December 23, 2005
Mr. Douglas H. Miller
Chairman and Chief Executive Officer
Exco Resources, Inc.
12377 Merit Drive, Suite 1700, LB 82
Dallas, Texas 75251
Re: Exco Resources, Inc.
Registration Statement on Form S-1
Filed November 23, 2005
File No. 333-129935
Dear Mr. Miller:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Form S-1
General
1. Many of our comments apply to disclosure that appears in more
than
one place. To eliminate the need for us to issue repetitive
comments, please make corresponding changes to all affected
disclosure throughout your document.
2. Provide current and updated disclosure with each amendment.
For
example, update the status of your expectation to have your common
stock quoted on the New York Stock Exchange. Also, provide
updated
accountants` consents with each amendment.
In this regard, please note that we will need time to review all
new
disclosure, including any additional proposed artwork or graphics,
prior to completing our examination. Similarly, we will need time
to
review all omitted exhibits, including the underwriting agreement.
To expedite the review process, please provide all this
information
and all these documents promptly. We may have additional
comments.
Cover page
3. Please remove any identification of "joint book running
managers"
on the cover page. You may disclose this information on the back
cover of the document.
Summary, page 1
4. Please eliminate the suggestion that you only provide an
"overview
of selected information." Rather, make clear that this section
summarizes all material information contained in your prospectus.
5. Provide us with objective support for subjective and
comparative
statements you make throughout your disclosure. This is not a
complete list, but examples of assertions that require support or
further clarification include the following:
* "[w]e are a rapidly growing independent oil and natural gas
company...";
* "[w]e expect to continue to grow by leveraging our management
team`s experience and expertise, exploiting our multi-year
inventory
of low-risk drilling locations and exploitation projects, and...";
and
* "[o]ur assets are characterized by long reserve lives, high
drilling success rates, high natural gas concentration, and
established histories of production."
Provide support for the basis of the beliefs regarding how your
business is differentiated from that of your competitors. We may
have further comments.
6. Revise to provide a balanced overview of your business. In
this
regard, we note that you make numerous statements about your
business
strategy and competitive strengths but you do not reference the
challenges and material risks you face, such as your operations`
reliance principally on supporting gas drilling versus oil
drilling
or the risk you face due to exposure to competition from new
entrants
and established companies in your field. Briefly discuss in this
section the more significant risks that may impact your operations
and future plans.
7. You repeat much of this section in the Business section.
Revise
this section to summarize and highlight the principal aspects of
your
business and eliminate repetitive disclosure.
Summary of Geographic Areas of Operation, page 2
8. Please expand your PV-10 disclosure to discuss how you define
your
pretax PV-10 value, how you utilize such value, and the reasons
you
believe it is useful to readers, in order to comply with the
guidance
in Item 10(e)(1)(i) of Regulation S-K. Additionally, please show
a
reconciliation of your PV-10 non-GAAP measure to the most directly
comparable GAAP based measure, presumably the standardized measure
of
discounted future net cash flows per SFAS 69.
Summary Operating Data, page 11
9. Please re-label your Historical columns and revise your
disclosure
in footnote (1) to clarify that the information presented reflects
either "historical continuing operations," "pro forma excluding
discontinued operations," or similar language to further emphasize
that such information differs from that of the entity prior to the
sale of Addison.
Risk Factors, page 13
10. Many of your risk factors could apply to any company in your
industry. To assist investors` understanding of the unique risks
to
which your business is exposed, please review your risk factor
discussion and revise where necessary to tailor your discussion.
For
example, please make clear how the risks arising from each of your
acquisitions impacts you specifically.
11. Revise risk factor subheadings so that they clearly identify
the
risk to be discussed. Several of your risk factor captions are
too
vague and generic to adequately describe the risk that follows.
For
example, simply stating "Our revenue depends on oil and natural
gas
prices, which fluctuate" and "We cannot control the development of
the properties we own but do not operate" does not disclose the
resulting risk of harm to investors. Revise to provide captions
that
concisely identify the risk. Also, eliminate references such as
"no
guarantee," "no assurance" and "not certain," instead stating the
risk plainly and directly.
12. Eliminate language that tends to mitigate the risk you
discuss.
Examples include clauses that begin "although" or "while," such as
the first sentence under "There are inherent limitations...," the
last sentence under "We may be unable to overcome risks associated
with our drilling activity" and the last sentence on page 21.
Instead, focus on the underlying risk and the harm that could
result.
You may provide other details later in your document.
Risks relating to our indebtedness, page 22
13. Advise us of the consideration given to including a risk
factor
explaining that a majority of the proceeds from this offering will
be
used to repay debt and therefore you do not expect to have
proceeds
to expand or invest in your business.
14. Provide quantification if it helps put these risks in context.
For example, we note that the borrowings under the TXOK credit
facility is structured under floating rate terms. Provide an
example
of how an increase in interest rates would impact your interest
expense and reduce your operating cash flows.
Information regarding forward-looking statements, page 28
15. The safe harbor for forward-looking statements provided in the
Private Securities Litigation Reform Act of 1995 does not apply to
statements made in connection with an initial public offering.
See
Securities Act Section 27A(b)(2)(D) and Exchange Act Section
21E(b)(2)(D). Therefore, please delete the reference to the safe
harbor or state explicitly that the safe harbor protections it
provides do not apply to statements made in connection with the
offer.
16. Eliminate the suggestion that "will" identifies forward-
looking
statements.
Use of Proceeds, page 30
17. Disclose in necessary detail how you intend to use the
remainder,
if any, and quantify the amount the remainder represents.
18. Please revise the table to make how the proceeds of this
offering
will be used and show the portions each source contributes to each
use.
Unaudited Pro Forma Financial Data, page 45
19. Please add a sub-section under this header and resituate
disclosure about any non-recurring items excluded from your pro
forma
financial statements that will affect your results of operations
within the next 12 months.
20. If actual interest rates in the transaction may differ from
those
underlying your interest expense adjustments, please disclose in
footnote(s) the effect on pro forma income of a 1/8 percent
variance
in interest rates.
21. We note your disclosure under points (a) and (s) on pages 58
and
60, discussing the pro forma adjustments to address the difference
between the full cost method of accounting for your oil and gas
properties that you will be using, and the successful efforts
methodology used by both ONEOK Energy Resources Company, and North
Coast Energy, Inc. Please expand your disclosure to address any
other differences between these two methods that may have
generated
differences in the past (e.g. the approach taken in evaluating
properties for impairment).
Management`s Discussion and Analysis..., page 61
Overview, page 61
22. Consider revising your overview to identify the material
opportunities, challenges and risks on which management is most
focused, both on a short and long-term basis. Please refer to FRC
501.12 and Release No. 34-48960 for additional guidance.
23. Please revise your disclosure to clarify whether you will have
sufficient capital to fund your operations for the next 12 months.
Results of Operations, page 68
24. When you attribute changes in significant items to more than
one
factor or element, breakdown and quantify the impact of each
factor
or element. For example, you list three primary reasons for the
increases in your oil and natural gas operating costs from 2003 to
2004. If known or practicable, please breakdown and quantify the
impact each of those factors had on your increases in costs.
Please
refer to FRC Section 501.04 for further guidance.
25. We note that your results of operations contain successor
operations for 2004, a combination of successor and predecessor
operations for 2003, and predecessor operations for 2002.
Ordinarily
we find that the application of purchase accounting inhibits a
meaningful comparison of historical results, before and after the
transaction. In other words, the discussion and analysis of the
successor and predecessor financial information should be
distinct.
Tell us the reasons you believe that comparing the combined
results
for 2003 to 2002 and 2004 is sufficiently meaningful to outweigh
the
drawbacks of an analysis of entities having different cost bases
in
net assets. Also, please explain how you would convey the effects
of
having applied purchase accounting in comparing these results from
period to period, in your disclosure.
26. We note your tabular presentation on page 75, indicating that
during the nine months ended September 30, 2005, you incurred
$177.3
million in losses from your commodity price risk management
activities. We understand from your disclosure on page 77 that
for
the nine months ended September 30, 2005, 49% and 70% of your oil
and
natural gas production, respectively, were subject to swap
agreements.
Please expand your disclosure to explain whether you intend to
continue your risk management program at 2005 levels, with the
same
strategy, or whether you believe any change in your approach to
managing this effort is warranted, given your recent and
significant
losses from risk management activities.
Business, page 104
Competition, page 118
27. You state that many large oil companies have been actively
marketing some of their existing producing properties for sale to
independent producers. Please disclose any current plans,
proposals
or arrangements to acquire any of these properties.
U.S. environmental regulations, page 120
28. If material, inform us of your potential exposure to and the
dollar amount of reserves established for exposure to
environmental
liabilities. We note that you are unable to predict the ultimate
cost of compliance or the extent of liability risks.
Management, page 128
29. Revise to clarify for each individual the times each office or
title was held during the entire five year period, eliminating all
gaps or ambiguities as to time. For example, it is unclear how
long
Mr. Stephen F. Smith was associated with Sandefer Oil and Gas,
Inc.
prior to joining you. Also, specify the various offices held
during
that period, rather than only referring to "various capacities."
Related party transactions, page 138
30. Disclose whether the transactions you describe were on terms
at
least as favorable to you as could have been obtained through
arm`s
length negotiations with unaffiliated third parties. Also discuss
how you intend to address future potential conflicts of interest,
and
state whether you have any policy regarding the terms of future
transactions with your affiliates.
Underwriting, page 158
31. You state that there are certain exceptions to the 180- day
lock-
up period referenced in the Underwriting section of the
prospectus.
Please clarify the exceptions to which you refer. In this regard,
please disclose whether your underwriters have any present intent
or
any understandings, explicit or otherwise, to release the lock-ups
early. If so, please disclose the factors to be considered in
making
such determination.
32. Rather than referring to "a number of factors" to be
considered,
identify all material factors that will be used to determine the
initial public offering price.
33. If the underwriters will engage in an electronic offer, sale
or
distribution of the shares, please describe their procedures to
us.
34. You indicate that a prospectus in electronic format may be
made
available on the websites maintained by one or more of the
underwriters. Identify the underwriters and the websites. If
agreements exist outlining these arrangements, provide us a copy
of
such agreements and describe their material terms. If you
subsequently enter into any arrangements with a third party to
host
or access your preliminary prospectus on the Internet, promptly
supplement your response and update your disclosure. We may have
further comments.
Where you can find more information, page 165
35. Please revise this section to reflect the SEC`s new address.
Financial Statements - EXCO Resources, Inc. (formerly EXCO
Holdings
II, Inc.), page F-3
Note 1 - Basis of Presentation, Structure, and Business Strategy,
page F-8
36. We note that you valued common stock issued in several
transactions at $7.50 per share, including the issuance of 46.7
million shares of common stock in the equity buyout on October 3,
2005; options granted under the 2005 Incentive Plan to employees
to
purchase approximately 5 million shares of common stock at $7.50
per
share on October 5, 2005; and 3.3 million shares issued to the
Founders of Holdings II on August 12, 2005. Tell us how this
$7.50
per share value compares to your expected offering price.
Financial Statements - EXCO Holdings, Inc., page F-13
Statements of Operations, page F-18
37. Please tell us the extent to which you report in the line item
"Commodity price risk management activities" the income effects of
contracts that physically settled. Clarify whether you have
reported
in line item "Oil and natural gas" revenue the contracts that
settled
at other than the spot market value on the date of settlement.
Financial Statements - ONEOK Energy Resources Company and
Subsidiaries, page F-83
Note A - Summary of Accounting Policies, page F-88
Significant Accounting Policies, page F-90
38. Please clarify in the Consolidation policy disclosure whether
ONEOK Energy`s wholly-owned subsidiaries include ONEOK Energy LLC.
Financial Statements - TXOK Acquisition, Inc., page F-101
General
39. We understand from your disclosure on page 46 that you view
ONEOK
Energy Resources Company as the predecessor to TXOK Acquisition,
an
entity that you intend to acquire by funding the redemption of its
voting preferred stock with proceeds of the offering. Please
submit
the analysis that you performed in determining that the financial
statements of TXOK Acquisition, Inc. would not need to be audited
to
comply with Rules 3-05, 3-01(a) and 3-02(a) of Regulation S-X.
Engineering Comments
Summary, page 1
Summary of Geographic Areas of Operation, page 2
40. Provide disclosure for the number of acres that are expiring
in
each of the next three years, if material, and the areas they are
located.
41. In footnote 1 you state that the reserves were prepared by
your
internal engineers and audited by Lee Keeling & Associates, an
independent petroleum engineering firm. Explain what you mean by
the
term "audited" i.e. tell us what tasks the firm performed. Tell
us
the differences in reserve volumes between your internal engineers
and those estimated by Lee Keeling on an area- by-area basis.
Business, page 104
Our Company, 104
42. Tell us what percentage of your reserves are proved developed
non-producing and disclose this amount, if material.
Our Competitive Strengths, page 106
43. You state that one of your competitive strengths in the areas
you
operate is predictable finding costs. Please tell us how you can
predict finding costs in any area or alternatively, remove this
claim
from the filing. We note that we could not find any exploration
costs in your document.
ONEOK Energy Resources - Notes to Consolidated Financial
Statements,
page F-88
Supplemental Oil and Gas Reserve Information (unaudited), page F-
98
44. We note the three consecutive years of negative reserve
revisions
of 14.2%, 10.7% and 9.5% when prices were rising. Please explain
these revisions and why the current reserves should not be lower
than
reported, based on the past history of material revisions, and in
spite of the fact that a third-party engineer audited your reserve
estimates.
TXOK Acquisition, page F-105
Supplemental Information Relating to Oil and Natural Gas Producing
Activities, page F-118
45. Please explain the small amount of production from the 185
BCFe
of proved developed reserves during the time you owned them in
2005.
Even when this amount is annualized, the reserve-production ratio
appears to be much larger than typical proved developed reserves.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under
the Securities Act of 1933 and that they have provided all
information investors require for an informed investment decision.
Since the company and its management are in possession of all
facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact Lily Dang at (202) 551-3867 or Karl Hiller,
Branch Chief, at (202) 551-3686 if you have questions regarding
comments on the financial statements and related matters. Please
contact James Murphy, Petroleum Engineer, at (202) 551-3703 if you
have any questions regarding comments on the engineering matters.
Please contact Jason Wynn at (202) 551-3756 or me at (202) 551-
3685
with any other questions. Direct all correspondence to the
following
ZIP code: 20549-7010.
Sincerely,
Tangela Richter
Branch Chief
cc: L. Dang
K. Hiller
J. Wynn
J. Murphy
via facsimile
William L. Boeing
Haynes and Boone, LLP
(972) 680-7551
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Mr. Douglas H. Miller
Exco Resources, Inc.
December 23, 2005
page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF CORPORATION FINANCE
MAIL STOP 7010