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EXHIBIT 3.1(h)
EOG RESOURCES, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF
FIXED RATE CUMULATIVE PERPETUAL SENIOR PREFERRED STOCK,
Series B
(Liquidation Preference $1,000.00 Per Share)
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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The following resolutions were duly adopted by a duly authorized
committee of the Board of Directors (the "Board of Directors" or "Board") of EOG
Resources, Inc., a Delaware corporation (the "Corporation"), by unanimous
written consent dated as of May 1, 2000 and in accordance with the provisions of
Section 151 of the Delaware General Corporation Law:
RESOLVED, that pursuant to authority conferred upon the Board of
Directors by the provisions of the Restated Certificate of Incorporation, as
amended (the "Certificate"), and the By-Laws, as amended, (the "By- Laws"), of
the Corporation, this committee of the Board of Directors hereby creates one
series of the Preferred Stock, $.01 par value per share, of the Corporation
("Senior Preferred Stock") and fixes the designation, preferences and rights of
the shares of such series as follows:
1. Designation. The designation of the series of Senior Preferred Stock
created by these resolutions shall be Fixed Rate Cumulative Perpetual Senior
Preferred Stock, Series B ("Series B Senior Preferred Stock"). The number of
authorized shares constituting the Series B Senior Preferred Stock is 100,000.
The shares of the Series B Senior Preferred Stock shall have a stated value of
$1,000.00 per share. The shares shall constitute a separate series of preferred
stock of the Corporation, and shall rank on parity with the 100,000 shares of
Fixed Rate Cumulative Perpetual Senior Preferred Stock, Series A, par value
$0.01 per share, liquidation preference $1,000.00 per share (the "Series A
Preferred") and the 500 shares of Flexible Money Market Cumulative Preferred
Stock, Series C, par value $0.01 per share, liquidation preference $100,000.00
per share (the "Series C Preferred"), and prior to or on a parity with other
shares of preferred stock as to dividends and upon the liquidation, dissolution
or winding up of the Corporation, except as described herein.
2. Voting Rights. The Series B Senior Preferred Stock shall not have
any voting powers, either general or special, except as required by applicable
law and as stated herein.
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the shares of Series B Senior Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of Series B Senior
Preferred Stock
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shall vote together as a separate class, shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of any of the
provisions of the Certificate, of the applicable Certificate of Designation,
Preferences and Rights or of any other certificate amendatory of or supplemental
to the Certificate (including any certificate of designation, preferences and
rights or any similar document relating to any series of Senior Preferred Stock
or any series of the Preferred Stock, $.01 par value per share, of the
Corporation ("Junior Preferred Stock")) or of the By-laws of the Corporation
which would adversely affect the preferences, rights, powers or privileges of
the Series B Senior Preferred Stock;
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the then outstanding Series B Senior Preferred Stock and all
other series of Senior Preferred Stock for which dividends are cumulative
("Cumulative Senior Preferred Stock") ranking on a parity with shares of the
Series B Senior Preferred Stock, either as to dividends or upon liquidation, at
the time outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of shares of the
Series B Senior Preferred Stock and such other series of Cumulative Senior
Preferred Stock shall vote together as a single class without regard to series,
shall be necessary for authorizing, effecting, increasing or validating the
creation, authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of the Series B Senior Preferred Stock
as to dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares.
(c) If a default in preference dividends payable on any share or shares
of the Series B Senior Preferred Stock or any other class or series of
Cumulative Senior Preferred Stock ranking on a parity with the Series B Senior
Preferred Stock, either as to dividends or upon liquidation, and upon which like
voting rights have been conferred and are exercisable (excluding any other class
or series of Cumulative Senior Preferred Stock expressly entitled to elect
additional directors to the Board by a vote separate and distinct from the vote
provided for in this paragraph (c),"Voting Cumulative Senior Preferred Stock")
shall exist, the number of directors constituting the Board shall be increased
by two (without duplication of any increase made pursuant to the terms of any
other class or series of Voting Cumulative Senior Preferred Stock), and the
holders of the Series B Senior Preferred Stock and the Voting Cumulative Senior
Preferred Stock shall have the right, voting together as a single class without
regard to class or series (to the exclusion of the holders of Common Stock,
Junior Preferred Stock and of any series of Senior Preferred Stock which is not
Voting Cumulative Senior Preferred Stock), to elect two directors of the
Corporation to fill such newly created directorships. Each director elected by
the holders of shares of Series B Senior Preferred Stock and any class or series
of Voting Cumulative Preferred Stock in an election provided for by this Section
2(c) (herein called a "Preferred Director") shall continue to serve as such
director until all accrued but unpaid dividends have been paid. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of the
holders of record of the then outstanding shares of Series B Senior Preferred
Stock and Voting Cumulative Senior Preferred Stock entitled to have originally
voted for such director's election, voting together as a single class without
regard to class or series,
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at a meeting of the Corporation's stockholders, or of the holders of shares of
Series B Senior Preferred Stock and Voting Cumulative Senior Preferred Stock,
called for that purpose. So long as a default in any preference dividends on the
Series B Senior Preferred Stock or any class or series of Voting Cumulative
Senior Preferred Stock shall exist, (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause (B)) by an
instrument in writing signed by the remaining Preferred Director and filed with
the Corporation and (B) in the case of the removal of any Preferred Director,
the vacancy may be filled by the vote of the holders of the then outstanding
shares of Series B Senior Preferred Stock and Voting Cumulative Senior Preferred
Stock entitled to have originally voted for the removed director's election,
voting together as a single class without regard to class or series, at the same
meeting at which such removal shall be voted. Each director appointed as
aforesaid shall be deemed for all purposes hereto to be a Preferred Director.
Whenever a default in preference dividends shall no longer exist, the
number of directors constituting the Board shall be reduced by two. For purposes
hereof, a "default in preference dividends" on the Series B Series Preferred
Stock or any class or series of Voting Cumulative Senior Preferred Stock shall
be deemed to have occurred whenever dividends upon the Series B Senior Preferred
Stock or such class or series of Voting Cumulative Senior Preferred Stock have
not been paid or declared and set aside for payment for the equivalent of six
consecutive full quarterly dividend periods or more and, having so occurred,
such default shall be deemed to exist thereafter until, but only until, all
dividends on the Series B Senior Preferred Stock or such other class or series
of Voting Cumulative Senior Preferred Stock have been paid or declared and set
apart for payment.
3. Preferences. The Series B Senior Preferred Stock will be fixed rate
cumulative perpetual (i.e., will be redeemable, if at all, solely at the option
of the Corporation) Senior Preferred Stock. The Corporation has also issued
100,000 shares of Series A Preferred, which will be exchangeable for shares of
the Series B Senior Preferred Stock, and 500 shares of Series C Preferred.
4. Dividends.
(a) If declared by the Corporation's Board of Directors, the holders of
shares of the Series B Senior Preferred Stock shall be entitled to receive cash
dividends thereon at a rate of $71.95 per share per annum which equals 7.195% of
the Series A Preferred Stock's liquidation preference payable (if declared)
quarterly out of the funds of the Corporation legally available for the payment
of dividends. Such dividends shall be payable, when, as and if declared by the
Board or a duly authorized committee thereof, on March 15, June 15, September 15
and December 15 of each year (each a "Dividend Payment Date"), commencing March
15, 2000. Each such dividend shall be paid to the holders of record of shares of
Series B Senior Preferred Stock as they appear on the stock register of the
Corporation on the close of business on such record date, which shall be not
less than five nor more than 50 days (whether or not business days) preceding
the Dividend Payment Date, as shall be fixed by the Board or a duly authorized
committee thereof. The rights of holders of the Series B Senior Preferred Stock
shall be cumulative. Accordingly, if the Board fails to declare a dividend on
the Series B Senior Preferred Stock payable on a Dividend Payment Date, then
holders of Series B Senior Preferred Stock shall have the right to receive a
dividend in respect of the
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dividend period ending on such Dividend Payment Date, and the Corporation will
have the obligation to pay dividends accrued for such period, whether or not
dividends on the Series B Senior Preferred Stock are declared payable on any
future Dividend Payment Date. The amount of dividends payable for any period
shorter than a full quarterly dividend period shall be calculated on the basis
of a 360-day year consisting of twelve 30-day months.
(b) 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 Senior Preferred Stock for
dividend payments made on or after the date of enactment of such change shall be
increased by multiplying the amount of the dividend payable determined as
described above (before adjustment) by a factor, which shall be the number
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)]
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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 0.50. 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. Notwithstanding the
foregoing provisions, in the event that, with respect to any such amendment, the
Corporation shall receive either (i) an unqualified opinion of independent
recognized tax counsel based upon the legislation amending or establishing the
DRP or upon a published pronouncement of the Internal Revenue Service (the
"IRS") addressing such legislation or (ii) 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 shares of Series B Senior
Preferred Stock, then any such amendment shall not result in the adjustment
provided for pursuant to the DRD Formula. The Corporation'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 the Corporation, shall be final and not subject to review.
If any such amendment to the Code which 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 shall not be increased; but instead, an
amount equal to the excess, if any, of (x) the product of the dividends
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paid by the Corporation on such Dividend Payment Date and the DRD Formula (where
the DRP used in the DRD Formula would be equal to the greater of the reduced
Dividends Received Percentage and 0.50) over (y) the dividends paid by the
Corporation on such Dividend Payment Date, will be payable (if declared) on the
next succeeding Dividend Payment Date to holders of Series B Senior Preferred
Stock on the record date applicable to such succeeding Dividend Payment Date, in
addition to any other amounts payable on such 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 the Corporation previously paid dividends on
shares of Series B Senior Preferred Stock (each, an "Affected Dividend Payment
Date"), the Corporation will pay (if declared) additional dividends (the
"Retroactive 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 Series B Senior Preferred Stock on the
record date applicable to such succeeding Dividend Payment Date, in an amount
equal to the excess, if any, of (x) the product of the dividends paid by the
Corporation on each Affected Dividend Payment Date and the DRD Formula (where
the DRP used in the DRD Formula would be equal to the greater of the reduced
Dividends Received Percentage and 0.50, applied to each Affected Dividend
Payment Date) over (y) the dividends paid by the Corporation on each Affected
Dividend Payment Date.
Retroactive Dividends will not be paid in respect of the enactment of
any amendment to the Code if such amendment would not result in an adjustment
due to the Corporation having received either an opinion of counsel or tax
ruling referred to in the third preceding paragraph. The Corporation will only
make one payment of Retroactive Dividends.
No adjustments in the dividends payable by the Corporation will be
made, and no Retroactive Dividends will be payable by the Corporation, 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 dividends payable per share of Series B
Senior Preferred Stock shall be adjusted pursuant to the DRD Formula and/or
Retroactive Dividends are to be paid, the Corporation will cause notice of each
such adjustment and, if applicable any Retroactive Dividends, to be sent to each
holder of record of the shares of Series B Senior Preferred Stock at such
holder's address as the same appears on the stock register of the Corporation.
(c) So long as any shares of Series B Senior Preferred Shares are
outstanding, no dividend (other than a dividend in common stock, $.01 par value
per share, of the Corporation ("Common Stock"), Junior Preferred Stock or any
other stock of the Corporation ranking junior to the Series B Senior Preferred
Stock as to dividends and upon liquidation and other than as provided in
subsection (d) of this Section 4) shall be declared or paid or set aside for
payment, nor shall any other distribution be declared or made upon the Common
Stock, Junior Preferred Stock or any other stock of the Corporation ranking
junior to or on a parity with the Series B Senior Preferred Stock as to
dividends or upon liquidation, nor shall any Common Stock, Junior Preferred
Stock or other stock
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of the Corporation ranking junior to or on a parity with the Series B Senior
Preferred Stock as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (nor shall any funds be paid to, or
made available for, a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to the Series B Senior Preferred Stock as to
dividends and upon liquidation) unless, in each case, the full dividends on all
outstanding shares of the Series B Senior Preferred Stock shall 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.
(d) When dividends are not paid or declared and set aside for payment
in full, as aforesaid, upon the shares of Series B Senior Preferred Stock and
any other Senior Preferred Stock ranking on a parity as to dividends with the
Series B Senior Preferred Stock, all dividends declared upon shares of Series B
Senior Preferred Stock and any other class or series of Senior Preferred Stock
ranking on a parity as to dividends with the Series B Senior Preferred Stock
shall be declared pro rata so that the amount of dividends declared per share on
the Series B Senior 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 shares of Series B Senior Preferred Stock and such other Senior Preferred
Stock bear to each other.
5. Redemption.
(a) Except as described in Section 5(f) hereof, the shares of Series B
Senior Preferred Stock shall not be redeemable prior to December 15, 2009. On
and after such initial redemption date, the Corporation, at its option, may
redeem shares of the Series B Senior Preferred Stock, in whole or in part, at
any time or from time to time, at a redemption price of $1,000.00 per share,
plus accrued and unpaid dividends thereon (whether or not earned or declared) to
the redemption date, including any dividends payable due to changes in the
Dividends Received Percentage and Retroactive Dividends to the date fixed for
redemption. In the event that fewer than all the outstanding shares of Series B
Senior Preferred Stock are to be redeemed pursuant to this Section 5(a), the
number of shares to be redeemed shall be determined by the Board and the shares
to be redeemed shall be determined by lot or pro rata as may be determined by
the Board or by any other method as may be determined by the Board in its sole
discretion to be equitable.
(b) Notwithstanding the foregoing, if dividends to the redemption date
have not been declared and paid or set apart for payment on all outstanding
shares of Series B Senior Preferred Stock, no shares of Series B Senior
Preferred Stock shall be redeemed unless all outstanding shares of Series B
Senior Preferred Stock are simultaneously redeemed, and the Corporation shall
not purchase or otherwise acquire any shares of Series B Senior Preferred Stock;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of Series B Senior Preferred Stock pursuant to a tender or
exchange offer made on the same terms to all holders of Series B Senior
Preferred Stock and mailed to the holders of record of the Series B Senior
Preferred Stock at such holders' addresses as the same appear on the stock
register of the Corporation; provided, further, that if some, but less than all,
of the shares of the Series B Senior Preferred Stock are to be
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purchased or otherwise acquired pursuant to such tender or exchange offer and
the number of shares so tendered exceeds the number of shares so to be purchased
or otherwise acquired by the Corporation, the shares of the Series B Senior
Preferred Stock tendered shall be purchased or otherwise acquired by the
Corporation on a pro rata basis (with adjustments to eliminate fractions)
according to the number of such shares tendered by each holder tendering shares
of Series B Senior Preferred Stock.
(c) In the event the Corporation shall redeem shares of Series B Senior
Preferred Stock pursuant to subsection (a) of this Section 5, notice of such
redemption shall be given by first class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed, at such holder's address as the same
appears on the stock register of the Corporation. Each such notice shall state:
(i) the redemption date; (ii) the number of shares of Series B Senior Preferred
Stock to be redeemed and, if fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such holder; (iii)
the redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(d) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
funds for the payment of the redemption price) dividends on the shares of Series
B Senior Preferred Stock so called for redemption under subsection (a) of this
Section 5 shall cease to accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the redemption
price against delivery of such shares) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation at the
applicable redemption price. In case fewer than all the shares represented by
any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(e) If the Corporation gives notice of redemption, then, by 12:00 Noon,
Houston time, on the redemption date, the Corporation shall irrevocably deposit
with a paying agent (which may be an affiliate of the Corporation) (the "Paying
Agent"), which shall be a bank or trust company organized and in good standing
under the laws of the United States, the State of Texas or the State of New York
and having capital, surplus and undivided profits aggregating at least
$10,000,000, funds sufficient to pay the applicable redemption price, including
any accrued and unpaid dividends to the redemption date, and shall give the
Paying Agent irrevocable instructions and authority to pay the redemption price
to the holder or holders of record of the shares of Series B Senior Preferred
Stock upon surrender of certificates for such shares (properly endorsed or
assigned for transfer). If notice of redemption shall have been given, then upon
the date of such deposit, all rights of holders of the shares so called for
redemption shall cease, except the right of the holders of such shares to
receive the redemption price against delivery of such shares, but without
interest, and such shares shall cease to be outstanding. The Corporation shall
be entitled to receive, from time to time, from the Paying
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Agent, the interest, if any, earned on such funds deposited with the Paying
Agent, and the holders of any shares to be redeemed with such funds shall have
no claim to any such interest. Any funds so deposited which are unclaimed at the
end of two years from such redemption date shall upon demand be repaid to the
Corporation, after which the holders of the shares of Series B Senior Preferred
Stock so called for redemption shall be entitled to look only to the Corporation
for payment thereof.
(f) 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 A Senior Preferred Stock payable on any Dividend Payment Date may be
adjusted upwards pursuant to Section 4(b) hereof, the Corporation, at its
option, may redeem all, but not less than all, of the outstanding shares of the
Series B Senior 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, the Corporation sends notice to the holders of the
Series A Senior Preferred Stock of such redemption. Any redemption of the Series
B Senior Preferred Stock pursuant to this Section 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 the holders of the Series B Senior
Preferred Stock. Any such redemption of the Series B Senior Preferred Stock will
be at a redemption price of $1,050 per share, plus all accrued and unpaid
dividends (whether or not declared and including any increase in dividends
payable due to changes in the Dividends Received Percentage).
6. Liquidation Preference.
(a) Upon the dissolution, liquidation or winding up of the Corporation,
voluntary or involuntary, the holders of the then outstanding shares of Series B
Senior Preferred Stock shall be entitled to receive and be paid out of the
assets of the Corporation available for distribution to its stockholders, before
any payment or distribution of assets shall be made on the Common Stock, the
Junior Preferred Stock or any other class of stock of the Corporation ranking
junior to the Series B Senior Preferred Stock upon liquidation, the amount of
$1,000.00 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.
(b) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 6.
(c) After the payment to the holders of the shares of Series B Senior
Preferred Stock of the full preferential amounts provided for in this Section 6,
the holders of the shares of Series B Senior Preferred Stock, as such, shall
have no right or claim to any of the remaining assets of the Corporation.
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(d) In the event the assets of the Corporation available for
distribution to the holders of the shares of Series B Senior Preferred Stock and
any other class or series of shares of Senior Preferred Stock ranking on a
parity with the Series B Senior Preferred Stock as to such distribution upon any
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all preferential amounts to
which such holders are entitled, no such distribution shall be made on account
of the Series B Senior Preferred Stock or any shares of any other class or
series of Senior Preferred Stock ranking on a parity with the shares of Series B
Senior Preferred Stock upon such dissolution, liquidation or winding up, unless
proportionate distributive amounts shall be paid on account of the shares of
Series B Senior Preferred Stock and such shares of Senior Preferred Stock
ratably, in proportion to the full distributable amounts for which holders of
all such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
7. Conversion and Exchange. The holders of shares of the Series B
Senior Preferred Stock shall not have any rights to convert such shares into, or
to exchange such shares for, shares of Common Stock, any other class or classes
of capital stock (or any other security) or any other series of any class or
classes of capital stock (or any other security) of the Corporation.
8. Priority as to Certain Distributions. As a series of Senior
Preferred Stock, the shares of the Series B Senior Preferred Stock shall be
entitled to such rights and priorities, and subject to such limitations, as to
dividends as are set forth in these resolutions and in the Certificate.
9. Sinking Fund. No sinking fund shall be provided for the purchase or
redemption of shares of the Series B Senior Preferred Stock.
10. Ranking. Without limitation to any provision set forth in these
resolutions or in the Restated Certificate, it is hereby confirmed and expressly
declared that the Series B Senior Preferred Stock constitutes a series of Senior
Preferred Stock and, accordingly, ranks senior to all shares of Junior Preferred
Stock as to dividends and distributions of assets upon liquidation, dissolution
or winding up. For purposes hereof, any class or series or stock of the
Corporation shall be deemed to rank:
(a) prior to the Series B Senior Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series B Senior
Preferred Stock;
(b) on a parity with the Series B Senior Preferred Stock as to
dividends or distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates, redemption prices or
liquidation preferences per share thereof are different from those of the Series
B Senior Preferred Stock, if the holders of such class or series of stock and of
the Series B Senior Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in proportion to their respective dividend amounts or
liquidation preferences, without preference or priority to the holders of Series
B Senior Preferred Stock; and
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(c) junior to the Series B Senior Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if such
stock shall be Common Stock or Junior Preferred Stock or if the holders of the
Series B Senior Preferred Stock shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such class or
series.
11. Exclusion of Other Rights. Unless otherwise required by law, shares
of the Series B Senior Preferred Stock shall not have any rights, including
preemptive and subscription rights, or preferences other than those specifically
set forth herein or as provided by applicable law.
12. Miscellaneous. The Board of Directors may interpret the provisions
hereof to resolve any inconsistency or ambiguity which may arise or be revealed
and if such inconsistency or ambiguity reflects an inaccurate provision hereof,
the Board of Directors may, in appropriate circumstances, authorize the filing
of a certificate of correction pursuant to Delaware law.
13. Change in Number of Shares. As provided in the Certificate, but
subject to applicable law, the Board of Directors may increase or decrease the
number of shares of this series of Senior Preferred Stock subsequent to the
issue of shares of this series, but not below the number of shares of Series B
Senior Preferred Stock then outstanding.
FURTHER RESOLVED, that the 100,000 shares of Series B Senior Preferred
Stock authorized for issuance pursuant to the resolutions of this duly
authorized committee of the Board of Directors all constitute Preferred Stock
within the 10,000,000 shares authorized pursuant to the Certificate of the
Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by David R. Looney, its Vice President, this 19th day of July, 2000
EOG RESOURCES, INC.
By: /s/ DAVID R. LOONEY
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David R. Looney, Vice President
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