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EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1999
Between
EOG RESOURCES, INC.
and
▇▇▇▇▇▇ BROTHERS INC.,
as Initial Purchaser
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TABLE OF CONTENTS
PAGE
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...............................................................................20
12. Selection of Underwriters...............................................................................20
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 __, 1999 by and between EOG RESOURCES, INC., a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇ BROTHERS INC. (the "Initial
Purchaser").
RECITALS
This Agreement is entered into in connection with the Purchase
Agreement (the "Purchase Agreement"), dated as of December 14, 1999, between the
Company and the Initial Purchaser, which provides for the sale by the Company to
the Initial Purchaser of 500 shares of the Company's Flexible Money Market
Cumulative Preferred Stock (MMPR), Series A, liquidation preference $100,000 per
share (the "Securities"). In order to induce the Initial Purchaser 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 Purchaser and
its direct and indirect transferees and assigns. The execution and delivery of
this Agreement is a condition to the Initial Purchaser's 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.
(R) Registered trademark of ▇▇▇▇▇▇ Brothers Inc.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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 Flexible Money Market
Cumulative Preferred Stock, Series D, 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 or the
payment of Additional Dividends as Liquidated Damages).
Holders: As defined in Section 2(b) hereof.
Initial Purchaser: 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.
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Securities: As defined in the preamble hereto.
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
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such Exchange Offer Registration Statement pursuant to Rule 430A under
the Securities Act and (C) cause all necessary filings in connection
with the registration 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.
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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 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
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the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf
Registration Statement"), 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
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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 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 $250 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 $250
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
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policy. The Company hereby agrees, however, to (A) participate
in telephonic conferences with the Commission, (B) deliver to
the Commission 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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
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Holder participating in the Exchange Offer is acquiring the
Exchange Securities in its ordinary course of business and has
no arrangement or 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
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Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the 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,
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as applicable, as proposed to be filed, contains a material
misstatement or omission;
(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
aggregate liquidation 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, an auction agreement and a
broker-dealer 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 the 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 Purchaser's
representatives and the Initial Purchaser's
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
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of such statements; and that such counsel
advises that, on the basis of the foregoing
(relying as to materiality to a large 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
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so advise the Initial Purchaser and the underwriter(s), if
any, and each selling Holder promptly and, if requested by
such Persons, shall confirm such advice in writing;
(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
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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;
(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;
(xx) use its reasonable best efforts to cause the
Auction Agent to execute an Auction Agent Agreement
covering the Exchange Securities substantially in the
form of the Auction Agent Agreement described in the
offering memorandum used in connection with offers and
sales of the Securities;
(xxi) use its reasonable best efforts to cause the
Auction Agent to execute a Broker-Dealer Agreement
covering the Exchange Securities substantially in the
form of the Broker-Dealer Agreement described in the
offering memorandum used in connection with offers and
sales of the Securities; and
(xxii) 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
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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 by the Initial
Purchaser or any 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 auction agents, 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 the 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 the 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
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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,
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
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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.
(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
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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.
(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
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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.
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
__, 1999, BY AND BETWEEN THE COMPANY AND ▇▇▇▇▇▇ BROTHERS INC. A COPY OF
THE
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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 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, and
the Registration Rights Agreement dated as of December 10, 1999,
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:
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(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 Purchaser, on (B) set forth on the records of the
Company; and
(ii) if to the Company:
EOG Resources, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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(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 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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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EOG RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance
Accepted as of the date thereof:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President