def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
o Preliminary Proxy Statement
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ Definitive Proxy Statement
o Definitive Additional Materials
o Soliciting Material Pursuant to §240.14a-12
Concho Resources Inc.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant):
Payment of Filing Fee (Check the appropriate box):
þ No fee required.
o Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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CONCHO
RESOURCES INC.
550 West Texas Avenue
Suite 100
Midland, Texas 79701
NOTICE OF 2010 ANNUAL MEETING
OF STOCKHOLDERS
To the Stockholders of Concho Resources Inc.:
Notice is hereby given that the 2010 Annual Meeting of
Stockholders (the Annual Meeting) of Concho
Resources Inc. will be held in the Wildcatter Room, Petroleum
Club of Midland, 501 West Wall Avenue, Midland, Texas, on
Wednesday, June 9, 2010, at 3:00 p.m. Central Time.
The Annual Meeting is being held for the following purposes:
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to elect two Class III directors, each for a term of three
years;
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to ratify the Audit Committee of the Board of Directors
selection of Grant Thornton LLP as the independent registered
public accounting firm of the Company for the fiscal year ending
December 31, 2010; and
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to transact such other business as may properly come before the
Annual Meeting or any adjournments or postponements thereof.
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These proposals are described in the accompanying proxy
materials. You will be able to vote at the Annual Meeting only
if you were a stockholder of record at the close of business on
April 16, 2010, the record date for the meeting.
By Order of the Board of Directors
C. William Giraud
Vice President, General Counsel and Secretary
Midland, Texas
April 28, 2010
Important Notice Regarding the Availability of Proxy
Materials for the Annual Meeting of Stockholders to Be Held on
June 9, 2010:
This Notice and Proxy Statement, along with the Companys
Annual Report on
Form 10-K
for the year ended December 31, 2009 and the Companys
2009 Annual Report to Stockholders, are available free of charge
at
http:/www.conchoresources.com/proxy.
YOUR VOTE IS IMPORTANT
Please date, sign and return the enclosed proxy card promptly
so that your shares may be voted in accordance with your wishes
and so that there is a quorum at the Annual Meeting.
TABLE OF
CONTENTS
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CONCHO
RESOURCES INC.
550 West Texas Avenue
Suite 100
Midland, Texas 79701
PROXY
STATEMENT
2010
ANNUAL MEETING OF STOCKHOLDERS
This Proxy Statement is being furnished to you in connection
with the solicitation of proxies by the Board of Directors of
Concho Resources Inc. (the Company) for use at the
2010 Annual Meeting of Stockholders (the Annual
Meeting). The Board of Directors of the Company requests
your proxy for the Annual Meeting that will be held on
Wednesday, June 9, 2010, at 3:00 p.m. Central Time, in
the Wildcatter Room, Petroleum Club of Midland, 501 West
Wall Avenue, Midland, Texas. By granting a proxy, you authorize
the persons named in the proxy to represent you and vote your
shares at the Annual Meeting. Those persons will also be
authorized to vote your shares to adjourn the Annual Meeting
from time to time and to vote your shares at any adjournments or
postponements of the Annual Meeting.
If you attend the Annual Meeting, you may vote in person. If you
are not present at the Annual Meeting, your shares may be voted
only by a person to whom you have given a proper proxy.
You may revoke your proxy in writing at any time before it is
exercised at the Annual Meeting by (i) delivering to the
Secretary of the Company a written notice of the revocation;
(ii) signing, dating and delivering to the Secretary of the
Company a proxy with a later date; or (iii) attending the
Annual Meeting and voting your shares in person. Your attendance
at the Annual Meeting will not revoke your proxy unless you give
written notice of revocation to the Secretary of the Company
before your proxy is exercised or unless you vote your shares in
person at the Annual Meeting before your proxy is exercised.
Please note that the rules that guide how brokers may vote
your shares held in street name have recently changed. Brokers
are no longer permitted to vote your shares for the election of
directors without your instructions as to how to vote. Please
return your proxy card so that your vote can be counted.
DELIVERY
OF PROXY MATERIALS
The approximate date on which this Proxy Statement, accompanying
Notice of 2010 Annual Meeting of Stockholders and proxy card,
and the Companys 2009 Annual Report to Stockholders are
first being sent or given to stockholders is April 28, 2010.
This Notice and Proxy Statement, along with the Companys
Annual Report on
Form 10-K
for the year ended December 31, 2009 and the Companys
2009 Annual Report to Stockholders, are available free of charge
at
http://www.conchoresources.com/proxy.
QUORUM
AND VOTING
Voting Stock. The Companys common stock,
par value $.001 per share, is the only class of securities that
entitles holders to vote generally at meetings of the
Companys stockholders. Each share of common stock
outstanding on the record date is entitled to one vote.
Record Date. The record date for stockholders
entitled to notice of and to vote at the Annual Meeting is the
close of business on April 16, 2010. As of the record date,
91,544,956 shares of common stock were outstanding and
entitled to be voted at the Annual Meeting.
Quorum and Adjournments. A quorum of
stockholders is necessary to have a valid meeting of
stockholders. The presence, in person or by proxy, of the
holders of a majority of the votes eligible to be cast at the
Annual Meeting is necessary to constitute a quorum at the Annual
Meeting. If a quorum is not present, the chairman has the power
to adjourn the Annual Meeting from time to time, without notice
other than an announcement at the Annual Meeting, until a
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quorum is present. At any annual meeting reconvened following an
adjournment at which a quorum is present, any business may be
transacted that might have been transacted at the annual meeting
as originally noticed.
Vote Required. Only stockholders of record at
the close of business on April 16, 2010 have the right to
vote at the Annual Meeting. Directors will be elected by a
plurality of all votes cast. Ratification of the selection of
the Companys independent registered public accounting firm
will require the affirmative vote of the holders of a majority
of the votes of the Companys common stock cast
affirmatively or negatively at the Annual Meeting with respect
to the proposal. An automated system that the Companys
transfer agent administers will tabulate the votes.
Brokers who hold shares in street name for customers are
required to vote shares in accordance with instructions received
from the beneficial owners. The New York Stock Exchanges
(the NYSE) Rule 452 restricts when brokers who
are record holders of shares may exercise authority to vote
those shares. Brokers are permitted to vote on discretionary
items if they have not received instructions from the beneficial
owners, but they are not permitted to vote (a broker
non-vote) on non-discretionary items absent instructions
from the beneficial owner. With respect to the Annual Meeting,
Rule 452 prohibits such brokers from exercising
discretionary authority in the election of our directors, but
such brokers may exercise discretionary authority with respect
to the ratification of the selection of our independent
registered public accounting firm.
Abstentions and broker non-votes will count in determining
whether a quorum is present at the Annual Meeting. Neither
abstentions nor broker non-votes will have any effect on the
outcome of voting on director elections nor on the ratification
of the selection of the independent registered public accounting
firm of the Company.
Default Voting. A proxy that is properly
completed and returned will be voted at the Annual Meeting in
accordance with the instructions on the proxy. If you properly
complete and return a proxy, but do not indicate any contrary
voting instructions, your shares will be voted as follows:
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FOR the election of the two persons named in this Proxy
Statement as the Board of Directors nominees for election
as Class III directors; and
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FOR the ratification of the selection of Grant Thornton LLP as
the independent registered public accounting firm of the Company
for the fiscal year ending December 31, 2010.
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If any other business properly comes before the stockholders for
a vote at the Annual Meeting, your shares will be voted in
accordance with the discretion of the holders of the proxy. The
Board of Directors knows of no matters, other than those
previously stated herein, to be presented for consideration at
the Annual Meeting.
ITEM ONE: ELECTION
OF DIRECTORS
The Company has classified its Board of Directors into three
classes. Directors in each class are elected to serve for
three-year terms and until either they are re-elected or their
successors are elected and qualified or until their earlier
resignation or removal. Each year, the directors of one class
stand for re-election as their terms of office expire. Based on
recommendations from its Nominating & Governance
Committee, the Board of Directors has nominated the following
individuals for election as Class III directors of the
Company with their terms to expire in 2013, when they are to be
re-elected or their successors are elected and qualified or
until their earlier resignation or removal:
Ray M. Poage
A. Wellford Tabor
Messrs. Poage and Tabor currently serve as Class III
directors of the Company. Their biographical information is
contained in Directors and Executive Officers below.
The Board of Directors has no reason to believe that any of its
nominees will be unable or unwilling to serve if elected. If a
nominee becomes unable or unwilling to accept nomination or
election, either the number of the Companys directors will
be reduced or the persons acting under your proxy will vote for
the election of a substitute nominee that the Board of Directors
nominates.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT
STOCKHOLDERS VOTE FOR THE ELECTION OF EACH OF THE DIRECTOR
NOMINEES.
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DIRECTORS
AND EXECUTIVE OFFICERS
The table below sets forth certain information, as of the date
of this Proxy Statement, regarding the Companys directors
and executive officers:
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Name
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Age
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Position
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Timothy A. Leach
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Chairman of the Board of Directors, Chief Executive Officer,
President and Class I Director
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C. William Giraud
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Vice President General Counsel and Secretary
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Jack F. Harper
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Vice President Business Development and Capital
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Darin G. Holderness
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Vice President Chief Financial Officer and Treasurer
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Matthew G. Hyde
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Vice President Exploration and Land
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E. Joseph Wright
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Vice President Engineering and Operations
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Steven L. Beal
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Class II Director
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Tucker S. Bridwell
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Class II Director
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William H. Easter III
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Class I Director
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W. Howard Keenan, Jr.
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Class I Director
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Ray M. Poage
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Class III Director
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Mark B. Puckett
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Class II Director
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A. Wellford Tabor
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Class III Director
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Set forth below is biographical information about each of the
Companys executive officers and directors. Executive
officers serve at the discretion of the Board of Directors.
Timothy A. Leach has been a director and the Chairman of
the Board of Directors and Chief Executive Officer of the
Company since its formation in February 2006, and the President
of the Company since July 1, 2009. Prior to the
Companys formation, Mr. Leach served in similar roles
with the Companys predecessor since its formation in April
2004. Mr. Leach was Chairman of the Board and Chief
Executive Officer of Concho Oil & Gas Corp. from its
formation in January 2001 until its sale in January 2004.
Mr. Leach was Chairman of the Board and Chief Executive
Officer of Concho Resources Inc. (which was a different company
than the Company) from its formation in August 1997 until its
sale in June 2001. From September 1989 until May 1997,
Mr. Leach was employed by Parker & Parsley
Petroleum Company (now Pioneer Natural Resources Company) in a
variety of capacities, including serving as Executive Vice
President and as a member of Parker & Parsley
Petroleum Companys Executive Committee. He is a graduate
of Texas A&M University with a Bachelor of Science degree
in Petroleum Engineering.
C. William Giraud has been the Vice
President General Counsel and Secretary of the
Company since November 2009. Prior to joining the Company,
Mr. Giraud practiced corporate and securities law at
Vinson & Elkins, L.L.P. since September 2005. He is a
graduate of Wake Forest University with a Bachelor of Arts
degree in Economics and a graduate of the University of Texas
School of Law with a Doctor of Jurisprudence degree.
Jack F. Harper has been the Vice President
Business Development and Capital Markets of the Company since
May 2007. Mr. Harper was the Director of Investor Relations
and Business Development of the Company from July 2006 until May
2007. From October 2005 until July 2006, Mr. Harper was
involved in private investments. From October 2002 until October
2005, Mr. Harper was employed by Unocal Corporation where
he served as Manager of Planning and Evaluation and Manager of
Business Development for Unocal Corporations wholly owned
subsidiary, Pure Resources, Inc. From May 2000 until October
2002, Mr. Harper was employed by Pure Resources, Inc. in a
variety of capacities, including in his last position as Vice
President, Finance and Investor Relations. From December 1996
until May 2000, Mr. Harper was employed by Tom Brown, Inc.,
where his last position was Vice President, Investor Relations,
Corporate Development and Treasurer. He is a graduate of Baylor
University with a Bachelor of Business Administration degree in
Finance.
Darin G. Holderness has been the Vice
President Chief Financial Officer and Treasurer of
the Company since August 2008. From May 2008 until August 2008,
Mr. Holderness was employed by Eagle Rock Energy Partners,
L.P. as Senior Vice President and Chief Financial Officer. From
November 2004 until May 2008,
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Mr. Holderness served as Vice President and Chief
Accounting Officer of Pioneer Natural Resources Company.
Mr. Holderness holds a Bachelor of Business Administration
degree in Accounting from Boise State University and is a
certified public accountant.
Matthew G. Hyde joined the Company as its Vice
President Exploration in May 2008, and was appointed
the Vice President Exploration and Land of the
Company in November 2008. From January 2008 to May 2008,
Mr. Hyde was involved in private investments. From March
2001 to December 2007, Mr. Hyde was an Asset Manager of Oxy
Permian, a business unit of Occidental Petroleum Corporation.
From April 1998 to February 2001, Mr. Hyde served as
President and General Manager of Occidental Petroleum
Corporations international business unit in Oman. Prior to
that role, Mr. Hyde served in a variety of domestic and
international exploration positions for Occidental Petroleum
Corporation, including Regional Exploration Manager responsible
for Latin American exploration activities. He is a graduate of
the University of Vermont and the University of Massachusetts
where he obtained Bachelor of Arts and Master of Science
degrees, respectively, in Geology. Mr. Hyde also holds a
Master of Business Administration degree from the University of
California Los Angeles.
E. Joseph Wright has been the Vice
President Engineering and Operations of the Company
since its formation in February 2006. Mr. Wright was the
Vice President Operations & Engineering of
Concho Equity Holdings Corp. from its formation in April 2004
until it was merged into another subsidiary of the Company at
December 31, 2008. Mr. Wright was Vice
President Operations & Engineering of
Concho Oil & Gas Corp. from its formation in January
2001 until its sale in January 2004. Mr. Wright served in
various engineering and operations positions for Concho
Resources Inc. (which was a different company than the Company),
including serving as its Vice President Operations,
from 1998 until its sale in June 2001. From 1982 until February
1998, Mr. Wright was employed by Mewbourne Oil Company in
several operations, engineering and capital markets positions.
He is a graduate of Texas A&M University with a Bachelor of
Science degree in Petroleum Engineering.
Steven L. Beal has been a director of the Company since
its formation in February 2006, and a consultant to the Company
since July 2009. Mr. Beal was the President and Chief
Operating Officer of the Company from its formation in February
2006 until his retirement in June 2009. Mr. Beal was a
director and the President and Chief Operating Officer of Concho
Equity Holdings Corp. from its formation in April 2004 until it
was merged into another subsidiary of the Company at
December 31, 2008. Mr. Beal was a director and the
Executive Vice President and Chief Financial Officer of Concho
Oil & Gas Corp. from its formation in January 2001
until he became its President and Chief Operating Officer in
August 2002, a position he held until its sale in January 2004.
Mr. Beal was a director and the Vice President and Chief
Financial Officer of Concho Resources Inc. (which was a
different company than the Company) from its formation in August
1997 until its sale in June 2001. From October 1988 until May
1997, Mr. Beal was employed by Parker & Parsley
Petroleum Company (now Pioneer Natural Resources Company) in a
variety of capacities, including serving as its Senior Vice
President and Chief Financial Officer and as a member of
Parker & Parsley Petroleum Companys Executive
Committee. From 1981 until February 1988, Mr. Beal was
employed by the accounting firm of Price Waterhouse (now
PricewaterhouseCoopers). He is a graduate of the University of
Texas with a bachelor of Business Administration degree in
Accounting.
Tucker S. Bridwell has been a director of the Company
since its formation in February 2006. Mr. Bridwell was a
director of Concho Equity Holdings Corp. from its formation in
April 2004 until February 2006. Mr. Bridwell has been the
President of each of Mansefeldt Investment Corporation and the
Dian Graves Owen Foundation since September 1997. He has over
twenty-five years experience in the areas of finance and energy.
Mr. Bridwell served as Chairman of the Board of Directors
of First Permian, LLC from 2000 until its sale to Energen
Corporation in April 2002. Mr. Bridwell is a director of
Petrohawk Energy Corporation and First Financial Bankshares,
Inc. He is a graduate of Southern Methodist University with a
Bachelor of Business Administration degree in Accounting and a
Master of Business Administration degree and is a certified
public accountant.
William H. Easter III has been a director of the
Company since February 2008. Mr. Easters career spans
over thirty years in the areas of natural gas supply,
processing, marketing and transportation, as well as crude oil
and petroleum refining, marketing and transportation.
Mr. Easter is the past Chairman of the Board of Directors,
President and Chief Executive Officer of DCP Midstream, LLC
(formerly Duke Energy Field Services, LLC), having retired from
such company in January 2008. He joined DCP Midstream, LLC in
January 2004 as Chairman, President and Chief Executive Officer.
He also served as director of TEPPCO GP, LLC, the general
partner of
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TEPPCO Partners, L.P., from January 2004 until February 2005,
and as a director of DCP Midstream GP, LLC, the general partner
of DCP Midstream Partners, LP, from November 2005 to January
2008. From August 2002 through January 2004, Mr. Easter
served as Vice President of State Government Affairs for
ConocoPhillips. From 1998 to 2002, Mr. Easter served as
General Manager of the Gulf Coast Refining, Marketing and
Transportation Business Unit of Conoco Inc. Since his retirement
from DCP Midstream, LLC in January 2008, Mr. Easter has
been involved in private investments. He is also a member of the
Board of Directors of the Memorial Hermann Hospital System in
Houston, Texas. Mr. Easter earned his Bachelor of Business
Administration degree in Finance from the University of Houston
and his Master of Science in Management degree from The Graduate
School of Business at Stanford University.
W. Howard Keenan, Jr. has been a director of
the Company since its formation in February 2006.
Mr. Keenan previously was a director of Concho Equity
Holdings Corp from its formation in April 2004 until February
2006. Mr. Keenan has over thirty years of experience in the
areas of finance and energy. Since 1997, he has been a Member of
Yorktown Partners LLC, a private equity investment manager
focused on the energy industry. Mr. Keenan is also a
director of GeoMet, Inc. From 1975 to 1997, he was in the
Corporate Finance Department of Dillon, Read & Co.
Inc. and active in the private equity and energy areas,
including the founding of the first Yorktown Partners fund in
1991. He is serving or has served as a director of multiple
Yorktown Partners portfolio companies. Mr. Keenan holds a
Bachelor of Arts degree in English from Harvard College and a
Master of Business Administration degree from Harvard University.
Ray M. Poage has been a director of the Company since
August 2007. Mr. Poage was a partner in KPMG from 1980 to
June 2002 when he retired. During his tenure at KPMG,
Mr. Poage was responsible for delivering tax and accounting
services to both privately and publicly held companies engaged
in the oil and natural gas industry. Since June 2002,
Mr. Poage has been involved in private investments.
Mr. Poage previously served as a director of Parallel
Petroleum Corporation from 2003 until its sale in 2009.
Mr. Poage received a Bachelor of Business Administration
degree in Accounting from Texas Tech University and is a
certified public accountant.
Mark B. Puckett has been a director of the Company since
November 2009. Mr. Puckett began his career at Chevron
Corporation in 1973 and retired in May 2008. During his tenure
at Chevron, Mr. Puckett held a variety of positions of
increasing responsibility in Chevrons upstream operations,
including Managing Director roles in Papua New Guinea and South
Africa, before ultimately retiring as the President of
Chevrons Energy Technology Company, where he was
responsible for managing the companys technology resources
across all business segments. In addition, Mr. Puckett
served on Chevrons management committee from 1997 until
his retirement and served on Chevrons upstream and gas
leadership team from 2001 until his retirement. He is a member
of the Society of Petroleum Engineers and the Deans
Advisory Council, College of Engineering at Texas A&M
University. Mr. Puckett earned a Bachelor of Science degree
in Civil Engineering from Texas A&M University.
A. Wellford Tabor has been a director of the Company
since its formation in February 2006. Mr. Tabor was a
director of Concho Equity Holdings Corp. from its formation in
April 2004 until February 2006. Mr. Tabor is the managing
partner of Keeneland Capital. Prior to forming Keeneland Capital
in May 2009, Mr. Tabor was a Partner at Wachovia Capital
Partners, where he worked since 2000. Before that Mr. Tabor
worked at The Beacon Group and at Morgan Stanley & Co.
Mr. Tabor is also a director of several privately held
companies and community organizations. Previously, he served as
a director of James River Group, Inc. from September 2002 until
June 2007. Mr. Tabor received an undergraduate degree in
History from the University of Virginia and a Master of Business
Administration degree from The Graduate School of Business at
Stanford University.
CORPORATE
GOVERNANCE
Corporate
Governance Guidelines
The Board of Directors believes that sound governance practices
and policies provide an important framework to assist it in
fulfilling its duty to stockholders. The Companys
Corporate Governance Guidelines include provisions concerning
the following:
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role and functions of the Board of Directors and the Lead
Director;
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qualifications, independence, responsibilities, tenure and
compensation of directors;
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size of the Board of Directors;
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director resignation process;
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committee functions and independence of committee members;
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meetings of independent directors;
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performance review of the Board of Directors; and
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director orientation and continuing education.
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The Companys Corporate Governance Guidelines are reviewed
periodically and as necessary by the Companys
Nominating & Governance Committee, and any proposed
additions to or amendments of the Corporate Governance
Guidelines will be presented to the Board of Directors for its
approval.
Director
Independence
Rather than adopting categorical standards, the Board of
Directors assesses director independence on a
case-by-case
basis, in each case consistent with applicable legal
requirements and the listing standards of the NYSE. After
reviewing all relationships each director has with the Company,
including the nature and extent of any business relationships
between the Company and each director, as well as any
significant charitable contributions the Company makes to
organizations where its directors serve as board members or
executive officers, the Board of Directors has affirmatively
determined that the following directors have no material
relationships with the Company and are independent as defined by
the current listing standards of the NYSE:
Messrs. Bridwell, Easter, Keenan, Poage, Puckett and Tabor.
Mr. Leach, the Companys Chief Executive Officer and
President, is not considered by the Board of Directors to be an
independent director because of his employment with the Company.
Mr. Beal is not considered to be an independent director
because of his previous position as an executive officer of the
Company and his current role as a paid consultant to the Company.
Board
Leadership Structure
The Board of Directors does not have a policy on whether or not
the roles of Chairman and Chief Executive Officer should be
separate or combined. The directors serving on our Board of
Directors possess considerable professional and industry
experience, significant experience as directors of both public
and private companies and a unique knowledge of the challenges
and opportunities that our Company faces. As such, the Board of
Directors believes that it is in the best position to evaluate
the needs of our Company and to determine how best to organize
our Companys leadership structure to meet those needs.
At present, the Board of Directors of the Company has chosen to
combine the positions of Chairman and Chief Executive Officer.
While the Board of Directors believes it is important to retain
the flexibility to determine whether the roles of Chairman and
Chief Executive Officer should be separated or combined in one
individual, the Board of Directors currently believes that the
current Chief Executive Officer is the individual with the
necessary experience, commitment and support of the other
members of the Board of Directors to effectively carry out the
role of Chairman.
The Board of Directors believes this structure promotes better
alignment of strategic development and execution, more effective
implementation of strategic initiatives and clearer
accountability for the Companys success or failure.
Moreover, the Board of Directors believes that combining the
Chairman and Chief Executive Officer positions does not impede
independent oversight. Six of the eight members of the Board of
Directors are independent under NYSE rules and
Mr. Bridwell, an independent director, acts as the Lead
Director. The independent directors meet in an executive session
after each regular board meeting, and Mr. Bridwell acts as
Chairman of these sessions, and at which the independent
directors have the opportunity to openly discuss management
performance.
6
Executive
Sessions; Election of Lead Director
To facilitate candid discussion among the Companys
directors, the independent directors meet in executive session
in conjunction with each regular board meeting and as otherwise
determined by the Lead Director.
The Board of Directors elected Mr. Bridwell, an independent
director, to serve as the Lead Director. In this capacity
Mr. Bridwell provides, in conjunction with the Chairman,
leadership and guidance to the Board of Directors. As the Lead
Director, Mr. Bridwell also (i) serves as chairman of
executive sessions of the independent directors and (ii) in
consultation with the Chairman, establishes the agenda for each
meeting of the Board of Directors, taking into account the
suggestions of other directors. Interested parties who wish to
communicate with the Board of Directors, its committees, the
Chairman, the Lead Director or any other individual director
should follow the procedures described below under
Interested Party Communications.
Boards
Role in Risk Oversight
In the normal course of its business, the Company is exposed to
a variety of risks, including market risks relating to changes
in commodity prices, interest rates, technical risks affecting
the Companys resource base, political risks and credit and
investment risk. Our executive officers attend all regularly
scheduled meetings of the Board of Directors, where they conduct
presentations to the Board of Directors on various strategic
matters involving our operations and are available to address
any questions or concerns raised by the Board of Directors on
risk management or any other matters. Our Board of Directors
oversees the strategic direction of our Company, and in doing so
considers the potential rewards and risks of our Companys
business opportunities and challenges, and monitors the
development and management of risks that impact our strategic
goals. The Audit Committee assists the Board of Directors in
fulfilling its oversight responsibilities by monitoring the
effectiveness of the Companys systems of financial
reporting, auditing, internal controls and legal and regulatory
compliance. To address risks related to the Companys
hedging program, a group consisting of our Chief Executive
Officer, our Chief Financial Officer and Mr. Easter, an
independent director, regularly review the Companys
hedging strategy and positions.
Director
Qualifications
A number of the members of the Board of Directors have served as
members of senior management
and/or
directors of other public and private companies. In addition,
all members of the Board of Directors have extensive experience
in the oil and natural gas industry and are familiar with board
processes.
More specifically, Mr. Leach has been Chairman and Chief
Executive Officer of our Company since its formation and
President since July 2009. Mr. Beal served as the President
and Chief Operating Officer of our Company from its formation
until his retirement in June 2009 and remains a consultant to
the Company. In addition, both men previously served as
executive officers of two Permian Basin-focused private oil and
natural gas companies and in varying executive roles at
Parker & Parsley Petroleum Company (now Pioneer
Natural Resources Company). Messrs. Leach and Beals
deep knowledge of the Company and the industry as a result of
their long tenure with the Company and previous companies make
them valuable members of the Board of Directors.
Mr. Easters experience as Chairman, President and
Chief Executive Officer of DCP Midstream, LLC and his previous
service on the board of directors of TEPPCO GP LLC has provided
him with midstream and natural gas marketing expertise, as well
as valuable management skills. Mr. Puckett, as a result of
his 35 year career at Chevron Corporation, provides the
Board of Directors a valuable source of engineering, drilling
and oil and natural gas operations management expertise. In
addition, as the Company expects to continue to grow in size and
scale, the Board of Directors will benefit from
Messrs. Easter and Pucketts experience in managing
large organizations.
Messrs. Bridwell, Keenan and Tabor each bring decades worth
of experience in energy finance and oil and natural gas
investments, as well as knowledge gained through past and
current service on the board of directors of various public and
private companies in the energy industry. All are familiar with
the issues, trends and opportunities within the industry,
providing the Companys management with meaningful
relationships and supplying the Board of Directors with critical
expertise when evaluating potential acquisition opportunities
and exploration projects.
7
Mr. Poage spent the majority of his 30 years of
service at KPMG advising oil and natural gas companies on
accounting and tax matters, which assists the Board of Directors
when dealing with tax, audit and other accounting matters. In
addition, his recent service as the chair of the audit committee
of another public exploration and production company gives him
valuable perspective on current issues facing audit committees.
Attendance
at Annual Meetings
The Board of Directors encourages all directors to attend the
annual meetings of stockholders, if practicable. Five of the
Companys directors attended last years annual
meeting.
Interested
Party Communications
The Companys stockholders and other interested persons may
communicate with the Board of Directors, any committee of the
Board of Directors, the Chairman of the Board of Directors, the
Lead Director or any other individual director by sending
communications to: Concho Resources Inc., 550 West Texas
Avenue, Suite 100, Midland, Texas 79701, Attention: General
Counsel.
The envelope containing each communication should be marked
Communication with Directors and clearly identify
the intended recipient(s) of the communication. The
Companys General Counsel will review each communication
received from stockholders and other interested parties and will
forward the communication, as expeditiously as reasonably
practicable, to the addressees if the communication
(i) complies with the requirements of any applicable policy
adopted by the Board of Directors relating to the subject matter
of the communication; and (ii) falls within the scope of
matters generally considered by the Board of Directors. To the
extent the subject matter of a communication relates to matters
that have been delegated by the Board of Directors to a
committee or to an executive officer of the Company, the
Companys General Counsel may forward the communication to
the chairperson of the committee or executive officer to which
the matter has been delegated. The acceptance and forwarding of
communication to the members of the Board of Directors or an
executive officer does not imply or create any fiduciary duty of
any member of the Board of Directors or executive officer to the
person submitting the communication.
Information may be submitted confidentially and anonymously,
although the Company may be obligated by law to disclose the
information or identity of the person providing the information
in connection with government or private legal actions and in
other circumstances. The Companys policy is not to take
any adverse action, and not to tolerate any retaliation, against
any person for asking questions or making good faith reports of
possible violations of law, the Companys policies or its
Code of Business Conduct and Ethics.
Available
Governance Materials
The following materials are available on the Companys
website at www.conchoresources.com:
|
|
|
|
|
Amended and Restated Charter of the Audit Committee of the Board
of Directors;
|
|
|
|
Charter of the Compensation Committee of the Board of Directors;
|
|
|
|
Charter of the Nominating & Governance Committee of
the Board of Directors;
|
|
|
|
Code of Business Conduct and Ethics;
|
|
|
|
Financial Code of Ethics;
|
|
|
|
Corporate Governance Guidelines; and
|
|
|
|
Policies and Procedures Relating to Disclosures Required by
Item 407 of
Regulation S-K.
|
Stockholders may obtain a copy, free of charge, of each of these
documents by sending a written request to Concho Resources Inc.,
550 West Texas Avenue, Suite 100, Midland, Texas
79701, Attention: General Counsel.
8
MEETINGS
AND COMMITTEES OF DIRECTORS
General
The Board of Directors held ten meetings, and its independent
directors met in executive session four times, during 2009. No
director attended fewer than 75% of the meetings of the Board of
Directors and of the committees of the Board of Directors on
which that director served.
The Board of Directors has three standing committees: the Audit
Committee, the Compensation Committee and the
Nominating & Governance Committee.
Audit
Committee
The members of the Audit Committee are Messrs. Poage
(Chairman), Bridwell, Easter and Puckett. The Board of Directors
has determined that each of the members of the Audit Committee
satisfies the standards of independence established under
Securities and Exchange Commission (SEC) rules and
regulations and the listing standards of the NYSE . The Board of
Directors has further determined that each of the members of the
Audit Committee is financially literate and that Mr. Poage
is an audit committee financial expert as defined by
the rules and regulations of the SEC. The Audit Committee held
eight meetings during 2009.
The Audit Committee has the authority to retain, compensate,
evaluate and terminate the Companys independent registered
public accounting firm. The functions of the Audit Committee,
which are discussed in detail in its charter, include the duty
to assist the Board of Directors in fulfilling its oversight
responsibilities regarding general oversight of the integrity of
the Companys financial statements, the Companys
compliance with legal and regulatory requirements, and the
independent registered public accounting firms
qualifications, independence and performance. Among other
things, the Audit Committee is responsible for overseeing the
Companys accounting and financial reporting processes;
preparing the Audit Committee Report for inclusion in the
Companys proxy statement; selecting and evaluating the
Companys independent registered public accounting firm;
reviewing and approving, as appropriate, any related person
transactions; and overseeing any investigations into complaints
concerning financial matters.
Compensation
Committee
The members of the Compensation Committee are Messrs. Tabor
(Chairman), Easter, Keenan and Puckett. The Board of Directors
has determined that each of the members of the Compensation
Committee satisfies the standards of independence established
under the listing standards of the NYSE. The Compensation
Committee held five meetings during 2009.
The functions of the Compensation Committee, which are discussed
in detail in its charter, include the duty to administer the
Companys agreements, plans, policies and programs
regarding compensation of the Companys executive officers
and directors. The Compensation Committee is also responsible
for preparing the Compensation Committee Report for inclusion in
the Companys proxy statement and for assisting the
Companys management in preparing the Compensation
Discussion and Analysis for inclusion in the Companys
proxy statement.
The Compensation Committee is delegated all authority of the
Board of Directors as may be required or advisable to fulfill
the purposes of the Compensation Committee. The Compensation
Committee may form and delegate some or all of its authority to
subcommittees when it deems appropriate.
Meetings may, at the discretion of the Compensation Committee,
include members of the Companys management, independent
consultants or advisors, and such other persons as the
Compensation Committee or its chairperson may determine. The
Compensation Committee Chairman makes decisions regarding the
agenda for regularly scheduled meetings and develops the agenda
for special meetings based on information supplied by the person
requesting the special meeting. The Companys Chief
Executive Officer makes recommendations to the Compensation
Committee regarding the compensation of other executive officers
and provides information to the Compensation Committee regarding
the other executive officers performance; however, the
Compensation Committee makes all final decisions regarding all
executive officers compensation.
9
The Compensation Committee has the sole authority to retain,
amend the engagement with, and terminate any compensation
consultant to be used to assist in the evaluation of director
and executive officer compensation. The Compensation Committee
has engaged the services of Longnecker & Associates
since 2007 to apprise the Compensation Committee of
compensation-related trends, developments in the marketplace and
industry best practices; inform the Compensation Committee of
compensation-related regulatory developments; provide peer group
survey data to establish compensation ranges for the various
elements of compensation; provide an evaluation of the
competitiveness of the Companys non-employee director and
executive compensation and benefits programs; assess the
relationship between executive pay and performance; and advise
on the design of the Companys incentive compensation
programs.
Nominating &
Governance Committee
The members of the Nominating & Governance Committee
are Messrs. Bridwell (Chairman), Keenan and Tabor. The
Board of Directors has determined that each of the members of
the Nominating & Governance Committee satisfies the
standards of independence established under the listing
standards of the NYSE. The Nominating & Governance
Committee held four meetings during 2009.
The functions of the Nominating & Governance
Committee, which are discussed in detail in its charter, include
the duty to assist the Board of Directors by evaluating
potential new members of the Board of Directors, recommending
committee members and structure and advising the Board of
Directors about appropriate corporate governance practices. The
Companys Policies and Procedures Relating to Disclosures
Required by Item 407 of
Regulation S-K
provide that in identifying, evaluating and recommending to the
Board of Directors director nominees, the Nominating &
Governance Committee shall identify persons who (i) are
selected on the basis of their business and professional
experience and qualifications, including service on the boards
of directors of other companies; (ii) have demonstrated
leadership in other companies or government, finance or
accounting, higher education or other fields or who are able to
provide the Company with relevant expertise, industry knowledge
or marketing acumen; (iii) possess the highest personal and
professional ethics, integrity and values and are committed to
the Companys core values; (iv) are willing to commit
the required time to serve as a member of the Board of Directors
and its committees; and (v) will represent all stockholders
rather than special interest groups or any group of
stockholders. While the Board of Directors does not have a
formal policy on diversity, in selecting nominees, the
Nominating & Governance Committee seeks to have a
Board of Directors that represents a diverse range of
perspectives and experience relevant to our Company.
In determining whether to recommend a director for re-election
to the Board of Directors, in accordance with such policies and
procedures the Nominating & Governance Committee shall
consider the directors:
|
|
|
|
|
past Board of Directors and committee meeting attendance
and performance;
|
|
|
|
length of Board of Directors service;
|
|
|
|
personal and professional integrity, including commitment to the
Companys core values;
|
|
|
|
experience, skills and contributions to the Board of
Directors; and
|
|
|
|
independence under applicable standards.
|
ITEM TWO: RATIFICATION
OF SELECTION OF INDEPENDENT
REGISTERED PUBLIC
ACCOUNTING FIRM
The Audit Committee of the Board of Directors has selected Grant
Thornton LLP as the independent registered public accounting
firm of the Company for the year ending December 31, 2010.
Grant Thornton LLP has audited the Companys and its
predecessors financial statements since 2004. The audit of
the Companys annual consolidated financial statements for
the year ended December 31, 2009 was completed by Grant
Thornton LLP on February 26, 2010.
The Board of Directors is submitting the selection of Grant
Thornton LLP for ratification at the Annual Meeting. The
submission of this matter for ratification by stockholders is
not legally required, but the Board of
10
Directors and the Audit Committee believe the submission
provides an opportunity for stockholders through their vote to
communicate with the Board of Directors and the Audit Committee
about an important aspect of corporate governance. If the
stockholders do not ratify the selection of Grant Thornton LLP,
the Audit Committee will reconsider, but will not be required to
rescind, the selection of that firm as the Companys
independent registered public accounting firm. Representatives
of Grant Thornton LLP are expected to be present at the Annual
Meeting and will have the opportunity to make a statement if
they desire to do so. Such representatives are also expected to
be available to respond to appropriate questions.
The Audit Committee has the authority and responsibility to
retain, evaluate and replace the Companys independent
registered public accounting firm. The stockholders
ratification of the appointment of Grant Thornton LLP does not
limit the authority of the Audit Committee to change the
Companys independent registered public accounting firm at
any time.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT
STOCKHOLDERS VOTE FOR THE RATIFICATION OF THE SELECTION OF GRANT
THORNTON LLP AS THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM OF THE COMPANY FOR THE YEAR ENDING DECEMBER 31, 2010.
AUDIT
MATTERS
Audit
Committee Report
Pursuant to its charter, the Audit Committees principal
functions include the duty to (i) annually review and
reassess its performance and the adequacy of its charter;
(ii) pre-approve audit or non-audit services proposed to be
rendered by the Companys independent registered public
accounting firm; (iii) annually review the qualifications
and independence of the independent registered public accounting
firms senior personnel that are providing services to the
Company; (iv) review with management and the independent
registered public accounting firm the Companys annual and
quarterly financial statements, earnings press releases and
financial information and earnings guidance provided to analysts
and ratings agencies; (v) review with management the
Companys major financial risk exposures; (vi) review
changes to the Companys significant auditing and
accounting principles and practices; (vii) review the
independent registered public accounting firms internal
quality-control procedures and the procedures for the
Companys financial reporting processes; and
(viii) assist the Board of Directors in monitoring
compliance with legal and regulatory requirements. While the
Audit Committee has the responsibilities and powers set forth in
its charter and the Companys management and the
independent registered public accounting firm are accountable to
the Audit Committee, it is not the duty of the Audit Committee
to plan or conduct audits or to determine that the
Companys financial statements and disclosures are complete
and accurate and are in accordance with generally accepted
accounting principles and applicable laws, rules and regulations.
In performing its oversight role, the Audit Committee has
reviewed and discussed the Companys audited financial
statements with the Companys management and independent
registered public accounting firm. The Audit Committee has also
discussed with the independent registered public accounting firm
the matters required to be discussed by Statement on Auditing
Standards No. 61, Communication with Audit Committees. The
Audit Committee has received the written disclosures and the
written statement from the independent registered public
accounting firm required by applicable requirements of the
Public Company Accounting Oversight Board regarding the
independent accountants communications with the Audit
Committee concerning independence. The Audit Committee has also
considered whether the provision of non-audit services by the
independent registered public accounting firm to the Company is
compatible with maintaining the independent registered public
accounting firms independence and has discussed with the
independent registered public accounting firm its independence.
Based on the reviews and discussions described in this Audit
Committee Report, and subject to the limitations on the roles
and responsibilities of the Audit Committee referred to herein
and in its charter, the Audit Committee recommended to the Board
of Directors that the Companys audited financial
statements for the year ended December 31, 2009 be included
in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009, which was filed with
the SEC on February 26, 2010. The Audit Committee also
selected Grant Thornton LLP as the Companys independent
registered public accounting firm for 2010.
11
Members of the Audit Committee rely, without independent
verification, on the information provided to them and on the
representations made by the Companys management and
independent registered public accounting firm. Accordingly, the
Audit Committees oversight does not provide an independent
basis to determine that management has maintained appropriate
accounting and financial reporting principles or appropriate
internal controls and procedures designed to assure compliance
with accounting standards and applicable laws and regulations.
Furthermore, the Audit Committees considerations and
discussions referred to above do not assure that (i) the
audit of the Companys financial statements has been
carried out in accordance with generally accepted auditing
standards, (ii) the Companys financial statements are
presented in accordance with generally accepted accounting
principles, or (iii) Grant Thornton LLP is in fact
independent.
Members of the Audit Committee:
Ray M. Poage (Chairman)
Tucker S. Bridwell
William H. Easter III
Mark B. Puckett
Audit and
Other Fees
The table below sets forth the aggregate fees billed by Grant
Thornton LLP, the Companys independent registered public
accounting firm, for the last two fiscal years:
|
|
|
|
|
|
|
|
|
|
|
For the Years Ended
|
|
|
|
December 31,
|
|
|
|
2009
|
|
|
2008
|
|
|
Audit
Fees(1):
|
|
|
|
|
|
|
|
|
Audit
|
|
$
|
374,813
|
|
|
$
|
465,039
|
|
Quarterly Reviews
|
|
|
139,365
|
|
|
|
140,376
|
|
SEC Filings
|
|
|
57,038
|
|
|
|
17,567
|
|
|
|
|
|
|
|
|
|
|
Subtotal
|
|
|
571,216
|
|
|
|
622,982
|
|
Audit Related Fees
|
|
|
|
|
|
|
|
|
Tax
Fees(2)
|
|
|
75,150
|
|
|
|
329,753
|
|
All Other Fees
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
646,366
|
|
|
$
|
952,735
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Includes audit of the
Companys annual consolidated financial statements included
in its Annual Report on
Form 10-K,
review of the Companys quarterly financial statements
included in its Quarterly Reports on
Form 10-Q
and review of the Companys other filings with the SEC,
including comfort letters, consents and other research work
necessary to comply with generally accepted auditing standards
for the years ended December 31, 2009 and 2008.
|
|
(2) |
|
Tax return preparation and
consultation on tax matters.
|
The charter of the Audit Committee and its pre-approval policy
require that the Audit Committee review and pre-approve the
Companys independent registered public accounting
firms fees for audit, audit-related, tax and other
services. The Chairman of the Audit Committee has the authority
to grant pre-approvals, provided such approvals are within the
pre-approval policy and are presented to the Audit Committee at
a subsequent meeting. For the year ended December 31, 2009,
the Audit Committee approved 100% of the services described
above under the captions Audit Fees,
Audit-Related Fees and Tax Fees.
12
EQUITY
COMPENSATION PLAN INFORMATION
The table below provides certain information about the
Companys equity compensation plans as of December 31,
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
|
|
|
|
|
|
|
Remaining Available for
|
|
|
|
|
|
|
|
|
|
Future Issuance Under
|
|
|
|
Number of Securities to
|
|
|
Weighted-Exercise
|
|
|
Equity Compensation
|
|
|
|
be Issued Upon Exercise
|
|
|
Price of
|
|
|
Plans (Excluding
|
|
|
|
of Outstanding Options,
|
|
|
Outstanding
|
|
|
Securities Reflected in
|
|
|
|
Warrants and Rights
|
|
|
Options
|
|
|
Column (a))
|
|
|
Equity compensation plan approved by security
holders(1)
|
|
|
2,156,503
|
(2)
|
|
$
|
14.11
|
|
|
|
1,581,226
|
|
Equity compensation plan not approved by security
holders(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
2,156,503
|
|
|
|
|
|
|
|
1,581,226
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
In August 2006, the stockholders of
the Company approved the Concho Resources Inc. 2006 Stock
Incentive Plan, the Companys only equity compensation
plan, which provides for the issuance of up to 5.85 million
shares of the Companys common stock. There are no
outstanding warrants or equity rights awarded under the
Companys equity compensation plan.
|
|
(2) |
|
These securities do not include
shares of restricted stock awarded under the Concho Resources
Inc. 2006 Stock Incentive Plan.
|
|
(3) |
|
None.
|
DIRECTOR
COMPENSATION
The table below summarizes compensation paid by the Company to
its directors during 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned
|
|
|
|
|
|
|
or Paid in
|
|
Stock
|
|
|
Name(1)
|
|
Cash(2)
|
|
Awards(3)(4)(5)
|
|
Total
|
|
Steven L.
Beal(6)
|
|
$
|
13,000
|
|
|
$
|
|
|
|
$
|
13,000
|
|
Tucker S. Bridwell
|
|
|
66,000
|
|
|
|
125,011
|
|
|
|
191,011
|
|
William H. Easter, III
|
|
|
61,750
|
|
|
|
125,011
|
|
|
|
186,761
|
|
W. Howard Keenan,
Jr.(7)
|
|
|
58,625
|
|
|
|
|
|
|
|
58,625
|
|
Ray M. Poage
|
|
|
68,500
|
|
|
|
125,011
|
|
|
|
193,511
|
|
Mark B. Puckett
|
|
|
|
|
|
|
76,452
|
|
|
|
76,452
|
|
A. Wellford
Tabor(8)
|
|
|
72,250
|
|
|
|
125,011
|
|
|
|
197,261
|
|
|
|
|
(1) |
|
Mr. Leach is not included
because he receives no additional compensation for serving on
the Board of Directors.
|
|
(2) |
|
Fees earned during the fourth
quarter of each year are paid during the first quarter of the
next year.
|
|
(3) |
|
The amounts in this column
represent the grant date fair value computed in accordance with
the Financial Accounting Standards Board (FASB)
Accounting Standards Codification (ASC) Topic 718
for awards granted in 2009. The Company values its restricted
stock awards based on the average of the high and low
market-quoted sales price of the Companys common stock on
the grant date of the award. Additional detail regarding the
Companys share-based awards is included in Note G to
Consolidated Financial Statements included in Item 8.
Financial Statements and Supplementary Data in the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2009.
|
|
(4) |
|
Aggregate director stock awards for
which restrictions had not lapsed as of December 31, 2009,
totaled 6,128 shares each for Messrs, Bridwell, Easter,
Poage and Tabor and 1,864 shares for Mr. Puckett;
restrictions on these shares lapse February 26, 2010,
except as to Mr. Pucketts shares, as to which
restrictions lapse on November 5, 2010.
|
|
(5) |
|
There were no options to purchase
the Companys common stock granted to directors during the
year ended December 31, 2009.
|
13
|
|
|
(6) |
|
Represents fees earned by
Mr. Beal for his service as a director. See Executive
Compensation Summary Compensation Table for
all other compensation earned as an employee of the Company
before his retirement and fees earned as a consultant to the
Company after his retirement.
|
|
(7) |
|
Mr. Keenan directed that all
cash fees due him as director compensation be paid to Yorktown
Energy Partners V, L.P., and Yorktown Energy Partners VI,
L.P. Mr. Keenan requested not to receive an annual equity
award in 2009 for his service as a director.
|
|
(8) |
|
Mr. Tabor was previously
employed by Wachovia Capital Partners (WCP) until
May 2009 and had previously directed that all cash fees due to
him as a director be paid to WCP. As a result, $29,750 was paid
to WCP and $42,500 was paid to Mr. Tabor during 2009.
|
The Board of Directors believes that providing a compensation
package at the market median is necessary to attract and retain
qualified directors. The Board of Directors believes that the
compensation package should require a significant portion of the
total compensation package to be equity-based to align the
interests of the Companys directors and stockholders.
Mr. Leach, the Companys Chief Executive Officer,
receives no additional compensation for his service on the Board
of Directors.
The elements of compensation for the Companys directors
during the year ended December 31, 2009 were:
|
|
|
|
|
an annual retainer fee of $40,000;
|
|
|
|
annual retainer fees of $15,000, $10,000 and $7,500,
respectively, to the chairmen of the Audit Committee,
Compensation Committee and Nominating & Governance
Committee;
|
|
|
|
attendance fees of $1,500 and $1,000, respectively, for Board of
Directors and committee meetings; and
|
|
|
|
annual equity awards of shares of restricted stock to each
director having a value of $125,000.
|
The price used to determine the value of restricted shares
granted for directors equity awards is the average of the
high and low market-quoted sales prices of the Companys
common stock on the grant date of the award. Time of service
related forfeiture restrictions on the Companys restricted
stock issued to directors lapse twelve months following the
grant date of the award. All retainer and attendance fees are
paid quarterly in cash to directors.
Additionally, each director is reimbursed for (i) travel
and miscellaneous expenses to attend meetings and activities of
the Board of Directors or its committees; (ii) travel and
miscellaneous expenses related to such directors
participation in the Companys general education and
orientation program for directors; and (iii) travel and
miscellaneous expenses for each directors spouse who
accompanies a director to attend meetings and activities of the
Board of Directors or its committees.
COMPENSATION
DISCUSSION AND ANALYSIS
The following Compensation Discussion and Analysis contains
statements regarding future Company performance goals and
measures. These goals and measures are disclosed in the limited
context of the Companys compensation and benefits programs
and should not be understood to be statements of
managements expectations or estimates of results or other
guidance. The Company specifically cautions investors not to
apply these statements to other contexts.
Introduction
and Overview
General. This Compensation Discussion and
Analysis (i) explains the Companys compensation
philosophy, objectives, policies and practices with respect to
its executive officers, and (ii) analyzes the elements of
compensation for each of the individuals identified below, whom
the Company refers to in this Compensation Discussion and
Analysis as the Companys named executive
officers.
14
|
|
|
Name
|
|
Principal Position
|
|
Timothy A. Leach
|
|
Chairman of the Board, Chief Executive Officer and President
|
C. William Giraud
|
|
Vice President General Counsel and Secretary
|
Darin G. Holderness
|
|
Vice President Chief Financial Officer and Treasurer
|
Matthew G. Hyde
|
|
Vice President Exploration and Land
|
E. Joseph Wright
|
|
Vice President Engineering and Operations
|
Steven L.
Beal(1)
|
|
Former President and Chief Operating Officer
|
David W.
Copeland(2)
|
|
Former Vice President General Counsel and Secretary
|
|
|
|
(1) |
|
Mr. Beal retired June 30,
2009.
|
|
(2) |
|
Mr. Copeland retired as an
officer of the Company on November 5, 2009, but remains an
employee of the Company.
|
Compensation Philosophy and Objectives. The
success of the Company and its ability to maximize stockholder
value is dependent on its ability to attract, retain and
motivate the best available talent in the energy industry. As
such, the Compensation Committee views the Companys most
important asset, its people, as an investment rather than an
expense. Consequently, the Compensation Committee has developed
overarching objectives for its executive compensation program,
which are as follows:
|
|
|
|
|
attract, retain and motivate the best available talent in the
energy industry;
|
|
|
|
align the interests of the Companys executive officers
with those of its stockholders; and
|
|
|
|
pay for performance, whereby an executive officers total
compensation opportunity will be heavily influenced by the
Companys performance, as well as the executive
officers individual performance.
|
To accomplish these objectives, the Company provides what it
believes is a competitive total compensation package to the
Companys executive officers through a combination of base
salary, performance-based annual cash incentive awards,
long-term equity incentive compensation and broad-based benefit
programs.
Total Compensation. In determining total
compensation for the Companys executive officers, the
Compensation Committee intends to align management incentives
with long-term value creation for the Companys
stockholders. To that end, the Compensation Committee targets
total compensation to be such that base salaries are near the
market median and that annual cash incentives and long-term
incentives provide the opportunity to realize total compensation
at or above the 50th percentile of the Companys peer
group based on individual and Company performance.
Setting
Executive Officer Compensation
Role of the Compensation Committee. The
Compensation Committee approves all compensation decisions
relating to the Companys executive officers, oversees the
Companys compensation benefit plans and administers the
Companys stock incentive plan (including reviewing and
approving all equity grants to the Companys executive
officers). The Compensation Committee is empowered by the Board
of Directors and by the Compensation Committees charter to
make all decisions regarding compensation for the Companys
executive officers. In his role as chairman of the Compensation
Committee, Mr. Tabor sets the Compensation Committees
meeting agendas, meeting times and calendar. In addition, the
Compensation Committee members speak frequently with each other
concerning compensation matters outside of regularly scheduled
Compensation Committee meetings. Mr. Tabor regularly
reports to the entire Board of Directors regarding compensation
matters and calls upon the counsel and expertise of other
members of the Board of Directors as he and the other members of
the Compensation Committee deem advisable.
Role of Executive Officers. The Compensation
Committee meets outside the presence of all of the
Companys executive officers to consider appropriate
compensation for the Companys Chief Executive Officer.
When determining compensation for other executive officers, the
Compensation Committee meets with the Chief Executive Officer.
The Companys Chief Executive Officer reviews other
executive officers performance with the
15
Compensation Committee and makes recommendations with respect to
appropriate base salaries, awards under the Companys
annual cash incentive plan and grants of long-term equity
incentive awards for the other executive officers. Based in part
on these recommendations from the Companys Chief Executive
Officer and other considerations discussed below, the
Compensation Committee establishes and approves the compensation
package for each of the Companys other executive officers.
Use of Peer Group Comparisons. The
Compensation Committee has selected a group of companies that it
considers a peer group for executive compensation
analysis purposes. Longnecker & Associates, the
Compensation Committees independent compensation
consultant, compiles compensation data for the peer group from a
variety of sources, including proxy statements and other
publicly filed documents. The Compensation Committee uses the
compensation data to compare the compensation of the
Companys executive officers to comparably titled persons
at companies within its peer group, targeting base salaries for
the Companys executive officers which are near the market
median of its peer group, and targeting annual cash and
long-term incentives so that the Companys executive
officers will have the opportunity to realize total compensation
at or above the 50th percentile of the Companys peer
group based on Company and individual performance.
Each year, the Compensation Committee reviews and re-determines
the composition of the Companys peer group so that the
peer group consists of oil and gas exploration and production
companies (i) with annual revenue and market capitalization
similar to the Company, and (ii) who potentially compete
with the Company for executive talent.
For 2009, the Companys peer group consisted of:
|
|
|
|
|
|
|
|
|
Arena Resources, Inc.
|
|
|
|
Petrohawk Energy Corporation
|
|
|
Bill Barrett Corporation
|
|
|
|
Quicksilver Resources Inc.
|
|
|
Cabot Oil & Gas Corporation
|
|
|
|
Range Resources Corporation
|
|
|
Comstock Resources, Inc.
|
|
|
|
Rosetta Resources Inc.
|
|
|
Continental Resources, Inc.
|
|
|
|
St. Marys Land & Exploration Company
|
|
|
Denbury Resources Inc.
|
|
|
|
Swift Energy Company
|
|
|
Encore Acquisition Company
|
|
|
|
Whiting Petroleum Corporation
|
|
|
EXCO Resources, Inc.
|
|
|
|
|
Role of Compensation Consultant. The
Compensation Committee has retained Longnecker &
Associates since 2007 as an independent compensation consultant
to assist the Compensation Committee in developing the
Companys non-employee director and executive compensation
program. In this capacity, Longnecker & Associates
reports only to the Compensation Committee and does no other
work for the Company. Representatives from
Longnecker & Associates attend certain of the
Compensation Committee meetings and advise the Compensation
Committee on an ongoing basis with regard to general trends in
director and executive compensation matters, including
(i) competitive benchmarking; (ii) incentive plan
design; (iii) peer group selection; and (iv) other
matters requested from time to time by the Compensation
Committee. The Compensation Committee has the sole authority to
hire and terminate its compensation consultant.
Elements
of the Companys Executive Officer Compensation
Program
Overview. The Companys executive officer
compensation program is comprised of the following four
components: base salaries, performance-based annual cash
incentive awards, long-term equity incentive grants and a
broad-based benefits program. The Compensation Committee
determined the appropriate level for each compensation component
for compensation during 2009 based on the Companys
recruiting and retention goals, its view of internal parity and
consistency, peer group data and overall Company performance.
Base Salaries. The Company pays base salaries
to provide a minimum, fixed level of cash compensation for its
executive officers. The Compensation Committee believes that
paying base salaries near the market median is necessary to
achieve the Companys compensation objectives of attracting
and retaining executives with the appropriate abilities and
experience required to lead the Company. On an annual basis, the
Compensation Committee reviews salary ranges and individual
salaries for each of the Companys executive officers as
compared
16
to the salaries of comparably titled officers in the
Companys peer group companies. The Compensation Committee
established 2009 base salary levels for each named executive
officer after consideration of market median pay levels, the
individuals responsibilities, skills and experience, and
the base salaries of others on the executive team. Based on that
review, the Compensation Committee established 2009 base salary
levels for the Companys named executive officers, as
follows:
|
|
|
|
|
|
|
|
|
Name
|
|
2009 Base Salary
|
|
Salary Increase
|
|
Timothy A. Leach
|
|
$
|
475,000
|
|
|
|
5.6
|
%
|
Steven L. Beal
|
|
|
475,000
|
|
|
|
5.6
|
%
|
David W. Copeland
|
|
|
265,000
|
|
|
|
6.0
|
%
|
Darin G. Holderness
|
|
|
285,000
|
|
|
|
14.0
|
%
|
Matthew G. Hyde
|
|
|
300,000
|
|
|
|
20.0
|
%
|
E. Joseph Wright
|
|
|
300,000
|
|
|
|
20.0
|
%
|
In August 2009, the Compensation Committee increased
Mr. Leachs annual base salary from $475,000 to
$550,000, effective June 30, 2009, in recognition of his
increased duties following the retirement of Mr. Beal, who
had previously served as the Companys President and Chief
Operating Officer. When hiring Mr. Giraud as the
Companys Vice President General Counsel and
Secretary, the Compensation Committee considered market median
pay levels; Mr. Girauds responsibilities, skills and
experience; and the base salaries of the others executive
officers, which, after negotiations with Mr. Giraud,
resulted in his 2009 base salary being set at $265,000.
For 2010, the Compensation Committee process for setting
executive officer base salaries was similar to the process for
2009, and the Compensation Committee established 2010 base
salary levels for the Companys named executive officers as
follows:
|
|
|
|
|
|
|
|
|
Name
|
|
2010 Base Salary
|
|
Salary Increase
|
|
Timothy A. Leach
|
|
$
|
600,000
|
|
|
|
9.1
|
%
|
C. William Giraud
|
|
|
265,000
|
|
|
|
|
%
|
Darin G. Holderness
|
|
|
300,000
|
|
|
|
5.3
|
%
|
Matthew G. Hyde
|
|
|
315,000
|
|
|
|
5.0
|
%
|
E. Joseph Wright
|
|
|
315,000
|
|
|
|
5.0
|
%
|
Performance-based Annual Cash Incentive
Awards. Each year, the Compensation Committee
establishes an annual cash incentive program, because the
Compensation Committee believes that the payment of annual cash
incentive awards based upon the performance of the Company is
necessary to achieve its compensation objectives of motivating
and rewarding the Companys executive officers as well as
aligning the interests of the Companys executive officers
and stockholders with the performance of the Company.
The Compensation Committee has historically utilized
performance-based annual cash incentive awards to reward
achievement of certain performance goals with a time horizon of
one year or less. For 2009, the Compensation Committee
established the 2009 annual cash incentive compensation plan
(the 2009 Incentive Compensation Plan) to reward the
Companys executive officers for performance relative to
certain performance metrics, which include:
|
|
|
|
|
production growth;
|
|
|
|
EBITDAX per share;
|
|
|
|
proved reserves growth;
|
|
|
|
organic finding and development costs per Boe; and
|
|
|
|
net asset value per share growth.
|
These performance metrics were selected because the Compensation
Committee and Longnecker & Associates believe that
these performance metrics were relevant, objective measures of
performance for the Company and management. They are also among
those indicators used by the management of the Company to
17
evaluate the performance of the Company. In addition, the
Compensation Committee retained the ability to apply its
discretion to awards under the 2009 Incentive Compensation Plan
based on extenuating market circumstances or individual
performance. The Compensation Committee sets the target annual
cash incentive award amounts such that a payout at the target
level will result in each executive officer receiving a cash
incentive award at or near the 50th percentile of
comparably titled officers in the Companys peer group.
Pursuant to the 2009 Incentive Compensation Plan, the
Compensation Committee set the target annual cash incentive
award amount for 2009 as 100% of Mr. Leachs base
salary, although awards to him may range from 0% to 200% of his
base salary depending on performance relative to performance
metrics and subject to the discretion of the Compensation
Committee. The annual cash incentive award for the other
executive officers is allocated by the Compensation Committee
from a bonus pool. The target amount of the annual cash
incentive award pool is 75% of the aggregate base salaries of
all executive officers other than the Chief Executive Officer,
although the pool could range from 0% to 150% of their aggregate
base salaries depending on performance relative to performance
metrics and subject to the discretion of the Compensation
Committee. Once the annual cash incentive award pool amount is
established, the Compensation Committee approves the allocation
of annual cash incentive awarded to those executive officers
after recommendations from and discussions with the
Companys Chief Executive Officer.
The payout of annual cash incentive awards, if any, is based
upon the Companys level of achievement with respect to the
performance metrics, which are derived each year from the
Companys annual capital budgeting process and are based
upon certain assumptions made by the Companys management.
If the Company achieves expected performance, the short term
incentive program should pay out at target levels. In order to
create additional incentive for exceptional Company performance,
individual awards can be up to 150% of the base salary for each
named executive officer (200% for Mr. Leach), but it is not
expected that payment at this level would be triggered in most
years. In evaluating the Companys achievement relative to
various performance metrics, the Compensation Committee does not
employ a formula or weighting of performance metrics, but rather
subjectively evaluates performance in light of oil and gas
industry fundamentals and assesses how effectively management
adapts to changing industry conditions and opportunities during
the year. The five performance metrics selected with respect to
the 2009 Annual Incentive Compensation Plan are shown in the
table below, together with the goals and actual levels of
achievement.
|
|
|
|
|
|
|
2009
|
|
2009
|
Performance Metric
|
|
Goal
|
|
Actual(1)
|
|
Production growth
|
|
50%
|
|
54%
|
EBITDAX per
share(2)
|
|
$5.75
|
|
$5.60
|
Proved reserves
growth(3)
|
|
15%
|
|
54%
|
Organic finding and development costs per
Boe(4)
|
|
$14.00
|
|
$6.39
|
Net asset value per share
growth(5)
|
|
15%
|
|
25%
|
|
|
|
(1) |
|
Includes effect of acquisitions.
|
|
(2) |
|
The Company defines EBITDAX as net
income (loss), plus (i) exploration and abandonment
expense; (ii) depreciation, depletion and amortization
expense; (iii) accretion expense; (iv) impairments of
long-lived assets; (v) non-cash stock based compensation
expense; (vi) the ineffective portion of cash flow hedges
and unrealized (gain) loss on derivatives not designated as
hedges; (vii) interest expense; (viii) bad debt
expense; and (ix) federal and state income taxes.
|
|
(3) |
|
Includes the effects of
13.6 MMBoe of additions to the Companys estimated oil
and natural gas reserves from the new SEC rules that became
effective for fiscal years ending on or after December 31,
2009.
|
|
(4) |
|
Organic finding and development
costs per Boe is calculated by dividing exploration and
development costs incurred for 2009 of approximately
$399.8 million by extensions and discoveries, including
performance revisions and excluding price revisions in 2009, of
approximately 62.6 MMBoe.
|
|
(5) |
|
Net asset value per share is
computed by replacing the historical net basis of unproved and
proved oil and natural gas properties in the December 31,
2009 consolidated balance sheet with 50% of
PV-10 of the
Companys probable and possible oil and natural gas
properties plus 100% of
PV-10 of the
Companys proved oil and natural gas properties, utilizing
predetermined commodity prices (that are the same for both the
beginning and end of period calculation of net asset value), and
dividing the resulting value by the Companys fully diluted
shares outstanding.
|
18
In February 2010, the Compensation Committee reviewed the
Companys 2009 results relative to these performance
metrics and determined that the Companys performance
exceeded the goals for production growth, proved reserves growth
and net asset value per share growth. Additionally, the
Compensation Committee noted that the Company was able to
produce these results while achieving organic finding and
development costs of $6.39 per Boe. Based on its review of those
metrics, as well as consideration of the Companys
successful management transition following Mr. Beals
retirement and completion of several acquisitions, the
Compensation Committee approved an annual cash incentive award
for Mr. Leach equal to 182% of his 2009 base salary and
established a bonus pool for the Companys other executive
officers equal to 137% of those officers aggregate base
salaries. Allocations from the bonus pool to each executive
officer were approved by the Compensation Committee after
recommendations from and discussion with the Companys
Chief Executive Officer.
For 2010, the Compensation Committee has established the 2010
annual cash incentive compensation plan (the 2010
Incentive Compensation Plan). The 2010 Incentive
Compensation Plan is designed to reward the Companys
executive officers for achieving both short- and long-term
performance and strategic goals. Performance will be judged
based on successful execution of the Companys annual
business plan objectives and on stock price and other
performance criteria relative to peer companies. In evaluating
the executive officers performance, the Compensation
Committee may consider certain objectives, including growth of
oil and natural gas production and proved reserves, achievement
of income
and/or cash
flow targets, finding and development costs, changes in net
asset value per share, successful completion of acquisitions and
other items they may consider to be critical to our success. The
objectives are not weighted because the relative importance of
these, or any other objectives, is flexible and changes over
time, and because the relative responsibilities of each
executive officer in the achievement of the objectives may
differ. The Compensation Committee intends to take a broad view
in applying the 2010 Incentive Compensation Plan and will review
the Companys performance and accomplishments of its
strategic initiatives as a whole throughout the entire year.
Pursuant to the 2010 Incentive Compensation Plan, the
Compensation Committee has set the target annual cash bonus
amount for 2010 to be 100% of base salary for Mr. Leach,
although the award to Mr. Leach may range from 0% to 200%
of his base salary depending on the Compensation
Committees evaluation. The target annual cash bonus for
the other executive officers will be allocated by the
Compensation Committee from a bonus pool. The bonus pool for
these executive officers is expected to be equal to 75% of the
aggregate of their base salaries, although the bonus pool may
range from 0% to 150% of the aggregate of their base salaries,
depending on the Compensation Committees evaluation.
Long-term Equity Incentive Compensation. The
annualized value of the long-term equity incentive compensation
is intended to be the largest component of each named executive
officers overall compensation package, because the
Compensation Committee believes significant emphasis on
stock-based compensation effectively aligns the interests of the
Companys named executive officers with those of its
stockholders, providing incentive to the Companys named
executive officers to focus on the long-term success of the
Company. In addition, the Company utilizes multi-year vesting
periods, typically four years, when granting long-term equity
incentive compensation to facilitate the compensation objective
of retaining the Companys named executive officers.
The value of each named executive officers annual
long-term incentive award is set in the first quarter each year
and is based significantly on the Compensation Committees
review of peer group data provided by Longnecker &
Associates that reflects the value of equity grants as a
percentage of base salary for similarly titled positions at the
Companys peer group companies. Awards are targeted at the
median of the Companys peer group, which is consistent
with the Compensation Committees overall compensation
philosophy. In addition to peer group data, the Compensation
Committee considers and reviews individual performance to
determine the value of the long-term equity incentive award. The
Compensation Committee considers the unvested portion of prior
equity awards when determining future award levels. Awards are
determined based on a dollar value, which, (i) with respect
to stock options, is converted to a number of stock options by
reference to the estimated Black-Scholes value of the stock
options on the date of grant and (ii) with respect to
shares of restricted stock, is converted to a number of shares
by using the average of the high and low sales prices of the
Companys common stock on the date of grant.
19
Based on the foregoing considerations, the Company granted
restricted stock and stock options in February 2009 to its named
executive officers as follows:
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock
|
|
Stock Option
|
Name
|
|
Awards
|
|
Awards
|
|
Timothy A. Leach
|
|
|
24,509
|
|
|
|
43,630
|
|
David W. Copeland
|
|
|
7,353
|
|
|
|
13,089
|
|
Darin G. Holderness
|
|
|
7,353
|
|
|
|
13,089
|
|
Matthew G. Hyde
|
|
|
9,804
|
|
|
|
17,452
|
|
E. Joseph Wright
|
|
|
9,804
|
|
|
|
17,452
|
|
In addition to annual grants to executive officers, the
Compensation Committee has the discretion to approve long-term
incentive awards in connection with hiring new executive
officers. When hiring Mr. Giraud as the Companys Vice
President General Counsel and Secretary in November
2009, the Company awarded him 24,857 shares of restricted
stock, which vest in three equal annual installments beginning
one year from the date of grant.
For 2010, the Compensation Committee process for making
long-term incentive awards was similar to the process for 2009,
although the Compensation Committee decided to make awards of
restricted stock only, as opposed to part restricted stock and
part stock options in 2009. The Compensation Committee chose
restricted stock, rather than stock options, because
(i) restricted stock awards are less dilutive than stock
options, (ii) in the Compensation Committees opinion,
restricted stock provides a more effective retention incentive
and (iii) the majority of the Companys competitors
have recently shifted towards restricted stock. In February
2010, the Company granted restricted stock to its current named
executive officers as follows:
|
|
|
|
|
|
|
Restricted Stock
|
Name
|
|
Awards
|
|
Timothy A. Leach
|
|
|
43,990
|
|
C. William Giraud
|
|
|
4,399
|
|
Darin G. Holderness
|
|
|
8,798
|
|
Matthew G. Hyde
|
|
|
13,197
|
|
E. Joseph Wright
|
|
|
13,197
|
|
Stock Ownership Guidelines. The Compensation
Committee established stock ownership guidelines under which the
Companys Chief Executive Officer is expected to own shares
of the Companys common stock having a market value of at
least five times his base salary, and each of the Companys
other executive officers is expected to own shares of the
Companys common stock having a market value of at least
three times his respective base salary. All executive officers
are expected to meet these guidelines within five years of
becoming an executive officer. The Companys stock
ownership guidelines are designed to increase an
executives equity stake in the Company and to align an
executives interests more closely with those of the
Companys stockholders.
Potential Payments Upon a Termination or Change of
Control. The Company maintains an employment
agreement with each of the named executive officers that
provides potential severance payments upon the termination of
their employment in certain situations. On December 19,
2008, the Company entered into new employment agreements with
all of its then-executive officers, which became effective on
January 1, 2009. In connection with the January 2009
agreements, the Compensation Committee was advised by
Longnecker & Associates regarding market competitive
levels for the compensation related terms and conditions in the
new employment agreements. The January 2009 employment
agreements for all of the Companys executive officers were
designed so that all of the officers would have employment
agreements with the same term and similar severance and change
of control provisions. When Mr. Giraud joined the Company
as an executive officer during 2009, the Company entered into a
substantially similar employment agreement with him effective
November 5, 2009. Mr. Copeland was previously a party
to a January 2009 employment agreement; however, effective as of
November 5, 2009, the Company entered into a new employment
agreement with Mr. Copeland to reflect his retirement as an
executive officer and to anticipate his retirement from the
Company on December 31, 2010. Mr. Beal was also
previously a party to a January 2009 employment agreement, but
in connection with his transition
20
from an employee to a consultant, the Company entered into a
consulting agreement with Mr. Beal effective July 1,
2009, which contains limited payments in connection with a
termination of his consulting services in the event of
Mr. Beals death.
Generally, in the event that the employment of the executive
officers are terminated by the Company other than for
cause (and not by reason of death or disability) or
if they terminate their employment following a change in
duties, the executives will receive severance equal to
eighteen months of base salary (twenty-four months of base
salary in the case of Mr. Leach), as well as up to twelve
months continued medical benefits. If the same termination
events fall within the two year period immediately following a
change of control, each of the Companys named executive
officers is entitled to an increased severance payment equal to
two years of base salary and average annual bonus, accelerated
vesting of any unvested equity compensation awards, and up to
eighteen months continued medical benefits. In addition,
Mr. Giraud will receive a payment of $500,000 if,
(a) prior to November 5, 2010, the Company enters into
an agreement that could result in a change of control, or a
change of control actually occurs, and (b) he becomes
subject to an involuntary termination generally during the one
year period following the applicable change in control event.
The Company believes that these severance and change of control
arrangements mitigate some of the risk that exists for
executives working in a publicly owned company. These
arrangements are intended to attract and retain qualified
executives that could have job alternatives that may appear to
them to be less risky absent these arrangements. Because of
recent significant volatility in the oil and gas industry, the
transactional nature of the industry historically, and the
quality of the Companys workforce and asset base there is
a possibility that the Company could be acquired in the future.
Accordingly, the Company believes that the larger severance
packages resulting from terminations related to change of
control transactions provide an incentive for executives to
continue to help successfully execute such a transaction from
its early stages until consummation. The Compensation Committee
believes that these severance and change of control arrangements
provide important protection to the Companys executive
officers, are consistent with the practices of peer companies
and are appropriate for the attraction and retention of
executive talent. More information on these severance and change
of control agreements can be found below under Potential
Payments Upon a Termination or Change of Control.
Other Benefits. The Companys executive
officers are eligible to participate in all of the
Companys employee benefit plans, such as medical, dental,
vision, group life, disability, and accidental death and
dismemberment insurance and 401(k) plan, in each case on the
same basis as other employees, subject to applicable law. The
Company also provides vacation and other paid leave to all
employees, including the Companys executive officers,
which are comparable to those provided within the oil and
natural gas industry.
During 2009, the Company owned and operated an airplane and
purchased hours in an additional aircraft program to facilitate
the travel of executives in as safe a manner as possible and
with the best use of their time. Under his employment agreement,
Mr. Leach is entitled to utilize the Companys
aircraft for business travel and reasonable personal travel in
North America. The immediate family members of Mr. Leach
are also permitted to utilize the Companys aircraft for
reasonable personal use in North America. Mr. Leach is not
obligated to reimburse the Company for the use of such aircraft
except when his immediate family members use such aircraft
without Mr. Leach accompanying them on the flight, in which
case he is obligated to reimburse the Company for the variable
costs of such use. The amount of personal use of the
Companys aircraft is subject to review and adjustment by
the Compensation Committee.
The value of personal aircraft usage described above is based on
the Companys direct operating cost. This methodology
calculates the Companys incremental cost based on the
average weighted cost of fuel, on-board catering, aircraft
maintenance, landing fees, trip-related hangar and parking
costs, and other variable costs. Since the Companys
aircraft is used primarily for business travel, the methodology
excludes fixed costs which do not change based on usage, such as
pilot and other employee charges, purchase costs of the aircraft
and non-trip-related hangar expenses. On occasions when the
spouse or other family members of an executive officer
accompanies the executive on a flight, no additional direct
operating cost is incurred under the foregoing methodology.
Tax and Accounting
Policies. Section 162(m) of the Internal
Revenue Code of 1986, as amended (the Code), places
a limit of $1 million on the amount of compensation that
the Company may deduct in any one year with respect to each of
the Companys Chief Executive Officer and other three most
highly paid executive officers
21
(other than its Chief Financial Officer). There is an exception
to the $1 million limitation for performance-based
compensation meeting certain requirements. The Companys
annual cash incentive plan does not meet the definition of
performance-based compensation for purposes of
Section 162(m) of the Code primarily because it is not
formula driven, the performance goals applicable under the plan
have not been approved by the Companys stockholders and
the Compensation Committee retains the right to make subjective
evaluations of performance, including an assessment of how
effectively management adapts to changing industry conditions
and opportunities during the year. Pursuant to a transition rule
that applies to the Company, compensation attributable to the
exercise of a stock option or the vesting of a restricted stock
award granted under the Companys 2006 Stock Incentive Plan
will not be subject to the deduction limitation under
Section 162(m) of the Code if the grant of the stock option
or restricted stock award occurs on or before the earliest of
(i) the material modification of such plan; (ii) the
issuance of all shares of the Companys common stock
available for issuance under such plan; or (iii) the first
meeting of the Companys stockholders at which directors
are to be elected that occurs after December 31, 2010. To
maintain flexibility in compensating the Companys
executive officers in a manner designed to promote varying
corporate goals, the Compensation Committee has not adopted a
policy requiring all compensation to be deductible.
The Company accounts for equity compensation to its employees
under FASB ASC Topic 718, which requires the Company to estimate
and record an expense over the service period of the award.
However, for tax purposes, subject to any limitations under
Section 162(m) of the Code, income recognized by employees
from nonqualified stock options granted at fair market value
should be deductible by the Company, but, to the extent that a
stock option constitutes an incentive stock option, the Company
will not be allowed a compensation deduction if there is no
disqualifying disposition by the optionee. In addition, subject
to any limitations under Section 162(m) of the Code, if the
Company grants shares of restricted stock, the related
compensation expense should be fully deductible by the Company
at the time the award is otherwise taxable to the grantee.
The Company structures annual cash incentive compensation so
that it is taxable to its executives at the time it becomes
available to them. For tax purposes, cash compensation is
recorded as an expense at the time the obligation is accrued.
22
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The compensation paid to the Companys executive officers
generally consists of base salaries, annual cash incentive
payments, awards under the Concho Resources Inc. 2006 Stock
Incentive Plan, contributions to the Companys defined
contribution 401(k) retirement plan and miscellaneous
perquisites. The table below sets forth information regarding
fiscal 2009 compensation awarded to, earned by or paid to the
Companys named executive officers, which includes the
Companys Chief Executive Officer, Chief Financial Officer,
three most highly compensated executive officers other than its
Chief Executive Officer and Chief Financial Officer and
Mr. Beal and Mr. Copeland, who both retired in 2009.
The table also sets forth information regarding fiscal year 2008
compensation for Messrs. Leach, Holderness, Wright and Beal
because they were also named executive officers in 2008 and
fiscal year 2007 compensation for Messrs. Leach, Beal and
Wright because they were also named executive officers in 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Option
|
|
Incentive Plan
|
|
All Other
|
|
|
Name
|
|
|
|
Salary
|
|
Awards(1)
|
|
Awards(1)
|
|
Compensation(2)
|
|
Compensation(3)
|
|
Total
|
|
Timothy A. Leach
|
|
|
2009
|
|
|
$
|
512,500
|
|
|
$
|
499,984
|
|
|
$
|
538,394
|
|
|
$
|
1,000,000
|
|
|
$
|
84,587
|
|
|
$
|
2,635,465
|
|
Chairman, Chief
|
|
|
2008
|
|
|
|
433,333
|
|
|
|
|
|
|
|
1,371,000
|
|
|
|
787,500
|
|
|
|
52,701
|
|
|
|
2,644,534
|
|
Executive Officer and President
|
|
|
2007
|
|
|
|
350,000
|
|
|
|
|
|
|
|
106,250
|
(4)
|
|
|
663,000
|
|
|
|
32,895
|
|
|
|
1,152,145
|
|
C. William Giraud
|
|
|
2009
|
|
|
|
41,538
|
(7)
|
|
|
1,019,510
|
|
|
|
|
|
|
|
50,000
|
|
|
|
26
|
|
|
|
1,111,074
|
|
Vice President General Counsel and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Darin G. Holderness
|
|
|
2009
|
|
|
|
285,000
|
|
|
|
150,001
|
|
|
|
161,518
|
|
|
|
390,000
|
|
|
|
15,514
|
|
|
|
1,002,033
|
|
Vice President Chief
|
|
|
2008
|
|
|
|
88,294
|
(8)
|
|
|
499,942
|
|
|
|
585,200
|
|
|
|
153,000
|
|
|
|
3,763
|
|
|
|
1,330,199
|
|
Financial Officer and Treasurer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew G. Hyde
|
|
|
2009
|
|
|
|
300,000
|
|
|
|
200,002
|
|
|
|
215,358
|
|
|
|
410,000
|
|
|
|
15,992
|
|
|
|
1,141,352
|
|
Vice President Exploration and Land
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
E. Joseph Wright
|
|
|
2009
|
|
|
|
300,000
|
|
|
|
200,002
|
|
|
|
215,358
|
|
|
|
410,000
|
|
|
|
19,795
|
|
|
|
1,145,155
|
|
Vice President
|
|
|
2008
|
|
|
|
250,000
|
|
|
|
|
|
|
|
365,600
|
|
|
|
306,000
|
|
|
|
15,038
|
|
|
|
936,638
|
|
Engineering and Operations
|
|
|
2007
|
|
|
|
250,000
|
|
|
|
|
|
|
|
127,500
|
(4)
|
|
|
357,000
|
|
|
|
15,055
|
|
|
|
749,555
|
|
Steven L. Beal
|
|
|
2009
|
|
|
|
237,500
|
|
|
|
84,171
|
(5)
|
|
|
2,907,410
|
(5)
|
|
|
200,000
|
|
|
|
169,628
|
|
|
|
3,598,709
|
|
Former President and
|
|
|
2008
|
|
|
|
433,333
|
|
|
|
|
|
|
|
1,371,000
|
|
|
|
787,500
|
|
|
|
76,610
|
|
|
|
2,668,443
|
|
Chief Operating Officer
|
|
|
2007
|
|
|
|
350,000
|
|
|
|
|
|
|
|
106,250
|
(4)
|
|
|
663,000
|
|
|
|
24,302
|
|
|
|
1,143,552
|
|
David W. Copeland
|
|
|
2009
|
|
|
|
265,000
|
|
|
|
376,159
|
(6)
|
|
|
723,646
|
(6)
|
|
|
347,813
|
|
|
|
15,473
|
|
|
|
1,728,091
|
|
Former Vice President General Counsel and
Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The amounts in these columns
represent the grant date fair value computed in accordance with
FASB ASC Topic 718. Additional detail regarding the
Companys share-based awards is included in Note G to
Consolidated Financial Statements included in Item 8.
Financial Statements and Supplementary Data in the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2009.
|
|
(2) |
|
Represents cash awards earned in
2009, 2008 and 2007 under the Companys performance-based
cash incentive plans.
|
|
(3) |
|
All Other Compensation
includes the Company contributions to the named executive
officers 401(k) retirement accounts, life insurance
premiums and other perquisites, as shown in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Company
|
|
Life
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributions to
|
|
Insurance
|
|
Use of
|
|
Consulting
|
|
Health
|
|
Director
|
|
Total All Other
|
Name
|
|
|
|
401(k) Plan
|
|
Premiums
|
|
Aircraft
|
|
Fees
|
|
Premiums
|
|
Fees
|
|
Compensation
|
|
Timothy A. Leach
|
|
|
2009
|
|
|
$
|
14,700
|
|
|
$
|
814
|
|
|
$
|
69,073
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
84,587
|
|
|
|
|
2008
|
|
|
|
15,475
|
|
|
|
38
|
|
|
|
37,188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,701
|
|
|
|
|
2007
|
|
|
|
15,225
|
|
|
|
55
|
|
|
|
17,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,895
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Company
|
|
Life
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributions to
|
|
Insurance
|
|
Use of
|
|
Consulting
|
|
Health
|
|
Director
|
|
Total All Other
|
Name
|
|
|
|
401(k) Plan
|
|
Premiums
|
|
Aircraft
|
|
Fees
|
|
Premiums
|
|
Fees
|
|
Compensation
|
|
C. William Giraud
|
|
|
2009
|
|
|
|
|
|
|
|
26
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
|
|
Darin G. Holderness
|
|
|
2009
|
|
|
|
14,700
|
|
|
|
814
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,514
|
|
|
|
|
2008
|
|
|
|
3,750
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,763
|
|
Matthew G. Hyde
|
|
|
2009
|
|
|
|
14,700
|
|
|
|
1,292
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,992
|
|
E. Joseph Wright
|
|
|
2009
|
|
|
|
14,700
|
|
|
|
814
|
|
|
|
4,281
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,795
|
|
|
|
|
2008
|
|
|
|
15,000
|
|
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,038
|
|
|
|
|
2007
|
|
|
|
15,000
|
|
|
|
55
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,055
|
|
Steven L. Beal
|
|
|
2009
|
|
|
|
7,956
|
|
|
|
646
|
|
|
|
22,446
|
|
|
|
120,000
|
|
|
|
5,580
|
|
|
|
13,000
|
|
|
|
169,628
|
|
|
|
|
2008
|
|
|
|
15,475
|
|
|
|
38
|
|
|
|
61,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
76,610
|
|
|
|
|
2007
|
|
|
|
15,225
|
|
|
|
55
|
|
|
|
9,022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,302
|
|
David W. Copeland
|
|
|
2009
|
|
|
|
14,181
|
|
|
|
1,292
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,473
|
|
|
|
|
(4) |
|
The Companys named executive
officers and other executive officers of the Company received
stock option awards in June 2006 to purchase an aggregate of
450,000 shares of common stock, in the aggregate, at a
purchase price of $12.00 per share. The Company subsequently
determined that the fair market value of a share of common stock
as of the date of the award was $15.40. As a result, the
Compensation Committee authorized and approved an amendment to
these stock option award agreements pursuant to which the
exercise price of such stock options would be increased from
$12.00 per share to $15.40 per share. The Company agreed to
issue to each named executive officer and such other executive
officer an award of the number of shares of restricted stock
equal to (i) the product of $3.40 and the number of shares
of common stock subject to the stock option award, divided by
(ii) the fair market value of a share of common stock on
the date of the award of restricted stock which will vest in
full four years after the date of grant. The Company determined
that these modifications resulted in future compensation of
$765,000.
|
|
(5) |
|
On June 9, 2009 the Company
entered into a consulting agreement with Mr. Beal effective
upon his retirement on June 30, 2009, which modified all of
his equity awards. The modifications provided for the vesting
and exercise of the equity awards under the original terms of
the equity awards as if Mr. Beal was still an employee of
the Company as long as he remains a consultant for the Company.
These values represent the incremental change in the fair value
of the modified equity awards on the date of modification
computed in accordance with FASB ASC Topic 718.
|
|
(6) |
|
On November 5, 2009,
Mr. Copeland stepped down as Vice President
General Counsel and Secretary of the Company and announced he
would remain with the Company as Senior Counsel through his
planned retirement date of December 31, 2010. Pursuant to
an employment agreement with Mr. Copeland dated
November 5, 2009 certain of his equity awards were modified
to permit full vesting on his planned retirement date if he is
still employed by the Company. Mr. Copeland was also
granted equity awards during 2009, prior to entering into his
new employment agreement. Regarding the 2009 restricted stock
awards, $150,001 represents the grant date fair value and the
remaining $226,158 represents the modification incremental fair
value. Regarding the 2009 stock option awards, $161,518
represents the grant date fair value and the remaining $562,128
represents the modification incremental fair value. All amounts
were computed in accordance with FASB ASC Topic 718.
|
|
(7) |
|
Mr. Giraud became the
Companys Vice President General Counsel and
Secretary on November 5, 2009, and this amount represents a
proportionate share of his 2009 base salary of $265,000.
|
|
(8) |
|
Mr. Holderness became the
Companys Vice President Chief Financial
Officer and Treasurer on August 25, 2008, and this amount
represents a proportionate share of his 2008 base salary of
$250,000.
|
24
Grants of
Plan-Based Awards
The table below sets forth the range of potential annual cash
incentive awards for 2009 performance as a dollar amount for
each of the named executive officers under the Companys
2009 Annual Incentive Compensation Plan. The table also sets
forth the number of shares of restricted stock and the number of
stock options awarded during 2009 to the Companys named
executive officers under the Concho Resources Inc. 2006 Stock
Incentive Plan.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
Option
|
|
Exercise or
|
|
|
|
|
|
|
|
|
Number of
|
|
Awards:
|
|
Base Price of
|
|
Closing
|
|
Grant/Modification
|
|
|
|
|
Shares of
|
|
Number of
|
|
Option
|
|
Market
|
|
Date Fair Value of
|
|
|
Grant/ Modification
|
|
Stock or
|
|
Underlying
|
|
Awards
|
|
Price on
|
|
Stock and
|
Name
|
|
Date
|
|
Units(1)(2)
|
|
Options(1)(2)
|
|
($/Sh)(3)
|
|
Grant Date
|
|
Option
Awards(4)
|
|
Timothy A. Leach
|
|
February 26, 2009
|
|
|
24,509
|
|
|
|
43,630
|
|
|
$
|
20.40
|
|
|
$
|
20.68
|
|
|
$
|
1,038,378
|
|
C. William Giraud
|
|
November 5, 2009
|
|
|
24,857
|
|
|
|
|
|
|
|
|
|
|
|
41.37
|
|
|
|
1,019,510
|
|
Darin G. Holderness
|
|
February 26, 2009
|
|
|
7,353
|
|
|
|
13,089
|
|
|
|
20.40
|
|
|
|
20.68
|
|
|
|
311,519
|
|
Matthew G. Hyde
|
|
February 26, 2009
|
|
|
9,804
|
|
|
|
17,452
|
|
|
|
20.40
|
|
|
|
20.68
|
|
|
|
415,360
|
|
E. Joseph Wright
|
|
February 26, 2009
|
|
|
9,804
|
|
|
|
17,452
|
|
|
|
20.40
|
|
|
|
20.68
|
|
|
|
415,360
|
|
Steven L.
Beal(5)
|
|
July 1, 2009
|
|
|
2,890
|
|
|
|
301,769
|
|
|
|
|
|
|
|
|
|
|
|
2,991,581
|
|
David W. Copeland
|
|
February 26, 2009
|
|
|
7,353
|
|
|
|
13,089
|
|
|
|
20.40
|
|
|
|
20.68
|
|
|
|
311,519
|
|
David W.
Copeland(6)
|
|
November 5, 2009
|
|
|
5,514
|
|
|
|
24,816
|
|
|
|
|
|
|
|
|
|
|
|
788,286
|
|
|
|
|
(1) |
|
The amounts in these columns
represent the restricted stock and stock options granted to the
named executive officers on February 26, 2009. The amounts
shown for Mr. Beal as of July 1, 2009 and
Mr. Copeland as of November 5, 2009, represent the
equity awards modified under their new agreements with the
Company.
|
|
(2) |
|
These shares of restricted stock
and stock options granted on February 26, 2009 vest in four
equal annual installments beginning one year from the date of
grant. The shares of restricted stock granted to Mr. Giraud
on November 5, 2009 vest in three equal installments
beginning one year from the date of grant.
|
|
(3) |
|
The exercise price for stock
options is the average of the high and low market-quoted sales
prices of the Companys common stock on the grant date of
award.
|
|
(4) |
|
The amounts in this column
represent the grant date and modification date fair value of
restricted stock and stock options computed in accordance with
FASB ASC Topic 718. The Company values its restricted stock
awards based on the average of the high and low market-quoted
sales price of the Companys common stock on the grant date
of the award. The Company values it stock option awards based on
the Black-Scholes option-pricing model on the grant date of the
award. Generally, the grant date fair value is expensed in the
Companys financial statements over the vesting schedule of
the restricted stock and stock options. Additional detail
regarding the Companys share-based awards is included in
Note G to Consolidated Financial Statements included in
Item 8. Financial Statements and Supplementary
Data in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009.
|
|
(5) |
|
On June 9, 2009 the Company
entered into a consulting agreement with Mr. Beal effective
upon his retirement on June 30, 2009, which modified all of
his equity awards. The modifications provided for the vesting
and exercise of the equity awards under the original terms of
the equity awards as if Mr. Beal was still an employee of
the Company as long as he remains a consultant for the Company.
These values represent the incremental change in the fair value
of the modified equity awards on the date of modification
computed in accordance with FASB ASC Topic 718.
|
|
(6) |
|
On November 5, 2009,
Mr. Copeland stepped down as Vice President
General Counsel and Secretary of the Company and announced he
would remain with the Company as Senior Counsel through his
planned retirement date of December 31, 2010. Pursuant to
an employment agreement with Mr. Copeland dated
November 5, 2009 certain of his equity awards were modified
to permit full vesting on his planned retirement date if he is
still employed by the Company. Mr. Copeland was also
granted equity awards during 2009, prior to entering into his
new employment agreement. Regarding the 2009 restricted stock
awards, $150,001 represents the grant date fair value and the
remaining $226,158 represents the modification incremental fair
value. Regarding the 2009 stock option awards, $161,518
represents the grant date fair value and the remaining $562,128
represents the modification incremental fair value. All amounts
were computed in accordance with FASB ASC Topic 718.
|
25
Outstanding
Equity Awards at Fiscal Year-End
The table below sets forth, for each named executive officer,
information about equity awards outstanding as of
December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
Equity Incentive
|
|
|
|
|
|
|
Equity Incentive
|
|
|
|
|
|
Plan Awards:
|
|
Plan Awards:
|
|
|
|
|
|
|
Plan Awards:
|
|
|
|
|
|
Number of
|
|
Payout Value of
|
|
|
Number of
|
|
Number of
|
|
|
|
|
|
Unearned
|
|
Unearned
|
|
|
Securities Underlying
|
|
Securities
|
|
|
|
|
|
Shares,
|
|
Shares,
|
|
|
Unexercised Options
|
|
Underlying
|
|
Option
|
|
Option
|
|
Units or Other
|
|
Units or Other
|
|
|
Vested
|
|
Vested
|
|
Unexercised
|
|
Exercise
|
|
Expiration
|
|
Rights That Have
|
|
Rights That Have
|
Name
|
|
Exercisable
|
|
Unexercisable(1)
|
|
Options
|
|
Price
|
|
Date
|
|
Not Vested
|
|
Not
Vested(3)
|
|
Timothy A. Leach
|
|
|
|
|
|
|
112,249
|
|
|
|
|
|
|
$
|
8.00
|
|
|
December 31, 2010
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
112,290
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2011
|
|
|
|
|
|
|
|
|
|
|
|
89,269
|
|
|
|
|
|
|
|
|
|
|
|
8.00
|
|
|
August 13, 2014
|
|
|
|
|
|
|
|
|
|
|
|
46,875
|
|
|
|
|
|
|
|
15,625
|
(2)
|
|
|
15.40
|
|
|
June 12, 2016
|
|
|
2,890
|
(2)
|
|
|
129,761
|
|
|
|
|
37,500
|
|
|
|
|
|
|
|
112,500
|
(4)
|
|
|
21.84
|
|
|
February 27, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43,630
|
(5)
|
|
|
20.40
|
|
|
February 26, 2019
|
|
|
24,509
|
(6)
|
|
|
1,100,454
|
|
C. William Giraud
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,857
|
(7)
|
|
|
1,116,079
|
|
Darin G. Holderness
|
|
|
11,669
|
|
|
|
|
|
|
|
23,331
|
(8)
|
|
|
33.35
|
|
|
August 25, 2018
|
|
|
9,994
|
(8)
|
|
|
448,731
|
|
|
|
|
|
|
|
|
|
|
|
|
13,089
|
(5)
|
|
|
20.40
|
|
|
February 26, 2019
|
|
|
7,353
|
(6)
|
|
|
330,150
|
|
Matthew G. Hyde
|
|
|
18,522
|
|
|
|
|
|
|
|
37,033
|
(9)
|
|
|
31.33
|
|
|
May 21, 2018
|
|
|
12,119
|
(9)
|
|
|
544,143
|
|
|
|
|
|
|
|
|
|
|
|
|
17,452
|
(5)
|
|
|
20.40
|
|
|
February 26, 2019
|
|
|
9,804
|
(6)
|
|
|
440,200
|
|
E. Joseph Wright
|
|
|
|
|
|
|
49,889
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49,903
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2011
|
|
|
|
|
|
|
|
|
|
|
|
8,728
|
|
|
|
|
|
|
|
|
|
|
|
8.00
|
|
|
August 13, 2014
|
|
|
|
|
|
|
|
|
|
|
|
37,500
|
|
|
|
|
|
|
|
18,750
|
(2)
|
|
|
15.40
|
|
|
June 12, 2016
|
|
|
3,468
|
(2)
|
|
|
155,713
|
|
|
|
|
10,000
|
|
|
|
|
|
|
|
30,000
|
(4)
|
|
|
21.84
|
|
|
February 27, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,452
|
(5)
|
|
|
20.40
|
|
|
February 26, 2019
|
|
|
9,804
|
(6)
|
|
|
440,200
|
|
Steven L. Beal
|
|
|
|
|
|
|
112,249
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
112,290
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2011
|
|
|
|
|
|
|
|
|
|
|
|
46,875
|
|
|
|
|
|
|
|
15,625
|
(10)
|
|
|
15.40
|
|
|
June 12, 2016
|
|
|
2,890
|
(11)
|
|
|
129,761
|
|
|
|
|
37,500
|
|
|
|
|
|
|
|
112,500
|
(12)
|
|
|
21.84
|
|
|
February 27, 2018
|
|
|
|
|
|
|
|
|
David W. Copeland
|
|
|
|
|
|
|
49,889
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49,903
|
|
|
|
|
|
|
|
8.00
|
|
|
December 31, 2011
|
|
|
|
|
|
|
|
|
|
|
|
39,675
|
|
|
|
|
|
|
|
|
|
|
|
8.00
|
|
|
August 13, 2014
|
|
|
|
|
|
|
|
|
|
|
|
56,250
|
|
|
|
|
|
|
|
18,750
|
(13)
|
|
|
15.40
|
|
|
June 12, 2016
|
|
|
3,468
|
(14)
|
|
|
155,713
|
|
|
|
|
7,500
|
|
|
|
|
|
|
|
22,500
|
(15)
|
|
|
21.84
|
|
|
February 27, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,089
|
(16)
|
|
|
20.40
|
|
|
February 26, 2019
|
|
|
7,353
|
(17)
|
|
|
330,150
|
|
|
|
|
(1) |
|
On November 16, 2007, the
Company entered into amendments to these stock option awards in
order to cause these stock option awards to constitute deferred
compensation that is compliant with Section 409A of the
Code (Section 409A). In order to comply with
Section 409A, it was necessary to amend these stock options
to provide that they could only be exercised within certain
pre-established time periods or upon the occurrence of certain
specifically enumerated events (such as the executives
death, disability, separation from service or the occurrence of
a change of control).
|
|
|
|
The vested unexercisable stock
options expiring on (i) December 31, 2010 are
generally exercisable from January 1, 2010 through
December 31, 2010 and (ii) December 31, 2011 are
generally exercisable from January 1, 2011 through
December 31, 2011.
|
|
|
|
Notwithstanding the foregoing, to
the extent vested, these stock options may become exercisable on
a date that is different than the date described in the
preceding two paragraphs in the event of the named executive
officers death, disability or separation from service or
upon the occurrence of a change of control (as defined in
Section 409A) of the Company.
|
|
(2) |
|
These stock options and shares of
restricted stock vest on June 12, 2010. However, vesting is
accelerated upon the occurrence of certain events following a
change of control of the Company as discussed below in
Potential Payments Upon a Termination or Change of
Control.
|
|
(3) |
|
Based on the closing price of the
Companys common stock of $44.90 on December 31, 2009.
|
26
|
|
|
(4) |
|
These stock options vest in
one-third increments on February 27, 2010, 2011 and 2012.
However, vesting is accelerated upon the occurrence of certain
events following a change of control of the Company as discussed
below in Potential Payments Upon a Termination or Change
of Control.
|
|
(5) |
|
These stock options vest in 25%
increments on February 26, 2010, 2011, 2012 and 2013.
However, vesting is accelerated upon the occurrence of certain
events following a change of control of the Company as discussed
below in Potential Payments Upon a Termination or Change
of Control.
|
|
(6) |
|
These shares of restricted stock
vest in 25% increments on February 26, 2010, 2011, 2012 and
2013. However, vesting is accelerated upon termination of
employment by reason of death or disability or upon the
occurrence of certain events following a change of control of
the Company as discussed below in Potential Payments Upon
a Termination or Change of Control.
|
|
(7) |
|
These shares of restricted stock
vest in one-third increments on November 5, 2010, 2011 and
2012. However, vesting is accelerated upon termination of
employment by reason of death or disability or upon the
occurrence of certain events following a change of control of
the Company as discussed below in Potential Payments Upon
a Termination or Change of Control.
|
|
(8) |
|
These stock options and shares of
restricted stock vest in 50% increments on August 25, 2010
and 2011. However, vesting is accelerated upon the occurrence of
certain events following a change of control of the Company as
discussed below in Potential Payments Upon a Termination
or Change of Control.
|
|
(9) |
|
These stock options and shares of
restricted stock vest in 50% increments on May 21, 2010 and
2011. However, vesting is accelerated upon the occurrence of
certain events following a change of control of the Company as
discussed below in Potential Payments Upon a Termination
or Change of Control.
|
|
(10) |
|
These stock options vest on
June 12, 2010. However, vesting is accelerated if the
Company terminates Mr. Beals consulting relationship
for any reason other than cause.
|
|
(11) |
|
These shares of restricted stock
vest on June 12, 2010. However, vesting is accelerated if
the Company terminates Mr. Beals consulting
relationship for any reason other than cause. Vesting is also
accelerated upon the occurrence of a change of control of the
Company as discussed below in Potential Payments Upon a
Termination or Change of Control.
|
|
(12) |
|
These stock options vest in
one-third increments on February 27, 2010, 2011 and 2012.
However, vesting is accelerated if the Company terminates
Mr. Beals consulting relationship for any reason
other than cause.
|
|
(13) |
|
These stock options vest on
June 12, 2010. However, vesting is accelerated if
Mr. Copelands employment is terminated by reason of
death or disability or by the Company for any reason other than
cause.
|
|
(14) |
|
These shares of restricted stock
vest on June 12, 2010. However, vesting is accelerated if
Mr. Copelands employment is terminated by reason of
death or disability or by the Company for any reason other than
cause. Vesting is also accelerated upon the occurrence of a
change of control of the Company as discussed below in
Potential Payments Upon a Termination or Change of
Control.
|
|
(15) |
|
One-third of these stock options
vest on February 27, 2010, and two-thirds vest on
December 31, 2010. However, vesting is accelerated if
Mr. Copelands employment is terminated by reason of
death or disability or by the Company for any reason other than
cause.
|
|
(16) |
|
One-quarter of these stock options
vest on February 26, 2010, and three-quarters vest on
December 31, 2010. However, vesting is accelerated if
Mr. Copelands employment is terminated by reason of
death or disability or by the Company for any reason other than
cause.
|
|
(17) |
|
One-quarter of these shares of
restricted stock vest on February 26, 2010, and
three-quarters vest on December 31, 2010. However, vesting
is accelerated if Mr. Copelands employment is
terminated by reason of death or disability or by the Company
for any reason other than cause. Vesting is also accelerated
upon the occurrence of certain events following a change of
control of the Company as discussed below in Potential
Payments Upon a Termination or Change of Control.
|
27
Option
Exercises and Stock Vested
The table below sets forth, for each named executive officer,
information about option exercises and lapses of restrictions on
restricted stock awards during 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
Number of
|
|
|
|
Number of
|
|
|
|
|
Shares
|
|
Value
|
|
Shares
|
|
Value
|
|
|
Acquired on
|
|
Realized on
|
|
Acquired on
|
|
Realized on
|
Name
|
|
Exercise
|
|
Exercise(1)
|
|
Vesting
|
|
Vesting(2)
|
|
Timothy A. Leach
|
|
|
112,249
|
|
|
$
|
1,528,831
|
|
|
|
2,890
|
|
|
$
|
92,234
|
|
Darin G. Holderness
|
|
|
|
|
|
|
|
|
|
|
4,999
|
|
|
|
168,941
|
|
Matthew G. Hyde
|
|
|
|
|
|
|
|
|
|
|
6,062
|
|
|
|
177,314
|
|
E. Joseph Wright
|
|
|
99,586
|
|
|
|
2,481,854
|
|
|
|
3,468
|
|
|
|
110,681
|
|
Steven L. Beal
|
|
|
201,518
|
|
|
|
5,569,073
|
|
|
|
2,890
|
|
|
|
92,234
|
|
David W. Copeland
|
|
|
49,889
|
|
|
|
934,681
|
|
|
|
3,468
|
|
|
|
110,681
|
|
|
|
|
(1) |
|
Represents the number of stock
options multiplied by the difference between the exercise price
and the average of the high and low market-quoted sales price of
the Companys common stock on the date of exercise.
|
|
(2) |
|
Represents the number of shares
multiplied by the average of the high and low market-quoted
sales prices of the Companys common stock on the vesting
date.
|
Potential
Payments Upon a Termination or Change of Control
The Company maintains employment agreements with each of its
executive officers that provide for potential severance payments
upon a termination of the executives employment under
various circumstances, and the timing and form of the potential
payment of benefits under the employment agreements may vary
depending on whether the termination occurs in connection with a
change of control. The executive officers employment
agreements are all substantially similar, so the following
discussion will apply to each of the executive officers unless
specifically noted otherwise. The Company and
Messrs. Leach, Holderness, Hyde, and Wright entered into
their current executive employment agreements on
December 19, 2008 effective as of January 1, 2009; the
Company and Mr. Giraud entered into employment agreements
effective November 5, 2009. In connection with
Mr. Copelands retirement, the Company and
Mr. Copeland entered into an amended and restated
employment agreement on November 5, 2009. In connection
with Mr. Beals retirement, the Company transitioned
Mr. Beals employment relationship to that of a
consultant, and entered into a consulting agreement with
Mr. Beal effective July 1, 2009.
Employment Agreement Terms for Messrs. Leach, Giraud,
Holderness, Hyde and Wright. An involuntary
termination is defined in the employment agreements as a
termination of an executives employment that is not a
voluntary resignation by the executive, unless such resignation
occurs on or before a date that is sixty days following the date
the executive receives a notice that a change in duties has
occurred; an involuntary termination also does not include a
termination for cause or any termination that
results from the executives death or disability. A
change in duties has two alternative definitions
depending on whether or not the event happens within the two
year period beginning on the date a change of control has
occurred (the change of control period). A change of
duties within a change of control period means (i) a
material reduction in the nature or scope of an executives
authorities or duties; (ii) a reduction in an
executives base salary; (iii) a diminution in an
executives eligibility to participate in bonus, stock
option, incentive award and other compensation plans;
(iv) a material diminution in an executives employee
benefits and perquisites, or (v) a change in the location
of an executives principal place of employment by more
than ten miles. A change of duties prior to or following a
change of control period will consist of a reduction in the rank
of an executives title as an officer of the Company, a
reduction in an executives base salary, or a material
diminution in an executives employee benefits and
perquisites from those substantially similar to those provided
to similarly situated executives.
A termination for cause generally means that an
executive (i) has engaged in gross negligence, gross
incompetence or willful misconduct in the performance of his
duties; (ii) has materially breached any material provision
of his employment agreement, corporate policy or code of conduct
established by the Company; (iii) has willfully engaged in
conduct that is materially injurious to the Company;
(iv) has committed an act of fraud,
28
embezzlement or willful breach of a fiduciary duty to the
Company; (v) has been convicted of a crime involving fraud,
dishonesty or moral turpitude or any felony; (vi) has
refused, without proper reason, to perform his duties; or
(vii) has used Company securities owned or controlled by
the executive as collateral for a securities margin account.
An executive will have incurred a disability if, as
a result of an executives incapacity due to physical or
mental illness, the executive has not been able to perform his
full-time duties for a period of six consecutive months, and is
unable to return to full-time employment within thirty days of
receiving a notice of a termination.
A change of control is generally defined as:
(i) a merger, consolidation, or the sale of all or
substantially all of the Companys assets if, (a) the
holders of the Companys securities prior to the
transaction no longer own 50% or more of the securities of the
resulting company immediately following the transaction in
essentially the same proportion that existed immediately prior
to the transaction, or (b) the members of the
Companys Board of Directors immediately prior to the
transaction do not also constitute a majority of the board of
directors of the resulting entity immediately after the
transaction; (ii) the dissolution or complete liquidation
of the Company; (iii) the date any person or entity
acquires ownership or control of 50% or more of the combined
voting power of the Companys outstanding securities; or
(iv) the members of the Companys Board of Directors
cease to constitute a majority of the board as a result of or in
connection with a contested election of directors.
Potential Severance Benefits for Messrs. Leach, Giraud,
Holderness, Hyde and Wright. In the event that
one of these executives employment is terminated due to
his death or disability, the executive or his estate will
receive a payment equal to his annual base salary, to be paid
out in eighteen equal monthly installments (or twenty-four
months in the case of Mr. Leach), as well as a lump sum
payment within thirty days of the termination that equals the
pro-rated annual target bonus for the year in which the
termination occurs.
If an involuntary termination occurs outside of a change of
control period, the executive will continue to receive his base
salary for eighteen months (or twenty-four months in the case of
Mr. Leach) and the Company will reimburse him for up to
twelve months for the amount by which the cost of his continued
coverage under the Companys group health plans exceeds the
employee contribution amount that the Company charges its active
senior executives for similar coverage.
An involuntary termination within the change of control period,
however, will trigger a severance payment equal to two times the
sum of his annual base salary and average annual bonus; the
average annual bonus will typically be calculated using the
bonus with respect to the previous two years, although if an
executive has not been employed for such a time period, the
bonus will be calculated: (1) for Messrs. Leach,
Holderness, Hyde and Wright, by using the average of any bonuses
which have in fact been paid for years prior to the termination,
or by annualizing any bonus which related to a partial year, and
(2) for Mr. Giraud, by deeming him to have been paid a
bonus equal to 75% of his base salary for any given year. The
severance payments will either be paid in a single payment on or
before the fifth day following the executives termination
of employment, subject to any delay required under
Section 409A of the Code, or divided into eighteen monthly
installments (or twenty-four monthly installments in the case of
Mr. Leach), depending on the nature of the change of
control. All of the executives stock options and
restricted stock awards will vest in full, and the Company will
reimburse the executive for up to eighteen months for the amount
by which the cost of his continued coverage under the
Companys group health plans exceeds the employee
contribution amount that the Company charges the Companys
active senior executives for similar coverage. In addition,
Mr. Giraud will receive an additional payment of $500,000
if, (a) prior to November 5, 2010, the Company enters
into an agreement that could result in a change of control, or a
change of control actually occurs, and (b) he becomes
subject to an involuntary termination generally during the one
year period following the applicable change in control event. If
any of the severance payments described in this paragraph or the
preceding paragraph are not made when due, the Company shall
also pay interest on the amount payable from the date it should
have been made until such time as the payment is actually made,
interest to be the prime or base rate of interest announced by
JPMorgan Chase Bank (or any successor thereto) at its principal
New York office.
The employment agreements do not provide for tax
gross-up
payments. If the total amount of payments to be provided by the
Company in connection with a change of control would cause any
of the named executive officers to incur golden
parachute excise tax liability, then the payments provided
under the employment agreement will be reduced to the extent
necessary to eliminate the application of the excise tax if that
will leave him in a better after-
29
tax position than if no such reduction had occurred; this
generally means that the full payment would be reduced to $1.00
less than three times the executives base amount (as
defined in Section 280G of the Code).
Restrictions and Conditions to Receiving Severance Benefits
under the Employment Agreements. Each executive
must execute and not revoke a general release agreement before
receiving any severance or benefits pursuant to his employment
agreement. The release shall discharge the Company and its
affiliates, as well as officers, directors and employees of the
Company and its affiliates, from any claims or judicial actions
arising out of the executives employment or termination of
employment. The release must be executed and irrevocable within
55 days of the executives termination of employment.
Section 409A of the Code can subject an executive to a 20%
tax, in addition to normal income taxes, in the event that
payments are not structured to be compliant with
Section 409A of the Code and its regulations. If the
executives are specified employees according to
Section 409A of the Code at the time of their termination
of employment, the payment of severance benefits may be delayed
for a period of six months in order to remain in compliance with
this Code section, despite the timing otherwise provided for in
the employment agreements. This six month delay period will not
be considered a late payment, however, for purposes
of crediting late payments with interest as described above.
The named executive officers are also subject to non-compete and
related restrictions. During the term of his employment
agreement and for a period of one year following a termination
of employment for any reason (the non-compete
period), the executive may not hire, contract or solicit
the Companys employees for his own benefit or for the
benefit of any other person or entity, nor may he encourage any
Company employee to leave the Companys employ for any
reason. Within the geographical area or market where the Company
is conducting (or within the twelve months prior to the
executives termination of employment, has conducted)
business, the executive may not participate in the ownership,
management, operation of or have any financial interest in a
business that is similar to the Company or that is a competitor
of the Company, attempt to solicit or divert the Companys
customers or vendors, or call upon a prospective acquisition
candidate on his own behalf or on behalf of another entity if
the Company is also negotiating for that potential acquisition.
However, in the event the executive resigns under circumstances
that would not be considered an involuntary termination or
either party provides written notice to the other that the term
of the employment agreement will not automatically renew, then
the post-employment restriction relating to the participation in
the ownership, management, operation or financial interest in a
competitive operation will only apply for a number of months
(not in excess of twelve) selected by the Company and the
Company must continue to pay the executive his base salary for
the number of months, if any, selected by the Company.
Employment Agreement with
Mr. Copeland. Mr. Copeland was
previously a party to an employment agreement similar to those
described above for Messrs. Holderness, Hyde and Wright
that provided for certain severance or change in control
provisions, although his new employment agreement effective
November 5, 2009 superseded any previous contracts between
Mr. Copeland and the Company regarding his employment.
Mr. Copelands current employment agreement notes that
he has an at-will employment relationship with the
Company, and the Company may terminate his employment
relationship for any reason, with or without cause. In the event
that Mr. Copelands termination of employment occurs
prior to December 31, 2010 by reason of his death,
disability, or by the Company without
cause, all of Mr. Copelands outstanding
stock options and restricted stock shall become fully vested,
and he will continue to receive his base salary until
December 31, 2010; provided, however, that all such
benefits will be subject to Mr. Copelands execution
of a general release in the Companys favor (except in the
case of his death).
The terms disability and cause in
Mr. Copelands new agreement remain unchanged from the
same terms as described in the executive officers
agreements above, and Mr. Copeland will also be subject to
the potential payment delays described above with regard to
Section 409A of the Code. While Mr. Copeland will be
subject to the same confidentiality restrictions as the
remaining executive officers and a one-year nonsolicitation
restriction following his termination, he will not have a
non-compete obligation following a termination of employment.
Consulting Agreement with
Mr. Beal. Mr. Beal was previously a
party to an employment agreement similar to that described above
for Mr. Leach, and the consulting agreement the Company
entered into with Mr. Beal effective July 1, 2009 does
not terminate certain post-employment rights and obligations of
either the Company or
30
Mr. Beal under such employment agreement. The consulting
agreement states that Mr. Beal will make himself available
to the Company to perform consulting and advisory services
related to our oil and gas industry. The Company and
Mr. Beal intend that the consulting services Mr. Beal
provides to the Company will exceed 20% of the average level of
services Mr. Beal was providing to the Company as an
employee. Mr. Beal will receive monthly compensation in the
amount of $20,000, plus a health care reimbursement amount.
During any month in which Mr. Beal is entitled to elect
continued medical coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (COBRA), the
health care reimbursement amount will equal the difference
between the amount Mr. Beal pays to continue such coverage
and the employee contribution amount that active senior
executives of the Company pay for similar coverage. Following
Mr. Beals eligible COBRA continuation period, the
health care reimbursement amount shall equal the lesser of
(1) the amount actually paid by Mr. Beal to receive
medical and dental coverage for him and his dependents, and
(2) the difference, if any, between the amount the Company
could have charged Mr. Beal for his COBRA continuation
coverage and the employee contribution amount Mr. Beal
would have paid for such coverage as an active executive
employee.
For purposes of certain equity-based compensation awards held by
Mr. Beal at the time of his transition to a consultant, the
consulting agreement provides that Mr. Beal shall not have
been deemed to have incurred a termination of employment for
purposes of the individual agreements governing such awards so
long as he is providing consulting services to the Company. In
the event that the Company terminates Mr. Beals
consulting relationship without cause prior to June 12,
2010 for certain options granted in 2006 and certain restricted
stock granted in 2007, or prior to February 27, 2012 for
certain options granted in 2008, the awards shall become 100%
vested and exercisable.
In the event of Mr. Beals death while he is providing
consulting services to the Company, his estate shall receive the
pro-rata portion of his monthly compensation for the month of
his death, as well as a lump sum payment of $60,000. Upon a
termination of the consulting relationship for cause, all
Company obligations to Mr. Beal shall cease. If
Mr. Beal voluntarily resigns, or the Company terminates his
services without cause, Mr. Beal shall receive the pro-rata
portion of his monthly compensation for the month of the
termination.
Cause under Mr. Beals consulting
agreement is generally defined in the same manner as in the
executive employment agreements, absent the provision
prohibiting the use of personally owned Companys
securities as collateral for a securities margin account.
Long-Term Incentive Plan. In addition to the
accelerated vesting of equity compensation awards as noted
within the executive employment agreements and
Mr. Beals consulting agreement, certain stock option
and restricted awards granted under the Companys 2006
Stock Incentive Plan (the 2006 Plan) also provide
for the accelerated vesting of such awards in various
termination of employment and change of control scenarios. While
the named executive officers are generally granted restricted
stock awards under the 2006 Plan that have a vesting period of
four years, (a) for restricted stock awards made on or
before December 31, 2008, the restricted shares will vest
in full upon the occurrence of a change of control, and
(b) for restricted stock awards made after
December 31, 2008, the occurrence of a termination of
employment by reason of death or disability or the occurrence of
an involuntary termination within the two year-period after a
change of control will result in the full vesting of the
restricted shares. The definitions for change of control and
involuntary termination in the 2006 Plan restricted stock award
agreements are identical to the same terms as found in the
employment agreements. The Company does not currently provide
for accelerated vesting of stock options upon a termination of
an executives employment pursuant to the 2006 Plan or an
individual award agreement, but as noted above, the executive
employment agreements will govern the accelerated vesting of
stock options following an involuntary termination within the
change of control period.
31
The table below summarizes potential payments to each named
executive officer assuming that one of the events described in
the table below occurs. The table assumes that the event
occurred on December 31, 2009, when the closing price of
the Companys common stock was $44.90. The values below are
the Companys best estimate of the severance payments and
benefits the executives would receive upon a termination of
employment (or a termination of the consulting relationship with
respect to Mr. Beal) or a change of control as of
December 31, 2009, as a true value could not be determined
with absolute certainty until an actual termination or change of
control of the Company occurs. The Company has also assumed for
purposes of these calculations that all payments were made in a
timely manner and that no interest accrued on the original
payment amount.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Involuntary
|
|
|
Involuntary
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
Termination
|
|
|
|
|
|
|
|
|
|
|
|
|
Outside of
|
|
|
Within a
|
|
|
|
|
|
|
|
|
|
|
|
|
a Change
|
|
|
Change of
|
|
|
Change of
|
|
|
Termination
|
|
|
|
Voluntary
|
|
|
of Control
|
|
|
Control
|
|
|
Control No
|
|
|
Due to Death or
|
|
Name
|
|
Termination(1)
|
|
|
Period(2)
|
|
|
Period(3)
|
|
|
Termination(4)
|
|
|
Disability(5)
|
|
|
Timothy A. Leach:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
550,000
|
|
|
$
|
1,100,000
|
|
|
$
|
1,100,000
|
|
|
$
|
|
|
|
$
|
550,000
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
1,450,500
|
|
|
|
|
|
|
|
550,000
|
|
Accelerated Equity
|
|
|
|
|
|
|
|
|
|
|
5,354,338
|
|
|
|
129,761
|
|
|
|
1,100,454
|
|
Continued Medical
|
|
|
|
|
|
|
16,675
|
|
|
|
25,012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
550,000
|
|
|
|
1,116,675
|
|
|
$
|
7,929,850
|
|
|
$
|
129,761
|
|
|
$
|
2,200,454
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. William Giraud:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
265,000
|
|
|
|
397,500
|
|
|
$
|
530,000
|
|
|
$
|
|
|
|
|
265,000
|
|
Bonus
|
|
|
|
|
|
|
500,000
|
(7)
|
|
|
897,500
|
(7)
|
|
|
|
|
|
|
198,750
|
|
Accelerated Equity
|
|
|
|
|
|
|
|
|
|
|
1,116,079
|
|
|
|
|
|
|
|
1,116,079
|
|
Continued Medical
|
|
|
|
|
|
|
16,722
|
|
|
|
25,083
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
265,000
|
|
|
$
|
914,222
|
|
|
$
|
2,568,662
|
|
|
$
|
|
|
|
$
|
1,579,829
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Darin G. Holderness:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
285,000
|
|
|
$
|
427,500
|
|
|
$
|
570,000
|
|
|
$
|
|
|
|
$
|
285,000
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
865,814
|
|
|
|
|
|
|
|
213,750
|
|
Accelerated Equity
|
|
|
|
|
|
|
|
|
|
|
1,369,034
|
|
|
|
448,731
|
|
|
|
330,150
|
|
Continued Medical
|
|
|
|
|
|
|
16,675
|
|
|
|
25,012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
285,000
|
|
|
$
|
444,175
|
|
|
$
|
2,829,860
|
|
|
$
|
448,731
|
|
|
$
|
828,900
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew G. Hyde:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
300,000
|
|
|
|
450,000
|
|
|
$
|
600,000
|
|
|
$
|
|
|
|
$
|
300,000
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
992,800
|
|
|
|
|
|
|
|
225,000
|
|
Accelerated Equity
|
|
|
|
|
|
|
|
|
|
|
1,914,455
|
|
|
|
544,143
|
|
|
|
440,200
|
|
Continued Medical
|
|
|
|
|
|
|
9,882
|
|
|
|
14,823
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
300,000
|
|
|
$
|
459,882
|
|
|
$
|
3,522,078
|
|
|
$
|
544,143
|
|
|
$
|
965,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
E. Joseph Wright:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
300,000
|
|
|
$
|
450,000
|
|
|
$
|
600,000
|
|
|
$
|
|
|
|
$
|
300,000
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
663,000
|
|
|
|
|
|
|
|
225,000
|
|
Accelerated Equity
|
|
|
|
|
|
|
|
|
|
|
2,268,412
|
|
|
|
155,713
|
|
|
|
440,200
|
|
Continued Medical
|
|
|
|
|
|
|
16,675
|
|
|
|
25,012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
300,000
|
|
|
$
|
466,675
|
|
|
$
|
3,556,424
|
|
|
$
|
155,713
|
|
|
$
|
965,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Involuntary
|
|
|
Involuntary
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
Termination
|
|
|
|
|
|
|
|
|
|
|
|
|
Outside of
|
|
|
Within a
|
|
|
|
|
|
|
|
|
|
|
|
|
a Change
|
|
|
Change of
|
|
|
Change of
|
|
|
Termination
|
|
|
|
Voluntary
|
|
|
of Control
|
|
|
Control
|
|
|
Control No
|
|
|
Due to Death or
|
|
Name
|
|
Termination(1)
|
|
|
Period(2)
|
|
|
Period(3)
|
|
|
Termination(4)
|
|
|
Disability(5)
|
|
|
Steven L. Beal:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
(8)
|
Accelerated
Equity(9)
|
|
|
|
|
|
|
3,184,949
|
|
|
|
3,184,949
|
|
|
|
129,761
|
|
|
|
|
|
Continued Medical
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
|
|
|
$
|
3,184,949
|
|
|
$
|
3,184,949
|
|
|
$
|
129,761
|
|
|
$
|
60,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David W. Copeland:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
$
|
|
|
|
$
|
265,000
|
|
|
$
|
265,000
|
|
|
$
|
|
|
|
$
|
265,000
|
|
Bonus
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accelerated
Equity(10)
|
|
|
|
|
|
|
1,878,519
|
|
|
|
1,878,519
|
|
|
|
155,713
|
|
|
|
1,878,519
|
|
Continued Medical
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total(6)
|
|
$
|
|
|
|
$
|
2,143,519
|
|
|
$
|
2,143,519
|
|
|
$
|
155,713
|
|
|
$
|
2,143,519
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
This column represents the amounts
payable to the executive if he resigns under circumstances that
would not be considered an involuntary termination or if either
party to the employment agreement provides written notice to the
other that the term of the employment agreement will not
automatically renew. Under such circumstances, the employment
agreements of Messrs. Leach, Giraud, Holderness, Hyde and
Wright provide the Company with the option to choose the number
of months in which to enforce certain post-employment
non-compete provisions. The values disclosed in this column
assume that the Company has chosen to enforce the non-compete
provisions for the maximum allowable time period of twelve
months, although these amounts would be lower in the event that
the Company chooses a shorter period of time.
|
|
(2) |
|
The values in this column for
Salary reflect the aggregate amount of continued
monthly salary (as in effect on December 31, 2009) for
Mr. Leach for a period of twenty-four months, for
Messrs. Giraud, Holderness, Hyde and Wright, a period of
eighteen months, and for Mr. Copeland, for a period of
twelve months. The values in this column for Continued
Medical include twelve months of continued coverage for
each eligible executive and his dependents.
|
|
(3) |
|
The values in this column for
Salary reflect two times the executives annual
base salary (one time in the case of Mr. Copeland) as in
effect on December 31, 2009. The values in this column for
Bonus were calculated in accordance with the bonus
provisions of each executives employment agreement
described above. The values in this column for Accelerated
Equity include the accelerated value of both unvested
stock option and restricted stock awards held by each executive
as of December 31, 2009. The amounts in this column for
Continued Medical include eighteen months of
continued coverage for each executive (other than
Messrs. Beal and Copeland) and his dependents.
|
|
(4) |
|
This column represents what each
executive would receive upon a change of control without a
termination of employment. The values in this column for
Accelerated Equity include the accelerated value of
unvested restricted stock awards granted prior to the
2009 year held by each executive as of December 31,
2009.
|
|
(5) |
|
The values in this column for
Salary represent, with respect to
Messrs. Leach, Giraud, Holderness, Hyde and Wright, the
executives annual salary (as in effect on
December 31, 2009). The values in this column for
Bonus include, with respect to such executives, the
executives full target bonus for the 2009 year, as a
proration was unnecessary for a termination on December 31,
2009. The values in this column for Accelerated
Equity include, with respect to such executives, the
accelerated value of unvested restricted stock awards granted
during the 2009 year held by each executive as of
December 31, 2009.
|
|
(6) |
|
The total represents the maximum
value of the payments and benefits that the executive would
receive upon the occurrence of a change of control or the
referenced termination of employment. However, with respect to
Messrs. Leach, Giraud, Holderness, Hyde and Wright, if the
total amount of payments and benefits to be provided to the
executive would cause the executive to incur golden
parachute excise tax liability, then any payments and
benefits provided under the executives employment
agreement may be reduced to the extent necessary to eliminate
the application of the excise tax if that will leave the
executive in a better after-tax position than if no such
reduction had occurred. Accordingly, the total value of the
payments and benefits that the executive would receive under
such circumstances may be less than the total reflected in the
table.
|
33
|
|
|
(7) |
|
Includes an additional $500,000 for
an involuntary termination; however, the time period during
which Mr. Giraud would be entitled to this payment is not
the full change of control period as defined above,
but is in fact the more limited time frame described in his
employment agreement as well as in the narrative above.
|
|
(8) |
|
In the event of
Mr. Beals death, but not his disability, his estate
will receive a $60,000 payment.
|
|
(9) |
|
The values in this row include the
accelerated value of unvested stock options held by
Mr. Beal as of December 31, 2009 in the event of an
involuntary termination, and the accelerated value of unvested
restricted stock awards held by Mr. Beal as of
December 31, 2009 in the event of an involuntary
termination or a change of control.
|
|
(10) |
|
The values in this row include
(i) the accelerated value of unvested stock options held by
Mr. Copeland as of December 31, 2009 in the event of
an involuntary termination, death or disability, (ii) the
accelerated value of unvested restricted stock awards granted
prior to the 2009 year held by Mr. Copeland as of
December 31, 2009 in the event of an involuntary
termination, a change of control, death or disability, and
(iii) the accelerated value of unvested restricted stock
awards granted during the 2009 year held by
Mr. Copeland as of December 31, 2009 in the event of
an involuntary termination, death or disability.
|
COMPENSATION
COMMITTEE
INTERLOCKS AND INSIDER PARTICIPATION
During 2009, no member of the Compensation Committee served as
an executive officer of the Company, and, except as described in
Related Persons Transactions below, no such person
had any relationship with the Company requiring disclosure
herein. During 2009, there were no Compensation Committee
interlocks with other companies.
COMPENSATION
COMMITTEE REPORT
The Compensation Committee reviewed and discussed the
Compensation Discussion and Analysis required by Item 402
of
Regulation S-K
promulgated by the SEC with management of the Company, and,
based on such review and discussions, the Compensation Committee
recommended to the Board of Directors that such Compensation
Discussion and Analysis be included in this Proxy Statement and
incorporated by reference into the Companys Annual Report
on
Form 10-K
for the fiscal year ended December 31, 2009.
Members of the Compensation Committee:
A. Wellford Tabor (Chairman)
William H. Easter III
W. Howard Keenan, Jr.
Mark B. Puckett
34
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The table below sets forth certain information regarding the
beneficial ownership of common stock as of April 16, 2010,
by (i) each person who is known by the Company to own
beneficially more than 5% of the outstanding shares of common
stock, (ii) each named executive officer of the Company,
(iii) each director of the Company and (iv) all
directors and executive officers as a group. Unless otherwise
noted, the mailing address of each person or entity named below
is 550 West Texas Avenue, Suite 100, Midland, Texas
79701, Attention: General Counsel and Secretary.
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
Percentage
|
Name of Beneficial Owner or Identity of Group
|
|
Shares
|
|
of
Class(1)
|
|
FMR LLC(2)
|
|
|
6,980,383
|
|
|
|
7.6
|
%
|
Chase Oil
Corporation(3)
|
|
|
5,065,050
|
|
|
|
5.5
|
%
|
Mack C.
Chase(4)
|
|
|
5,065,050
|
|
|
|
5.5
|
%
|
Timothy A.
Leach(5)(6)(7)
|
|
|
1,316,669
|
|
|
|
1.4
|
%
|
C. William
Giraud(5)(6)
|
|
|
29,256
|
|
|
|
*
|
|
Darin G.
Holderness(5)(6)
|
|
|
44,201
|
|
|
|
*
|
|
Matthew G.
Hyde(5)(6)
|
|
|
79,955
|
|
|
|
*
|
|
E. Joseph
Wright(5)(6)
|
|
|
428,680
|
|
|
|
*
|
|
David W.
Copeland(5)
|
|
|
372,406
|
|
|
|
*
|
|
Steven L.
Beal(5)(6)
|
|
|
867,655
|
|
|
|
*
|
|
Tucker S.
Bridwell(6)(8)
|
|
|
227,398
|
|
|
|
*
|
|
William H. Easter
III(6)
|
|
|
24,378
|
|
|
|
*
|
|
W. Howard Keenan,
Jr.(6)(9)(10)
|
|
|
539,319
|
|
|
|
*
|
|
Ray M.
Poage(6)
|
|
|
13,878
|
|
|
|
*
|
|
Mark B.
Puckett(6)
|
|
|
8,614
|
|
|
|
*
|
|
A. Wellford
Tabor(6)
|
|
|
9,878
|
|
|
|
*
|
|
All directors and executive officers as a group
(13 persons)(6)(8)(9)(10)(11)
|
|
|
3,679,258
|
|
|
|
4.0
|
%
|
|
|
|
*
|
|
Less than 1%.
|
|
(1) |
|
Based upon an aggregate of
91,544,956 shares outstanding as of April 16, 2010.
|
|
(2) |
|
According to Amendment No. 3
to a Schedule 13G, dated February 16, 2010, filed with
the SEC by FMR LLC, it has sole voting power over 271,900 of
these shares, no voting power over the remainder and the sole
dispositive power over all of these shares. The address of FMR
LLC is 82 Devonshire Street, Boston, MA 02109.
|
|
(3) |
|
According to Amendment No. 2
to a Schedule 13G dated March 26, 2010, filed with the
SEC by Chase Oil Corporation and Mack C. Chase, Chase Oil
Corporation has sole voting power and sole dispositive power
over all of these shares. The address of Chase Oil Corporation
is P.O. Box 1767, Artesia, NM
88211-1767.
The directors of Chase Oil Corporation are Mack C. Chase, Robert
C. Chase and Richard C. Chase.
|
|
(4) |
|
Mr. Chase owns a majority of
the voting stock of Chase Oil Corporation and therefore may be
deemed to have voting and investment power with respect to the
shares owned by Chase Oil Corporation. Mr. Chase disclaims
beneficial ownership in the shares owned by Chase Oil
Corporation, except to the extent of his pecuniary interest in
Chase Oil Corporation. The address of Mr. Chase is
P.O. Box 693, Artesia, NM
88211-0693.
|
35
|
|
|
(5) |
|
The number of shares beneficially
owned includes the following shares that are subject to stock
options that were exercisable as of or will become exercisable
within sixty days of April 16, 2010:
|
|
|
|
|
|
Holder
|
|
Shares
|
|
|
Timothy A. Leach
|
|
|
349,926
|
|
C. William Giraud
|
|
|
|
|
Darin G. Holderness
|
|
|
14,942
|
|
Matthew G. Hyde
|
|
|
41,402
|
|
E. Joseph Wright
|
|
|
139,230
|
|
David W. Copeland
|
|
|
37,023
|
|
Steven L. Beal
|
|
|
193,624
|
|
|
|
|
(6) |
|
Executive officer or director of
the Company.
|
|
(7) |
|
Includes 200,000 shares that
are pledged to secure a bank loan.
|
|
(8) |
|
Includes 43,312 shares owned
by Mansefeldt Investment Corporation and 133,220 shares
owned by the Dian Graves Owen Foundation.
|
|
(9) |
|
The address of Mr. Keenan is
410 Park Avenue, 19th Floor, New York, NY 10022. Includes
3,784 shares and 8,966 shares attributed to Yorktown
Energy Partners V, L.P. and Yorktown Energy Partners VI,
L.P., respectively, but issued to Mr. Keenan as director
compensation as the nominee of those entities.
|
|
(10) |
|
Includes
(i) 189,080 shares of common stock owned by Yorktown
Energy Partners V, L.P. and Yorktown Energy Partners VI,
L.P. Mr. Keenan is a member and a manager of the general
partners of Yorktown Energy Partners V, L.P. and Yorktown
Energy Partners VI, L.P. and holds all securities received as
director compensation for the benefit of those entities;
Mr. Keenan disclaims beneficial ownership of all such
securities, as well as those held by Yorktown Energy
Partners V, L.P. and Yorktown Energy Partners VI, L.P.,
except to the extent of his pecuniary interest therein; and
(ii) 350,239 shares beneficially owned and received as
prorata distributions from Yorktown Energy Partners V, L.P.
and Yorktown Energy Partners VI, L.P.
|
|
(11) |
|
The number of shares beneficially
owned includes 809,897 shares that are subject to stock
options that were exercisable or will become exercisable within
sixty days of April 16, 2010.
|
SECTION 16(A)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
The executive officers and directors of the Company and persons
who own more than 10% of the Companys common stock are
required to file reports with the SEC, disclosing the amount and
nature of their beneficial ownership in common stock, as well as
changes in that ownership. Based solely on its review of reports
and written representations that the Company has received, the
Company believes that all required reports were timely filed
during 2009.
RELATED
PERSON TRANSACTIONS
General
The Board of Directors has determined that the Audit Committee
will periodically review all related person transactions that
the rules of the SEC require be disclosed in the Companys
proxy statement, and make a determination regarding the initial
authorization or ratification of any such transaction.
The Audit Committee is charged with reviewing the material facts
of all related person transactions and either approving or
disapproving of the Companys participation in such
transactions under the Companys Related Persons
Transaction Policy adopted by the Board of Directors (RPT
Policy) on November 8, 2007, which pre-approves
certain related person transactions, including:
|
|
|
|
|
any employment of an executive officer if his or her
compensation is required to be reported in the Companys
proxy statement under Item 402;
|
|
|
|
director compensation which is required to be reported in the
Companys proxy statement under Item 402;
|
36
|
|
|
|
|
any transaction with an entity at which the related
persons only relationship is as a director or manager
(other than sole director or manager) or beneficial owner of
less than 10% of the entitys equity, if the aggregate
amount involved does not exceed the greater of $1 million
or 2% of the entitys annual revenues; and
|
|
|
|
transactions with Chase Oil Corporation (Chase Oil)
and its affiliates, pursuant to which the Company acquires
equipment, services or supplies in the ordinary course of its
oil and gas business.
|
The Audit Committee Chairman may approve any related person
transaction in which the aggregate amount involved is expected
to be less than $120,000. A summary of such approved
transactions and each new related person transaction deemed
pre-approved under the RPT Policy is provided to the Audit
Committee for its review. The Audit Committee has the authority
to modify the RPT Policy regarding pre-approved transactions or
to impose conditions upon the ability of the Company to
participate in any related person transaction.
There were no related persons transactions during 2009 which
were required to be reported in Related Persons
Transactions, where the procedures described above did not
require review, approval or ratification or where these
procedures were not followed.
Prior to the adoption of the RPT Policy, the Company entered
into the following transactions and contractual arrangements
involving its officers, directors or principal stockholders.
None of these transactions were reviewed by the Audit Committee.
The Company believes that the terms of these arrangements and
agreements were at least as favorable as they would have been
had it contracted with unrelated third parties under the same or
similar circumstances.
Transactions
Involving Directors
The Company leased certain mineral interests in Andrews County,
Texas from a partnership in which Mr. Bridwell, one of the
Companys directors, is the general partner and in which he
holds a 3.5% interest. The Company paid royalties of
approximately $134,000 during the year ended December 31,
2009 attributable to such mineral interests. The Company owed
this partnership royalty payments of approximately $12,000 at
December 31, 2009.
Mr. Tabor, one of the Companys directors, was a
Partner at Wachovia Capital Partners, a merchant banking arm of
Wells Fargo & Company until May 2009. Wachovia Bank,
National Association and Wells Fargo Bank, N.A. are affiliates
of Wells Fargo & Company and are lenders under the
Companys revolving credit facility and counterparties
under certain of the Companys hedging instruments.
On June 9, 2009, the Company entered into a Consulting
Agreement (the Consulting Agreement) with
Mr. Beal, one of the Companys directors, under which
Mr. Beal serves as a consultant to the Company following
his retirement as the Companys President and Chief
Operating Officer on June 30, 2009. Either the Company or
Mr. Beal may terminate the consulting relationship at any
time by giving 90 days written notice to the other party;
however, the Company may terminate the relationship immediately
for cause. During the term of the consulting relationship,
Mr. Beal will receive a consulting fee of $20,000 per month
and a monthly reimbursement for his medical and dental coverage
costs. Pro-rata compensation will be paid for the month in which
a termination of the consulting relationship occurs. If
Mr. Beal dies during the term of the Consulting Agreement,
his estate will receive an additional $60,000 lump sum payment.
Pursuant to the Consulting Agreement, Mr. Beal will be
deemed to be continuing in the employment of the Company for
purposes of vesting in his currently unvested shares of
restricted stock for so long as he provides consulting services
under the Consulting Agreement, and he will immediately become
fully vested in such shares if the Company terminates the
consulting relationship for any reason other than for cause. In
addition, Mr. Beal will be deemed to be continuing in the
employment of the Company for purposes of determining his rights
under certain stock options he holds for so long as he provides
consulting services under the Consulting Agreement, and certain
stock options will become fully vested and immediately
exercisable if the Company terminates the consulting
relationship for any reason other than for cause. Mr. Beal
received $120,000 of consulting fees and $5,580 related to
health care reimbursements pursuant to this Consulting Agreement
in 2009.
37
Transactions
Involving Executive Officers
Overriding Royalty Interests. Prior to the
formation of Concho Equity Holdings Corp. in 2004,
Messrs. Leach, Beal, Copeland and Wright acquired working
interests in 120 undeveloped acres located in Lea County, New
Mexico. In connection with the formation of Concho Equity
Holdings Corp., a predecessor of the Company, these working
interests were sold to that company in November 2004 for
$120,000 in the aggregate, and Messrs. Leach, Beal,
Copeland and Wright each retained a 0.25% overriding royalty
interest in any production attributable to this acreage. The
Company has not drilled any wells that are subject to these
overriding royalty interests and, therefore, no payments have
been made in connection with these interests.
Transactions
Involving Chase Oil Corporation and its Affiliates
Silver Oak Drilling Contracts. Silver Oak
Drilling, LLC, an affiliate of Chase Oil, owns and operates
drilling rigs, four of which the Company uses for a substantial
portion of its operations in Southeastern New Mexico. During the
year ended December 31, 2009, the Company paid Silver Oak
Drilling approximately $17.1 million for drilling services
in Southeastern New Mexico. The Companys contracts with
Silver Oak Drilling will terminate on June 30, 2010.
Saltwater Disposal Services Agreement. Among
the assets the Company acquired from Chase Oil in February 2006
is an undivided interest in a saltwater gathering and disposal
system in Southeastern New Mexico, which is owned and maintained
under a written agreement among the Company and Chase Oil and
certain of its affiliates, and under which the Company as
operator gathers and disposes of produced water . The system is
owned jointly by the Company and Chase Oil and its affiliates in
undivided ownership percentages, which are annually redetermined
as of January 1 on the basis of each partys percentage
contribution of the total volume of produced water disposed of
through the system during the prior calendar year. As of
January 1, 2010, the Company owned 97.5% of the system and
Chase Oil and its affiliates owned 2.5%.
Software License Agreement. As of
March 1, 2006, the Company entered into a Software License
Agreement with Enertia Software Systems (Enertia),
which is an affiliate of Chase Oil, with an initial term of
99 years. The Company is using the subject software in the
following software functional areas: accounting and financial
reporting, well production and field data gathering, land and
contracts, and payroll processing. The Software License
Agreement provides for up to fifty-five concurrent users with
the ability for the Company to upgrade in five concurrent user
increments for a one-time license fee of $50,000 for each such
upgrade. The license can be terminated by either party by
providing notice to the other party at least six months prior to
the date on which the termination will be effective. During the
year ended December 31, 2009, the Company paid Enertia
approximately $41,000 for consulting and programming services,
$114,000 for additional licensing fees and $120,000 for annual
maintenance fees, a total of $275,000.
Overriding Royalty Interests. Certain persons
affiliated with Chase Oil own overriding royalty interests in
some of the properties which the Company operates. The aggregate
amount of royalty payments made in connection with these
overriding royalty interests was approximately $1.3 million
during the year ended December 31, 2009.
Other Transactions. The Company also conducts
business from time to time with other companies that are
affiliated with Chase Oil, with respect to oilfield services or
supplies and other services that the Company uses in the
ordinary course of its operations. The Company is not required
to purchase products or services from these companies, and the
Company is able to purchase these products and services from
other vendors who are not affiliated with Chase Oil. During the
year ended December 31, 2009, the Company paid the
approximate amounts indicated to the following such affiliates
of Chase Oil:
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Name of Vendor
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Expenditures
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(in thousands)
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Production Specialty Services, Inc.
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$
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11,113
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Catalyst Oilfield Services LLC
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4,167
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Deer Horn Aviation Ltd. Co.
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306
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Total
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$
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15,586
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38
Registration
Rights Agreement
Demand Registration Rights. The Company is a
party to a registration rights agreement with certain of its
stockholders, including certain of the Companys executive
officers and the former stockholders of Concho Equity Holdings
Corp., which was later merged into a wholly owned subsidiary of
the Company. According to the registration rights agreement,
holders of 20% of the aggregate shares held by the former
stockholders of Concho Equity Holdings Corp. may request in
writing that the Company register their shares by filing a
registration statement under the Securities Act of 1933 (the
Securities Act), so long as the anticipated
aggregate offering price, net of underwriting discounts and
commissions, exceeds $50 million.
Piggy-back Registration Rights. If the Company
proposes to file a registration statement under the Securities
Act relating to an offering of the Companys common stock
(other than on a
Form S-4
or a
Form S-8
or a shelf registration on
Form S-3),
upon the written request of holders of registrable securities,
the Company will use its commercially reasonable efforts to
include in such registration, and any related underwriting, all
of the registrable securities requested to be included, subject
to customary cutback provisions. There is no limit to the number
of these piggy-back registrations in which these
holders may request their shares be included.
Registration Procedures and Expenses. The
Company generally will bear the registration expenses incurred
in connection with any registration, including all registration,
filing and qualification fees, printing and accounting fees, but
excluding underwriting discounts and commissions. The Company
has agreed to indemnify the subject stockholders against certain
liabilities, including liabilities under the Securities Act, in
connection with any registration effected under the registration
rights agreement. The Company is not obligated to effect any
registration more than one time in any six-month period and
these registration rights terminate on August 7, 2017.
ADDITIONAL
INFORMATION
Stockholder
Proposals; Director Nominations
Any stockholder desiring to present a stockholder proposal at
the Companys 2011 Annual Meeting of Stockholders and to
have the proposal included in the Companys related proxy
statement must send it to the Companys General Counsel and
Secretary at 550 West Texas Avenue, Suite 100,
Midland, Texas 79701, so that it is received no later than
December 29, 2010. All such proposals should be in
compliance with SEC rules and regulations. The Company will only
include in its proxy materials those stockholder proposals that
it receives before the deadline and that are proper for
stockholder action.
In addition, in accordance with the Companys bylaws, any
stockholder entitled to vote at the Companys 2011 Annual
Meeting of Stockholders may propose business (other than
proposals to be included in the Companys proxy materials
as discussed in the preceding paragraph) to be included on the
agenda of, and properly presented for action at, the 2011 Annual
Meeting of Stockholders only if written notice of such
stockholders intent is given in accordance with the
requirements of the Companys bylaws and SEC rules and
regulations. Such proposal must be submitted in writing and
addressed to the attention of the Companys General Counsel
and Secretary at the address shown above, so that it is received
between February 12, 2011 and March 14, 2011.
Solicitation
of Proxies
The solicitation of proxies by the Board of Directors will be
conducted primarily by mail. In addition, officers, directors
and employees of the Company may solicit proxies personally or
by telephone, facsimile or electronic means. These officers,
directors and employees will not receive any extra compensation
for these services, but may be reimbursed for their reasonable
expenses in forwarding solicitation material. The Companys
transfer agent, American Stock Transfer &
Trust Company, and Broadridge Financial Solutions will
assist the Company in the distribution of proxy materials and
will provide voting and tabulation services for the Annual
Meeting. For these services, the Company estimates that it will
pay approximately $50,000 in the aggregate for fees and
expenses. In addition, the Company will reimburse brokers,
custodians, nominees and fiduciaries for reasonable expenses
incurred by them in forwarding proxy materials to stockholders
of the Company. The costs of the solicitation,
39
including the cost of the preparation, assembly, printing and
mailing of this Proxy Statement, the proxy card and any
additional information furnished to stockholders, will be borne
by the Company.
Stockholder
List
In accordance with the Delaware General Corporation Law, the
Company will maintain at its corporate offices in Midland, Texas
a list of the stockholders entitled to vote at the Annual
Meeting. The list will be open to the examination of any
stockholder, for purposes germane to the Annual Meeting, during
ordinary business hours for ten days before the Annual Meeting.
Proxy
Materials, Annual Report and Other Information
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY
MATERIALS FOR THE ANNUAL MEETING TO BE HELD ON JUNE 9,
2010:
A COPY OF THE PROXY STATEMENT, THE FORM OF PROXY, THE
COMPANYS ANNUAL REPORT ON
FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2009 AND THE 2009 ANNUAL REPORT
TO STOCKHOLDERS ARE AVAILABLE FREE OF CHARGE AT
http://www.conchoresources.com/proxy.
The Companys Annual Report to Stockholders for the year
ended December 31, 2009, is being mailed to stockholders
concurrently with this Proxy Statement and does not form part of
the proxy solicitation material.
A copy of the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009, as filed with the
SEC, will be sent to any stockholder without charge upon written
request addressed to Concho Resources Inc., 550 West Texas
Avenue, Suite 100, Midland, Texas 79701, Attention: General
Counsel and Secretary. A copy of this Proxy Statement and the
Companys Annual Report to Stockholders will also be sent
upon written or oral request to any stockholder of a shared
address to which a single copy of this Proxy Statement or the
Companys Annual Report to Stockholders was delivered.
Requests may be made by writing to Concho Resources Inc.,
550 West Texas Avenue, Suite 100, Midland, Texas
79701, Attention: General Counsel and Secretary or by calling
432-683-7443.
* * * * * *
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. WHETHER OR
NOT YOU EXPECT TO ATTEND THE MEETING IN PERSON, YOU ARE URGED TO
VOTE BY COMPLETING, SIGNING AND RETURNING YOUR PROXY CARD IN THE
ENCLOSED POSTAGE-PAID, ADDRESSED ENVELOPE.
40
o n
CONCHO RESOURCES INC.
2010 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 9, 2010
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints C. William Giraud, Jack F. Harper,
Darin G. Holderness and Matthew G. Hyde as proxies, each with full
power of substitution, to represent and vote, as designated on the
reverse side, all of the shares of Common Stock of Concho Resources
Inc. held of record by the undersigned on April 16, 2010, at the 2010
Annual Meeting of Stockholders to be held at 3:00 p.m. in the Wildcatter
Room, Petroleum Club of Midland, 501 West Wall, Midland, Texas, on
June 9, 2010, or any adjournment or postponement thereof.
(Continued and to be signed on the reverse side)
2010 ANNUAL MEETING OF STOCKHOLDERS OF
CONCHO RESOURCES INC.
June 9, 2010
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIALS:
The Annual Report, Notice of Meeting and Proxy Statement
are available at http://www.conchoresources.com/proxy.
Please sign, date and mail
your proxy card in the
envelope provided as soon
as possible.
â Please detach along perforated line and mail in the envelope provided. â
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n 20230000000000000000 0
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060209 |
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF ALL DIRECTOR NOMINEES AND FOR PROPOSAL 2.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE x
1. Election of Directors:
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FOR ALL NOMINEES
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NOMINEES:
¡ Ray M. Poage
¡ A. Wellford Tabor |
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WITHHOLD AUTHORITY
FOR ALL NOMINEES
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FOR ALL EXCEPT
(See instructions below)
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INSTRUCTIONS: To withhold authority to vote for any individual
nominee(s), mark FOR ALL EXCEPT and fill in the circle next to
each nominee you wish to withhold, as shown here: l
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To change the address on your account, please check the box at right and indicate
your new address in the address space above. Please note that changes to the registered name(s) on the account may not be submitted via
this method.
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FOR
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AGAINST
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ABSTAIN
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2. To ratify the selection of Grant Thornton LLP as independent
registered public accounting firm of the Company for its fiscal
year ending December 31, 2010.
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3. In their discretion, the proxies are authorized to vote upon such other business as
may properly come before the meeting.
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This proxy is solicited on behalf of the Board of Directors of the Company. This proxy,
when properly executed, will be voted in accordance with the instructions given
above. If no instructions are given, this proxy will be voted FOR election of the
director nominees and FOR proposal 2.
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Signature of Stockholder
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Date:
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Signature of Stockholder
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Date: |
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Note:
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Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as
executor, administrator,
attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly
authorized officer, giving full title as
such. If signer is a partnership, please sign in partnership name by authorized person.
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