exv10w1






Exhibit 10.1




EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT




BY AND AMONG




CONCHO RESOURCES INC.




AND




THE PURCHASERS NAMED HEREIN




 









 





REGISTRATION RIGHTS AGREEMENT




     THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
July 31, 2008 by and among Concho Resources Inc., a Delaware corporation (“Concho”), and
the purchasers named in Schedule A to this Agreement (each such purchaser a “Purchaser”
and, collectively, the “Purchasers”).



     WHEREAS, this Agreement is made in connection with the Closing of the issuance and sale of the
Purchased Common Stock pursuant to the Common Stock Purchase Agreement, dated as of June 5, 2008,
by and among Concho and the Purchasers (the “Purchase Agreement”);



     WHEREAS, Concho has agreed to provide the registration and other rights set forth in this
Agreement for the benefit of the Purchasers pursuant to the Purchase Agreement; and



     WHEREAS, it is a condition to the obligations of each Purchaser and Concho under the Purchase
Agreement that this Agreement be executed and delivered.



     NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by each party hereto, the parties hereby agree as follows:



ARTICLE I

DEFINITIONS




     Section 1.01 Definitions. Capitalized terms used herein without definition shall have the meanings
given to them in the Purchase Agreement. The terms set forth below are used herein as so defined:



     “Agreement” has the meaning specified therefor in the introductory paragraph.



     “Concho” has the meaning specified therefor in the introductory paragraph.



     “Effectiveness Period” has the meaning specified therefor in Section 2.01(a)(i) of
this Agreement.



     “File Date” has the meaning specified in Section 2.01(a)(1) of this Agreement.



     “Holder” means the record holder of any Registrable Securities.



     “Included Registrable Securities” has the meaning specified therefor in Section
2.02(a) of this Agreement.



     “Liquidated Damages” has the meaning specified therefor in Section 2.01(a)(ii) of this
Agreement.



 









 





     “Liquidated Damages Multiplier” means the product of $30.11 times the number of Common
Stock purchased by such Purchaser.



     “Losses” has the meaning specified therefor in Section 2.08(a) of this Agreement.



     “Managing Underwriter” means, with respect to any Underwritten Offering, the
book-running lead manager of such Underwritten Offering.



     “Opt Out Notice” has the meaning specified therefor in Section 2.02(a) of this
Agreement.



     “Partners” has the meaning specified therefor in Section 2.02(b) of this Agreement.



     “Placement Agent” means Banc of America Securities LLC.



     “Purchase Agreement” has the meaning specified therefor in the Recitals of this
Agreement.



     “Purchaser” and “Purchasers” have the meanings specified therefor in the
introductory paragraph of this Agreement.



     “Purchaser Underwriter Registration Statement” has the meaning specified therefor in
Section 2.04(o) of this Agreement.



     “Registrable Securities” means: (i) the Purchased Common Stock and (ii) any Common
Stock issued as Liquidated Damages pursuant to this Agreement, all of which Registrable Securities
are subject to the rights provided herein until such rights terminate pursuant to the provisions
hereof.



     “Registration Expenses” has the meaning specified therefor in Section 2.07(a) of this
Agreement.



     “Registration Statement” has the meaning specified therefor in Section 2.01(a)(i) of
this Agreement.



     “Selling Expenses” has the meaning specified therefor in Section 2.07(a) of this
Agreement.



     “Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement.



     “Underwritten Offering” means an offering (including an offering pursuant to a
Registration Statement) in which Common Stock are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought deal” with one or more investment
banks.



 









 





     Section 1.02 Registrable Securities. Any Registrable Security will cease to be a Registrable Security when: (a) a registration
statement covering such Registrable Security has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such effective registration
statement; (b) such Registrable Security has been disposed of pursuant to any section of Rule 144
(or any similar provision then in force) under the Securities Act; (c) such Registrable Security
can be disposed of pursuant to Rule 144(b) (or any similar provision then in force) under the
Securities Act; (d) such Registrable Security is held by Concho or one of its Subsidiaries; or (e)
such Registrable Security has been sold in a private transaction in which the transferor’s rights
under this Agreement are not assigned to the transferee of such securities.



ARTICLE II

REGISTRATION RIGHTS




     Section 2.01 Registration.



          (a) Registration.




               (i) Deadline To Go Effective. Within sixty (60) days of Concho first becoming eligible to
file a registration statement on Form S-3; provided in no event shall such date be later than
November 1, 2008 (the “File Date”), Concho shall prepare and file a registration statement
under the Securities Act to permit the resale of the Registrable Securities from time to time,
including as permitted by Rule 415 under the Securities Act (or any similar provision then in
force) under the Act with respect to all of the Registrable Securities (the “Registration
Statement”). A Registration Statement filed pursuant to this Section 2.01 shall be on such
appropriate registration form of the Commission as shall be selected by Concho. Concho will use
its commercially reasonable efforts to cause the Registration Statement filed pursuant to this
Section 2.01 to be continuously effective under the Securities Act until the earlier of (i) the
date as of which all such Registrable Securities are sold by the Purchasers or (ii) the date when
such Registrable Securities become eligible for resale under Rule 144(b) (or any similar provision
then in force) under the Securities Act (the “Effectiveness Period”). The Registration
Statement when declared effective (including the documents incorporated therein by reference) shall
comply as to form with all applicable requirements of the Securities Act and the Exchange Act and
shall not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.



               (ii) Failure To Go Effective. If the Registration Statement required by Section 2.01 of this
Agreement is not declared effective within 30 days after the File Date, then each Purchaser shall
be entitled to a payment with respect to the Purchased Common Stock of each such Purchaser, as
liquidated damages and not as a penalty, of 0.25% of the Liquidated Damages Multiplier per 30-day
period for the first 30 days following the 30th day after the File Date, increasing by
an additional 0.25% of the Liquidated Damages Multiplier per 30-day period for each subsequent 30
days, up to a maximum of 1.00% of the Liquidated Damages Multiplier per 30-day period (the



 









 







“Liquidated Damages”). Initially there shall be no limitation on the aggregate amount of
the Liquidated Damages payable by Concho under this Agreement to each Purchaser; provided,
however, that if there is a change in the Law or accounting principles generally accepted in the
United States that would result in the Purchased Common Stock being treated as debt securities
instead of equity securities for purposes of Concho’s financial statements, then the aggregate
amount of the Liquidated Damages payable by Concho under this Agreement to each Purchaser shall not
exceed the maximum amount of the Liquidated Damages Multiplier with respect to such Purchaser
allowed for the Purchased Common Stock not to be treated as debt securities for purposes of
Concho’s financial statements. The Liquidated Damages payable pursuant to the immediately
preceding sentence, accrued on a daily basis, shall be payable within ten Business Days of the end
of each such 30-day period. Any Liquidated Damages shall be paid to each Purchaser in cash or
immediately available funds; provided, however, if Concho certifies that it is unable to pay
Liquidated Damages in cash or immediately available funds because such payment would result in a
breach under any of Concho’s or Concho’s Subsidiaries’ credit facilities or other indebtedness
filed as exhibits to the Concho SEC Documents, then, to the extent not payable in cash, Concho may
pay the Liquidated Damages in kind in the form of the issuance of additional shares of Common
Stock. Upon any issuance of Common Stock as Liquidated Damages, Concho shall promptly prepare and
file an amendment to the Registration Statement prior to its effectiveness adding such Common Stock
to such Registration Statement as additional Registrable Securities. The determination of the
amount of Common Stock to be issued as Liquidated Damages shall be equal to the amount of
Liquidated Damages divided by the volume weighted average closing price of the Common Stock (as
reported by The New York Stock Exchange) for the ten (10) trading days immediately preceding the
date on which the Liquidated Damages payment is due. The payment of Liquidated Damages to a
Purchaser shall cease at such time as the Purchased Common Stock of such Purchaser become eligible
for resale under Rule 144(b) under the Securities Act. As soon as practicable following the date
that the Registration Statement becomes effective, but in any event within two Business Days of
such date, Concho shall provide the Purchasers with written notice of the effectiveness of the
Registration Statement.



               (iii) Waiver of Liquidated Damages. If Concho is unable to cause a Registration Statement to
go effective within 30 days following the File Date as a result of an acquisition, merger,
reorganization, disposition or other similar transaction, then Concho may request a waiver of the
Liquidated Damages, which may be granted or withheld by the consent of the Holders of a majority of
the Purchased Common Stock, taken as a whole, in their sole discretion. A Purchaser’s rights (and
any transferee’s rights pursuant to Section 2.10 of this Agreement) under this Section 2.01 other
than Liquidated Damages owing but not yet paid shall terminate upon the earlier of (i) when all
such Registrable Securities are sold by such Purchaser or transferee, as applicable, and (ii) when
such Registrable Securities become eligible for resale under Rule 144(b) (or any similar provision
then in force) under the Securities Act.



          (b) Delay Rights. Notwithstanding anything to the contrary contained herein, Concho
may, upon written notice to any Selling Holder whose Registrable Securities are included in the
Registration Statement, suspend such Selling Holder’s use



 









 






of any prospectus which is a part of the
Registration Statement (in which event the
Selling Holder shall discontinue sales of the Registrable Securities pursuant to the
Registration Statement, but such Selling Holder may settle any such sales of Registrable
Securities) if (i) Concho is pursuing an acquisition, merger, reorganization, disposition or other
similar transaction and Concho determines in good faith that Concho’s ability to pursue or
consummate such a transaction would be materially adversely affected by any required disclosure of
such transaction in the Registration Statement or (ii) Concho has experienced some other material
non-public event the disclosure of which at such time, in the good faith judgment of Concho, would
materially adversely affect Concho; provided, however, in no event shall the Purchasers be
suspended for a period that exceeds an aggregate of 60 days in any 180-day period or 120 days in
any 365-day period. Upon disclosure of such information or the termination of the condition
described above, Concho shall provide prompt notice to the Selling Holders whose Registrable
Securities are included in the Registration Statement, shall promptly terminate any suspension of
sales it has put into effect and shall take such other actions to permit registered sales of
Registrable Securities as contemplated in this Agreement.




          (c) Additional Rights to Liquidated Damages. If (i) the Holders shall be prohibited
from selling their Registrable Securities under the Registration Statement as a result of a
suspension pursuant to Section 2.01(b) of this Agreement in excess of the periods permitted therein
or (ii) the Registration Statement is filed and declared effective but, during the Effectiveness
Period, shall thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded by a post-effective amendment to the Registration Statement, a supplement
to the prospectus or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or
l5(d) of the Exchange Act, then, until the suspension is lifted or a post-effective amendment,
supplement or report is filed with the Commission, but not including any day on which a suspension
is lifted or such amendment, supplement or report is filed and declared effective, if applicable,
Concho shall owe the Holders an amount equal to the Liquidated Damages, following (x) the date on
which the suspension period exceeded the permitted period under 2.01(b) of this Agreement or (y)
the day after the Registration Statement ceased to be effective or failed to be useable for its
intended purposes, as liquidated damages and not as a penalty. For purposes of this Section
2.01(c), a suspension shall be deemed lifted on the date that notice that the suspension has been
lifted is delivered to the Holders pursuant to Section 3.01 of this Agreement.




     Section 2.02 Piggyback Rights.



          (a) Participation. If at any time Concho proposes to file (i) a prospectus supplement
to an effective shelf registration statement, other than the Registration Statement contemplated by
Section 2.01 of this Agreement, or (ii) a registration statement, other than a shelf registration
statement, in either case, for the sale of Common Stock in an Underwritten Offering for its own
account and/or another Person, then as soon as practicable but not less than three Business Days
prior to the filing of (x) any preliminary prospectus supplement relating to such Underwritten
Offering pursuant to Rule 424(b) under the Securities Act, (y) the prospectus supplement relating
to such Underwritten Offering pursuant to Rule 424(b) under the Securities Act



 









 






(if no preliminary
prospectus supplement is used) or (z) such registration statement, as
the case may be, then Concho shall give notice (including, but not limited to, notification by
electronic mail) of such proposed Underwritten Offering to the Holders and such notice shall offer
the Holders the opportunity to include in such Underwritten Offering such number of Registrable
Securities (the “Included Registrable Securities”) as each such Holder may request in
writing; provided, however, that if Concho has been advised by the Managing Underwriter that the
inclusion of Registrable Securities for sale for the benefit of the Holders will have a material
adverse effect on the price, timing or distribution of the Common Stock in the Underwritten
Offering, then the amount of Registrable Securities to be offered for the accounts of Holders shall
be determined based on the provisions of Section 2.02(b) of this Agreement. The notice required to
be provided in this Section 2.02(a) to Holders shall be provided on a Business Day pursuant to
Section 3.01 hereof and receipt of such notice shall be confirmed by such Holder. Each such Holder
shall then have three Business Days after receiving such notice to request inclusion of Registrable
Securities in the Underwritten Offering, except that such Holder shall have one Business Day after
such Holder confirms receipt of the notice to request inclusion of Registrable Securities in the
Underwritten Offering in the case of a “bought deal” or “overnight transaction” where no
preliminary prospectus is used. If no request for inclusion from a Holder is received within the
specified time, such Holder shall have no further right to participate in such Underwritten
Offering. If, at any time after giving written notice of its intention to undertake an
Underwritten Offering and prior to the closing of such Underwritten Offering, Concho shall
determine for any reason not to undertake or to delay such Underwritten Offering, Concho may, at
its election, give written notice of such determination to the Selling Holders and, (x) in the case
of a determination not to undertake such Underwritten Offering, shall be relieved of its obligation
to sell any Included Registrable Securities in connection with such terminated Underwritten
Offering, and (y) in the case of a determination to delay such Underwritten Offering, shall be
permitted to delay offering any Included Registrable Securities for the same period as the delay in
the Underwritten Offering. Any Selling Holder shall have the right to withdraw such Selling
Holder’s request for inclusion of such Selling Holder’s Registrable Securities in such offering by
giving written notice to Concho of such withdrawal up to and including the time of pricing of such
offering. Each Holder’s rights under this Section 2.02(a) shall terminate when such Holder
(together with any Affiliates of such Holder) holds less than $5 million of Purchased Common Stock,
based on the Commitment Amounts. Notwithstanding the foregoing, any Holder may deliver written
notice (an “Opt Out Notice”) to Concho requesting that such Holder not receive notice from
Concho of any proposed Underwritten Offering.




          (b) Priority of Rights. If the Managing Underwriter or Underwriters of any proposed
Underwritten Offering of Common Stock included in an Underwritten Offering involving Included
Registrable Securities advises Concho, or Concho reasonably determines, that the total amount of
Common Stock that the Selling Holders and any other Persons intend to include in such offering
exceeds the number that can be sold in such offering without being likely to have a material
adverse effect on the price, timing or distribution of the Common Stock offered or the market for
the Common Stock, then the Common Stock to be included in such Underwritten Offering shall include
the number of Registrable Securities that such Managing Underwriter or Underwriters



 









 






advises Concho,
or Concho reasonably determines, can be sold without having such
adverse effect, with such number to be allocated (i) first, to Concho, and (ii) second, pro
rata among the Selling Holders party to this Agreement. The pro rata allocations for each such
Selling Holder shall be the product of (a) the aggregate amount of Common Stock proposed to be sold
by all Selling Holders in such Underwritten Offering multiplied by (b) the fraction derived by
dividing (x) the amount of Common Stock owned on the Closing Date by such Selling Holder by (y) the
aggregate amount of Common Stock owned on the Closing Date by all Selling Holders participating in
the Underwritten Offering. All participating Selling Holders shall have the opportunity to share
pro rata that portion of such priority allocable to any Selling Holder(s) not so participating. As
of the date of execution of this Agreement, there are no other Persons with Registration Rights
relating to Common Stock other than as described in this Section 2.02(b).




     Section 2.03 Underwritten Offering.



          (a) Request for Underwritten Offering. Any one or more Holders that collectively hold
greater than $50 million of Registrable Securities, based on the purchase price per share of Common
Stock under the Purchase Agreement, may deliver written notice to Concho that such Holders wish to
dispose of an aggregate of at least $50 million of Registrable Securities, based on the purchase
price per share of Common Stock under the Purchase Agreement, in an Underwritten Offering. Upon
receipt of any such written request, Concho shall retain underwriters, effect such sale though an
Underwritten Offering, including entering into an underwriting agreement in customary form with the
Managing Underwriter or Underwriters, which shall include, among other provisions, indemnities to
the effect and to the extent provided in Section 2.08, and take all reasonable actions as are
requested by the Managing Underwriter or Underwriters to expedite or facilitate the disposition of
such Registrable Securities; provided, however, Concho management will not be required to
participate in any roadshow or similar marketing effort on behalf of any such Holder.




          (b) General Procedures. In connection with any Underwritten Offering under this
Agreement, Concho shall be entitled to select the Managing Underwriter or Underwriters. In
connection with an Underwritten Offering contemplated by this Agreement in which a Selling Holder
participates, each Selling Holder and Concho shall be obligated to enter into an underwriting
agreement that contains such representations, covenants, indemnities and other rights and
obligations as are customary in underwriting agreements for firm commitment offerings of
securities. No Selling Holder may participate in such Underwritten Offering unless such Selling
Holder agrees to sell its Registrable Securities on the basis provided in such underwriting
agreement and completes and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting agreement. Each Selling Holder
may, at its option, require that any or all of the representations and warranties by, and the other
agreements on the part of, Concho to and for the benefit of such underwriters also be made to and
for such Selling Holder’s benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be conditions precedent to
its obligations. No Selling Holder shall be required to make any representations or warranties to
or agreements with



 









 






Concho or the underwriters other than representations, warranties or agreements
regarding such Selling Holder and its ownership of the securities being registered on its
behalf, its intended method of distribution and any other representation required by Law. If any
Selling Holder disapproves of the terms of an underwriting, such Selling Holder may elect to
withdraw therefrom by notice to Concho and the Managing Underwriter; provided, however, that such
withdrawal must be made up to and including the time of pricing of such Underwritten Offering. No
such withdrawal or abandonment shall affect Concho’s obligation to pay Registration Expenses.




     Section 2.04 Sale Procedures. In connection with its obligations under this Article II, Concho will, as
expeditiously as possible:



          (a) prepare and file with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for the Effectiveness Period and as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of all securities covered
by the Registration Statement;




          (b) if a prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from the Registration Statement and the Managing Underwriter at any time
shall notify Concho in writing that, in the sole judgment of such Managing Underwriter, inclusion
of detailed information to be used in such prospectus supplement is of material importance to the
success of the Underwritten Offering of such Registrable Securities, use its commercially
reasonable efforts to include such information in such prospectus supplement;




          (c) furnish to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Registration Statement or any other registration statement contemplated by this
Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete
drafts of all such documents proposed to be filed (including exhibits and each document
incorporated by reference therein to the extent then required by the rules and regulations of the
Commission), and provide each such Selling Holder the opportunity to object to any information
pertaining to such Selling Holder and its plan of distribution that is contained therein and make
the corrections reasonably requested by such Selling Holder with respect to such information prior
to filing the Registration Statement or such other registration statement or supplement or
amendment thereto, and (ii) such number of copies of the Registration Statement or such other
registration statement and the prospectus included therein and any supplements and amendments
thereto as such Persons may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Registration Statement or other
registration statement;




          (d) if applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by the Registration Statement or any other registration statement
contemplated by this Agreement under the securities or blue sky
laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten



 









 






Offering,
the Managing Underwriter, shall reasonably request; provided, however, that Concho will not be
required to qualify generally to transact business in any jurisdiction where it is not then
required to so qualify or to take any action which would subject it to general service of process
in any such jurisdiction where it is not then so subject;




          (e) promptly notify each Selling Holder and each underwriter of Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered by any of them under the
Securities Act, of (i) the filing of the Registration Statement or any other registration statement
contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection
therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement
or any other registration statement or any post-effective amendment thereto, when the same has
become effective; and (ii) any written comments from the Commission with respect to any filing
referred to in clause (i) and any written request by the Commission for amendments or supplements
to the Registration Statement or any other registration statement or any prospectus or prospectus
supplement thereto;




          (f) immediately notify each Selling Holder and each underwriter of Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under the Securities Act,
of (i) the happening of any event as a result of which the prospectus or prospectus supplement
contained in the Registration Statement or any other registration statement contemplated by this
Agreement, as then in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; (ii) the issuance or threat of issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or
any other registration statement contemplated by this Agreement, or the initiation of any
proceedings for that purpose; or (iii) the receipt by Concho of any notification with respect to
the suspension of the qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the provision of such notice, Concho
agrees to as promptly as practicable amend or supplement the prospectus or prospectus supplement or
take other appropriate action so that the prospectus or prospectus supplement does not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the circumstances then
existing and to take such other action as is necessary to remove a stop order, suspension, threat
thereof or proceedings related thereto;




          (g) upon request and subject to appropriate confidentiality obligations, furnish to each
Selling Holder copies of any and all transmittal letters or other correspondence with the
Commission or any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to such offering of
Registrable Securities;




          (h) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel
for Concho dated the effective date of the applicable registration
statement or the date of any amendment or supplement thereto, and a letter of like kind



 









 






dated
the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter, dated
the date of the applicable registration statement or the date of any amendment or supplement
thereto and a letter of like kind dated the date of the closing under the underwriting agreement,
in each case, signed by the independent public accountants who have certified Concho’s financial
statements included or incorporated by reference into the applicable registration statement, and
each of the opinion and the “cold comfort” letter shall be in customary form and covering
substantially the same matters with respect to such registration statement (and the prospectus and
any prospectus supplement included therein) as are customarily covered in opinions of issuer’s
counsel and in accountants’ letters delivered to the underwriters in Underwritten Offerings of
securities and such other matters as such underwriters or Selling Holders may reasonably request;




          (i) otherwise use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;




          (j) make available to the appropriate representatives of the Managing Underwriter and Selling
Holders access to such information and Concho personnel as is reasonable and customary to enable
such parties to establish a due diligence defense under the Securities Act; provided, however, that
Concho need not disclose any such information to any such representative unless and until such
representative has entered into or is otherwise subject to a confidentiality agreement with Concho
satisfactory to Concho (including any confidentiality agreement referenced in Section 8.06 of the
Purchase Agreement);




          (k) cause all such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which similar securities
issued by Concho are then listed;




          (l) use its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of Concho to enable the Selling Holders to consummate the
disposition of such Registrable Securities;




          (m) provide a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration statement; and




          (n) enter into customary agreements and take such other actions as are reasonably requested by
the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition
of such Registrable Securities.




          (o) Concho agrees that, if any Purchaser could reasonably be deemed to be an “underwriter”, as
defined in Section 2(a)(11) of the Securities Act, in connection



 









 






  with the registration statement in
respect of any registration of Concho’s securities of any Purchaser pursuant to this Agreement, and
any amendment or supplement thereof (any such registration statement or amendment or supplement a
“Purchaser Underwriter Registration Statement”), then Concho will cooperate with such
Purchaser in allowing such Purchaser to conduct customary “underwriter’s due diligence” with
respect to Concho and satisfy its obligations in respect thereof. In addition, at any Purchaser’s
request, Concho will furnish to such Purchaser, on the date of the effectiveness of any Purchaser
Underwriter Registration Statement and thereafter from time to time on such dates as such Purchaser
may reasonably request, (i) a letter, dated such date, from Concho’s independent certified public
accountants in form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to such Purchaser, and
(ii) an opinion, dated as of such date, of counsel representing Concho for purposes of such
Purchaser Underwriter Registration Statement, in form, scope and substance as is customarily given
in an underwritten public offering, including a standard “10b-5” opinion for such offering,
addressed to such Purchaser; provided, however, that with respect to any Placement Agent, Concho’s
obligations with respect to this Section 2.04(o) shall be limited to one time, with an additional
bring-down request within 30 days of the date of such documents. Concho will also permit legal
counsel to such Purchaser to review and comment upon any such Purchaser Underwriter Registration
Statement at least five Business Days prior to its filing with the Commission and all amendments
and supplements to any such Purchaser Underwriter Registration Statement within a reasonable number
of days prior to their filing with the Commission and not file any Purchaser Underwriter
Registration Statement or amendment or supplement thereto in a form to which such Purchaser’s legal
counsel reasonably objects.




     Each Selling Holder, upon receipt of notice from Concho of the happening of any event of the
kind described in Section 2.04(e) of this Agreement, shall forthwith discontinue disposition of the
Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.04(e) of this Agreement or until it is advised in
writing by Concho that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings incorporated by reference in the prospectus, and, if so directed
by Concho, such Selling Holder will, or will request the managing underwriter or underwriters, if
any, to deliver to Concho (at Concho’s expense) all copies in their possession or control, other
than permanent file copies then in such Selling Holder’s possession, of the prospectus covering
such Registrable Securities current at the time of receipt of such notice.



     If requested by a Purchaser, Concho shall: (i) as soon as practicable incorporate in a
prospectus supplement or post-effective amendment such information as such Purchaser reasonably
requests to be included therein relating to the sale and distribution of Registrable Securities,
including information with respect to the number of Registrable Securities being offered or sold,
the purchase price being paid therefor and any other terms of the offering of the Registrable
Securities to be sold in such offering; (ii) as soon as practicable make all required filings of
such prospectus supplement or post-effective
amendment after being notified of the matters to be incorporated in such prospectus



 









 




 supplement
or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any
Registration Statement.




     Section 2.05 Cooperation by Holders. Concho shall have no obligation to include in the Registration
Statement Common Stock of a Holder, or in an Underwritten Offering pursuant to Section 2.02 of this
Agreement Common Stock of a Selling Holder, who has failed to timely furnish such information that,
in the opinion of counsel to Concho, is reasonably required in order for the registration statement
or prospectus supplement, as applicable, to comply with the Securities Act.



     Section 2.06 Restrictions on Public Sale by Holders of Registrable Securities. For a period of 365 days
from the Closing Date, each Holder of Registrable Securities who is included in the Registration
Statement agrees not to effect any public sale or distribution of the Registrable Securities during
the 30-day period following completion of an Underwritten Offering of equity securities by Concho
(except as provided in this Section 2.06); provided, however, that the duration of the foregoing
restrictions shall be no longer than the duration of the shortest restriction generally imposed by
the underwriters on the officers or directors or any other Common Stockholder of Concho on whom a
restriction is imposed in connection with such public offering. In addition, the provisions of
this Section 2.06 shall not apply with respect to a Holder that (A) owns less than $5 million of
Purchased Common Stock, based on the Commitment Amounts or (B) has submitted a notice requesting
the inclusion of Registrable Securities in an Underwritten Offering pursuant to Section 2.02 or
Section 2.03(a) hereof but is unable to do so as a result of the priority provisions contained in
Section 2.02(b) hereof.



     Section 2.07 Expenses.



          (a) Certain Definitions. “Registration Expenses” means all expenses incident
to Concho’s performance under or compliance with this Agreement to effect the registration of
Registrable Securities on the Registration Statement pursuant to Section 2.01 hereof or an
Underwritten Offering covered under this Agreement, and the disposition of such securities,
including, without limitation, all registration, filing, securities exchange listing and The New
York Stock Exchange fees, all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, fees of the National Association of Securities Dealers,
Inc., transfer taxes and fees of transfer agents and registrars, all word processing, duplicating
and printing expenses and the fees and disbursements of counsel and independent public accountants
for Concho, including the expenses of any special audits or “cold comfort” letters required by or
incident to such performance and compliance. “Selling Expenses” means all underwriting
fees, discounts and selling commissions allocable to the sale of the Registrable Securities.




     (b) Expenses. Concho will pay all reasonable Registration Expenses as determined in
good faith, including, in the case of an Underwritten Offering, whether or not any sale is made
pursuant to such Underwritten Offering. In addition, except as otherwise provided in Section 2.08
hereof, Concho shall not be responsible for legal fees incurred by Holders in connection with the
exercise of such Holders’ rights hereunder.



 









 




Each Selling Holder shall pay all Selling Expenses in
connection with any sale of its Registrable Securities hereunder.




     Section 2.08 Indemnification.



          (a) By Concho. In the event of an offering of any Registrable Securities under the
Securities Act pursuant to this Agreement, Concho will indemnify and hold harmless each Selling
Holder thereunder, its officers, members, managers, directors, employees, agents and other
representatives, and each underwriter, pursuant to the applicable underwriting agreement with such
underwriter, of Registrable Securities thereunder and each Person, if any, who controls such
Selling Holder or underwriter within the meaning of the Securities Act and the Exchange Act, and
its officers, members, managers, directors, employees, agents and other representatives, against
any losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees and
expenses) (collectively, “Losses”), joint or several, to which such Selling Holder,
officer, member, manager, director, employee, agent, other representative, underwriter or
controlling Person may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any other registration statement
contemplated by this Agreement, any preliminary prospectus, free writing prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, and will reimburse each such Selling
Holder, its directors and officers, each such underwriter and each such controlling Person for any
legal or other expenses reasonably incurred by them in connection with investigating or defending
any such Loss or actions or proceedings; provided, however, that Concho will not be liable in any
such case if and to the extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in strict conformity
with information furnished by such Selling Holder, its directors or officers or any underwriter or
controlling Person in writing specifically for use in the Registration Statement or such other
registration statement, or prospectus supplement, as applicable. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of such Selling Holder
or any such Selling Holder, its directors or officers or any underwriter or controlling Person, and
shall survive the transfer of such securities by such Selling Holder.




          (b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless Concho, its directors and officers, and each Person, if any, who
controls Concho within the meaning of the Securities Act or of the
Exchange Act, and its directors and officers, to the same extent as the foregoing indemnity
from Concho to the Selling Holders, but only with respect to information regarding such Selling
Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in the
Registration Statement or any preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto; provided,



 









 






however, that the liability of each Selling Holder shall
not be greater in amount than the dollar amount of the net proceeds received by such Selling Holder
from the sale of the Registrable Securities giving rise to such indemnification.




          (c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under this Section 2.08. In any action brought
against any indemnified party, it shall notify the indemnifying party of the commencement thereof.
The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified
party and, after notice from the indemnifying party to such indemnified party of its election so to
assume and undertake the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 2.08 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however, that, (i) if the
indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the
indemnified party or (ii) if the defendants in any such action include both the indemnified party
and the indemnifying party and counsel to the indemnified party shall have concluded that there may
be reasonable defenses available to the indemnified party that are different from or additional to
those available to the indemnifying party, or if the interests of the indemnified party reasonably
may be deemed to conflict with the interests of the indemnifying party, then the indemnified party
shall have the right to select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the reasonable expenses and fees of such separate
counsel and other reasonable expenses related to such participation to be reimbursed by the
indemnifying party as incurred. Notwithstanding any other provision of this Agreement, no
indemnified party shall settle any action brought against it with respect to which it is entitled
to indemnification hereunder without the consent of the indemnifying party, unless the settlement
thereof imposes no liability or obligation on, and includes a complete and unconditional release
from all liability of, the indemnifying party.




          (d) Contribution. If the indemnification provided for in this Section 2.08 is held by
a court or government agency of competent jurisdiction to be unavailable to any indemnified party
or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Loss in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of such indemnified party
on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other relevant equitable
considerations; provided, however, that in no event shall such Selling Holder be required to
contribute an aggregate amount in excess of the dollar amount of net proceeds received by such
Selling Holder from the sale of Registrable Securities giving
rise to such indemnification. The relative fault of the indemnifying party on the one hand and the




 









 







indemnified party on the other
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact has been
made by, or relates to, information supplied by such party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contributions pursuant to this
paragraph were to be determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein. The amount paid by an
indemnified party as a result of the Losses referred to in the first sentence of this paragraph
shall be deemed to include any legal and other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any Loss which is the subject of this
paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such
fraudulent misrepresentation.




          (e) Other Indemnification. The provisions of this Section 2.08 shall be in addition
to any other rights to indemnification or contribution which an indemnified party may have pursuant
to law, equity, contract or otherwise.




     Section 2.09 Rule 144 Reporting. With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Registrable Securities to the public
without registration, Concho agrees to use its commercially reasonable efforts to:



          (a) make and keep public information regarding Concho available, as those terms are understood
and defined in Rule 144 under the Securities Act, at all times from and after the date hereof;




          (b) file with the Commission in a timely manner all reports and other documents required of
Concho under the Securities Act and the Exchange Act at all times from and after the date hereof;
and




          (c) so long as a Holder owns any Registrable Securities, furnish, unless otherwise not
available at no charge by access electronically to the Commission’s EDGAR filing system, to such
Holder forthwith upon request a copy of the most recent annual or quarterly report of Concho, and
such other reports and documents so filed as such Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such Holder to sell any such securities
without registration.




     Section 2.10 Transfer or Assignment of Registration Rights. The rights to cause Concho to register Registrable Securities granted to the Purchasers by
Concho under this Article II may be transferred or assigned by any Purchaser to one or more
transferee(s) or assignee(s) of such Registrable Securities; provided, however, that, (a) unless
such transferee is an Affiliate of such Purchaser, each such transferee or assignee holds
Registrable Securities representing at least $10 million of the Purchased Common Stock, based on
the Commitment Amounts, (b) Concho is given written notice prior to any said transfer or
assignment, stating the name and address of each such transferee and



 









 




identifying the securities
with respect to which such registration rights are being transferred or assigned, and (c) each such
transferee assumes in writing responsibility for its portion of the obligations of such Purchaser
under this Agreement.




     Section 2.11 Limitation on Subsequent Registration Rights. From and after the date hereof, Concho shall
not, without the prior written consent of the Holders of a majority of the outstanding Registrable
Securities, (i) enter into any agreement with any current or future holder of any securities of
Concho that would allow such current or future holder to require Concho to include securities in
any registration statement filed by Concho on a basis that is superior to the piggyback rights
granted to the Purchasers hereunder or (ii) grant registration rights to any other Person that
would be superior to the Purchasers’ registration rights hereunder.



ARTICLE III

MISCELLANEOUS




     Section 3.01 Communications. All notices and other communications provided for or permitted hereunder
shall be made in writing by facsimile, electronic mail, courier service or personal delivery:



          (a) if to Purchaser, to the address set forth under that Purchaser’s signature block in
accordance with the provisions of this Section 3.01;




          (b) if to a transferee of Purchaser, to such Holder at the address provided pursuant to
Section 2.10 hereof; and




          (c) if to Concho, at 550 West Texas Avenue, Suite 1300, Midland, Texas 79701 (facsimile:
432.683.7441), notice of which is given in accordance with the provisions of this Section 3.01.




     All such notices and communications shall be deemed to have been received: at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent via facsimile or
electronic mail; and when actually received, if sent by courier service or any other means.




     Section 3.02 Successor and Assigns This Agreement shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties, including subsequent Holders of Registrable Securities to the extent permitted
herein.



     Section 3.03 Recapitalization, Exchanges, Etc. Affecting the Common Stock The provisions of this
Agreement shall apply to the full extent set forth herein with respect to any and all stock of
Concho or any successor or assign of Concho (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for or in substitution of, the
Registrable Securities, and shall be appropriately adjusted for combinations, stock splits,
recapitalizations and the like occurring after the date of this Agreement.



 









 





     Section 3.04 Specific Performance. Damages in the event of breach of this Agreement by a party hereto
may be difficult, if not impossible, to ascertain, and it is therefore agreed that each such
Person, in addition to and without limiting any other remedy or right it may have, will have the
right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining
any such breach, and enforcing specifically the terms and provisions hereof, and each of the
parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction
or competence of the court to grant such an injunction or other equitable relief. The existence of
this right will not preclude any such Person from pursuing any other rights and remedies at law or
in equity which such Person may have.



     Section 3.05 Counterparts. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.



     Section 3.06 Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



     Section 3.07 Governing Law. The Laws of the State of New York shall govern this Agreement without
regard to principles of conflict of Laws.



     Section 3.08 Severability of Provisions. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any other jurisdiction.



     Section 3.09 Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the rights granted by Concho set forth herein. This Agreement, the Purchase
Agreement and the Confidentiality Agreement pertaining to the sale of the Purchased Common Stock
supersede all prior agreements and understandings between the parties with respect to such subject
matter.



     Section 3.10 Amendment. This Agreement may be amended only by means of a written amendment signed by
Concho and the Holders of a majority of the then outstanding Registrable Securities; provided,
however, that no such amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.



     Section 3.11 No Presumption. If any claim is made by a party relating to any conflict, omission or
ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by
virtue of the fact that this Agreement was prepared by or at the request of a particular party or
its counsel.



 









 





     Section 3.12 Obligations Limited to Parties to Agreement. Each of the Parties hereto covenants, agrees
and acknowledges that no Person other than the Purchasers (and their permitted assignees) and
Concho shall have any obligation hereunder and that, notwithstanding that one or more of the
Purchasers may be a corporation, partnership or limited liability company, no recourse under this
Agreement or the Purchase Agreement or under any documents or instruments delivered in connection
herewith or therewith shall be had against any former, current or future director, officer,
employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of
the Purchasers or any former, current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any
applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any former, current or future director,
officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of
any of the Purchasers or any former, current or future director, officer, employee, agent, general
or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for
any obligations of the Purchasers under this Agreement or the Purchase Agreement or any documents
or instruments delivered in connection herewith or therewith or for any claim based on, in respect
of or by reason of such obligation or its creation.



[The remainder of this page is intentionally left blank]




 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 	 	 	 	 
	 	 	CONCHO RESOURCES INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Steven L. Beal	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven L. Beal	 	 
	 

	 	 	 	Title:
	 	President, Chief Operating Officer and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AMERICAN FUNDS INSURANCE SERIES-GROWTH FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Michael Downer	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Michael Downer	 	 
	 	 	Title:	 	Vice President and Secretary, Capital
Research and Management Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	 
	 	 	WATERBATH & CO. HG03	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TRAFELET CAYMAN, LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	DELTA OFFSHORE MASTER, LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DELTA PLEIADES, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DELTA INSTITUTIONAL, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DELTA ONSHORE, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	DELTA US PARTNERS, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Trafelet Capital Management, LP,	 	 
	 	 	Its:	 	Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rick Muller	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rick Muller	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FRED ALGER MANAGEMENT, INC,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Lisa Moss	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Lisa Moss	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o Franciscan Sisters
of the Atonement	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o Congreg of Sr
of St. Joseph Springfield	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o SISTERS OF
SAINT URSULA	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o PRESENTATION
CAPITAL ASSET PROGRAM II	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o WISDOM
CHARITABLE TRUST	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Fred Alger & Co., Inc. f/b/o SHELBURNE SHIRT CO.	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	US BANK N.A. CUSTODIAN US BANK
N.A., CUSTODIAN	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Hare & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS -THE ALGER SMALL

CAPITALIZATION FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS -THE ALGER

MIDCAP GROWTH FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGCR FUNDS -THE ALGER

CAPITAL APPRECIATION FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS — THE ALGER
SMALLCAP AND MIDCAP FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS — ALGER GROWTH OPPORTUNITIES FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	For:
	 	THE  ALGER FUNDS  — THE ALGER SMALL CAPITALIZATION INSTITUTIONAL FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS — THE ALGER MIDCAP GROWTH INSTITUTIONAL FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER FUNDS — THE ALGER CAPITAL APPRECIATION INSTITUTIONAL FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE SPECTRA FUNDS — THE SPECTRA FUND	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER AMERICAN FUNDS — THE ALGER AMERICAN SMALLCAP PORTFOLIO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER AMERICAN. FUNDS — THE ALGER AMERICAN MIDCAP GROWTH PORTFOLIO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER AMERICAN FUNDS — THE ALGER AMERICAN LEVERAGED ALLCAP PORTFOLIO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	THE ALGER AMERICAN FUNDS — THE ALGER AMERICAN SMALL AND MIDCAP PORTFOLIO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	FRED ALGER MANAGEMENT, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	FRED ALGER MANAGEMENT, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	FLANKPLATE & Co.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	KERN FAMILY FOUNDATION INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Robert D. Kern & Patricia E. Kern Ttes R. & P Kern 1992 Rev Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	HARE & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	IFTCO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	RINGORUBBER & CO.	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	ELL & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	ELL & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	SKAKETFRONT & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	LIVEWELL & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	LIVEWELL & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	PRAMBREAK & CO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	SISTERS OF THE HOLY CROSS AUGUSTA FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	EMEG & Co	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For::	 	BRISSON FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	PALM & CO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	U.S. BANK NA-C/F CITY OF WINSTON SALEM	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	HARE & CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	U.S. BANK NA-U/A DETROIT PROVINCE OF THE SOCIETY OF JESUS	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	HIGHBRIDGE INTERNATIONAL LLC,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Highbridge Capital Management, LLC,	 	 
	 	 	Its:	 	Trading Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Adam J. Chill	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Adam J. Chill	 	 
	 	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HIGHBRIDGE GLOBAL NATURAL RESOURCES, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Highbridge Capital Management, LLC, as Trading Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Rich Potapchuk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rich Potapchuk	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR BALANCED FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Peter L. Lydecker	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Peter L. Lydecker	 	 
	 

	 	 	 	Title.
	 	Assistant Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	 
	 	 	M Gardner & Co. FBO Fidelity Advisor Series I:	 	 
	 	 	Fidelity Advisor Balanced Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FIDELITY PURITAN TRUST: FIDELITY BALANCED FUND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Peter L. Lydecker	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Peter L. Lydecker	 	 
	 

	 	 	 	Title:
	 	Assistant Treasurer	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	 
	 	 	Ball & Co. FBO Fidelity Puritan Trust: Fidelity	 	 
	 	 	Balanced Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	VARIABLE INSURANCE PRODUCT FUND III: BALANCED PORTFOLIO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Peter L. Lydecker	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Peter L. Lydecker	 	 
	 

	 	 	 	Title:
	 	Assistant Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	 
	 	 	M Gardner & Co. FBO Variable Insurance Product	 	 
	 	 	Fund III: Balanced Portfolio	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TIMESSQUARE CAPITAL MANAGEMENT, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Grant R. Babyak	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Grant R. Babyak	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	GuideStone Capital Management	 	 
	 	 	 	 	GuideStone Capital Management	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Alcon Laboratories, Inc.	 	 
	 	 	 	 	Alcon 401(k) Retirement Plan	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	American Legacy Fund	 	 
	 	 	 	 	American Legacy Foundation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Barnes Group Inc.	 	 
	 	 	 	 	Barnes Group Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Bates College	 	 
	 	 	 	 	Bates College Endowment	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	BlueCross & BlueShield of Minnesota	 	 
	 	 	 	 	BlueCross & BlueShield of Minnesota	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	BlueCross & BlueShield of Minnesota 

BlueCross & BlueShield of Minnesota	 	 
	 	 	 	 	Pension Equity Plan	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Chevron Corporation	 	 
	 	 	 	 	Chevron Master Pension Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Ciba Corporation (USA)	 	 
	 	 	 	 	Ciba Corporation (USA) Master Retirement Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Ciba Corporation (USA)	 	 
	 	 	 	 	Ciba Corporation (USA) Investment Savings Plan Master Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Cox Enterprises, Inc.	 	 
	 	 	 	 	Cox Enterprises, Inc. Master Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Managers Investment Group, LLC	 	 
	 	 	 	 	Managers Small Cap Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	The Heinz Endowments	 	 
	 	 	 	 	The Heinz Endowments	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Howard University	 	 
	 	 	 	 	Howard University Endowment / C.B. Powell Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Howard University	 	 
	 	 	 	 	Howard University Retirement Fund	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	IBM Retirement Fund	 	 
	 	 	 	 	IBM Retirement Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Invensys, Inc.	 	 
	 	 	 	 	Invensys, Inc. Master Retirement Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Jafasa 1999 Irrevocable Delaware Trust	 	 
	 	 	 	 	Jafasa 1999 Irrevocable Delaware Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Bopa, Inc.	 	 
	 	 	 	 	MA 1994 B Shares, L.P. (Small Cap)	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	The Kemper & Ethel Marley Foundation	 	 
	 	 	 	 	The Kemper & Ethel Marley Foundation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Bopa, Inc.	 	 
	 	 	 	 	Artsfare 2005 Trust No. 1	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	UFCW Local 7	 	 
	 	 	 	 	Denver Area Meat Cutters & Employers Pension Plan	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	PG&E Corporation	 	 
	 	 	 	 	Pacific Gas and Electric Company Retirement Plan Master Trust	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	PG&E Corporation	 	 
	 	 	 	 	Pacific Gas and Electric Company 

Postretirement Medical Plan Trust -	 	 
	 	 	 	 	Non-Management Employees and Retirees	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	UFCW Local 7	 	 
	 	 	 	 	Rocky Mountain UFCW Unions & Employers Pension Plan	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	For:	 	Savings Banks Employees Retirement Association	 	 
	 	 	 	 	Savings Banks Employees Retirement Association	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Prudential Retirement	 	 
	 	 	 	 	Small Cap Growth / TimesSquare Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	Managers Investment Group, LLC	 	 
	 	 	 	 	TimesSquare Small Cap Growth Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	National Automatic Sprinkler Industry	 	 
	 	 	 	 	National Automatic Sprinkler Industry Pension Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	American College of Surgeons	 	 
	 	 	 	 	American College of Surgeons	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	UFCW International Union	 	 
	 	 	 	 	United Food and Commercial Workers 

International Union — Industry Pension Fund	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	For:	 	CBS Corporation	 	 
	 	 	 	 	CBS Master Trust	 	 







 












 








Schedule A




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Gross
	 	 	 	 	 	 	Proceeds
	Purchaser	 	Common Stock	 	to Issuer
	American Funds Insurance Series – Growth Fund

	 	 	3,321,156	 	 	$	100,000,007.16	 
	Trafelet Cayman, Ltd

	 	 	175,200	 	 	$	5,275,272.00	 
	Delta Offshore Master, Ltd.

	 	 	784,780	 	 	$	23,629,725.80	 
	Delta Pleiades, LP

	 	 	79,400	 	 	$	2,390,734.00	 
	Delta Institutional, LP

	 	 	437,000	 	 	$	13,158,070.00	 
	Delta Onshore, LP

	 	 	49,000	 	 	$	1,475,390.00	 
	Delta U.S. Partners, LP

	 	 	135,200	 	 	$	4,070,872.00	 
	Fred Alger Management, LP

	 	 	1,162,405	 	 	$	35,000,014.55	 
	Highbridge International LLC

	 	 	1,087,405	 	 	$	32,741,764.55	 
	Highbridge Global Natural Resources, L.P.

	 	 	75,000	 	 	$	2,258,250.00	 
	Fidelity Advisor Series I: Fidelity Advisor Balanced
Fund

	 	 	29,582	 	 	$	890,714.02	 
	Fidelity Puritan Trust: Fidelity Balanced Fund

	 	 	607,780	 	 	$	18,300,255.80	 
	Variable Insurance Product Fund III: Balanced Portfolio

	 	 	26,870	 	 	$	809,055.70	 
	TimesSquare Capital Management, LLC

	 	 	332,116	 	 	$	10,000,012.76	 
	 
	 	 	 	 	 	 	 	 
	Total

	 	 	8,302,894	 	 	$	250,000,138.34