NONSTATUTORY STOCK OPTION
AGREEMENT
AGREEMENT
made as of the 12 th day of June, 2006, between CONCHO RESOURCES
INC. , a Delaware corporation (the “Company”), and
___ (“Employee”).
To carry out the
purposes of the CONCHO RESOURCES INC. 2006 STOCK INCENTIVE
PLAN (the “Plan”), by affording Employee the
opportunity to purchase shares of the common stock of the Company,
par value $0.001 per share (“Stock”), and in
consideration of the mutual agreements and other matters set forth
herein and in the Plan, the Company and Employee hereby agree as
follows:
1.
Grant of Option . The Company hereby irrevocably
grants to Employee the right and option (“Option”) to
purchase all or any part of an aggregate of ___ shares of Stock on
the terms and conditions set forth herein and in the Plan, which
Plan is incorporated herein by reference as a part of this
Agreement. In the event of any conflict between the terms of this
Agreement and the Plan, the Plan shall control. Capitalized terms
used but not defined in this Agreement shall have the meaning
attributed to such terms under the Plan, unless the context
requires otherwise. This Option shall not be treated as an
incentive stock option within the meaning of section 422(b) of the
Code.
2.
Purchase Price . The purchase price of Stock
purchased pursuant to the exercise of this Option shall be $6.00
per share, which has been determined to be not less than the Fair
Market Value of the Stock at the date of grant of this Option. For
all purposes of this Agreement, Fair Market Value of Stock shall be
determined in accordance with the provisions of the
Plan.
3.
Exercise of Option . Subject to the earlier
expiration of this Option as herein provided, this Option may be
exercised, by written notice to the Company at its principal
executive office addressed to the attention of its Corporate
Secretary (or such other officer or employee of the Company as the
Company may designate from time to time), at any time and from time
to time after the date of grant hereof, but, except as otherwise
provided below, this Option shall not be exercisable for more than
a percentage of the aggregate number of shares offered by this
Option determined by the number of full years from the date of
grant hereof to the date of such exercise, in accordance with the
following schedule:
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Percentage of
Shares
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Number of
Full Years
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That May Be
Purchased
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0
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%
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25
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%
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50
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%
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75
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%
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100
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%
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This Option may be
exercised only while Employee remains an employee of the Company
and will terminate and cease to be exercisable upon
Employee’s termination of employment with the Company, except
that:
(a) If
Employee’s employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code),
this Option may be exercised by Employee (or Employee’s
estate or the person who acquires this Option by will or the laws
of descent and distribution or otherwise by reason of the death of
Employee) at any time during the period of one year following such
termination, but only as to the number of shares Employee was
entitled to purchase hereunder as of the date Employee’s
employment so terminates.
(b) If Employee
dies while in the employ of the Company, Employee’s estate,
or the person who acquires this Option by will or the laws of
descent and distribution or otherwise by reason of the death of
Employee, may exercise this Option at any time during the period of
one year following the date of Employee’s death, but only as
to the number of shares Employee was entitled to purchase hereunder
as of the date of Employee’s death.
(c) If
Employee’s employment with the Company terminates for any
reason other than as described in (a) or (b) above,
unless such employment is terminated for cause, this Option may be
exercised by Employee at any time during the period of three months
following such termination, or by Employee’s estate (or the
person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee)
during a period of one year following Employee’s death if
Employee dies during such three month period, but in each case only
as to the number of shares Employee was entitled to purchase
hereunder as of the date Employee’s employment so terminates.
As used in this paragraph, the term “cause” shall have
the meaning assigned to such term in Employee’s employment
agreement with the Company or any Affiliate; provided, however,
that if Employee does not have such an employment agreement or
Employee’s employment agreement does not define the term
“cause,” then “cause” shall mean that
Employee (i) has engaged in gross negligence, gross
incompetence or willful misconduct in the performance of
Employee’s duties with respect to the Company or any
Affiliate, (ii) has refused without proper legal reason to
perform Employee’s duties and responsibilities to the Company
or any Affiliate faithfully and to the best of Employee’s
abilities, (iii) has materially breached any material
provision of a written agreement or corporate policy or code of
conduct established by the Company or any Affiliate, (iv) has
willfully engaged in conduct that is materially injurious to the
Company or any Affiliate,
(v) has
failed to meet the performance objectives or standards established
for Employee’s job position by Employee’s employer,
(vi) has committed an act of fraud, embezzlement or willful
breach of a fiduciary duty to the Company or any Affiliate, or
(vii) has been convicted of (or pleaded no contest to) a crime
involving fraud, dishonesty or moral turpitude or any felony (or a
crime of similar import in a foreign jurisdiction).
This Option
shall not be exercisable in any event after the expiration of
10 years from the date of grant hereof. The purchase price of
shares as to which this Option is exercised shall be paid in full
at the time of exercise (a) in cash (including check, bank
draft or money order payable to the order of the Company),
(b) if the Stock is readily tradable on a national securities
market or if permitted by the Committee in its sole discretion, by
delivering or constructively tendering to the Company shares of
Stock having a Fair Market Value equal to the purchase price
(provided such shares used for this purpose must have been held by
Employee for such minimum period of time as may be established from
time to time by the Committee), (c) if the Stock is readily
tradable on a national securities market, through a “cashless
exercise” in accordance with a Company established policy or
program for the same, if any, or (d) any combination of the
foregoing. No fraction of a share of Stock shall be issued by the
Company upon exercise of an Option or accepted by the Company in
payment of the exercise price thereof; rather, Employee shall
provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Stock. Unless
and until a certificate or certificates representing such shares
shall have been issued by the Company to Employee, Employee (or the
person permitted to exercise this Option in the event of
Employee’s death) shall not be or have any of the rights or
privileges of a shareholder of the Company with respect to shares
acquirable upon an exercise of this Option.
4.
Transfer Restrictions; Repurchases . Shares of Stock
purchased pursuant to the exercise of this Option shall be subject
to the transfer restrictions, repurchase provisions and other terms
and conditions set forth in Exhibit A attached hereto.
Employee agrees that Employee and Employee’s spouse, if any,
will, at any time and from time to time as requested by the
Company, execute and deliver to the Company such other documents
and instruments, if any, as the Committee or the Board, in their
discretion, may require to evidence such persons’ agreement
to be bound by the terms of Exhibit A. The terms and
conditions of Exhibit A shall survive the termination of this
Option and this Agreement. Notwithstanding anything to the contrary
in this Section 4 or Exhibit A, (a) neither this
Section 4 nor the terms of Exhibit A shall apply if the
shares of stock acquired by exercise of this Option are subject to
or bound by the terms of that certain Stockholders’ Agreement
among the Company and certain securityholders thereof dated
February 27, 2006 (the “Stockholders’
Agreement”) and (b) this Section 4 and
Exhibit A (other than Section 7 of Exhibit A) shall
cease to apply on the date upon which the Company (or a successor
thereto) first becomes publicly held. For purposes of the preceding
sentence, the Company (or a successor thereto) shall be considered
“publicly held” if the securities that are of the same
class as the Stock (or the securities for which the Stock are
exchanged as described in Paragraph IX of the Plan) shall be
registered under Section 12 of the Exchange Act.
5.
Withholding of Tax . To the extent that the exercise
of this Option or the disposition of shares of Stock acquired by
exercise of this Option results in compensation income or wages to
Employee for federal, state or local tax purposes, Employee shall
deliver to the
Company at the
time of such exercise or disposition such amount of money or, if
permitted by the Committee in its sole discretion, shares of Stock
as the Company may require to meet its minimum obligation under
applicable tax laws or regulations. No exercise of this Option
shall be effective until Employee (or the person entitled to
exercise this Option, as applicable) has made arrangements approved
by the Company to satisfy all applicable minimum tax withholding
requirements of the Company.
6.
Status of Stock . Employee understands that at the
time of the execution of this Agreement the shares of Stock to be
issued upon exercise of this Option have not been registered under
the Securities Act of 1933, as amended (the “Act”), or
any state securities law, and that the Company does not currently
intend to effect any such registration. Until the shares of Stock
acquirable upon the exercise of the Option have been registered for
issuance under the Act, the Company will not issue such shares
unless the holder of the Option provides the Company with a written
opinion of legal counsel, who shall be satisfactory to the Company,
addressed to the Company and satisfactory in form and substance to
the Company’s counsel, to the effect that the proposed
issuance of such shares to such Option holder may be made without
registration under the Act. In the event exemption from
registration under the Act is available upon an exercise of this
Option, Employee (or the person permitted to exercise this Option
in the event of Employee’s death or incapacity), if requested
by the Company to do so, will execute and deliver to the Company in
writing an agreement containing such provisions as the Company may
require to assure compliance with applicable securities
laws.
Employee agrees
that the shares of Stock which Employee may acquire by exercising
this Option shall be acquired for investment without a view to
distribution, within the meaning of the Act, and shall not be sold,
transferred, assigned, pledged or hypothecated in the absence of an
effective registration statement for the shares under the Act and
applicable state securities laws or an applicable exemption from
the registration requirements of the Act and any applicable state
securities laws. Employee also agrees that the shares of Stock
which Employee may acquire by exercising this Option will not be
sold or otherwise disposed of in any manner which would constitute
a violation of any applicable federal or state securities
laws.
In addition,
Employee agrees that (i) the certificates representing the
shares of Stock purchased under this Option may bear such legend or
legends as the Committee deems appropriate in order to assure
compliance with the terms and provisions of Exhibit A or the
Stockholders’ Agreement, as applicable, and applicable
securities laws, (ii) the Company may refuse to register the
transfer of the shares of Stock purchased under this Option on the
stock transfer records of the Company if such proposed transfer
would in the opinion of counsel satisfactory to the Company
constitute a violation of the terms and provisions of
Exhibit A or the Stockholders’ Agreement, as applicable,
or any applicable securities law, and (iii) the Company may
give related instructions to its transfer agent, if any, to stop
registration of the transfer of the shares of Stock purchased under
this Option.
7.
Employment Relationship . For purposes of this
Agreement, Employee shall be considered to be in the employment of
the Company as long as Employee remains an employee of either the
Company, an Affiliate, or a corporation or a parent or subsidiary
of such corporation assuming or substituting a new option for this
Option. Without limiting the scope of the preceding sentence, it is
expressly provided that Employee shall be considered to
have
terminated
employment with the Company at the time of the termination of the
“Affiliate” status under the Plan of the entity or
other organization that employs Employee. Any question as to
whether and when there has been a termination of such employment,
and the cause of such termination, shall be determined by the
Committee (or its delegate) and its determination shall be
final.
8.
Surrender of Option . At any time and from time to
time prior to the termination of this Option, Employee may
surrender all or a portion of this Option to the Company for no
consideration by providing written notice to the Company at its
principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the
Company as the Company may designate from time to time). Such
notice shall specify the number of shares with respect to which
this Option is being surrendered and, if this Option is being
surrendered with respect to less than all of the shares then
subject to this Option, then such notice shall also specify the
date upon which this Option became (or would become) exercisable in
accordance with Paragraph 3 with respect to the shares being
surrendered.
9.
Acknowledgements Regarding Section 409A of the
Code . Employee understands that if the purchase price of
the Stock under this Option is less than the fair market value of
such Stock on the date of grant of this Option, then Employee may
incur adverse tax consequences under section 409A of the Code.
Employee acknowledges and agrees that (a) Employee is not
relying upon any determination by the Company, its Affiliates, or
any of their respective employees, directors, officers, attorneys
or agents (collectively, the “Company Parties”) of the
fair market value of the Stock on the date of grant of this Option,
(b) Employee is not relying upon any written or oral statement
or representation of the Company Parties regarding the tax effects
associated with Employee’s execution of this Agreement and
Employee’s receipt, holding and exercise of this Option, and
(c) in deciding to enter into this Agreement, Employee is
relying on Employee’s own judgment and the judgment of the
professionals of Employee’s choice with whom Employee has
consulted. Employee hereby releases, acquits and forever discharges
the Company Parties from all actions, causes of actions, suits,
debts, obligations, liabilities, claims, damages, losses, costs and
expenses of any nature whatsoever, known or unknown, on account of,
arising out of, or in any way related to the tax effects associated
with Employee’s execution of this Agreement and
Employee’s receipt, holding and exercise of this
Option.
10.
Binding Effect . This Agreement shall be binding upon
and inure to the benefit of any successors to the Company and all
persons lawfully claiming under Employee.
11.
Entire Agreement . This Agreement constitutes the
entire agreement of the parties with regard to the subject matter
hereof, and contains all the covenants, promises, representations,
warranties and agreements between the parties with respect to the
Option granted hereby; provided, however, that the terms of this
Agreement shall not modify and shall be subject to the terms and
conditions of any employment and/or severance agreement between the
Company (or an Affiliate) and the Employee in effect as of the date
a determination is to be made under this Agreement. Without
limiting the scope of the preceding sentence, except as provided
therein, all prior understandings and agreements, if any, among the
parties hereto relating to the subject matter hereof are hereby
null and void and of no further force and effect.
Any
modification of this Agreement shall be effective only if it is in
writing and signed by both Employee and an authorized officer of
the Company.
12.
Governing Law . This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Texas,
without regard to conflicts of laws principles
thereof.
IN WITNESS
WHEREOF , the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above
written.
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CONCHO
RESOURCES INC .
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By:
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Steven L. Beal,
President
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Employee’s
spouse, if any, is fully aware of, understan
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