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EXHIBIT 99.4
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AUCTION AGENT AGREEMENT
between
EOG RESOURCES, INC.
and
BANKERS TRUST COMPANY
Dated as of December 22, 1999
Relating to
FLEXIBLE MONEY MARKET CUMULATIVE PREFERRED STOCK(R)
(MMP(R)), SERIES C
(Liquidation Preference $100,000 Per Share)
of
EOG RESOURCES, INC.
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(R)Registered trademark of ▇▇▇▇▇▇ Brothers Inc.
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Table of Contents
Page
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I. DEFINITIONS AND RULES OF CONSTRUCTION...........................................................1
1.1. Terms Defined by Reference to Certificate of Designations..............................1
1.2. Terms Defined Herein...................................................................1
1.3. Rules of Construction..................................................................2
II. THE AUCTION.....................................................................................3
2.1. Purpose; Incorporation by Reference of Auction Procedures and Settlement Procedures....3
2.2. Preparation for Each Auction; Maintenance of Registry of Existing Holders..............3
2.3. Intentionally Deleted..................................................................6
2.4. Auction Schedule.......................................................................6
2.5. Notice of Auction Results..............................................................8
2.6. Broker-Dealers.........................................................................8
2.7. Ownership of Shares and Submission of Bids by the Company and its Affiliates...........9
2.8. Access to and Maintenance of Auction Records...........................................9
III. THE AUCTION AGENT AS PAYING AGENT...............................................................9
3.1. The Paying Agent.......................................................................9
3.2. The Company's Notices to the Paying Agent.............................................10
3.3. The Company to Provide Funds for Dividends and Redemptions Payments...................10
3.4. Disbursing Dividends and Redemption Price and Payments................................11
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR...............................................11
4.1. Original Issue of Stock Certificates..................................................11
4.2. Registration of Transfer or Exchange of Shares........................................11
4.3. Removal of Legend.....................................................................12
4.4. Lost, Stolen or Destroyed Stock Certificates..........................................12
4.5. Disposition of Canceled Certificates; Record Retention................................12
4.6. Stock Books...........................................................................13
4.7. Return of Funds.......................................................................13
V. REPRESENTATIONS AND WARRANTIES.................................................................13
5.1. Representations and Warranties of the Company.........................................13
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5.2. Representations and Warranties of the Auction Agent...................................14
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VI. THE AUCTION AGENT..............................................................................15
6.1. Duties and Responsibilities...........................................................15
6.2. Rights of the Auction Agent...........................................................15
6.3. Auction Agent's Disclaimer............................................................16
6.4. Compensation, Expenses and Indemnification............................................16
VII. MISCELLANEOUS..................................................................................17
7.1. Term of Agreement.....................................................................17
7.2. Communications........................................................................17
7.3. Entire Agreement......................................................................18
7.4. Benefits..............................................................................18
7.5. Amendment; Waiver.....................................................................18
7.6. Successors and Assigns................................................................19
7.7. Severability..........................................................................19
7.8. Execution in Counterparts.............................................................19
7.9. Governing Law.........................................................................19
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THIS AUCTION AGENT AGREEMENT dated as of December , 1999, between EOG
RESOURCES, INC., a Delaware corporation (the "Company"), and BANKERS TRUST
COMPANY, a New York banking corporation ("Bankers Trust").
The Company has issued 500 shares of its Flexible Money Market
Cumulative Preferred Stock designated Flexible Money Market Cumulative
Preferred Stock (MMP(R)_), Series C (all with par value $0.01 and a liquidation
preference of $100,000 per share plus an amount equal to accumulated but unpaid
dividends (whether or not declared)), pursuant to the Company's Certificate of
Designations (as defined below). Auctions (as defined below) will be conducted
for the shares of MMP (the "Shares"). The Company desires that Bankers Trust
perform certain duties as agent in connection with each Auction (in such
capacity, the "Auction Agent"), and as the transfer agent, registrar, dividend
disbursing agent and redemption agent with respect to the Shares (in such
capacity, the "Paying Agent"), upon the terms and conditions of this Agreement,
and the Company hereby appoints Bankers Trust as said Auction Agent and Paying
Agent in accordance with those terms and conditions (hereinafter generally
referred to as the "Auction Agent", except in Sections III and IV below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and Bankers Trust agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
I.1. Terms Defined by Reference to Certificate of Designations.
Capitalized terms not defined herein shall have the respective
meanings specified in the Certificate of Designations, including, without
limitation, Paragraph 2 and Paragraph 7 thereof, unless the context otherwise
requires.
I.2. Terms Defined Herein.
As used herein and in the Settlement Procedures (as defined below),
the following terms shall have the following meanings, unless the context
otherwise requires:
(a) "Agent Member" means a member of the Securities Depository
that will act on behalf of an Existing Holder of one or more
Shares or a Potential Holder that is identified as such in
such holder's Purchaser's Letter.
(b) "Auction" shall have the meaning specified in Section 2.1(a)
hereof.
(c) "Auction Procedures" shall mean the Auction Procedures set
forth in Paragraph 7 of the Certificate of Designations.
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(R)Registered trademark of ▇▇▇▇▇▇ Brothers Inc.
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(d) "Authorized Officer" shall mean each Principal, Vice
President, Assistant Vice President, Assistant Secretary and
Assistant Treasurer of the Auction Agent assigned to its
Corporate Trust and Agency Group and every other officer or
employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a communication to the
Company.
(e) "Broker-Dealer Agreement" shall mean each agreement between
the Auction Agent and a Broker-Dealer substantially in the
form attached hereto as Exhibit A.
(f) "Certificate of Designations" shall mean the Certificate of
Designations, as amended, of the Company establishing the
designation, preferences and rights of the Shares, as filed
with the Secretary of State of the State of Delaware.
(g) "Company Officer" shall mean the Chairman and Chief Executive
Officer, the President, each Vice President (whether or not
designated by a number or word or words added before or after
the title "Vice President"), the Secretary, the Treasurer,
each Assistant Secretary and each Assistant Treasurer of the
Company and every other officer or employee of the Company
designated as a "Company Officer" for purposes hereof in a
written notice from the Company to the Auction Agent.
(h) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
I.3. Rules of Construction.
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience
of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or
effect.
(c) The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
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II. THE AUCTION.
II.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Certificate of Designations provides that the Applicable
Rate for each Dividend Period after the Initial Dividend
Period shall be the rate per annum that the Auction Agent
advises results from implementation of the Auction
Procedures. The Board of Directors of the Company, or a duly
authorized committee thereof, has adopted a resolution
appointing Bankers Trust as Auction Agent for purposes of the
Auction Procedures. Bankers Trust hereby accepts such
appointment and agrees that, on each Auction Date, it shall
follow the procedures set forth in this Section II and the
Auction Procedures for the purpose of determining the
Applicable Rate for each Dividend Period. Each periodic
operation of such procedures set forth in Section II and the
Auction Procedures is hereinafter referred to as an
"Auction."
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by
reference in their entirety and shall be deemed to be a part
hereof to the same extent as if such provisions were set
forth fully herein.
II.2. Preparation for Each Auction; Maintenance of Registry of Existing
Holders.
(a) As of the date hereof, the Company shall provide the Auction
Agent with a list of the Broker-Dealers and shall cause to be
delivered to the Auction Agent for execution by the Auction
Agent a Broker-Dealer Agreement signed by each Broker-Dealer.
The Auction Agent shall keep such list current and accurate
and shall indicate thereon, or on a separate list, the
identity of each Existing Holder, if any, whose most recent
Order was submitted by a Broker-Dealer on such list and
resulted in such Existing Holder continuing to hold or
purchasing Shares. Not later than five Business Days prior to
any Auction Date for which any change in such list of
Broker-Dealers is to be effective, the Company shall notify
the Auction Agent in writing of such change and, if any such
change is the addition of a Broker-Dealer to such list, the
Company shall cause to be delivered to the Auction Agent for
execution by the Auction Agent a Broker-Dealer Agreement
signed by such Broker-Dealer. The Auction Agent shall have
entered into a Broker-Dealer Agreement with each
Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be
changed after the Auction Agent shall have given the notice
referred to in clause (G) of Paragraph (I) of the Settlement
Procedures, the Auction Agent, by such means as the Auction
Agent deems practicable, shall give notice of such change to
the
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Broker-Dealers not later than the earlier of 9:15 A.M. on the
new Auction Date or 9:15 A.M. on the old Auction Date.
(c) The provisions contained in Paragraph 3 of the Certificate of
Designations concerning Special Dividend Periods and the
notification of a Special Dividend Period with respect to
Shares will be followed by the Company and, to the extent
applicable, the Auction Agent, and the provisions contained
therein are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully
herein.
(d) On each Auction Date, the Auction Agent shall determine the
Reference Rate and the Maximum Applicable Rate. If the
Reference Rate is not quoted on an interest basis but is
quoted on a discount basis, the Auction Agent shall convert
the quoted rate to an Interest Equivalent, as set forth in
Paragraph 2 of the Certificate of Designations; or, if the
rate obtained by the Auction Agent is not quoted on an
interest or discount basis, the Auction Agent shall convert
the quoted rate to an interest rate after consultation with
the Company as to the method of such conversion. Not later
than 9:30 A.M. on each Auction Date, the Auction Agent shall
notify the Company and the Broker-Dealers of the Reference
Rate so determined and of the Maximum Applicable Rate.
(i) If the Reference Rate is the applicable "AA"
Composite Commercial Paper Rate and such rate is to
be based on rates supplied by Commercial Paper
Dealers and one or more of the Commercial Paper
Dealers shall not provide a quotation for the
determination of the applicable "AA" Composite
Commercial Paper Rate, the Auction Agent immediately
shall notify the Company so that the Company can
determine whether to select a Substitute Commercial
Paper Dealer or Substitute Commercial Paper Dealers
to provide the quotation or quotations not being
supplied by any Commercial Paper Dealer or
Commercial Paper Dealers. The Company promptly shall
advise the Auction Agent of any such selection. If
the Company does not select any such Substitute
Commercial Paper Dealer or Substitute Commercial
Paper Dealers, then the rates shall be supplied by
the remaining Commercial Paper Dealer or Commercial
Paper Dealers.
(ii) If, after the date of this Agreement, (x) there is
any change in the credit rating of the Shares by
either of ▇▇▇▇▇'▇ or S&P (or Substitute Rating
Agency or Substitute Rating Agencies), or (y) (I)
the rating of any Shares of ▇▇▇▇▇'▇ shall be on the
"Corporate Credit Watch List" of ▇▇▇▇▇'▇ with a
designation of "downgrade" or "uncertain", (II) the
rating of any Shares by S&P shall be on the
"CreditWatch" of S&P with
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a designation of "negative implications" or
"developing", or (III) if ▇▇▇▇▇'▇ or S&P, or both,
shall not make such a rating available, the rating
of any Shares by any Substitute Rating Agency will
be the substantial equivalent of subclause (I) or
(II) above, and, if either of such events described
in clause (x) or (y) results in any change in the
corresponding applicable percentage for calculating
the Maximum Applicable Rate for the Shares, the
Company shall notify the Auction Agent in writing of
such change in such applicable percentage prior to
9:00 A.M. on the Auction Date next succeeding such
change. The Company shall inform the Auction Agent
of such applicable percentage on the date of this
Agreement. The Auction Agent shall be entitled to
rely on the last applicable percentage of which it
has received notice from the Company in determining
the Maximum Applicable Rate as set forth in Section
2.2(d)(i) hereof.
(e) The Auction Agent shall maintain a current registry of the
Existing Holders of the Shares for the purposes of each
Auction. The Company shall use its best efforts to provide or
cause to be provided to the Auction Agent within ten Business
Days following the closing of the initial offering of Shares
a list of the initial Existing Holders of Shares, and the
Broker-Dealer of each such Existing Holders through which
such Existing Holders purchased such shares. The Auction
Agent may rely upon, as evidence of the identities of the
Existing Holders , such list, the results of each Auction and
notices from any Existing Holder, the Agent Member of any
Existing Holder or any beneficial owner with respect to such
Existing Holder's transfer of any Shares to another Person.
(i) In the event of any partial Optional Redemption of
Shares, upon notice by the Company to the Auction
Agent of such partial Optional Redemption, the
Auction Agent promptly shall request the Securities
Depository to notify the Auction Agent of the
identities of the Agent Members (and the respective
numbers of Shares) from the accounts of which Shares
have been called for redemption and the person or
department at such Agent Member to contact regarding
such redemption, and at least two Business Days
prior to the Auction Date preceding such Optional
Redemption Date, the Auction Agent shall request
each Agent Member so identified to disclose to the
Auction Agent (upon selection by such Agent Member
of the Persons whose Shares are to be redeemed) the
number of Shares of each such Person, if any, to be
redeemed by the Company, provided that the Auction
Agent has been furnished with the name and telephone
number of a person or department at such Agent
Member from which it is to request such information.
In the absence of receiving any such information
with respect to an Existing Holder, from such
Existing Holder's Agent Member or otherwise, the
Auction Agent
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may continue to treat such Existing Holder as having
beneficial ownership of the number of Shares shown
in the Auction Agent's registry of Existing Holders.
(ii) The Auction Agent shall register a transfer of the
Shares if (A) such transfer is made pursuant to an
Auction, or (B) if such transfer is made other than
pursuant to an Auction, the Auction Agent has been
notified of such transfer in writing, in a notice
substantially in the form of Exhibit C to the
Broker-Dealer Agreements, by such Existing Holder or
by the Broker-Dealer or Agent Member of such
Existing Holder. The Auction Agent is not required
to accept any notice of transfer, for transfers made
either pursuant to clause (A) or clause (B) above,
delivered prior to an Auction with respect thereto
unless it is received by the Auction Agent by 3:00
P.M. on the Business Day next preceding such Auction
Date. The Auction Agent shall rescind a transfer
made on the registry of the Existing Holders of any
Shares if the Auction Agent has been notified in
writing, in a notice substantially in the form of
Exhibit D to the Broker-Dealer Agreement, by the
Agent Member or the Broker-Dealer of any Person that
(i) purchased any Shares that the seller failed to
deliver such Shares or (ii) sold any Shares that the
purchaser failed to make payment to such Person upon
delivery to the purchaser of such Shares, provided
that the Auction Agent is not required to accept any
such notice delivered prior to an Auction with
respect thereto unless it is received by the Auction
Agent by 3:00 P.M. on the Business Day next
preceding such Auction Date.
(f) The Auction Agent may request that the Broker-Dealers, as set
forth in Section 3.2(c) of the Broker-Dealer Agreements,
provide the Auction Agent with a list of their respective
customers that such Broker-Dealers believe are beneficial
owners of the Shares. The Auction Agent shall keep
confidential any such information and shall not disclose any
such information so provided to any Person other than the
relevant Broker-Dealer and the Company, provided that the
Auction Agent reserves the right to disclose any such
information if it is advised by its counsel that its failure
to do so would be unlawful.
II.3. Intentionally Deleted.
II.4. Auction Schedule.
The Auction Agent shall conduct Auctions on each Auction Date in
accordance with the schedule set forth below. Such schedule may be changed by
the Auction Agent with the consent of the Company, which consent shall not be
withheld unreasonably. The Auction Agent shall give notice of any such change
to each Broker-Dealer. Such notice must be deliver
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at the address specified herein prior to the first Auction Date on which any
such change shall be effective.
Time Event
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By 9:30 A.M. Auction Agent advises the Company and the
Broker-Dealers of the Reference Rate and
the Maximum Applicable Rate as set forth in
Section 2.2(d)(i) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Paragraph 7(c)(i) of the
Certificate of Designations. Submission
deadline is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent makes determinations pursuant
to Paragraph 7(d)(i) of the Certificate of
Designations.
By approximately 3:00 P.M. Auction Agent advises the Company of the
results of the Auction as provided in
Paragraph 7(d)(ii) of the Certificate of
Designations.
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Submitted Bids and Submitted Sell Orders
are accepted and rejected in whole or in
part and Shares allocated as provided in
Paragraph 7(e) of the Certificate of
Designations.
Auction Agent gives notice of the Auction
results as set forth in Section 2.5 hereof.
II.5. Notice of Auction Results.
On each Auction Date, the Auction Agent shall notify each
Broker-Dealer of the results of the Auction held on such date by telephone as
set forth in Paragraph (I) of the Settlement Procedures. If so requested, by
11:30 A.M. on the Business Day next succeeding such Auction Date, the Auction
Agent shall notify each Broker-Dealer in writing by telecopier of the
disposition of all Orders submitted by each such Broker-Dealer in the Auction
held on such Auction Date.
II.6. Broker-Dealers.
(a) Not later than 12:00 noon on each Auction Date for each
Share, the Company shall pay to the Auction Agent in Federal
Funds or similar same-day funds an amount in cash equal to
the product of (i) in the case of any Auction Date
immediately preceding a Regular Dividend Period, the product
of (A) a fraction, the numerator of which is the number of
days in such Regular Dividend Period (calculated by counting
the first day of such Regular Dividend Period but excluding
the last day thereof) and the denominator of which is 360,
times (ii) 0.0025, times (iii) $100,000, times (iv) the sum
of the aggregate number of outstanding Shares and (ii) in the
case of any Special Dividend Period, the amount determined by
mutual consent of the Company and the Broker-Dealers pursuant
to the Broker-Dealer Agreements. The Auction Agent shall
apply such moneys as set forth in Section 3.5 of the
Broker-Dealer Agreements and shall thereafter remit to the
Company any remaining funds of the Auction Agent pursuant to
this Section 2.6(a).
(b) The Auction Agent shall terminate any Broker-Dealer Agreement
as set forth therein if so directed by the Company. The
Auction Agent shall not terminate a Broker-Dealer Agreement
without the prior written consent of the Company.
(c) The Auction Agent from time to time shall enter into such
Broker-Dealer Agreements as the Company shall request.
(d) The Auction Agent shall maintain a list of Broker-Dealers.
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II.7. Ownership of Shares and Submission of Bids by the Company and its
Affiliates.
Neither the Company nor any Affiliate may submit an order, directly or
indirectly, in any Auction except as set forth in the next sentence. The
Company shall notify the Auction Agent if the Company or, to the best of the
Company's knowledge, any Affiliate becomes a beneficial owner of any Shares.
Any Shares redeemed, purchased or otherwise acquired (i) by the Company shall
not be reissued, except in accordance with the requirements of the Securities
Act, or (ii) by its Affiliates shall not be transferred (other than to the
Company). The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.7 hereof.
II.8. Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, access at reasonable times during normal
business hours to review and make extracts or copies (at the Company's sole
cost and expense) of all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
Company requesting that the Auction Agent afford such person access. The
Auction Agent shall maintain records relating to any Auction for a period of
two years after such Auction (unless requested by the Company to maintain such
records for such longer period not in excess of four years, then for such
longer period), and such records, in reasonable detail, shall accurately and
fairly reflect the actions taken by the Auction Agent hereunder. The Company
agrees to keep confidential any information regarding the customers of any
Broker-Dealer received from the Auction Agent in connection with this Agreement
or any Auction, and shall not disclose such information or permit the
disclosure of such information without the prior written consent of the
applicable Broker-Dealer to anyone except such agent, accountant or counsel
engaged to audit or review the results of Auctions as permitted by this Section
2.8, provided that the Company reserves the right to disclose any such
information if it is advised by its counsel that its failure to do so would (i)
be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall have
offered indemnification satisfactory to the Company. Any such agent, accountant
or counsel, before having access to such information, shall agree to keep such
information confidential and not to disclose such information or permit
disclosure of such information without the prior written consent of the
applicable Broker-Dealer, provided that such agent, accountant or counsel may
reserve the right to disclose any such information if it is advised by its
counsel that its failure to do so would (i) be unlawful or (ii) expose it to
liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to such agent, accountant or counsel.
III. THE AUCTION AGENT AS PAYING AGENT.
III.1. The Paying Agent.
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The Board of Directors of the Company, or a duly authorized committee
thereof, has adopted a resolution appointing Bankers Trust as transfer agent,
registrar, dividend disbursing agent and redemption agent for the Company in
connection with any Shares (in such capacity, the "Paying Agent"). Bankers Trust
hereby accepts such appointment and agrees to act in accordance with its
standard procedures and the provisions of the Certificate of Designations which
are specified herein with respect to the Shares and as set forth in this Article
III.
III.2. The Company's Notices to the Paying Agent.
Whenever any Shares are to be redeemed pursuant to an Optional
Redemption, the Company promptly shall deliver to the Paying Agent a Notice of
Redemption which will be mailed by the Company to each Existing Holder at least
five Business Days prior to the date such Notice of Redemption is required to be
mailed pursuant to the Certificate of Designations. The Paying Agent shall have
no responsibility to confirm or verify the accuracy of any such Notice of
Redemption.
III.3. The Company to Provide Funds for Dividends and Redemptions Payments.
(a) Not later than noon on the Business Day immediately prior to
each Dividend Payment Date, the Company shall deposit with the
Paying Agent an aggregate amount of Federal Funds or same-day
funds equal to the declared dividends to be paid to Existing
Holders on such Dividend Payment Date, and shall give the
Paying Agent irrevocable instructions to apply such funds to
the payment of such dividends on such Dividend Payment Date.
(b) If the Company shall give a Notice of Redemption, then by noon
of the Business Day immediately prior to the Optional
Redemption Date, the Company shall deposit in trust with the
Paying Agent an aggregate amount of Federal Funds or same-day
funds sufficient to redeem the Shares so called for redemption
and shall give the Paying Agent irrevocable instructions and
authority to pay the redemption price to the Existing Holders
of such Shares called for redemption upon surrender of the
certificate or the certificates therefor, if any.
(c) If the Company should deposit funds with the Auction Agent for
the purposes set forth in clause (a) or (b) of this Section
3.3 on the Business Day immediately preceding the applicable
Dividend Payment Date or date fixed for redemption, and such
funds are immediately available funds, the Company may direct
the Auction Agent to invest the funds so deposited, and if so
directed, such direction shall be given prior to such deposit,
in short-term money market instruments specified in writing by
the Company which mature on or before the opening of business
on such Dividend Payment Date or day fixed for redemption,
provided that the proceeds of such overnight investments will
be
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available at the opening of business on the Dividend Payment
Date or date fixed for redemption. The investments made
pursuant to the foregoing sentence are solely for the account
and at the risk of the Company, and the Auction Agent shall
not be liable or responsible for any loss, in whole or in
part, resulting from such investments. Upon the request of the
Company, the Auction Agent shall transmit any interest
received on such investments to the Company that is not
applied on a Dividend Payment Date or a date fixed for
redemption.
III.4. Disbursing Dividends and Redemption Price and Payments.
After receipt of the Federal Funds or same-day funds and instructions
from the Company described in Sections 3.3 above, the Paying Agent shall pay to
the Existing Holders (or former Existing Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the Shares and, (ii) on any
date fixed for redemption, the redemption price of any Shares called for
redemption. The amount of dividends for any Dividend Period to be paid by the
Paying Agent to Existing Holders will be determined by the Company as set forth
in Paragraph 3 of the Certificate of Designations. The redemption price to be
paid by the Paying Agent to the Existing Holders of any Shares called for
redemption will be determined as set forth in Paragraph 5 of the Certificate of
Designations. The Company shall notify the Paying Agent in writing of a decision
to redeem any Shares on or prior to the date specified in Section 3.2 above, and
such notice by the Company to the Paying Agent shall contain the information
required to be stated in a Notice of Redemption, required to be mailed by the
Company to such Existing Holders. The Paying Agent shall have no duty to
determine the redemption price and may rely on the amount thereof set forth in a
Notice of Redemption.
IV.0. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
IV.1. Original Issue of Stock Certificates.
On the Date of Original Issue, one or more certificates for the Shares
shall be issued by the Company and registered in the name of Cede & Co., as
nominee of the Securities Depository, and countersigned by the Paying Agent. The
Company will give the Auction Agent prior written notice and instruction as to
the issuance and redemption of Shares.
IV.2. Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the Shares shall be registered
solely in the name of the Securities Depository or its nominee. During a
Non-Payment Period, an Existing Holder of Shares may obtain a certificate for
the shares owned by it. Also, if the Securities Depository shall give notice of
its intention to resign as such, and if the Company shall not have selected a
substitute Securities Depository acceptable to the Paying Agent prior to such
resignation, then upon such resignation, the Shares, at the Company's request,
may be registered for transfer or exchange, and new certificates thereupon shall
be issued in the name of the designated transferee or transferees, upon
surrender of the old certificate in form
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deemed by the Paying Agent properly endorsed for transfer with (a) all necessary
endorsers' signatures guaranteed in such manner and form as the Paying Agent may
require by a guarantor reasonably believed by the Paying Agent to be
responsible, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement and (c) satisfactory evidence of compliance with all applicable laws
relating to the collection of taxes in connection with any registration of
transfer or exchange of funds necessary for the payment of such taxes. If the
certificate or certificates for the Shares are not held by the Securities
Depository or its nominee, payments upon transfer of the Shares in an Auction
shall be made in Federal Funds or similar same-day funds to the Auction Agent
against delivery of certificates therefor.
IV.3. Removal of Legend.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing the Shares shall be accompanied by an
opinion of counsel stating that such legend may be removed and such Shares may
be transferred free of the restriction described in such legend, said opinion to
be delivered under cover of a letter from a Company Officer authorizing the
Paying Agent to remove the legend on the basis of said opinion.
IV.4. Lost, Stolen or Destroyed Stock Certificates.
The Paying Agent shall issue and register replacement certificates for
certificates represented to have been lost, stolen or destroyed, upon the
fulfillment of such requirements as shall be deemed appropriate by the Company
and by the Paying Agent, subject at all times to provisions of law, the By-Laws
of the Company governing such matters and resolutions adopted by the Company
with respect to lost, stolen or destroyed securities. The Paying Agent may issue
new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Company to the Paying Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Company to the Paying Agent that such
issuance will comply with provisions of applicable law and the By-Laws and
resolutions of the Company.
IV.5. Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain stock certificates which have been
canceled in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Commission for two calendar years
from the date of such cancellation. The Paying Agent, upon written request by
the Company, shall afford to the Company, its agents and counsel access at
reasonable times during normal business hours to review and make extracts or
copies (at the Company's sole cost and expense) of such certificates and
accompanying documentation. Upon request by the Company at any time after the
expiration of this two-year period, the Paying Agent shall deliver to the
Company the canceled certificates and accompanying documentation. The Company,
at its expense, shall retain such records for a
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minimum additional period of four calendar years from the date of delivery of
the records to the Company and shall make such records available during this
period at any time, or from time to time, for reasonable periodic, special, or
other examinations by representatives of the Commission. The Company also shall
undertake to furnish to the Commission, upon demand, at either their principal
office or at any regional office, complete, correct and current hard copies of
any and all such records.
IV.6. Stock Books.
The Paying Agent shall maintain the Stock Books, which shall contain a
list of the Existing Holders, the number of Shares held by each Existing Holder
and the address of each Existing Holder. The Paying Agent shall record in the
Stock Books any change of address of an Existing Holder upon notice by such
Existing Holder. In case of any written request or demand for the inspection of
the Stock Books or any other books of the Company in the possession of the
Paying Agent, the Paying Agent will notify the Company and secure instructions
as to permitting or refusing such inspection. The Paying Agent reserves the
right, however, to exhibit the Stock Books or other records to any person in
case it is advised by its counsel that its failure to do so would (i) be
unlawful or (ii) expose it to liability, unless the Company shall have offered
indemnification satisfactory to the Paying Agent.
IV.7. Return of Funds.
Any funds deposited with the Paying Agent by the Company for any reason
under this Agreement, including for the payment of dividends, or the redemption
of the Shares, that remain with the Paying Agent after two years shall be repaid
to the Company upon written request by the Company.
V.0. REPRESENTATIONS AND WARRANTIES.
V.1. Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware, and has full power to
execute and deliver this Agreement and to authorize,
create and issue the Shares;
(ii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the
Company, enforceable against the Company in
accordance with its terms, subject as to such
enforceability to bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to creditors' rights and
general equitable principles;
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(iii) the forms of the certificates evidencing the Shares
comply with all applicable laws of the State of
Delaware;
(iv) the Shares have been duly and validly authorized by
the Company and, upon completion of the initial sale
of the Shares and receipt of payment therefor, will
be validly issued, fully paid and nonassessable;
(v) the execution and delivery of this Agreement and the
issuance and delivery of the Shares do not and will
not conflict with, violate, or result in a breach of,
the terms, conditions or provisions of, or constitute
a default under, the Certificate of Incorporation (as
amended by the Certificate of Designations) or the
By-Laws of the Company, any law or regulation
applicable to the Company, any order or decree of any
court or public authority having jurisdiction over
the Company, or any mortgage, indenture, contract,
agreement or undertaking to which the Company is a
party or by which it is bound; and
(vi) no taxes are payable upon or in respect of the
execution of this Agreement or will be payable upon
or in respect of the issuance of the Shares.
V.2. Representations and Warranties of the Auction Agent.
(i) The Auction Agent represents and warrants to the
Company that: (i) it is duly organized and is validly
existing as a national banking corporation in good
standing under the laws of the United States, with
power and authority (corporate or otherwise) to enter
into and perform its obligations under this
Agreement;
(ii) It has in full force and effect all permits,
certificates, franchises, licenses, authorizations
and similar approvals necessary in connection with
the Auction Agent's performance of this Agreement;
(iii) This Agreement has been duly authorized, executed and
delivered by it and, assuming due authorization,
execution and delivery by the Company, constitutes
its valid and legally binding obligation, enforceable
against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to
or affecting creditors' rights and to general equity
principles, subject to Section 5.1(v) hereof;
(iv) The performance by it of this Agreement and the
consummation by it of the transactions herein
contemplated will not result in any violation of the
provisions of its Certificate of Incorporation or any
statute or any
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material order, rule or regulation, or qualification
of or with any court or governmental agency or body
required by it for the consummation of the
transactions contemplated by this Agreement; and
(v) There are no legal or governmental proceedings
pending or, to its best knowledge, threatened or
contemplated to which it is a party that would, if
determined adversely to it, have a material adverse
effect on the performance of its duties under this
Agreement.
VI.0. THE AUCTION AGENT.
VI.1. Duties and Responsibilities.
(a The Auction Agent is acting solely as agent for the Company
hereunder and owes no fiduciary duties to any Person except as
provided by this Agreement.
(b The Auction Agent undertakes to perform such duties and only
such duties as are set forth specifically in this Agreement,
and no implied covenants or obligations shall be read into
this Agreement against the Auction Agent.
(c In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken,
suffered or omitted by it or for any error of judgment made by
it in the performance of its duties under this Agreement. The
Auction Agent shall not be liable for any error of judgment
made in good faith unless the Auction Agent shall have been
negligent in ascertaining (or failing to ascertain) the
pertinent facts.
VI.2. Rights of the Auction Agent.
(a The Auction Agent may rely upon, and shall be protected in
acting or refraining from acting upon, any communication
authorized hereby and any written instruction, notice,
request, direction, consent, report, certificate, share
certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Auction Agent shall not be
liable for acting upon any telephone communication authorized
hereby which the Auction Agent believes in good faith to have
been given by the Company or by a Broker-Dealer. The Auction
Agent may record telephone communications with the Company or
with the Broker-Dealers or with both.
(b The Auction Agent may consult with counsel of its choice, and
the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
reliance thereon.
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(c The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to
financial liability in the performance of its duties
hereunder. The Auction Agent shall be under no liability for
interest on any money received by it hereunder except as set
forth herein or as otherwise agreed in writing with the
Company.
(d The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or
attorneys.
(e The Auction Agent, in its individual or other capacity, may
provide other services for the Company on the same basis as if
it were not acting as the Auction Agent.
VI.3. Auction Agent's Disclaimer.
The Auction Agent makes no representation, with respect to any party
other than itself, as to the validity or the adequacy of this Agreement, the
Broker-Dealer Agreements, the Certificate of Designations or the Shares.
VI.4. Compensation, Expenses and Indemnification.
(a The Company shall pay to the Auction Agent from time to time
reasonable compensation for all services rendered by it under
this Agreement and under the Broker-Dealer Agreements as shall
be set forth in a separate writing signed by the Company and
the Auction Agent, subject to adjustments if the Shares no
longer are held of record by the Securities Depository or its
nominee or if there shall be such other change as shall
increase materially the Auction Agent's obligations hereunder
or under the Broker-Dealer Agreements.
(b The Company shall reimburse the Auction Agent upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Auction Agent in accordance with any
provision of this Agreement and of the Broker-Dealer
Agreements (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any
expense, disbursement or advance attributable to its
negligence or bad faith.
(c The Company shall indemnify the Auction Agent for, and hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part arising out of or
in connection with its agency under this Agreement and under
the Broker-Dealer Agreements, including the costs and expenses
of defending itself against any claim of liability in
connection with its exercise or performance of any of its
duties hereunder and thereunder, except such as may result
from its negligence or bad faith.
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VII. MISCELLANEOUS.
VII.1. Term of Agreement.
(a The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Company may
terminate this Agreement at any time by so notifying the
Auction Agent, provided that if any Shares remain outstanding
the Company shall have entered into an agreement in
substantially the form of this Agreement with a successor
auction agent. The Auction Agent may terminate this Agreement
upon prior notice to the Company on the date specified in such
notice, which date shall be no earlier than three months after
delivery of such notice. No such termination by the Company or
resignation by the Auction Agent shall be effective until (i)
the Company has entered into an agreement with a successor
Auction Agent containing substantially the same terms and
conditions as contained in this Agreement, and (ii) such
successor Auction Agent has entered into agreements with the
Broker-Dealers containing substantially the same terms and
conditions as contained in the Broker-Dealer Agreements. If
the Auction Agent resigns while any Shares remain outstanding,
the Company shall use its best efforts to enter into an
agreement with a successor Auction Agent containing
substantially the same terms and conditions as this Agreement.
The Agreement shall terminate immediately upon redemption by
the Company of the Shares.
(b Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Company and the Auction
Agent under this Agreement shall cease upon termination of
this Agreement. The Company's representations, warranties,
covenants and obligations to the Auction Agent under Article V
and Section 6.4 hereof shall survive the termination hereof.
Upon termination of this Agreement, the Auction Agent shall
(i) resign as Auction Agent under the Broker-Dealer
Agreements, (ii) deliver promptly to the Company copies of all
books and records maintained by it in connection with its
duties hereunder, and (iii) transfer promptly to the Company
or to any successor auction agent any funds deposited by the
Company with the Auction Agent (whether in its capacity as
Auction Agent or as Paying Agent) pursuant to this Agreement
which have not been distributed previously by the Auction
Agent in accordance with this Agreement (together with any
applicable interest or other income thereon).
VII.2. Communications.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other
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communications to any party hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party at its address or telecopier
number set forth below:
If to the Company, addressed to: EOG Resources, Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇
If to the Auction Agent,
addressed to: Bankers Trust Company ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention:
Auction Rate Securities Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇ Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
VII.3. Entire Agreement.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or inferred,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
VII.4. Benefits.
Nothing herein, express or implied, shall give to any Person, other
than the Company, the Auction Agent and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim hereunder.
VII.5. Amendment; Waiver.
(a This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the parties hereto. The Company
shall notify the Auction Agent of any change in the
Certificate of Designations prior to the effective date of any
such change. If any such change in the Certificate of
Designations materially increases the Auction Agent's
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obligations hereunder, the Company shall obtain the written
consent of the Auction Agent prior to the effective date of
such change.
(b Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
VII.6. Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
VII.7. Severability.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
VII.8. Execution in Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
VII.9. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
EOG RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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