If the
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a 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.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be either our senior debt securities (“Senior Debt Securities”) or our subordinated debt securities
(“Subordinated Debt Securities,” and, together with the Senior Debt Securities, “Debt Securities”). The Senior Debt Securities and the Subordinated Debt Securities will be issued under separate indentures among us, the Subsidiary
Guarantors (as defined below) of such Debt Securities, if any, and a trustee to be determined (the “Trustee”). Senior Debt Securities will be issued under a “Senior Indenture” and Subordinated Debt Securities will be issued under
a “Subordinated Indenture.” Together, the Senior Indenture and the Subordinated Indenture are called “Indentures.”
The Debt Securities may be issued from time to time in one or more series. The particular terms of each series that are offered by a
prospectus supplement will be described in the prospectus supplement.
Unless the Debt Securities are guaranteed by our subsidiaries as
described below, the rights of Concho and our creditors, including holders of the Debt Securities, to participate in the assets of any subsidiary upon the latter’s liquidation or reorganization, will be subject to the prior claims of the
subsidiary’s creditors, except to the extent that we may ourselves be a creditor with recognized claims against such subsidiary.
We
have summarized selected provisions of the Indentures below. The summary is not complete. The form of each Indenture has been filed with the SEC as an exhibit to the registration statement of which this prospectus is a part, and you should read the
Indentures for provisions that may be important to you. Capitalized terms used in the below summary but not otherwise defined herein have the meanings specified in the Indentures.
General
The Indentures provide that Debt
Securities in separate series may be issued thereunder from time to time without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the Debt Securities of any series. We will determine the terms and
conditions of the Debt Securities, including the maturity, principal and interest, but those terms must be consistent with the Indenture. The Debt Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment to the prior payment in full of all of our Senior Debt (as defined
in the Subordinated Indenture) as described under “— Subordination of Subordinated Debt Securities” and in the prospectus supplement applicable to any Subordinated Debt Securities. If the prospectus supplement so indicates, the Debt
Securities will be convertible into our common stock.
If specified in the prospectus supplement respecting a particular series of Debt
Securities, certain subsidiaries of Concho named herein (each a “Subsidiary Guarantor”) will fully and unconditionally guarantee (the “Subsidiary Guarantee”) that series as described under “— Subsidiary Guarantee”
and in the prospectus supplement. Each Subsidiary Guarantee will be an unsecured obligation of the Subsidiary Guarantor. A Subsidiary Guarantee of Subordinated Debt Securities will be subordinated to the Senior Debt of the Subsidiary Guarantor on
the same basis as the Subordinated Debt Securities are subordinated to our Senior Debt.
The applicable prospectus supplement will set
forth the price or prices at which the Debt Securities to be issued will be offered for sale and will describe the following terms of such Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or Subordinated Debt Securities and, if Subordinated Debt Securities, the related
subordination terms;
(3) whether any Subsidiary Guarantor will provide a Subsidiary Guarantee of the Debt Securities;
8
(4) any limit on the aggregate principal amount of the Debt Securities;
(5) each date on which the principal of the Debt Securities will be payable;
(6) the interest rate that the Debt Securities will bear and the Interest Payment Dates for the Debt Securities;
(7) each place where payments on the Debt Securities will be payable;
(8) any terms upon which the Debt Securities may be redeemed, in whole or in part, at our option;
(9) any sinking fund or other provisions that would obligate us to redeem or otherwise repurchase the Debt Securities;
(10) the portion of the principal amount, if less than all, of the Debt Securities that will be payable upon declaration of acceleration of
the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default (as described under “— Events of Default”);
(13) whether the Debt Securities are convertible into our common stock and, if so, the terms and conditions upon which conversion will be
effected, including the initial conversion price or conversion rate and any adjustments thereto and the conversion period;
(14) any
addition to or change in the covenants in the Indenture applicable to the Debt Securities; and
(15) any other terms of the Debt
Securities not inconsistent with the provisions of the Indenture.
Debt Securities, including any Debt Securities that provide for an
amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof (“Original Issue Discount Securities”), may be sold at a substantial discount below their principal amount.
Special United States federal income tax considerations applicable to Debt Securities sold at an original issue discount may be described in the applicable prospectus supplement. In addition, special United States federal income tax or other
considerations applicable to any Debt Securities that are denominated in a currency or currency unit other than United States dollars may be described in the applicable prospectus supplement.
Subordination of Subordinated Debt Securities
The indebtedness evidenced by the Subordinated Debt Securities will, to the extent set forth in the Subordinated Indenture with respect to each
series of Subordinated Debt Securities, be subordinated in right of payment to the prior payment in full of all of our Senior Debt, including the Senior Debt Securities, and it may also be senior in right of payment to all of our Subordinated Debt.
The prospectus supplement relating to any Subordinated Debt Securities will summarize the subordination provisions of the Subordinated Indenture applicable to that series including:
|
•
|
|
the applicability and effect of such provisions upon any payment or distribution respecting that series following any liquidation, dissolution or other
winding-up,
or any
assignment for the benefit of creditors or other marshalling of assets or any bankruptcy, insolvency or similar proceedings;
|
|
•
|
|
the applicability and effect of such provisions in the event of specified defaults with respect to any Senior Debt, including the circumstances under which and the periods during which we will be prohibited from making
payments on the Subordinated Debt Securities; and
|
9
|
•
|
|
the definition of Senior Debt applicable to the Subordinated Debt Securities of that series and, if the series is issued on a senior subordinated basis, the definition of Subordinated Debt applicable to that series.
|
The prospectus supplement will also describe as of a recent date the approximate amount of Senior Debt to which the
Subordinated Debt Securities of that series will be subordinated.
The failure to make any payment on any of the Subordinated Debt
Securities by reason of the subordination provisions of the Subordinated Indenture described in the prospectus supplement will not be construed as preventing the occurrence of an Event of Default with respect to the Subordinated Debt Securities
arising from any such failure to make payment.
The subordination provisions described above will not be applicable to payments in respect
of the Subordinated Debt Securities from a defeasance trust established in connection with any legal defeasance or covenant defeasance of the Subordinated Debt Securities as described under “— Legal Defeasance and Covenant
Defeasance.”
Subsidiary Guarantee
If specified in the prospectus supplement, one or more of the Subsidiary Guarantors will guarantee the Debt Securities of a series. Unless
otherwise indicated in the prospectus supplement, the following provisions will apply to the Subsidiary Guarantee of the Subsidiary Guarantor.
Subject to the limitations described below and in the prospectus supplement, one or more of the Subsidiary Guarantors will jointly and
severally, fully and unconditionally guarantee the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all our payment obligations under the Indentures and the Debt Securities of a series, whether for principal
of, premium, if any, or interest on the Debt Securities or otherwise. The Subsidiary Guarantors will also pay all expenses (including reasonable counsel fees and expenses) incurred by the applicable Trustee in enforcing any rights under a Subsidiary
Guarantee with respect to a Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary Guarantor’s Subsidiary
Guarantee will be subordinated in right of payment to the Senior Debt of such Subsidiary Guarantor on the same basis as the Subordinated Debt Securities are subordinated to our Senior Debt. No payment will be made by any Subsidiary Guarantor under
its Subsidiary Guarantee during any period in which payments by us on the Subordinated Debt Securities are suspended by the subordination provisions of the Subordinated Indenture.
Each Subsidiary Guarantee will be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by the relevant
Subsidiary Guarantor without rendering such Subsidiary Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full of all the applicable Debt Securities (or such Debt Securities are
otherwise satisfied and discharged in accordance with the provisions of the applicable Indenture) or (b) released as described in the following paragraph;
(2) be binding upon each Subsidiary Guarantor; and
(3) inure to the benefit of and be enforceable by the applicable Trustee, the Holders and their successors, transferees and assigns.
10
In the event that (a) a Subsidiary Guarantor ceases to be a Subsidiary, (b) either
legal defeasance or covenant defeasance occurs with respect to the series or (c) all or substantially all of the assets or all of the Capital Stock of such Subsidiary Guarantor is sold, including by way of sale, merger, consolidation or
otherwise, such Subsidiary Guarantor will be released and discharged of its obligations under its Subsidiary Guarantee without any further action required on the part of the Trustee or any Holder, and no other person acquiring or owning the assets
or Capital Stock of such Subsidiary Guarantor will be required to enter into a Subsidiary Guarantee. In addition, the prospectus supplement may specify additional circumstances under which a Subsidiary Guarantor can be released from its Subsidiary
Guarantee.
Form, Exchange and Transfer
The Debt Securities of each series will be issuable only in fully registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral multiples thereof.
At the option of the Holder, subject to
the terms of the applicable Indenture and the limitations applicable to securities in global form (“Global Securities”), Debt Securities of each series will be exchangeable for other Debt Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount.
Subject to the terms of the applicable Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange as provided above or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed) at the office of the Security Registrar or
at the office of any transfer agent designated by us for such purpose. No service charge will be made for any registration of transfer or exchange of Debt Securities, but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in that connection. Such transfer or exchange will be effected upon the Security Registrar or such transfer agent, as the case may be, being satisfied with the documents of title and identity of the person making the
request. The Security Registrar and any other transfer agent initially designated by us for any Debt Securities will be named in the applicable prospectus supplement. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each Place of Payment for the Debt Securities of each series.
If the Debt Securities of any series (or of any series and specified tenor) are to be redeemed in part, we will not be required to
(1) issue, register the transfer of or exchange any Debt Security of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and ending at the close of business on the day of such mailing or (2) register the transfer of or exchange any Debt Security so selected for redemption, in whole or in
part, except the unredeemed portion of any such Debt Security being redeemed in part.
Global Securities
Some or all of the Debt Securities of any series may be represented, in whole or in part, by one or more Global Securities that will have an
aggregate principal amount equal to that of the Debt Securities they represent. Each Global Security will be registered in the name of a Depositary or its nominee identified in the applicable prospectus supplement, will be deposited with such
Depositary or nominee or its custodian and will bear a legend regarding the restrictions on exchanges and registration of transfer thereof referred to below and any such other matters as may be provided for pursuant to the applicable Indenture.
11
Notwithstanding any provision of the Indentures or any Debt Security described in this
prospectus, no Global Security may be exchanged in whole or in part for Debt Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global
Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such as required by the applicable Indenture, and in either case we fail to appoint a successor Depositary within 90 days;
(2) an Event of Default with respect to the Debt Securities represented by such Global Security has occurred and is continuing and the Trustee
has received a written request from the Depositary to issue certificated Debt Securities;
(3) subject to the rules of the Depositary, we
shall have elected to terminate the book-entry system through the Depositary; or
(4) other circumstances exist, in addition to or in lieu
of those described above, as may be described in the applicable prospectus supplement.
All certificated Debt Securities issued in
exchange for a Global Security or any portion thereof will be registered in such names as the Depositary may direct.
As long as the
Depositary, or its nominee, is the registered holder of a Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and Holder of such Global Security and the Debt Securities that it represents for all
purposes under the Debt Securities and the applicable Indenture. Except in the limited circumstances referred to above, owners of beneficial interests in a Global Security will not be entitled to have such Global Security or any Debt Securities that
it represents registered in their names, will not receive or be entitled to receive physical delivery of certificated Debt Securities in exchange for those interests and will not be considered to be the owners or Holders of such Global Security or
any Debt Securities that it represents for any purpose under the Debt Securities or the applicable Indenture. All payments on a Global Security will be made to the Depositary or its nominee, as the case may be, as the Holder of the security. The
laws of some jurisdictions may require that some purchasers of Debt Securities take physical delivery of such Debt Securities in certificated form. These laws may impair the ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to institutions that have accounts with the Depositary or its nominee
(“participants”) and to persons that may hold beneficial interests through participants. In connection with the issuance of any Global Security, the Depositary will credit, on its book-entry registration and transfer system, the respective
principal amounts of Debt Securities represented by the Global Security to the accounts of its participants. Ownership of beneficial interests in a Global Security will be shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the Depositary (with respect to participants’ interests) or any such participant (with respect to interests of Persons held by such participants on their behalf). Payments, transfers, exchanges and other
matters relating to beneficial interests in a Global Security may be subject to various policies and procedures adopted by the Depositary from time to time. None of us, the Subsidiary Guarantors, the Trustees or the agents of us, the Subsidiary
Guarantors or the Trustees will have any responsibility or liability for any aspect of the Depositary’s or any participant’s records relating to, or for payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial interests.
12
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment of interest on a Debt Security on any Interest Payment Date will be
made to the Person in whose name such Debt Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Unless otherwise indicated in the applicable prospectus supplement, principal of and any premium and interest on the Debt Securities of a
particular series will be payable at the office of such Paying Agent or Paying Agents as we may designate for such purpose from time to time, except that at our option payment of any interest on Debt Securities in certificated form may be made by
check mailed to the address of the Person entitled thereto as such address appears in the Security Register. Unless otherwise indicated in the applicable prospectus supplement, the corporate trust office of the Trustee under the Senior Indenture in
The City of New York will be designated as sole Paying Agent for payments with respect to Senior Debt Securities of each series, and the corporate trust office of the Trustee under the Subordinated Indenture in The City of New York will be
designated as the sole Paying Agent for payment with respect to Subordinated Debt Securities of each series. Any other Paying Agents initially designated by us for the Debt Securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional Paying Agents or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts, except that we will be required to maintain a Paying Agent in
each Place of Payment for the Debt Securities of a particular series.
All money paid by us to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment.
Consolidation, Merger and Sale of Assets
Unless otherwise specified in the prospectus supplement, we may not consolidate with or merge into, or transfer, lease or otherwise dispose of
all or substantially all of our assets to, any Person (a “Successor Person”), and may not permit any Person to consolidate with or merge into us, unless:
(1) the Successor Person (if not us) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on the Debt Securities and under the Indentures;
(2) immediately before and after
giving pro forma effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing; and
(3) several other conditions, including any additional conditions with respect to any particular Debt Securities specified in the applicable
prospectus supplement, are met.
The Successor Person (if not us) will be substituted for us under the applicable Indenture with the same
effect as if it had been an original party to such Indenture, and, except in the case of a lease, we will be relieved from any further obligations under such Indenture and the Debt Securities.
13
Events of Default
Unless otherwise specified in the prospectus supplement, each of the following will constitute an “Event of Default” under the
applicable Indenture with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt Security
of that series when due, whether or not, in the case of Subordinated Debt Securities, such payment is prohibited by the subordination provisions of the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that series when due, continued for 30 days, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the subordination provisions of the Subordinated Indenture;
(3) failure to
deposit any sinking fund payment, when due, in respect of any Debt Security of that series, whether or not, in the case of Subordinated Debt Securities, such deposit is prohibited by the subordination provisions of the Subordinated Indenture;
(4) failure to perform or comply with the provisions described under “— Consolidation, Merger and Sale of Assets”;
(5) failure to perform any of our other covenants in such Indenture (other than a covenant included in such Indenture solely for the benefit
of a series other than that series), continued for 60 days after written notice has been given by the applicable Trustee, or the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series, as provided in such
Indenture;
(6) any Debt of ourself, any Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the series, such Subsidiary
Guarantor, is not paid within any applicable grace period after final maturity or is accelerated by its holders because of a default and the total amount of such Debt unpaid or accelerated exceeds $20.0 million;
(7) any judgment or decree for the payment of money in excess of $20.0 million is entered against us, any Significant Subsidiary or, if a
Subsidiary Guarantor has guaranteed the series, such Subsidiary Guarantor, remains outstanding for a period of 60 consecutive days following entry of such judgment and is not discharged, waived or stayed;
(8) certain events of bankruptcy, insolvency or reorganization affecting us, any Significant Subsidiary or, if a Subsidiary Guarantor has
guaranteed the series, such Subsidiary Guarantor; and
(9) if any Subsidiary Guarantor has guaranteed such series, the Subsidiary
Guarantee of any such Subsidiary Guarantor is held by a final
non-appealable
order or judgment of a court of competent jurisdiction to be unenforceable or invalid or ceases for any reason to be in full force
and effect (other than in accordance with the terms of the applicable Indenture) or any Subsidiary Guarantor or any Person acting on behalf of any Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations under its
Subsidiary Guarantee (other than by reason of a release of such Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of the applicable Indenture).
If an Event of Default (other than an Event of Default with respect to Concho Resources Inc. described in clause (8) above) with respect
to the Debt Securities of any series at the time Outstanding occurs and is continuing, either the applicable Trustee or the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series by notice as provided in the
Indenture may declare the principal amount of the Debt Securities of that series (or, in the case of any Debt Security that is an Original Issue Discount Security, such portion of the principal amount of such Debt Security as may be specified in the
terms of such Debt Security) to be due and payable immediately, together with any accrued and unpaid interest thereon. If an Event of Default
14
with respect to Concho Resources Inc. described in clause (8) above with respect to the Debt Securities of any series at the time Outstanding occurs, the principal amount of all the Debt
Securities of that series (or, in the case of any such Original Issue Discount Security, such specified amount) will automatically, and without any action by the applicable Trustee or any Holder, become immediately due and payable, together with any
accrued and unpaid interest thereon. After any such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in principal amount of the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration and its consequences if all Events of Default with respect to that series, other than the
non-payment
of accelerated principal (or other specified amount),
have been cured or waived as provided in the applicable Indenture. For information as to waiver of defaults, see “— Modification and Waiver” below.
Subject to the provisions of the Indentures relating to the duties of the Trustees in case an Event of Default has occurred and is continuing,
no Trustee will be under any obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the Holders, unless such Holders have offered to such Trustee reasonable security or indemnity.
Subject to such provisions for the indemnification of the Trustees, the Holders of a majority in principal amount of the Outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to institute any proceeding with respect to the applicable Indenture, or for
the appointment of a receiver or a trustee, or for any other remedy thereunder, unless:
(1) such Holder has previously given to the
Trustee under the applicable Indenture written notice of a continuing Event of Default with respect to the Debt Securities of that series;
(2) the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series have made written request, and such
Holder or Holders have offered reasonable security or indemnity, to the Trustee to institute such proceeding as trustee; and
(3) the
Trustee has failed to institute such proceeding and has not received from the Holders of a majority in principal amount of the Outstanding Debt Securities of that series a direction inconsistent with such request within 60 days after such notice,
request and offer.
However, such limitations do not apply to a suit instituted by a Holder of a Debt Security for the enforcement of
payment of the principal of or any premium or interest on such Debt Security on or after the applicable due date specified in such Debt Security or, if applicable, to convert such Debt Security.
We will be required to furnish to each Trustee annually a statement by certain of our officers as to whether or not we, to their knowledge,
are in default in the performance or observance of any of the terms, provisions and conditions of the applicable Indenture and, if so, specifying all such known defaults.
Modification and Waiver
We may modify or
amend an Indenture without the consent of any Holders of the Debt Securities in certain circumstances, including:
(1) to evidence the
succession under the Indenture of another Person to us or any Subsidiary Guarantor and to provide for its assumption of our or such Subsidiary Guarantor’s obligations to Holders of Debt Securities;
(2) to make any changes that would add any additional covenants of us or the Subsidiary Guarantors for the benefit of the Holders of Debt
Securities or that do not adversely affect the rights under the Indenture of the Holders of Debt Securities in any material respect;
15
(3) to add any additional Events of Default;
(4) to provide for uncertificated Debt Securities in addition to or in place of certificated Debt Securities;
(5) to secure the Debt Securities;
(6) to establish the form or terms of any series of Debt Securities;
(7) to evidence and provide for the acceptance of appointment under the Indenture of a successor Trustee;
(8) to cure any ambiguity, defect or inconsistency;
(9) to add Subsidiary Guarantors; or
(10) in the case of any Subordinated Debt Security, to make any change in the subordination provisions that limits or terminates the benefits
applicable to any holder of Senior Debt.
Other modifications and amendments of an Indenture may be made by us, the Subsidiary Guarantors,
if applicable, and the applicable Trustee with the consent of the Holders of not less than a majority in principal amount of the Outstanding Debt Securities of each series affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each Outstanding Debt Security affected thereby:
(1) change the
Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security;
(2) reduce the principal
amount of, or any premium or interest on, any Debt Security;
(3) reduce the amount of principal of an Original Issue Discount Security or
any other Debt Security payable upon acceleration of the Maturity thereof;
(4) change the place or currency of payment of principal of,
or any premium or interest on, any Debt Security;
(5) impair the right to institute suit for the enforcement of any payment due on or any
conversion right with respect to any Debt Security;
(6) modify the subordination provisions in the case of Subordinated Debt Securities,
or modify any conversion provisions, in either case in a manner adverse to the Holders of the Subordinated Debt Securities;
(7) except as
provided in the applicable Indenture, release the Subsidiary Guarantee of a Subsidiary Guarantor;
(8) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the consent of whose Holders is required for modification or amendment of the Indenture;
(9) reduce the percentage in principal amount of Outstanding Debt Securities of any series necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults;
(10) modify such provisions with respect to modification, amendment or
waiver; or
(11) following the making of an offer to purchase Debt Securities from any Holder that has been made pursuant to a covenant in
such Indenture, modify such covenant in a manner adverse to such Holder.
16
The Holders of not less than a majority in principal amount of the Outstanding Debt Securities of
any series may waive compliance by us with certain restrictive provisions of the applicable Indenture. The Holders of not less than a majority in principal amount of the Outstanding Debt Securities of any series may waive any past default under the
applicable Indenture, except a default in the payment of principal, premium or interest and certain covenants and provisions of the Indenture which cannot be amended without the consent of the Holder of each Outstanding Debt Security of such series.
Each of the Indentures provides that in determining whether the Holders of the requisite principal amount of the Outstanding Debt
Securities have given or taken any direction, notice, consent, waiver or other action under such Indenture as of any date:
(1) the
principal amount of an Original Issue Discount Security that will be deemed to be Outstanding will be the amount of the principal that would be due and payable as of such date upon acceleration of maturity to such date;
(2) if, as of such date, the principal amount payable at the Stated Maturity of a Debt Security is not determinable (for example, because it
is based on an index), the principal amount of such Debt Security deemed to be Outstanding as of such date will be an amount determined in the manner prescribed for such Debt Security;
(3) the principal amount of a Debt Security denominated in one or more foreign currencies or currency units that will be deemed to be
Outstanding will be the United States-dollar equivalent, determined as of such date in the manner prescribed for such Debt Security, of the principal amount of such Debt Security (or, in the case of a Debt Security described in clause (1) or
(2) above, of the amount described in such clause); and
(4) certain Debt Securities, including those owned by us, any Subsidiary
Guarantor or any of our other Affiliates, will not be deemed to be Outstanding.
Except in certain limited circumstances, we will be
entitled to set any day as a record date for the purpose of determining the Holders of Outstanding Debt Securities of any series entitled to give or take any direction, notice, consent, waiver or other action under the applicable Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain limited circumstances, the Trustee will be entitled to set a record date for action by Holders. If a record date is set for any action to be taken by Holders of a particular
series, only persons who are Holders of Outstanding Debt Securities of that series on the record date may take such action. To be effective, such action must be taken by Holders of the requisite principal amount of such Debt Securities within a
specified period following the record date. For any particular record date, this period will be 180 days or such other period as may be specified by us (or the Trustee, if it sets the record date), and may be shortened or lengthened (but not beyond
180 days) from time to time.
Satisfaction and Discharge
Each Indenture will be discharged and will cease to be of further effect as to all outstanding Debt Securities of any series issued thereunder,
when:
(1) either:
(a) all
outstanding Debt Securities of that series that have been authenticated (except lost, stolen or destroyed Debt Securities that have been replaced or paid and Debt Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to us) have been delivered to the Trustee for cancellation; or
(b) all outstanding Debt Securities of that series that
have been not delivered to the Trustee for cancellation have become due and payable or will become due and payable at their Stated Maturity within one year or are to
17
be called for redemption within one year under arrangements satisfactory to the Trustee and in any case we have irrevocably deposited with the Trustee as trust funds money in an amount
sufficient, without consideration of any reinvestment of interest, to pay the entire indebtedness of such Debt Securities not delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the Stated Maturity or
redemption date;
(2) we have paid or caused to be paid all other sums payable by us under the Indenture with respect to the Debt
Securities of that series; and
(3) we have delivered an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that
all conditions precedent to satisfaction and discharge of the Indenture with respect to the Debt Securities of that series have been satisfied.
Legal
Defeasance and Covenant Defeasance
To the extent indicated in the applicable prospectus supplement, we may elect, at our option at any
time, to have our obligations discharged under provisions relating to defeasance and discharge of indebtedness, which we call “legal defeasance,” or relating to defeasance of certain restrictive covenants applied to the Debt Securities of
any series, or to any specified part of a series, which we call “covenant defeasance.”
Legal Defeasance.
The Indentures
provide that, upon our exercise of our option (if any) to have the legal defeasance provisions applied to any series of Debt Securities, we and, if applicable, each Subsidiary Guarantor will be discharged from all our obligations, and, if such Debt
Securities are Subordinated Debt Securities, the provisions of the Subordinated Indenture relating to subordination will cease to be effective, with respect to such Debt Securities (except for certain obligations to convert, exchange or register the
transfer of Debt Securities, to replace stolen, lost or mutilated Debt Securities, to maintain paying agencies and to hold moneys for payment in trust) upon the deposit in trust for the benefit of the Holders of such Debt Securities of money or U.S.
Government Obligations, or both, which, through the payment of principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient (in the opinion of a nationally recognized firm of independent public
accountants) to pay the principal of and any premium and interest on such Debt Securities on the respective Stated Maturities in accordance with the terms of the applicable Indenture and such Debt Securities. Such defeasance or discharge may occur
only if, among other things:
(1) we have delivered to the applicable Trustee an Opinion of Counsel to the effect that we have received
from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that Holders of such Debt Securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit and legal defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and legal defeasance were not to occur;
(2) no Event of Default or event that with the passing of time or the giving of notice, or both, shall constitute an Event of Default
shall have occurred and be continuing at the time of such deposit or, with respect to any Event of Default described in clause (8) under “— Events of Default,” at any time until 121 days after such deposit;
(3) such deposit and legal defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument
(other than the applicable Indenture) to which we are a party or by which we are bound;
(4) in the case of Subordinated Debt Securities,
at the time of such deposit, no default in the payment of all or a portion of principal of (or premium, if any) or interest on any Senior Debt shall have occurred and be continuing, no event of default shall have resulted in the acceleration of any
Senior Debt and no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting after notice or the lapse of time, or both, the acceleration thereof; and
18
(5) we have delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall
not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940.
Covenant Defeasance.
The
Indentures provide that, upon our exercise of our option (if any) to have the covenant defeasance provisions applied to any Debt Securities, we may fail to comply with certain restrictive covenants (but not with respect to conversion, if
applicable), including those that may be described in the applicable prospectus supplement, and the occurrence of certain Events of Default, which are described above in clause (5) (with respect to such restrictive covenants) and clauses (6), (7)
and (9) under “— Events of Default” and any that may be described in the applicable prospectus supplement, will not be deemed to either be or result in an Event of Default and, if such Debt Securities are Subordinated Debt
Securities, the provisions of the Subordinated Indenture relating to subordination will cease to be effective, in each case with respect to such Debt Securities. In order to exercise such option, we must deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or both, which, through the payment of principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient (in the opinion of a
nationally recognized firm of independent public accountants) to pay the principal of and any premium and interest on such Debt Securities on the respective Stated Maturities in accordance with the terms of the applicable Indenture and such Debt
Securities. Such covenant defeasance may occur only if we have delivered to the applicable Trustee an Opinion of Counsel to the effect that Holders of such Debt Securities will not recognize gain or loss for federal income tax purposes as a result
of such deposit and covenant defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance were not to occur, and the
requirements set forth in clauses (2), (3), (4) and (5) above are satisfied. If we exercise this option with respect to any series of Debt Securities and such Debt Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in trust would be sufficient to pay amounts due on such Debt Securities at the time of their respective Stated Maturities but may not be sufficient to pay amounts due on
such Debt Securities upon any acceleration resulting from such Event of Default. In such case, we would remain liable for such payments.
If we exercise either our legal defeasance or covenant defeasance option, any Subsidiary Guarantee will terminate.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator, stockholder, member, partner or trustee of the Company or any Subsidiary Guarantor, as such,
shall have any liability for any obligations of the Company or any Subsidiary Guarantor under the Debt Securities, the Indentures or any Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. By accepting a Debt Security, each Holder shall be deemed to have waived and released all such liability. The waiver and release shall be a part of the consideration for the issue of the Debt Securities. The waiver may not be effective to
waive liabilities under the federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Notices
Notices to Holders of Debt Securities will be given by mail to the addresses of such Holders as they may appear in the Security Register.
Title
We, the Subsidiary Guarantors, the
Trustees and any agent of us, the Subsidiary Guarantors or a Trustee may treat the Person in whose name a Debt Security is registered as the absolute owner of the Debt Security (whether or not such Debt Security may be overdue) for the purpose of
making payment and for all other purposes.
19
Governing Law
The Indentures and the Debt Securities will be governed by, and construed in accordance with, the law of the State of New York.
The Trustee
We will enter into the
Indentures with a Trustee that is qualified to act under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and with any other Trustees chosen by us and appointed in a supplemental indenture for a particular series of
Debt Securities. We may maintain a banking relationship in the ordinary course of business with our Trustee and one or more of its affiliates.
Resignation or Removal of Trustee.
If the Trustee has or acquires a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee must either eliminate its conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the applicable Indenture. Any resignation will require the appointment
of a successor Trustee under the applicable Indenture in accordance with the terms and conditions of such Indenture.
The Trustee may
resign or be removed by us with respect to one or more series of Debt Securities and a successor Trustee may be appointed to act with respect to any such series. The Holders of a majority in aggregate principal amount of the Debt Securities of any
series may remove the Trustee with respect to the Debt Securities of such series.
Limitations on Trustee if It Is Our Creditor.
Each Indenture will contain certain limitations on the right of the Trustee, in the event that it becomes our creditor, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security
or otherwise.
Certificates and Opinions to Be Furnished to Trustee.
Each Indenture will provide that, in addition to other
certificates or opinions that may be specifically required by other provisions of an Indenture, every application by us for action by the Trustee must be accompanied by an Officers’ Certificate and an Opinion of Counsel stating that, in the
opinion of the signers, all conditions precedent to such action have been complied with by us.
20
DESCRIPTION OF CAPITAL STOCK
The following summary of our capital stock, Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Fourth
Amended and Restated Bylaws (the “Bylaws”) does not purport to be complete and is qualified in its entirety by reference to the provisions of applicable law and to our Certificate of Incorporation and Bylaws.
Our authorized capital stock consists of 300,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of preferred
stock, $0.001 par value per share.
Common Stock
As of June 11, 2018, we had 149,069,126 shares of common stock outstanding, including 1,136,049 shares of restricted stock. The shares of
restricted stock have voting rights, rights to receive dividends and are subject to certain forfeiture restrictions.
Our common stock
commenced trading on the NYSE under the symbol “CXO” on August 3, 2007 in connection with our initial public offering. As of June 11, 2018, there were approximately 1,126 holders of record of our common stock.
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have
cumulative voting rights. Accordingly, holders of a majority of the shares of our common stock entitled to vote in any election of directors may elect all of the directors standing for election.
Holders of our common stock are entitled to receive proportionately any dividends if and when such dividends are declared by our board of
directors, subject to any preferential dividend rights of preferred stock that may be outstanding at the time such dividends are declared. Upon the liquidation, dissolution or winding up of our company, the holders of our common stock are entitled
to receive ratably our net assets available after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of our common stock have no preemptive, subscription, redemption or
conversion rights. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the
future.
We have not paid, and do not intend to pay in the foreseeable future, cash dividends on our common stock. Covenants contained in
our credit facility and the indenture governing our unsecured senior notes due 2025 limit the payment of dividends on our common stock. We currently intend to retain all future earnings to fund the development and growth of our business. Any payment
of future dividends will be at the discretion of our board of directors and will depend on, among other things, our earnings, financial condition, capital requirements, level of indebtedness, statutory and contractual restrictions applying to the
payment of dividends and other considerations that our board of directors deems relevant.
There are no redemption or sinking fund
provisions applicable to our common stock. All outstanding shares of our common stock are fully paid and
non-assessable.
Preferred Stock
Under the terms of our
Certificate of Incorporation, our board of directors is authorized to designate and issue shares of preferred stock in one or more series without further vote or action by our stockholders. Our board of directors has the discretion to determine the
rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. It is not possible to state the actual effect of the
issuance of any shares of preferred stock upon the rights of holders of the common stock until the board of directors determines the specific rights of the holders of the preferred stock. However, these effects might include:
|
•
|
|
restricting dividends on the common stock;
|
|
•
|
|
diluting the voting power of the common stock;
|
21
|
•
|
|
impairing the liquidation rights of the common stock; and
|
|
•
|
|
delaying or preventing a change in control of our company.
|
We currently have no shares of
preferred stock outstanding, and we have no present plans to issue any shares of preferred stock.
Anti-Takeover Provisions of Our Certificate of
Incorporation and Bylaws
Our Certificate of Incorporation and Bylaws contain several provisions that could delay or make more
difficult the acquisition of us through a hostile tender offer, open market purchases, proxy contest, merger or other takeover attempt that a stockholder might consider in his or her best interest, including those attempts that might result in a
premium over the market price of our common stock.
Written Consent of Stockholders
Our Certificate of Incorporation and Bylaws provide that any action required or permitted to be taken by our stockholders must be taken at a
duly called meeting of stockholders and not by written consent.
Special Meetings of Stockholders
Subject to the rights of the holders of any series of preferred stock, our Bylaws provide that special meetings of the stockholders may only be
called by the chairman of the board of directors or by the resolution of our board of directors approved by a majority of the total number of authorized directors. No business other than that stated in a notice may be transacted at any special
meeting.
Advance Notice Procedure for Director Nominations and Stockholder Proposals
Our Bylaws provide that adequate notice must be given to nominate candidates for election as directors or to make proposals for consideration
at annual meetings of our stockholders. For nominations or other business to be properly brought before an annual meeting by a stockholder, the stockholder must have delivered a written notice to the Secretary of our company at our principal
executive offices not later than the close of business 90 calendar days nor earlier than 120 calendar days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 calendar days before or more than 30 calendar days after the first anniversary of the date of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of the 90th calendar day prior to such annual meeting or the 10th calendar day following the calendar day on which public announcement, if any, of the date of such meeting
is first made by us. In no event shall an adjournment or recess of an annual meeting, or a postponement of an annual meeting for which notice of the meeting has already been given to stockholders or a public announcement, if any, of the date of such
meeting has already been made, commence a new time period (or extend any time period) for the giving of a stockholder’s notice described in this paragraph.
Nominations of persons for election to our board of directors may be made at a special meeting of stockholders at which directors are to be
elected pursuant to our notice of meeting (i) by or at the direction of our board of directors, or (ii) by any stockholder of our company who is a stockholder of record at the time of the giving of notice of the meeting, who is entitled to
vote at the meeting and who complies with the notice procedures set forth in our Bylaws. In the event we call a special meeting of stockholders for the purpose of electing one or more directors to our board of directors, any stockholder may nominate
a person or persons (as the case may be) for election to such position(s) if the stockholder provides written notice to the Secretary of our company at our principal executive offices not earlier than the 90th calendar day prior to such special
meeting, nor later than the close of business on the later of the 70th calendar day prior to such special meeting or the 10th calendar day following the day on which public announcement, if any, is first made of the date of the special
22
meeting and of the nominees proposed by our board of directors to be elected at such meeting. In no event shall an adjournment, recess or postponement of a special meeting commence a new time
period (or extend any time period) for the giving of a stockholder’s notice described in this paragraph.
These procedures may
operate to limit the ability of stockholders to bring business before a stockholders meeting, including the nomination of directors and the consideration of any transaction that could result in a change in control and that may result in a premium to
our stockholders.
Classified Board
Our Certificate of Incorporation divides our directors into three classes serving staggered three-year terms. As a result, stockholders will
elect approximately
one-third
of the board of directors each year. This provision, when coupled with provisions of our Certificate of Incorporation authorizing only the board of directors to fill vacant or
newly created directorships or increase the size of the board of directors and provisions providing that directors may only be removed for cause and then only by the holders of not less than 66
2
/
3
% of the voting power of all outstanding voting stock, may deter a stockholder from gaining control of our board of directors by removing incumbent directors or increasing the number of
directorships and simultaneously filling the vacancies or newly created directorships with its own nominees.
Authorized Capital Stock
Our Certificate of Incorporation contains provisions that the authorized but unissued shares of common stock and preferred stock are available
for future issuance, subject to various limitations imposed by the NYSE. These additional shares may be utilized for a variety of corporate purposes, including public offerings to raise capital, corporate acquisitions and employee benefit plans. The
existence of authorized but unissued shares of common stock and preferred stock could make it more difficult or discourage an attempt to obtain control of our company by means of a proxy contest, tender offer, merger or otherwise.
Amendment of Bylaws
Under Delaware law,
the power to adopt, amend or repeal bylaws is conferred upon the stockholders. A corporation may, however, in its certificate of incorporation also confer upon the board of directors the power to adopt, amend or repeal its bylaws. Our Certificate of
Incorporation and Bylaws grant our board of directors the power to adopt, amend and repeal our Bylaws on the affirmative vote of a majority of the directors then in office. Our stockholders may adopt, amend or repeal our Bylaws but only at any
regular or special meeting of stockholders by the holders of not less than 66
2
/
3
% of the voting power of all outstanding voting stock.
Certain Oil and Natural Gas Opportunities
Certain of our stockholders who received shares of common stock in connection with our formation and our
non-employee
directors may from time to time have investments in other exploration and production companies that may compete with us. Our Certificate of Incorporation and our Business Opportunities Agreement
provide a safe harbor under which these entities and directors may participate in the oil and gas exploration, exploitation, development and production business without breaching their fiduciary duties as controlling stockholders or directors. No
participation is allowed with respect to:
|
•
|
|
any business opportunity that is brought to the attention of a covered individual or entity solely in such person’s capacity as a director or officer of our company and with respect to which, at the time of such
presentment, no other covered individual or entity has independently received notice or otherwise identified such opportunity; or
|
|
•
|
|
any business opportunity that is identified by a covered individual or entity solely through the disclosure of information by or on behalf of us.
|
23
The covered individuals and entities have no obligation to offer such opportunities to us, but
interested directors are required to disclose conflicts of interest. We are not prohibited from pursuing any business opportunity with respect to which we have renounced any interest.
Limitation of Liability of Directors
Our
Certificate of Incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability as follows:
|
•
|
|
for any breach of the director’s duty of loyalty to us or our stockholders;
|
|
•
|
|
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of laws;
|
|
•
|
|
for unlawful payment of a dividend or unlawful stock purchase or stock redemption; and
|
|
•
|
|
for any transaction from which the director derived an improper personal benefit.
|
The effect
of these provisions is to eliminate our rights and our stockholders’ rights, through stockholders’ derivative suits on our behalf, to recover monetary damages against a director for a breach of fiduciary duty as a director, including
breaches resulting from grossly negligent behavior, except in the situations described above.
Delaware Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law (“DGCL”), which prohibits a Delaware corporation from
engaging in any business combination with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
|
•
|
|
before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
|
|
•
|
|
upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (1) by persons who are directors and also officers and
(2) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
|
•
|
|
on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least
66
2
/
3
% of the outstanding voting stock that is not owned by the interested stockholder.
|
In general, Section 203 of the DGCL defines a business combination to include the following:
|
•
|
|
any merger or consolidation involving the corporation and the interested stockholder;
|
|
•
|
|
any sale, transfer, pledge or other disposition (in one transaction or a series of transactions) of 10% or more of the assets of the corporation involving the interested stockholder;
|
|
•
|
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
|
|
•
|
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
|
|
•
|
|
the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation.
|
24
In general, Section 203 of the DGCL defines an “interested stockholder” as an
entity or person who, together with the person’s affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the
corporation.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
Set forth below are the expenses (other than underwriting discounts and commissions) expected to be incurred in connection with the issuance
and distribution of the securities registered hereby:
|
|
|
|
|
|
|
|
|
|
|
SEC registration fee
|
|
$
|
|
|
|
|
*
|
|
|
Legal fees and expenses
|
|
$
|
|
|
|
|
**
|
|
|
Accounting and engineering fees and expenses
|
|
$
|
|
|
|
|
**
|
|
|
Printing and engraving expenses
|
|
$
|
|
|
|
|
**
|
|
|
Rating agency fees
|
|
$
|
|
|
|
|
**
|
|
|
Trustee and transfer agent fees and expenses
|
|
$
|
|
|
|
|
**
|
|
|
Miscellaneous
|
|
$
|
|
|
|
|
**
|
|
|
TOTAL
|
|
$
|
|
|
|
|
**
|
|
|
*
|
The registrants are deferring payment of the registration fee in reliance on Rule 456(b) and Rule 457(r).
|
|
**
|
These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
|
ITEM 15. Indemnification of Directors and Officers
The general effect of the following provisions is to provide indemnification to officers, directors and control persons for liabilities that
may arise by reason of their status as officers, directors or control persons, other than liabilities arising from willful or intentional misconduct, acts or omissions not in good faith, unlawful distributions of corporate assets or transactions
from which the officer or manager derived an improper personal benefit.
Delaware Registrants
Concho Resources Inc.
Section 145 of
the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred
in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which
such action or suit was brought shall determine upon
II-1
application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
Delaware law provides that directors of a corporation will not be
personally liable to the corporation or its stockholders for monetary damages for breach of their fiduciary duties as directors, except for liability:
|
•
|
|
for any breach of their duty of loyalty to the corporation or its stockholders;
|
|
•
|
|
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
|
•
|
|
under Section 174 of the DGCL relating to unlawful payments of dividends or unlawful stock repurchases or redemptions; or
|
|
•
|
|
for any transaction from which the director derived an improper personal benefit.
|
Our
Restated Certificate of Incorporation provides that we shall indemnify our officers and directors to the extent provided in our Second Amended and Restated Bylaws (our “Bylaws”). In turn, our Bylaws provide that we will indemnify and hold
harmless, to the full extent permitted by the DGCL, any of our officers or directors (including those persons serving as an officer or director of another entity at our request) who is party to a suit or other proceeding by reason of his or her
position as an officer or director against all reasonably incurred expense, liability or loss. We may only indemnify an officer or director who brought the suit or proceeding if our board of directors had previously authorized such suit or
proceeding. The rights to indemnification provided by our Bylaws include the right to advancement of expenses to the full extent permitted by the DGCL. In addition, our Bylaws allow us to indemnify our
non-officer
employees and agents to the extent (i) permitted by the DGCL and (ii) authorized by our Chief Executive Officer and at least one other authorized officer.
We have also entered into indemnification agreements with all of our directors and executive officers. These indemnification agreements are
intended to permit indemnification to the fullest extent now or hereafter permitted by the DGCL. It is possible that the applicable law could change the degree to which indemnification is expressly permitted.
The indemnification agreements cover expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement incurred as a
result of the fact that such person, in his or her capacity as a director or officer, is made or threatened to be made a party to any suit or proceeding. The indemnification agreements generally cover claims relating to the fact that the indemnified
party is or was an officer, director, employee or agent of us or any of our affiliates, or is or was serving at our request in such a position for another entity. The indemnification agreements also obligate us to promptly advance all reasonable
expenses incurred in connection with any claim. The indemnitee is, in turn, obligated to reimburse us for all amounts so advanced if it is later determined that the indemnitee is not entitled to indemnification. The indemnification provided under
the indemnification agreements is not exclusive of any other indemnity rights; however, double payment to the indemnitee is prohibited.
We are not obligated to indemnify the indemnitee with respect to claims brought by the indemnitee against us or our directors or officers
without approval by our board of directors, except for claims regarding the indemnitee’s rights under the indemnification agreement.
We have obtained director and officer liability insurance for the benefit of each of the indemnitees. These policies include coverage for
losses for wrongful acts and omissions and to ensure our performance under the indemnification agreements. Each of the indemnitees are insured under such policies and provided with the same rights and benefits as are accorded to the most favorably
insured of our directors and officers.
II-2
Delaware Limited Liability Companies
COG Operating LLC and Mongoose Minerals LLC are organized in the State of Delaware.
Section 18-108
of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a Delaware limited liability company may, and has the power to, indemnify
and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The limited liability
company agreement of COG Operating LLC provides that COG Operating LLC will indemnify and hold harmless us and our affiliates and respective stockholders, members, managers, directors, officers, employees and agents against any loss, expense or
damage arising out of activities on behalf of COG Operating LLC or in furtherance of the interests of COG Operating LLC; provided, that the acts or omissions upon which such proceeding or claim is based were not a result of fraud or willful
misconduct by the indemnified person. The rights to indemnification provided by the limited liability company agreement of COG Operating LLC include the right to advancement of expenses; provided, that the indemnified person shall reimburse such
advances if it is later determined such indemnified person was not entitled to indemnification with respect to such action or proceeding.
The limited liability company agreement of Mongoose Minerals LLC provides that Mongoose Minerals LLC will indemnify and hold harmless
(i) COG Operating LLC and its officers, directors, members, employees, affiliates, representatives or agents and (ii) any officer, employee, representative or agent of Mongoose Minerals LLC against any loss, liability, damage, expense or
claim arising out of any act or omission of such indemnified person in connection with its management of the affairs of Mongoose Minerals LLC or which relate to Mongoose Minerals LLC or its property, business or affairs; provided, that such acts or
omissions do not constitute bad faith, gross negligence or willful misconduct by the indemnified person.
Texas Registrants
Pursuant to Section 1.106 of the Texas Business Organizations Code (the “TBOC”), the indemnification provisions set forth in the
TBOC are applicable to most entities established in the State of Texas, including corporations, limited liability companies and limited partnerships. Under Section 8.002 of the TBOC, unless a Texas limited liability company adopts the general
indemnification provisions of the TBOC, described below, those provisions are not applicable to a Texas limited liability company.
Pursuant to Section 8.051 of the TBOC, an enterprise must indemnify a governing person, former governing person or delegate against
reasonable expenses actually incurred by the person in connection with a proceeding in which the person was a respondent because the person is or was a governing person if the person is wholly successful, on the merits or otherwise, in the defense
of the proceeding. Pursuant to Sections 8.101 and 8.102 of the TBOC, any governing person, former governing person or delegate of a Texas enterprise may be indemnified against judgments and reasonable expenses actually incurred by the person in
connection with a proceeding, in which such person was a respondent if it is determined, in accordance with Section 8.103 of the TBOC, that: (i) the person acted in good faith, (ii) the person reasonably believed (a) in the case
of conduct in the person’s official capacity, that the person’s conduct was in the enterprise’s best interests or (b) in any other case, that the person’s conduct was not opposed to the enterprise’s best interests,
(iii) in the case of a criminal proceeding, such person did not have a reasonable cause to believe that the person’s conduct was unlawful and (iv) the indemnification should be paid. Indemnification of a person who is found to be
liable to the enterprise is limited to reasonable expenses actually incurred by the person in connection with the proceeding and does not include judgments, penalties or fines, except for certain circumstances where indemnification cannot be given
at all. Pursuant to Section 8.105 of the TBOC, an enterprise may indemnify an officer, employee or agent to the same extent that indemnification is required under the TBOC for a governing person or as provided in the enterprise’s governing
documents, general or specific action of the enterprise’s governing authority, contract or by other means.
II-3
Texas Limited Liability Companies
Pursuant to Section 101.402 of the TBOC, a Texas limited liability company may indemnify a member, manager or officer of a limited
liability company, pay in advance or reimburse expenses incurred by a member, manager or officer and establish and maintain insurance or another arrangement to indemnify or hold harmless a member, manager or officer.
COG Holdings LLC, COG Production LLC, COG Realty LLC, Concho Oil & Gas LLC, Delaware River SWD LLC and Quail Ranch LLC are organized
as limited liability companies in the State of Texas (the “Texas LLC Registrants”). The limited liability company agreements of COG Realty LLC and Quail Ranch LLC provide that each entity will indemnify and hold harmless, to the full
extent permitted by the TBOC, each of its, in the case of COG Realty LLC, managers and, in the case of Quail Ranch LLC, officers, who is or is threatened to be made party to a suit or other proceeding by reason of his or her position as a manager or
officer, as applicable, and is acting within the scope of his or her duties under the authority of such entity’s members.
Additionally, the limited liability company agreements of COG Holdings LLC, COG Production LLC, Concho Oil & Gas LLC, and Delaware
River SWD LLC provide that each entity shall indemnify and hold harmless, to the full extent permitted by the TBOC, any of their current or former (i) officers and (ii) members and each of their respective affiliates, stockholders,
partners, members, directors, managers, officers, liquidators and employees from and against any loss, expense, damage or injury suffered or sustained by reason of acts, omissions or alleged acts or omissions that result from, arise in connection
with or are by reason of (x) the activities of such entity and its affiliates, (y) anything done or not done by the indemnified person in its capacity as an indemnified person or (z) the fact that the indemnified person was an
indemnified person; provided, that such right shall not apply if the applicable proceeding has been brought by or in the right of such entity unless related to the indemnified person’s participation in certain proceedings. Additionally, such
entities shall indemnify and hold harmless, to the full extent permitted by the TBOC, such indemnified persons from and against all expenses reasonably incurred in connection with the defense or settlement of any proceeding by or in the right of
such entity if the indemnified person acted in good faith and in a manner it reasonably believed to be in (or not opposed to) the best interests of the entity; provided, that no such indemnification shall be made where the indemnified person was
adjudged to be liable to the entity unless the court in which such proceeding shall have been brought or is pending determines that, despite such adjudication of liability and in light of all circumstances, such indemnification may be made.
The rights to indemnification provided by the limited liability company agreements of each of the Texas LLC Registrants include the right to
advancement of expenses to the full extent permitted by the TBOC related to the indemnified person’s participation in certain proceedings; provided, except in the case of Quail Ranch LLC and COG Realty LLC, that the indemnified person shall
reimburse such advances if it is later determined such indemnified person was not entitled to indemnification with respect to such action or proceeding. In addition, the limited liability company agreements of each of the Texas LLC Registrants allow
each Texas LLC Registrant to indemnify its
non-officer
employees and agents, and its officers in the case of COG Realty LLC, to the extent (i) permitted by the TBOC and (ii) approved by adoption of a
resolution of the member or members of such Texas LLC Registrant.
The rights of indemnification provided under the limited liability
company agreements of Quail Ranch LLC and COG Realty LLC do not cover acts or omissions constituting gross negligence, willful misconduct, bad faith or breach by the indemnified person. The rights of indemnification and advancement provided under
the limited liability company agreements of the other Texas LLC Registrants do not cover acts or omissions constituting gross negligence, willful misconduct, bad faith, willful breach or a willful illegal act by the indemnified person.
II-4
Texas Limited Partnerships
COG Acreage LP is organized as a limited partnership in the State of Texas. The limited partnership agreement of COG Acreage LP provides that
COG Acreage LP will indemnify and hold harmless, to the full extent permitted by the TBOC, each current and former (i) general partner or limited partner of COG Acreage LP and each of their respective affiliates, stockholders, partners,
members, directors, managers, officers, liquidators and employees and (ii) officer of COG Acreage LP from and against any loss, expense, damage or injury suffered or sustained by reason of acts, omissions or alleged acts or omissions that
result from, arise in connection with or are by reason of (x) the activities of COG Acreage LP and its affiliates, (y) anything done or not done by the indemnified person in its capacity as an indemnified person or (z) the fact that
the indemnified person was an indemnified person; provided, that such right shall not apply if the applicable proceeding has been brought by or in the right of COG Acreage LP unless related to the indemnified person’s participation in certain
proceedings. Additionally, COG Acreage LP shall indemnify and hold harmless, to the full extent permitted by the TBOC, such indemnified persons from and against all expenses reasonably incurred in connection with the defense or settlement of any
proceeding by or in the right of such entity if the indemnified person acted in good faith and in a manner it reasonably believed to be in (or not opposed to) the best interests of COG Acreage LP; provided, that no such indemnification shall be made
where the indemnified person was adjudged to be liable to the entity unless the court in which such proceeding shall have been brought or is pending determines that, despite such adjudication of liability and in light of all circumstances, such
indemnification may be made.
The rights to indemnification provided by the limited partnership agreement of COG Acreage LP include the
right to advancement of expenses to the full extent permitted by the TBOC related to the indemnified person’s participation in certain proceedings; provided, that the indemnified person shall reimburse such advances if it is later determined
such indemnified person was not entitled to indemnification with respect to such action or proceeding. In addition, the limited partnership agreement of COG Acreage LP allows COG Acreage LP to indemnify its
non-officer
employees and agents to the extent (i) permitted by the TBOC and (ii) approved by adoption of a resolution of general partner of COG Acreage LP.
The rights of indemnification and advancement provided under the limited partnership agreement of COG Acreage LP do not cover acts or
omissions constituting gross negligence, willful misconduct, bad faith, willful breach or a willful illegal act by the indemnified person.
ITEM 16. Exhibits*
The following
documents are filed as exhibits to this Registration Statement:
|
|
|
|
|
Exhibit
Number
|
|
Exhibit
Title
|
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Company’s Current Report on
Form 8-K
on August 8, 2007, and incorporated herein by reference).
|
|
|
|
|
3.2
|
|
Fourth Amended and Restated Bylaws of Concho Resources Inc., as amended January
2, 2018 (filed as Exhibit 3.1 to the Company’s Current Report on Form
8-K
on January 4, 2018, and incorporated herein by reference).
|
|
|
|
|
4.1
|
|
Specimen Stock Certificate (filed as Exhibit 4.1 to the Company’s Annual Report on Form
10-K
on February 22,
2013, and incorporated herein by reference).
|
|
|
|
|
4.2
|
|
Senior Indenture, dated September
18, 2009, between Concho Resources Inc., the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as trustee (filed as Exhibit
4.1 to the Company’s Current Report on Form
8-K
on September 22, 2009, and incorporated herein by reference).
|
II-5
|
|
|
|
|
Exhibit
Number
|
|
Exhibit
Title
|
|
|
|
|
4.3
|
|
Tenth Supplemental Indenture, dated December
28, 2016, between Concho Resources Inc., the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as trustee (filed as Exhibit 4.1 to the Company’s Current Report on Form
8-K
on December 28,
2016, and incorporated herein by reference).
|
|
|
|
|
4.4**
|
|
Eleventh Supplemental Indenture, dated January 25, 2017, among Concho Resources Inc., the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as trustee.
|
|
|
|
|
4.5
|
|
Twelfth Supplemental Indenture, dated September
26, 2017, among Concho Resources Inc., the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as trustee (filed as Exhibit 4.1 to the Company’s Current Report on Form
8-K
on September 26,
2017, and incorporated herein by reference).
|
|
|
|
|
4.6
|
|
Thirteenth Supplemental Indenture, dated September
26, 2017, among Concho Resources Inc., the subsidiary guarantors named therein, and Wells Fargo Bank, National Association, as trustee (filed as Exhibit 4.2 to the Company’s Current Report on Form
8-K
on September 26,
2017, and incorporated herein by reference).
|
|
|
|
|
4.7
|
|
Form of Subordinated Indenture (filed as Exhibit 4.3 to the Company’s Registration Statement on Form
S-3
on September 9, 2009, and incorporated herein by reference).
|
|
|
|
|
5.1**
|
|
Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the securities being registered.
|
|
|
|
|
12.1
|
|
Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and Preferred Stock Dividends for the five-year period
ended December 31, 2017 (filed as Exhibit 12.1 to the Company’s Annual Report on Form
10-K
on February 21, 2018, and incorporated herein by reference).
|
|
|
|
|
12.2**
|
|
Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and Preferred Stock Dividends for the three months ended March 31, 2018.
|
|
|
|
|
23.1**
|
|
Consent of Grant Thornton LLP relating to Concho Resources Inc.
|
|
|
|
|
23.2**
|
|
Consent of Grant Thornton LLP relating to RSP Permian, Inc.
|
|
|
|
|
23.3**
|
|
Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1 hereto).
|
|
|
|
|
23.4**
|
|
Consent of Cawley, Gillespie & Associates, Inc.
|
|
|
|
|
23.5**
|
|
Consent of Netherland, Sewell & Associates, Inc.
|
|
|
|
|
24.1**
|
|
Power of Attorney (included on the signature page to this Registration Statement).
|
|
|
|
|
25.1**
|
|
Form
T-1
Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 respecting the Senior Indenture.
|
|
|
|
|
25.2***
|
|
Form
T-1
Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 respecting the Subordinated Indenture.
|
|
*
|
Concho Resources Inc. will file as an exhibit to a Current Report on Form
8-K
(i) any underwriting, remarketing or agency agreement relating to the securities offered hereby,
(ii) the instruments setting forth the terms of any securities, (iii) any additional required opinions of counsel with respect to legality of the securities offered hereby and (iv) any required opinion of counsel to Concho Resources
Inc. as to certain tax matters relative to the securities offered hereby.
|
|
***
|
To be filed in accordance with Section 310(a) of the Trust Indenture Act of 1939, as amended.
|
II-6
ITEM 17. Undertakings
Each undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
a. To include any prospectus required by section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
b. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement;
c. To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs 1(a), 1(b) and 1(c) of this section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or 15(d) of the Exchange Act of 1934 (the “Exchange Act”) that are incorporated by
reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for the purpose of determining liability under the Securities Act to any purchaser:
a. Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
b. Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of
the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective date.
II-7
5. That, for the purpose of determining liability of the registrant under the Securities Act to
any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this Registration Statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
a. Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
b. Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
c. The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
d. Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
6. That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
7. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
8. To file an application for the purpose of determining the eligibility of the trustee under the Subordinated Indenture to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended (the “Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-8