EXHIBIT 99.8
AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT
This Amended and Restated Change of Control Agreement
("Agreement") between EOG Resources, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxxxx (the "Employee") is
effective as of this 15th day of June, 2005 (the "Effective
Date"). Certain capitalized terms used herein are defined in
Section 21.
WITNESSETH:
Whereas, the Company considers it to be in the best
interests of its stockholders to encourage the continued
employment of certain key employees of the Company
notwithstanding the possibility, threat or occurrence of a Change
of Control of the Company; and
Whereas, the Employee is a key employee of the Company; and
Whereas, the Company believes that the possibility of the
occurrence of a Change of Control of the Company may result in
the termination by the Employee of the Employee's employment by
the Company or in the distraction of the Employee from the
performance of Employee's duties to the Company, in either case
to the detriment of the Company and its stockholders; and
Whereas, the Company recognizes that the Employee could
suffer adverse financial and professional consequences if a
Change of Control of the Company were to occur; and
Whereas, the Company wishes to continue to protect the
Employee if a Change of Control of the Company occurs, thereby
encouraging the Employee to remain in the employ of the Company
and not to be distracted from the performance of Employee's
duties to the Company by the possibility of a Change of Control
of the Company; and
Whereas, the Company and the Employee have entered into a
Change of Control Agreement dated July 1, 2001 (the "COC
Agreement"); and
Whereas, the parties now wish to modify the COC Agreement
and to restate the COC Agreement in its entirety as set forth
below;
Now, Therefore, the parties agree as follows:
SECTION 1. OTHER EMPLOYMENT ARRANGEMENTS.
(a) This Agreement does not affect the Employee's existing
or future employment arrangements with the Company unless a
Change of Control of the Company shall have occurred before the
expiration of the term of this Agreement. The Employee's
employment with the Company shall continue to be governed by the
Employee's existing or future employment agreements with the
Company, if any, or, in the absence of any employment agreement,
shall continue to be at the will of the Company, except that if a
Change of Control of the Company shall have occurred before the
expiration of the term of this Agreement and the Employee's
employment with the Company is terminated (whether by the
Employee or the Company or automatically as provided in
Section 3) after the occurrence of that Change of Control of the
Company, then the Employee shall be entitled to receive certain
benefits as provided in this Agreement.
(b) Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any plan,
program, policy or practice of or provided by the Company or any
of its Affiliates and for which the Employee may qualify, nor
shall anything herein limit or otherwise affect such rights as
the Employee may have under any contract or agreement with the
Company or any of its Affiliates. Amounts which are vested
benefits or which the Employee is otherwise entitled to receive
under any plan, program, policy or practice of or provided by, or
any contract or agreement with, the Company or any of its
Affiliates at or subsequent to the date of termination of the
Employee's employment with the Company shall be payable or
otherwise provided in accordance with such plan, program, policy
or practice or contract or agreement except as explicitly
modified by this Agreement.
SECTION 2. CHANGE OF CONTROL OF THE COMPANY.
A "Change of Control of the Company" shall mean the
occurrence of any of the following events:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(an "Exchange Act Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20%
or more of either the then-outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or the
combined voting power of the then-outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that, for purposes of this clause (a), the
following acquisitions shall not constitute a Change of Control
of the Company: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any Affiliated Company, (iv) any acquisition by
any corporation pursuant to a transaction that complies with
subclauses (i), (ii) and (iii) of clause (c) of this Section 2 or
(v) an acquisition by a Qualified Institutional Investor, but
only for so long as such investor remains a Qualified
Institutional Investor;
(b) Individuals who, as of May 3, 2005, constitute the
Board of Directors (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors;
provided, however, that any individual becoming a director
subsequent to May 3, 2005, whose election, or nomination for
election by the Company's stockholders, was approved by a vote of
at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on
behalf of an Exchange Act Person other than the Board of
Directors;
(c) Consummation of a reorganization, merger, consolidation
or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of the assets or stock
of another entity (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly,
more than 60% of the then-outstanding shares of common stock and
the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a
corporation that, as a result of such transaction, owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as
the case may be, (ii) no Exchange Act Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities
of such corporation, except to the extent that such ownership
existed prior to the Business Combination, and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the
initial agreement or of the action of the Board of Directors
providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding anything contained in this Agreement to the
contrary, if (i) the Employee's employment with the Company is
terminated, or (ii) an event occurs which, had it occurred after
a Change of Control of the Company, would with proper notice from
Employee constitute an Event of Termination for Good Reason, and
if it is reasonably demonstrated by the Employee that such action
(A) was taken at the request of a third party that has taken
steps reasonably calculated to effect a Change of Control of the
Company or (B) otherwise arose in connection with or anticipation
of a Change of Control of the Company, then for all purposes of
this Agreement, such Change of Control of the Company shall be
deemed to have occurred on the date immediately prior to the date
of such termination or event.
SECTION 3. TERM OF THIS AGREEMENT.
The term of this Agreement shall begin on the Effective Date
and shall expire on the first to occur of:
(a) the Employee's death, the Employee's Disability or
the Employee's Retirement, which events shall also be deemed
automatically to terminate the Employee's employment by the
Company; or
(b) the termination by the Employee or the Company of
the Employee's employment by the Company.
The expiration of the term of this Agreement shall not terminate
this Agreement itself or affect the right of the Employee or the
Employee's legal representatives to enforce the payment of any
amount or other benefit to which the Employee was entitled before
the expiration of the term of this Agreement or to which the
Employee became entitled as a result of the event that caused the
term of this Agreement to expire.
SECTION 4. EVENT OF TERMINATION FOR CAUSE.
(a) An "Event of Termination for Cause" shall mean the
Employee's (i) conviction of a felony involving moral turpitude
(which, through lapse of time or otherwise, is not subject to
appeal), (ii) willful refusal without proper legal cause to
perform employee's duties and responsibilities which remains
uncorrected for thirty (30) days following written notice to the
Employee by the Company of such event, or (iii) willfully
engaging in conduct which the Employee has, or reasonably should
have, reason to know is materially injurious to the Company.
(b) For purposes of this Section 4, no act, or failure to act,
on the part of the Employee shall be considered "willful" unless
it is done, or omitted to be done, by the Employee in bad faith
or without reasonable belief that the Employee's action or
omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board of Directors or upon the
instructions of the Chief Executive Officer of the Company or a
senior officer of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Employee in good faith and in the best
interests of the Company.
(c) The cessation of employment of the Employee as a result of
the alleged occurrence of an event referred to in clause (ii) or
(iii) of the definition of "Event of Termination for Cause" shall
not be deemed to be as a result of an Event of Termination for
Cause unless and until there shall have been delivered to the
Employee a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of
the Board of Directors (excluding the Employee, if the Employee
is a member of the Board of Directors) at a meeting of the Board
of Directors called and held for such purpose (after reasonable
notice is provided to the Employee and the Employee is given an
opportunity, together with counsel for the Employee, to be heard
before the Board of Directors), finding that, in the good faith
opinion of the Board of Directors, the Employee is guilty of the
conduct described in clause (ii) or (iii) of such definition and
specifying the particulars thereof in detail. Any determination
of the Board of Directors under this clause (c) shall not be
binding on the Employee, shall not be conclusive as to whether an
Event of Termination for Cause has occurred, and shall not affect
Employee's right to contest whether an Event of Termination for
Cause has occurred.
SECTION 5. EVENT OF TERMINATION FOR GOOD REASON.
An "Event of Termination for Good Reason" shall mean, after
a Change of Control of the Company, the occurrence of any of the
following events, provided Employee serves written notice of
termination in connection with or based upon any such event
within 90 days of the Employee's knowledge of the occurrence of
such event:
(a) a reduction in the Employee's authority and/or
responsibilities (whether or not occurring solely as a result of
the Company's ceasing to be a publicly traded entity); or
(b) a reduction in Employee's Annual Base Salary as in
effect immediately prior to the Change of Control of the Company
or a reduction in Employee's target annual bonus as in effect
immediately prior to the Change of Control of the Company, or the
failure to continue the Employee's full participation in any
employee benefit plan or program (unless replaced by a
substantially comparable plan or program) in which Employee is
eligible to participate immediately prior to the Change of
Control of the Company (other than as a result of the normal
expiration of such plan or program), in each case other than as a
part of a general program to reduce compensation or benefits on a
proportional basis relative to all other employees of the
Company; or
(c) a relocation of the Employee's primary place of work to
a location more than 50 miles away from the Employee's primary
place of work immediately prior to the Change of Control of the
Company (provided, however, this clause (c) shall no longer apply
to an employee after he has accepted any such relocation after a
Change of Control of the Company has occurred and the above
referenced 90 day period has passed), or
(d) the failure of the Company to obtain the assumption in
writing of its obligation to perform this Agreement by any
successor to the Company prior to a merger, consolidation, sale
or similar transaction.
For the avoidance of doubt, any action referred to in clause (a),
(b), (c) or (d) above shall constitute an Event of Termination
for Good Reason under the foregoing definition regardless of
whether the Company is permitted to take such action under any
employment contract with the Employee.
SECTION 6. NOTICE OF TERMINATION.
If a Change of Control of the Company shall have occurred
before the expiration of the term of this Agreement, any
termination by the Employee or the Company of the Employee's
employment by the Company, or any determination of the Employee's
Disability, that occurs within two years of such Change of
Control shall be communicated by notice to the other party that
shall indicate the specific paragraph of Section 7 pursuant to
which the Employee is to receive benefits as a result of the
termination. If the notice states that the Employee's employment
by the Company has been automatically terminated as a result of
the Employee's Disability, the notice shall specifically describe
the basis for the determination of the Employee's Disability and
shall state the date of the determination of the Employee's
Disability, which date shall be not more than ten days before the
date such notice is given. If the notice is from the Company and
states that the Employee's employment by the Company is
terminated by the Company as a result of the occurrence of an
Event of Termination for Cause, the notice shall specifically
describe the action or inaction of the Employee that the Company
believes constitutes an Event of Termination for Cause, and in
the case of a termination under clause (ii) or (iii) of the
definition of Event of Termination for Cause, shall include the
resolution of the Board of Directors referred to in Section 4(c).
If the notice is from the Employee and states that the Employee's
employment by the Company is terminated by the Employee as a
result of the occurrence of an Event of Termination for Good
Reason, the notice shall specifically describe the action or
inaction of the Company that the Employee believes constitutes an
Event of Termination for Good Reason. Each notice given pursuant
to this Section 6 (other than a notice stating that the
Employee's employment by the Company has been automatically
terminated as a result of the Employee's Disability) shall state
a date, which shall be not fewer than 30 days nor more than 60
days after the date such notice is given, on which the
termination of the Employee's employment by the Company is
effective. The date so stated in accordance with this Section 6
shall be the "Termination Date". If a Change of Control of the
Company shall have occurred before the expiration of the term of
this Agreement, any subsequent purported termination by the
Company of the Employee's employment by the Company, or any
subsequent purported determination by the Company of the
Employee's Disability, within two years of such Change of Control
shall be ineffective unless that termination or determination
shall have been communicated by the Company to the Employee by
notice that meets the requirements of the foregoing provisions of
this Section 6 and the provisions of Section 9.
SECTION 7. BENEFITS PAYABLE ON CHANGE OF CONTROL AND TERMINATION.
If a Change of Control of the Company shall have occurred
before the expiration of the term of this Agreement, and the
Employee's employment by the Company is terminated (whether by
the Employee or the Company or automatically as provided in
Section 3) within two years after the occurrence of that Change
of Control of the Company, the Employee shall be entitled to the
following benefits:
(a) If the Employee's employment by the Company is
terminated by the Company as a result of the occurrence of an
Event of Termination for Cause, or by the Employee before the
occurrence of an Event of Termination for Good Reason, then the
Company shall pay to the Employee the Base Salary accrued through
the Termination Date but not previously paid to the Employee, and
the Employee shall be entitled to any other amounts or benefits
provided under any plan, policy, practice, program, contract or
arrangement of or with the Company, which shall be governed by
the terms thereof (except as explicitly modified by this
Agreement).
(b) If the Employee's employment by the Company is
automatically terminated as a result of the Employee's death, the
Employee's Disability or the Employee's Retirement, then the
Company shall pay to the Employee the Base Salary accrued through
the date of the occurrence of that event but not previously paid
to the Employee, and the Employee shall be entitled to any other
amounts or benefits provided under any plan, policy, practice,
program, contract or arrangement of or with the Company, which
shall be governed by the terms thereof (except as explicitly
modified by this Agreement).
(c) If the Employee's employment by the Company is
terminated (x) by the Company, other than as a result of the
occurrence of an Event of Termination for Cause, or (y) by the
Employee after the occurrence of an Event of Termination for Good
Reason, or (z) by the Employee for any reason during the thirty
(30) day period beginning six (6) months after a Change of
Control of the Company, then the Employee shall be entitled to
the following:
(i) the Company shall pay to the Employee the Base
Salary and compensation for earned but unused vacation time
accrued through the Termination Date but not previously paid to
the Employee;
(ii) the Company shall pay to the Employee, as a lump
sum, an amount equal to the total of the following amounts:
(A) 2.99 times the amount of the Employee's
Annual Base Salary as in effect immediately prior to the Change
of Control (or if increased, immediately prior to the Termination
Date); plus
(B) two (2) times the amount of the Employee's
target annual bonus as in effect immediately prior to the Change
of Control (or if no target annual bonus for the year in which
the Change of Control occurs has been set, the target annual
bonus for the immediately prior year) (or if increased,
immediately prior to the Termination Date); plus
(C) the amount of the Money Purchase Pension Plan
contributions that would have been made by the Company on behalf
of the Employee if the Employee had continued to be employed by
the Company at the Employee's Annual Base Salary as in effect
immediately prior to the Change of Control (or if increased,
immediately prior to the Termination Date) for three years
following the Termination Date; and plus
(D) the amount that would have been paid on
behalf of the Employee as matching amounts to the Company's
Savings Plan if the Employee had continued to be employed by the
Company at the Employee's Annual Base Salary as in effect
immediately prior to the Change of Control (or if increased,
immediately prior to the Termination Date) for three years
following the Termination Date and had continued to contribute to
the Company's Savings Plan during such three year period at the
Employee's then current contribution level.
(iii) the Company shall arrange for the Employee's
uninterrupted participation for three (3) years after the
Termination Date in the Company's major medical/dental insurance
plan, which participation shall cease upon Employee's eligibility
for participation in a major medical/dental insurance plan of
another employer;
(iv) the Company shall cause the Employee to receive
three (3) years age and service credit for eligibility for the
Company's retiree medical insurance coverage; and
(v) the Company shall provide outplacement services at
a cost not to exceed $50,000.00.
Each payment required to be made to the Employee pursuant to the
foregoing provisions of this Section 7 shall be made by check
drawn on an account of the Company at a bank located in the
United States of America (unless the Employee has elected to have
salary payments deposited directly by the Company to a bank
account maintained by the Employee, in which event the Company
shall make a direct deposit of the payment to that account), and
shall be paid (x) if the Employee's employment by the Company was
terminated as a result of the Employee's death, the Employee's
Disability or the Employee's Retirement, not more than 30 days
immediately following the date of the occurrence of that event,
and (y) if the Employee's employment by the Company was
terminated for any other reason, not more than ten days
immediately following the Termination Date.
SECTION 8. SUCCESSORS.
If a Change of Control of the Company shall have occurred
before the expiration of the term of this Agreement,
(a) the Company shall not, directly or indirectly,
consolidate with, merge into or sell or otherwise transfer its
assets as an entirety or substantially as an entirety to, any
person, or permit any person to consolidate with or merge into
the Company, unless immediately after such consolidation, merger,
sale or transfer, the Successor shall have assumed in writing the
Company's obligations under this Agreement and agreed to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place; and
(b) not fewer than ten days before the consummation of any
consolidation of the Company with, merger by the Company into, or
sale or other transfer by the Company of its assets as an
entirety or substantially as an entirety to, any person, the
Company shall give the Employee notice of that proposed
transaction.
SECTION 9. NOTICE.
Notices required or permitted to be given by either party
pursuant to this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the other
party or when deposited with the United States Postal Service as
certified or registered mail with postage prepaid and addressed:
(a) if to the Employee, at the Employee's address last
shown on the Company's records, and
(b) if to the Company, at 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, directed to the attention of the Company's
Chairman of the Board,
or, in either case, to such other address as the party to whom
such notice is to be given shall have specified by notice given
to the other party.
SECTION 10. WITHHOLDING TAXES.
The Company may withhold from all payments to be paid to the
Employee pursuant to this Agreement all taxes that, by applicable
federal or state law, the Company is required to so withhold.
SECTION 11. U.S. EXCISE TAX INDEMNIFICATION.
(a) In the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee
(whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement, the Company's Change of Control
Severance Plan or otherwise, but determined without regard to any
additional payments required under this Section 11) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the
United States Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by the
Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by Employee of all
taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income and
employment taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 11(c), all
determinations required to be made under this Section 11,
including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a
public accounting firm chosen by the Company (the "Accounting
Firm") which shall provide detailed supporting calculations both
to the Company and the Employee if requested by either the
Company or the Employee. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any determination by
the Accounting Firm shall be binding upon the Company and the
Employee. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have
been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to clause (c) of this Section 11
and the Employee thereafter is required to make a payment of any
additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the
benefit of the Employee.
(c) If the Company elects to contest a claim by the Internal
Revenue Service that Excise Tax is due from the Employee, the
Employee shall cooperate fully with the Company in order to
effectively contest such claim, including, but not limited to
providing information reasonably requested by the Company
relating to such claim, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company and permitting the Company to participate in any
proceedings relating to such claim. The Company shall bear and
pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest
and shall indemnify and hold the Employee harmless, on an after-
tax basis, for any Excise Tax or other tax (including interest
and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses.
(d) The Company may pay a claim by the Internal Revenue
Service and direct the Employee to xxx for a refund. If, after
the receipt by the Employee of a Gross-Up Payment or the payment
by the Company of any claim by the Internal Revenue Service
pursuant to this clause (d), the Employee becomes entitled to
receive, and receives, any refund with respect to such claim, the
Employee shall promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after
taxes applicable thereto).
SECTION 12. EXPENSES OF ENFORCEMENT.
The Company agrees to pay as incurred (within ten days
following the Company's receipt of an invoice from the Employee),
to the full extent permitted by law, all legal fees and expenses
that the Employee may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Employee
or others of the validity, interpretation or enforceability of,
or liability under, any provision of this Agreement (including as
a result of any contest by the Employee about the amount of any
payment pursuant to this Agreement), plus, in each case, interest
on any delayed payment at the applicable federal rate provided
for in Section 7872(f)(2)(A) of the Code.
SECTION 13. EMPLOYMENT BY WHOLLY OWNED ENTITIES.
If, at or after the Effective Date, the Employee is or
becomes an employee of one or more corporations, partnerships,
limited liability companies or other entities that are, directly
or indirectly, wholly owned by the Company, references in this
Agreement to the Employee's employment by the Company shall
include the Employee's employment by any such wholly owned
entity.
SECTION 14. NO OBLIGATION TO MITIGATE; NO RIGHTS OF OFFSET.
(a) The Employee shall not be required to mitigate the
amount of any payment or other benefit required to be paid to the
Employee pursuant to this Agreement, whether by seeking other
employment or otherwise, nor shall the amount of any such payment
or other benefit be reduced on account of any compensation earned
or benefits received by the Employee as a result of employment by
another person.
(b) The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the
Company may have against the Employee or others.
SECTION 15. AMENDMENT AND WAIVER.
No provision of this Agreement may be amended or waived
(whether by act or course of conduct or omission or otherwise)
unless that amendment or waiver is by written instrument signed
by the parties hereto. No waiver by either party of any breach
of this Agreement shall be deemed a waiver of any other or
subsequent breach.
SECTION 16. GOVERNING LAW.
The validity, interpretation, construction and
enforceability of this Agreement shall be governed by the laws of
the State of Texas.
SECTION 17. VALIDITY.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full
force and effect.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together will
constitute the same instrument.
SECTION 19. ASSIGNMENT.
This Agreement shall inure to the benefit of and be enforceable
by the Employee's legal representative. The Company may not
assign any of its obligations under this Agreement unless (i)
such assignment is to a Successor and (ii) the requirements of
Section 8 are fulfilled.
SECTION 20. CODE SECTION 409A.
The parties hereto will act in good faith to equitably
restructure any payments and benefits provided for in this
Agreement to the extent necessary to comply with Section 409A of
the Internal Revenue Code of 1986, as amended. Any such
restructuring shall not reduce the value of such benefits and
payments.
SECTION 21. MISCELLANEOUS.
(a) As used in this Agreement, the following terms and
phrases have the indicated meanings:
(i) "Affiliate" and "Affiliates" mean, when used with
respect to any entity, individual, or other person, any other
entity, individual, or other person which, directly or
indirectly, through one or more intermediaries controls, or is
controlled by, or is under common control with such entity,
individual or person. "Affiliated Company" means any entity that
is an Affiliate of the Company.
(ii) "Annual Base Salary" means, at any point in time,
the regular rate of wages payable to the Employee, expressed on
an annualized basis, including any base salary that has been
earned but deferred.
(iii) "Board of Directors" means the Board of
Directors of the Company.
(iv) "Change of Control of the Company" has the meaning
assigned to that phrase in Section 2.
(v) "Company" has the meaning assigned to that term
in the preamble to this Agreement. The term "Company" shall also
include any Successor, whether the liability of such Successor
under this Agreement is established by contract or occurs by
operation of law.
(vi) "Effective Date" has the meaning assigned to that
term in the preamble to this Agreement.
(vii) "Employee" has the meaning assigned to such
term in the preamble to this Agreement.
(viii) "Employee's Disability" means:
(A) if no Change of Control of the Company shall
have occurred before the date of determination, the physical or
mental disability of the Employee determined in accordance with
the disability policy of the Company at the time in effect and
generally applicable to its salaried employees; and
(B) if a Change of Control of the Company shall
have occurred before the date of determination, the physical or
mental disability of the Employee determined in accordance with
the disability policy of the Company in effect immediately before
the occurrence of the first Change of Control of the Company and
generally applicable to its salaried employees.
(ix) "Employee's Retirement" means (x) if no Change of
Control of the Company shall have occurred before the date of the
Employee's proposed retirement, the retirement of the Employee in
accordance with the retirement policy of the Company at the time
in effect and generally applicable to its salaried employees, and
(y) if a Change of Control of the Company shall have occurred
before the date of the Employee's proposed retirement, the
retirement of the Employee from the employ of the Company in
accordance with the retirement policy of the Company in effect
immediately before the occurrence of the first Change of Control
of the Company and generally applicable to its salaried
employees.
(x) "Event of Termination for Good Reason" has the
meaning assigned to that phrase in Section 5.
(xi) "Event of Termination for Cause" has the meaning
assigned to that phrase in Section 4.
(xii) "Expiration Date" has the meaning assigned to
that term in Section 3.
(xiii) "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
limited partnership, limited liability company, trust,
unincorporated organization, government, or agency or political
subdivision of any government.
(xiv) "Qualified Institutional Investor" shall
mean, as of any time of determination, a Person that is described
in Rule 13d-l(b)(1) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (as such Rule is in
effect on the date hereof) and is eligible to report (and, if
such Person is the Beneficial Owner of greater than 5% of the
shares of common stock of the Company ("Common Shares"), does in
fact report) beneficial ownership of Common Shares on Schedule
13G, and such Person (i) is not required to file a Schedule 13D
(or any successor or comparable report) with respect to its
beneficial ownership of Common Shares, and (ii) shall be the
Beneficial Owner of less than 15% of the Common Shares then
outstanding; provided, however, that a Person which would
constitute a Qualified Institutional Investor except for its
failure to satisfy clause (ii) of this definition shall
nonetheless constitute a Qualified Institutional Investor if (A)
such Person or an Affiliate of such Person shall have, as of
December 31, 2004, reported beneficial ownership of greater than
5% of the Common Shares for a period of two consecutive years and
shall thereafter continuously beneficially own greater than 5% of
the Common Shares then outstanding prior to the time of
determination, (B) shall be the Beneficial Owner of less than 15%
of the Common Shares then outstanding (including in such
calculation the holdings of all of such Person's Affiliates and
Associates other than those which, under published
interpretations of the SEC or its Staff, are eligible to file
separate reports on Schedule 13G with respect to their beneficial
ownership of the Common Shares), and (C) such Person shall be the
Beneficial Owner of less than 30% of the Common Shares then
outstanding.
Solely for the purposes of the above definition of
"Qualified Institutional Investor", a person shall be deemed to
be the "Beneficial Owner" of and shall be deemed to "beneficially
own" any securities (i) which such Person or any of such Person's
Affiliates or Associates (as defined in Rule 12b-2 of the
Exchange Act) beneficially owns, directly or indirectly; (ii)
which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering
of securities), or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding
to vote such security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under the
Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report);
or (iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona
fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso
to (ii)(B) above) or disposing of any securities of the Company.
(xv) "Successor" means a person with or into which the
Company shall have been merged or consolidated or to which the
Company shall have transferred its assets as an entirety or
substantially as an entirety.
(xvi) "Termination Date" has the meaning assigned
to that term in Section 6.
(xvii) "This Agreement" means this Change of Control
Agreement as it may be amended from time to time.
(b) In the event of the enactment of any successor
provision to any statute or rule cited in this Agreement,
references in this Agreement to such statute or rule shall be to
such successor provision.
(c) The headings of Sections of this Agreement shall not
control the meaning or interpretation of this Agreement.
(d) References in this Agreement to any Section are to the
corresponding Section of this Agreement unless the context
otherwise indicates.
In Witness Whereof, the Company and the Employee have
executed this Agreement as of the Effective Date.
EOG RESOURCES, INC.
By: /s/ XXXXXXXX XXXXXXX
Name: Xxxxxxxx Xxxxxxx
Title: Vice President, Human Resources,
Administration & Corporate Secretary
XXXXX X. XXXXXX
/s/ XXXXX X. XXXXXX
