities of the Corporation, (E) any rights to dividends or payments in lieu of dividends on the shares of the Corporation owned beneficially by each Holder or any Stockholder Associated Person that are separated or separable from the underlying shares of stock or other security of the Corporation, (F) any proportionate interest in shares of stock or other securities of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership or limited liability company or other entity in which any Holder or any Stockholder Associated Person is a general partner or directly or indirectly beneficially owns an interest in a general partner, is the manager, managing member or directly or indirectly beneficially owns an interest in the manager or managing member of a limited liability company or other entity, (G) any performance-related fees (other than an asset-based fee) that each Holder or any Stockholder Associated Person is or may be entitled to based on any increase or decrease in the value of stock or other securities of the Corporation or Derivative Instruments, if any, including without limitation, any such interests held by members of the immediate family sharing the same household of such Holder or any Stockholder Associated Person, (H) any direct or indirect legal, economic or financial interest (including Short Interest) of each Holder and each Stockholder Associated Person, if any, in the outcome of any (x) vote to be taken at any annual or special meeting of stockholders of the Corporation or (y) any meeting of stockholders of any other entity with respect to any matter that is related, directly or indirectly, to any nomination or business proposed by any Holder under these Bylaws, (I) any direct or indirect legal, economic or financial interest or any Derivative Instruments or Short Interests in any principal competitor of the Corporation held by each Holder or any Stockholder Associated Person, (J) any direct or indirect interest of each Holder or any Stockholder Associated Person in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement); and (K) any material pending or threatened action, suit or proceeding (whether civil, criminal, investigative, administrative or otherwise) in which any Holder or any Stockholder Associated Person is, or is reasonably expected to be made, a party or material participant involving the Corporation or any of its officers, directors or employees, or any Affiliate of the Corporation, or any officer, director or employee of such Affiliate (the information required by this subclause (ii) shall be referred to as the “Specified Information”), (iii) a representation by the Noticing Stockholder that such stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting on the matter proposed, that the Noticing Stockholder will continue to be a stockholder of record of the Corporation entitled to vote at such meeting on the matter proposed through the date of such meeting and that such Noticing Stockholder intends to appear in person or by proxy at such meeting to propose such nomination or other business, (iv) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or an amendment pursuant to Rule 13d-2(a) if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by each Holder and each Stockholder Associated Person, if any, (v) any other information relating to each Holder and each Stockholder Associated Person, if any, that would be required to be disclosed in a proxy statement and form of proxy or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (vi) a representation by the Noticing Stockholder as to whether any Holder and/or any Stockholder Associated Person intends or is part of a group which intends: (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to elect the proposed nominee or approve or adopt the other business being proposed and/or (B) otherwise to solicit proxies from stockholders in support of such nomination or other business, (vii) a certification by the Noticing Stockholder that each Holder and any Stockholder Associated Person has complied with all applicable federal, state and other
4


legal requirements in connection with its acquisition of shares of capital stock or other securities of the Corporation and/or such person’s acts or omissions as a stockholder of the Corporation, (viii) the statement required by Rule 14a-19(b)(3) of the Exchange Act (or any successor provision), (ix) the names and addresses of other stockholders (including beneficial owners) known by any Holder or Stockholder Associated Person to support such proposal(s) or nomination(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s), and (x) a representation by the Noticing Stockholder as to the accuracy of the information set forth in the notice. In addition, any Noticing Stockholder who submits a notice pursuant to this paragraph (A)(3) of this Section 2.6 is required to update and supplement the information disclosed in such notice in accordance with paragraph (D)(3) of this Section 2.6.
(d)    Supplemental Requests. The Corporation may also, as a condition to any such nomination or business being deemed properly brought before an annual meeting of stockholders, require any Holder or any proposed nominee to deliver to the Secretary, within five Business Days of any such request, such other information as may reasonably be requested by the Corporation, including (i) such other information as may be reasonably required by the Board of Directors, in its sole discretion, to determine (x) the eligibility of such proposed nominee to serve as a director of the Corporation, and (y) whether such proposed nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Corporation and (ii) such other information that the Board of Directors determines, in its sole discretion, could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(e)    Submission of Questionnaire, Representation and Agreement. In addition to the other requirements of this Section 2.6(A), each person who a Noticing Stockholder proposes to nominate for election or re-election as a director of the Corporation must deliver in writing (in accordance with the time periods prescribed for delivery of notice under this Section 2.6(A)) to the Secretary at the principal executive offices of the Corporation (i) a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request of any stockholder of record identified by name within five Business Days of such written request) and (ii) a written representation and agreement (in the form provided by the Secretary upon written request of any stockholder of record identified by name within five Business Days of such written request) that such person (A) is not and will not become a party to (x) any agreement, arrangement or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (y) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Corporation, (C) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable rules of the exchanges upon which the securities of the Corporation are listed and all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation, and (D) in such person’s individual capacity and on behalf of any Holder on whose behalf the nomination is being made, intends to serve a full term if elected as a director of the Corporation.
(B)    Proxy Access for Director Nominations.
(1)    Inclusion in Proxy Statement. The Corporation shall include in its proxy statement for an annual meeting of stockholders the name, together with the Required Information (as defined below), of any person nominated for election (a “Stockholder Nominee”) to the Board of Directors by a stockholder that satisfies, or by a group that, collectively, satisfy, the requirements of this Section 2.6(B) (an “Eligible Holder”), and that expressly elects at the time of providing the notice required by this Section 2.6(B) (the “Nomination Notice”) to have its nominee or nominees included in the Corporation’s proxy materials pursuant to this Section 2.6.
(2)    Timeliness. To be timely, a stockholder’s Nomination Notice must be delivered to the Secretary at the principal executive offices of the Corporation not later than the Close of Business on the 120th day, nor earlier than the Close of Business on the 150th day, prior to the first anniversary of the date of the Corporation’s proxy statement released to stockholders for the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is called for a date that is not within 30 days before or after such anniversary date, in order to be timely the Nomination Notice must be so received not later than the Close of Business on the tenth day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs. In addition to the other requirements of this Section 2.6(B), the
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Nomination Notice must include the name and address of the Eligible Holder (including each stockholder whose stock ownership is counted for purposes of qualifying as an Eligible Holder).
(3)    Required Information. For purposes of this Section 2.6(B), the “Required Information” that the Corporation will include in its proxy statement is (a) the information concerning the Stockholder Nominee and the Eligible Holder that the Corporation determines is required to be disclosed in the Corporation’s proxy statement by the regulations promulgated under the Exchange Act; and (b) if the Eligible Holder so elects, a Statement (as defined below). To be timely, the Required Information must be delivered to or mailed and received by the Secretary of the Corporation within 30 days after the deadline for Nomination Notices set forth in paragraph (B)(2) of this Section 2.6.
(4)    Number of Stockholder Nominees. The number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Holder for inclusion in the Corporation’s proxy materials pursuant to this Section 2.6 but are subsequently withdrawn) appearing in the Corporation’s proxy materials with respect to an annual meeting of stockholders shall not exceed 20% of the number of directors in office as of the last day on which a Nomination Notice may be delivered pursuant to this Section 2.6(B), or if such amount is not a whole number, the closest whole number below 20%, but not less than two (the “Permitted Number”); provided that (a) if one or more vacancies for any reason occurs on the Board of Directors at any time after the deadline for Nomination Notices set forth in paragraph (B)(2) of this Section 2.6 and before the date of the applicable annual meeting of stockholders and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced and (b) the Permitted Number shall be reduced for each annual meeting (but not more than two annual meetings) for each Stockholder Nominee that the Board of Directors decides to nominate for election at such annual meeting. If the number of Stockholder Nominees submitted by Eligible Holders pursuant to this Section 2.6(B) exceeds the Permitted Number, each Eligible Holder shall select one of its Stockholder Nominees for inclusion in the Corporation’s proxy materials. If the Permitted Number is not reached after each Eligible Holder has selected one Stockholder Nominee for inclusion in the Corporation’s proxy materials, each Eligible Holder shall select one Stockholder Nominee, going in order of the amount (largest to smallest) of shares of the capital stock of the Corporation each Eligible Holder disclosed as owned in its respective Nomination Notice submitted to the Corporation, until the Permitted Number is reached, and all remaining Stockholder Nominees in excess of the Permitted Number shall be excluded from the Corporation’s proxy materials.
(5)    Ownership. For purposes of this Section 2.6, an Eligible Holder shall be deemed to “own” only those outstanding shares of the capital stock of the Corporation as to which the stockholder possesses both (a) the full voting and investment rights pertaining to the shares and (b) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (a) and (b) shall not include any shares (i) sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, (ii) borrowed by such stockholder or any of its affiliates for any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell or (iii) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding capital stock of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (x) reducing in any manner, to any extent or at any time in the future, such stockholder’s or its affiliates’ full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such stockholder or affiliate. A stockholder shall “own” shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A person’s ownership of shares shall be deemed to continue during any period in which (i) the person has loaned such shares, provided that the person has the power to recall such loaned shares on not more than five Business Days’ notice, or (ii) the person has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the person. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the capital stock of the Corporation are “owned” for these purposes shall be determined by the Board of Directors, which determination shall be conclusive and binding on the Corporation and its stockholders. An Eligible Holder shall include in its Nomination Notice the number of shares it is deemed to own for the purposes of this Section 2.6(B).
(6)    Eligible Holder. An Eligible Holder must have owned (as defined below) continuously for at least three years that number of shares of capital stock as shall constitute three percent or more of the outstanding capital stock of the Corporation (the “Required Shares”) as of both (a) a date within seven calendar days prior to the date of the Nomination Notice and (b) the record date for determining stockholders entitled to vote at the annual meeting. For purposes of satisfying the ownership requirements under this Section 2.6(B), (a) the shares of the capital stock of the Corporation owned by one or more stockholders, or by the person or persons who own shares of the capital stock of the Corporation and on whose behalf any stockholder is acting, may be aggregated, and (b) two or more related
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funds will be treated as one stockholder or person for this purpose if such funds are (i) under common management and investment control, (ii) under common management and funded by a single employer, or (iii) a “group of investment companies” as such term is defined in section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended. No person may be a member of more than one group of persons constituting an Eligible Holder under this Section 2.6(B). Within the time period specified in this Section 2.6(B) for providing the Nomination Notice, an Eligible Holder must provide the following information in writing to the Secretary of the Corporation:
(a)    one or more written statements from each record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within seven calendar days prior to the date of the Nomination Notice, the Eligible Holder owns, and has owned continuously for the preceding three years, the Required Shares, and the Eligible Holder’s agreement to provide, within three Business Days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying the Eligible Holder’s continuous ownership of the Required Shares through the record date and, in the case of loaned shares, a written statement to the effect that the person will recall such loaned shares prior to the record date for the annual meeting and hold such shares on the record date or will revoke delegated voting authority with respect to such shares and vote such shares at the annual meeting, and, in the case of shares held by two or more related funds, documentation that demonstrates to the reasonable satisfaction of the Corporation that the funds are (i) under common management and investment control, (ii) under common management and funded by a single employer, or (iii) a “group of investment companies” as such term is defined in section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended;
(b)    the written consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected, together with the information and representations that would be required to be set forth in a stockholder’s notice of a nomination pursuant to paragraph (A)(3) of this Section 2.6;
(c)    a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act, as such rule may be amended;
(d)    a representation that the Eligible Holder (including each member of any group of stockholders that together is an Eligible Holder under this Section 2.6(B)) (i) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Corporation, and does not presently have such intent, (ii) has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 2.6(B), (iii) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(I) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee or a nominee of the Board of Directors, (iv) will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Corporation, (v) intends to own the Required Shares through the date of the annual meeting, (vi) has no present intention to dispose of the Required Shares within one year following the annual meeting if one or more of the Eligible Holder’s Stockholder Nominees is elected (it being understood that the Eligible Holder may disclaim any such representation regarding shares as to which the Eligible Holder has delegated investment power to an independent investment manager or shares held in or by an index fund), (vii) will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and (viii) otherwise will comply with all applicable laws, rules, regulations and listing standards in connection with any actions taken pursuant to this Section 2.6(B);
(e)    in the case of a nomination by a group of stockholders that together is an Eligible Holder, the designation by all group members of one group member that is authorized to act on behalf of all members of the nominating stockholder group with respect to the nomination and matters thereto, including withdrawal of the nomination; and
(f)    an undertaking that the Eligible Holder (including each member of any group of stockholders that together is an Eligible Holder) agrees to (i) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Holder’s communications with the stockholders of the Corporation or out of the information that the Eligible Holder provided to the Corporation, (ii) indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers, or employees arising
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out of any nomination submitted by the Eligible Holder pursuant to this Section 2.6(B), (iii) comply with all other laws, rules, regulations and listing standards applicable to any solicitation in connection with the annual meeting, and (iv) provide to the Corporation prior to the annual meeting such additional information as necessary with respect thereto, including prompt notice if the Eligible Holder ceases to own any of the Required Shares prior to the date of the annual meeting of stockholders and if any information or communications provided by the Eligible Holder to the Corporation ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Holder shall promptly notify the Secretary of the Corporation of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct.
(7)    Statement. The Eligible Holder may provide to the Secretary of the Corporation, within the time period specified in this Section 2.6(B) for providing the Nomination Notice, a written statement for inclusion in the Corporation’s proxy statement for the annual meeting, not to exceed 500 words (excluding biographical and other information required to be disclosed in the Corporation’s proxy statement by the regulations promulgated under the Exchange Act), in support of the candidacy of all Stockholder Nominees nominated by the Eligible Holder (the “Statement”). Notwithstanding anything to the contrary contained in this Section 2.6, the Corporation may omit from its proxy materials any information or Statement (or portion thereof) that it, in good faith, believes would violate any applicable law, rule, regulation or listing standard. Nothing in this Section 2.6(B) shall limit the Corporation’s ability to solicit against and include in its proxy materials its own statements relating to any Stockholder Nominee.
(8)    Representation and Agreement; Additional Information. At the time the Eligible Holder delivers the Nomination Notice, the Stockholder Nominee must deliver to the Secretary of the Corporation a written representation and agreement that the Stockholder Nominee (a) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such Stockholder Nominee, if elected as a director of the Corporation, will act or vote on any issue or question, or has fully disclosed to the Corporation all such agreements, arrangements and understandings with, and all such commitments and assurances to, any person, (b) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director, or has fully disclosed to the Corporation all such agreements, arrangements and understandings with any such person or entity, and (c) will comply with all of the Corporation’s corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines, and any other Corporation policies and guidelines applicable to directors, as well as any applicable law, rule or regulation or listing requirement. At the request of the Corporation, and within five Business Days after receipt of such questionnaires from the Corporation, the Stockholder Nominee must submit all completed and signed questionnaires and other information requests required of the Corporation’s directors and officers. The Corporation may request such additional information as necessary to permit the Board of Directors to determine if each Stockholder Nominee is independent under the listing standards of the principal U.S. exchange upon which the Corporation’s capital stock is listed and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the Corporation’s directors (the “Applicable Independence Standards”) and the qualifications of the Stockholder Nominee to serve on the Corporation’s Audit Committee, Compensation Committee. ESG Committee and Nominating and Corporate Governance Committee, and the Stockholder Nominee must respond to any such request within five Business Days after receipt. If any information or communications provided by the Stockholder Nominee to the Corporation ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Stockholder Nominee shall promptly notify the Secretary at the principal offices of the Corporation of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct. If the Board of Directors determines that the Stockholder Nominee is not independent under the Applicable Independence Standards, or if the Stockholder Nominee fails to provide requested information on a timely basis, the Stockholder Nominee will not be eligible for inclusion in the Corporation’s proxy materials.
(9)    Eligibility for Nomination at Subsequent Meetings. Any Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders but either (a) withdraws from or becomes ineligible or unavailable for election at the annual meeting, or (b) does not receive at least twenty-five percent of the votes cast “for” the Stockholder Nominee’s election, will be ineligible to be a Stockholder Nominee pursuant to this Section 2.6(B) for the next two annual meetings of stockholders. Any Eligible Holder (including each stockholder whose stock ownership is counted for purposes of qualifying as an Eligible Holder) whose Stockholder Nominee is elected as a director at the annual meeting of stockholders will not be eligible to nominate or participate in the nomination of a Stockholder Nominee for the next two annual meetings of stockholders other than the nomination of such previously elected Stockholder Nominee, unless the Board of Directors nominates such previously elected Stockholder Nominee at a subsequent annual meeting.
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(10)    Disqualification. The Corporation shall not be required, pursuant to this Section 2.6(B), to include in its proxy materials for any meeting of stockholders a Stockholder Nominee (a) if the Secretary of the Corporation receives a notice that any stockholder has nominated a person for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominations for director set forth in paragraph (A)(1)(c) of this Section 2.6, (b) if the Eligible Holder who has nominated such Stockholder Nominee has engaged in or is currently engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee(s) or a nominee of the Board of Directors, (c) who is not independent under the Applicable Independence Standards, as determined by the Board of Directors, (d) whose election as a member of the Board of Directors would cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the listing standards of the principal exchange upon which the Corporation’s capital stock is traded, or any applicable state or federal law, rule or regulation, (e) who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (f) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten years, (g) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act, (h) if such Stockholder Nominee or the Eligible Holder who has nominated such Stockholder Nominee shall have provided information to the Corporation with respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading, as determined by the Board of Directors, (i) if the Eligible Holder ceases to be an Eligible Holder for any reason, including but not limited to not owning the Required Shares through the date of the applicable annual meeting, or (j) if the Eligible Holder or applicable Stockholder Nominee otherwise contravenes any of the agreements or representations made by such Eligible Holder or Stockholder Nominee or fails to comply with its obligations pursuant to this Section 2.6(B). For the purposes of paragraph (B)(10) of this Section 2.6, if an Eligible Holder is subject to the conditions in clause (a), (b), (h), or (j), the Corporation may exclude from its proxy materials all Stockholder Nominees nominated by such Eligible Holder or, if the proxy statement has already been filed, may declare all such Stockholder Nominees ineligible to stand for election or serve as a director; and if a Stockholder Nominee is subject to the conditions in clause (c), (d), (e), (f), (g) (h), (i), or (j), the Corporation may declare such Stockholder Nominee ineligible and exclude such Stockholder Nominee from the proxy materials, or, if the proxy statement has already been filed, may declare the Stockholder Nominee ineligible to stand for election or serve as a director.
(11)    Invalidity. Notwithstanding anything to the contrary set forth herein, the Board of Directors or the person presiding at the meeting shall declare a nomination by an Eligible Holder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation, if (a) the Stockholder Nominee(s) and/or the applicable Eligible Holder shall have breached its or their obligations, agreements or representations under this Section 2.6(B), as determined by the Board of Directors or the person presiding at the annual meeting of stockholders, (b) the Stockholder Nominee(s) are determined to be ineligible to stand for election or serve as a director pursuant to paragraph (B)(10) of this Section 2.6, or (c) the Eligible Holder (or a qualified representative thereof) does not appear at the annual meeting of stockholders to present any nomination pursuant to this Section 2.6(B).
(12)    Filing of Solicitations and Other Communications. The Eligible Holder (including any person who owns shares of capital stock of the Corporation that constitute part of the Eligible Holder’s ownership for purposes of satisfying paragraph (B)(6) to this Section 2.6) shall file with the SEC any solicitation or other communication with the Corporation’s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act.
(C)    Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only: (1) by or at the direction of the Board of Directors or any duly authorized committee of the Board of Directors; or (2) provided that the Board of Directors has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who (a) is entitled to vote at the meeting, (b) complies with the notice procedures set forth in this Section 2.6 and (c) is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation, at the time of the record date of the special meeting of stockholders and at the time of the special meeting of stockholders. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any Noticing Stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the Noticing Stockholder’s notice as required by paragraphs (A)(2) and (A)(3) of this Section 2.6 shall be delivered to the Secretary at the principal executive offices of the Corporation in proper written form not earlier than the Close of Business on the 120th day prior to such special meeting and not later than the Close of
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Business on the later of the 90th day prior to such special meeting or the tenth day following the day on which public announcement is first made by the Corporation of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the adjournment, recess, rescheduling or postponement of a special meeting (or the public announcement of an adjournment, recess, rescheduling or postponement thereof) commence a new time period (or extend any time period) for the giving of a Noticing Stockholder’s notice as described above.
(D)    General.
(1)    Except for directors who are appointed by the Board of Directors pursuant to these Bylaws, only such persons who are nominated in accordance and compliance with the procedures set forth in this Section 2.6 shall be eligible for election to serve as directors at a meeting of stockholders and only such other business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.6. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the Chairperson of the Board of Directors shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws (including whether the Noticing Stockholder or other Holder, if any, on whose behalf the nomination is made or other business is being proposed solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such Noticing Stockholder’s nominee or other business in compliance with such stockholder’s representation as required by clause (c)(vi) of paragraph (A)(3) of this Section 2.6). If any proposed nomination or other business was not made or proposed in compliance with these Bylaws, the chair of the meeting of stockholders shall have the power and duty to declare to the meeting that any such nomination or other business was not properly brought before the meeting and in accordance with the provisions of these Bylaws, and that such nomination or other business not properly brought before the meeting shall be disregarded and/or shall not be transacted. Notwithstanding anything to the contrary in these Bylaws, if the Noticing Stockholder (or a qualified representative of the Noticing Stockholder) does not appear at the annual or special meeting, as applicable, to present a nomination or other business, such nomination shall be disregarded and such other business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.6, to be considered a “qualified representative” of the Noticing Stockholder, a person must be authorized by a document authorizing another person or persons to act for such stockholder as proxy at the meeting of stockholders and such person must produce the document or a reliable reproduction of such document at the meeting of stockholders. A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission must either set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. If it is determined that such transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information upon which such inspectors or such persons relied.
(2)    Exchange Act Compliance. Notwithstanding the foregoing provisions of this Section 2.6, a stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.6; provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.6. Nothing in these Bylaws shall be deemed to affect any rights (a) of the holders of any class or series of stock having a preference over the common stock of the Corporation as to dividends or upon liquidation to elect directors under specified circumstances, or (b) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or any other applicable federal or state securities law with respect to that stockholder’s request to include proposals in the Corporation’s proxy statement.
(3)    Updates and Supplements. In addition, to be considered timely, a Noticing Stockholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting of stockholders and as of the date that is ten Business Days prior to the meeting of stockholders or any adjournment, recess, rescheduling or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation not later than five Business Days after the record date for the meeting of stockholders in the case of the update and supplement required to be made as of the record date, and not later than eight Business Days prior to the date for the meeting of stockholders or any adjournment, recess, rescheduling or postponement thereof in the case of the update and supplement required to be made as of ten Business Days prior to the meeting of stockholders or any adjournment, recess, rescheduling or postponement thereof. In addition, if the Noticing Stockholder has delivered to the Corporation a notice relating to the nomination of directors, the Noticing Stockholder shall deliver to the
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Corporation not later than eight Business Days prior to the date of the meeting or any adjournment, recess, rescheduling or postponement thereof (or, if not practicable, on the first practicable date prior to the date to which the annual meeting has been adjourned or postponed) reasonable evidence that it has complied with the requirements of Rule 14a-19 of the Exchange Act (or any successor provision). For the avoidance of doubt, the obligation to update and supplement set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of the stockholders.
(E)    Certain Definitions; Interpretations. For purposes of these Bylaws,
(1)    “Affiliate” shall have the meaning attributed to such term in Rule 12b-2 under the Exchange Act;
(2)    “Associate” shall have the meaning attributed to such term in Rule 12b-2 under the Exchange Act;
(3) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in Denver, Colorado are authorized or obligated by law or executive order to close;
(4)    “Close of Business” on a particular day shall mean 5:00 p.m. local time at the principal executive offices of the Corporation, and if an applicable deadline falls on the Close of Business on a day that is not a Business Day, then the applicable deadline shall be deemed to be the Close of Business on the immediately preceding Business Day;
(5)    “delivery” of any notice or materials by a stockholder as required to be “delivered” shall mean, both (a) hand delivery, overnight courier service, or by certified or registered mail, return receipt requested, in each case to the Secretary at the principal executive offices of the Corporation, and (b) electronic mail to the Secretary; ¶
(6)    “public announcement” shall mean disclosure: (a) in a press release released by the Corporation, provided such press release is released by the Corporation following its customary procedures, as reported by the Dow Jones News Service, Associated Press, Business Wire, PR Newswire or a comparable news service, or is generally available on internet news sites, or (b) in a document publicly filed by the Corporation with the SEC pursuant to Sections 13, 14 or 15(d) of the Exchange Act; and
(7)    “Stockholder Associated Person” shall mean, as to any Holder, (a) any person acting in concert with such Holder, (b) any person controlling, controlled by or under common control with such Holder or any of their respective Affiliates and Associates, or person acting in concert therewith, and (c) any member of the immediate family of such Holder or an Affiliate or Associate of such Holder.
For purposes of these Bylaws, the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation.” Where a reference in these Bylaws is made to any statue or regulation, such reference shall be to (1) the statute or regulation as amended from time to time (except as context may otherwise require) and (2) any rules or regulations promulgated thereunder.
2.7     Business and Conduct of Meetings
Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice (except to the extent that such notice is waived or is not required as provided in the DGCL or these Bylaws). Business transacted at any annual meeting of stockholders shall be limited to the purposes stated in the proxy statement for such annual meeting or brought before the annual meeting by or at the direction of the Board of Directors.
At every meeting of the stockholders, the Chairperson, if there be one, or in the case of a vacancy in the office or absence of the Chairperson, the Chief Executive Officer, or in the case of a vacancy in the office or absence of the Chief Executive Officer, the President, or in the case of a vacancy in the office or absence of the President, such other officer or director of the Corporation designated by the Board of Directors, shall act as chair of the meeting of the stockholders. The Secretary, or, in the absence of the Secretary, an Assistant Secretary, or in the absence of the Secretary and the Assistant Secretaries, a person appointed by the chair of the meeting, shall act as secretary of the meeting of the stockholders.
The Board of Directors may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate. Except to the extent inconsistent with such
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rules, regulations and procedures as adopted by the Board of Directors, the chair of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include the following: (A) the establishment of an agenda or order of business for the meeting; (B) rules and procedures for maintaining order at the meeting and the safety of those present, including regulation of the manner of voting and the conduct of discussion; (C) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine; (D) restrictions on entry to the meeting after the time fixed for the commencement thereof; (E) limitations on the time allotted to questions or comments by participants; and (F) restrictions on the use of cell phones, audio or video recording devices and similar devices at the meeting. The chairperson of the meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with these Bylaws and, if any proposed nomination or other business is not in compliance with these Bylaws, to declare that no action shall be taken on such nomination or other proposal and such nomination or other proposal shall be disregarded. Unless and to the extent determined by the Board of Directors or the chair of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The chair of the meeting shall have the power to adjourn the meeting to another place, if any, date and time. The chair of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting.
In advance of any meeting of stockholders, the Board of Directors may appoint one or more inspectors, who need not be stockholders, to act at the meeting and to make a written report thereof. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chair of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the person’s best ability. The inspectors shall have the duties prescribed by law.
2.8     List of Stockholders
The Corporation shall prepare, no later than the tenth day before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of ten days ending on the day before the meeting date (A) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting or (B) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.8 or to vote in person or by proxy at any meeting of stockholders.
2.9     Quorum, Adjournment and Postponement
Stockholders may take action on a matter at a meeting only if a quorum exists with respect to that matter. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the shares entitled to vote at the meeting, and who are present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. Where a separate vote by a class or classes or series is required, a majority of the outstanding shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter. Once a share is represented for any purpose at a meeting (other than solely to object (A) to holding the meeting or transacting business at the meeting, or (B) if it is a special meeting, to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice), it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
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The chair of the meeting or holders of a majority of the shares represented at the meeting may adjourn the meeting from time to time, whether or not there is a quorum. No notice of the time and place of adjourned meetings need be given if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are (i) announced at the meeting at which adjournment is taken, (ii) displayed, during the time scheduled for such meeting, on the same electronic network used to enable stockholders and proxy holders to participate in such meeting by means of remote communication or (iii) set forth in the notice of meeting given in accordance with Section 222(a) of the DGCL. At the adjournment meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 5.4 hereof and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Any previously scheduled meeting of the stockholders may be postponed, and unless the Certificate of Incorporation or any certificate of designations otherwise provides, any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such meeting of stockholders.
2.10    Voting and Proxies
Unless otherwise provided in the DGCL or in the Certificate of Incorporation, and subject to the other provisions of these Bylaws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the Corporation’s capital stock that has voting power and that is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed appointment of proxy shall be irrevocable if the appointment form states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.
If authorized by the Board of Directors, and subject to such guidelines as the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, participate in a meeting of stockholders and be deemed present in person and vote at such meeting whether such meeting is held at a designated place or solely by means of remote communication; provided that (A) the Corporation implements reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (B) the Corporation implements reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action is maintained by the Corporation.
2.11     Required Vote
When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the affirmative vote (which need not be by ballot) of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote with respect to the matter, unless the proposed action is one upon which, by express provision of law or of the Certificate of Incorporation, a different vote is specified and required, in which case such express provision shall govern and control with respect to that vote on that matter. Where a separate vote by a class or classes is required, the affirmative vote of the holders of a majority of the shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class or classes.
Notwithstanding the foregoing, the manner by which directors will be elected at any meeting of stockholders will be as follows, depending on whether the election is “contested” or “uncontested” (as such terms are defined below). In an uncontested election, directors shall be elected by a majority of the votes cast by holders of shares of the Corporation’s capital stock entitled to vote in the election of directors at any meeting of stockholders at which a quorum is present. In a contested election, directors shall be elected by a plurality of the votes cast by holders of shares of the Corporation’s capital stock entitled to vote in the election of directors at any meeting of stockholders at which a quorum is present. An election of directors will be “contested” if, in connection with any annual meeting or other meeting of stockholders, (A) the Secretary shall have received one or more notices that a stockholder has nominated or proposes to nominate a person or persons for election as a director, which notice(s) purports to be in compliance with the advance notice requirements set forth in Section 2.6 of these Bylaws, irrespective of whether the Board of Directors at any time determines that any such notice is not in compliance with such requirements, and
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(B) as of the date that is 14 days in advance of the date that the Corporation files its definitive proxy statement (regardless of whether or not thereafter amended, revised or supplemented) with the SEC each such notice has not been formally and irrevocably withdrawn by the applicable stockholder. Any election of directors that is not contested shall be “uncontested.” For purposes of these Bylaws, a majority of the votes cast means that the number of shares voted “for” a director’s election must exceed the number of votes cast “against” that director’s election (with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” that director’s election).
2.12     Stockholder Actions by Written Consent
Except as otherwise provided by the Certificate of Incorporation or any certificate of designations, any action required or permitted to be taken by the stockholders may be effected only at a duly called annual or special meeting of the Corporation and may not be effected by a written consent or consents by stockholders in lieu of a meeting.
2.13     Treasury Stock
The Corporation shall not vote, directly or indirectly, shares of its own capital stock owned by it or any subsidiary, and such shares shall not be counted in determining the total number of outstanding shares of the Corporation’s capital stock.

3.DIRECTORS
3.1     Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things, subject to any limitation set forth in the Certificate of Incorporation or as otherwise may be provided in the DGCL.
3.2     Number and Election
Subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, the number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the total number of directors which the Corporation would have if there were no vacancies.
3.3     Nomination of Directors
The Board of Directors shall nominate candidates to stand for election as directors, and other candidates also may be nominated by any Corporation stockholder pursuant to Section 2.6. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.4 hereof, and each director elected shall hold office until such director’s successor is elected and qualified or until the director’s earlier death, resignation or removal. Directors need not be stockholders.
3.4     Vacancies, Resignation and Removal
Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class shall be filled solely by the affirmative vote of a majority of the directors then in office, although fewer than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series may be filled by the affirmative vote of a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until the next election of directors, and until such director’s successor is elected and qualified, or until the director’s earlier death, resignation or removal. In the event that one or more directors resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next election of directors, and until such director’s successor is elected and qualified, or until the director’s earlier death, resignation or removal.
Any director may resign at any time by notice given in writing to the Corporation. Such resignation shall take effect at the date of receipt of such notice by the Corporation or at such later time as therein specified.
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3.5     Meetings
3.5.1     Regular Meetings
Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors or the Chairperson.
3.5.2     Special Meetings
Special meetings of the Board of Directors may be called by the Chairperson, the Chief Executive Officer or the President on one day’s notice to each director, either personally or by telephone, express delivery service (so that the scheduled delivery date of the notice is at least one day in advance of the meeting), facsimile transmission, electronic mail (effective when directed to an electronic mail address of the director), or other electronic transmission, as defined in Section 232(c) (or any successor section) of the DGCL (effective when directed to the director), and on five days’ notice by mail (effective upon deposit of such notice in the mail). The notice need not describe the purpose of a special meeting.
3.5.3     Telephone Meetings
Members of the Board of Directors may participate in a meeting of the board by any communication by means of which all participating directors can simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
3.5.4     Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board of Directors. The action must be evidenced by one or more consents in writing or by electronic transmission describing the action taken, signed or otherwise consented to by each director, and delivered to the Corporation for inclusion in the minute book.
3.5.5     Waiver of Notice of Meeting
A director may waive any notice required by law, the Certificate of Incorporation or these Bylaws before or after the date and time stated in the notice. Except as set forth below, the waiver must be in writing, signed by the director entitled to the notice, or made by electronic transmission by the director entitled to the notice, and delivered to the Corporation for inclusion in the minute book. Notwithstanding the foregoing, a director’s attendance at or participation in a meeting waives any required notice to the director of the meeting unless the director at the beginning of the meeting objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
3.6     Quorum, Vote and Organization of Meetings
At all meetings of the Board of Directors, a quorum of the Board of Directors consists of a majority of the total number of directors prescribed pursuant to Section 3.2 of these Bylaws. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law or by the Certificate of Incorporation or by these Bylaws.
At each meeting of the Board of Directors, the Chairperson or, in the Chairperson’s absence, another director selected by the Board of Directors, shall preside. The Secretary shall act as secretary at each meeting of the Board of Directors. If the Secretary is absent from any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
3.7     Committees of Directors
The Board of Directors may designate one or more committees, each committee to consist of one or more directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may by unanimous vote,
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appoint another member of the Board of Directors to act at the meeting in the place of such absent or disqualified member. Committee members may be removed from a committee by a majority vote of the directors then in office.
Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (A) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required to be submitted to the stockholders for approval or (B) adopting, amending or repealing any bylaw of the Corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when requested.
Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors, when required. Unless otherwise specified in the Board of Directors’ resolutions appointing the committee, all provisions of the DGCL and these Bylaws relating to meetings, action without meetings, notice (and waiver thereof), and quorum and voting requirements of the Board of Directors apply, as well, to such committees and their members.
3.8     Compensation of Directors
The Board of Directors shall have the authority to fix the compensation of directors. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
3.9     Chairperson
The members of the Board of Directors will appoint one of their number as the Chairperson. The Chairperson shall (when present) preside at all meetings of the Board of Directors and stockholders. The Chairperson shall perform such duties as usually appertain to the office or as may be prescribed by the Board of Directors or these Bylaws.

4.OFFICERS
4.1     Positions
The officers of the Corporation shall be a Chief Executive Officer, a President, a Secretary and a Treasurer, and such other officers as the Board of Directors (or an officer authorized by the Board of Directors) from time to time may appoint, including one or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant Treasurers. Each such officer shall exercise such powers and perform such duties as shall be set forth below and such other powers and duties as from time to time may be specified by the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the duties of such other officers. Any number of offices may be held by the same person, except that in no event shall the President and the Secretary be the same person. As set forth below, each of the Chief Executive Officer, President, and/or any Vice President may execute bonds, mortgages and other contracts on behalf of the Corporation, if required, except where required or permitted by law to be otherwise executed and except where the execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.
4.2     Chief Executive Officer
The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board of Directors, and shall be responsible for the execution of the policies of the Board of Directors. In the absence (or inability or refusal to act) of the Chairperson, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board of Directors. The Chief Executive Officer shall keep the Board of Directors fully informed and shall consult with them concerning the business of the Corporation, and in general shall perform all other duties normally incident to the office of chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time.
4.3     President
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The President shall have full responsibility and authority for management of the day-to-day operations of the Corporation. Unless otherwise provided by the Board of Directors, the President may, in the absence of the Chief Executive Officer, perform duties and exercise powers of the Chief Executive Officer. The President shall perform all such other duties as are incident to the office of president and such other duties as may be prescribed by the Chief Executive Officer or the Board of Directors from time to time.
4.4     Vice President
In the absence of the President or in the event of the President’s inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice President shall perform all such other duties as from time to time may be assigned to them by the Chief Executive Officer or the Board of Directors from time to time.
4.5     Secretary
The Secretary shall have responsibility for preparation of minutes of meetings of the Board of Directors and of the stockholders and for authenticating records of the Corporation. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors. The Secretary or an Assistant Secretary may also attest all instruments signed by any other officer of the Corporation.
4.6     Treasurer
The Treasurer shall have responsibility for the custody of the corporate funds and securities and shall see to it that full and accurate accounts of receipts and disbursements are kept in books belonging to the Corporation. The Treasurer shall render to the Chairperson, the Chief Executive Officer, the President, and the Board of Directors, upon request, an account of all financial transactions and of the financial condition of the Corporation.
4.7     Assistant Secretaries and Assistant Treasurers
The Assistant Secretaries and Assistant Treasurer, if any are appointed, shall in general perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, by the Chief Executive Officer, the President or the Board of Directors. The Assistant Secretaries and Assistant Treasurer, shall, in the absence of or upon the inability or refusal to act by the Secretary or the Treasurer, respectively, perform the duties and exercise the powers of the Secretary or Treasurer, respectively.
4.8     Term of Office
Each officer of the Corporation shall hold office until such officer’s successors are chosen and qualify or until such officer’s earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later date specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Any officer elected or appointed by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board of Directors whenever, in its judgment, the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed.
Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise, may be filled at any time and from time to time by the Board of Directors for the unexpired portion of the term.
4.9     Compensation
The compensation of officers of the Corporation shall be fixed by the Board of Directors or by any committee of the Board of Directors authorized by the Board of Directors to prescribe the compensation of such other officers.
4.10     Fidelity Bonds
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The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.

5.CAPITAL STOCK
5.1     Certificates of Stock; Uncertificated Shares
The shares of stock of the Corporation shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock, or shall be represented by certificates, or a combination of both. To the extent that shares of stock are represented by certificates, such certificates, whenever authorized by the Board of Directors, shall be in such form as shall be approved by the Board of Directors. Any certificates representing shares of stock shall be signed in the name of the Corporation by the Chairperson, Chief Executive Officer, President or any Vice President, and by the Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
5.2     Transfer
Transfers of shares shall be made on the share register or transfer books of the Corporation, which may be maintained by a third party registrar or transfer agent, upon surrender for cancellation of the certificate with an assignment and power of transfer thereon or attached thereto endorsed by the person(s) named in the certificate or, if such shares are uncertificated, upon receipt of proper transfer instructions from the registered holder of such uncertificated shares. No transfer shall be made that is inconsistent with the provisions of applicable law.
5.3     Lost Certificates
The Board of Directors, Chairperson, Chief Executive Officer, President or Secretary may direct a new certificate of stock to be issued in place of any certificate theretofore issued by the Corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance of a new certificate, the board or any such officer may, as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or such owner’s legal representative, to advertise the same in such manner as the board or such officer shall require and/or to give the Corporation a bond or indemnity, in such sum or on such terms and conditions as the board or such officer may direct, as indemnity against any claim that may be made against the Corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares.
5.4     Record Date
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 days nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the Close of Business on the day next preceding the day on which notice is given, or, if notice is waived, at the Close of Business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, unless the Board of Directors fixes a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the Close of Business on the day on which the Board of Directors adopts the resolution relating thereto.
5.5     Stockholders of Record
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The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise may be provided by the DGCL.

6.INDEMNIFICATION; INSURANCE
6.1     Right to Indemnification
Each person who was or is a party or is threatened to be made a party to or is involved in any proceeding by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, partner (limited or general) or agent of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, including service with respect to an employee benefit plan, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and any successor to the Corporation by merger or otherwise) to the fullest extent authorized by, and subject to the conditions and (except as provided herein) procedures set forth in the DGCL, as the same exists or may hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of indemnification hereunder for past acts or omissions of any such person insofar as such amendment limits or prohibits the indemnification rights that said law permitted the Corporation to provide prior to such amendment), against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA truces or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person (except for a suit or action pursuant to Section 6.2 hereof) only if such proceeding (or part thereof) was authorized by the Board of Directors. Persons who are not directors or officers of the Corporation and are not so serving at the request of the Corporation may be similarly indemnified in respect of such service to the extent authorized at any time by the Board of Directors.
The indemnification conferred in this Section 6.1 also shall include the right to be paid by the Corporation (and such successor) the expenses (including attorneys’ fees) incurred in the defense of or other involvement in any such proceeding in advance of its final disposition; provided, however, that, if and to the extent the DGCL requires, the payment of such expenses (including attorneys’ fees) incurred by a director or officer in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer to repay all amounts so paid in advance if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section 6.1 or otherwise; and provided further, that, such expenses incurred by other employees and agents may be so paid in advance upon such terms and conditions, if any, as the Board of Directors deems appropriate.
6.2     Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring an action against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such action. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed or is otherwise not entitled to indemnification under Section 6.1, but the burden of proving such defense shall be on the Corporation. The failure of the Corporation (in the manner provided under the DGCL) to have made a determination prior to or after the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL shall not be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Unless otherwise specified in an agreement with the claimant, an actual determination by the Corporation (in the manner provided under the DGCL) after the commencement of such action that the claimant has not met such applicable standard of conduct shall not be a defense to the action, but shall create a presumption that the claimant has not met the applicable standard of conduct.
6.3     Non-exclusivity
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The rights to indemnification and advance payment of expenses provided by Section 6.1 hereof shall not be deemed exclusive of any other rights to which those seeking indemnification and advance payment of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
6.4     Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto provided by, or granted pursuant to, Section 6.1 hereof shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee, partner or agent and shall inure to the benefit of the personal representatives, heirs, executors and administrators of such person.
6.5     Insurance
The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, partner (limited or general) or agent of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, against any liability asserted against such person or incurred by such person in any such capacity, or arising out of such person’s status as such, and related expenses, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.
6.6     Reliance on Provisions
Each person who shall act as a director or officer of the Corporation, or as the legal representative of such person, or who while a director or officer serves at the request of the Corporation as a director, officer, employee, trustee or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, shall be deemed to be doing so in reliance upon rights of indemnification provided by this Section 6. Any repeal or modification of the provisions of this Section 6 shall not adversely affect any right or benefit of any potential claimant existing at the time of such repeal or modification.

7.GENERAL PROVISIONS
7.1     Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office or at its principal place of business.
7.2     Dividends
The Board of Directors may declare dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and the laws of the State of Delaware.
7.3     Reserves
The Board of Directors may set apart, out of the funds of the Corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve.
7.4     Execution of Instruments
All checks, drafts or other orders for the payment of money, and promissory notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
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7.5     Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
7.6     Reliance on Books, Reports and Records
Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation as provided by law, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care.
7.7     Time Periods
In applying any provision of these Bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
7.8     Seal
The Board of Directors shall determine if the Corporation shall have a corporate seal and, if so determined, the corporate seal shall be in such form as the Board of Directors shall approve and may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
7.9     Amendment of Bylaws
These Bylaws may be altered, amended or repealed or new Bylaws may be approved at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting and, in the case of a meeting of the Board of Directors, in a notice given not less than two days prior to the meeting; provided, however, that, in the case of alterations, amendments, repeals or the adoption of new Bylaws by the Board of Directors, notwithstanding any other provision of these Bylaws or any provision of applicable law that might otherwise permit a lesser vote or no vote, the affirmative vote of a majority of all of the members of the Board of Directors shall be required to alter, amend or repeal any provision of these Bylaws or to approve new Bylaws. In the case of alterations, amendments, repeals or the adoption of new Bylaws by the stockholders, the affirmative vote of the holders of at least a majority of the total voting power of the shares outstanding and entitled to vote on the matter shall be required to alter, amend or repeal any provision of these Bylaws or to approve new Bylaws.
7.10     Severability
If any provision or provisions of these Bylaws shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (A) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these Bylaws (including, without limitation, each portion of any paragraph of these Bylaws containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (B) to the fullest extent possible, the provisions of these Bylaws (including, without limitation, each such portion of any paragraph of these Bylaws containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.

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The foregoing Sixth Amended & Restated Bylaws were adopted by the Board of Directors on October 26, 2022.


/s/ Travis L. Counts
Travis L. Counts
Chief Legal Officer and Secretary

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Exhibit 31.1
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO RULE 13a‑ 14(a)
I, Chris Doyle, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q for the period ended September 30, 2022 of Civitas Resources, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:  October 31, 2022
 /s/ Chris Doyle
Chris Doyle
President and Chief Executive Officer
(principal executive officer)



Exhibit 31.2
CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO RULE 13a‑ 14(a)
I, Marianella Foschi, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q for the period ended September 30, 2022 of Civitas Resources, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
1)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
2)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
3)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
4)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5)The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
1)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
2)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:  October 31, 2022
 /s/ Marianella Foschi
Marianella Foschi
Chief Financial Officer (principal financial officer)



Exhibit 32.1
Certification of the Chief Executive Officer
Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of Civitas Resources, Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Chris Doyle, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1)          The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)          The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:  October 31, 2022
/s/ Chris Doyle
Chris Doyle
 
President and Chief Executive Officer
(principal executive officer)



Exhibit 32.2
Certification of the Principle Financial Officer
Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of Civitas Resources, Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Marianella Foschi, Chief Financial Officer, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1)          The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)          The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: October 31, 2022
 /s/ Marianella Foschi
Marianella Foschi
Chief Financial Officer (principal financial officer)