EXECUTION COPY
AGREEMENT
This Agreement, dated as of April 4, 2002, is entered into by and among
EOG Resources Inc., a Delaware corporation ("EOG"), Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., a cooperative institution organized under the
laws of The Netherlands ("RA") and Royal Bank of Canada, a corporation organized
under the laws of Canada ("RB").
WHEREAS, in 1999 EOG (which was formerly named Enron Oil & Gas Company),
effected a public offering of shares of its common stock ("EOG Common Stock")
and substantially concurrently therewith entered into a series of transactions
(such transactions, together with the public offering, are referred to herein as
the "1999 Transactions") with Enron Corp., an Oregon corporation ("Enron"),
which had been EOG's corporate parent from the time of EOG's formation until
completion of the 1999 Transactions; immediately prior to consummation of the
1999 Transactions, Enron owned approximately 53.5% of the EOG Common Stock which
was then outstanding; as a result of the 1999 Transactions, Enron reduced its
interest to 11,500,000 shares of EOG Common Stock, which constitute
approximately 10% at present of the outstanding shares of EOG Common Stock.
WHEREAS, pursuant to the 1999 Transactions, EOG sought to establish itself
as an independent widely held public company and as a result of the completion
thereof is accomplishing that objective; in furtherance of that objective EOG
included provisions in the Share Exchange Agreement with Enron dated as of July
19, 1999 (the "Share Exchange Agreement") which imposed limitations on the
actions of Enron with respect to EOG and on Enron's ability to sell, transfer,
pledge or otherwise dispose of shares of EOG Common Stock (particularly Sections
6.2 and 6.3 of the Share Exchange Agreement); and EOG has profitably and
successfully grown and developed as an independent widely held public company
since completion of the 1999 Transactions.
WHEREAS, in November 2000, Enron sought EOG's approval to transfer the
11,500,000 shares of EOG Common Stock which it retained following completion of
the 1999 Transactions (such shares, as the same may be adjusted pursuant to
Section 4 hereof, and as the amount thereof may be reduced by any sales,
transfers, pledges or other dispositions to purchasers other than RA or RB or
their respective affiliates, is hereinafter referred to as the "Block") through
several of its affiliates to another of its affiliates, Aeneas LLC, and obtained
such approval pursuant to a Consent Agreement dated November 28, 2000 (the
"Consent Agreement") between EOG, Enron and the Enron-affiliated entities which
are parties thereto (the "Enron Affiliates"), in which EOG gave such consent to
Enron in consideration of, among other matters, the Enron Affiliates' agreement
to certain limitations on their actions with respect to EOG and on their ability
to sell, transfer, pledge or otherwise dispose of all or part of the Block.
WHEREAS, following the execution of the Consent Agreement, Enron and one
or more of the Enron Affiliates engaged in certain structured finance
transactions involving the Block to which RB is a party and as to which RA has,
among other things, entered into a total return swap (the "Structured Finance
Transactions").
WHEREAS, in December 2001 Enron and a number of its subsidiaries filed a
voluntary petition for bankruptcy under Chapter 11 of the United States
Bankruptcy Code and in the resulting bankruptcy proceedings (the "Enron
Bankruptcy Proceedings") various claimants have asserted claims against or
interests in the Block, including RA and RB.
WHEREAS, EOG is entering into this Agreement with RA and RB to govern
various aspects of their future relationships, including certain obligations of
EOG and certain limitations on the actions of RA and RB with respect to EOG and
on their ability to sell, transfer, pledge or otherwise dispose of shares of
EOG.
NOW THEREFORE, in consideration of the mutual representations, warranties
and covenants herein contained, and other good and valuable consideration, the
receipt of which are hereby acknowledged, EOG, RA and RB hereby agree as
follows:
1. RIGHTS PLAN: In consideration of the agreements set forth herein, EOG
will amend as promptly as reasonably practicable, but in no event later
than April 12, 2002, its Rights Agreement dated as of February 14, 2000, as
amended as of December 13, 2001 and December 20, 2001, to provide that
notwithstanding the existing language of Section 1(a) thereof, RA will not
be deemed an "Acquiring Person" so long as it beneficially owns, in
addition to its beneficial ownership interest in the Block (including any
direct ownership interest thereof which may arise as a result of a purchase
of the Block by RA), not more than 1,500,000 shares in the aggregate of EOG
Common Stock all of which are beneficially owned as a result of the
ordinary course operations conducted by it or its subsidiaries which are
engaged in the asset management business and provided such shares are not
held with any purpose or effect of changing or influencing control of EOG.
2. TRANSFER RESTRICTIONS: In consideration of the agreements set forth
herein, RA agrees that it and its affiliates will not sell, transfer,
pledge or otherwise dispose or cause or direct the sale, transfer, pledge
or other disposition, directly or indirectly, of the Block (or any of the
shares included therein or any interest or rights in the Block or such
shares) except (a) pursuant to a public offering registered under the
Securities Act of 1933 (the "Securities Act") (provided that RA and RB
shall use reasonable efforts to cause the underwriters in such public
offering to distribute such shares in a widely dispersed manner), (b)
pursuant to Rule 144 promulgated under the Securities Act (which for the
avoidance of doubt shall require compliance with the conditions set forth
in paragraphs (e), (f) and (g) of such Rule without reference to paragraph
(k) thereof), (c) to any of its wholly owned subsidiaries or other wholly
owned entities (but only if and for so long as such subsidiary or entity
continues to be wholly owned and wholly controlled by it), which shall
immediately thereupon become subject to the provisions of this Agreement to
the same extent as RA and for purposes of any calculation or limitation
hereunder such shares will be considered to be beneficially owned by RA,
(d) pursuant to any merger approved by the Board of Directors of EOG with
respect to which RA did not violate the provisions of Section 3 hereof, (e)
any tender offer or exchange offer recommended by the Board of Directors of
EOG with respect to which RA did not violate the provisions of Section 3
hereof or (f) block sales of shares included in the Block so long as no
single purchaser or group of affiliated purchasers will purchase more than
an aggregate of 2.5% of the shares of EOG Common Stock which are then
outstanding in one transaction or a
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series of transactions in reliance on this clause (f), provided that the
purchasers of the shares sold in any such transaction shall be bona fide
institutional investors which would then meet the eligibility requirements
of Rule 13d-1(b)(1) under the Securities Exchange Act of 1934 (the
"Exchange Act") for filing a Schedule 13G (other than the beneficial
ownership of greater than 5% of the outstanding shares of EOG Common Stock)
or shall be foreign broker/dealers, foreign mutual funds, foreign
investment advisors, foreign investment companies or foreign banks which
under applicable rulings, releases or published interpretations of the
Securities and Exchange Commission ("SEC") or its staff are eligible to
file a Schedule 13G (other than the beneficial ownership of greater than 5%
of the outstanding shares of EOG Common Stock), but not by reason of Rule
13d-1(c) under the Exchange Act, and in any sale, transfer, pledge or other
disposition made in reliance on this clause (f), would not be part of a
group for the purpose of acquiring, holding, voting or disposing of equity
securities of EOG. EOG agrees to permit the shares sold in any block sales
pursuant to clause (f) of this Section 2 to be transferred on EOG's stock
record books without any restrictive legend or stop transfer order except
as may be required by law. RA covenants and agrees that it shall exercise
its rights under any agreement in a manner consistent with this Agreement
and that it will use its reasonable best efforts to cause RB to act in a
manner consistent with this Agreement. RB covenants and agrees that it
shall exercise its right under the Structured Finance Transactions to
negotiate the sale of the Block only in accordance with the instructions of
RA and the terms of this Agreement; provided that RB shall not be obligated
to exercise any such rights to the extent such exercise would violate any
applicable law or regulation or the documents relating to the Structured
Finance Transactions. RA agrees that it will instruct and direct RB not to
sell, transfer, pledge or otherwise dispose of the Block or any of the
shares included therein or any interest or rights in the Block or such
shares to RB or to RB's affiliates. RB agrees that it and its affiliates
will not acquire or obtain any beneficial ownership interest in the Block
or any of the shares included therein or any interest or rights in the
Block or such shares provided however that this provision shall not limit
the ability of any entity affiliated with RB that provides or offers (i)
ordinary course broker/dealer services to third parties; (ii) investment
advisory services whether to related parties or to third parties; (iii)
asset management services whether to related parties or to third parties;
or (iv) custodial services whether to related parties or to third parties,
from acquiring any shares of the Block in a sale pursuant to clauses (a)
(assuming such transaction takes place in a widely dispersed manner) or (b)
of this Section 2; and provided, further, that for purposes of this Section
2, RB's existing ownership interest in the Block under the documents
relating to the Structured Finance Transactions, as limited therein and
herein, shall not constitute a breach of this Section 2, it being
understood and agreed that this proviso shall not relate to any actions
taken with respect to the Block or any of the shares included therein or
any interest or rights in the Block or such shares from and after the date
hereof.
3. STANDSTILL PROVISIONS: Each of RA and RB agrees that, commencing on
the date hereof and ending on the Standstill Expiration Date (as
hereinafter defined), unless specifically requested in advance by EOG's
board of directors, neither it nor any of its affiliates will, directly or
indirectly (a) acquire, offer to acquire, or agree to acquire, or cause or
recommend that any other person or entity acquire, directly or indirectly,
by purchase, gift, through the acquisition or control of another person or
entity or otherwise, any
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voting securities of EOG (other than the acquisition of some or all of the
Block by RA and other than up to the 1,500,000 shares of EOG Common Stock
as provided in Section 1), (b) make or in any way participate in, directly
or indirectly, any "solicitation" of "proxies" to vote or become a
"participant" in any "election contest" (as such terms are used in the
proxy rules of the SEC) or seek to advise or influence any person or entity
with respect to the voting of any voting securities of EOG, (c) propose or
nominate any nominee for director of EOG, (d) submit any stockholder
proposal to be voted upon by the stockholders of EOG, (e) deposit any
voting securities in a voting trust or subject any such voting securities
to any arrangement or agreement with respect to the voting of such voting
securities, (f) propose any business combination (including without
limitation any merger or share exchange) involving EOG or make or propose a
tender or exchange offer or any other offer for any of EOG's voting
securities, or arrange, or participate in the arrangement of, financing
thereof, (g) disclose an intent, purpose, plan or proposal with respect to
EOG or its voting securities inconsistent with the provisions of this
Agreement, (h) from and after the date hereof, otherwise act, alone or in
concert with or on behalf of others, to seek directly or indirectly to
control the officers or board of directors of EOG, or (i) encourage or
assist any other person or entity in connection with any of the foregoing.
In addition, during the period from the date hereof until the Standstill
Expiration Date, at any meeting of EOG stockholders with respect to which
RA or RB has the right to vote or direct the vote of shares included in the
Block, RA and RB, as applicable, will attend such meeting in person or by
proxy and will vote or cause to be voted all of such shares in the manner,
if any, recommended by the board of directors of EOG, and RA and RB agree
to cause any of their affiliates to whom the Block may be transferred to
adhere to these requirements. For purposes hereof the "Standstill
Expiration Date" shall mean, as to RA or RB, as applicable, the later of
(i) July 31, 2002 and (ii) the earliest date that it (x) ceases to
beneficially own more than 5% of the outstanding shares of EOG Common Stock
or (y) ceases to have any beneficial ownership of the Block (or any of the
shares included therein or any interest or rights in the Block or such
shares), it being understood and agreed that nothing contained herein shall
constitute an acknowledgement by RB that it has beneficial ownership of the
Block, and RB hereby disclaims such beneficial ownership and represents
that it has no interest in the Block other than its interest under the
documentation for the Structured Finance Transactions as limited herein and
therein.
Notwithstanding the foregoing provisions of this Section 3, nothing
contained in this Section 3 (including the term "affiliates" with respect
to RB) shall limit the ordinary course business activities of any entity
otherwise affiliated with RB that provides or offers: (i) ordinary course
broker/dealer services to third parties; (ii) investment advisory services
whether to related parties or to third parties; (iii) asset management
services whether to related parties or to third parties; or (iv) custodial
services whether to related parties or to third parties. RB acknowledges
and agrees that it shall not attempt to change or influence the control of
EOG.
4. ADJUSTMENTS. If following the date hereof the shares of EOG Common
Stock are changed by reason of any reclassification, split up, stock split,
reverse stock split, stock dividend, stock combination, merger, share
exchange or similar transaction, there shall be equitably adjusted the
reference to 1,500,000 shares of EOG Common Stock in Section 1 and 3 of
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this Agreement, 2,000,000 shares in Section 5 of this Agreement, and all
references in this Agreement to the Block, including the number of shares
included in the definition thereof.
5. REGISTRATION RIGHTS. (a) If RA shall own or shall establish that it
has the right to direct the sale of shares included in the Block, it shall
have the right to request in writing that EOG register all or part (but not
less than 2,000,000) of such shares for sale under the Securities Act
(which request shall specify the number of shares of the Block (but not
less than 2,000,000) intended to be disposed of by or at the direction of
RA and the intended method of disposition thereof). EOG shall, as promptly
as reasonably practicable following such request, use its reasonable
efforts to cause to be filed with the SEC a registration statement
providing for the registration under the Securities Act of such shares
which EOG has been so requested to register, to the extent necessary to
permit their disposition in accordance with the intended methods of
disposition thereof specified in such request (but shall not include a
shelf registration pursuant to Rule 415 under the Securities Act). EOG
shall use reasonable efforts to have such registration statement declared
effective by the SEC as soon as reasonably practicable thereafter and to
keep such registration statement effective until the shares covered thereby
are sold but in no event longer than 90 days. Notwithstanding the
foregoing, RA shall not be permitted to request, in the aggregate, a total
of more than two separate registrations, and shall not be permitted to
request any such registration within one year of the completion of a prior
registered sale of shares which is made pursuant to this Section 5. EOG may
defer its obligations under this Section 5 in respect of any request for
registration for a period of up to 120 days in its sole discretion. EOG
shall not bear any of the Registration Expenses in connection with any such
registration (other than those referred to in clauses (iv) and (v) of the
following sentence); and RA shall pay all fees and expenses of any legal
counsel or other agents retained by RA, as applicable, all discounts and
commissions payable to underwriters, selling brokers, managers or other
similar persons engaged in the distribution of the securities included in
such registration pursuant to any registration pursuant to this Section 5
and all Registration Expenses (other than those referred to in clauses (iv)
and (v) of the following sentence, which shall be borne by EOG). The term
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement by EOG and its
subsidiaries, including, without limitation (i) all SEC, stock exchange,
National Association of Securities Dealers, Inc. and other registration,
listing and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws and compliance with
the rules of any stock exchange (including fees and disbursements of
counsel in connection with such compliance and the preparation of a blue
sky memorandum and legal investment survey), (iii) all expenses in
preparing or assisting in preparing, word processing, printing,
distributing, mailing and delivering any registration statement, any
prospectus, any underwriting agreements, transmittal letters, securities
sales agreements, securities certificates and other documents relating to
the performance of or compliance with Section 5 of this Agreement, (iv) the
fees and disbursements of counsel for EOG which are incurred in fulfilling
its obligations under this Section 5, (v) the fees and disbursements of all
independent public accountants (including the expenses of any audit and/or
"cold comfort" letters) and the fees and expenses of other experts retained
by EOG which are incurred in fulfilling EOG's obligations under this
Section 5,
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and (vi) the expenses incurred in connection with making road show
presentations and holding meetings with potential investors to facilitate
the distribution and sale of the securities, but shall not include any
salaries of EOG personnel or general overhead expenses of EOG, auditing
fees, or other expenses for the preparation of financial statements or
other data normally prepared by EOG in the ordinary course of its business
or which EOG would have incurred in any event.
(b) If requested by the sole or lead managing underwriter for any
underwritten offering effected pursuant to such registration, EOG shall use
its reasonable efforts to enter into a customary underwriting agreement
with the underwriters and RA for such offering, such agreement to be
reasonably satisfactory in substance and form to RA and to EOG, and to
contain such representations, warranties and covenants by EOG and such
other terms as are generally prevailing in agreements of that type,
including, without limitation, customary provisions with respect to
indemnification and contribution. Notwithstanding the foregoing, EOG shall
not be obligated to agree to any lock-up provisions which would apply to
the exercise of employee or director stock options and sale of shares
obtained thereby or to the cashless exercise of stock options.
6. COOPERATION. (a) EOG, RA and RB agree to use their respective
reasonable best efforts to seek and obtain an order in the Enron Bankruptcy
Proceedings and/or another court of competent jurisdiction which provides
(i) for the sale of the shares included in the Block as promptly as
practicable to purchasers and in sales transactions which would satisfy the
limitations set forth in clause (f) of Section 2 of this Agreement or would
otherwise comply with the proviso to this sentence, such sales to be made
through a broker dealer (the "Block Trader") which is among the top 15
traders of EOG Common Stock during the most recent period ended on the last
trading day prior to the date hereof as reported by a firm or service
(e.g., Autex) which maintains statistics with respect to trading in shares
of EOG Common Stock (or if such information is not available, then a "bulge
bracket" firm), and (ii) that the proceeds of such sales shall be held in
escrow until competing claims to the ownership thereof are resolved by
agreement or by a final and non-appealable order of a court of competent
jurisdiction; provided that, in addition to the limitations as to
purchasers and the size limitations of clause (f) of Section 2 of this
Agreement, each of RA and EOG shall be free to purchase shares of EOG
Common Stock which are included in the Block and are sold by the Block
Trader, so long as any shares so purchased by RA shall be subject to the
limitations and restrictions of this Agreement. The parties' obligation to
use reasonable best efforts (i) shall continue until June 15, 2002 or, if
the June 28, 2002 deadline arising from the Structured Finance Transactions
shall be extended, then until two weeks before such deadline as so extended
and (ii) shall not require any party to delay or cease any request for
pretrial discovery in respect of any motions or pleadings which it shall
have made or filed heretofore in the Enron Bankruptcy Proceedings, but the
parties shall not be permitted to move for summary adjudication in respect
of such motions or pleadings during the period it is obligated to use
reasonable best efforts. This Agreement shall not be construed as
acquiescence by any party hereto in any interpretation of the Share
Exchange Agreement, the Consent Agreement or the Structured Finance
Transactions asserted by any other party hereto.
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(b) EOG agrees to cooperate with RA and RB reasonably promptly hereafter to
provide reasonable access to EOG's documents, information and employees to
permit an investigation of the Consent Agreement and the transfer of the
Block which occurred pursuant thereto and the transactions contemplated
thereby, and the negotiation of such agreement and/or other related
instruments, subject to any applicable privilege or other protection from
disclosure.
7. REPRESENTATIONS: Each party signatory hereto hereby represents and
warrants to each other party that the following statements are true and
correct:
(a) it is an organization duly incorporated or formed, validly existing,
and in good standing under the laws of its jurisdiction of incorporation or
formation, with all requisite power to enter into and to perform its
obligations under this Agreement, and is duly qualified or registered and
in good standing in each other jurisdiction in which the character of the
business conducted by it or permitted to be conducted by it requires such
qualification or registration, except where the failure to be so qualified
would not adversely affect the transactions contemplated by this Agreement;
(b) its execution, delivery and performance of this Agreement have been
duly authorized by all appropriate action by it and (if required) its
stockholders, members or other owners, and this Agreement has been duly
executed and delivered;
(c) its authorization, execution, delivery and performance of this
Agreement do not (i) violate its organizational, charter or other
constituent documents, (ii) conflict with, result in a breach of any of the
terms, conditions or provisions of, or constitute a default under, any
other material agreement or arrangement to which it is a party or by which
it is bound or with any provision of law, regulation, judgment or decree to
which it is subject or with any permit or license which it has been
granted, or (iii) require the filing or registration with, or the approval,
authorization or consent of any governmental agency or tribunal other than
filings with the SEC of amended Schedules 13G by RA and RB and a Form 8-A/A
and Form 8-K by EOG;
(d) this Agreement constitutes its valid, binding and enforceable
agreement; and
(e) there is no action, suit or proceeding pending, or, to its knowledge,
is any of such threatened, against it, seeking any injunction, award or
other relief that would impair its ability to perform its obligations under
this Agreement other than the Enron Bankruptcy Proceedings and any actions
or claims related thereto or arising as a result thereof.
In addition, each of RA and RB represents and warrants to EOG that it has
not sold, transferred, pledged or otherwise disposed of any of the
interests or rights it owns or controls in the Block, in whole or in part,
or any interest therein except to each other pursuant to the documents
relating to the Structured Finance Transactions delivered to EOG's counsel
on March 27, 2002 (which, to the best knowledge of RA and RB, is a complete
and accurate set as of the date hereof (including any amendments and
waivers)).
8. MISCELLANEOUS:
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(a) GOVERNING LAW; VENUE. The parties hereto shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in the
Chancery Court or other Courts of the State of Delaware, this being in
addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of the Chancery Court or other Courts
of the State of Delaware in the event any dispute arises out of this
Agreement or the transactions contemplated by this Agreement, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that it
will not bring any action relating to this Agreement or the transactions
contemplated by this Agreement in any court other than the Chancery Court
or other Courts of the State of Delaware, and (iv) each of the parties
irrevocably consents to service of process by first class certified mail,
return receipt requested, postage prepaid, or by facsimile to the address
at which such party is to receive notice as set out below each party's
signature herein. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN
SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH
STATE.
RA hereby irrevocably designates Xxxxxxx Xxxx & Xxxxx (in such capacity the
"RA Process Agent"), with an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as its designee, appointee and agent to receive, for and on its
behalf service of process in such jurisdiction in any legal action or
proceedings with respect to this Agreement or any other agreement executed
in connection with this Agreement, and such service shall be deemed
complete upon delivery thereof to the RA Process Agent, provided that in
the case of any such service upon the RA Process Agent, the party effecting
such service shall also deliver a copy thereof to RA in the manner provided
in this Section 8(a). RA shall take all such action as may be necessary to
continue said appointment in full force and effect or to appoint another
agent so that RA will at all times have an agent for service of process for
the above purposes in the city of New York. In the event of the transfer of
all or substantially all of the assets and business of the RA Process Agent
to any entity or other person by consolidation, merger, sale of assets or
otherwise, such entity or other person shall be substituted hereunder for
the RA Process Agent with the same effect as if named herein in place of
Xxxxxxx Xxxx & Xxxxx. RA further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered airmail, postage
prepaid, or facsimile to such party at its address set out below each
party's signature herein. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by applicable New York
law. RA expressly acknowledges that the foregoing waiver is intended to be
irrevocable under the laws of the State of New York and of the United
States of America.
RB hereby irrevocably designates White & Case LLP (in such capacity the "RB
Process Agent"), with an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as its designee, appointee and agent to receive, for and on
its behalf service of process in
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such jurisdiction in any legal action or proceedings with respect to this
Agreement or any other agreement executed in connection with this
Agreement, and such service shall be deemed complete upon delivery thereof
to the RB Process Agent, provided that in the case of any such service upon
the RB Process Agent, the party effecting such service shall also deliver a
copy thereof to RB in the manner provided in this Section 8(a). RB shall
take all such action as may be necessary to continue said appointment in
full force and effect or to appoint another agent so that RB will at all
times have an agent for service of process for the above purposes in the
city of New York. In the event of the transfer of all or substantially all
of the assets and business of the RB Process Agent to any entity or other
person by consolidation, merger, sale of assets or otherwise, such entity
or other person shall be substituted hereunder for the RB Process Agent
with the same effect as if named herein in place of White & Case LLP. RB
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered airmail, postage prepaid, or facsimile to such
party at its address set out below each party's signature herein. Nothing
herein shall affect the right of any party to serve process in any other
manner permitted by applicable New York law. RB expressly acknowledges that
the foregoing waiver is intended to be irrevocable under the laws of the
State of New York and of the United States of America.
EOG hereby irrevocably designates Wachtell, Lipton, Xxxxx & Xxxx (in such
capacity the "EOG Process Agent"), with an office at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 as its designee, appointee and agent to receive,
for and on its behalf service of process in such jurisdiction in any legal
action or proceedings with respect to this Agreement or any other agreement
executed in connection with this Agreement, and such service shall be
deemed complete upon delivery thereof to the EOG Process Agent, provided
that in the case of any such service upon the EOG Process Agent, the party
effecting such service shall also deliver a copy thereof to EOG in the
manner provided in this Section 8(a). EOG shall take all such action as may
be necessary to continue said appointment in full force and effect or to
appoint another agent so that EOG will at all times have an agent for
service of process for the above purposes in the city of New York. In the
event of the transfer of all or substantially all of the assets and
business of the EOG Process Agent to any entity or other person by
consolidation, merger, sale of assets or otherwise, such entity or other
person shall be substituted hereunder for the EOG Process Agent with the
same effect as if named herein in place of Wachtell, Lipton, Xxxxx & Xxxx.
EOG further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered airmail, postage prepaid, or facsimile to
such party at its address set out below each party's signature herein.
Nothing herein shall affect the right of any party to serve process in any
other manner permitted by applicable New York law. EOG expressly
acknowledges that the foregoing waiver is intended to be irrevocable under
the laws of the State of New York and of the United States of America.
(b) ENTIRE AGREEMENT; AMENDMENT. This Agreement, and any agreements,
instruments or documents executed and delivered by the parties or their
affiliates pursuant to this Agreement, constitute the entire agreement and
understanding among the parties, and it is understood and agreed that all
other previous undertakings, negotiations and agreements
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among the parties regarding the subject matter hereof are merged herein. If
RA or RB shall be entitled to direct the disposition of the Block (or any
shares included therein) and the restrictions on disposition of the Block
(or any shares included therein) which are applicable to Enron Affiliates
are inconsistent with the provisions of this Agreement, the provisions of
this Agreement shall govern. This Agreement may not be modified orally, but
only by an agreement in writing signed by each of the parties.
(c) WAIVERS. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such
right, power or privilege.
(d) BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. This Agreement and all
of its provisions, rights and obligations shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
This Agreement shall not be assigned by operation of law or otherwise.
Nothing herein express or implied is intended or shall be construed to
confer upon or to give anyone other than the parties any rights or benefits
under or by reason of this Agreement, and no other party shall have any
right to enforce any of the provisions of this Agreement.
(e) EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier or facsimile shall be effective as delivery of a
manually executed counterpart of this Agreement.
(f) DESCRIPTIVE HEADINGS, ETC. The recitals and headings in this Agreement
are not part of this Agreement and shall not limit or otherwise affect the
terms contained herein; provided that, notwithstanding the foregoing, the
definitions set forth in the recitals are an integral part of this
Agreement and shall be given full force and effect in accordance with their
terms.
(g) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this Agreement
shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EOG Resources Inc. Cooperatieve Centrale Raffeisen-
Boerenleenbank B.A.
By: /s/ Xxxxxx X. Xxxxxx III By: /s/ Xxx X. van der Velde
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxx III Name: Xxx X. van der Velde
------------------------------- -----------------------------
Title: President and Chief of Staff Title: Senior Vice President
------------------------------ -----------------------------
Address for Notices: By: /s/ Xxxx X. Dakker
000 Xxxx Xxxxxx -------------------------------
------------------------------------ Name: Xxxx X. Dakker
Suite 4200 -----------------------------
------------------------------------ Title: Member of Managing Board
Xxxxxxx, XX 00000-0000 -----------------------------
------------------------------------
Facsimile: 000-000-0000 Address for Notices:
------------------------------------ Robobank International
------------------------------------
Croeseloon 18, 3521 CB
------------------------------------
X.X Xxx 00000, 0000 XX Xxxxxxx
------------------------------------
Facsimile: 011 31 30 216 3761
------------------------------------
c/o Xxx X. van der Velde
Royal Bank of Canada
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address for Notices:
RBC Captial Markets
------------------------------------
12th Floor Seventh Tower
------------------------------------
Xxxxx Xxxx Xxxxx, Xxxxxxx,
Xxxxxxx XXX 0X0
------------------------------------
Facsimile: 000-000-0000
------------------------------------
11
