EXHIBIT 1(c)
ENRON CORP.
% EXCHANGEABLE NOTES DUE, 1998
UNDERWRITING AGREEMENT
(U.S. VERSION)
. . . . . , 1995
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Enron Corp., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to sell to the Underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 10,000,000 Exchangeable
Notes (the "Firm Notes") and, at the election of the Underwriters, up to
1,000,000 additional Exchangeable Notes (the "Optional Notes"), of __%
Exchangeable Notes due _____, 1998 of the Company ("Exchangeable Notes") (the
Firm Notes and the Optional Notes which the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the "Notes"). At maturity
(including as a result of acceleration or otherwise), the principal amount of
each Note will be mandatorily exchangeable by the Company into shares of common
stock of Enron Oil & Gas Company, a Delaware corporation ("EOG"), $.01 par value
("EOG Common Stock"), (or at the Company's option, cash with an equal value) at
the rate specified in the Company Prospectus (as defined below).
The Company and EOG are concurrently entering into an agreement (the "U.S.
Common Stock Underwriting Agreement") providing for the sale by the Company of
21,600,000 shares of EOG Common Stock (24,840,000 shares if the underwriters'
over-allotment option in such offering is exercised in full) through ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. as representatives of the several underwriters
named therein and an agreement (together with the U.S. Common Stock
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Underwriting Agreement, the "Common Stock Underwriting Agreements") providing
for the sale by the Company of 5,400,000 shares of EOG Common Stock, (6,210,000
shares if the underwriters' over-allotment option in such offerings is exercised
in full) through ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and SBC Warburg as representatives
of the several underwriters named therein. The closings under this Agreement are
not conditioned on the closings under the Common Stock Underwriting Agreements.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters and EOG that:
(i) A registration statement on Form S-3 (File No. 33-....) (the
"Initial Company Registration Statement") in respect of the Firm Notes
and Optional Notes has been filed or transmitted for filing with the
Securities and Exchange Commission (the "Commission"); the Initial
Company Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering ("Rule 462(b) Registration Statement"), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing, no other document with
respect to the Initial Company Registration Statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Company Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or, to the
Company's knowledge, threatened by the Commission (any preliminary
prospectus included in the Initial Company Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Company
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, including all exhibits
thereto but excluding the Form T-1 and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a)(i) hereof and deemed by virtue of Rule 430A under the Act to be
part of the registration statement at the time it was declared
effective and (ii) the documents incorporated by reference in the
prospectus contained in the Initial Company Registration Statement at
the time such part of the registration statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Company Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Company Prospectus"; any reference
herein to any Company Preliminary Prospectus or the Company Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the date of such Company Preliminary Prospectus or Company Prospectus,
as the case may be; any reference to any amendment or supplement to any
Company Preliminary Prospectus or the Company Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Company Preliminary Prospectus or Company Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"),
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and incorporated by reference in such Company Preliminary Prospectus or
Company Prospectus, as the case may be; and any reference to any
amendment to the Initial Company Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Company Registration Statement that is incorporated by reference
in the Registration Statement);
(ii) No order preventing or suspending the use of any Company
Preliminary Prospectus has been issued by the Commission, and each
Company Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly
for use therein;
(iii) The documents incorporated by reference in the Company
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents 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; and any further documents
so filed and incorporated by reference in the Company Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(iv) The Company Registration Statement conforms, and the Company
Prospectus and any further amendments or supplements to the Company
Registration Statement or the Company Prospectus will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as of the Company Registration Statement and any amendment thereto and
as of the applicable filing date as to the Company Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
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(v) Neither the Company nor any of its subsidiaries listed on
Schedule II hereto ("Material Subsidiaries") has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Company Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Company Prospectus; and, since
the respective dates as of which information is given in the Company
Registration Statement and the Company Prospectus, there has not been
any change in the capital stock (other than changes in common stock
resulting from employee benefit plan or dividend reinvestment plan
transactions, purchases pursuant to the Company's stock repurchase
program, conversions of outstanding convertible securities and other
changes occurring in the ordinary course of business, as disclosed to
the Underwriters in writing) or combined short-term and long-term debt
(except as incurred in the ordinary course of business, as disclosed to
the Underwriters in writing) of the Company or any change in the
capital stock of any of its Material Subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Company Prospectus;
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Company
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each Material
Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Company Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(vii) The Company has an authorized capitalization as set forth in
the Company Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
capital stock contained in the Company Prospectus; all of the issued
shares of capital stock of each Material Subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than contractual covenants
restricting disposition thereof, none of which relate to the capital
stock of EOG), except for (A) EOG, 80% of which capital stock is, prior
to the sales to be effected pursuant to the Common Stock Underwriting
Agreements, owned by the Company, (B) Citrus Corp., 50% of which
capital stock is indirectly owned by the Company, and (C) Florida Gas
Transmission Company, 100% of which capital stock is
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owned by Citrus Corp.; and the Company has good and valid title to all
of the shares of EOG Common Stock to be delivered upon exchange of the
Notes, and owns such shares free and clear of all liens, encumbrances,
equities or claims;
(viii) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture dated as of November 1, 1985 between the
Company and ▇▇▇▇▇▇ Trust Savings Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of ________,
1995 by and between the Company and the Trustee (the "First
Supplemental Indenture", such Indenture, as so supplemented by the
First Supplemental Indenture, being herein referred to as the
"Indenture"), under which the Notes are to be issued, which is
substantially in the form filed as an exhibit to the Company
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act; the Indenture dated as of
November 1, 1985 has been duly executed and delivered by the Company
and the Trustee, and when the First Supplemental Indenture has been
executed and delivered by the Company and the Trustee, the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Notes and the Indenture will conform to the
descriptions thereof in the Company Prospectus;
(ix) The issue and sale of the Notes by the Company hereunder and
the compliance with all of the provisions of the Notes, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated (including the delivery of the EOG Common Stock
upon exchange of the Notes), will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or the charter or by-laws of
any of its subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the sale of the Notes or the consummation by the
Company of the transactions contemplated by this Agreement (including
the delivery of the EOG Common Stock upon exchange of the Notes),
except the registration under the Act of the Notes, the EOG Common
Stock deliverable upon exchange of the Notes, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Trust Indenture Act or state or foreign securities
or Blue Sky laws in connection with the purchase and distribution of
the Notes by the Underwriters;
(x) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or charter, as the case may be, or
By-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
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agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(xi) The statements set forth in the Company Prospectus under the
caption "Description of the Exchangeable Notes", insofar as they
purport to constitute a summary of the terms of the Exchangeable Notes,
and under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(xii) Other than as set forth or contemplated in the Company
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiii) Neither the Company nor any of its subsidiaries has taken or
will take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in the stabilization
or manipulation of the price of the Notes or the EOG Common Stock;
(xiv) The Company is not and, after giving effect to the offering
and sale of the Notes (and, if consummated, the sale of the shares of
EOG Common Stock pursuant to the Common Stock Underwriting Agreements),
will not be an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(xv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes; and
(xvi) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) EOG represents and warrants to, and agrees with, each of the
Underwriters and the Company that:
(i) A registration statement on Form S-3 (File No. 33-....) (the
"Initial EOG Registration Statement") in respect of the EOG Common
Stock deliverable upon exchange of the Notes has been filed with the
Commission; the Initial EOG Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering ("Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Act, which became
6
effective upon filing, no other document with respect to the Initial
EOG Registration Statement or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial EOG Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, EOG's knowledge, threatened by the
Commission (any preliminary prospectus included in the Initial EOG
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act),
is hereinafter called an "EOG Preliminary Prospectus"; the various
parts of the Initial EOG Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(b)(i) hereof and deemed by virtue of Rule 430A under the Act to be
part of the registration statement at the time it was declared
effective and (ii) the documents incorporated by reference in the
prospectus contained in the Initial EOG Registration Statement at the
time such part of the registration statement became effective or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "EOG Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "EOG Prospectus"; any reference herein
to any EOG Preliminary Prospectus or the EOG Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
EOG Preliminary Prospectus or EOG Prospectus, as the case may be; any
reference to any amendment or supplement to any EOG Preliminary
Prospectus or the EOG Prospectus shall be deemed to refer to and
include any documents filed after the date of such EOG Preliminary
Prospectus or EOG Prospectus, as the case may be, under the Exchange
Act, and incorporated by reference in such EOG Preliminary Prospectus
or EOG Prospectus, as the case may be; and any reference to any
amendment to the Initial EOG Registration Statement shall be deemed to
refer to and include any annual report of EOG filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the EOG
Registration Statement that is incorporated by reference in the EOG
Registration Statement);
(ii) No order preventing or suspending the use of any EOG
Preliminary Prospectus has been issued by the Commission, and each EOG
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act, and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to EOG by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(iii) The documents incorporated by reference in the EOG
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of
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such documents 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; and any
further documents so filed and incorporated by reference in the EOG
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to EOG by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(iv) The EOG Registration Statement conforms, and the EOG
Prospectus and any further amendments or supplements to the EOG
Registration Statement or the EOG Prospectus will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as of the EOG Registration Statement and
any amendment thereto and as of the applicable filing date as to the
EOG Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to EOG by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use
therein;
(v) Neither EOG nor any of its subsidiaries listed on Schedule III
hereto (the "EOG Material Subsidiaries") has sustained since the date
of the latest audited financial statements included or incorporated by
reference in the EOG Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the EOG Prospectus; and, since the respective dates as
of which information is given in the EOG Registration Statement and the
EOG Prospectus, there has not been any change in the capital stock or
any increase in long-term debt of the EOG or any of the EOG Material
Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of EOG and its subsidiaries, otherwise than as
set forth or contemplated in the EOG Prospectus;
(vi) EOG has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the EOG Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Material Subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation in good standing
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under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(vii) EOG and its subsidiaries have good and marketable title to
their producing oil and gas properties, free and clear of all liens,
encumbrances and defects, except (a) those described in the EOG
Prospectus, (b) liens securing taxes and other governmental charges, or
claims of materialmen, mechanics and similar persons, not yet due and
payable, (c) liens and encumbrances under operating agreements,
unitization and pooling agreements, and gas sales contracts, securing
payment of amounts not yet due and payable and of a scope and nature
customary in the oil and gas industry and (d) liens, encumbrances and
defects that do not, singly or in the aggregate, materially affect the
value of such oil and gas properties or materially interfere with the
use made or proposed to be made of such properties by EOG and its
subsidiaries;
(viii) EOG has an authorized capitalization as set forth in the EOG
Prospectus, and all of the issued shares of capital stock of EOG
(including the shares of EOG Common Stock deliverable upon exchange of
the Notes) have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the EOG
capital stock contained in the EOG Prospectus; and all of the issued
shares of capital stock of each EOG Material Subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares) are owned directly or
indirectly by EOG, free and clear of all liens, encumbrances, equities
or claims;
(ix) The issuance and sale of the Notes by the Company, the
compliance by EOG with all of the provisions of this Agreement and the
consummation of the transactions herein and therein contemplated
(including the delivery of the EOG Common Stock upon exchange of the
Notes), will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which EOG or any of its subsidiaries is a party or by
which EOG or any of its subsidiaries is bound or to which any of the
property or assets of EOG or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of EOG or the charter or
by-laws of any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over EOG or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required to be obtained by EOG for the sale of the
Notes or the consummation by EOG of the transactions contemplated by
this Agreement (including the delivery of the EOG Common Stock upon
exchange of the Notes), except the registration under the Act of the
Notes, the EOG Common Stock deliverable upon exchange of the Notes, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state
9
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters;
(x) Neither EOG nor any of its subsidiaries is in violation of its
Certificate of Incorporation or charter, as the case may be, or By-laws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xi) The shares of EOG Common Stock deliverable upon exchange of
the Notes have been duly and validly authorized and issued and are
fully paid and non-assessable and conform to the description of the EOG
Common Stock contained in the EOG Prospectus;
(xii) The statements set forth in the EOG Prospectus under the
caption "Description of Common Stock", insofar as they purport to
constitute a summary of the terms of the EOG Common Stock, and under
the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(xiii) Other than as set forth or contemplated in the EOG
Prospectus, there are no legal or governmental proceedings pending to
which EOG or any of its subsidiaries is a party or of which any
property of EOG or any of its subsidiaries is the subject which, if
determined adversely to EOG or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operations of EOG and its subsidiaries; and, to the best
of EOG's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(xiv) Neither EOG nor any of its subsidiaries has taken or will
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in the stabilization or
manipulation of the price of the Notes or the EOG Common Stock;
(xv) EOG is not and, after giving effect to the offering and sale
of the Notes (and, if consummated, the sale of the shares of EOG Common
Stock pursuant to the Common Stock Underwriting Agreements), will not
be an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(xvi) Neither EOG nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(xvii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of EOG and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and
10
not jointly, to purchase from the Company, at a purchase price per Note of
$...................., the number of Firm Notes to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Notes as provided below, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per note set forth in clause (a) of this Section 2, that portion of the number
of Optional Notes as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional Notes) determined by multiplying
such number of Optional Notes by a fraction the numerator of which is the
maximum number of Optional Notes which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Notes that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,000,000 Optional Notes, at the purchase price per Note
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Notes. Any such election to purchase
Optional Notes may be exercised by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Notes to be purchased and the date on
which such Optional Notes are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Notes, the
several Underwriters propose to offer the Firm Notes for sale upon the terms and
conditions set forth in the Company Prospectus.
4. (a) The Notes to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered
in such names as ▇▇▇▇▇▇▇, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Company shall be delivered by
or on behalf of the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company in New York Clearing House
(next day) funds. The Company will cause the certificates representing
the Notes to be made available for checking and packaging at least
twenty- four hours prior to the Time of Delivery (as defined below)
with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Notes, 9:30 a.m., New York
City time, on ............., 1995 or on such other time and date as
▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon in writing, and,
with respect to the Optional Notes, 9:30 a.m., New York City time, on
the date specified by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in the written notice given
by ▇▇▇▇▇▇▇, Sachs & Co. of the Underwriters' election to purchase such
Optional Notes, or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
and the Company may agree upon in writing. Such time and date for
delivery of the Firm Notes is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Notes, if
not the First Time of Delivery, is herein called the "Second Time
11
of Delivery", and each such time and date for delivery is herein called
a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including
the cross-receipt for the Notes and any additional documents requested
by the Underwriters pursuant to Section 7(l) hereof, will be delivered
at the offices of Bracewell & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Notes will be
delivered at the Designated Office, all at each Time of Delivery. A
meeting will be held at the Closing Location at ..............p.m., New
York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Company Prospectus in a form approved by you and
to file such Company Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any
supplement to the Company Registration Statement or Company Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Company Registration Statement has been filed or becomes effective or
any supplement to the Company Prospectus or any amended Company
Prospectus has been filed and to furnish you with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Company Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Notes; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Company Preliminary
Prospectus or prospectus, of the suspension of the qualification of the
Notes for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Company
Registration Statement or Company Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Company Preliminary
Prospectus or prospectus or suspending any such qualification, promptly
to use its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided that in connection
12
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Company
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Company Prospectus in connection with the offering or sale of the Notes
and if at such time any events shall have occurred as a result of which
the Company Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Company Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Company
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Company Prospectus in order to comply with the Act
or the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as you may from time to
time reasonably request of an amended Company Prospectus or a
supplement to the Company Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Notes at any time nine months or more after the time of issue of the
Company Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as you may request of an amended or supplemented Company Prospectus
complying with Section 10(a)(3) of the Act;
(iv) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(v) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Company Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(vi) During the period beginning from the date hereof and
continuing to and including the date 270 days after the date of the EOG
Prospectus, not to, except pursuant to the Common Stock Underwriting
Agreements, (x) offer, sell, contract to sell or otherwise dispose of
any shares of EOG Common Stock, or securities convertible into or
exchangeable for EOG Common Stock, or rights or warrants to acquire EOG
Common Stock, or any other securities substantially similar to EOG
Common Stock or Notes except as may be required pursuant to the
Indenture, or (y) file any registration statement under the Act with
respect to securities convertible into or exchangeable for
13
EOG Common Stock, rights or warrants to acquire EOG Common Stock, or
any other securities substantially similar to EOG Common Stock or
Notes, in each case without the prior written consent of ▇▇▇▇▇▇▇, Sachs
& Co.;
(vii) To deliver to EOG copies of the opinion and certificates
delivered pursuant to Sections 7(c) and (m), in each case also
addressed to EOG or otherwise entitling EOG to rely on such opinions
and certificates as if they were so addressed;
(viii) During a period of five years from the effective date of the
Company Registration Statement, to supply to the Representatives of the
Underwriters, and to each other Underwriter who may so request in
writing, copies of any financial statements and other periodic and
special reports as the Company may from time to time distribute
generally to its lenders or to the holders of any class of its
securities registered under Section 12 of the Exchange Act and to
furnish to the Underwriters or the Representatives of the Underwriters
a copy of each annual or other report it shall be required to file with
the Commission; and
(ix) To use its best efforts to list, subject to notice of issuance,
the Notes on the New York Stock Exchange.
(b) EOG agrees with each of the Underwriters:
(i) To prepare the EOG Prospectus in a form approved by you and to
file such EOG Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
EOG Registration Statement or EOG Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the EOG Registration
Statement has been filed or becomes effective or any supplement to the
EOG Prospectus or any amended EOG Prospectus has been filed and to
furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by EOG
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the EOG Prospectus and for
so long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any EOG
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the EOG Common Stock for delivery in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the EOG Registration Statement or EOG Prospectus or
for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any EOG
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the EOG Common Stock deliverable upon
exchange of the Notes under the securities laws of such jurisdictions
as you may request and to comply with
14
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of the Notes, provided that in connection therewith EOG
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the EOG Prospectus
in New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the EOG Prospectus
in connection with the offering or sale of the Notes and if at such
time any events shall have occurred as a result of which the EOG
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such EOG Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the EOG Prospectus
or to file under the Exchange Act any document incorporated by
reference in the EOG Prospectus in order to comply with the Act or the
Exchange Act, to notify you and upon your request to file such document
and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended EOG Prospectus or a supplement to the
EOG Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Notes at any time
nine months or more after the time of issue of the EOG Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented EOG Prospectus complying with Section 10(a)(3)
of the Act;
(iv) If EOG elects to rely upon Rule 462(b), EOG shall file a Rule
462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and EOG shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act;
(v) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the EOG Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of EOG and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(vi) During the period beginning from the date hereof and
continuing to and including the date 270 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, other than pursuant to the Common
Stock Underwriting Agreements, any EOG Common Stock or any securities
of EOG that are substantially similar to the EOG Common Stock,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, EOG Common
Stock or any such substantially similar
15
securities (other than pursuant to employee stock option plans existing
on the date of this Agreement), without the prior written consent of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., and to cause EOG's Chairman of the Board,
President and Chief Executive Officer to agree not to offer, sell,
contract to sell or otherwise dispose of any EOG Common Stock, any
securities of EOG substantially similar to the EOG Common Stock, or any
securities convertible into or exchangeable for EOG Common Stock or
such substantially similar securities (other than pursuant to employee
stock option plans existing on the date of this Agreement), during such
period, without the prior written consent of ▇▇▇▇▇▇▇, Sachs & Co.;
(vii) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of EOG
and its subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the EOG Registration Statement),
consolidated summary financial information of EOG and its subsidiaries
for such quarter in reasonable detail;
(viii) To deliver to the Company, copies of the opinion and
certificates delivered pursuant to Sections 7(d) and (m), in each case
also addressed to the Company or otherwise entitling the Company to
rely on such opinions and certificates as if they were so addressed;
and
(ix) During a period of five years from the effective date of the
Company Registration Statement to furnish to you copies of all reports
or other communications (financial or other) furnished to
securityholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of EOG is listed; and (ii) such
additional information concerning the business and financial condition
of EOG as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent that the
accounts of EOG and its subsidiaries are consolidated in reports
furnished to its securityholders generally or to the Commission),
provided that prior to EOG's furnishing any such additional information
that is material and non-public you shall enter into such agreement
respecting the confidentiality thereof as EOG may reasonably request.
6. The Company and EOG covenant and agree with one another and the several
Underwriters that (a) the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Notes under the Act and
all other expenses in connection with the preparation, printing and filing of
the Company Registration Statement, any Company Preliminary Prospectus, the
Company Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
Selling Agreements, the Indenture, the Blue Sky and Legal Investment Memorandum
and any other documents in connection with the offering, purchase, sale and
delivery of the Notes; (iii) all expenses in connection with the qualification
of the Notes for offering and sale under state securities laws as provided in
Section 5(a)(ii) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) the filing fees incident to securing
any required
16
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Notes; (v) the cost of preparing the Notes; (vi) the fees and
expenses of the Trustee and any agent of the Trustee and the fes and
disbursements of counsel to the Trustee in connection with the Indenture and the
Notes; (vii) any fees charged by securities rating agencies for rating the
Notes; and (viii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section; and (b) EOG will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of EOG's counsel and accountants in connection
with the registration of the EOG Common Stock under the Act and all other
expenses in connection with the preparation, printing and filing of the EOG
Registration Statement, any EOG Preliminary Prospectus, the EOG Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Blue Sky Memorandum and any Legal Investment Memorandum and any other
documents in connection with the EOG Common Stock deliverable upon exchange of
the Notes; (iii) all expenses in connection with the qualification of the EOG
Common Stock deliverable upon exchange of the Notes under state securities laws
as provided in Section 5(b)(ii) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with such Blue Sky or legal investment surveys; (iv) the cost of
preparing stock certificates; (v) the cost and charges of any transfer agent or
registrar; and (vi) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that the Underwriters will pay all
of their own costs and expenses, including the fees and expenses of their
counsel and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Notes to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of EOG herein, are, at and as of such Time of Delivery, true and
correct, the condition that the Company and EOG each shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) Each of the Company Prospectus and the EOG Prospectus shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Sections 5(a) and 5(b)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop
order suspending the effectiveness of the Company Registration
Statement or the EOG Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., counsel for the Underwriters,
shall have furnished to you such opinion or opinions (a draft of each
such opinion is attached as Annex III(a) hereto), dated such Time of
Delivery, with respect to certain of the matters covered in paragraphs
(i), (iii), (iv), (v), (xi) and (xii) of subsection (c) below and in
paragraphs (i), (ii), (vi), (x), (xi) and (xii) of subsection (d) below
as well as such other
17
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Senior Vice President and General
Counsel of the Company, shall have furnished to you his written opinion
(a draft of each such opinion is attached as Annex III(b) hereto),
dated as of such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with all necessary corporate power and
authority to own its properties and conduct its business as
described in the Company Prospectus;
(ii) Each Material Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with all necessary
corporate power and authority to own its properties and conduct
its business as described in the Company Prospectus;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Notes are in the form contemplated by the Indenture
and have been duly authorized by all necessary corporate action
on the part of the Company; the Notes, when executed and
authenticated as specified in the Indenture (which facts, such
counsel may state, such counsel has not determined by an
inspection of the individual Notes) and issued and delivered
against payment pursuant to this Agreement, will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; and the Notes and the
Indenture conform in all material respects to the descriptions
thereof in the Company Prospectus;
(v) The Indenture has been duly authorized, executed and
delivered by the Company, and assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws
relating to or affecting creditor's rights generally and to
general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon certificates of
public officials);
(vii) Each Material Subsidiary has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws
18
of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction; and all of the issued shares of capital stock of
each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances,
equities or claims (other than contractual covenants restricting
the disposition thereof, none of which relate to the capital
stock of EOG) except for (A) EOG, 80% of which capital stock,
prior to the sale to be effected pursuant to the Common Stock
Underwriting Agreements, is owned by the Company, (B) Citrus
Corp., 50% of which capital stock is owned indirectly by the
Company and (C) Florida Gas Transmission Company, 100% of which
capital stock is owned by Citrus Corp. (such counsel being
entitled to rely in respect of the opinion in this clause upon,
in respect of matters of fact, certificates of officers of the
Company or its subsidiaries, provided that such counsel shall
state that he believes that he is justified in so relying upon
such certificates, or certificates of public officials);
(viii) To such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Material
Subsidiaries is a party or of which any property of the Company
or any of the Material Subsidiaries is the subject which would
be required to be described in the Company Prospectus and is not
described as required;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated (including the delivery of the
shares of EOG Common Stock upon exchange of the Notes) will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or the charter or by-laws of any of its subsidiaries or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties;
(x) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental
agency or body is required for the sale of the Notes, the
delivery of the EOG Common Stock upon exchange of the Notes or
the consummation by the Company of the transactions contemplated
by this Agreement, except such as have been obtained under the
Act or the Trust Indenture Act, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes by the
Underwriters;
19
(xi) The documents incorporated by reference in the Company
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and reports of
experts pertaining to natural resource reserves therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and he
has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xii) The Company Registration Statement and the Company
Prospectus and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and reports of
experts pertaining to natural resource reserves therein, as to
which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the
rules and regulations thereunder; although he does not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Company Registration Statement
or the Company Prospectus, he has no reason to believe that, as
of its effective date, the Company Registration Statement or any
further amendment thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related
schedules and reports of experts pertaining to natural resource
reserves therein, as to which such counsel need express no
opinion) 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, as of its date, the Company Prospectus or any further
amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and
related schedules and reports of experts pertaining to natural
resource reserves therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time of
Delivery, either the Company Registration Statement or the
Company Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
reports of experts pertaining to natural resource reserves
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading; and he does not know of any amendment to the
Company Registration Statement required to be filed or of any
contracts or other
20
documents of a character required to be filed as an exhibit to
the Company Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Company Registration Statement or the Company
Prospectus which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside
the United States and, with respect to the opinion in paragraph
(iii) above, may rely, as to matters of New York law, upon the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. delivered pursuant to
subsection 7(e) hereof.
(d) ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and General Counsel of
EOG, shall have furnished to you his written opinion (a draft of
each such opinion is attached as Annex III(c) hereto), dated as
of such Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) EOG has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with all necessary corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(ii) EOG has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of
EOG (including the shares of EOG Common Stock deliverable upon
exchange of the Notes) have been duly and validly authorized and
issued and are fully paid and non-assessable; and the EOG Common
Stock conforms to the description of such stock contained in the
EOG Prospectus;
(iii) EOG has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of EOG,
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such opinions and
certificates);
(iv) Each EOG Material Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, or is subject
to no material liability or disability by reason of failure to
be so qualified in any such jurisdiction; and all of the issued
shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by EOG, free and clear of all
liens, encumbrances, equities or claims (such counsel being
entitled to rely
21
in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of EOG or its subsidiaries, provided that such counsel
shall state that he believes that both you and he are justified
in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than
as set forth in the EOG Prospectus, there are no legal or
governmental proceedings pending to which EOG or any of its
subsidiaries is a party or of which any property of EOG or any
of its subsidiaries is the subject which, if determined
adversely to EOG or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of EOG and its subsidiaries;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by EOG;
(vii) The compliance by EOG with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated (including the delivery of the EOG Common Stock
upon exchange of the Notes), will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which EOG or any of its subsidiaries is a party
or by which EOG or any of its subsidiaries is bound or to which
any of the property or assets of EOG or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of EOG
or the charter or by-laws of any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction
over EOG or any of its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required in connection with the
consummation by EOG of the transactions contemplated by this
Agreement, except the registration under the Act of the EOG
Common Stock, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the registration
of the EOG Common Stock;
(ix) Neither EOG nor any of its subsidiaries is in violation
of its Certificate of Incorporation or charter, as the case may
be, or By-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound;
(x) The statements set forth in the EOG Prospectus under the
caption "Description of Common Stock", insofar as they purport
to constitute a summary of the terms of the EOG Common Stock,
and under the caption "Underwriting",
22
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and
fair;
(xi) The documents incorporated by reference in the EOG
Prospectus or any further amendment or supplement thereto made
by EOG prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xii) The EOG Registration Statement and the EOG Prospectus
and any further amendments and supplements thereto made by EOG
prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules
and regulations thereunder; although he does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the EOG Registration Statement or the
EOG Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 7(d), he has no reason to believe
that, as of its effective date, the EOG Registration Statement
or any further amendment thereto made by EOG prior to such Time
of Delivery (other than the financial statements and related
schedules and reports of experts pertaining to natural resource
reserves therein, as to which such counsel need express no
opinion) 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, as of its date, the EOG Prospectus or any further
amendment or supplement thereto made by EOG prior to such Time
of Delivery (other than the financial statements and related
schedules and reports of experts pertaining to natural resource
reserves therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time of
Delivery, either the EOG Registration Statement or the EOG
Prospectus or any further amendment or supplement thereto made
by EOG prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances
23
under which they were made, not misleading; and he does not know
of any amendment to the EOG Registration Statement required to
be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the EOG Registration
Statement or required to be incorporated by reference into the
EOG Prospectus or required to be described in the EOG
Registration Statement or the EOG Prospectus which are not filed
or incorporated by reference or described as required.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction outside the United States and, with
respect to the opinion in paragraph (iv) above, may rely, as to matters of New
York law, upon an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. delivered therewith.
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Company and EOG, shall have
furnished to you their written opinion (a draft of each such opinion is attached
as Annex III(d) hereto) dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Agreement has been duly authorized, executed and
delivered by the Company and EOG;
(ii) The statements set forth in the Company Prospectus
under the caption "Description of Exchangeable Notes", insofar
as they purport to constitute a summary of the terms of the
Exchangeable Notes, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws
and docuemnts referred to therein, and the statements set forth
in the EOG Prospectus under the caption "Description of Capital
Stock", insofar as they purport to constitute a summary of the
terms of the EOG Common Stock, and under the caption
"Underwriting", insofar as they purport to describe the
provisions of the laws and docuemnts referred to therein, are
accurate, complete and fair;
(iii) Each of the Company and EOG is not, and after the
consummation of the transactions contemplated by this Agreement
and the Common Stock Underwriting Agreements will not be, an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company
Act;
(iv) The documents incorporated by reference in the EOG
Prospectus or any further amendment or supplement thereto made
by EOG prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue
24
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such
documents were so filed, not misleading; and
(v) The documents incorporated by reference in the Company
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and reports of
experts pertaining to natural resource reserves therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(vi) The EOG Registration Statement and the EOG Prospectus
and any further amendments and supplements thereto made by EOG
prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules
and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the EOG Registration Statement or the
EOG Prospectus, except for those referred to in the opinion in
subsection (ii) of this Section 7(e), they have no reason to
believe that, as of its effective date, the EOG Registration
Statements or any further amendment thereto made by EOG prior to
such Time of Delivery (other than the financial statements and
related schedules and reports of experts pertaining to natural
resource reserves therein, as to which such counsel need express
no opinion) 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, as of its date, the EOG Prospectus or any further
amendment or supplement thereto made by EOG prior to such Time
of Delivery (other than the financial statements and related
schedules and reports of experts pertaining to natural resource
reserves therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time of
Delivery, either the EOG Registration Statement or the EOG
Prospectus or any further amendment or supplement thereto made
by EOG prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material
25
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
and they do not know of any amendment to the EOG Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the EOG Registration Statement or required to be incorporated by
reference into the EOG Prospectus or required to be described in
the EOG Registration Statement or the EOG Prospectus which are
not filed or incorporated by reference or described as required.
(vii) The Company Registration Statement and the Company
Prospectus and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and reports of
experts pertaining to natural resource reserves therein, as to
which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Company Registration Statement
or the Company Prospectus, except for those referred to in the
opinion in subsection (ii) of this Section 7(e), they have no
reason to believe that, as of its effective date, the Company
Registration Statements or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the
financial statements and related schedules and reports of
experts pertaining to natural resource reserves therein, as to
which such counsel need express no opinion) 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, as of its date, the
Company Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
reports of experts pertaining to natural resource reserves
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading or that, as of such Time of Delivery, either the
Company Registration Statement or the Company Prospectus or any
further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and reports of experts
pertaining to natural resource reserves therein, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Company Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Company Registration Statement or required to be
incorporated by reference into the Company Prospectus or
required to be described in the Company Registration Statement
or the Company Prospectus which are not filed or incorporated by
reference or described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States.
26
(f) On the respective dates of the Company Prospectus and the EOG
Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New
York City time, on the respective effective dates of the Company Registration
Statement and the EOG Registration Statement and the effective date of any
post-effective amendment to the Company Registration Statement and the EOG
Registration Statement and also at each Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto in the case of the Company and Annex II hereto in the
case of EOG (the executed copy of the letter in respect of the Company
Registration Statement delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and the executed copy of the letter in respect of
the EOG Registration Statement delivered prior to the execution of this
Agreement is attached as Annex II(a) hereto, and a draft of the form of letter
to be delivered on the effective date of any post-effective amendment to the
Company Registration Statement and as of each Time of Delivery is attached as
Annex I(b) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the EOG Registration Statement
and as of each Time of Delivery is attached as Annex II(b) hereto);
(g) The Company and EOG shall have complied with the provisions of Section
5(a)(iii) and 5(b)(iii), as the case may be, with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Company Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Company
Prospectus; (ii) since the respective dates as of which information is given in
the Company Prospectus there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Company Prospectus; (iii) neither EOG nor any of its
subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the EOG Prospectus any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the EOG Prospectus; and (iv) since the respective dates as of
which information is given in the EOG Prospectus there shall not have been any
change in the capital stock or long-term debt of EOG or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of EOG and its subsidiaries, otherwise than as
set forth or contemplated in the EOG Prospectus, the effect of which, in any
such case described in clause (i), (ii), (iii) or (iv), is in the judgment of
the Representatives of the Underwriters so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Company Prospectus;
(i) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's or EOG's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2)
27
under the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's or EOG's debt securities;
(j) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange (the "Exchange"); (ii) a suspension or
material limitation in trading in the Company's or EOG's securities on the
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(k) The Notes, subject to notice of issuance, and the EOG Common Stock to
be delivered by the Company upon exchange of the Notes, shall have been duly
listed on the Exchange;
(l) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from the Company's Chairman of the Board, President and
Chief Executive Officer to the effect set forth in Subsection 5(b)(v) hereof in
form and substance satisfactory to you;
(m) The Company and EOG shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company and of EOG
respectively, satisfactory to you as to the accuracy of the representations and
warranties of the Company and EOG respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and EOG of all of their
respective obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request, and the
Company and EOG shall have furnished or caused to be furnished certificates as
to the matters set forth in subsections (a) and (h) of this Section, and as to
such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Company Preliminary Prospectus, the Company
Registration Statement or the Company Prospectus (in each case including any EOG
Preliminary Prospectus or EOG Prospectus included therein), or any amendment or
supplement thereto, or arise out of or are based upon 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 will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim 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, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Company Preliminary
Prospectus, the Company Registration Statement or the Company Prospectus or any
such amendment or supplement in reliance upon and in
28
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under this indemnity
agreement in this subsection (a) with respect to any Company Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold Notes to a person as to
whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the applicable Company
Prospectus or of the applicable prospectus as then amended or supplemented in
any case where such delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Company Preliminary Prospectus
which was corrected in the Company Prospectus or in the Company Prospectus as
then amended or supplemented and delivered to the Underwriter.
(b) EOG will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any EOG Preliminary Prospectus, the EOG Registration
Statement or the EOG Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon 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 will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that EOG shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any EOG Preliminary Prospectus, the EOG Registration
Statement or the EOG Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to EOG by any
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; and
provided, further, that EOG shall not be liable to any Underwriter under this
indemnity agreement in this subsection (b) with respect to any EOG Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold Notes to a person as to
whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the applicable Company
Prospectus or of the applicable prospectus as then amended or supplemented in
any case where such delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the EOG Preliminary Prospectus which
was corrected in the EOG Prospectus or the EOG Prospectus as then amended or
supplemented and delivered to the Underwriter.
(c) Each Underwriter will indemnify and hold harmless the Company and EOG
against any losses, claims, damages or liabilities to which the Company or EOG
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Company or EOG Preliminary Prospectus, the Company or EOG
Registration Statement or the Company or EOG Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements
29
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Company or EOG Preliminary Prospectus, the Company or
EOG Registration Statement or the Company or EOG Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or EOG by such Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein; and will reimburse the Company and EOG
for any legal or other expenses reasonably incurred by the Company or EOG in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(e) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and EOG on the one hand and the Underwriters on the
other from the offering of the Notes. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and EOG on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and EOG on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net
30
proceeds from the offering of the Notes purchased under this Agreement (before
deducting expenses) received by the Company and EOG bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Notes purchased under this Agreement, in each case as set forth in the
table on the cover page of the Company Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or EOG on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, EOG and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (e) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include 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 subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and EOG under this Section 8 shall be in
addition to any liability which the Company and EOG may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company or EOG and to
each person, if any, who controls the Company or EOG within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Notes which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Notes on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Notes,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Notes on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Notes, or the Company notifies you that they have so arranged
for the purchase of such Notes, you or the Company shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the Company or
EOG Registration Statement or the Company or EOG Prospectus, or in any other
documents or arrangements, and the Company and EOG agree to file promptly any
amendments to the Company or EOG Registration Statement or the Company or EOG
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement
31
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Notes.
(b) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Notes which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
of the Notes to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number
of Notes which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Notes which such Underwriter
agreed to purchase hereunder) of the Notes of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Notes which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Notes to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Notes of a defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Second Time of Delivery, the obligations
of the Underwriters to purchase and of the Company to sell the Optional Notes)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or EOG except for the expenses to be borne by the
Company and EOG and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, EOG and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or EOG, or any officer or director or controlling person of the Company or of
EOG, and shall survive delivery of and payment for the Notes.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (a)(ii), (a)(iii) and (a)(iv) of Section 1 hereof and
any representation or warranty as to the accuracy of the Company Registration
Statement or the Company Prospectus contained in any certificate furnished by
the Company pursuant to Section 7 hereof, the indemnity agreement of EOG in
subsection (b) of Section 8 hereof, the representations and warranties in
subsections (b)(ii), (b)(iii) and (b)(iv) of Section 1 hereof and any
representation or warranty as to the accuracy of the EOG Registration Statement
or the EOG Prospectus contained in any certificate furnished by the Company or
EOG pursuant to Section 7 hereof insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company or EOG of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of a controlling person or partner of an Underwriter who is a
director, officer or controlling person of the Company or EOG when the
applicable registration statement has become effective, except in each case to
the extent that an interest of such character shall have been determined by a
court of appropriate jurisdiction as not against public policy as expressed in
the Act. Unless in the opinion of
32
counsel for the Company and/or EOG, as the case may be, the matter has been
settled by controlling precedent, the Company and/or EOG, as the case may be,
will, if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question of whether such interest is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor EOG shall then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if for any other reason any
Notes are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Notes not so delivered, but the Company and
EOG shall then be under no further liability to any Underwriter in respect of
the Notes not so delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the Company Attention: Secretary, at its address set
forth in the Company Registration Statement; and if to EOG shall be delivered or
sent by mail, telex or facsimile transmission to the address of EOG set forth in
the EOG Registration Statement, Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or EOG by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and EOG and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and EOG and
each person who controls the Company, EOG or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Notes from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
33
If the foregoing is in accordance with your understanding, please sign and
return to us . . . counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and EOG. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company and EOG for examination upon request, but without warranty on your part
as to the authority of the signers thereof.
34
Very truly yours,
Enron Corp.
By: __________________________________________
Name:
Title:
Enron Oil & Gas Company
By: __________________________________________
Name:
Title:
Accepted as of the date hereof at ........,
...............:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
By:.........................................................
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
35
SCHEDULE I
NUMBER OF OPTIONAL
NOTES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM NOTES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co....................................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.....................................................
Salomon Brothers Inc...................................................
Total.............................................
36
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Company
Registration Statement or the Company Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Company Prospectus and/or included in the Company's
Quarterly Report on Form 10-Q incorporated by reference into the
Company Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Company
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
37
(v) They have compared the information in the Company Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures
that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Company Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Company Prospectus and/or included
or incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Company Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Company Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Company
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Company Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Company Prospectus but from which were derived
the unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and balance
sheet items included in the Company Prospectus and referred to
in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Company
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
38
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Company Prospectus, except
in each case for changes, increases or decreases which the
Company Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Company
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the Company Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Company Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Company Prospectus (excluding documents incorporated by reference)
or in Part II of, or in exhibits and schedules to, the Company
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Company Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
39
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to EOG and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the EOG Registration
Statement or the EOG Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of EOG for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representatives of the Underwriters
(the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the EOG Prospectus and/or included in EOG's Quarterly
Report on Form 10-Q incorporated by reference into the EOG Prospectus
as indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of EGO who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of EOG
for the five most recent fiscal years included in the EOG Prospectus
and included or incorporated by reference in Item 6 of EOG's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in EOG's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the EOG Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited
40
procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that
this information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of EOG and its subsidiaries, inspection of
the minute books of EOG and its subsidiaries since the date of the
latest audited financial statements included or incorporated by
reference in the EOG Prospectus, inquiries of officials of EOG and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the EOG Prospectus and/or included or
incorporated by reference in EOG's Quarterly Reports on Form
10-Q incorporated by reference in the EOG Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the EOG
Prospectus or included in EOG's Quarterly Reports on Form 10-Q
incorporated by reference in the EOG Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the EOG Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in EOG's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the EOG Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the EOG Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in EOG's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the EOG
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock or any
41
increase in the consolidated long-term debt of EOG and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference
in the EOG Prospectus, except in each case for changes,
increases or decreases which the EOG Prospectus discloses have
occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the EOG
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the EOG Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the EOG Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of EOG and its subsidiaries, which appear in the EOG
Prospectus (excluding documents incorporated by reference) or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the EOG Prospectus specified by the Representatives, and
have compared certain of such amounts, percentages and financial
information with the accounting records of EOG and its subsidiaries and
have found them to be in agreement.
42
