<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 2000
REGISTRATION NUMBER 333-36056
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EOG RESOURCES, INC.
(Exact name of registrants as specified in their charters)
<TABLE>
<S> <C> <C>
DELAWARE 1311 47-0684736
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
1200 SMITH STREET, SUITE 300
HOUSTON, TEXAS 77002
(713) 651-7000
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
BARRY HUNSAKER, JR.
EOG RESOURCES, INC.
1200 SMITH STREET, SUITE 300
HOUSTON, TEXAS 77002
TELEPHONE: (713) 651-6940
FACSIMILE: (713) 651-6987
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
ARTHUR H. ROGERS
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
TELEPHONE: (713) 651-5151
FACSIMILE: (713) 651-5246
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
EOG RESOURCES, INC.
OFFER TO EXCHANGE
100,000 SHARES
FIXED RATE CUMULATIVE PERPETUAL SENIOR PREFERRED STOCK, SERIES A
FOR
FIXED RATE CUMULATIVE PERPETUAL SENIOR PREFERRED STOCK, SERIES B
---------------------
The Series B preferred stock:
- will be freely tradeable;
- is substantially identical to the Series A preferred stock, including the
liquidation preference and dividend rate; and
- will not be listed on any securities exchange or on any automated dealer
quotation system.
The exchange offer:
- expires at 5:00 p.m., New York City time, on July 20, 2000, unless
extended, and
- is not conditioned on any minimum number of shares being tendered.
In addition, you should note that:
- all outstanding shares of Series A preferred stock that are validly
tendered and not validly withdrawn will be exchanged for an equal number
of shares of Series B preferred stock that are registered under the
Securities Act of 1933,
- tenders of outstanding shares of Series A preferred stock may be
withdrawn any time before the expiration of the exchange offer, and
- the exchange of outstanding shares of Series A preferred stock for shares
of Series B preferred stock in the exchange offer should not be a taxable
event for U.S. federal income tax purposes.
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 5 OF THIS
PROSPECTUS BEFORE PARTICIPATING IN THE EXCHANGE OFFER.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is June 7, 2000.
---------------------
<PAGE> 3
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549
- Seven World Trade Center
New York, New York 10048; and
- Northwest Atrium Center
500 West Madison Street
Chicago, Illinois 60661
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms and their copy charges.
Our common stock has been listed and traded on the New York Stock
Exchange since 1989. Accordingly, you may inspect the information we file with
the SEC at the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The information incorporated by reference is an important part of this
offering memorandum, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 until
we exchange all of the Series A preferred stock:
- our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
- our Current Report on Form 8-K dated February 18, 2000;
- our Registration Statement on Form 8-A dated February 18, 2000; and
- our Quarterly Report on Form 10-Q for the three months ended March
31, 2000.
You may request a copy of these filings, excluding exhibits, at no cost by
writing or telephoning Patricia L. Edwards, Corporate Secretary, at our
principal executive office, which is:
EOG Resources, Inc.
1200 Smith Street, Suite 300
Houston, Texas 77002
(713) 651-7000
OIL AND GAS TERMS
<TABLE>
<S> <C> <C>
When describing commodities
produced and sold: gas = natural gas
oil = crude oil
liquids = crude oil, condensate, and natural gas liquids
When describing natural gas: Mcf = thousand cubic feet
MMcf = million cubic feet
Bcf = billion cubic feet
MMBtu = million British Thermal Units
When describing oil: Bbl = barrel
MBbl = thousand barrels
MMBbl = million barrels
When comparing oil to natural gas: 1 Bbl of oil = 6 Mcf of natural gas equivalent
Mcfe = thousand cubic feet equivalent
MMcfe = million cubic feet equivalent
Bcfe = billion cubic feet equivalent
</TABLE>
i
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Prospectus Summary..................... 1
Risk Factors........................... 5
Cautionary Statement Regarding Forward
Looking Statements................... 10
Business............................... 11
Description of the Series B Preferred
Stock................................ 16
Certain Federal Income Tax
Consequences......................... 21
</TABLE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Book Entry Issuance.................... 24
Exchange Offer......................... 27
Description of Capital Stock........... 34
Plan of Distribution................... 37
Legal Matters.......................... 38
Experts................................ 38
</TABLE>
ii
<PAGE> 5
PROSPECTUS SUMMARY
This summary highlights selected information we have included or
incorporated by reference in this prospectus. It does not contain all
information that may be important to you. More detailed information about this
exchange offer, our business and our financial and operating data is contained
elsewhere in this prospectus. We encourage you to read this prospectus in its
entirety before making a decision as to whether to participate in the exchange
offer.
In this prospectus, we refer to EOG Resources, Inc. and its subsidiaries as
"we", "us", "our" or "EOG" unless the context clearly indicates otherwise.
EOG RESOURCES, INC.
EOG Resources, Inc., a Delaware corporation organized in 1985, together
with its subsidiaries, explores for, develops, produces and markets, natural gas
and crude oil primarily in major producing basins in the United States, as well
as in Canada and Trinidad and, to a lesser extent, selected other international
areas. Our principal producing areas are further described under
"Business -- Exploration and Production" on page 12. At December 31, 1999, our
estimated net proved natural gas reserves were 3,175 Bcf, and estimated net
proved crude oil, condensate and natural gas liquids reserves were 73 MMBbl. At
such date, approximately 54% of our reserves, on a natural gas equivalent basis,
was located in the United States, 16% in Canada and 30% in Trinidad.
BUSINESS STRATEGY
Our strategy is to maximize the rate of return on invested capital by
controlling all operating and capital costs. Our strategy is intended to enhance
the generation of cash flow and earnings from each unit of production on a
cost-effective basis.
We focus our drilling activity toward natural gas deliverability in
addition to natural gas reserve enhancement and to a lesser extent crude oil
exploitation. We also focus on the cost-effective utilization of advances in
technology associated with gathering, processing and interpretation of 3-D
seismic data, developing reservoir simulation models and drilling operations
through the use of new and/or improved drill bits, mud motors, mud additives,
formation logging techniques and reservoir fracturing methods. These advanced
technologies are used, as appropriate, throughout the company to reduce the
risks associated with all aspects of oil and gas reserve exploration,
exploitation and development.
We implement our strategy by emphasizing the drilling of internally
generated prospects in order to find and develop low cost reserves. We also make
selected tactical acquisitions that give us additional economies of scale or
land positions with significant additional prospects. Achieving and maintaining
the lowest possible operating cost structure are also important goals in the
implementation of our strategy.
With respect to information on our working interest in wells or acreage,
"net" oil and gas wells or acreage are determined by multiplying "gross" oil and
gas wells or acreage by our working interest in the wells or acreage. Unless
otherwise defined, all references to wells or acreage are gross.
RECENT DEVELOPMENTS
For the first quarter 2000, we reported net income available to common of
$38.8 million, or $.33 per share, compared to net income available to common of
$5.1 million, or $.03 per share, for the comparable period a year ago.
During first quarter 2000, our total production per share increased 23% as
compared to first quarter a year ago. On an absolute basis, our total production
increased 5% during first quarter 2000 compared to as-adjusted production
(excluding India) from first quarter a year ago.
During first quarter 2000, we announced a new 10 million share repurchase
authorization. We have repurchased approximately 5.5 million shares of our
common stock under this authorization.
We have declared a regular quarterly dividend of $.03 per share on our
common stock, payable April 28, 2000, to shareholders of record as of April 14,
2000. On April 18, 2000, we announced a
1
<PAGE> 6
17% increase in the annual dividend rate from $.12 per share to $.14 per share
beginning with dividends payable after April 28, 2000. On May 9, 2000, we
declared a regular quarterly dividend of $.035 per share on our common stock,
payable July 31, 2000, to shareholders of record as of July 17, 2000.
SUMMARY OF THE EXCHANGE OFFER
On December 10, 1999, we completed the private offering of the outstanding
shares of Series A preferred stock. We entered into a registration rights
agreement with the initial purchasers in the private offering. We agreed to
deliver this prospectus to you and to use our reasonable best efforts to begin
the exchange offer within 180 days after the date we issued the Series A
preferred stock. You are entitled to exchange your outstanding Series A
preferred stock for new Series B preferred stock with substantially identical
rights and preferences.
You should read the discussion under the heading "-- Description of Series
B Preferred Stock", beginning on page 16, for more information about the Series
B preferred stock.
We summarize the terms of the exchange offer below. You should read the
discussion under the heading "Exchange Offer", beginning on page 27, for more
information about the exchange offer and resale of the Series B preferred stock.
Exchange Offer............. We are offering to issue to you one share of Series
B preferred stock for each share you hold of Series
A preferred stock.
Expiration Date............ The exchange offer will expire at 5:00 p.m., New
York City time, on July 20, 2000, or at a later
date and time to which we extend it.
Withdrawal of Tenders...... You may withdraw your tender of outstanding shares
of Series A preferred stock at any time before the
expiration of the exchange offer.
Conditions of Exchange
Offer...................... We will not be required to accept outstanding
shares of Series A preferred stock if the exchange
offer would violate applicable law or if any legal
action has been instituted or threatened that would
impair our ability to proceed with the exchange
offer. Please read the discussion under the heading
"Exchange Offer -- Conditions to Exchange Offer",
beginning on page 29, for more information about
the conditions to the exchange offer.
Procedures for Tendering
Shares of Series A
Preferred Stock............ If you wish to participate in the exchange offer,
you must complete, sign and date the letter of
transmittal or a facsimile of a letter of
transmittal and mail or deliver the letter of
transmittal, together with the certificates
representing your shares of Series A preferred
stock, to the exchange agent. If The Depository
Trust Company holds the shares of Series A
preferred stock that you own, you may effect the
delivery of the shares by book-entry transfer or
through the automated tender offer program of The
Depository Trust Company. If you tender under the
automated tender program, you must agree to be
bound by the letter of transmittal that we are
providing with this prospectus as though you had
signed the letter of transmittal.
If you sign or agree to be bound by the letter of
transmittal, you will represent to us that, among
other things:
- any Series B preferred stock that you receive
will be acquired in the ordinary course of
business;
- you have no arrangement or understanding with any
person or entity to participate in the
distribution of the Series B preferred stock;
2
<PAGE> 7
- if you are not a broker-dealer, you are not
engaged in and do not intend to engage in the
distribution of the Series B preferred stock;
- if you are a broker-dealer that will receive
Series B preferred stock for your own account in
exchange for Series A preferred stock that were
acquired as a result of market-making activities,
you will deliver a prospectus, as required by
law, in connection with any resale of the Series
B preferred stock; and
- you are not our "affiliate", as that word is
defined in Rule 405 of the Securities Act of
1933, or, if you are our affiliate, you will
comply with any applicable registration and
prospectus delivery requirements of the
Securities Act of 1933.
Guaranteed Delivery
Procedures................. If you wish to tender your Series A preferred stock
and cannot comply with the requirement to deliver
the letter of transmittal and the certificates
representing the Series A preferred stock or use
the applicable procedures under the automated
tender offer program of The Depository Trust
Company, before the expiration date of the exchange
offer, you must tender the certificates
representing your shares of Series A preferred
stock according to the guaranteed delivery program
described under the heading "Exchange
Offer -- Guaranteed Delivery Procedures" on page
31.
U.S. Federal Income Tax
Consequences............... The exchange of Series B preferred stock for Series
A preferred stock in the exchange offer should not
be a taxable event for U.S. federal income tax
purposes. Please read the discussion under the
heading "Certain Federal Income Tax Consequences",
beginning on page 21.
Use of Proceeds............ We will not receive any cash proceeds from the
issuance of the Series B preferred stock.
Plan of Distribution....... All broker-dealers who receive shares of Series B
preferred stock in the exchange offer have a
prospectus delivery obligation. Broker-dealers who
acquired the Series A preferred stock as a result
of market-making or other trading activities may
use this prospectus, as supplemented or amended, in
connection with the resale of the Series B
preferred stock. Broker-dealers who acquired the
Series A preferred stock from us must comply with
the registration and prospectus delivery
requirements of the Securities Act of 1933,
including being named as selling stockholders, to
resell the Series A preferred stock or the Series B
preferred stock.
Exchange Agent............. Bank of New York is the exchange agent for the
exchange offer. Please see the information under
the heading "Exchange Offer -- Exchange Agent" for
the address and telephone number of the exchange
agent.
We summarize the rights and preferences of the Series B preferred stock
below. You should read the discussion under the heading "Description of the
Series B Preferred Stock" beginning on page 16, for more information about the
Series B preferred stock.
Securities Offered.............. 100,000 shares of Series B preferred stock.
Dividends....................... Cash dividends on the Series B preferred
stock will only be paid if declared by EOG's
board of directors and will be
3
<PAGE> 8
cumulative. If declared, dividends will be
payable at the rate of $71.95 per share, per
year, which equals 7.195% of the Series B
preferred stock's liquidation preference.
This dividend rate will be adjusted and the
Series B preferred stock may be redeemed in
the event of certain amendments to the
Internal Revenue Code of 1986 relating to the
dividends received deduction.
Dividend Payment Dates.......... March 15, June 15, September 15 and December
15 of each year, beginning June 15, 2000.
Ranking......................... The Series B preferred stock will be a new
series of our senior preferred stock, ranking
on a parity with our Series A preferred
stock, the Flexible Money Market Cumulative
Preferred Stock, Series C, and the Flexible
Money Market Cumulative Preferred Stock,
Series D, which is to be issued in exchange
for the Series C preferred stock in a
contemporaneous exchange offer.
Liquidation Preference.......... The Series B preferred stock will have a
liquidation preference of $1,000 per share,
plus all accrued and unpaid dividends,
whether or not earned or declared.
Voting Rights................... Except as described under "Description of the
Series B Preferred Stock -- Voting Rights,"
the Series B preferred stock will have no
voting rights.
Redemption...................... Except as described under "Description of the
Series B Preferred
Stock -- Dividends -- Changes in the
Dividends Received Percentage," we may not
redeem the Series B preferred stock before
December 15, 2009. Beginning on that date, we
may redeem all or part of the Series B
preferred stock at $1,000 per share, plus all
accrued and unpaid dividends, whether or not
declared. The Series B preferred stock will
not benefit from any sinking fund.
Absence of Market for the Series
B Preferred Stock............... The Series B preferred stock will be a new
issue of securities for which there currently
is no market. An active market for the Series
B preferred stock may not develop. If an
active market does not develop, the market
price and liquidity of the Series B preferred
stock would be adversely affected.
Our executive offices are located at 1200 Smith Street, Suite 300, Houston,
Texas 77002 (telephone: (713) 651-7000).
4
<PAGE> 9
RISK FACTORS
In considering whether to participate in the exchange offer, you should
carefully consider the risk factors described below and all the information we
have included or incorporated by reference in this prospectus. In addition,
please read "Cautionary Statement Regarding Forward-Looking Statements" on page
10 of this prospectus, where we describe uncertainties associated with our
business and the forward-looking statements included or incorporated by
reference in this prospectus.
RISK FACTORS RELATING TO EOG AND THE OIL AND GAS INDUSTRY
A substantial or extended decline in oil or gas prices would have a material
adverse effect on us.
Prices for natural gas and oil fluctuate widely. For example, natural gas
and oil prices declined significantly in 1998 and, for an extended period of
time, remained substantially below prices obtained in previous years. In late
1999, natural gas and oil prices increased significantly. Since we are primarily
a natural gas company, we are more significantly affected by changes in natural
gas prices than changes in the prices for crude oil, condensate or natural gas
liquids. Among the factors that can cause these price fluctuations are:
- the level of consumer demand;
- weather conditions;
- price and availability of alternative fuels;
- domestic drilling activity; and
- overall economic conditions.
During 1995, 1996, 1997, 1998 and 1999, the high and low prices for natural gas
and oil on the twelve-month forward NYMEX strip were:
<TABLE>
<CAPTION>
GAS OIL
-------------- ----------------
HIGH LOW HIGH LOW
----- ----- ------ ------
<S> <C> <C> <C> <C>
1995.............................................. $2.09 $1.57 $19.16 $16.58
1996.............................................. 2.73 1.85 23.27 16.90
1997.............................................. 2.79 2.02 23.38 18.29
1998.............................................. 2.72 1.92 18.41 12.17
1999.............................................. 2.81 1.95 23.39 12.10
</TABLE>
The average North America wellhead natural gas prices we received increased
43% from 1995 to 1996 and 15% from 1996 to 1997, decreased by 15% from 1997 to
1998, and increased 11% from 1998 to 1999. Wellhead natural gas volumes from the
Trinidad SECC Block are sold at prices that are based on a fixed schedule with
periodic escalations. In January 2000, we signed a 15 year natural gas supply
contract for over 60 MMcf per day from the Trinidad U(a) Block with the Natural
Gas Company of Trinidad and Tobago. Due to the many uncertainties associated
with the world political environment, the availabilities of other worldwide
energy supplies and the relative competitive relationships of the various energy
sources in the view of the consumers, we are unable to predict what changes may
occur in natural gas prices in the future.
We sell substantially all of our wellhead crude oil and condensate under
various terms and arrangements at market responsive prices. Crude oil and
condensate prices also have fluctuated during the last three years. Due to the
many uncertainties associated with the world political environment, the
availabilities of other worldwide energy supplies and the relative competitive
relationships of the various energy sources in the view of the consumers, the
level of consumer demand and the availability of alternative fuels, we are
unable to predict what changes may occur in crude oil and condensate prices in
the future.
5
<PAGE> 10
Our cash flow and earnings depend to a great extent on the prevailing
prices for natural gas and oil. Prolonged or substantial declines in these
commodity prices may adversely affect our liquidity, the amount of cash flow
available for capital expenditures and our ability to maintain our credit
quality and access to the credit and capital markets.
Our ability to sell our oil and gas production could be materially harmed if
we fail to obtain adequate services such as transportation and processing.
The sale of our oil and gas production depends on a number of factors
beyond our control, including the availability and capacity of transportation
and processing facilities. Our failure to obtain such services on acceptable
terms could materially harm our business.
The oil and gas reserves data and future net revenues estimates we report are
uncertain.
Estimates of reserves by necessity are projections based on engineering
data, the projection of future rates of production and the timing of future
expenditures. Estimates of our proved oil and gas reserves and projected future
net revenues are based on reserve reports which we prepare and a portion of
which are reviewed by independent petroleum engineers. The process of estimating
oil and gas reserves requires substantial judgment on the part of the petroleum
engineers, resulting in imprecise determinations, particularly with respect to
new discoveries. Different reserve engineers may make different estimates of
reserve quantities and revenues attributable thereto based on the same data.
Future performance that deviates significantly from the reserve reports could
have a material adverse effect on us. The accuracy of any reserve estimate
depends on the quality of the available data as well as engineering and
geological interpretation and judgment. Results of drilling, testing and
production and changes in the assumptions regarding decline and production
rates, the ability to market oil and gas that is produced, oil and gas prices,
revenues, taxes, capital expenditures, operating expenses, geologic success and
quantities of recoverable oil and gas may vary substantially from those assumed
in the estimates, may result in revisions to such estimates and could materially
affect the estimated quantities and related value of reserves. The estimates of
future net revenues reflect oil and gas prices as of the date of estimation,
without escalation or reduction. Fluctuations in the price of natural gas and
oil have the effect of significantly altering reserve estimates as the economic
projections inherent in the estimates may reduce or increase the quantities of
recoverable reserves. There can be no assurance, however, that such prices will
be realized or that the estimated production volumes will be produced during the
periods indicated. Actual future production, natural gas and oil prices,
revenues, taxes, development expenditures, operating expenses and quantities of
recoverable natural gas and oil reserves most likely will vary from our
estimates.
If we fail to acquire or find additional reserves, our reserves and production
will decline materially from their current levels.
The rate of production from oil and gas properties generally declines as
reserves are depleted. Except to the extent that we acquire additional
properties containing proved reserves, conduct successful exploration and
development activities or, through engineering studies, identify additional
behind-pipe zones or secondary recovery reserves, our proved reserves will
decline materially as reserves are produced. Future oil and gas production is,
therefore, highly dependent upon our level of success in acquiring or finding
additional reserves.
We incur certain costs to comply with government regulations, especially
regulations relating to environmental protection, and could incur even greater
costs in the future.
Our exploration, production and marketing operations are regulated
extensively at the federal, state and local levels, as well as by other
countries in which we do business. We have made and will continue to make
expenditures in our efforts to comply with the requirements of environmental and
other regulations. Further, the oil and gas industry regulatory environment
could change in ways that might substantially increase these costs.
6
<PAGE> 11
Hydrocarbon-producing states regulate conservation practices and the
protection of correlative rights. These regulations affect our operations and
limit the quantity of hydrocarbons we may produce and sell. In addition, at the
U.S. federal level, the Federal Energy Regulatory Commission regulates
interstate transportation of natural gas under the Natural Gas Act. Other
regulated matters include marketing, pricing, transportation and valuation of
royalty payments.
As an owner or lessee and operator of oil and gas properties, we are
subject to various federal, state, local and foreign regulations relating to
discharge of materials into, and protection of, the environment. These
regulations may, among other things, impose liability on us for the cost of
pollution clean-up resulting from operations, subject us to liability for
pollution damages, and require suspension or cessation of operations in affected
areas. Changes in or additions to regulations regarding the protection of the
environment could hurt our business.
Our industry is very competitive.
The oil and gas industry is extremely competitive. This is especially true
with regard to exploration for, and exploitation and development of, new sources
of crude oil and natural gas. As an independent oil and gas company, we
frequently compete against other companies that are larger and financially
stronger in acquiring properties suitable for exploration, in contracting for
drilling equipment and other services and in securing trained personnel.
We do not insure against all potential losses and could be seriously harmed by
unexpected liabilities.
Exploration for and production of oil and gas can be hazardous, involving
natural disasters and other unforeseen occurrences such as blowouts, cratering,
fires and loss of well control, which can damage or destroy wells or production
facilities, injure or kill people, and damage property and the environment.
Offshore operations are subject to usual marine perils, including hurricanes and
other adverse weather conditions, and governmental regulations as well as
interruption or termination by governmental authorities based on environmental
and other considerations. We maintain insurance against many, but not all,
potential losses or liabilities arising from our operations in accordance with
customary industry practices and in amounts that we believe to be prudent.
Losses and liabilities arising from such events could reduce our revenues and
increase our costs to the extent not covered by insurance.
The occurrence of any of the aforementioned events and any payments made as
a result of such events and the liabilities related thereto, would reduce the
funds available for exploration, drilling and production and could have a
material adverse effect on our financial position or results of operations.
Our hedging activities may prevent us from benefiting from price increases and
may expose us to other risks.
We engage in price risk management activities from time to time primarily
for non-trading and to a lesser extent for trading purposes. We use derivative
financial instruments (primarily price swaps and costless collars) for
non-trading purposes to hedge the impact of market fluctuations on natural gas
and crude oil market prices and net income and cash flow.
To the extent that we engage in hedging activities, we may be prevented
from realizing the benefits of price increases above the levels of the hedges.
In addition, we are subject to risks associated with differences in prices at
different locations, particularly where transportation constraints restrict our
ability to deliver oil and gas volumes to the delivery point to which the
hedging transaction is indexed.
Further, hedging contracts are subject to the risk that the other party may
prove unable or unwilling to perform its obligations under such contracts. Any
significant nonperformance could adversely affect us financially.
7
<PAGE> 12
When we acquire oil and gas properties, our failure to fully identify
potential problems, to properly estimate reserves or production rates or
costs, or to effectively integrate the acquired operations could seriously
harm us.
We from time to time acquire oil and gas properties. When we do so, our
failure to fully identify potential problems, to properly estimate reserves or
production rates or costs, or to effectively integrate the acquired operations
could seriously harm us. Although we perform reviews of acquired properties that
we believe are consistent with industry practices, we do not review in depth
every individual property involved in each acquisition. Ordinarily we focus on
higher-value properties and sample the remainder. However, even a detailed
review of records and properties may not necessarily reveal existing or
potential problems, nor will it permit a buyer to become sufficiently familiar
with the properties to assess fully their deficiencies and potential.
Inspections may not always be performed on every well, and environmental
problems, such as ground water contamination, are not necessarily observable
even when an inspection is undertaken.
Even when problems are identified, we often assume environmental and other
risks and liabilities in connection with acquired properties. There are numerous
uncertainties inherent in estimating quantities of proved oil and gas reserves
and actual future production rates and associated costs with respect to acquired
properties. Actual results may vary substantially from those assumed in the
estimates. In addition, acquisitions may have adverse effects on our operating
results, particularly during the periods in which the operations of acquired
businesses are being integrated into our ongoing operations.
Our non-U.S. operations are subject to risks of doing business abroad.
Our non-U.S. oil and natural gas exploration, exploitation, development and
production activities are subject to certain political and economic risks
including, among others:
- cancellation or renegotiation of contracts;
- disadvantages of competing against companies from countries that are not
subject to U.S. laws and regulations, including the Foreign Corrupt
Practices Act;
- changes in foreign laws or regulations;
- changes in tax laws;
- royalty and tax increases;
- retroactive tax claims;
- expropriation or nationalization of property;
- currency fluctuations;
- foreign exchange controls;
- import and export regulations;
- environmental controls;
- risks of loss due to civil strife, acts of war, guerilla activities and
insurrection; and
- other risks arising out of foreign governmental sovereignty over the
areas in which our operations are conducted.
Consequently, our non-U.S. exploration, exploitation, development and
production activities may be substantially affected by factors beyond our
control, any of which could materially adversely affect our financial position
or results of operations. Furthermore, in the event of a dispute arising from
non-U.S. operations, we may be subject to the exclusive jurisdiction of courts
outside the United States or may not be successful in subjecting non-U.S.
persons to the jurisdiction of the courts in the United States, which could
adversely affect the outcome of the dispute.
8
<PAGE> 13
A decline in the condition of the capital markets or a substantial rise in
interest rates could harm us.
If the condition of the capital markets we use to finance our operations
materially declines, we might not be able to finance our operations on terms we
consider acceptable. In addition, a substantial rise in interest rates would
decrease our net cash flows available for reinvestment.
RISK FACTORS RELATING TO THE SERIES B PREFERRED STOCK
Holders of Series B preferred stock have limited voting rights.
The holders of Series B preferred stock will not possess any voting rights,
except in certain limited circumstances. Accordingly, the Series B preferred
stock will not have sufficient votes to elect one or more directors to EOG's
board of directors and will have no voting rights with respect to certain
matters upon which holders of common stock may be entitled to vote. See
"Description of the Series B Preferred Stock -- Voting Rights" on page 20.
Holders of the Series B preferred stock may not be able to use the
dividends-received deduction.
Although we presently have accumulated earnings and profits, we may not
have sufficient current earnings and profits during future fiscal years for the
distributions on the preferred stock to qualify as dividends for federal income
tax purposes. If any distributions on the Series B preferred stock with respect
to any fiscal year are not eligible for the dividends-received deduction because
of insufficient current or accumulated earnings and profits, the market value of
the Series B preferred stock may decline. See "Certain Federal Income Tax
Consequences -- Dividends Received Deduction" on page 22.
There is not a public market for the Series B preferred stock.
Prior to this exchange offer there has been no public market for the Series
B preferred stock, and there can be no assurance that such a market will
develop. The Series B preferred stock is not listed on any securities exchange.
9
<PAGE> 14
CAUTIONARY STATEMENT
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934, although we
acknowledge that those statutes do not apply to tender offers, including this
exchange offer. All statements other than statements of historical facts,
including, among others, statements regarding our future financial position,
business strategy, budgets, reserve information, projected levels of production,
projected costs and plans and objectives of management for future operations,
are forward-looking statements.
We typically use words such as "expect", "anticipate", "estimate",
"strategy", "intend", "plan" and "believe" or the negative of those terms or
other variations of them or by comparable terminology to identify our
forward-looking statements. In particular, statements, express or implied,
concerning future operating results or the ability to generate income or cash
flows are forward-looking statements.
Although we believe our expectations reflected in forward-looking
statements are based on reasonable assumptions, no assurance can be given that
these expectations will be achieved. Important factors that could cause actual
results to differ materially from the expectations reflected in the
forward-looking statements include, among others:
- timing and extent of changes in commodity prices for crude oil, natural
gas and related products and interest rates;
- extent of our success in discovering, developing, marketing and producing
reserves and in acquiring oil and gas properties;
- political developments around the world; and
- financial market conditions.
Some of these factors are discussed under "Risk Factors" beginning on page
5 of this prospectus.
In light of these risks, uncertainties and assumptions, the events
anticipated by our forward-looking statements might not occur. We undertake no
obligation to update or revise our forward-looking statements, whether as a
result of new information, future events or otherwise.
10
<PAGE> 15
BUSINESS
GENERAL
EOG Resources, Inc., a Delaware corporation organized in 1985, together
with its subsidiaries, explores for, develops, produces and markets, natural gas
and crude oil primarily in major producing basins in the United States, as well
as in Canada and Trinidad and, to a lesser extent, selected other international
areas. Our principal producing areas are further described under "-- Exploration
and Production" below. At December 31, 1999, our estimated net proved natural
gas reserves were 3,175 Bcf and estimated net proved crude oil, condensate and
natural gas liquids reserves were 73 MMBbl. At December 31, 1999, approximately
54% of our reserves, on a natural gas equivalent basis, was located in the
United States, 16% in Canada and 30% in Trinidad.
BUSINESS STRATEGY
Our strategy is to maximize the rate of return on invested capital by
controlling all operating and capital costs. Our strategy is intended to enhance
the generation of cash flow and earnings from each unit of production on a
cost-effective basis.
We focus our drilling activity toward natural gas deliverability in
addition to natural gas reserve enhancement and to a lesser extent crude oil
exploitation. We also focus on the cost-effective use of advances in technology
associated with gathering, processing and interpretation of 3-D seismic data,
developing reservoir simulation models and drilling operations through the use
of new and/or improved drill bits, mud motors, mud additives, formation logging
techniques and reservoir fracturing methods. These advanced technologies are
used, as appropriate, throughout the company to reduce the risks associated with
all aspects of oil and gas reserve exploration, exploitation and development.
We implement our strategy by emphasizing the drilling of internally
generated prospects in order to find and develop low cost reserves. We also make
selected tactical acquisitions that give us additional economies of scale or
land positions with significant additional prospects. Achieving and maintaining
the lowest possible operating cost structure are also important goals in the
implementation of our strategy.
With respect to information on our working interest in wells or acreage,
"net" oil and gas wells or acreage are determined by multiplying "gross" oil and
gas wells or acreage by our working interest in the wells or acreage. Unless
otherwise defined, all references to wells or acreage are gross.
BUSINESS SEGMENTS
Our operations are all oil and gas exploration and production related.
EXPLORATION AND PRODUCTION
NORTH AMERICA OPERATIONS
United States. Our principal United States producing areas are the
Southwestern Wyoming area, Vernal area of Utah, South Texas area, East Texas
area, Mississippi Salt Basin, Offshore Gulf of Mexico area, Southeastern New
Mexico area, Val Verde Basin and Midland Basin of West Texas and Mid Continent
area. Properties in these areas represented approximately 95% of our United
States reserves (on a natural gas equivalent basis) and 97% of our United States
net natural gas deliverability as of December 31, 1999. We operate substantially
all of these properties.
Our other United States oil and gas producing properties are located
primarily in other areas of Texas, Utah, New Mexico, Oklahoma, California and
Kansas.
At December 31, 1999, 85% of our proved United States reserves (on a
natural gas equivalent basis) was natural gas and 15% was crude oil, condensate
and natural gas liquids. A substantial portion of our
11
<PAGE> 16
United States natural gas reserves is in long-lived fields with well-established
production histories. We believe that opportunities exist to increase production
in many of these fields through continued infill and other development drilling.
Southwestern Wyoming Area. Our largest reserve accumulation is located in
the Big Piney area in Sublette and Lincoln counties in southwestern Wyoming. We
are the holder of the largest productive acreage base in this area, with
approximately 265,000 net acres under lease directly within field limits. We
operate approximately 824 natural gas and crude oil wells in this area in which
we own an 85% average working interest. Deliveries from the area net to us
averaged 97 MMcf per day of natural gas and 4.2 MBbl per day of crude oil,
condensate, and natural gas liquids in 1999. At December 31, 1999, natural gas
deliverability net to us was approximately 95 MMcf per day.
The current principal producing intervals are the Almy, Mesaverde and
Frontier formations. The Frontier formation, which occurs at 6,500 to 10,000
feet, contains approximately 60% of our Big Piney proved developed reserves. We
drilled 47 wells in the Big Piney area in 1999, and we anticipate an active
drilling program over the next several years.
During 1999, we drilled three wells in the Washakie Basin, Sweetwater
County, Wyoming. The Cepo Lewis 21-18 and the Powder Mountain 1-13 initially
produced at a combined rate of 12 MMcf per day from the Lewis formation. The
Cedar Chest 31-5 initially produced 5 MMcf per day from the Almond formation. We
own 20,000 net leasehold acres and 220 square miles of new 3-D seismic and
anticipate an active drilling program in the Washakie Basin for several years.
Natural gas deliveries from this area net to us averaged approximately 9.1 MMcf
per day in 1999. At December 31, 1999, natural gas deliverability net to us was
approximately 15 MMcf per day.
Vernal Area. In the Vernal area, located primarily in Uintah County, Utah,
we operate approximately 334 producing wells and presently control approximately
66,000 net acres. In 1999, natural gas deliveries net to us from the Vernal area
averaged 26 MMcf per day. Deliverability at December 31, 1999, was approximately
28 MMcf per day. Production is from the Green River and Wasatch formations
located at depths between 4,500 and 8,000 feet. We have an average working
interest of approximately 61%. We anticipate numerous drilling opportunities
will be available in this area in 2000.
South Texas Area. Our activities in South Texas are focused in the
Lobo/Roleta, Wilcox and Frio producing horizons. The principal areas of activity
are in the Lobo/Roleta trend which occurs primarily in Webb and Zapata counties
and the Frio trend in Matagorda County. Using newly acquired 3-D seismic in Webb
and Zapata Counties, we added two significant field extensions in the Pok-A-Dot
area. Thirteen wells were drilled and completed during 1999. At December 31,
1999, net deliveries from these wells were 28 MMcf per day of natural gas.
During 1999, Lobo/Roleta net deliverability averaged approximately 39 MMcf per
day of natural gas. In Matagorda County, seven wells were completed in 1999 with
a combined initial rate of 55 MMcf per day of natural gas and 1 MBbl per day of
condensate net to us. During 1999, Frio net deliverability averaged
approximately 34 MMcf per day of natural gas and 1 MBbl per day of condensate.
We operate approximately 429 wells in the South Texas area, and production
is primarily from the Frio, Roleta and Lobo sands at depths ranging from 5,000
to 16,000 feet. We have approximately 288,000 net leasehold acres and more than
40,000 net mineral fee acres in this area. Natural gas deliveries net to us
averaged approximately 142 MMcf per day in 1999. At December 31, 1999, natural
gas deliverability from this area net to us was approximately 190 MMcf per day.
We drilled 53 wells in the South Texas area in 1999, acquired 480 square miles
of new 3-D seismic and leased 35,000 net acres. We anticipate an active drilling
program over the next several years.
East Texas Area. Our activities in the East Texas area are primarily in the
Carthage field, located in Panola County, the North Milton field, located in
Harris County, and the Stowell/Big Hill area, located in Jefferson and Chambers
Counties. In 1999, we exchanged certain properties with Oxy USA Inc. and
acquired working interests in 715 wells located primarily in Gregg and Panola
Counties.
12
<PAGE> 17
The Carthage field production is primarily from the Cotton Valley, Travis
Peak and Pettit formations. At December 31, 1999, we held approximately 37,000
net acres under lease with an average 83% working interest in this area. We
drilled 17 wells in the Carthage field in 1999 and we anticipate an active
drilling program over the next several years. We have continued our activity in
the North Milton field where we now operate 29 wells and hold a 100% working
interest in the acreage. We expect to drill additional wells during 2000. We
drilled four wells in the Stowell/Big Hill area in 1999, and we expect to
continue expansion of the program in 2000. Net deliveries from the East Texas
area averaged 76 MMcf per day of natural gas and 2.7 MBbl per day of crude oil,
condensate and natural gas liquids in 1999. At December 31, 1999, deliverability
from the area was approximately 103 MMcf per day of natural gas with 5.9 MBbl
per day of crude oil, condensate and natural gas liquids both net to us.
Mississippi Salt Basin. Our activities in this basin target the Cretaceous
(Rodessa, Sligo, Hosston and Selma Chalk) formation. We operate 114 producing
wells and own approximately 47,000 net acres in Mississippi. We drilled four
deep Cretaceous and seventeen Chalk wells during 1999 and plan an expanded
program in 2000. Net deliveries from the area during 1999 averaged 15 MMcf per
day of natural gas and 0.6 MBbl per day of crude oil and condensate. At December
31, 1999, net deliverability from the area was approximately 15 MMcf per day of
natural gas and 1.0 MBbl per day of crude oil and condensate.
Offshore Gulf of Mexico Area. Development of the Eugene Island 135
discovery continued with the installation of a second platform and the drilling
of one development well in 1999. We anticipate drilling one additional step-out
well in 2000. At December 31, 1999, we held an interest in 135 blocks in the
Offshore Gulf of Mexico area totaling approximately 342,000 net acres. Of these
135 blocks, located predominantly in federal waters offshore Texas and
Louisiana, we operate 85. As part of the property exchange with Oxy USA Inc.,
which was completed on December 31, 1999, we transferred to Oxy our interests in
four producing blocks in the Matagorda Island and Garden Banks area, and the
member interests in an indirect wholly owned limited liability company the
assets of which included interests in five producing blocks in the Matagorda
Island area. These transferred interests collectively represented an average 28
MMcf per day of natural gas production net to us.
In 1999, we shifted our strategy in the Offshore Gulf of Mexico from
exploration drilling to acquisition and exploitation in core areas of the
Louisiana and Texas shelf. We anticipate drilling five to ten wells in this area
during 2000. Natural gas deliveries from this area averaged 127 MMcf per day
during 1999, net to us, including production from the properties we transferred
to Oxy USA Inc. in the property exchange.
Southeastern New Mexico Area. We have concentrated our activities in this
area in Lea and Eddy Counties in New Mexico. Production is primarily from the
Bone Springs, Wolfcamp, Chester, Morrow and Atoka formations. Natural gas
deliveries for 1999 averaged 35 MMcf per day, and deliveries of crude oil,
condensate and natural gas liquids averaged 2.3 MBbl per day both net to us. At
December 31, 1999, deliverability, net to us, was approximately 42 MMcf per day
of natural gas and 2.0 MBbl per day of crude oil, condensate and natural gas
liquids. We hold 93,000 net acres and have an average working interest of
approximately 70%. We plan significant drilling for this area in 2000.
Val Verde Basin. Our activities in this area have been concentrated in
Crockett, Terrell and Val Verde Counties in Texas. We hold approximately 51,000
net acres and now operate approximately 325 natural gas wells in this area in
which we own a 90% average working interest. Production is from the Canyon sands
and Strawn limestone at depths from 5,500 to 12,500 feet. At December 31, 1999,
natural gas deliverability net to us was approximately 20 MMcf per day. We plan
to test several prospects in this basin in 2000.
Midland Basin. We have concentrated our activities in this area in Upton
and Reagan Counties in Texas. Production is primarily from the Wolfcamp and
Strawn formations. In 1999, deliveries net to us averaged 11 MMcf per day of
natural gas and approximately 2.4 MBbl per day of crude oil, condensate and
natural gas liquids. At December 31, 1999, deliverability net to us was
approximately 14 MMcf per day of natural gas and 3.3 MBbl per day of crude oil,
condensate and natural gas liquids. We hold
13
<PAGE> 18
approximately 40,000 net acres and have an average working interest of
approximately 95%. We expect to drill numerous wells in this area during 2000.
Mid-Continent Area. We have concentrated our activities in the
Mid-Continent area in the Oklahoma and Texas panhandles and in the deeper
Anadarko Basin. In 1999, we drilled 57 natural gas wells in the Oklahoma
panhandle and five natural gas wells in the Texas panhandle. We control over
400,000 acres in the Oklahoma panhandle, including certain exploration rights on
approximately 320,000 acres under a farmout agreement acquired in the property
exchange with Oxy USA Inc., and 27,000 acres in the Texas panhandle. Production
from the panhandle areas is primarily from the Morrow, Toronto and Council Grove
formations. Net deliveries from the panhandle areas averaged approximately 34
MMcf per day of natural gas during 1999. At December 31, 1999 net deliveries
from these areas were approximately 42 MMcf per day of natural gas and 0.3 MBbl
per day of crude oil and condensate. In 1999, we also drilled 39 wells in other
areas of the Anadarko Basin. Deliveries from this area, net to us, averaged
approximately 39 MMcf per day of natural gas and 0.3 MBbl per day of crude oil,
condensate and natural gas liquids in 1999. We anticipate an active
Mid-Continent drilling program for several years.
Canada. We explore for and develop, produce and market natural gas, natural
gas liquids and crude oil in Western Canada, principally in the provinces of
Alberta, Saskatchewan, and Manitoba. We conduct operations from offices in
Calgary, Alberta, and produce natural gas and crude oil from five major areas.
The Sandhills area in southwestern Saskatchewan is our largest single natural
gas producing area in Canada. In 1999, we drilled 254 wells in the area and we
acquired additional acreage and wells in the area resulting in deliverability of
approximately 51 MMcf per day net to us at December 31, 1999. The Blackfoot area
in southeastern Alberta is our second largest natural gas producing area in
Canada. In 1999, we drilled 78 new wells and performed numerous recompletions,
workovers and facility optimizations resulting in deliverability of
approximately 36 MMcf per day and 0.8 MBbl per day of crude oil and condensate
net to us at December 31, 1999. Total Canadian natural gas deliverability net to
us at December 31, 1999 was approximately 131 MMcf per day, and we held
approximately 522,000 net undeveloped acres in Canada. Total Canadian natural
gas deliveries net to us for 1999 averaged approximately 115 MMcf per day. We
expect to maintain an active drilling program in Western Canada for several
years.
OUTSIDE NORTH AMERICA OPERATIONS
We have producing operations offshore Trinidad, and are evaluating
exploration, exploitation and development opportunities in selected other
international areas.
Trinidad. In November 1992, we were awarded a 95% working interest
concession in the South East Coast Consortium Block offshore Trinidad,
encompassing three undeveloped fields, previously held by three government-owned
energy companies. We have developed the Kiskadee and Ibis fields. We anticipate
that the Oilbird field will be developed over the next several years. We are
using existing surplus processing and transportation capacity at the Pelican
field facilities owned and operated by Trinidad and Tobago government-owned
companies to process and transport the production. We are selling natural gas
into the local market under a take-or-pay agreement with the National Gas
Company of Trinidad and Tobago. In 1999, deliveries net to us averaged 123 MMcf
per day of natural gas, which includes 21 MMcf per day of gas balancing volumes
relating to a field allocation agreement, and 2.4 MBbl per day of crude oil and
condensate.
In 1996, we signed a production sharing contract with the Government of
Trinidad and Tobago for the modified U(a) Block. We have a 100% working interest
in this block. Under the contract, we committed to the acquisition of 3-D
seismic data and the drilling of three wells. The first well was drilled in 1998
and was successful, encountering over 400 feet of net pay, resulting in the
largest exploration discovery in our history. We recorded 675 Bcfe of proved
reserves for this discovery. During the fourth quarter of 1999, we drilled an
unsuccessful exploration well. In the first quarter of 2000, we determined that
another well was unsuccessful. These wells fulfilled our obligations under the
production sharing agreement.
14
<PAGE> 19
At December 31, 1999, we held approximately 144,000 net undeveloped acres
in Trinidad.
In January 2000, we signed a 15-year natural gas supply contract for over
60 MMcf per day with the National Gas Company of Trinidad and Tobago. This
natural gas will supply a 1,850 metric ton per day anhydrous ammonia plant that
is to be constructed by Caribbean Nitrogen Company Limited, a Trinidadian
company in which we have a 16% interest. Negotiations to obtain financing for
the plant are in progress.
Venezuela. In early 1996, we were awarded exploration, exploitation and
developments rights for a block offshore the eastern state of Sucre in
Venezuela. We signed agreements with the government of Venezuela and other
participants associated with a concession awarded in the Gulf of Paria East. We
hold an initial 90% working interest in the joint venture and act as operator.
We drilled one exploratory well in 1998 and encountered hydrocarbons. During
1999, we impaired the carrying value of these assets to reflect our estimated
fair value. In June 2000, we conveyed all our interest in the joint venture to a
third party, who will complete the remaining commitment under the concession and
act as operator.
Other International. We continue to evaluate other selected conventional
natural gas and crude oil opportunities outside North America primarily by
pursuing other exploitation opportunities in countries where indigenous natural
gas and crude oil reserves have been identified.
MARKETING
Wellhead Marketing. We currently sell our North America wellhead natural
gas production on the spot market and under long-term natural gas contracts at
market responsive prices. In many instances, the long-term contract prices
closely approximate the prices received for natural gas being sold on the spot
market. We sell wellhead natural gas volumes from Trinidad at prices that are
based on a fixed price schedule with annual escalations.
We sell substantially all of our wellhead crude oil and condensate under
various terms and arrangements at market responsive prices.
Other Marketing. EOG Resources Marketing, Inc., one of our wholly owned
subsidiaries, is a marketing company engaging in various marketing activities.
Both we and this subsidiary contract to provide, under short and long-term
agreements, natural gas to various purchasers and then aggregate the necessary
supplies for the sales with purchases from various sources including third-party
producers, marketing companies, pipelines or from our own production and arrange
for any necessary transportation to the points of delivery. In addition, this
subsidiary has purchased and constructed several small gathering systems in
order to facilitate its entry into the gathering business on a limited basis.
Both we and this subsidiary use other short and long-term hedging and trading
mechanisms including sales and purchases utilizing NYMEX-related commodity
market transactions. These marketing activities have provided an effective
balance in managing a portion of our exposure to commodity price risks for both
natural gas and crude oil and condensate wellhead prices.
15
<PAGE> 20
DESCRIPTION OF THE SERIES B PREFERRED STOCK
The following is a summary of the terms of the Series B preferred stock.
This summary does not purport to be complete and is qualified in its entirety by
reference to EOG's certificate of incorporation, as amended, and the certificate
of designations authorizing the issuance of the shares of Series B preferred
stock. Copies of the certificate of incorporation and the certificate of
designations may be obtained upon request from EOG.
GENERAL
Under our certificate of incorporation, our board of directors is
authorized, without further stockholder action, to issue from time to time up to
10,000,000 shares of preferred stock in one or more series and with such terms
and conditions and at such times and for such consideration as the board of
directors or an authorized committee thereof may determine. At the date of this
prospectus, 100,000 shares of Series A preferred stock with a liquidation value
of $1,000 per share and 500 shares of Series C preferred stock with a
liquidation value of $100,000 per share are outstanding. Up to 500 shares of
Series D preferred stock with a liquidation value of $100,000 per share may be
issued pursuant to a contemporaneous exchange offer by EOG to the holders of the
Series C Preferred Stock.
The shares will be shares of preferred stock that entitle their holders to
receive dividends when, as and if declared by the board of directors, out of
funds legally available therefor from dividend period to dividend period.
Except as otherwise required by law or as described below, or unless there
is no securities depositary, all outstanding shares of Series B preferred stock
will be represented by one or more certificates registered in the name of the
securities depositary or its nominee and no person acquiring shares will be
entitled to receive a certificate for those shares. The certificate or
certificates representing the Series B preferred stock will be deposited upon
issuance with, or on behalf of, The Depository Trust Company, as securities
depositary for the shares, and one or more certificates for all of the shares
shall be issued to the securities depositary and registered in the name of Cede
& Co. as nominee of DTC. Each certificate shall bear a legend to the effect that
such certificate is issued subject to the provisions restricting the transfer of
shares contained in the certificate of designations. During a non-payment
period, an existing holder may obtain a certificate for the shares owned by it.
DTC, which is a New York-chartered limited purpose trust company, performs
services for its participants, some of whom, and/or their representatives, own
shares of common stock of DTC. DTC will maintain lists of its participants and
the shares held by each whether as an existing holder for its own account or as
a nominee for another existing holder.
When issued, the shares will have a liquidation preference per share equal
to the sum of $1,000 plus an amount equal to accumulated and unpaid dividends
thereon, whether or not earned or declared to the date of final distribution,
and will be fully paid and nonassessable. See "-- Liquidation Rights" on page
19. For each share issued, the amount of $1,000 will be credited to EOG's
capital account designated as Series B preferred stock, and the aggregate
expenses of the exchange offering of the shares will be charged to the same
account.
The shares will not be convertible into shares of common stock or any other
securities of EOG and will have no preemptive rights. At any time beginning
December 15, 2009, the Series B preferred stock will be redeemable, in whole or
in part, at the option of EOG, at $1,000 per share plus accumulated and unpaid
dividends thereon, whether or not declared.
The shares will rank prior to or on a parity with any other shares of
preferred stock as to dividends and upon the liquidation, dissolution or winding
up of EOG, except under the circumstances described under "-- Voting Rights" on
page 20.
Except as otherwise provided herein or as limited by law, EOG shall have
the right to purchase or otherwise acquire any shares at any price. Any shares
purchased or otherwise acquired by EOG may be restored to the status of
authorized but undesignated and unissued shares of preferred stock.
16
<PAGE> 21
DIVIDENDS
Cash dividends on the Series B preferred stock will be cumulative. The
record date will not be less than five nor more than 50 days, whether or not a
business day, preceding the applicable dividend payment date. If declared,
dividends on the Series B preferred stock will be payable quarterly on March 15,
June 15, September 15 and December 15 of each year, at the rate of $71.95 per
share per year, commencing June 15, 2000.
The Series B preferred stock is a series of senior preferred stock. When
dividends are not paid in full upon the Series B preferred stock and any other
series of senior preferred stock ranking equal as to dividends with the Series B
preferred stock, all dividends declared upon shares of the Series B preferred
stock and any other series of senior preferred stock ranking equal as to
dividends shall be declared pro rata so that the amount of dividends declared
per share on the Series B preferred stock and such other senior preferred stock
shall in all cases bear to each other the same ratio that accrued dividends per
share on the Series B preferred stock and such other senior preferred stock bear
to each other.
Except as provided in the preceding sentence, unless full dividends on the
Series B preferred stock have been, or contemporaneously are, paid, or declared
and a sum sufficient for the payment thereof has been or is set apart for such
payment:
- no dividends (other than in common stock, junior preferred stock or any
other stock of EOG ranking junior to the Series B preferred stock as to
dividends and upon liquidation) shall be declared or paid or set aside
for payment;
- no other distribution shall be made on the common stock, junior preferred
stock or any other stock of EOG ranking junior to or equal with the
Series B preferred stock as to dividends or upon liquidation;
- no common stock, junior preferred stock or any other stock of EOG ranking
junior to or equal with the Series B preferred stock as to dividends or
upon liquidation shall be redeemed, purchased or otherwise acquired for
any consideration, nor shall any moneys be paid to, or made available
for, a sinking fund for the redemption of any shares of any such stock by
EOG, except by conversion into or exchange for stock of EOG ranking
junior to the Series B preferred stock as to dividends and upon
liquidation.
Changes in the Dividends Received Percentage
If, at any time prior to 18 months after December 10, 1999, one or more
amendments to the Internal Revenue Code of 1986, as amended (the "Code"), are
enacted that reduce the percentage of the dividends received deduction
(generally 70%) as specified in Section 243(a)(1) of the Code or any successor
provision (the "Dividends Received Percentage"), the amount of each dividend
payable (if declared) per share of the Series B preferred stock for dividend
payments made on or after the effective date of such change shall be increased.
The increase will be determined by multiplying the amount of the dividend
payable described above (before adjustment) by a factor determined in accordance
with the following formula (the "DRD Formula"), and rounding the result to the
nearest cent with one-half cent rounded up);
1-[.35 (1 - .70)]
-----------------
1-[.35 (1 - DRP)]
For purposes of the DRD Formula, "DRP" means the Dividends Received Percentage
applicable to the dividend in question; provided, however, that if the Dividends
Received Percentage applicable to the dividend in question is less than 50%,
then the DRP will equal .50. If, however, with respect to any such amendment,
EOG shall receive either (1) an unqualified opinion of independent recognized
tax counsel based upon the legislation amending or establishing the DRP or upon
a published pronouncement of the
17
<PAGE> 22
Internal Revenue Service addressing such legislation or (2) a private letter
ruling or similar form of assurance from the IRS, in either case to the effect
that such an amendment would not apply to dividends payable on the Series B
preferred stock, then any such amendment shall not result in the adjustment
provided for pursuant to the DRD Formula. No amendment to the Code, other than a
change in the percentage of the dividends received deduction set forth in
Section 243(a)(1) of the Code or any successor provision prior to 18 months
after December 10, 1999, will give rise to an adjustment. Unless the context
otherwise requires, references to dividends in this offering memorandum shall
mean dividends as adjusted by the DRD Formula. EOG's calculation of the
dividends payable, as so adjusted and as certified accurate as to calculation
and reasonable as to method by the independent certified public accountants then
regularly engaged by EOG, shall be final and not subject to review.
If any amendment to the Code that reduces the Dividends Received Percentage
is enacted after a dividend payable on a dividend payment date has been declared
but before such dividend has been paid, the amount of dividends payable on such
dividend payment date will not be increased, but instead, EOG will pay (if
declared) an amount, equal to the excess, if any, of (1) the product of the
dividends paid by EOG on such dividend payment date and the DRD Formula (where
the DRP used in the DRD Formula would be the greater of the reduced Dividends
Received Percentage and .50) over (2) the dividends paid by EOG on such dividend
payment date, on the next succeeding dividend payment date to holders of the
Series B preferred stock on the record date applicable to the succeeding
dividend payment date, in addition to any other amounts payable on that dividend
payment date.
In addition, if any such amendment to the Code is enacted that reduces the
Dividends Received Percentage and such reduction retroactively applies to a
dividend payment date as to which EOG previously paid dividends on shares of the
Series B preferred stock, EOG will pay (if declared) additional dividends on the
next succeeding dividend payment date (or if such amendment is enacted after the
dividend payable on such dividend payment date has been declared, on the second
succeeding dividend payment date following the date of enactment) to holders of
the Series B preferred stock on the record date applicable to the succeeding
dividend payment date, in an amount equal to the excess, if any, of (x) the
product of the dividends paid by EOG on each affected dividend payment date and
the DRD Formula (where the DRP used in the DRD Formula would be the greater of
the reduced Dividends Received Percentage and .50, applied to each affected
dividend payment date) over (y) the dividends paid by EOG on each affected
dividend payment date.
The additional dividends will not be paid for the enactment of any
amendment to the Code if such amendment would not result in an adjustment due to
EOG having received either an opinion of counsel or tax ruling referred to in
the first paragraph under the caption "Changes in the Dividends Received
Deduction". EOG will only make one payment of these additional dividends.
EOG will make no adjustments in the dividends payable and EOG will pay no
additional dividends because of any amendment to the Code at any time beginning
18 months after December 10, 1999 that reduces the Dividends Received
Percentage.
In the event that the amount of dividend payable per share of the Series B
Preferred Stock shall be adjusted pursuant to the DRD Formula and/or additional
dividends are to be paid, EOG will cause notice of each such adjustment and, if
applicable, any additional dividends to be sent to the holders of the Series B
preferred stock.
In addition, if the Dividends Received Percentage is reduced to 50% or less
within 18 months after December 10, 1999, EOG may redeem the Series B preferred
stock, in whole but not in part, at $1,050 per share, plus accrued and unpaid
dividends (whether or not declared and including any increase in dividends
payable due to changes in the Dividends Received Percentage). See
"-- Redemption".
In the past, legislation has been proposed that would have affected certain
corporate holders of the Series B preferred stock that own less than 20%, by
vote and value, of the stock of EOG. That legislation
18
<PAGE> 23
would have reduced the dividends received deduction and changed the holding
period required for eligibility for the dividends received deduction applicable
to the Series B preferred stock. To EOG's knowledge, no such proposals are
currently pending before the United States Congress. Similar legislation,
however, may be enacted in the future or other legislation may be enacted that
would reduce the dividends received deduction available to corporate holders of
the Series B preferred stock.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of EOG, the holders of shares of the Series B preferred stock will be
entitled to receive out of EOG's assets available for distribution to
stockholders, before any distribution of assets is made on the common stock, the
junior preferred stock or any other class of stock of EOG ranking junior to the
Series B preferred stock upon liquidation, liquidating distributions in the
amount of $1,000 per share, plus an amount equal to the sum of all accrued and
unpaid dividends, whether or not earned or declared, on such shares to the date
of final distribution. If, upon any voluntary or involuntary dissolution,
liquidation or winding up of EOG, the amounts payable with respect to the Series
B preferred stock and any other shares of senior preferred stock ranking equal
with the Series B preferred stock as to any such distribution are not paid in
full, the holders of the Series B preferred stock and of such other shares will
share ratably in any such distribution of EOG's assets in proportion to the full
respective distributable amounts to which they are entitled. After payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of the Series B preferred stock will not be entitled to any further
participation in any distribution of assets by EOG. Neither the sale of all or
substantially all of the property or business of EOG, nor the merger or
consolidation of EOG into or with any other corporation shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, of EOG.
REDEMPTION
Except as described under "-- Dividends -- Changes in the Dividends
Received Percentage", the Series B preferred stock is not redeemable prior to
December 15, 2009. Beginning on this date, EOG may redeem all or part of the
Series B preferred stock, from time to time upon not less than 30 nor more than
60 days' notice, at a redemption price of $1,000 per share, plus accrued and
unpaid dividends, whether or not earned or declared, to the redemption date,
including any dividends payable due to changes in the Dividends Received
Percentage and any additional dividends. The Series B preferred stock will not
benefit from any sinking fund.
If EOG redeems less than all of the outstanding shares of the Series B
preferred stock, the board of directors will determine (1) the number of shares
to be redeemed and (2) an equitable method, e.g., by lot or pro rata, of
determining which shares are redeemed.
If dividends to the redemption date have not been declared and paid or set
apart for payment on all outstanding shares of the Series B preferred stock, no
shares of the Series B preferred stock shall be redeemed unless all outstanding
shares of the Series B preferred stock are simultaneously redeemed, and EOG
shall not purchase or otherwise acquire any shares of the Series B preferred
stock. This requirement shall not prevent the purchase or acquisition of shares
of the Series B preferred stock pursuant to a tender or exchange offer made on
the same terms to all holders of the Series B preferred stock and mailed to the
holders of record of the Series B preferred stock at such holders' addresses as
they appear on EOG's stock register. If some, but less than all, of the shares
of the Series B preferred stock are to be purchased or otherwise acquired
pursuant to that tender or exchange offer and the number of shares so tendered
exceeds the number of shares to be purchased or otherwise acquired by EOG, the
shares of the Series B preferred stock tendered will be purchased or otherwise
acquired by EOG on a pro rata basis, with adjustments to eliminate fractions,
according to the number of such shares tendered by each holder tendering shares
of the Series B preferred stock.
Notices of redemption shall be mailed to each record holder of the Series B
preferred stock shares to be redeemed at the address of such holder that appears
on EOG's stock register. Each notice shall state:
19
<PAGE> 24
- the redemption date;
- the number of shares to be redeemed;
- the redemption price;
- the place or places where certificates of such shares of the Series B
preferred stock are to be surrendered for payment of the redemption
price; and
- that dividends on the shares to be redeemed will cease to accrue or
accumulate on such redemption date.
If fewer than all shares of the Series B preferred stock held by any holder
are to be redeemed, the notice mailed to such holder shall also specify the
number of shares to be redeemed from such holder.
If notice of redemption has been given, no dividends on the shares of the
Series B preferred stock called for redemption shall accrue from and after the
redemption date for the shares of the Series B preferred stock called for
redemption, unless EOG defaults in providing funds for the payment of the
redemption price of the shares called for redemption. These shares shall no
longer be deemed to be outstanding, and all rights of the holders as
stockholders of EOG, except the right to receive the redemption price, shall
end. Upon surrender in accordance with the notice of the certificates
representing any shares of the Series B preferred stock redeemed, properly
endorsed or assigned for transfer, if the EOG board of directors shall require
and the notice shall state, the redemption price set forth in the notice shall
be paid out of funds provided by EOG. EOG's obligation to provide funds in
accordance with the preceding sentence will be deemed fulfilled if, on or before
12:00 noon, Houston time on the date fixed for redemption, EOG irrevocably
deposits with a qualified paying agent, which may be an affiliate of EOG, funds
necessary for such redemption, including any accrued and unpaid dividends to the
redemption date, with irrevocable instructions and authorization that such funds
be applied to the redemption of the shares of the Series B preferred stock
called for redemption upon surrender of certificates for such shares, properly
endorsed or assigned for transfer. EOG expects that Bank of New York will
initially serve as the paying agent. If fewer than all of the shares of the
Series B preferred stock represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder.
If at any time prior to 18 months after December 10, 1999, one or more
amendments to the Code are enacted that reduce the Dividends Received Percentage
to 50% or less, and, as a result, the amount of dividends on the Series B
preferred stock payable on any Dividend Payment Date may be adjusted upwards as
described above under "-- Dividends -- Changes in the Dividends Received
Percentage", EOG, at its option, may redeem all, but not less than all, of the
outstanding shares of the Series B preferred stock, provided that, within 60
days of the date on which an amendment to the Code is enacted that reduces the
Dividends Received Percentage to 50% or less, EOG sends notice to holders of the
Series B preferred stock of such redemption. Any redemption of the Series B
preferred stock pursuant to this paragraph will take place on the date specified
in the notice, which will be not less than 30 nor more than 60 days from the
date such notice is sent to holders of the Series B preferred stock. Any such
redemption of the Series B preferred stock will be at a redemption price of
$1,050 per share, plus accrued and unpaid dividends (whether or not declared and
including any increase in dividends payable due to changes in the Dividends
Received Percentage).
VOTING RIGHTS
Except as indicated below or as expressly required by applicable law, the
holders of the Series B preferred stock will have no voting rights.
If dividends payable on any share or shares of the Series B preferred stock
or on any other class or series of senior preferred stock ranking equal with the
Series B preferred stock and upon which like voting rights have been conferred
and are exercisable, excluding any class or series of cumulative senior
preferred stock entitled to elect additional directors by a separate vote
("Voting Preferred Stock") have not been
20
<PAGE> 25
paid or declared and set aside for payment for the equivalent of six consecutive
full quarterly dividend periods, the number of directors of EOG will be
increased by two, without duplication of any increase made pursuant to the terms
of any other class or series of Voting Preferred Stock, and the holders of the
Series B preferred stock voting as a single class with the holders of the Voting
Preferred Stock, will be entitled to elect such two directors to fill such newly
created directorships. This right of the holders of the Series B preferred stock
and the Voting Preferred Stock shall continue until all accrued but unpaid
dividends have been paid. Any such elected directors shall serve until all
accrued but unpaid dividends have been paid.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series B preferred stock will be required for any
amendment, alteration or repeal of any provisions of the certificate of
incorporation, the Series B preferred stock's certificate of designation or any
other certificate amendatory of or supplemental to the certificate of
incorporation which would adversely affect the powers, preferences, privileges
or rights of the Series B preferred stock. The affirmative vote or consent of
the holders of at least 66 2/3% of the outstanding shares of the Series B
preferred stock and any other series of senior preferred stock ranking equal
with the Series B preferred stock either as to dividends or upon liquidation,
voting as a single class without regard to series, will be required to issue,
authorize or increase the authorized amount of, or issue or authorize any
obligation or security convertible into or evidencing a right to purchase, any
additional class or series of stock ranking prior to the Series B preferred
stock as to dividends or upon liquidation, or reclassify any authorized stock of
EOG into such prior shares. Such vote will not be required for EOG to take any
such actions with respect to any stock ranking on a parity with or junior to the
Series B preferred stock.
Subject to such affirmative vote or consent of the holders of the
outstanding shares of the Series B preferred stock, EOG may, by resolution of
its board of directors or as otherwise permitted by law, from time to time alter
or change the preferences, rights or powers of the Series B preferred stock.
Nothing in this section shall be taken to require a class vote or consent in
connection with the authorization, designation, increase or issuance of any
shares of any class or series, including additional Series B preferred stock,
ranking junior to or equal with the Series B preferred stock as to dividends and
liquidation rights or in connection with the authorization, designation,
increase or issuance of any bonds, mortgages, debentures or other obligations of
EOG.
PREEMPTIVE AND CONVERSION RIGHTS
Holders of the Series B preferred stock will not have any preemptive rights
to purchase or subscribe for any other shares, rights, options or other
securities of EOG which at any time may be sold or offered for sale by EOG. The
Series B preferred stock is not convertible into shares of any other class or
series of capital stock of EOG.
TRANSFER AGENT, REGISTRAR AND PAYING AGENT
The transfer agent, registrar, dividend disbursing agent, paying agent and
redemption agent for the Series B preferred stock is Bank of New York.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a general tax discussion which summarizes the material
U.S. federal income tax consequences generally applicable to U.S. persons who
are initial holders of the Series B preferred stock. The following discussion is
subject to the qualifications, limitations, and assumptions contained herein. As
used herein, a U.S. person is:
- an individual who is a citizen or resident of the United States for
federal income tax purposes;
- a corporation, partnership, or other type of entity organized under the
laws of the United States or any State;
21
<PAGE> 26
- any estate; or
- a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more U.S.
persons have the authority to control all substantial decisions of the
trust.
This summary does not discuss all aspects of U.S. federal income tax that
may be relevant to investors in light of their particular circumstances or to
investors that are subject to special treatment under U.S. federal income tax
laws including, without limitation, non-U.S. persons, insurance companies,
certain financial institutions, broker-dealers, S corporations, tax exempt
organizations, persons holding Series B preferred stock as part of a conversion
transaction, as part of a hedge or hedging transaction, as part of a "wash
sale", as part of a synthetic security, or as a position in a "straddle". This
summary is based on the Code, Treasury Regulations promulgated thereunder, and
judicial and administrative interpretations thereof, all as of the date of this
offering memorandum. The statutory provisions, regulations, and interpretations
on which this summary is based are all subject to change, possibly on a
retroactive basis, and differing interpretations.
THE U.S. FEDERAL INCOME TAX CONSEQUENCES SUMMARIZED BELOW ARE FOR GENERAL
INFORMATION ONLY. EACH PROSPECTIVE INVESTOR SHOULD CONSULT A TAX ADVISOR AS TO
THE INVESTOR'S PARTICULAR CONSEQUENCES CONCERNING THE EXCHANGE OFFER AND THE
OWNERSHIP OF SERIES B PREFERRED STOCK, INCLUDING THE APPLICATION OF STATE,
LOCAL, NON-U.S., AND OTHER FEDERAL TAX LAWS.
EXCHANGE
An exchange of Series A Preferred Stock for Series B Preferred Stock
pursuant to the exchange offer should not be treated as a taxable event for U.S.
federal income tax purposes. Accordingly, holders of Series A Preferred Stock
who exchange their Series A Preferred Stock for Series B Preferred Stock should
not recognize income, gain or loss for U.S. federal income tax purposes and any
such holder should have the same adjusted tax basis and holding period in the
Series B Preferred Stock as it had in the Series A Preferred Stock immediately
before the exchange.
DIVIDENDS
Distributions with respect to the Series B preferred stock (other than
liquidating distributions and certain distributions in redemption of the Series
B preferred stock) which are paid out of current or accumulated earnings and
profits, as calculated for U.S. federal income tax purposes, generally will
constitute dividends taxable as ordinary income. To the extent the amount of any
such distribution paid with respect to the Series B preferred stock exceeds
current and accumulated earnings and profits, as calculated for U.S. federal
income tax purposes, such excess distribution will not constitute a dividend for
U.S. federal income tax purposes, but will be treated first as a tax-free return
of capital to the extent of the holder's adjusted tax basis in its Series B
preferred stock (with a corresponding reduction in such basis) and, to the
extent the distribution exceeds such basis, as a capital gain provided the
Series B preferred stock is held as a capital asset for U.S. federal income tax
purposes.
DIVIDENDS RECEIVED DEDUCTION
Dividends received by corporate stockholders generally are eligible for the
dividends received deduction (the "DRD") as specified in Section 243(a)(1) of
the Code. Under such Section, the amount of the DRD generally will equal 70% of
the amount of the dividend received. Prospective investors should consider the
potential effect of (1) Section 246A of the Code, which reduces the DRD allowed
to a corporate stockholder that has incurred indebtedness that is directly
attributable to an investment in portfolio stock (as determined for U.S. federal
income tax purposes), (2) Section 1059 of the Code, which reduces a
stockholder's basis in stock in certain circumstances, (3) Section 246(b) of the
Code, which limits the amount of the DRD percentage to a percentage of the
stockholder's taxable income, and
22
<PAGE> 27
(4) Section 246(c) of the Code, which disallows the DRD in respect of any
dividend if the holder of the stock is required to make related payments with
respect to positions in substantially similar or related property or certain
holding period requirements are not met.
Under Section 1059 of the Code, any dividend received by a corporate
stockholder that constitutes an "extraordinary dividend" may require a reduction
in the adjusted tax basis of the stock by the non-taxed portion of the dividend,
but not below zero. If such portion exceeds the corporate stockholder's adjusted
tax basis in the stock, the stockholder may be required to treat the excess as
gain from the sale of such stock in the year in which the dividend is received.
A dividend on preferred stock may be treated as "extraordinary" if (1) it equals
or exceeds 5% of the holder's adjusted tax basis in the stock (reduced for this
purpose by the non-taxed portion of any prior extraordinary dividend), treating
all dividends having ex-dividend dates within an 85-day period as one dividend,
or (2) exceeds 20% of the holder's adjusted tax basis in the stock, treating all
dividends having ex-dividend dates within a 365-day period as one dividend. You
should consult your own tax advisors as to the application of Section 1059 of
the Code to any dividends that may be paid with respect to the Series B
preferred stock.
Under Section 246(c), a corporate stockholder must hold the dividend-paying
stock for certain time periods, depending on the type of stock and distribution,
before the DRD is allowed. Ordinarily, the DRD is disallowed if the corporate
stockholder has not held the dividend-paying stock for more than 45 days during
the 90-day period beginning on the date that is 45 days before the date on which
such stock becomes ex-dividend with respect to such dividend. Where the
corporate stockholder receives dividends with respect to stock having a
preference in dividends which are attributable to a period or periods
aggregating in excess of 366 days, the DRD is disallowed if such stock is not
held for more than 90 days during the 180-day period beginning on the date that
is 90 days before the date on which such stock becomes ex-dividend with respect
to such dividend. For purposes of calculating the above holding periods, the
holding period begins on the day after the stock is acquired and includes the
day of disposition. However, the corporate stockholder's holding period is
reduced for any period in which (1) the corporate stockholder has diminished its
risk of loss by holding an option to sell, is under a contractual obligation to
sell, or has made, and not closed, a short sale of substantially identical stock
or securities; (2) the corporate stockholder is the grantor of an option to buy
substantially identical stock or securities; or (3) the corporate stockholder
has diminished its risk of loss by holding one or more other positions with
respect to substantially similar or related property as prescribed in the
Treasury Regulations.
Prospective investors should also consider the effect of the corporate
alternative minimum tax, which imposes a minimum tax of 20% of a corporation's
alternative minimum taxable income for a taxable year. For purposes of the
corporate alternative minimum tax, alternative minimum taxable income is
increased by 75% of the amount by which a corporation's adjusted current
earnings in the taxable year exceeds its alternative minimum taxable income
prior to the addition of an item. The amount of any dividend on the Series B
preferred stock that is included in adjusted current earnings will not be
reduced by the DRD that is allowed with respect to such dividend.
DISPOSITIONS, INCLUDING REDEMPTIONS
Any sale, exchange, redemption (except as discussed below) or other
disposition of the Series B preferred stock generally will result in taxable
gain or loss equal to the difference between the amount received and the
stockholder's adjusted tax basis in the Series B preferred stock. Such gain or
loss generally will be capital gain or loss and will be long-term capital gain
or loss if the holding period for the Series B preferred stock exceeds one year.
In certain cases, a redemption of Series B preferred stock may be treated
as a dividend, rather than as a payment in exchange for the Series B preferred
stock. In such events, the redemption payment will be treated as ordinary
dividend income to the extent that such payment is made out of current or
accumulated earnings and profits, as calculated for U.S. federal income tax
purposes. The determination of whether the redemption will be treated as a
dividend rather than as payment in exchange for the Series B preferred stock
will depend upon whether and to what extent the redemption reduces the holder's
23
<PAGE> 28
percentage stock ownership interest in EOG. A redemption will be treated as an
exchange of stock that produces a capital gain if the redemption either (1)
completely terminates the holder's interest in EOG under Section 302(b)(3) of
the Code, (2) is "substantially disproportionate" with respect to the holder
under Section 302(b)(2) of the Code or (3) is "not essentially equivalent to a
dividend" under Section 302(b)(1).
A redemption will completely terminate the holder's interest in EOG as a
result of the redemption if, as a result of the redemption, the holder no longer
has any stock interest in EOG directly or constructively after application of
the attribution rules of Section 302(c) of the Code. A redemption will be
"substantially disproportionate" with respect to the holder if (1) the ratio of
the voting stock owned by the holder (including stock attributed to the holder
under Section 302(c) of the Code) immediately after the redemption to all the
voting stock of EOG is less than 80% of the same ratio for the voting stock
owned by the holder immediately before the redemption, (2) there is a similar
percentage reduction in the ownership by the holder of common stock of EOG, and
(3) the holder owns less than 50% of the voting stock of EOG. Whether a
redemption is "not essentially equivalent to a dividend" with respect to a
holder will depend upon the holder's particular circumstances. The IRS has ruled
that a minority stockholder in a publicly held corporation whose relative stock
interest is minimal and who exercises no control with respect to corporate
affairs is considered to have a "meaningful reduction" if such stockholder has a
reduction in its percentage stock ownership. In determining whether any of the
foregoing tests have been satisfied, the holder is deemed, under the
constructive ownership rules of Section 302(c) of the Code, to own any shares in
EOG owned by certain related persons and entities and any shares which the
holder or certain related persons and entities have an option to acquire.
However, because of the ambiguities in applying the foregoing rules, you should
consult your tax advisor to determine whether a redemption of Series B preferred
stock will be treated as a dividend or as a payment in exchange for the Series B
preferred stock. A distribution in redemption of Series B preferred stock that
is treated as a dividend may also be considered an extraordinary dividend under
Section 1059 of the Code. See "Dividends Received Deduction" above.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Payments of dividends on shares of Series B preferred stock held of record
by U.S. persons, other than corporations and other exempt holders, are required
to be reported to the IRS.
Backup withholding of U.S. federal income tax at a rate of 31 percent may
apply to payments made with respect to shares of Series B preferred stock, as
well as payments of proceeds from the sale of shares of Series B preferred
stock, to holders that are not "exempt recipients" and that fail to provide
certain identifying information, such as the taxpayer identification number of
the holder, in the manner required. Individuals generally are not exempt
recipients, while corporations and certain other entities generally are exempt
recipients.
BOOK-ENTRY ISSUANCE
The Series B preferred stock initially will be represented by one or more
registered, global certificates (collectively the "Global Security"), which will
be deposited upon issuance with, or on behalf of, The Depository Trust Company,
in New York, New York, and registered in the name of a nominee of DTC, in each
case for credit to an account of a direct or indirect participant in DTC as
described below. This means that, except as provided below, holders of the
Series B preferred stock (1) will not receive a certificate for the Series B
preferred stock, (2) will not have the Series B preferred stock registered in
their name and (3) will not be considered the registered owners or holders of
the Series B preferred stock for any purpose. Accordingly, each person owning a
beneficial interest in the Global Security must rely on the procedures of the
DTC and, if such person is not one of DTC's participating organizations
(collectively, the "Participants"), on the procedures of the Participant through
which the person owns its interest, to exercise any rights of a holder of the
Series B preferred stock.
24
<PAGE> 29
Except as set forth below, the Global Security certificate may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Security may
not be exchanged for certificates representing Series B preferred stock except
in the limited circumstances described below.
DTC has advised EOG and the initial purchasers that DTC is a
limited-purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the Securities Exchange Act of 1934. DTC was created to hold
securities for its Participants and to facilitate the clearance and settlement
of transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants, by eliminating the need for
physical movement of securities certificates. The Participants include
securities brokers and dealers, including the initial purchasers, banks, trust
companies, clearing corporations and certain other organizations. DTC is owned
by a number of its participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to DTC's book-entry system is also available to other
entities such as banks, brokers, dealers and trust companies (collectively, the
"Indirect Participants") that clear transactions through or maintain a direct or
indirect custodial relationship with a Participant. Persons who are not
Participants may beneficially own securities held by or on behalf of DTC only
through the Participants or the Indirect Participants. The ownership interest
and transfer of ownership interest of each actual purchaser of each security
held by or on behalf of DTC are recorded on the records of the Participants and
the Indirect Participants.
DTC has also advised EOG that, pursuant to procedures established by it:
- upon deposit of the Global Security, DTC will credit the accounts of
Participants with the applicable portion of the shares of Series B
preferred stock represented by the Global Security; and
- ownership of such shares represented by the Global Security will be shown
on, and the transfer of ownership thereof will be effected only through,
records maintained by DTC, with respect to the Participants, or by the
Participants and the Indirect Participants, with respect to the other
owners of beneficial interests in the Global Security.
DTC has no knowledge of the actual beneficial owners of the Series B
preferred stock. Beneficial owners will not receive written confirmation from
DTC of their exchange, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Participants through which the beneficial
owners acquired the Series B preferred stock. All interests in a Global Security
are subject to the procedures and requirements of DTC. The laws of some states
require that certain persons take physical delivery in certificated form of
securities that they own. Consequently, the ability to transfer beneficial
interests in the Global Security to such persons will be impaired to that
extent. Because DTC can act only on behalf of Participants, which in turn act on
behalf of Indirect Participants and certain banks, the ability of a person
having beneficial interests in a Global Security to pledge such interests to
persons or entities that do not participate in the DTC system, or otherwise take
actions in respect of such interests, may be adversely affected by the lack of a
physical certificate evidencing such interests.
Payments in respect of the Series B preferred stock registered in the name
of DTC or its nominee will be payable by EOG through the paying agent to DTC in
its capacity as the registered holder. EOG will treat the persons in whose names
the Series B preferred stock, including the Global Security, are registered as
the owners of the Series B preferred stock for the purpose of receiving such
payments and for any and all other purposes whatsoever. Consequently, neither
EOG nor any agent thereof nor the initial purchasers has or will have any
responsibility or liability for (1) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to, or payments made on
account of, beneficial ownership interests in the Global Security, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership interests
in the Global Security or (2) any other matter relating to the actions and
practices of DTC or any of its
25
<PAGE> 30
Participants or Indirect Participants. DTC has advised EOG that its current
practice, upon receipt of any payment in respect of securities such as the
Global Security, is to credit the accounts of the relevant Participants with
payment on the payment due dates in amounts proportionate to their respective
beneficial interests in the Global Security as shown on DTC's records. Payments
by the Participants and the Indirect Participants to the beneficial owners of
the Series A preferred stock will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the sole responsibility of
the Participants or the Indirect Participants, subject to any statutory or
regulatory requirements as may be in effect from time to time. Neither EOG nor
the initial purchasers will be liable for any delay by DTC or any of the
Participants in identifying the beneficial owners of the Series A preferred
stock, and each may conclusively rely on, and will be protected in relying on,
instructions from DTC or its nominee for all purposes.
DTC has advised EOG that it will take any action permitted to be taken by a
holder of the Series B preferred stock only at the direction of one or more
Participants to whose account with DTC interests in the Global Security are
credited. However, DTC reserves the right to exchange the Global Security for
certificates representing Series B preferred stock and to distribute that Series
A preferred stock to its Participants.
The information in this section concerning DTC and its book-entry systems
has been obtained from sources that EOG believes to be reliable, but EOG takes
no responsibility for the accuracy of this information.
The Global Security is exchangeable for certificates representing the
Series B preferred stock registered in the name of any person other than DTC or
its nominee if (1) DTC (a) notifies EOG that it is unwilling or unable to
continue as depositary for the Global Security and EOG then fails to appoint a
successor depositary or (b) ceases to be a clearing agency under the Exchange
Act, or (2) EOG in its sole discretion elects to cause the issuance of
certificates representing the Series B preferred stock. In addition, beneficial
interests in the Global Security may be exchanged for certificated Series A
preferred stock upon request, but only upon at least 20 days' prior written
notice given to EOG by or on behalf of DTC in accordance with customary
procedures. In all cases, certificated Series B preferred stock delivered in
exchange for any Global Security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of DTC, in accordance with its customary procedures.
26
<PAGE> 31
EXCHANGE OFFER
In connection with the sale of the Series A preferred stock, we entered
into a registration rights agreement with the initial purchasers of the Series A
preferred stock, pursuant to which we agreed to use our reasonable best efforts
to file with the Securities and Exchange Commission (the "Commission") a
registration statement with respect to the exchange of the Series A preferred
stock for a new series of preferred stock. Under the terms of the registration
rights agreement, this new series of preferred stock must have terms identical
in all material respects to the terms of the Series A preferred stock, except
that it must be registered under the Securities Act of 1933 and will be issued
free of any covenant regarding registration.
Based on existing interpretations of the Securities Act by the staff of the
Commission (the "Staff") set forth in several no-action letters to third
parties, and subject to the immediately following sentence, EOG believes that
the Series B Preferred Stock issued pursuant to this exchange offer may be
offered for resale, resold and otherwise transferred by the holders thereof,
other than holders who are broker-dealers, without further compliance with the
registration and prospectus delivery provisions of the Securities Act. Any
purchaser of shares who is an affiliate of EOG or who intends to participate in
the exchange offer for the purpose of distributing the exchange shares, or any
broker-dealer who purchased the shares from EOG to resell pursuant to Rule 144A
or any other available exemption under the Securities Act:
- will not be able to rely on the interpretation of the Staff set forth in
the above-mentioned no-action letters;
- will not be entitled to tender its shares in the exchange offer; and
- must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or transfer of the Series
B Preferred Stock unless such sale or transfer is made pursuant to any
exemption from such requirements.
Each holder of the shares who wishes to exchange Series A Preferred Stock
for Series B Preferred Stock in the exchange offer will be required to represent
that:
- it is not an affiliate of EOG;
- at the time of the exchange offer, it is not engaged in and does not
intend to engage in, and has no arrangement or understanding with any
person to participate, in a distribution, within the meaning of the
Securities Act, of the Series B Preferred Stock; and
- it is acquiring the Series B Preferred Stock in its ordinary course of
its business.
In addition, in connection with any resales of exchange shares, any
broker-dealer, or a "Participating Broker-Dealer", who acquired the shares for
its own account as a result of market-making or other trading activities must
deliver a prospectus meeting the requirements of the Securities Act. The
Commission has taken the position that Participating Broker-Dealers may fulfill
their prospectus delivery requirements with respect to the Series B Preferred
Stock, other than resale of an unsold allotment from the original sale of the
shares of Series A preferred stock, with this prospectus. Under the registration
rights agreement, EOG is required to allow Participating Broker-Dealers and
other persons, if any, subject to similar prospectus delivery requirements to
use this prospectus in connection with the resale of the Series B preferred
stock.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions of this exchange offer, EOG
will, unless such Series A preferred stock is withdrawn in accordance with the
withdrawal rights specified in "Withdrawal of Tenders" below, accept any and all
Series A preferred stock validly tendered prior to 5:00 p.m., New York City
time, on the Expiration Date. The date of acceptance for exchange of the Series
A preferred stock, and consummation of this exchange offer, is immediately
following the Expiration Date (unless extended as described herein) (the
"Exchange Date"). EOG will issue, on or promptly after
27
<PAGE> 32
the Exchange Date, one share of Series B preferred stock in exchange for each
share of Series A preferred stock tendered and accepted in connection with this
exchange offer. The Series B preferred stock issued in connection with this
exchange offer will be delivered on the earliest practicable date following the
Exchange Date. Holders of Series A preferred stock may tender some or all of
their Series A preferred stock in connection with this exchange offer.
The terms of the Series B preferred stock are identical in all material
respects to the terms of the Series A preferred stock, except that the Series B
preferred stock has been registered under the Securities Act and is issued free
from any covenant regarding registration, including the payment of additional
interest upon a failure to file or have declared effective an exchange offer
registration statement or to consummate this exchange offer by certain dates.
The Series B preferred stock will evidence the same obligations as the Series A
preferred stock and will be issued under and be entitled to the benefits under
the Certificate of Designation, Rights and Preferences of Fixed Rate Cumulative
Perpetual Senior Preferred Stock, Series B (the "Series B Certificate of
Designation") which is substantially identical to the Certificate of
Designation, Rights and Preferences of Fixed Rate Cumulative Perpetual Senior
Preferred Stock, Series A (the "Series A Certificate of Designation"). As of the
date of this prospectus, 100,000 shares of the Series A preferred stock are
outstanding.
In connection with the issuance of the Series A preferred stock, we have
arranged for the Series A preferred stock originally purchased by qualified
institutional buyers to be issued and transferable in book-entry form through
the facilities of The Depository Trust Company ("DTC"), acting as depositary.
Except as described under "Book-Entry Issuance," the Series B preferred stock
will be issued in the form of a global certificate registered in the name of DTC
or its nominee and each holder's interest therein will be transferable in
book-entry form through DTC. See "Book-Entry Issuance".
Holders of Series A preferred stock do not have any appraisal or
dissenters' rights in connection with this exchange offer. Series A preferred
stock which is not tendered for exchange or is tendered but not accepted in
connection with this exchange offer will remain outstanding and be entitled to
the benefits of the Certificate of Designations of the Series A preferred stock,
but will not be entitled to any registration rights under the registration
rights agreement.
EOG shall be deemed to have accepted validly tendered Series A preferred
stock when, as and if EOG has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
for the purposes of receiving the Series B preferred stock from us.
If any tendered Series A preferred stock is not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Series A preferred
stock will be returned, without expense, to the tendering holder thereof as
promptly as practicable after the Exchange Date.
Holders who tender Series A preferred stock in connection with this
exchange offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Series A preferred stock in connection with this
exchange offer. EOG will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. See
"-- Fees and Expenses".
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
July 20, 2000, unless extended by EOG in its sole discretion (but in no event to
a date later than August 3, 2000), in which case the term "Expiration Date"
shall mean the latest date and time to which this exchange offer is extended.
We reserve the right, in our sole discretion
- to delay accepting any Series A preferred stock, to extend this exchange
offer or to terminate this exchange offer and to refuse to accept Series
A preferred stock not previously accepted, if any of
28
<PAGE> 33
the conditions set forth below under "Conditions to the exchange offer"
shall not have been satisfied and shall not have been waived by the
Company (if permitted to be waived by EOG) and
- to amend the terms of this exchange offer in any manner.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof to the
registered holders. If this exchange offer is amended in a manner determined by
us to constitute a material change, we will promptly disclose such amendment by
means of a prospectus supplement that will be distributed to the registered
holders of the Series A preferred stock, and we will extend this exchange offer
for a period of five to ten business days, depending on the significance of the
amendment and the manner of disclosure to the registered holders, if this
exchange offer would otherwise expire during such five to ten business day
period. In no event, however, shall the Expiration Date be later than August 3,
2000.
If we determine to make a public announcement of any delay, extension,
amendment or termination of this exchange offer, we shall have no obligation to
publish, advertise or otherwise communicate any such public announcement, other
than by making a timely release to an appropriate news agency.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other term of this exchange offer, we will not be
required to accept for exchange, or to exchange, any Series A preferred stock
for any Series B preferred stock, and may terminate or amend this exchange offer
before the acceptance of any Series A preferred stock for exchange, if prior to
the Expiration Date:
- any action or proceeding is instituted or threatened in any court or by
or before any governmental agency with respect to this exchange offer
which, in our reasonable good faith judgment, would be expected to impair
our ability to proceed with this exchange offer, or
- any law, statute, rule or regulation is adopted or enacted, or any
existing law, statute, rule or regulation is interpreted by the
Commission or its Staff, which, in our reasonable good faith judgment,
would be expected to impair our ability to proceed with this exchange
offer.
If we determine in our reasonable good faith judgment that any of the
foregoing conditions exist, we may
- refuse to accept any Series A preferred stock and return all tendered
Series A preferred stock to the tendering holders,
- extend this exchange offer and retain all Series A preferred stock
tendered prior to the expiration of this exchange offer, subject,
however, to the rights of holders who tendered such Series A preferred
stock to withdraw their tendered Series A preferred stock which have not
been withdrawn.
If such waiver constitutes a material change to this exchange offer, we will
promptly disclose such waiver by means of a prospectus supplement that will be
distributed to the registered holders, and we will extend this exchange offer
for a period of five to ten business days, depending upon the significance of
the waiver and the manner of disclosure to the registered holders, if this
exchange offer would otherwise expire during such five to ten business days. In
no event, however, shall the expiration date be a date later than August 3,
2000.
PROCEDURES FOR TENDERING
To tender in connection with this exchange offer, a holder must complete,
sign and date the Letter of Transmittal, or a facsimile thereof, have the
signatures thereon guaranteed if required by the Letter of Transmittal and mail
or otherwise deliver such Letter of Transmittal or such facsimile, together with
the Series A preferred stock (unless such tender is being effected pursuant to
the procedure for book-entry
29
<PAGE> 34
transfer described below) and any other required documents, to the Exchange
Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
Any financial institution that is a participant in DTC's Book-Entry
Transfer Facility system may make book-entry delivery of the Series A preferred
stock by causing DTC to transfer such Series A preferred stock into the Exchange
Agent's account in accordance with DTC's procedure for such transfer. Although
delivery of Series A preferred stock may be effected through book-entry transfer
into the Exchange Agent's account at DTC, the Letter of Transmittal (or
facsimile thereof), with any required signature guarantees and any other
required documents, must in any case, be transmitted to and received or
confirmed by the Exchange Agent at its addresses set forth under the caption
"Exchange Agent," below, prior to 5:00 p.m., New York City time, on the
Expiration Date. DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH ITS PROCEDURES
DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The tender by a holder of Series A preferred stock will constitute an
agreement between such holder and EOG in accordance with the terms and subject
to the conditions set forth herein and in the Letter of Transmittal.
The method of delivery of Series A preferred stock and the Letter of
Transmittal and all other documents to the Exchange Agent is at the election and
risk of the holders. Instead of delivery by mail, it is recommended that holders
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to assure delivery to the Exchange Agent before the Expiration Date.
No Letter of Transmittal of Series A preferred stock should be sent to EOG.
Holders may request their respective brokers, dealers, commercial banks, trust
companies or nominees to effect the tenders for such holders.
Any beneficial owner whose Series A preferred stock is registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender should contact the registered holder promptly and instruct
such registered holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner must,
prior to completing and executing the Letter of Transmittal and delivery of such
owner's Series A preferred stock, either make appropriate arrangements to
register ownership of the Series A preferred stock in such owner's name or
obtain a properly completed bond power from the registered holder. The transfer
of registered ownership may take considerable time.
Signature on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an Eligible Institution (as defined below) unless
the Series A preferred stock tendered pursuant thereto are tendered
- by a registered holder who has not completed the box entitled "Special
Payment Instructions" or "Special Delivery Instructions" on the Letter of
Transmittal, or
- for the account of an Eligible Institution.
In the event that signatures on a Letter of Transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, such guarantee
must be by a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934 (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Series A preferred stock listed therein, such Series A
preferred stock must be endorsed by such registered holder or accompanied by a
properly completed bond power, in each case signed or endorsed in blank by such
registered holder as such registered holder's name appears on such Series A
preferred stock.
If the Letter of Transmittal or any Series A preferred stock or bond powers
are signed or endorsed by trustees, executors, administrators, guardians,
attorney-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
unless waived by
30
<PAGE> 35
EOG, evidence satisfactory to us of their authority to so act must be submitted
with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance and withdrawal of tendered Series A preferred stock will
be determined by us in our sole discretion, which determination will be final
and binding. We reserve the absolute right to reject any and all Series A
preferred stock not properly tendered or any Series A preferred stock whose
acceptance by us would, in the opinion of our counsel, be unlawful. We also
reserve the right to waive any defects, irregularities or conditions of tender
as to any particular Series A preferred stock either before or after the
Expiration Date. Our interpretation of the terms and conditions of this exchange
offer (including the instructions in the Letter of Transmittal) will be final
and binding, on all parties. Unless waived, any defects or irregularities in
connection with tenders of Series A preferred stock must be cured within such
time as EOG shall determine. Although we intend to request the Exchange Agent to
notify holders of defects or irregularities with respect to tenders of Series A
preferred stock, neither EOG, the Exchange Agent nor any other person shall have
any duty or incur any liability for failure to give such notification. Tenders
of Series A preferred stock will not be deemed to have been made until such
defects or irregularities have been cured or waived. Any Series A preferred
stock received by the Exchange Agent that is not properly tendered and as to
which the defects or irregularities have not been cured or waived will be
returned by the Exchange Agent to the tendering holders, unless otherwise
provided in the Letter of Transmittal, as soon as practicable following the
Expiration Date.
In addition, we reserve the right, as set forth above under the caption
"Conditions to this exchange offer," to terminate this exchange offer.
By tendering, each holder represents to EOG that, among other things, the
Series B preferred stock acquired in connection with this exchange offer is
being obtained in the ordinary course of business of the person receiving such
Series B preferred stock, whether or not such person is the holder, that neither
the holder nor any such other person is engaged in, intends to engage in, or has
an arrangement or understanding with any person to participate in the
distribution of such Series B preferred stock and that neither the holder nor
any such other person is an "affiliate" (as defined in Rule 405 under the
Securities Act) of EOG. If the holder is a broker-dealer that will receive
Series B preferred stock for its own account in exchange of Series A preferred
stock, it will acknowledge that it acquired such Series A preferred stock as the
result of market making activities or other trading activities and it will
deliver a prospectus in connection with any resale of such Series B preferred
stock. See "Plan of Distribution".
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Series A preferred stock and whose Series
A preferred stock is not immediately available, or who cannot deliver their
Series A preferred stock, the Letter of Transmittal or any other required
documents to the Exchange Agent, or cannot complete the procedure for book-entry
transfer, prior to the Expiration Date, may effect a tender of their Series A
preferred stock if:
- The tender is made through an Eligible Institution;
- prior to the Expiration Date, the Exchange Agent received from such
Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate number
or numbers of such Series A preferred stock and the principal amount of
Series A preferred stock tendered, stating that the tender is being made
thereby and guaranteeing that, within five business days after the
Expiration Date, the Letter of Transmittal (or facsimile thereof)
together with the certificate or certificates representing the Series A
preferred stock to be tendered in proper form for transfer (or
confirmation of a book-entry transfer into the Exchange Agent's account
at DTC of Series A preferred stock delivered electronically) and any
other documents required by the Letter of Transmittal will be deposited
by the Eligible Institution with the Exchange Agent; and
31
<PAGE> 36
- such properly completed and executed Letter of Transmittal (or facsimile
thereof) as well as the certificate or certificates representing all
tendered Series A preferred stock in proper form for transfer (or
confirmation of a book-entry transfer into the Exchange Agent's account
at DTC of Series A preferred stock delivered electronically) and all
other documents required by the Letter of Transmittal are received by the
Exchange Agent within five business days after the Expiration Date.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Series A preferred stock
may be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date.
To withdraw a tender of Series A preferred stock in connection with this
exchange offer, a written facsimile transmission notice of withdrawal must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. Any such notice of withdrawal
must
- specify the name of the person who deposited the Series A preferred stock
to be withdrawn (the "Depositor"),
- identify the Series A preferred stock to be withdrawn (including the
certificate number or numbers and principal amount of such Series A
preferred stock),
- be signed by the Depositor in the same manner as the original signature
on the Letter of Transmittal by which such Series A preferred stock was
tendered (including any required signature guarantees) or be accompanied
by documents of transfer sufficient to have the trustee register the
transfer of such Series A preferred stock into the name of the person
withdrawing the tender, and
- specify the name in which any such Series A preferred stock is to be
registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by EOG, whose
determination shall be final and binding on all parties. Any Series A preferred
stock so withdrawn will be deemed not to have been validly tendered for purposes
of this exchange offer and no Series B preferred stock will be issued with
respect thereto unless Series A preferred stock so withdrawn is validly
re-tendered. Any Series A preferred stock which has been tendered but which is
not accepted for exchange or which is withdrawn will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of this exchange offer. Properly withdrawn
Series A preferred stock may be retendered by following one of the procedures
described above under the caption "Procedures for Tendering" at any time prior
to the Expiration Date.
EXPIRATION DATE
Bank of New York has been appointed as Exchange Agent in connection with
this exchange offer. Questions and requests for assistance, requests for
additional copies of this prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent, at its offices at 101 Barclay Street, 12W, New
York, New York 10286. The Exchange Agent's telephone number is (212) 815-2302
and facsimile number is (212) 815-3201.
FEES AND EXPENSES
EOG will not make any payment to brokers, dealers or others soliciting
acceptances of this exchange offer. We will pay certain other expenses to be
incurred in connection with this exchange offer, including the fees and expenses
of the Exchange Agent, accounting and certain legal fees.
32
<PAGE> 37
Holders who tender their Series A preferred stock for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, Series
B preferred stock is to be delivered to, or are to be issued in the name of, any
person other than the registered holder of the Series A preferred stock
tendered, or if tendered Series A preferred stock is registered in the name of
any person other than the person signing the Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of Series A
preferred stock in connection with this exchange offer, the amount of any such
transfer taxes (whether imposed on the registered holder or any other persons)
will be payable by the tendering holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with the Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendered holder.
ACCOUNTING TREATMENT
The Series B preferred stock will be recorded at the same carrying value as
the Series A preferred stock as reflected in EOG's accounting records on the
date of the exchange. Accordingly, no gain or loss for accounting purposes will
be recognized by EOG on the consummation of this exchange offer.
CONSEQUENCES OF FAILURES TO PROPERLY TENDER SERIES A PREFERRED STOCK IN THE
EXCHANGE
Issuance of the Series B preferred stock in exchange for the Series A
preferred stock pursuant to this exchange offer will be made only after timely
receipt by the Exchange Agent of such Series A preferred stock, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of the Series A preferred stock desiring to tender
such Series A preferred stock in exchange for Series B preferred stock should
allow sufficient time to ensure timely delivery. We are under no duty to give
notification of defects or irregularities with respect to tenders of Series A
preferred stock for exchange. Series A preferred stock that are not tendered or
that are tendered but not accepted by us, will, following consummation of this
exchange offer, continue to be subject to the existing restrictions upon
transfer thereof under the Securities Act and, upon consummation of this
exchange offer, certain registration rights under the Registration Rights
Agreement will terminate.
In the event this exchange offer is consummated, we will not be required to
register the remaining Series A preferred stock. Remaining Series A preferred
stock will continue to be subject to the following restrictions on transfer:
- the remaining Series A preferred stock may be resold only if registered
pursuant to the Securities Act, if any exemption from registration is
available thereunder, or if neither such registration nor such exemption
is required by law, and
- the remaining Series A preferred stock will bear a legend restricting
transfer in the absence of registration or an exemption therefrom.
We currently do not anticipate that we will register the remaining Series A
preferred stock under the Securities Act. To the extent that Series A preferred
stock is tendered and accepted in connection with this exchange offer, any
trading market for remaining Series A preferred stock could be adversely
affected.
33
<PAGE> 38
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
Our authorized capital stock consists of:
- 10,000,000 shares of preferred stock,
- 100,000 of which have been designated as Fixed Rate Cumulative
Perpetual Senior Preferred Stock, Series A, with a liquidation
preference of $1,000 per share,
- 100,000 shares of which have been designated as Fixed Rate
Cumulative Perpetual Senior Preferred Stock, Series B, with a
liquidation preference of $1,000 per share, which are being
offered in exchange for the Series A preferred stock,
- 500 of which have been designated Flexible Money Market
Cumulative Preferred Stock, Series C, with a liquidation
preference of $100,000 per share, and
- 500 of which have been designated Flexible Money Market
Cumulative Preferred Stock, Series D, with a liquidation
preference of $100,000 per share, which are being offered in
exchange for the Series C preferred stock, and
- 1,500,000 of which have been designated Series E Junior
Participating Preferred Stock, with a liquidation preference of
$100 per share, issuable upon exercise of EOG's preferred share
purchase rights, and
- 320,000,000 shares of common stock, $.01 par value.
At March 1, 2000, there were 117,211,873 shares of our common stock,
100,000 shares of our Series A preferred stock and 500 shares of our Series C
preferred stock outstanding. The following summary description of our capital
stock is qualified in its entirety by reference to our certificate of
incorporation, as amended. A copy of our certificate of incorporation is filed
as an exhibit to the registration statement of which this prospectus is a part.
COMMON STOCK
Our common stock possesses ordinary voting rights for the election of
directors and in respect to other corporate matters, each share being entitled
to one vote. The common stock has no cumulative voting rights, meaning that the
holders of a majority of the shares voting for the election of directors can
elect all the directors if they choose to do so. The common stock carries no
preemptive rights and is not convertible, redeemable, assessable or entitled to
the benefits of any sinking fund. The holders of common stock are entitled to
dividends in such amounts and at such times as may be declared by the board of
directors out of funds legally available therefor.
Upon liquidation or dissolution of EOG, the holders of common stock are
entitled to share ratably in all net assets available for distribution to
stockholders after payment of any corporate debts and liquidation and any
liquidation preference established for the preferred stock. All outstanding
shares of common stock are duly authorized, validly issued, fully paid and
non-assessable.
The transfer agent and registrar of the common stock is First Chicago Trust
Company of New York, Jersey City, New Jersey.
PREFERRED STOCK
Under EOG's Restated Certificate of Incorporation, the Board of Directors
may provide for the issuance of up to 10,000,000 shares of preferred stock in
one or more series. The Board of Directors already has designated 100,000 shares
of Fixed Rate Cumulative Perpetual Senior Preferred Stock, Series A, with a
liquidation preference of $1,000 per share, 100,000 shares of Fixed Rate
Cumulative Perpetual Senior Preferred Stock, Series B, with a liquidation
preference of $1,000 per share (to be
34
<PAGE> 39
exchanged for the Series A preferred stock pursuant to this exchange offer), 500
shares of Flexible Money Market Cumulative Preferred Stock, Series C, with a
liquidation preference of $100,000 per share, 500 shares of Flexible Market
Cumulative Preferred Stock, Series D, with a liquidation preference of $100,000
per share (to be exchanged for the Series C preferred stock pursuant to a
contemporaneous exchange offer) and 1,500,000 shares of Series E Junior
Participating Preferred Stock, with a liquidation preference of $100 per share
issuable upon exercise of EOG's preferred share purchase rights. The rights,
preferences, privileges and restrictions, including liquidation preferences, of
the preferred stock of each additional series will be fixed or designated by the
Board of Directors pursuant to a certificate of designation without any further
vote or action by EOG's stockholders. The issuance of preferred stock could have
the effect of delaying, deferring or preventing a change in control of the
Company. Upon issuance against full payment of the purchase price therefor,
shares of preferred stock offered hereby will be fully paid and nonassessable.
RIGHTS PLAN
On February 14, 2000, EOG's Board of Directors declared a dividend of one
preferred share purchase right (a "Right") for each outstanding share of common
stock, par value $.01 per share. The dividend was paid on February 24, 2000 to
the stockholders of record on that date. The description and terms of the Rights
are set forth in a Rights Agreement, dated February 14, 2000, between First
Chicago Trust Company of New York, as Rights Agent (the "Rights Agent"), and EOG
(the "Rights Agreement").
Our Board has adopted this Rights Agreement to protect stockholders from
coercive or otherwise unfair takeover tactics. In general terms, it works by
imposing a significant penalty upon any person or group which acquires 15% or
more of our outstanding common stock without the approval of our Board. The
Rights Agreement should not interfere with any merger or other business
combination approved by our Board.
For those interested in the specific terms of the Rights Agreement, we
provide the following summary description. Please note, however, that this
description is only a summary, and is not complete, and should be read together
with the entire Rights Agreement, which has been filed with the Securities and
Exchange Commission as an exhibit to this Registration Statement and is
incorporated herein by reference.
The Rights. Our Board authorized the issuance of a Right with respect to
each issued and outstanding share of common stock on February 24, 2000. The
Rights will initially trade with, and will be inseparable from, the common
stock. The Rights are evidenced only by certificates that represent shares of
common stock. New Rights will accompany any new shares of common stock we issue
after February 24, 2000 until the Distribution Date described below.
Exercise Price. Each Right will allow its holder to purchase from us one
one-hundredth of a share of Series E Junior Participating Preferred Stock
("Preferred Share") for $90, once the Rights become exercisable. This portion of
a Preferred Share will give the stockholder approximately the same dividend,
voting, and liquidation rights as would one share of common stock. Prior to
exercise, the Right does not give its holder any dividend, voting, or
liquidation rights.
Exercisability. The Rights will not be exercisable until:
- 10 days after the public announcement that a person or group has
become an "Acquiring Person" by obtaining beneficial ownership of
15% or more of our outstanding common stock, or, if earlier,
- 10 business days (or a later date determined by our Board before any
person or group becomes an Acquiring Person) after a person or group
begins a tender or exchange offer which, if consummated, would
result in that person or group becoming an Acquiring Person.
We refer to the date when the Rights become exercisable as the
"Distribution Date." Until that date, the common stock certificates will also
evidence the Rights, and any transfer of shares of common stock will constitute
a transfer of Rights. After that date, the Rights will separate from the common
stock and
35
<PAGE> 40
be evidenced by book-entry credits or by Rights certificates that we will mail
to all eligible holders of common stock. Any Rights held by an Acquiring Person
are void and may not be exercised.
Our Board may reduce the threshold at which a person or group becomes an
Acquiring Person from 15% to not less than 10% of the outstanding common stock.
Consequences of a Person or Group Becoming an Acquiring Person.
- Flip In. If a person or group becomes an Acquiring Person, all
holders of Rights except the Acquiring Person may, for $90, purchase
shares of our common stock with a market value of $180, based on the
market price of the common stock prior to such acquisition.
- Flip Over. If we are later acquired in a merger or similar
transaction after the Distribution Date, all holders of Rights
except the Acquiring Person may, for $90, purchase shares of the
acquiring corporation with a market value of $180 based on the
market price of the acquiring corporation's stock, prior to such
merger.
Preferred Share Provisions.
Each one one-hundredth of a Preferred Share, if issued:
- will not be redeemable.
- will entitle holders to quarterly dividend payments of $.01 per
share, or an amount equal to the dividend made on one share of
common stock, whichever is greater.
- will entitle holders upon liquidation either to receive $1 per share
or an amount equal to the payment made on one share of common stock,
whichever is greater.
- will have the same voting power as one share of common stock.
- if shares of our common stock are exchanged via merger,
consolidation, or a similar transaction, will entitle holders to a
per share payment equal to the payment made on one share of common
stock.
The value of one one-hundredth interest in a Preferred Share should
approximate the value of one share of common stock.
Expiration. The Rights will expire on February 24, 2010.
Redemption. Our Board may redeem the Rights for $.01 per Right at any time
before any person or group becomes an Acquiring Person. If our Board redeems any
Rights, it must redeem all of the Rights. Once the Rights are redeemed, the only
right of the holders of Rights will be to receive the redemption price of $.01
per Right. The redemption price will be adjusted if we have a stock split or
stock dividends of our common stock.
Exchange. After a person or group becomes an Acquiring Person, but before
an Acquiring Person owns 50% or more of our outstanding common stock, our Board
may extinguish the Rights by exchanging one share of common stock or an
equivalent security for each Right, other than Rights held by the Acquiring
Person.
Anti-Dilution Provisions. Our Board may adjust the purchase price of the
Preferred Shares, the number of Preferred Shares issuable and the number of
outstanding Rights to prevent dilution that may occur from a stock dividend, a
stock split, a reclassification of the Preferred Shares or common stock. No
adjustments to the Exercise Price of less than 1% will be made.
Amendments. The terms of the Rights Agreement may be amended by our Board
without the consent of the holders of the Rights. However, our Board may not
amend the Rights Agreement to lower the threshold at which a person or group
becomes an Acquiring Person to below 10% of our outstanding common stock. In
addition, the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that such person
or group already owns. After a
36
<PAGE> 41
person or group becomes an Acquiring Person, our Board may not amend the Rights
Agreement in a way that adversely affects holders of the Rights.
LIMITATION ON DIRECTORS' LIABILITY
Delaware corporation law authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. The duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all material information
reasonably available to them. Absent the limitations authorized by such laws,
directors are accountable to corporations and their stockholders for monetary
damages for conduct constituting gross negligence in the exercise of their duty
of care. The Delaware laws enable corporations to limit available relief to
equitable remedies such as injunction or rescission. The certificate of
incorporation limits the liability of directors of EOG to EOG or its
stockholders, in their capacity as directors but not in their capacity as
officers, to the fullest extent permitted by the Delaware law. Specifically,
directors of EOG will not be personally liable for monetary damages for breach
of a director's fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to EOG or its
stockholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
- for any transaction from which the director derived an improper personal
benefit.
This provision in the certificate of incorporation may have the effect of
reducing the likelihood of derivative litigation against directors, and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefited EOG and its stockholders.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Series B preferred stock for its own
account pursuant to this exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Series B preferred stock. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Series B preferred stock
received in exchange for Series A preferred stock where such Series A preferred
stock was acquired as a result of market-making activities or other trading
activities. We have agreed for a period of 180 days after the Expiration Date,
to make available a prospectus meeting the requirements of the Preferred Stock
Act to any broker-dealer for use in connection with any such resale. In
addition, until August 15, 2000, all dealers effecting transactions in the
Series B preferred stock may be required to deliver a prospectus.
EOG will not receive any proceeds from any sale of Series B preferred stock
by broker-dealers. Series B preferred stock received by broker-dealers for their
own account pursuant to this exchange offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Series B preferred stock or a combination
of such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Series B preferred stock. Any
broker-dealer that resells Series B preferred stock that were received by it for
its own account pursuant to this exchange offer and any broker or dealer that
participates in a distribution of such Series B preferred stock may be deemed to
be an "underwriter" within the meaning of the Preferred Stock Act and any profit
on any such resale of Series B preferred stock and any commissions or
concessions received by any such persons may be deemed
37
<PAGE> 42
to be underwriting compensation under the Preferred Stock Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Preferred Stock Act.
LEGAL MATTERS
The validity of the shares to be issued in the share exchange will be
passed upon for EOG by Fulbright & Jaworski L.L.P., Houston, Texas, counsel for
EOG.
EXPERTS
The consolidated financial statements and schedule included in EOG
Resources, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1999, incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus forms a part, have been audited
by Arthur Andersen LLP, independent public accountants, as stated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said report.
The letter report of DeGolyer and MacNaughton, independent petroleum
consultants, included as an exhibit to EOG's Annual Report on Form 10-K for the
year ended December 31, 1999, and the estimates from the reports of that firm
appearing in such Annual Report, are incorporated by reference herein.
38
<PAGE> 43
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation, as amended, of the Company (the
"Corporation" therein) contains the following provisions relating to
indemnification of directors and officers, namely:
"Eighth: A.1. A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
2. The foregoing provisions of this Article shall not eliminate or limit
the liability of a director for any act or omission occurring prior to the
effective date of this Restated Certificate of Incorporation. Any repeal or
amendment of this Article by the stockholders of the Corporation shall be
prospective only and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal
or amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions of
this Article, a director shall not be liable to the fullest extent permitted by
any amendment to the Delaware General Corporation Law enacted that further
limits the liability of a director.
B.1. Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer, of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
paragraph 2. hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred in
this Section shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of the proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
II-1
<PAGE> 44
2. If a claim under paragraph B.1. of this Article is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
3. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
4. The Corporation may maintain insurance at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation law.
5. If this article or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify and hold harmless each director, officer, employee and agent of the
Corporation, and may nevertheless indemnify and hold harmless each employee and
agent of the Corporation, as to costs, charges and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the full extent permitted by
applicable law.
6. For purposes of this Article, reference to the"Corporation" shall
include, in addition to the Corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger prior to
(or, in the case of an entity specifically designated in a resolution of the
Board of Directors, after) the adoption hereof and which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
The Company has purchased liability insurance policies covering the
directors and officers of the Company to provide protection where the Company
cannot legally indemnify a director or officer and where a claim arises under
the Employee Retirement Income Security Act of 1974 against a director or
officer based on an alleged breach of fiduciary duty or other wrongful act.
II-2
<PAGE> 45
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits not incorporated herein by reference to a prior filing are
designated by an asterisk (*) and are filed herewith; all exhibits not so
designated are incorporated herein by reference as indicated.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1(a) -- Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to EOG's Registration Statement
on Form S-1 (Registration No. 33-30678), filed August 24,
1989).
3.1(b) -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit
4.1(b) to EOG's Registration Statement on Form S-8 (No.
33-52201), filed February 8, 1994).
3.1(c) -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit
4.1(c) to EOG's Registration Statement on Form S-8 (No.
33-58103), filed March 15, 1995).
3.1(d) -- Certificate of Amendment of Restated Certificate of
Incorporation, dated June 11, 1996 (incorporated by
reference to Exhibit 3(d) to EOG's Registration Statement
on Form S-3 (No. 333-09919), filed August 9, 1996).
3.1(e) -- Certificate of Amendment of Restated Certificate of
Incorporation, dated May 7, 1997 (incorporated by
reference to Exhibit 3(e) to EOG's Registration Statement
on Form S-3 (No. 333-44785), filed January 23, 1998).
3.1(f) -- Certificate of Ownership and Merger, dated August 26,
1999 (incorporated by reference to Exhibit 3.1(f) to
EOG's Annual Report on Form 10-K for the year ended
December 31, 1999).
3.1(g) -- Certificate of Designations, Preferences and Rights of
Fixed Rate Cumulative Perpetual Senior Preferred Stock,
Series A, dated December 8, 1999 (incorporated by
reference to Exhibit 3.1(g) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1999).
3.1(h) -- Certificate of Designations, Preferences and Rights of
Flexible Money Market Cumulative Preferred Stock, Series
C, dated December 20, 1999 (incorporated by reference to
Exhibit 3.1(h) to EOG's Annual Report on Form 10-K for
the year ended December 31, 1999).
3.1(i) -- Certificate of Designations of Series E Junior
Participating Preferred Stock, dated February 14, 2000
(incorporated by reference to Exhibit 2 to EOG's
Registration Statement on Form 8-A, filed February 18,
2000).
**3.1(j) -- Form of Certificate of Designations, Preferences and
Rights of Fixed Rate Cumulative Perpetual Senior
Preferred Stock, Series B.
3.2 -- By-laws, dated August 23, 1989, as amended December 12,
1990, February 8, 1994, January 19, 1996, February 13,
1997, May 5, 1998, September 7, 1999 and February 14,
2000 (incorporated by reference to Exhibit 3.1 to EOG's
Current Report on Form 8-K, filed February 18, 2000).
4.1 -- Rights Agreement, dated as of February 14, 2000, between
EOG Resources, Inc. and First Chicago Trust Company of
New York (incorporated by reference to Exhibit 1 to EOG's
Registration Statement on Form 8-A, filed February 18,
2000).
4.3(a) -- Amended and Restated 1994 Stock Plan (incorporated by
reference to Exhibit 4.3 to EOG's Registration Statement
on Form S-8 (No. 33-58103), filed March 15, 1995).
</TABLE>
II-3
<PAGE> 46
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.3(b) -- Amendment to Amended and Restated 1994 Stock Plan, dated
effective as of December 12, 1995 (incorporated by
reference to Exhibit 4.3(a) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1995).
4.3(c) -- Amendment to Amended and Restated 1994 Stock Plan, dated
effective as of December 10, 1996 (incorporated by
reference to Exhibit 4.3(a) to EOG's Registration
Statement on Form S-8 (No. 333-20841), filed January 31,
1997).
4.3(d) -- Third Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of December 9, 1997 (incorporated by
reference to Exhibit 4.3(d) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.3(e) -- Fourth Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of May 5, 1998 (incorporated by
reference to Exhibit 4.3(e) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1998).
4.3(f) -- Fifth Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of December 8, 1998 (incorporated by
reference to Exhibit 4.3(f) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1998).
**4.3(g) -- Form of stock certificate representing the Fixed Rate
Cumulative Perpetual Senior Preferred Stock, Series B.
**5.1 -- Opinion of Fulbright & Jaworski L.L.P.
12 -- Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to EOG's Annual
Report on Form 10-K for the year ended December 31,
1999).
**23.1 -- Consent of DeGolyer and MacNaughton.
**23.2 -- Consent of Arthur Andersen LLP
**23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
**24 -- Powers of Attorney.
*99.1 -- Letter of Transmittal.
*99.2 -- Purchase Agreement, dated December 7, 1999, by and among
the Company and Lehman Brothers Inc., Banc of America
Securities LLC and Goldman, Sachs & Co.
*99.3 -- Registration Rights Agreement, dated as of December 10,
1999, among the Company and Lehman Brothers, Inc., Banc
of America Securities LLC and Goldman, Sachs & Co.
</TABLE>
---------------
* Filed herewith.
** Previously filed.
(b) Financial Statement Schedules.
All schedules for which provision is made in applicable accounting
regulations of the SEC have been omitted as the schedules are either not
required under the related instructions, are not applicable or the information
required thereby is set forth in the Company's Consolidated Financial Statements
or the Notes thereto.
II-4
<PAGE> 47
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-5
<PAGE> 48
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on June 7, 2000.
EOG RESOURCES, INC.
By: /s/ DAVID R. LOONEY
----------------------------------
David R. Looney
Vice President, Finance
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed as of the 7th day of June, 2000 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ MARK G. PAPA Chairman of the Board, Chief Executive
----------------------------------------------------- Officer (Principal Executive Officer),
Mark G. Papa Director
/s/ TIMOTHY K. DRIGGERS Vice President and Controller (Principal
----------------------------------------------------- Accounting Officer)
Timothy K. Driggers
/s/ DAVID R. LOONEY Vice President, Finance (Principal
----------------------------------------------------- Financial Officer)
David R. Looney
* Director
-----------------------------------------------------
Fred C. Ackman
* Director
-----------------------------------------------------
Edward Randall, III
* Director
-----------------------------------------------------
Edmund P. Segner, III
* Director
-----------------------------------------------------
Frank G. Wisner
*By /s/ BARRY HUNSAKER, JR.
-------------------------------------------------
Barry Hunsaker, Jr.
(Attorney-in-fact for persons named)
</TABLE>
II-6
<PAGE> 49
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1(a) -- Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to EOG's Registration Statement
on Form S-1 (Registration No. 33-30678), filed August 24,
1989).
3.1(b) -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit
4.1(b) to EOG's Registration Statement on Form S-8 (No.
33-52201), filed February 8, 1994).
3.1(c) -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit
4.1(c) to EOG's Registration Statement on Form S-8 (No.
33-58103), filed March 15, 1995).
3.1(d) -- Certificate of Amendment of Restated Certificate of
Incorporation, dated June 11, 1996 (incorporated by
reference to Exhibit 3(d) to EOG's Registration Statement
on Form S-3 (No. 333-09919), filed August 9, 1996).
3.1(e) -- Certificate of Amendment of Restated Certificate of
Incorporation, dated May 7, 1997 (incorporated by
reference to Exhibit 3(e) to EOG's Registration Statement
on Form S-3 (No. 333-44785), filed January 23, 1998).
3.1(f) -- Certificate of Ownership and Merger, dated August 26,
1999 (incorporated by reference to Exhibit 3.1(f) to
EOG's Annual Report on Form 10-K for the year ended
December 31, 1999).
3.1(g) -- Certificate of Designations, Preferences and Rights of
Fixed Rate Cumulative Perpetual Senior Preferred Stock,
Series A, dated December 8, 1999 (incorporated by
reference to Exhibit 3.1(g) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1999).
3.1(h) -- Certificate of Designations, Preferences and Rights of
Flexible Money Market Cumulative Preferred Stock, Series
C, dated December 20, 1999 (incorporated by reference to
Exhibit 3.1(h) to EOG's Annual Report on Form 10-K for
the year ended December 31, 1999).
3.1(i) -- Certificate of Designations of Series E Junior
Participating Preferred Stock, dated February 14, 2000
(incorporated by reference to Exhibit 2 to EOG's
Registration Statement on Form 8-A, filed February 18,
2000).
**3.1(j) -- Form of Certificate of Designations, Preferences and
Rights of Fixed Rate Cumulative Perpetual Senior
Preferred Stock, Series B.
3.2 -- By-laws, dated August 23, 1989, as amended December 12,
1990, February 8, 1994, January 19, 1996, February 13,
1997, May 5, 1998, September 7, 1999 and February 14,
2000 (incorporated by reference to Exhibit 3.1 to EOG's
Current Report on Form 8-K, filed February 18, 2000).
4.1 -- Rights Agreement, dated as of February 14, 2000, between
EOG Resources, Inc. and First Chicago Trust Company of
New York (incorporated by reference to Exhibit 1 to EOG's
Registration Statement on Form 8-A, filed February 18,
2000).
4.3(a) -- Amended and Restated 1994 Stock Plan (incorporated by
reference to Exhibit 4.3 to EOG's Registration Statement
on Form S-8 (No. 33-58103), filed March 15, 1995).
4.3(b) -- Amendment to Amended and Restated 1994 Stock Plan, dated
effective as of December 12, 1995 (incorporated by
reference to Exhibit 4.3(a) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1995).
</TABLE>
<PAGE> 50
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.3(c) -- Amendment to Amended and Restated 1994 Stock Plan, dated
effective as of December 10, 1996 (incorporated by
reference to Exhibit 4.3(a) to EOG's Registration
Statement on Form S-8 (No. 333-20841), filed January 31,
1997).
4.3(d) -- Third Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of December 9, 1997 (incorporated by
reference to Exhibit 4.3(d) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.3(e) -- Fourth Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of May 5, 1998 (incorporated by
reference to Exhibit 4.3(e) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1998).
4.3(f) -- Fifth Amendment to Amended and Restated 1994 Stock Plan,
dated effective as of December 8, 1998 (incorporated by
reference to Exhibit 4.3(f) to EOG's Annual Report on
Form 10-K for the year ended December 31, 1998).
**4.3(g) -- Form of stock certificate for Series B preferred stock.
**5.1 -- Opinion of Fulbright & Jaworski L.L.P.
12 -- Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to EOG's Annual
Report on Form 10-K for the year ended December 31,
1999).
**23.1 -- Consent of DeGolyer and MacNaughton.
**23.2 -- Consent of Arthur Andersen LLP
**23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
**24 -- Powers of Attorney.
*99.1 -- Letter of Transmittal.
*99.2 -- Purchase Agreement, dated December 7, 1999, by and among
the Company and Lehman Brothers Inc., Banc of America
Securities LLC and Goldman, Sachs & Co.
*99.3 -- Registration Rights Agreement, dated as of December 10,
1999, among the Company and Lehman Brothers, Inc., Banc
of America Securities LLC and Goldman, Sachs & Co.
</TABLE>
---------------
* Filed herewith.
** Previously filed.
