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EXHIBIT 99.2
EOG RESOURCES, INC.
Fixed Rate Cumulative Perpetual Senior Preferred Stock, Series A
Liquidation Preference $1,000 Per Share
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PURCHASE AGREEMENT
December 7, 1999
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Xxxxxxx, Sachs & Co.
c/x Xxxxxx Brothers Inc.
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
EOG Resources, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to Xxxxxx
Brothers Inc., Banc of America Securities LLC and Xxxxxxx, Xxxxx & Co.
(collectively, the "Purchasers," which term shall also include any purchaser
substituted as hereinafter provided in Section 11), acting severally and not
jointly, the number of shares set forth opposite their respective names on Annex
I hereto, of the Preferred Stock of the Company specified above (the "Shares")
for resale by the Purchasers, acting severally and not jointly, to "qualified
institutional buyers" in reliance upon Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"), or to certain institutional accredited
investors in accordance with Section 3 of this Agreement.
1. The Company represents and warrants to, and agrees with, each
Purchaser that:
(a) A preliminary offering memorandum dated December 2, 1999
and an offering memorandum dated December 7, 1999 in respect of the
Shares has been prepared in connection with the offering of the Shares
(such preliminary offering memorandum, including the documents
incorporated by reference therein, is herein called the "Preliminary
Offering Memorandum" and the offering memorandum, including the
documents
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incorporated by reference therein, is herein called the "Offering
Memorandum"); and the Preliminary Offering Memorandum and the Offering
Memorandum and any amendments or supplements thereto do not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Purchasers expressly for use
therein;
(b) The documents incorporated or deemed incorporated by
reference in the Offering Memorandum at the time they were or are
hereafter filed with the Securities and Exchange Commission (the "SEC")
complied and will comply in all material respects with the requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") and the
rules and regulations of the SEC thereunder, and such documents have
been or will be timely filed with the SEC;
(c) Since the respective dates as of which information is
given in the Offering Memorandum, there has not been any material
adverse change in the general affairs, prospects, management, financial
position or results of operations of the Company and its consolidated
subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, in each case other than as set forth in or
contemplated by the Offering Memorandum;
(d) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware; has
full power and authority (corporate and other) to own its properties
and to conduct its business as such business is described in the
Offering Memorandum, and is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which
the ownership of its properties or the conduct of its business requires
such qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company;
(e) The authorized, issued and outstanding shares of capital
stock of the Company is as set forth in the Offering Memorandum; such
shares of capital stock have been duly authorized and validly issued by
the Company and are fully paid and non-assessable; none of such shares
of capital stock was issued in violation of preemptive or other similar
rights of any securityholder of the Company; and the Shares have been
duly authorized by the Company for issuance and, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration therefor set forth herein, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company;
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(f) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse affect on the Company
and its consolidated subsidiaries, taken as a whole; and all the
outstanding shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(g) This Agreement has been duly authorized, executed and
delivered by the Company; the Registration Rights Agreement referred to
in the Offering Memorandum (the "Registration Rights Agreement") has
been duly authorized by the Company and, when executed and delivered by
the Company and the other parties thereto, the Registration Rights
Agreement will constitute a valid and legally binding instrument,
enforceable against the Company in accordance with its terms, subject
as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws relating to or
affecting creditors' rights generally and to general equity principles;
and the Shares and the Registration Rights Agreement will conform to
the descriptions thereof in the Offering Memorandum;
(h) The issuance and delivery of the Shares and the execution
and delivery of the Registration Rights Agreement and this Agreement,
the consummation of the transactions therein and herein contemplated
and the compliance with the terms thereof and hereof are within the
Company's corporate powers, and do not and will not conflict with,
violate or result in a breach of any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation, as
amended or restated, or By-laws of the Company, or any indenture,
mortgage or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which any of their respective
property or assets is subject, or any existing applicable law, rule,
regulation, judgment, order or decree of any domestic government,
governmental instrumentality or court having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such governmental
instrumentality or court is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement, the terms of the Shares or the
Registration Rights Agreement referred to in the Offering Memorandum,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and resale of the Shares by the
Purchasers;
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(i) Other than as set forth in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any of their
respective properties or assets is the subject which, if determined
adversely to the Company or such subsidiary, would individually or in
the aggregate have a material adverse effect on the financial position
or results of operations of the Company and its consolidated
subsidiaries taken as a whole or that could adversely affect the
consummation of the transactions contemplated by this Agreement, the
terms of the Shares or the Registration Rights Agreement; and, to the
knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or by others;
(j) The Company and its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders and other
concessions of and from all governmental regulatory officials and
bodies that are necessary to own or lease their respective properties
and conduct their respective businesses as described in the Offering
Memorandum, except for such licenses, franchises, permits,
authorizations, approvals, orders and concessions the failure to obtain
which will not have a material adverse effect on the financial
condition or results of operations of the Company and its consolidated
subsidiaries taken as a whole;
(k) When the Shares are issued and delivered pursuant to this
Agreement, none of the Shares will be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange registered under Section 6 of
the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system;
(l) The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the net proceeds
therefrom will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(m) Neither the Company nor any person acting on behalf of the
Company has offered or sold the Shares by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act;
(n) The Company is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act; and
(o) The Company is not subject to any obligation, duty or
liability imposed on it as a "holding company," a "subsidiary company"
of a "holding company," an "affiliate" of a "holding company," or an
"affiliate" of a "subsidiary company" of a "holding company," in each
case as such term is defined in Public Utility Holding Company Act of
1935, as amended ("PUHCA").
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2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, agrees to purchase from the Company, at a purchase price of $980.00
per share, the number of Shares set forth opposite its name on Annex I hereto.
The Company hereby confirms to each Purchaser that, within the
preceding 12 months, neither the Company nor any other person acting on behalf
of the Company has offered or sold to any person any Shares, or any securities
of the same or a similar class as any of the Shares, other than Shares offered
or sold to the Purchasers.
3. Upon the authorization by the Company of the release of the Shares,
each Purchaser, acting severally and not jointly, proposes to offer the Shares
for resale upon the terms and conditions set forth in this Agreement, the
Offering Memorandum (including the restrictions set forth under the caption
"Notice to Investors" therein), the terms of the Shares and the legend on the
certificates for the Shares, and each Purchaser hereby represents and warrants
to, and agrees with, the Company that:
(a) It will offer or sell the Shares only to (i) persons who
it reasonably believes are "qualified institutional buyers" within the
meaning of Rule 144A under the Securities Act in transactions meeting
the requirements of such Rule 144A or (ii) a limited number of persons
that it reasonably believes to be and, with respect to sales, are
accredited investors, as such term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Institutional Accredited
Investors");
(b) It is an "accredited investor" within the meaning of Rule
501 under the Securities Act; and
(c) It will not offer or sell Shares by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act.
4. Certificates for the Shares to be purchased by the Purchasers
hereunder, in definitive global form, registered in the name of Cede & Co.,
shall be delivered by or on behalf of the Company to the Purchasers through the
facilities of The Depository Trust Company for the account of the Purchasers,
against payment by the Purchasers or on their behalf of the purchase price
therefor by wire transfer of immediately available funds to a bank account
designated by the Company. Xxxxxx Brothers Inc. may (but shall not be obligated
to) make payment of the purchase price for the Shares to be purchased by any
other Purchaser hereunder whose funds have not been received by the Time of
Delivery (as defined below), but such payment shall not relieve such Purchaser
from its obligations hereunder. The closing of the sale and purchase of the
Shares shall be held at the offices of Xxxxxxxxx & Xxxxxxxxx, L.L.P., South
Tower Pennzoil Place, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx, except that physical
delivery of the certificates for the Shares may be made at the offices of Bank
of New York on behalf of The Depository Trust Company. The time and date of such
delivery
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and payment with respect to the Shares shall be at 9:00 a.m., Houston time, on
December 10, 1999 or at such other time and date as the Purchasers and the
Company may agree upon in writing, such time and date for delivery being herein
called the "Time of Delivery."
5. The Company agrees with each Purchaser as follows:
(a) To prepare the Offering Memorandum in a form approved by
the Purchasers, to make no further amendment or any supplement to the
Offering Memorandum which shall be disapproved by the Purchasers
promptly after reasonable notice thereof; and to advise the Purchasers
promptly of any such amendment or supplement after the Time of Delivery
and to furnish the Purchasers with copies thereof;
(b) To cooperate with the Purchasers in qualifying the Shares
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Purchasers may reasonably request; provided that
in no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified, to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject, to qualify in any jurisdiction as a
broker-dealer or to subject itself to any taxing authority where it is
not now so subject;
(c) To furnish the Purchasers and their counsel with four
copies of the Offering Memorandum and each amendment or supplement
thereto signed for purposes of identification by an authorized officer
of the Company, and to furnish such additional quantities thereof as
any Purchaser may from time to time reasonably request, and if, at any
time prior to completion of the resale of the Shares by any Purchaser,
any event shall have occurred as a result of which the Offering
Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Memorandum
is delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or supplement
the Offering Memorandum, to notify each Purchaser and upon a
Purchaser's request to prepare and furnish without charge to any
Purchaser and to any dealer in securities as many copies as such
Purchaser may from time to time reasonably request of an amended
Offering Memorandum or a supplement to the Offering Memorandum which
will correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the expiration of six months after the Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any securities of the Company which mature more than one year after
such Time of Delivery and which are substantially similar to the Shares
without the prior written consent of each Purchaser;
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(e) During the period of two years after the sale of the
Shares to the Purchaser hereunder, not to resell or permit any
affiliates (as defined in Rule 144 under the Securities Act) to, resell
any of the Shares that have been reacquired by the Company or any of
its affiliates;
(f) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment
trust, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment
Company Act;
(g) So long as the Shares are outstanding, for the benefit of
the holders of Shares from time to time, to file with SEC on a timely
basis and otherwise in accordance with the rules and regulations of the
SEC, annual reports on Form 10-K and interim reports on Forms 10-Q and
8-K, or, in each case, the successor form thereto; and
(h) From the date hereof to the Time of Delivery, not to,
directly or indirectly, sell, offer to sell, contract to sell, grant an
option to purchase, issue any instrument convertible into or
exchangeable for, or otherwise issue securities of the Company or its
subsidiaries similar to, the Shares without the prior written approval
of each Purchaser.
6. The Company covenants and agrees with each Purchaser that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Shares, the preparation and printing of the Preliminary Offering
Memorandum and the Offering Memorandum and amendments and supplements thereto
and the mailing and delivering of copies thereof to each Purchaser and dealers;
(ii) the cost of printing or producing this Agreement, the Registration Rights
Agreement, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of a single counsel for
the Purchasers in connection with such qualification and in connection with any
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Shares; (v) the cost of preparing certificates
representing the Shares; (vi) the cost of qualifying the Shares with The
Depository Trust Company; (vii) the reasonable fees and disbursements of counsel
for the Purchasers; (viii) all fees and expenses in connection with listing the
Shares on any stock exchange(s); (ix) all fees and expenses of any transfer
agent and registrar; and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 10 hereof, each
Purchaser will pay all of its own costs and expenses, including transfer taxes,
if any, on resale of any of the Shares by it.
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7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Purchasers,
shall have furnished to them such opinion or opinions, dated the Time
of Delivery, with respect to the incorporation of the Company, the
validity of the Shares, the due authorization, execution and delivery
of this Agreement and the Registration Rights Agreement, the Offering
Memorandum, and other related matters as the Purchasers may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(b) (A) Fulbright & Xxxxxxxx L.L.P., counsel for the Company,
shall have furnished to the Purchasers an opinion, dated the Time of
Delivery, in form and substance satisfactory to the Purchasers, to the
effect that:
(i) The Company has authorized capitalization as set
forth in the Offering Memorandum;
(ii) The Shares have been duly authorized by the
Company for issuance and sale to the Purchasers pursuant to
this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the
consideration therefor set forth herein, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any shareholder of
the Company; the relative rights, preferences, interests and
powers of the holders of the Shares are as set forth in the
Certificate of Designation relating thereto, and all such
provisions are valid under the laws of the State of Delaware;
and the Shares conform in all material respects to the
description thereof contained in the Offering Memorandum;
(iii) The Purchase Agreement has been duly
authorized, executed and delivered by the Company;
(iv) The Registration Rights Agreement has been duly
authorized and validly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the
other party or parties thereto, constitutes a valid and
binding agreement of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws relating to or affecting creditors' rights
generally and to general equity principles and such counsel
need not express any opinion as to the
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enforceability of any provisions of the Registration Rights
Agreement relating to indemnity and contribution, and the
Registration Rights Agreement conforms in all material
respects to the description thereof contained in the Offering
Memorandum;
(v) No registration of the Shares under the
Securities Act is required for the offer, sale and initial
resale of the Shares in the manner contemplated by this
Agreement and the Offering Memorandum;
(vi) The issuance and delivery of the Shares, the
execution and delivery of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions
herein and therein contemplated and the compliance with the
terms of this Agreement and the Registration Rights Agreement,
do not and will not conflict with, violate or result in a
breach of any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation, as amended or
restated, or the By-laws of the Company;
(vii) The Company is not, and after the consummation
of the sale of the Shares contemplated by this Agreement will
not be, an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the
Investment Company Act; and
(viii) The Company is not subject to, or is exempt
from, regulation as a "holding company," a "subsidiary
company" of a "holding company," an "affiliate" of a "holding
company," or an "affiliate" of a "subsidiary company" of a
"holding company," in each case as such term is defined in
PUHCA.
(B) Xxxxx Xxxxxxxx, Xx., Senior Vice President and
General Counsel of the Company, shall have furnished to the Purchasers
an opinion, dated the Time of Delivery, in form and substance
satisfactory to the Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware, with all necessary corporate power and
authority to own its properties and conduct its business as
such business is described in the Offering Memorandum;
(ii) The issuance and delivery of the Shares and the
execution and delivery of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions
herein and therein contemplated and the compliance with the
terms of the Shares, this Agreement and the Registration
Rights Agreement, do not and will not conflict with, violate
or result in a breach of any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation,
as amended or restated, or By-laws of the Company, or any
indenture,
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mortgage or, to such counsel's knowledge, other agreement or
instrument to which the Company or any of its subsidiaries
listed on Annex II hereto (the "Major Subsidiaries") is a
party or to which any of the properties or assets of any of
them is subject, or any existing applicable law, rule,
regulation, judgment, order or decree of any domestic
government, governmental instrumentality or court known to
such counsel and having jurisdiction over the Company or any
Major Subsidiary or any of their respective properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such governmental instrumentality
or court is required for the issue and sale of the Shares
pursuant to and in accordance with the terms of this Agreement
and as contemplated by the Offering Memorandum or the
consummation by the Company of the transactions contemplated
by this Agreement or the Registration Rights Agreement, except
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and resale of the Shares by the Purchasers;
(iii) Each of the Major Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has full
corporate power and authority to own its properties and to
conduct its business as such business is described in the
Offering Memorandum;
(iv) Each document filed with the SEC pursuant to the
Exchange Act (except for the reports of experts pertaining to
natural resource reserves and the financial statements and
other financial data included in the Offering Memorandum, as
to which such council need express no opinion) which is
incorporated by reference in the Offering Memorandum, complied
as to form, when so filed, in all material respects with
requirements of the particular form of the SEC upon which it
was filed;
(v) Other than as set forth in the Offering
Memorandum, there are no legal or governmental proceedings
pending to which the Company or any Major Subsidiary is a
party or of which any property or assets of the Company or a
Major Subsidiary is the subject which, if determined adversely
to the Company or such Major Subsidiary, would individually or
in the aggregate have a material adverse effect on the
consolidated financial position or results of operations of
the Company and its consolidated subsidiaries taken as a whole
or that could adversely affect the consummation of the
transactions contemplated by this Agreement; and to such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or by others; and
(vi) The descriptions in the Offering Memorandum of
statutes, legal and governmental proceedings and contracts and
other documents are accurate in all material respects and
fairly present the information contained therein.
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Such opinions shall also contain a statement to the
effect that no facts have come to such counsel's attention
that has caused such counsel to believe that the Offering
Memorandum (except for the financial statements and schedules,
natural resource reserve reports or other financial and
reserve data included in the Offering Memorandum, as to which
such counsel need express no belief) and any further
amendments or supplements thereto made by the Company prior to
the Time of Delivery contained as of its date or contains as
of the Time of Delivery an untrue statement of a material fact
or omitted or omits, as the case may be, to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) On the date hereof and also at the Time of Delivery,
Xxxxxx Xxxxxxxx LLP shall have furnished to the Purchasers letters,
dated the respective date of delivery thereof, in form and substance
satisfactory to the Purchasers, to the effect set forth in Annex III
hereto as to financial information in the Offering Memorandum relating
to the Company;
(d) (i) The Company shall not have sustained since the date of
its latest audited financial statements included in the Offering
Memorandum any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Offering Memorandum, and (ii) since the respective dates of which
information is given in the Offering Memorandum there shall not have
been any change in the capital stock or long-term debt of the Company
or any change, or any development involving a prospective change, in or
affecting the general affairs, prospects, management, financial
position, stockholder's equity or results of operations of the Company
otherwise than as set forth or contemplated in the Offering Memorandum,
the effect of which, in any such case described in Clause (i) or (ii),
is in the Purchasers' judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the offering of the Shares
for resale or the delivery of the Shares on the terms and in the manner
contemplated in this Agreement and the Offering Memorandum;
(e) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded any securities of the Company by any
"nationally recognized statistical rating organization," as that term
is defined for purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the securities of the Company;
(f) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
outbreak or escalation
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of hostilities involving the United States or the declaration by the
United States of a national emergency or war; if the effect of any such
event specified in clause (iii) in your judgment makes it impracticable
or inadvisable to proceed with the offering or the delivery of, or
materially impairs the ability of the Purchasers to purchase, hold or
effect resales of, the Shares on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum; and
(g) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to the Purchasers as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (d) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Purchaser and
each person, if any, who controls each Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum (or any amendment or
supplement thereto), or any report furnished to
securityholders and not otherwise deemed to be included in the
Offering Memorandum, or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 8(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 8(c) hereof, the fees
and disbursements of counsel chosen by the Purchasers),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that the
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indemnity set forth in this Section 8(a) shall not apply to
any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company
by or on behalf of the Purchasers expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum (or
any amendment or supplement thereto).
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, directors of the Company, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of each Purchaser expressly for use
therein.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the Purchasers, and, in the
case of parties indemnified pursuant to Section 8(b) above, counsel to
the indemnified parties shall be selected by the Company, provided that
if it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties defendant
in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel
to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise
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or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 8
hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement
of the nature contemplated by Section 8(a)(ii) effected without its
consent if such indemnifying party (i) reimburses such indemnified
party in accordance with such request to the extent it considers such
request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in
each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 8 is
for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to herein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Purchasers on the other hand from the offering of the Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of
the Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Purchasers on the other hand in connection with the offering of the
Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Shares pursuant to this Agreement (before deducting expenses but
after deducting the total fee or
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commission received by the Purchasers) received by the Company and the
total fee or commission received by the Purchasers bear to the
aggregate initial public offering price of the Shares. The relative
fault of the Company on the one hand and the Purchasers on the other
hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Purchasers and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8(e) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in
this Section 8(e). The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to
above in this Section 8(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8(e), no Purchaser shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares purchased and resold by it were
resold to investors exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission. For
purposes of this Section 8(e), each person, if any, who controls a
Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such Purchaser; and each director of the Company, and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such flatulent misrepresentation. The
Purchasers' obligations to contribute as provided in this Section 8(e)
are several and not joint.
(f) The Purchasers hereby confirm and the Company acknowledges
that the statements made in (i) the last full paragraph on the cover
page of the Preliminary Offering Memorandum and of the Offering
Memorandum concerning the terms of the offering of the Shares by the
Purchasers; and (ii) the second sentence of the seventh paragraph of
the text under the caption "Offer and Resale" in the Preliminary
Offering Memorandum and the Offering Memorandum, concerning the
intention of the Purchasers to make a market in the Shares, constitute
the only written information furnished to the Company by or on behalf
of the Purchasers expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto).
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9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
10. If for any reason, the Shares are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse the Purchasers for
all out-of-pocket expenses approved in writing by the Purchasers, including fees
and disbursements of counsel, reasonably incurred by the Purchasers in making
preparations for the purchase, sale and delivery of the Shares, but the Company
shall then be under no further liability to the Purchasers except as provided in
Section 6 and Section 8 hereof.
11. If any of the Purchasers shall fail at the Time of Delivery to
purchase the Shares which it is obligated to purchase under this Agreement (the
"Defaulted Shares"), the remaining Purchaser(s) (the "Non-Defaulting Initial
Purchaser(s)") shall have the right, but not the obligation, within 24 hours
thereafter, to make arrangements to purchase (alone or together with any other
purchasers) all, but not less than all, of the Defaulted Shares upon the terms
herein set forth. If, however, the Non-Defaulting Initial Purchaser(s) shall not
have completed such arrangements within such 24-hour period, then this Agreement
shall terminate without liability on the part of the Non- Defaulting Initial
Purchaser(s).
No action taken pursuant to this Section 11 shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, then either the Non-Defaulting Initial Purchaser(s) or the
Company shall have the right to postpone the Time of Delivery for a period not
exceeding seven days in order to effect any required changes in the Offering
Memorandum or in any other documents or arrangements.
12. All statements, requests, notices, and agreements hereunder shall
be in writing, and if to the Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to them in care of Xxxxxx Brothers Inc., 0 Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, Facsimile
No. (000) 000-0000; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to it at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx, 00000, Attention: Xxxxx Xxxxxx, Vice President, Finance, Facsimile No.
(000) 000-0000. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Company, the Purchasers and, to the extent provided in Section 8
and Section 9 hereof, the directors of the Company and each person who controls
the Company or the Purchasers, and their respective
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heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Purchaser shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence in this Agreement. As used herein, the
term "business day" shall mean any day when banks in the Borough of Manhattan,
The City of New York are open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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' If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between each of the Purchasers and the Company in accordance with its terms.
Very truly yours,
EOG RESOURCES, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
By: XXXXXX BROTHERS INC.
By: /s/ SIGNATURE ILLEGIBLE
-------------------------------
Name:
Title:
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ANNEX I
Initial Purchaser
-----------------
Number of
Shares
to be Purchased
---------------
Xxxxxx Brothers Inc............................................................ 66,000
Banc of America Securities LLC................................................. 17,000
Xxxxxxx, Sachs & Co............................................................ 17,000
-------
Total......................................................... 100,000
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ANNEX II
LIST OF MAJOR SUBSIDIARIES
EOG Resources International, Inc.
EOG Resources Marketing, Inc.
EOG Resources Canada Inc.
EOG-Canada, Inc.
EOG Resources Trinidad Limited
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ANNEX III
DESCRIPTION OF COMFORT LETTER
PERTAINING TO THE COMPANY
Pursuant to Section 7(c) of the Purchase Agreement, the accountants
shall furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with
respect to the Company within the meaning of the Code of Professional
Ethics and Rules of Conduct of the American Institute of Certified
Public Accountants;
(ii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five fiscal years included in the Offering Memorandum
agrees with the corresponding amounts (after restatements where
applicable) in the Company's audited consolidated financial statements
for such fiscal years;
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company, inspection of the minute
books of the Company since the date of the latest audited financial
statements included in the Offering Memorandum, inquiries of officials
of the Company responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Memorandum are not in
conformity with generally accepted accounting principles
applied on the basis substantially consistent with the basis
for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Memorandum;
(B) any other unaudited income statement data and
balance sheet items included in the Offering Memorandum do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included in the Offering
Memorandum;
(C) the unaudited financial statements which were not
included in the Offering Memorandum but from which were
derived any unaudited condensed financial statements referred
to in Clause (A) and any unaudited income statement
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data and balance sheet items included in the Offering
Memorandum and referred to in Clause (B) were not determined
on a basis substantially consistent with the basis for the
audited consolidated financial statements included in the
Offering Memorandum;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Offering Memorandum do
not comply as to form in all material respects with the
applicable accounting requirements or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock or any increase in the
consolidated long-term debt of the Company, or any decreases
in consolidated net current assets or net assets or other
items specified by the Purchasers, or any increases in any
items specified by the Purchasers, in each case as compared
with amounts shown in the latest balance sheet included in the
Offering Memorandum, except in each case for changes,
increases or decreases which the Offering Memorandum discloses
have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest
financial statements included in the Offering Memorandum to
the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Purchasers, or any increases in
any items specified by the Purchasers, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Purchasers, except in each case for decreases or increases
which the Offering Memorandum discloses have occurred or may
occur or which are described in such letter.
(iv) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Memorandum (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company subject to the internal control of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter; and
(v) In addition to the audit referred to in their report(s)
included in the Offering Memorandum and the limited procedures,
inspection of minute books, inquiries and other
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procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Purchaser, which are derived from the general accounting records of the
Company and its subsidiaries, which are included in the Offering
Memorandum and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
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