UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 6)*

EXCO Resources, Inc.

Common Stock, par value $0.001 per share

269279402

 

August 30, 2011

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box  ¨ 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

(1)     WL Ross & Co. LLC is the investment manager of WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”), WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”), WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”), WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”), WLR/GS Master Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”) and WLR IV Parallel ESC, L.P. (“Parallel Fund”).  Fund IV AIV I holds directly 6,127,505 shares of common stock of the Issuer, Fund IV AIV II holds directly 6,125,959 shares of common stock of the Issuer, Fund IV AIV III holds directly 6,127,291 shares of common stock of the Issuer, Co-Invest Fund AIV holds directly 6,784,461 shares of common stock of the Issuer; WLR/GS Fund AIV holds directly 1,547,037 shares of common stock of the Issuer and Parallel Fund holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Select Associates LLC and WLR Master Co-Investment GP, LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), Fund IV AIV I, Fund IV AIV II and Fund IV AIV III.  WLR Select Associates LLC is the general partner of WLR Select Co-Investment, L.P. (“Co-Invest Fund”) and Co-Invest Fund AIV.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Co-Investment, L.P. (“WLR/GS Fund”) and WLR/GS Fund AIV.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WL Ross & Co. LLC may be deemed to share voting and dispositive power with (i) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV I; (ii) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV II; (iii) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV III; (iv) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Select Associates LLC over the shares held by Co-Invest Fund AIV; (v) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the shares held by WLR/GS Fund AIV and (vi) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the shares held by Parallel Fund.

 

 

 

(1)     WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”) holds directly 6,127,505 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of Fund IV AIV I.  WL Ross & Co. LLC is the investment manager of Fund IV AIV I.

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC may be deemed to share voting and dispositive power over the shares held by Fund IV AIV I.

 

(1)     WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) holds directly 6,125,959 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of Fund IV AIV II.  WL Ross & Co. LLC is the investment manager of Fund IV AIV II. 

 

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC may be deemed to share voting and dispositive power over the shares held by Fund IV AIV II.

 

(1)     WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”) holds directly 6,127,291 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of Fund IV AIV III.  WL Ross & Co. LLC is the investment manager of Fund IV AIV III.

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC may be deemed to share voting and dispositive power over the shares held by Fund IV AIV III.

 

 

 

 

 

(1)     WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”) holds directly 6,784,461 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Select Associates LLC.  WLR Select Associates LLC is the general partner of Co-Invest Fund AIV.  WL Ross & Co. LLC is the investment manager of Co-Invest Fund AIV.

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Select Associates LLC may be deemed to share voting and dispositive power over the shares held by Co-Invest Fund AIV.

 

 

 

 

(1)     WLR/GS Master Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”) holds directly 1,547,037 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Master Co-Investment GP, LLC.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Fund AIV.  WL Ross & Co. LLC is the investment manager of WLR/GS Fund AIV.

 

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC may be deemed to share voting and dispositive power over the shares held by WLR/GS Fund AIV.

 

 

(1)     WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”), WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”). WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the shares held by Parallel Fund.

 

 

(1)     WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”), WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”). WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the shares held by Parallel Fund.

 

 

(1)     WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”), WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”). WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the shares held by Parallel Fund.

 

 

(1)     WLR/GS Master Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”)  holds directly 1,547,037 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Master Co-Investment GP, LLC.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Fund AIV.  WL Ross & Co. LLC is the investment manager of WLR/GS Fund AIV.

 

          Accordingly, WLR Master Co-Investment GP, LLC may be deemed to share voting and dispositive power with WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group, L.P. over the shares held by WLR/GS Fund AIV.

 

 

(1)     WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”) holds directly 6,784,461 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Select Associates LLC.  WLR Select Associates LLC is the general partner of Co-Invest Fund AIV.  WL Ross & Co. LLC is the investment manager of Co-Invest Fund AIV.

 

          Accordingly, WLR Select Associates LLC may be deemed to share voting and dispositive power with WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group, L.P. over the shares held by Co-Invest Fund AIV.

 

 

(1)     WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”) holds directly 6,127,505 shares of common stock of the Issuer, WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) holds directly 6,125,959 shares of common stock of the Issuer and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”) holds directly 6,127,291 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC.  WLR Recovery Associates IV LLC is the general partner of Fund IV AIV I, Fund IV AIV II and Fund IV AIV III.  WL Ross & Co. LLC is the investment manager of Fund IV AIV I, Fund IV AIV II, Fund IV AIV III and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of WLR IV Parallel ESC, L.P. (“Parallel Fund”), which holds directly 69,724 shares of common stock of the Issuer.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WLR Recovery Associates IV LLC may be deemed to share voting and dispositive power with (i) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group, L.P. over the shares held by Fund IV AIV I; (ii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group, L.P. over the shares held by Fund IV AIV II; (iii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group, L.P. over the shares held by Fund IV AIV III and (iv) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the shares held by Parallel Fund.

 

 

(1)     WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”) holds directly 6,127,505 shares of common stock of the Issuer, WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) holds directly 6,125,959 shares of common stock of the Issuer and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”) holds directly 6,127,291 shares of common stock of the Issuer, WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”) holds directly 6,784,461 shares of common stock of the Issuer, WLR/GS Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”) holds directly 1,547,037 shares of common stock of the Issuer and WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Select Associates LLC and WLR Master Co-Investment GP, LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), Fund IV AIV I, Fund IV AIV II and Fund IV AIV III.  WLR Select Associates LLC is the general partner of Co-Investment, L.P. (“Co-Invest Fund”) and Co-Invest Fund AIV.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Co-Investment, L.P. (“WLR/GS Fund”) and WLR/GS Fund AIV.  WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund, Co-Invest Fund AIV, WLR/GS Fund, WLR/GS Fund AIV and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, WL Ross Group, L.P. may be deemed to share voting and dispositive power with (i) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV I; (ii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV II; (iii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV III; (iv) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WLR Select Associates LLC over the shares held by Co-Invest Fund AIV; (v) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WLR Master Co-Investment GP, LLC over the shares held by WLR/GS Fund AIV and (vi) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the shares held by Parallel Fund.

 

 

(1)     WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”) holds directly 6,127,505 shares of common stock of the Issuer, WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) holds directly 6,125,959 shares of common stock of the Issuer and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”) holds directly 6,127,291 shares of common stock of the Issuer, WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”) holds directly 6,784,461 shares of common stock of the Issuer, WLR/GS Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”) holds directly 1,547,037 shares of common stock of the Issuer and WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Select Associates LLC and WLR Master Co-Investment GP, LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), Fund IV AIV I, Fund IV AIV II and Fund IV AIV III.  WLR Select Associates LLC is the general partner of Co-Investment, L.P. (“Co-Invest Fund”) and Co-Invest Fund AIV.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Co-Investment, L.P. (“WLR/GS Fund”) and WLR/GS Fund AIV.  WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund, Co-Invest Fund AIV, WLR/GS Fund, WLR/GS Fund AIV and Parallel Fund. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, El Vedado, LLC may be deemed to share voting and dispositive power with (i) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV I; (ii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV II; (iii) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV III; (iv) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P. and WLR Select Associates LLC over the shares held by Co-Invest Fund AIV; (v) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the shares held by WLR/GS Fund AIV and (vi) WL Ross & Co. LLC, Wilbur L. Ross, Jr., WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the shares held by Parallel Fund.

 

 

(1)     WLR Recovery Fund IV XCO AIV I, L.P. (“Fund IV AIV I”) holds directly 6,127,505 shares of common stock of the Issuer, WLR Recovery Fund IV XCO AIV II, L.P. (“Fund IV AIV II”) holds directly 6,125,959 shares of common stock of the Issuer and WLR Recovery Fund IV XCO AIV III, L.P. (“Fund IV AIV III”) holds directly 6,127,291 shares of common stock of the Issuer, WLR Select Co-Investment XCO AIV, L.P. (“Co-Invest Fund AIV”) holds directly 6,784,461 shares of common stock of the Issuer, WLR/GS Co-Investment XCO AIV, L.P. (“WLR/GS Fund AIV”) holds directly 1,547,037 shares of common stock of the Issuer and WLR IV Parallel ESC, L.P. (“Parallel Fund”) holds directly 69,724 shares of common stock of the Issuer.  Wilbur L. Ross, Jr. is the Chairman and Chief Executive Officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC, the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Select Associates LLC and WLR Master Co-Investment GP, LLC.  WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. (“Fund IV”), Fund IV AIV I, Fund IV AIV II and Fund IV AIV III.  WLR Select Associates LLC is the general partner of Co-Investment, L.P. (“Co-Invest Fund”) and Co-Invest Fund AIV.  WLR Master Co-Investment GP, LLC is the general partner of WLR/GS Co-Investment, L.P. (“WLR/GS Fund”) and WLR/GS Fund AIV.  WL Ross & Co. LLC is the investment manager of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund, Co-Invest Fund AIV, WLR/GS Fund, WLR/GS Fund AIV and Parallel Fund.  Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which is in turn the general partner of Parallel Fund.  INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have agreed that Parallel Fund will make investments on a pro rata basis in parallel with Fund IV.

 

          Accordingly, Wilbur L. Ross, Jr. may be deemed to share voting and dispositive power with (i) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV I; (ii) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV II; (iii) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the shares held by Fund IV AIV III; (iv) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Select Associates LLC over the shares held by Co-Invest Fund AIV; (v) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the shares held by WLR/GS Fund AIV and (vi) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the shares held by Parallel Fund.

 

 

Item 1.  Security and Issuer

This Amendment No. 6 (this “Amendment No. 6”) amends the Statement on Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on December 10, 2010, as amended by Amendment No. 1 (“Amendment No. 1”) to the Statement on Schedule 13D filed with the SEC on January 25, Amendment No. 2 (“Amendment No. 2”) to the Statement on Schedule 13D filed with the SEC on January 27, 2011, Amendment No. 3 (“Amendment No. 3”) to the Statement on Schedule 13D filed with the SEC on February 4, 2011, Amendment No. 4 (“Amendment No. 4”) to the Statement on Schedule 13D filed with the SEC on July 28, 2011 and Amendment No. 5 (“Amendment No. 5”) to the Statement on Schedule 13D filed with the SEC on August 8, 2011 (as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and this Amendment No. 6, the “Schedule 13D”), and relates to the common stock, par value $0.001 per share (the “Common Stock”), of EXCO Resources, Inc., a Texas corporation (the “Issuer”).  The Issuer’s principal executive offices are located at 12377 Merit Drive, Suite 1700, LB 82, Dallas, TX 75251.

Except as specifically provided herein, this Amendment No. 6 does not modify any of the information previously reported on the Schedule 13D.  Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Schedule 13D.

Item 3.      Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby amended and restated as follows:

The 26,781,977 shares of Common Stock reported herein by the Reporting Persons were acquired for an aggregate purchase price of approximately $470,707,450 (excluding brokerage commissions). The shares of Common Stock that are reported on this Schedule 13D were acquired with cash from the limited partners of Fund IV, Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund, Co-Invest Fund AIV, WLR/GS Fund, WLR/GS Fund AIV and Parallel Fund.

Item 4.  Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended and restated as follows:

On July 27, 2011, the Reporting Persons entered into a standstill agreement (the “Prior Standstill Agreement”) with the Issuer and a Special Committee of the Board of Directors of the Issuer (the “Special Committee”).  Pursuant to the Prior Standstill Agreement, from the date of execution of the Prior Standstill Agreement until the closing of trading on the New York Stock Exchange on February 3, 2013 (the “Prior Standstill Period”), the Reporting Persons were not permitted to acquire any outstanding equity securities of the Issuer that would cause the Reporting Persons and their affiliates to beneficially own in the aggregate twenty percent (20%) or more of the Issuer’s outstanding equity securities and were subject to certain other restrictions with respect to actions regarding the Issuer and its securities.

On August 22, 2011, the Issuer publicly announced that it was accelerating the expiration date of its previously adopted shareholder rights plan (the “Current Rights Plan”) from the close of business on January 24, 2012 to the close of business on September 30, 2011, and that it would afford parties who had previously entered into confidentiality agreements containing standstill provisions the opportunity to enter into new agreements that would permit the purchase of additional shares of the Issuer's Common Stock, which agreements would expire on September 30, 2011.

In connection with the process announced by the Issuer, the Reporting Persons on August 30, 2011 entered into a revised standstill agreement (the “Revised Standstill Agreement”) with the Issuer.  Pursuant to the Revised Standstill Agreement, from the date of execution of the Revised Standstill Agreement until the closing of trading on the New York Stock Exchange on September 30, 2011 (the “Revised Standstill Period”), the Reporting Persons may not acquire any outstanding equity securities of the Issuer that would cause the Reporting Persons and their affiliates to beneficially own in the aggregate twenty percent (20%) or more of the Issuer’s outstanding equity securities (the 20% Limitation”).  The Revised Standstill Agreement also provides that the Issuer may not modify or amend the Current Rights Plan, or adopt any rights plan in the future, that would limit the Reporting Persons’ ability to beneficially own an amount of the Issuer’s outstanding equity securities up to the 20% Limitation.  The Revised Standstill Agreement supersedes the Prior Standstill Agreement in its entirety. 

In addition, during the Revised Standstill Period, the Revised Standstill Agreement restricts the Reporting Persons from, among other things and subject to certain exceptions, (i) acquiring or offering to acquire an amount of the Issuer’s Common Stock that would exceed the 20% Limitation or any other rights or interests that would increase the aggregate economic or voting interest of the Reporting Persons and their affiliates in the Issuer in excess of the 20% Limitation, (ii) making any offers to acquire a majority of the voting or other equity securities of the Issuer or a majority of the assets of the Issuer, or engaging in any other transactions that would result in a change of control of the Issuer (a “Control Transaction”); (iii) entering into agreements or arrangements, or joining or forming any groups, for the purpose of acquiring, holding, voting or disposing of the Issuer’s equity securities or to otherwise act in concert with respect to the Issuer’s equity securities; (iv) soliciting proxies for the voting of Issuer securities in connection with any Control Transaction; (v) making any director nomination or shareholder proposal with respect to the Issuer; (vi) soliciting proxies to vote in favor of the election of any candidate for election to the Issuer’s board nominated by any party other than the Issuer; (vii) advising, assisting, encouraging or providing financing to any other person or group, or joining any such group, that is undertaking any of the foregoing actions, (viii) publicly disclosing any intention to take any of the foregoing actions; (ix) taking any action that would require the Issuer to make any public disclosure regarding any of the foregoing actions or in response thereto; or (x) publicly requesting the Issuer to amend any of the aforementioned provisions of the Revised Standstill Agreement. 

 

The foregoing description of the Revised Standstill Agreement is qualified in its entirety by the Revised Standstill Agreement, a copy of which is attached hereto as Exhibit 99.4 and is incorporated herein by reference.  

Without limiting the foregoing, the Reporting Persons reserve the right to exercise any and all of their rights in a manner consistent with their equity interests, contractual rights and restrictions and other duties, if any, including the Revised Standstill Agreement.  Each of the Reporting Persons reserves the right (in each case, subject to any applicable restrictions under law) to, from time to time and as permitted by the Revised Standstill Agreement, (i) purchase or otherwise acquire additional shares of Common Stock, or other securities or interests of the Issuer or of subsidiaries of the Issuer, or instruments convertible into or exercisable for any such securities (collectively, “Issuer Securities”), in the open market, in privately negotiated transactions or otherwise, (ii) sell, transfer or otherwise dispose of Issuer Securities in public or private transactions, (iii) cause Issuer Securities to be distributed in kind to its investors, (iv) acquire or write options contracts, or enter into derivatives or hedging transactions, relating to Issuer Securities, and/or (v) engage in or encourage communications with, directly or through intermediaries, the Issuer, members of management, the Board, other existing or prospective security holders, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, sources of credit and other investors to consider exploring (A) extraordinary corporate transactions (including transactions in which the Reporting Persons and/or its affiliates may be proposed as acquirers) or sales or acquisitions of assets or businesses, (B) changes to the Issuer’s capitalization or dividend policy, (C) other changes to the Issuer’s business or structure or (D) one or more of the other actions described in paragraphs (a) through (j) of Item 4 of Schedule 13D.

Except as set forth in this Schedule 13D, none of the Reporting Persons, nor, to the best of their knowledge, any of the other persons identified in response to Item 2, presently has any additional plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.  Notwithstanding anything contained herein, the Reporting Persons specifically reserve the right to change their intentions with respect to any or all of the matters referred to in this Schedule 13D.

Item 5.      Interest in Securities of the Issuer

Items 5(a), (b) and (c) of the Schedule 13D are hereby amended and restated as follows:

(a) – (b) As of the close of business on August 31, 2011, the Reporting Persons beneficially own, in the aggregate, a total of 26,781,977 shares of Common Stock, which represent approximately 12.5% of the Issuer’s outstanding Common Stock. Fund IV AIV I holds directly 6,127,505 shares of Common Stock, representing approximately 2.9% of the outstanding shares of Common Stock, Fund IV AIV II holds directly 6,125,959 shares of Common Stock, representing approximately 2.9% of the outstanding shares of Common Stock, Fund IV AIV III holds directly 6,127,291 shares of Common Stock, representing approximately 2.9% of the outstanding shares of Common Stock, Co-Invest Fund AIV holds directly 6,784,461 shares of Common Stock, representing approximately 3.2% of the outstanding shares of Common Stock, WLR/GS Fund AIV holds directly 1,547,037 shares of Common Stock, representing approximately 0.7% of the outstanding shares of Common Stock and Parallel Fund holds directly 69,724 shares of Common Stock, representing approximately 0.03% of the outstanding shares of Common Stock. As of the close of business on August 31, 2011, the number of shares of Common Stock as to which each of the Reporting Persons has or shares voting or dispositive authority is set forth in rows 7 through 10 of each of the inside cover pages to this Schedule 13D relating to each such Reporting Person (which are incorporated by reference into this Item 5 by reference). All percentages set forth in this paragraph are based on 214,051,219 shares of Common Stock outstanding as of July 27, 2011, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the Issuer’s fiscal quarterly period ended June 30, 2011.

 

Except for Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund AIV, WLR/GS Fund AIV and Parallel Fund, each of the Reporting Persons disclaims beneficial ownership of the securities referred to in this Schedule 13D, and the filing of this Schedule 13D should not be construed as an admission that any of the Reporting Persons is, for the purpose of Schedule 13D or 13G of the Securities Exchange Act of 1934, as amended, the beneficial owner of any securities covered by this statement. Fund IV AIV I, Fund IV AIV II, Fund IV AIV III, Co-Invest Fund AIV, WLR/GS Fund AIV and Parallel Fund each disclaim beneficial ownership of the shares held directly by the other.

(c) No Reporting Person has effected any transaction in shares of Common Stock since Amendment No. 5, except as set forth in the attached Schedule I.

Item 6.      Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended by:

(i) adding the following at the end thereof:  “The information set forth in response to this Item 6 is qualified in its entirety by reference to the Revised Standstill Agreement, which is incorporated herein by reference.”

(ii) deleting the sentence from Item 6 of Amendment No. 4 which reads as follows:  “The information set forth in response to this Item 6 is qualified in its entirety by reference to the Standstill Agreement, which is incorporated herein by reference.”

In all other respects, Item 6 remains unchanged.             

Item 7.  Material to be Filed As Exhibits.

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated:  August 31, 2011

WL ROSS & CO. LLC

By:         /s/ Wilbur L. Ross, Jr.                                         
Name:  Wilbur L. Ross, Jr.
its Managing Member

WLR RECOVERY FUND IV, L.P.

By:         WLR Recovery Associates IV LLC,
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR RECOVERY FUND IV XCO AIV I, L.P.

By:         WLR Recovery Associates IV LLC,
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,

                its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

 

WLR RECOVERY FUND IV XCO AIV II, L.P.

By:         WLR Recovery Associates IV LLC,
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR RECOVERY FUND IV XCO AIV III, L.P.

By:         WLR Recovery Associates IV LLC,
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR SELECT CO-INVESTMENT, L.P.

By:         WLR Select Associates LLC
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

 

WLR SELECT CO-INVESTMENT XCO AIV, L.P.

By:         WLR Select Associates LLC
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR/GS MASTER CO-INVESTMENT, L.P.

By:         WLR Master Co-Investment GP, LLC

                its General Partner

By:         WL Ross Group, L.P.,

                its Managing Member

By:         El Vedado, LLC,

                its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR/GS MASTER CO-INVESTMENT XCO AIV, L.P.

By:         WLR Master Co-Investment GP, LLC
its General Partner

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC,
its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

 

WLR IV PARALLEL ESC, L.P.

By:         INVESCO WLR IV ASSOCIATES LLC
its General Partner

By:         INVESCO Private Capital, Inc.
its Managing Member

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.

                its Chief Executive Officer

WLR RECOVERY ASSOCIATES IV LLC

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC, its General Partner

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR SELECT ASSOCIATES LLC

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC, its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WLR MASTER CO-INVESTMENT GP, LLC

By:         WL Ross Group, L.P.,
its Managing Member

By:         El Vedado, LLC, its General Partner

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

INVESCO PRIVATE CAPITAL, INC.

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.

                its Chief Executive Officer

 

INVESCO WLR IV ASSOCIATES LLC

By:         INVESCO Private Capital, Inc.
its Managing Member

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross

                its Chief Executive Officer

WL ROSS GROUP, L.P.

By:         El Vedado, LLC, its General Partner

 

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

EL VEDADO, LLC

By:         /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.,

                its Managing Member

WILBUR L. ROSS, JR.

 

                /s/ Wilbur L. Ross, Jr.                                         

                Wilbur L. Ross, Jr.

 

EXHIBIT INDEX

 

 

Schedule I

 

Transactions in Shares of Common Stock by Reporting Persons

 

 

*              The number of securities reported represents an aggregate number of shares purchased in multiple open market transactions over a range of purchase prices.

 

**           The price reported represents the weighted average price (excluding brokerage commissions).  Each of the Reporting Persons undertakes to provide the staff of the SEC, the Issuer or a stockholder of the Issuer, upon request, the number of shares purchased by such Reporting Person at each separate price within the range.

STANDSTILL AGREEMENT

This STANDSTILL AGREEMENT, dated as of August 29, 2011 and effective as of the Effective Date (as defined below) (this “Agreement”), is entered into by and among WL Ross & Co. LLC and the persons set forth on Annex A hereto  (collectively, “Stockholder”), and EXCO Resources, Inc., a Texas corporation (the “Company,” which term shall, for purposes of this Agreement, include its subsidiaries and joint ventures) (each, a “Party” and collectively, the “Parties”). 

W I T N E S S E T H: 

WHEREAS, the Parties and the Special Committee of the Board of Directors of the Company formed on November 3, 2010 (the “Special Committee”) have previously entered into a Standstill Agreement, dated as of July 27, 2011, addressing certain confidentiality, standstill and other matters (the “Prior Standstill”); 

WHEREAS, the Special Committee has been dissolved;

WHEREAS, the Parties desire to enter into this Agreement to replace and supersede the Prior Standstill in its entirety; and

WHEREAS, this Agreement shall be effective when executed by all Parties as indicated on the signature page hereto (the “Effective Date”). 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement and other consideration, the adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree to replace and supersede the Prior Standstill in its entirety as follows:

1.                  Definitions. 

1.1              The term “affiliate” shall have the meaning ascribed to such term in Rule 12b‑2 promulgated under the Exchange Act; provided, however, that except as used in Section 6.11, “affiliate” shall not include any Excluded Affiliates (as defined in Section 6.11). 

1.2              The term “beneficially own” shall have the meaning ascribed to such term in Rule 13d‑3 promulgated under the Exchange Act.

1.3              The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules promulgated thereunder.

1.4              The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act.

1.5              The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or other entity.

 

 

1.6              The term “proxy” shall have the meaning ascribed to such term in Rule 14a-1 promulgated under the Exchange Act.

1.7              The term “solicitation” shall have the meaning ascribed to such term in Rule 14a‑1 promulgated under the Exchange Act.

1.8              The term “trading day” means a day on which shares are traded in the ordinary course of business on the New York Stock Exchange or such other exchange which is the primary stock exchange on which shares of the Company’s common stock trade.

2.                  Share Ownership. 

2.1              Limitation on Share Ownership.  From the Effective Date until the close of trading on the New York Stock Exchange on September 30, 2011 (the “Standstill Period”), Stockholder and its affiliates shall not acquire any outstanding equity securities of the Company that would cause Stockholder and its affiliates to beneficially own in the aggregate twenty percent (20%) or more of the Company’s outstanding equity securities (the “20% Limitation”); provided, however, that Stockholder shall not be in breach of the 20% Limitation to the extent that its beneficial ownership percentage exceeds the 20% Limitation solely as a result of a reduction in the number of the Company’s outstanding equity securities (whether due to a share buyback, reverse stock split or other transaction).

3.                  Standstill and Related Provisions. 

3.1              Standstill Provisions.  During the Standstill Period, unless expressly authorized in writing to do so by the Board of Directors of the Company (the “Company Board”), Stockholder shall not, and shall cause its affiliates not to, directly or indirectly, acting alone or as part of a group:

(i)                 Acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, (a) an amount of the Company’s common stock that would exceed the 20% Limitation, or (b) any other rights or interests, including without limitation, options, warrants, swaps, derivatives, convertible securities, stock appreciation rights or other rights or instruments, whether real or synthetic, that would increase the aggregate economic or voting interest of Stockholder and its affiliates in the Company in excess of the 20% Limitation;

(ii)               Make, submit or declare any offer, proposal or indication of interest to (a) acquire a majority of the voting or other equity securities of the Company or a majority of the assets of the Company or (b) engage in any other transaction or series of related transactions that would result in a change of control of the Company (a “Control Transaction”); provided, however, that so long as Stockholder complies with Section 3.1(x), Stockholder may confidentially submit to the Company Board proposals to engage in a Control Transaction;

 

 

(iii)             Enter into any agreement, arrangement or understanding, or form, join or in any way participate in any group, with any other person (excluding Stockholder and any investment fund and investment account managed by Stockholder) for the purpose of acquiring, holding, voting or disposing of the Company’s equity securities or to otherwise act in concert with respect to the Company’s equity securities;

(iv)             Make, or in any way participate in, directly or indirectly, any solicitation of proxies or shareholder written consents to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in any way to any Control Transaction;

(v)               Make any director nomination or shareholder proposal with respect to the Company; provided, however, that so long as Stockholder complies with Section 3.1(x), Stockholder may make non-public recommendations to the Company’s Nominating and Corporate Governance Committee with respect to such matters; provided, further,  that the Company’s Nominating and Corporate Governance Committee shall have no obligation to nominate or recommend any candidate requested for nomination or recommendation by Stockholder;

(vi)             Make, or in any way participate in, directly or indirectly, any solicitation of proxies to vote in favor of the election of any candidate for election to the Company Board nominated by any party other than the Company;

(vii)           Advise, assist, encourage or provide financing to any other person or group, or join any group, that is undertaking or seeking to undertake any of the foregoing actions;

(viii)         Publicly disclose any intention to take any of the foregoing actions;

(ix)             Take any action that would require the Company to make any public disclosure regarding any of the foregoing actions or in response thereto; or

(x)               Publicly request the Company to amend any of the foregoing provisions.

3.2              Sale and Voting of Shares; Disclosure Matters.  For the avoidance of doubt, the provisions set forth in Section 3.1 shall not restrict Stockholder’s or its affiliates’ ability to (i) sell or transfer (in whole or in part) or vote (or grant any proxy to vote) any securities of the Company in its sole and absolute discretion or (ii) file or amend any Schedule 13D as legally required (it being understood, however, that this clause (ii) shall not be construed to permit Stockholder or its affiliates to take actions otherwise prohibited by this Agreement).

4.                  Representations and Warranties. 

4.1              Compliance with Laws.  Stockholder represents, warrants and agrees that (i) Stockholder is aware, and that it will advise its affiliates, that federal and state securities laws

 

prohibit any person who has material, non-public information about a company from purchasing or selling securities of such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the person is likely to purchase or sell those securities, and (ii) Stockholder will, and will cause its affiliates to, comply with federal and state securities laws in connection with any purchase of the Company’s securities contemplated by this Agreement.

5.                  Rights Agreement. 

5.1              Qualifying Standstill Agreement.  This Agreement shall constitute a “standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as Rights Agent (as amended from time to time, the “Rights Agreement”).   

5.2              Rights Agreements Amendments.  In the event that any amendments or modifications are made to the Rights Agreement or the Company adopts any subsequent rights agreement, such amendments, modifications or subsequent rights agreements shall not restrict Stockholder’s ability to acquire beneficial ownership of the Company’s outstanding equity securities up to the 20% Limitation as permitted in accordance with the terms of this Agreement.

5.3              Share Ownership by Excluded Affiliates.      Notwithstanding anything in the Rights Agreement to the contrary, for all purposes under the Rights Agreement, Stockholder shall not be deemed an “Affiliate” or an “Associate” (as those terms are used in the Rights Agreement) of any of the Excluded Affiliates, nor shall any of the Excluded Affiliates be deemed to “Beneficially Own” or be the “Beneficial Owner” (as those terms are used in the Rights Agreement) of any of the Company’s outstanding equity securities that are beneficially owned by any Stockholder.  In the event that any amendments or modifications are made to the Rights Agreement or any subsequent rights agreement, such amendment, modification or subsequent rights agreement shall (consistent with the purpose and effect of the preceding sentence) not require or provide that any of the Company’s outstanding equity securities beneficially owned by any of the Excluded Affiliates be aggregated with any of the Company’s outstanding equity securities beneficially owned by any Stockholder or any of its affiliates for purposes of any limitation on equity ownership of the Company, determination of beneficial ownership or triggering event contained therein. This Section 5.3 shall be applicable only to the extent that such Excluded Affiliates are not taking action in connection with Company securities on behalf of, or at the direction of, Stockholder in any way related to the Company.

6.                  Miscellaneous. 

6.1              Breach.  Stockholder shall be responsible for any breach of this Agreement by Stockholder or any of its affiliates of the terms applicable to its affiliates, and Stockholder agrees, at its sole expense, to take all reasonable measures to avoid any breach of this Agreement by any of its affiliates of the terms applicable to its affiliates.  Without limiting the generality of the foregoing, Stockholder agrees that where this Agreement provides that Stockholder shall cause its affiliates to take or refrain from taking certain actions, Stockholder acknowledges and agrees that the failure of such affiliate to take or refrain from taking any such action shall

 

constitute a breach of this Agreement for which Stockholder shall be responsible hereunder.  The foregoing obligation shall not limit the remedies available to the Company for any such breach of this Agreement.

6.2              Modification and Waiver.  This Agreement may be modified or waived only by a separate writing by the Company and Stockholder expressly so modifying or waiving this Agreement.  It is understood and agreed that no failure or delay by the Company or Stockholder in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

6.3              Severability.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction or applicable stock exchange to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

6.4              Entire Agreement.  This Agreement contains the entire agreement between the Company and Stockholder concerning the subject matter hereof and, as of the Effective Date, shall amend, supersede and terminate the Prior Standstill and the letter agreement, dated as of February 3, 2011, addressing certain confidentiality, standstill and other matters, between the Company and Stockholder, in their entirety.

6.5              Remedies.  It is understood and agreed that money damages may not be a sufficient remedy for any breach of this Agreement by Stockholder and its affiliates and, in addition to all other remedies that the Company may have at law or in equity, the Company shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such breach and Stockholder hereby waives any requirement for the securing or posting of any bond in connection with such remedy.

6.6              Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law provisions thereof.  The Parties hereby irrevocably and unconditionally consent to the sole and exclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in the Borough of Manhattan in the City of New York, New York (collectively, the “Appropriate Courts”) for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in an Appropriate Court.  Each of the Parties further agrees that service of any process, summons, notice or document by registered mail to its address set forth in the Prior Standstill shall be effective service of process for any action, suit or proceeding brought against it in any Appropriate Court.

6.7              Assignment; Binding Effect.  Without the prior consent of the other Parties, no Party may assign its rights or obligations (in the case of the Company, other than by operation of law) under this Agreement to any person.  This Agreement shall be binding upon Stockholder

 

and its successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its successors and permitted assigns.

6.8              Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

6.9              Headings.  Headings included in this Agreement are for the convenience of the Parties only and shall be given no substantive or interpretive effect.

6.10          Counterparts; Signatures.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.  This Agreement or any counterpart may be executed and delivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.

6.11          Excluded Parties.  Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement will apply to or restrict (i) any portfolio company of Stockholder, (ii) Invesco Ltd. or any of its affiliates (including any investment account or investment fund managed by Invesco Ltd. or any of its affiliates but excluding, for purposes of this clause (ii), WL Ross & Co. LLC and any investment fund managed by it or its controlled affiliates) (collectively, the “Excluded Affiliates”), but only to the extent that such Excluded Affiliates are not taking action in connection with Company securities on behalf of, or at the direction of, Stockholder in any way related to the Company.

 

(Signature page follows) 

- 6 -

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date indicated below.

 

Executed: August 30, 2011                EXCO RESOURCES, INC.

 

 

                                                            By: /s/ William L. Boeing                               

                                                            Name: William L. Boeing                              

                                                            Title:   Vice President and General Counsel  

 

 

Executed: August 29, 2011                WL ROSS & CO. LLC
                                                            (for itself and each other party set forth on Annex A)  

 

 

                                                            By: /s/ David H. Storper                                

                                                            Name: David H. Storper

                                                            Title:    Senior Managing Director

 

Annex A

 

Parties to the Agreement

 

1.    WLR Recovery Fund IV, L.P.

2.    WLR Recovery Fund IV XCO AIV I, L.P.

3.    WLR Recovery Fund IV XCO AIV II, L.P.

4.    WLR Recovery Fund IV XCO AIV III, L.P.

5.    WLR Select Co-Investment, L.P.

6.    WLR Select Co-Investment XCO AIV, L.P.

7.    WLR/GS Master Co-Investment, L.P.

8.    WLR/GS Master Co-Investment XCO AIV, L.P.

9.    WLR IV Parallel ESC, L.P.

10. WLR Recovery Associates IV LLC

11. WLR Select Associates LLC

12. WLR Master Co-Investment GP, LLC

13. Invesco Private Capital, Inc.

14.  Invesco WLR IV Associates LLC

15. WL Ross Group, L.P.

16. El Vedado, LLC

17. Wilbur L. Ross, Jr.

18. WL Ross Recovery Fund V, L.P. and any entity wholly owned by WL Ross Recovery Fund V, L.P.