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EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
Dated as of December 10, 1999
Among
EOG RESOURCES, INC.
and
LEHMAN BROTHERS INC.,
BANC OF AMERICA SECURITIES LLC
and
GOLDMAN, SACHS & CO.,
as Initial Purchasers
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TABLE OF CONTENTS
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PAGE
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1. Definitions..............................................................................................1
2. Securities Subject to This Agreement.....................................................................3
3. Registered Exchange Offer................................................................................3
4. Shelf Registration.......................................................................................5
5. Liquidated Damages.......................................................................................6
6. Registration Procedures..................................................................................7
7. Registration Expenses...................................................................................15
8. Indemnification and Contribution........................................................................16
9. Rule 144A...............................................................................................19
10. Participation in Underwritten Registrations.............................................................19
11. Furnishing of Information...............................................................................19
12. Selection of Underwriters...............................................................................19
13. Legend..................................................................................................20
14. Miscellaneous...........................................................................................20
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 10, 1999 by and among EOG RESOURCES, INC., a
Delaware corporation (the "Company"), and LEHMAN BROTHERS INC., BANC OF AMERICA
SECURITIES LLC and GOLDMAN, SACHS & CO. (collectively, the "Initial
Purchasers").
RECITALS
This Agreement is entered into in connection with the Purchase
Agreement (the "Purchase Agreement"), dated as of December 7, 1999, among the
Company and the Initial Purchasers, which provides for the sale by the Company
to the Initial Purchasers of 100,000 shares of the Company's Fixed Rate
Cumulative Perpetual Senior Preferred Stock, Series A, liquidation preference
$1,000 per share (the "Securities"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligations to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Additional Dividends: As defined in Section 5 hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing
and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the Exchange Securities to be
issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company of the same number of Exchange Securities as the number of
Transfer Restricted Securities that were tendered by Holders thereof
pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Securities pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such
Holders for an aggregate number of Exchange Securities equal to the
aggregate number of Transfer Restricted Securities tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
Exchange Securities: The shares of Fixed Rate Cumulative
Perpetual Senior Preferred Stock, Series B, of the Company to be
issued in the Exchange Offer, which will have terms substantially
identical to the Securities (except the Exchange Securities will not
contain terms with respect to transfer restrictions under the
Securities Act, minimum unit size or the payment of Additional
Dividends as Liquidated Damages).
Holders: As defined in Section 2(b) hereof.
Initial Purchasers: As defined in the preamble hereto.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Participant: As defined in Section 8(a) hereof.
Person: An individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Exchange Securities pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: As defined in the preamble hereto.
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Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Transfer Restricted Securities: Each Security, until the
earliest to occur of (i) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for an Exchange
Security in the Exchange Offer, (ii) following the exchange by a
Broker-Dealer in the Exchange Offer of such Security for an Exchange
Security, the date on which such Exchange Security is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on
which such Security is distributed to the public pursuant to Rule 144
under the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), the Company
shall (i) use its reasonable best efforts to cause to be filed
with the Commission as soon as practicable after the Closing
Date, but in no event later than 150 days after the Closing Date,
an Exchange Offer Registration Statement under the Securities Act
relating to the Exchange Securities and the Exchange Offer, (ii)
use its reasonable best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest
possible time, but in no event later than 180 days after the
Closing Date, (iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause such Exchange
Offer Registration Statement to become effective, (B) if
applicable, file a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection
with the registration
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and qualification of the Exchange Securities to be made under the
Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) after the Exchange
Offer Registration Statement has been declared effective,
immediately commence the Exchange Offer and promptly, but in no
event later than 30 business days after the date on which such
Exchange Offer Registration Statement was declared effective by
the Commission, issue Exchange Securities in exchange for all
Securities tendered prior thereto in the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate
form permitting registration of the Exchange Securities to be
offered in exchange for the Transfer Restricted Securities and to
permit resales of Exchange Securities held by Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in
no event shall such period be less than 30 business days. The
Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other
than the Exchange Securities shall be included in the Exchange
Offer Registration Statement. The Company shall use its
reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in no
event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker- Dealer who holds
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may
exchange such Securities pursuant to the Exchange Offer; however,
such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Securities received
by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall
also contain all other information with respect to such resales
by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of
Distribution" section shall not name any such Broker-Dealer or
disclose the amount of Exchange Securities held by any such
Broker-Dealer except to the extent required by the Commission as
a result of a change in policy announced after the date of this
Agreement.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended
as required by the provisions of
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Section 6(c) below to the extent necessary to ensure that it is available for
resales of Exchange Securities acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading activities,
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which
the Exchange Offer Registration Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to
file an Exchange Offer Registration Statement or to Consummate
the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), (ii) if any
Holder that is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) or an "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) shall notify the Company within 20 business days
of the Consummation of the Exchange Offer (A) that such Holder is
prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such Holder may
not resell the Exchange Securities acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder,
or (C) that such Holder is a Broker-Dealer and holds Securities
acquired directly from the Company or one of its affiliates, or
(iii) if for any reason the Exchange Offer Registration Statement
is not declared effective within 180 days of the Closing Date,
then, in addition to or in lieu of effecting the registration of
the Transfer Restricted Securities pursuant to the Exchange Offer
Registration Statement, the Company shall:
(x) promptly deliver to the Holders written notice thereof;
(y) as promptly as practicable, but in no event later than
the earliest to occur of (1) the 30th day after the date on which
the Company determines that it is not required to file the
Exchange Offer Registration Statement, (2) the 30th day after the
date on which the Company receives notice from a Holder as
contemplated by clause 4(a)(ii) above, or (3) the 30th day after
the date on which the Exchange Offer Registration Statement was
to be declared effective as contemplated by clause 4(a)(iii)
above (such earliest date being the "Shelf Filing Deadline"), use
its reasonable best efforts to cause to be filed a shelf
registration statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration Statement"),
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which Shelf Registration Statement shall provide for resales of
all Transfer Restricted Securities the Holders of which shall
have provided the information required pursuant to Section 4(b)
hereof; and
(z) use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission on or before the 60th day after the Shelf Filing
Deadline.
The Company will, in the event that a Shelf Registration Statement is
filed, notify each Holder when the Shelf Registration Statement has
become effective and take such other actions as are required to permit
unrestricted resales of the Securities. The Company shall use its
reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to
ensure that it is available for resales of Securities by the Holders
of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for the
earlier of the period ending on the second anniversary of the Closing
Date (or such shorter period as may hereafter be provided by Rule
144(k) under the Securities Act, or similar successor rule) or such
time as all of the applicable Securities have been sold thereunder or
otherwise cease to be registrable securities within the meaning of
this Agreement.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder may include any
of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 10 business days
after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. No Holder shall be entitled to
Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its reasonable best efforts to
provide all such reasonably requested information. Each Holder as
to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
5. Liquidated Damages.
If for any reason (a) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (b) any of such Registration
Statements has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in this Agreement (the "Effectiveness
Target Date"), (c) the Exchange Offer has not been Consummated within 30
business days after the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (d) if applicable, the Shelf Registration
Statement required by this Agreement is filed and declared effective and shall
at any
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time prior to the second anniversary (or such shorter period as may hereafter
be provided in Rule 144(k) under the Securities Act, or similar successor rule)
of the initial issuance of the Securities (other than after such time as all
Securities have been disposed of thereunder or otherwise cease to be
registrable securities within the meaning of this Agreement) cease to be
effective or fail to be usable for its intended purpose without being succeeded
within two business days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (a) through (d), a
"Registration Default"), then, as liquidated damages ("Liquidated Damages") to
each Holder, additional dividends (the "Additional Dividends") shall become
payable by the Company on the Securities at a rate of 0.25% of the liquidation
preference thereof, or $2.50 per share, per annum; provided, however, that the
Additional Dividends rate on the Securities may not exceed, in the aggregate,
0.25% of the liquidation preference thereof, or $2.50 per share, per annum;
provided further that following the cure of all Registration Defaults relating
to any particular Transfer Restricted Securities or upon the expiration of two
years (or such shorter period as may hereafter be provided in Rule 144(k) under
the Securities Act, or similar successor rule) commencing on the date of the
initial issuance of the Securities, the accrual of Liquidated Damages with
respect to such Transfer Restricted Securities shall cease to accrue.
Any Additional Dividends will be payable in cash on March 15, June 15,
September 15 and December 15 of each year, together with any dividends
otherwise payable in respect of the Securities.
All obligations of the Company set forth in the this Section 5 that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall comply with all of the
provisions of Section 6(c) below, shall use its reasonable best
efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange
Offer is permitted by applicable law, the Company
hereby agrees to seek a no-action letter or other
favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such
Securities. The Company hereby agrees to pursue the
issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission
policy. The Company hereby agrees, however, to (A)
participate in telephonic conferences with the
Commission, (B) deliver to the Commission
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staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement,
each Holder shall furnish, upon the request of the
Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained
in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) 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 of the Exchange
Securities to be issued in the Exchange Offer and (C)
it is acquiring the Exchange Securities in its ordinary
course of business. In addition, all such Holders shall
otherwise cooperate in the Company's preparations for
the Exchange Offer. Each Holder hereby acknowledges and
agrees that any Broker-Dealer who purchased the
Securities from the Company to resell pursuant to Rule
144A or any other available exemption under the
Securities Act or any Holder who is an affiliate of the
Company or who intends to use the Exchange Offer to
participate in a distribution of the Exchange
Securities to be acquired in the Exchange Offer (1)
could not under Commission policy as in effect on the
date of this Agreement rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in
the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including
any no-action letter obtained pursuant to clause (i)
above), (2) will not be entitled to tender Securities
in the Exchange Offer, and (3) must comply with the
registration and prospectus delivery requirements of
the Securities Act in connection with any sale or
transfer of the Securities unless such sale or transfer
is made pursuant to any exemption from such
requirements.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that
the Company is registering the Exchange Offer in
reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May
13, 1988), Morgan Stanley and Co., Inc. (available June
5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including
a representation that the Company has not entered into
any arrangement or understanding with any Person to
distribute the Exchange Securities to be received in
the Exchange Offer and that, to the best of the
Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the
Exchange Securities in its ordinary course of business
and has no arrangement or
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understanding with any Person to participate in the
distribution of the Exchange Securities received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the
provisions of Section 6(c) below and shall use its reasonable
best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit
the sale, resale or exchange of Transfer Restricted Securities
(including, without limitation, any Registration Statement and
the related Prospectus required to permit resales of Securities
by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and
provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement,
as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its
reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and
the related Prospectus to become usable for their
intended purposes) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth
in Section 3 or 4 hereof, as applicable, or such
shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the
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intended method or methods of distribution by the
sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the
Registration Statement or amendments or supplements to
the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or
that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in
order to make the statements therein not misleading;
and if at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending
the qualification or exemption from qualification of
the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or
supplements to any such Registration Statement or
Prospectus (including all documents incorporated by
reference after the initial filing of such Registration
Statement), which documents will be subject to the
review of such Holders and underwriter(s), if any, for
a period of at least five business days, and the
Company will not file any such Registration Statement
or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which
a selling Holder of Transfer Restricted Securities
covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within
five business days after the receipt thereof; and a
selling Holder or underwriter, if any, shall be deemed
to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
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(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such
document to the selling Holders and to the
underwriter(s), if any, make the Company's
representatives available for discussion of such
document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by
the selling Holders, any underwriter participating in
any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate
documents and properties of the Company and cause the
Company's officers, directors, managers and employees
to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent
to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary,
such information as such selling Holders and
underwriter(s), if any, may reasonably request to have
included therein, including, without limitation,
information relating to the "Plan of Distribution"
section therein with respect to the Transfer Restricted
Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid
therefor and any other terms of the offering of the
Transfer Restricted Securities to be sold in such
offering; and make all required filings of such
Prospectus supplement or post-effective amendment as
soon as practicable after the Company is notified of
the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by
the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the
Holders of a majority of the Securities covered thereby
or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one
copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto,
including all documents incorporated by reference
therein and all exhibits (including exhibits
incorporated therein by reference);
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(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies
of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as
such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment
or supplement thereto by each of the selling Holders
and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations
and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by
this Agreement, all to such extent as may be requested
by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with
any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the
Company shall:
(A) upon request, furnish to each selling
Holder and each underwriter, if any, in such
substance and scope as they may request and as are
customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date
of the effectiveness of the Shelf
Registration Statement, signed by the Chief
Financial Officer of the Company,
confirming, as of the date thereof, such
matters as such parties may reasonably
request;
(2) an opinion, dated the date of
the effectiveness of the Shelf Registration
Statement, of counsel for the Company,
covering such matters as such parties may
reasonably request, and in any event
including a statement to the effect that
such counsel has participated in
conferences with officers and other
representatives of the Company,
representatives of the independent public
accountants for the Company, the Initial
Purchasers' representatives and the Initial
Purchasers' counsel in connection with the
preparation of such Registration Statement
and the related Prospectus and have
considered the matters required to be
stated therein and the statements contained
therein, although such counsel has not
independently verified the accuracy,
completeness or fairness of such
statements; and that such counsel advises
that, on the basis of the foregoing
(relying as to materiality to a large
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<PAGE> 15
extent upon facts provided to such counsel
by officers and other representatives of
the Company and without independent check
or verification), no facts came to such
counsel's attention that caused such
counsel to believe that the applicable
Registration Statement, at the time such
Registration Statement or any
post-effective amendment thereto became
effective, contained an untrue statement of
a material fact or omitted to state a
material fact required to be stated therein
or necessary to make the statements therein
not misleading, or that the Prospectus
contained in such Registration Statement as
of its date, contained an untrue statement
of a material fact or omitted to state a
material fact necessary in order to make
the statements therein, in light of the
circumstances under which they were made,
not misleading. Without limiting the
foregoing, such counsel may state further
that such counsel assumes no responsibility
for, and has not independently verified,
the accuracy, completeness or fairness of
the financial statements and schedules,
natural resource reserve reports and other
financial and reserve data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary "comfort" letter,
dated the date of the effectiveness of the
Shelf Registration Statement, from the
Company's independent accountants, in the
customary form and covering matters of the
type customarily covered in comfort letters
by underwriters in connection with primary
underwritten offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section
8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company pursuant to this clause (xi), if
any.
If at any time the representations and warranties of
the Company contemplated in clause (A)(1) above cease to be
true and correct, the Company shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling
Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
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<PAGE> 16
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of
the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may reasonably request and do
any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the
Company shall not be required to register or qualify as
a foreign corporation where it is not now so qualified
or to take any action that would subject it to the
service of process in suits or to taxation, other than
as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is
not now so subject;
(xiii) shall issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement,
Exchange Securities in the same amount as the
Securities surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such
Exchange Securities to be registered in the name of
such Holder or in the name of the purchaser(s) of such
Offered Preferred Stock, as the case may be; in return,
the Securities held by such Holder shall be surrendered
to the Company for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such
denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the
Registration Statement to be registered with or
approved by such other governmental agencies or
authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause
(xii) above;
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any
document incorporated therein by reference or file any
other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein
not misleading;
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<PAGE> 17
(xvii) provide CUSIP numbers for all Exchange Securities not
later than the effective date of the Registration
Statement and provide certificates for the Exchange
Securities;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due
diligence investigation by any underwriter (including
any "qualified independent underwriter") that is
required to be retained in accordance with the rules
and regulations of the NASD, and use its reasonable
best efforts to cause such Registration Statement to
become effective and approved by such governmental
agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the
Commission, and make generally available to its
security holders, as soon as practicable, a
consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited)
for the 12-month period (A) commencing at the end of
any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter
commencing after the effective date of the Registration
Statement; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the
Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice.
7. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made
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<PAGE> 18
by any Initial Purchaser or Holder with the NASD (and, if applicable, the fees
and expenses of any "qualified independent underwriter" and its counsel that
may be required by the rules and regulations of the NASD)); (ii) all fees and
expenses of filing the Registration Statement and compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the Exchange Securities to be
issued in the Exchange Offer and printing of the Registration Statement and
Prospectuses), messenger and delivery services and telephone; (iv) the cost of
qualifying the Exchange Securities with The Depository Trust Company; (v) all
fees and expenses in connection with listing the Exchange Securities on any
stock exchange(s); (vi) all fees and expenses of any transfer agent and
registrar; (vii) all fees charged by rating agency services for rating the
Exchange Securities; (viii) all fees and disbursements of counsel for the
Company (including the expenses of any legal opinions required by or incident
to such performance); (ix) all fees and disbursements of independent certified
public accountants and special experts of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance); and (x) in the event of an Underwritten Offering, any other fees
and expenses of the underwriter(s) customarily required to be paid or
reimbursed by issuers or sellers of securities.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts, retained by the
Company.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an
Exchange Offer Registration Statement by any participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to
sell Exchange Securities, the Company shall indemnify and hold
harmless each Holder of Transfer Restricted Securities included
within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling Exchange Securities, and
each person, if any, who controls any such person within the
meaning of Section 15 of the Securities Act (each, a "Participant")
from and against any loss, liability, claim, damage or expense,
joint or several, or any action in respect thereof (including, but
not limited to, any loss, liability, claim, damage, expense or
action relating to purchases and sales of Securities) to which such
Participant or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, liability,
claim, damage, expense or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any Prospectus
forming part thereof or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each
Participant promptly upon demand for any legal or other expenses
reasonably incurred by such Participant in connection with
investigating or defending or preparing to defend against any such
loss, liability, claim, damage, expense or action as such expenses
are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss,
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<PAGE> 19
liability, claim, damage, expense or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any such Registration
Statement or any Prospectus forming part thereof or in any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Participant specifically for inclusion therein; and provided
further that as to any preliminary prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the
benefit of any such Participant or any controlling person of such
Participant on account of any loss, liability, claim, damage,
expense or action arising from the sale of the Transfer Restricted
Securities to any person by that Participant if (A) that
Participant failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Securities Act and (B) the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such preliminary Prospectus
was corrected in the Prospectus (not including the material
incorporated by reference into the Prospectus), unless, in each
case, such failure resulted from non-compliance by the Company with
Section 6(c). The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any
Participant or to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signs the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any loss,
liability, claim, damage or expense, joint or several, or any
action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, liability,
claim, damage, expense or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, Registration
Statement or Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or
on behalf of that Participant specifically for inclusion herein,
and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, liability, claim,
damage, expense or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which
any Participant may otherwise have to the Company or any such
director, officer or controlling person.
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<PAGE> 20
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been
materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or action
shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if counsel for the
indemnifying party and counsel designated by the indemnified party
jointly determine that there may be a conflict between the
positions of the indemnifying party and of the indemnified party in
conducting the defense of such claim or action or that there may be
legal defenses available to such indemnified party different from
or in addition to those available to the indemnifying party, then
counsel for the indemnified party shall be entitled to conduct the
defense to the extent reasonably determined by such counsel to be
necessary to protect the interests of the indemnified party or
parties, and in that event the fees and expenses of such counsel
for the indemnified party shall be paid by the Company, and (ii) in
any event, the indemnified party shall be entitled to have counsel
chosen and paid for by such indemnified party participate in, but
not conduct, the defense. Each indemnified party, as a condition of
the indemnity agreements contained in Section 8, shall use its
reasonable best efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party
shall (A) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (B) be liable for any settlement of
any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
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<PAGE> 21
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect
of any loss, liability, claim, damage or expense, or any action in
respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense, or action in
respect thereof, in such proportion as shall be appropriate to
reflect the relative fault of the Company, on the one hand, and the
Participants, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company or the Participants, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Participants agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no
Participant shall be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from an
offering of the Securities exceeds the amount of any damages which
such Participant has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Participants' obligations to
contribute as provided in this Section 8(d) are several and not
joint.
9. Rule 144A.
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
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<PAGE> 22
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
11. Furnishing of Information.
So long as any Transfer Restricted Securities remain outstanding, the
Company covenants to timely file all reports required to be filed by the
Company after the date hereof pursuant to Section 13(a) or 15(d) of the
Exchange Act.
12. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority of the
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company.
13. Legend.
Each certificate representing the Securities shall bear the following
legend:
THE HOLDER OF THIS SECURITY AGREES TO BE BOUND BY THE PROVISIONS OF
THE REGISTRATION RIGHTS AGREEMENT (THE "AGREEMENT"), DATED AS OF
DECEMBER 10, 1999, BY AND AMONG THE COMPANY AND LEHMAN BROTHERS INC.,
BANC OF AMERICA SECURITIES LLC AND GOLDMAN, SACHS & CO. A COPY OF THE
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND IS
AVAILABLE UPON REQUEST.
14. Miscellaneous.
(a) Remedies. The Company agrees that monetary damages
(including the liquidated damages contemplated hereby) would not be
adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agree to waive
the defense in any action for specific performance that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with
respect to their securities that is
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<PAGE> 23
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Except
for the Stock Restriction and Registration Agreement dated as of
August 23, 1989, as amended, the Company is not a party to any
existing agreement granting any registration rights with respect to
its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof, and no holder of
the Company's securities has the right to include such holder's
securities in the Registration Statement..
(c) Adjustments Affecting the Securities . The Company will
not take any action, or permit any change to occur, with respect to
Securities that would materially and adversely affect the ability
of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be
given unless the Company has obtained the written consent of
Holders of a majority of the outstanding Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to
the rights of Holders whose securities are being tendered pursuant
to the Exchange Offer and that does not affect directly or
indirectly the rights of other Holders whose securities are not
being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telecopier, or courier guaranteeing overnight
delivery:
(i) if to a Holder, at the most current address (A)
given by such Holder to the Company in accordance with this
Section 14(e), which address initially is, with respect to
such Holder, the address to which confirmation of the sale of
the Transfer Restricted Securities was first sent by the
Initial Purchasers, on (B) set forth on the records of the
Company; and
(ii) if to the Company:
EOG Resources, Inc.
1200 Smith Street, Suite 300
Houston, Texas 77002-7361
Attention: David Looney
Fax: (713) 651-6980
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<PAGE> 24
with a copy to:
Legal Department
Fax: (713) 651-6987
All such notices and communications shall be deemed to have
been duly given and be effective: if personally delivered, at the time
delivered by hand; if mailed, at the beginning of the fifth business
day after being deposited in the mail, postage prepaid; if telecopied,
when receipt is acknowledged during the recipient's normal business
hours, otherwise at the beginning of the next business day; and if
timely delivered to a courier guaranteeing overnight delivery, at the
beginning of the next business day.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need
for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall
not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one
and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the
Transfer Restricted Securities. This Agreement
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<PAGE> 25
supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities
is required hereunder, Transfer Restricted Securities held by the
Company or its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
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<PAGE> 26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EOG RESOURCES, INC.
By: /s/ DAVID R. LOONEY
----------------------------
Name: David R. Looney
Title: Vice President, Finance
Accepted as of the date thereof:
LEHMAN BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
GOLDMAN, SACHS & CO.
By: LEHMAN BROTHERS INC.
By: /S/ SIGNATURE ILLEGIBLE
---------------------------------
Name:
Title:
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