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EXHIBIT 99.6
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BROKER-DEALER AGREEMENT
between
BANKERS TRUST COMPANY
and
XXXXXX BROTHERS INC.
Dated December 22, 1999
Relating to
FLEXIBLE MONEY MARKET CUMULATIVE PREFERRED STOCK(R)
(MMP(R)), SERIES C
(Liquidation Preference $100,000 Per Share)
of
EOG RESOURCES, INC.
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(R)Registered trademark of Xxxxxx Brothers Inc.
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Table of Contents
Page
I. DEFINITIONS AND RULES OF CONSTRUCTION
1.1. Terms Defined by Reference to the Certificate of Designations...................................3
1.2. Terms Defined Herein............................................................................3
1.3. Rules of Construction...........................................................................3
II. NOTIFICATION OF DIVIDEND PERIOD..........................................................................4
2.1 ................................................................................................4
III. THE AUCTION..............................................................................................4
3.1. Purpose; Incorporation by Reference of Auction Procedures and Settlement Procedures.............4
3.2. Preparation for Each Auction....................................................................4
3.3. Auction Schedule; Method of Submission of Orders................................................5
3.4. Notice of Auction Results.......................................................................6
3.5. Service Charge to Be Paid to BD.................................................................7
IV. THE AUCTION AGENT........................................................................................8
4.1. Duties and Responsibilities.....................................................................8
4.2. Rights of the Auction Agent.....................................................................8
4.3. Auction Agent's Disclaimer......................................................................8
V. MISCELLANEOUS............................................................................................8
5.1. Termination.....................................................................................8
5.2. Participant in Securities Depository; Payment of Dividends in Same-Day Funds....................9
5.3. Agent Member....................................................................................9
5.4. Communications..................................................................................9
5.5. Entire Agreement................................................................................9
5.6. Benefits.......................................................................................10
5.7. Amendment; Waiver..............................................................................10
5.8. Successors and Assigns.........................................................................10
5.9. Severability...................................................................................10
5.10. Execution in Counterparts......................................................................10
5.11. Governing Law..................................................................................10
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BROKER-DEALER AGREEMENT dated as of December __, 1999, between BANKERS
TRUST COMPANY, a New York banking corporation ("Bankers Trust") (not in its
individual capacity, but solely as agent (the "Auction Agent") of EOG Resources,
Inc., a Delaware corporation (the "Company"), pursuant to authority granted to
it under the Auction Agent Agreement) and XXXXXX BROTHERS INC. (together with
its successors and assigns, "BD").
The Company has issued 500 shares of its Flexible Money Market Cumulative
Preferred Stock designated Flexible Money Market Cumulative Preferred Stock
(MMP(R)), Series C (with par value $0.01 and a liquidation preference of
$100,000 per share plus an amount equal to accumulated but unpaid dividends
(whether or not earned or declared)), pursuant to the Company's Certificate of
Designations (as defined below). The shares of MMP are sometimes referred to
together herein as "Shares".
The Company's Certificate of Designations provides that the dividend rate
on each Share for each Subsequent Dividend Period shall be the Applicable Rate
therefor, which in each case, in general shall be the rate per annum that the
Auction Agent advises results from implementation of the Auction Procedures (as
defined below) with respect to the Shares. The Board of Directors of the Company
has adopted a resolution appointing Bankers Trust as Auction Agent for purposes
of the Auction Procedures with respect to the Shares, and pursuant to Section
2.6(c) of the Auction Agent Agreement (as defined below), the Company has
requested and directed the Auction Agent to execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Auction Agent and BD agree as follows:
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I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1. Terms Defined by Reference to the Certificate of Designations.
Capitalized terms not defined herein shall have the respective meanings
specified in the Certificate of Designations of the Company, including, without
limitation, Paragraph 2 and Paragraph 7 thereof, unless the context otherwise
requires.
1.2. Terms Defined Herein. As used herein and in the Settlement Procedures
(as defined below), the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Auction" shall have the meaning specified in Section 3.1(a)
hereof.
(b) "Auction Agent Agreement" shall mean the Auction Agent Agreement,
dated as of December , 1999, between the Company and Bankers Trust relating to
the Shares.
(c) "Auction Procedures" shall mean the Auction Procedures that are
set forth in Paragraph 7 of the Certificate of Designations.
(d) "Authorized Officer" shall mean each Principal, Vice President,
Assistant Vice President, Assistant Secretary and Assistant Treasurer of the
Auction Agent assigned to its Corporate Trust and Agency Group and every other
officer or employee of the Auction Agent designated as an "Authorized Officer"
for purposes hereof in a communication to BD.
(e) "BD Officer" shall mean each officer or employee of BD designated
as a "BD Officer" for purposes of this Agreement in a communication to the
Auction Agent.
(f) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(g) "Certificate of Designations" shall mean the Certificate of
Designations, as amended, of the Company, establishing the powers, preferences
and rights of the Shares, as filed with the Secretary of State of the State of
Delaware.
(h) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit A.
1.3. Rules of Construction. Unless the context or use indicates another or
different meaning or intent, the following rules shall apply to the construction
of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
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(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New
York City time.
II. NOTIFICATION OF DIVIDEND PERIOD.
2.1. The provisions contained in Paragraph 3 of the Certificate of
Designations concerning the notification of a Special Dividend Period will be
followed by the Auction Agent and BD, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
III. THE AUCTION.
3.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) On each Auction Date for the Shares, the provisions of the Auction
Procedures will be followed by the Auction Agent for the purpose of determining
the Applicable Rate for the next Dividend Period. Each periodic operation of the
Auction Procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions were set forth fully herein.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
BD understands that other Persons meeting the requirements specified in the
definition of "Broker-Dealer" contained in Paragraph 2 of the Certificate of
Designations may execute a Broker-Dealer Agreement and participate as
Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for their
own accounts. However, the Company, by notice to BD and all other
Broker-Dealers, may prohibit all Broker-Dealers from submitting Bids in Auctions
for their own accounts, provided that Broker-Dealers may continue to submit Hold
Orders and Sell Orders.
3.2. Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date, the Auction Agent
shall advise BD by telephone of the Reference Rate and the Maximum Applicable
Rate in effect on such Auction Date.
(b) In the event that the Auction Date for any Auction of the Shares
shall be changed after the Auction Agent has given the notice referred to in
clause (G) of paragraph (I) of the Settlement Procedures, the Auction Agent, by
such means as the Auction Agent deems
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practicable, shall give notice of such change to BD not later than the earlier
of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date.
Thereafter, BD promptly shall notify customers of BD that BD believes are
beneficial owners of Shares of such change in the Auction Date.
(c) The Auction Agent from time to time may request BD to provide it
with a list of the respective customers BD believes are beneficial owners of
Shares. BD shall, in its sole discretion, comply with any such request, and the
Auction Agent shall keep confidential any such information, including
information received as to the identity of Bidders in any Auction, and shall not
disclose any such information so provided to any Person other than BD and the
Company; and such information shall not be used by the Auction Agent or its
officers, employees, agents or representatives for any purpose other than such
purposes as are described herein. The Auction Agent shall transmit any list of
customers BD believes are beneficial owners of Shares and information related
thereto only to its officers, employees, agents or representatives in the
Corporate Trust and Agency Group who need to know such information for the
purposes of acting in accordance with this Agreement, and the Auction Agent
shall prevent the transmission of such information to others and shall cause its
officers, employees, agents and representatives to abide by the foregoing
confidentiality restrictions.
3.3. Auction Schedule; Method of Submission of Orders.
(a) The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed at any time by the
Auction Agent with the consent of the Company, which consent shall not be
withheld unreasonably. The Auction Agent shall give written notice of any such
change to BD pursuant to Section 5.4 hereof. To be effective, such notice must
be delivered at the address specified herein prior to the first Auction Date on
which any such change shall be effective.
Time Event
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By 9:30 A.M. Auction Agent advises the Company an
Broker-Dealers of the Reference Rate and the
Applicable Maximum Rate as set forth in Section
3.2(a) hereof.
9:30 A.M.- 1:00 P.M. Auction Agent assembles information communicated
to it by Broker-Dealers as provided in Paragraph
7(c)(i) of the Certificate of Designations.
Submission Deadline is 1:00 P.M.
Not earlier than Auction Agent makes determinations pursuant to
1:00 P.M. Paragraph 7(d)(i) of the Certificate of
Designations.
By approximately Auction Agent advises the Company of the results
3:00 P.M. of the Auction as provided in Paragraph 7 (d)(ii)
of the Certificate of Designations.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
Shares are allocated as provided in Paragraph 7(e)
of the Certificate of Designations.
Auction Agent gives notice of the Auction results
as set forth in Section 2.5 of the Auction Agent
Agreement.
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(b) BD agrees to maintain a list of Potential Holders and to contact
the Potential Holders on such list on or prior to each Auction Date for the
purposes set forth in Paragraph 7 of the Certificate of Designations.
(c) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit B hereof. BD shall submit
separate Orders to the Auction Agent for each Potential Holder or Existing
Holder on whose behalf BD is submitting an Order and shall not net or aggregate
the Orders of Potential Holders or Existing Holders on whose behalf BD is
submitting Orders.
(d) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit C hereof, of transfers of
Shares, made through BD by an Existing Holder to another Person other than
pursuant to an Auction, and (ii) a written notice, substantially in the form
attached hereto as Exhibit D hereof, of the failure of Shares to be transferred
to or by any Person that purchased or sold Shares through BD pursuant to an
Auction. The Auction Agent is not required to accept any notice delivered
pursuant to the terms of clause (i) of the foregoing sentence with respect to an
Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business
Day next preceding the applicable Auction Date.
3.4. Notice of Auction Results.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone as set forth in Paragraph (I) of the Settlement Procedures. On the
Business Day next succeeding such Auction Date, if so requested, the Auction
Agent shall notify BD in writing of the disposition of all Orders submitted by
BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Holder or Potential Holder on whose
behalf BD has submitted an Order as set forth in Paragraph (II) of the
Settlement Procedures, and take such other action as is required of BD pursuant
to the Settlement Procedures.
(c) If any Person selling Shares in an Auction, on whose behalf BD has
submitted an Order as set forth in Paragraph (II) of the Settlement Procedures,
fails to deliver such Shares, BD may deliver to any Person that was to have
purchased Shares in such Auction a number of whole Shares that is less than the
number of Shares that otherwise was to be purchased by such Person. In such
event, the number of Shares to be so delivered shall be
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determined by BD. Delivery of such lesser number of Shares shall constitute good
delivery. Upon the occurrence of any such failure to deliver Shares, BD shall
deliver to the Auction Agent the notice required by Section 3.3(d)(ii) hereof.
Notwithstanding the foregoing terms of this Section 3.4(c), any delivery or
non-delivery of Shares which represents any departure from the results of an
Auction, as determined by the Auction Agent, shall be of no effect unless and
until the Auction Agent shall have been notified of such delivery or
non-delivery in accordance with the terms of Section 3.3(d) hereof. The Auction
Agent shall have no duty or liability with respect to enforcement of this
Section 3.4(c).
3.5. Service Charge to Be Paid to BD. On the Business Day next succeeding
each Auction Date, the Auction Agent shall pay to BD from moneys received from
the Company an amount equal to:
(a) in the case of any Auction Date immediately preceding a Regular
Dividend Period, the product of (i) a fraction, the numerator of which is the
number of days in such Dividend Period (calculated by counting the first day of
such Dividend Period but excluding the last day thereof) and the denominator of
which is 360, times (ii) 0.0025, times (iii) $100,000 times (iv) the sum of (A)
the aggregate number of Shares placed by BD in the applicable Auction that were
(x) the subject of a Submitted Bid of an Existing Holder submitted by BD and
continued to be held as a result of such submission and (y) the subject of a
Submitted Bid of a Potential Holder submitted by BD and were purchased as a
result of such submission plus (B) the aggregate number of Shares subject to
valid Hold Orders (determined in accordance with Paragraph 7 of the Certificate
of Designations) submitted to the Auction Agent by BD plus (C) the number of
Shares deemed to be subject to Hold Orders by Existing Holders pursuant to
Paragraph 7 of the Certificate of Designations that were acquired by such
Existing Holders through BD; and
(b) in the case of any Auction Date immediately preceding a Special
Dividend Period, that amount as mutually agreed upon by the Company and BD,
based on the selling concession that would be applicable to an underwriting of
fixed or variable rate preferred shares with a similar final maturity or
variable rate dividend period, at the commencement of such Special Dividend
Period;
provided, however, that for purposes of clauses (a)(iv)(C) of this Section 3.5,
if any Person who acquired Shares through BD transfers those shares to another
Person other than pursuant to an Auction, then the Broker-Dealer for the Shares
so transferred shall continue to be BD, provided, however, that if the transfer
was effected by, or if the transferee is, a Broker-Dealer other than BD, then
such Broker-Dealer shall be the Broker-Dealer for such Shares.
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IV. THE AUCTION AGENT.
4.1. Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Company
hereunder and owes no fiduciary duties to any other Person by reason of this
Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted by it, or
for any error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
4.2. Rights of the Auction Agent.
(a) The Auction Agent may rely upon, and shall be protected in acting
or refraining from acting upon, any communication authorized by this Agreement
and any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document believed
by it to be genuine. The Auction Agent shall not be liable for acting upon any
telephone communication authorized by this Agreement which the Auction Agent
believes in good faith to have been given by the Company or by BD. The Auction
Agent may record telephone communications with BD.
(b) The Auction Agent may consult with counsel of its own choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk
its own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder except as may be required as a result of its
own negligence or bad faith.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
4.3. Auction Agent's Disclaimer. The Auction Agent makes no representation
as to the validity or adequacy of this Agreement or the Shares.
V. MISCELLANEOUS.
5.1. Termination. Either party may terminate this Agreement at any time
upon five days' prior written notice to the other party; provided, however, that
if BD is Xxxxxx Brothers Inc., neither BD nor the Auction Agent may terminate
this Agreement without first obtaining prior written consent of the Company to
such termination, which consent shall not be withheld unreasonably.
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5.2. Participant in Securities Depository; Payment of Dividends in Same-Day
Funds.
(a) BD is, and shall remain for the term of this Agreement, a member
of, or a participant in, the Securities Depository (or in affiliate of such a
member or participant).
(b) BD represents that it (or if BD does not act as Agent Member, one
of its affiliates) shall make all dividend payments on the Shares available in
same-day funds on each Dividend Payment Date to customers that use BD (or its
affiliate) as Agent Member.
5.3. Agent Member. At the date hereof, BD is a participant of the
Securities Depository.
5.4. Communications. Except for (i) communications authorized to be made by
telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (including telecopy or similar writing)
and shall be given to such party at its address or telecopier number set forth
below:
If to BD, Xxxxxx Brothers Inc.
addressed to: Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities Trading Desk
Telecopier No.: (000)000-0000
Telephone No.: (000)000-0000
If to the Auction Bankers Trust Company
Agent, addressed to: 0 Xxxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telecopier No.: (000)000-0000
Telephone No.: (000)000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
5.5. Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof.
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5.6. Benefits. Nothing in this Agreement, express or implied, shall give to
any person, other than the Company, the Auction Agent and BD and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
5.7. Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the parties hereto.
(b) Failure of either party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by the other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
5.8. Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the respective successors and permitted
assigns of each of BD and the Auction Agent. This Agreement may not be assigned
by either party hereto absent the prior written consent of the other party;
provided, however, that this Agreement may be assigned by the Auction Agent to a
successor Auction Agent selected by the Company without the consent of BD.
5.9. Severability. If any clause, provision or section of this Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or section hereof.
5.10. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
5.11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State.
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IN WITNESS WHEREOF, the parties hereto have caused this Broker-Dealer
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
BANKERS TRUST COMPANY
By: /s/ XXXXXXX XXXXXXXX
----------------------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: VICE PRESIDENT
XXXXXX BROTHERS INC.
By: /s/ XXXX XXXXXXX
----------------------------------------------
Name: XXXX XXXXXXX
Title: MANAGING DIRECTOR
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EXHIBIT A
SETTLEMENT PROCEDURES
I. On each Auction Date, the Auction Agent shall notify by telephone or
through the Auction Agent's Auction Processing System the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of any Existing Holder or Potential Holder of:
(A) the Applicable Rate fixed for the next succeeding Dividend
Period;
(B) whether Sufficient Clearing Bids existed for the
determination of the Applicable Rate;
(C) if such Broker-Dealer (a "Seller's Broker-Dealer")
submitted a Bid or a Sell Order on behalf of an Existing Holder, the
number of Shares, if any, to be sold by such Existing Holder;
(D) if such Broker-Dealer (a "Buyer's Broker-Dealer")
submitted a Bid on behalf of a Potential Holder, the number of Shares,
if any, to be purchased by such Potential Holder;
(E) if the aggregate number of Shares to be sold by all
Existing Holders on whose behalf such Broker-Dealer submitted a Bid or
Sell Order exceeds the aggregate number of Shares to be purchased by
all Potential Holders on whose behalf such Broker-Dealer submitted a
Bid, the name or names of one or more Buyer's Broker-Dealers (and the
name of the Agent Member, if any, of each such Buyer's Broker-Dealer)
acting for one or more purchasers of such excess number of Shares and
the number of such Shares to be purchased from one or more Existing
Holders on whose behalf such Broker-Dealer acted by one or more
Potential Holders on whose behalf each of such Buyer's Broker-Dealers
acted;
(F) if the aggregate number of Shares to be purchased by all
Potential Holders on whose behalf such Broker-Dealer submitted a bid
exceeds the aggregate number of Shares to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell
Order, the name or names of one or more Seller's Broker-Dealers (and
the name of the Agent Member, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such excess number of
Shares and the number of such Shares to be sold to one or more
Potential Holder on whose behalf such Broker-Dealers acted by one or
more Existing Holders on whose behalf each of such Seller's
Broker-Dealer acted; and
(G) the Auction Date of the next succeeding Auction with
respect to the Shares.
II. On each Auction Date, each Broker-Dealer that submitted an Order on
behalf of any Existing Holder or Potential Holder shall;
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(A) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, instruct each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
to instruct such Potential Holder's Agent Member to pay to such
Broker-Dealer (or its Agent Member) through the Securities Depository
the amount necessary to purchase the number of Shares to be purchased
pursuant to such Bid against receipt of such Shares and advise such
Potential Holder of the Applicable Rate for the next succeeding
Dividend Period;
(B) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Existing Holder on whose behalf such
Broker-Dealer submitted a Sell Order that was accepted, in whole or in
part, or a Bid that was accepted, in whole or in part, to instruct such
Existing Holder's Agent Member to deliver to such Broker-Dealer (or its
Agent Member) through the Securities Depository the number of Shares to
be sold pursuant to such Order against payment therefor and advise any
such Existing Holder that will continue to hold Shares of the
Applicable Rate for the next succeeding Dividend Period;
(C) advise each Existing Holder on whose behalf such
Broker-Dealer submitted a Hold Order of the Applicable Rate for the
next succeeding Dividend Period;
(D) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the Auction Date for the next
succeeding Auction; and
(E) advise each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
of the Auction Date for the next succeeding Auction.
III. On the basis of the information provided to it pursuant to
paragraph (I) above, each Broker-Dealer that submitted a Bid or a Sell Order on
behalf of a Potential Holder or Existing Holder shall, in such manner and at
such time or times as it in its sole discretion it may determine, allocate any
funds received by it pursuant to (II)(A) above and any Shares received by it
pursuant to (II)(B) above among the Potential Holders, if any, on whose behalf
such Broker-Dealer submitted Bids, the Existing Holders, if any, on whose behalf
such Broker-Dealer submitted Bids that were accepted or Sell Orders, and any
Broker-Dealer or Broker-Dealers identified to it by the Auction Agent pursuant
to (I)(E) or (I)(F) above.
IV. On each Auction Date:
(A) each Potential Holder and Existing Holder shall instruct
its Agent Member as provided in (II)(A) or (B) above, as the case may
be;
(B) each Seller's Broker-Dealer which is not an Agent Member
of the Securities Depository shall instruct its Agent Member to (1) pay
through the Securities Depository to the Agent Member of the Existing
Holder delivering Shares to such Broker-Dealer pursuant to (II)(B)
above the amount necessary to purchase such Shares against receipt of
such Shares, and (2) deliver such Shares through the Securities
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Depository to a Buyer's Broker-Dealer (or its Agent Member) identified
to such Seller's Broker-Dealer pursuant to (I)(E) above against payment
therefor, and
(C) each Buyer's Broker-Dealer which is not an Agent Member of
the Securities Depository shall instruct its Agent Member to (1) pay
through the Securities Depository to a Seller's Broker-Dealer (or its
Agent Member) identified pursuant to (I)(F) above the amount necessary
to purchase the Shares to be purchased pursuant to (II)(A) above
against receipt of such Shares, and (2) deliver such Shares through the
Securities Depository to the Agent Member of the purchaser thereof
against payment therefor.
V. On the day after the Auction Date:
(A) each Bidder's Agent Member referred to in (IV)(A) above
shall instruct the Securities Depository to execute the transactions
described in (II)(A) or (B) above, and the Securities Depository shall
execute such transactions;
(B) each Seller's Broker-Dealer or its Agent Member shall
instruct the Securities Depository to execute the transactions
described in (IV)(B) above, and the Securities Depository shall execute
such transactions; and
(C) each Buyer's Broker-Dealer or its Agent Member shall
instruct the Securities Depository to execute the transactions
described in (IV)(C) above, and the Securities Depository shall execute
such transactions.
VI. If an Existing Holder selling Shares in an Auction fails to deliver
such Shares (by authorized book-entry), a Broker-Dealer may deliver to the
Potential Holder on behalf of which it submitted a Bid that was accepted a
number of whole Shares that is less than the number of Shares that otherwise was
to be purchased by such Potential Holder. In such event, the number of Shares to
be so delivered shall be determined solely by such Broker-Dealer. Delivery of
such lesser number of Shares shall constitute good delivery. Notwithstanding the
foregoing terms of this paragraph (VI), any delivery or non-delivery of Shares
which shall represent any departure from the results of an Auction, as
determined by the Auction Agent, shall be of no effect unless and until the
Auction Agent shall have been notified of such delivery or non-delivery in
accordance with the provisions of the Auction Agent Agreement and the
Broker-Dealer Agreement.
A-3
16
EXHIBIT B
BANKERS TRUST COMPANY
MMP AUCTION BID FORM
To: Bankers Trust Company Shares: EOG Resources, Inc.
0 Xxxxxx Xxxxxx 0xx Xxxxx Flexible Money Market Cumulative
Xxx Xxxx, Xxx Xxxx 00000 Preferred Stock (MMP(R)), Series C
Attention: Auction Rate Securities (Liquidation Preference $100,000 Per Share)
Fax: (000) 000-0000 Auction Date:
Telephone:
Fax:
The undersigned Broker-Dealer submits the following Order on behalf of
the Bidder named below:
Name of Bidder: _________________________
EXISTING HOLDER
Shares now held ___________________ HOLD _________________
BID at rate of _________________
SELL _________________
POTENTIAL HOLDER
# of Shares bid _________________
BID at rate of _________________
Notes: (1) If submitting more than one for one Bidder, use additional
Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than the
number of outstanding Shares held by any Existing Holder are
submitted, such Bid shall be considered valid in the order of
priority set forth in the Auction Procedures on the above
issue.
(3) A Hold or Sell Order may be placed only by an Existing Holder
covering a number of Shares not greater than the number of
Shares currently held by it.
(4) Potential Holders may make only Bids, each of which must
specify a rate. If more than one Bid is submitted on behalf of
any Potential Holder, each Bid submitted shall be a separate
Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of
the decimal
B-1
17
point (.001. to 1%). Fractions will not be accepted.
Name of Broker-Dealer:
------------------------------------
Authorized Signature:
------------------------------------
B-2
18
EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
MMP TRANSFER FORM
Re: EOG Resources, Inc.
Flexible Money Market Cumulative Preferred Stock (MMP(R)), Series C
(Liquidation Preference $100,000 Per Share)
We are (check one):
___ The Existing Holder named below;
___ The Broker/Dealer for such Existing Holder; or
___ The Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder has transferred ___ shares of
MMP, Series C to __________________________________________.
---------------------------
Name of Existing Holder
---------------------------
Name of Broker Dealer
---------------------------
Name of Agent Member
By:
------------------------
Printed Name:
Title:
C-1
19
EXHIBIT D
(Note: To be used for failures to deliver shares of
Flexible Money Market Cumulative Preferred Stock (MMP(R)), Series C
(Liquidation Preference $100,000 Per Share) sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
I. We are a Broker-Dealer for _______________________________
(the "Purchaser") which purchased ___ shares of MMP, Series C,
of EOG Resources, Inc. in the Auction held on __________ from
the Seller.
II. We are a Broker-Dealer for ________________________ (the
"Seller"), which sold ___ shares of MMP, Series C, of EOG
Resources, Inc. in the Auction held on ___________________ to
____________________ the Purchaser of such shares.
We hereby notify you that (check one) --
___ the Seller failed to deliver such shares to the Purchaser.
___ the Purchaser failed to make payment to the Seller upon
delivery of such shares.
Name:
--------------------------------
(Name of Broker-Dealer)
By:
----------------------------------
Printed Name:
Title:
D-1
