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8-K - FORM 8-K - EOG RESOURCES INC | h73192e8vk.htm |
EX-5.1 - EX-5.1 - EOG RESOURCES INC | h73192exv5w1.htm |
EX-12.1 - EX-12.1 - EOG RESOURCES INC | h73192exv12w1.htm |
Exhibit 1.1
EXECUTION VERSION
$1,000,000,000
EOG Resources, Inc.
$500,000,000 2.95% Senior Notes due 2015
$500,000,000 4.40% Senior Notes due 2020
EOG Resources, Inc.
$500,000,000 2.95% Senior Notes due 2015
$500,000,000 4.40% Senior Notes due 2020
Underwriting Agreement
May 17, 2010
Barclays Capital Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC
Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
Banc of America Securities LLC
Mitsubishi UFJ Securities (USA), Inc.
Deutsche Bank Securities Inc.
Scotia Capital (USA) Inc.
RBC Capital Markets Corporation
SG Americas Securities, LLC
BMO Capital Markets Corp.
Comerica Securities, Inc.
BNP Paribas Securities Corp.
BBVA Securities Inc.
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
UBS Securities LLC
Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
Banc of America Securities LLC
Mitsubishi UFJ Securities (USA), Inc.
Deutsche Bank Securities Inc.
Scotia Capital (USA) Inc.
RBC Capital Markets Corporation
SG Americas Securities, LLC
BMO Capital Markets Corp.
Comerica Securities, Inc.
BNP Paribas Securities Corp.
BBVA Securities Inc.
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
% Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
745 Seventh Avenue
New York, New York 10019
% J.P. Morgan Securities Inc.
383 Madison Avenue
New York, New York 10179
383 Madison Avenue
New York, New York 10179
% UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
EOG Resources, Inc., a Delaware corporation (the Company), proposes, subject to the
terms and conditions stated herein, to issue and sell to Barclays Capital Inc., J.P. Morgan
Securities Inc., UBS Securities LLC, Wells Fargo Securities, LLC, Citigroup Global Markets
Inc., Banc of America Securities LLC, Mitsubishi UFJ Securities (USA), Inc., Deutsche Bank
Securities Inc., Scotia Capital (USA) Inc., RBC Capital Markets Corporation, SG Americas
Securities, LLC, BMO Capital Markets Corp., Comerica Securities, Inc., BNP Paribas Securities
Corp., BBVA Securities Inc., Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co.
(collectively, the Underwriters, which term shall also include any underwriter
substituted as hereinafter provided in Section 11), acting severally and not jointly, the aggregate
principal amount of 2.95% Senior Notes due 2015 (the 2015 Notes) and 4.40% Senior Notes due 2020
(the 2020 Notes and, together with the 2015 Notes, the Notes) having the respective terms set
forth in Annex I hereto, set forth opposite their respective names on Annex II
hereto. The Notes are being issued under an indenture, dated as of May 18, 2009 (the
Indenture), between the Company and Wells Fargo Bank, NA, as Trustee.
1. The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the Securities Act), a registration statement
on Form S-3 (File No. 333-163947), including a prospectus, relating to the Companys debt
securities, among other securities, and such registration statement has become effective. Such
registration statement, as amended at the time it became effective, including the exhibits thereto,
is referred to herein as the Registration Statement; and as used herein, the term
Preliminary Prospectus means any preliminary prospectus relating to the Notes, including
any preliminary prospectus supplement thereto relating to the Notes, filed with the Commission
pursuant to Rule 424 under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the
time of its effectiveness (Rule 430 Information), and the term Prospectus means
the prospectus relating to the Notes, including any prospectus supplement thereto relating to the
Notes, in the form first used (or made available upon request of purchasers pursuant to Rule 173
under the Securities Act) in connection with confirmation of sales of the Notes. Any reference in
this Agreement to the Registration Statement, any Preliminary Prospectus or the 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 Securities Act, as of the effective date of the Registration Statement or the
date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to
amend, amendment or supplement with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Registration Statement and the Prospectus.
At or prior to 4:06 p.m., New York City time, on the date of this Agreement (the time when
sales of the Notes were first made, the Time of Sale), the Company had prepared the
following information (collectively, the Time of Sale Information): a Preliminary
Prospectus dated May 17, 2010, and each free-writing prospectus (as defined pursuant to Rule 405
under the Securities Act) listed on Annex III hereto as constituting part of the Time of
Sale Information.
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2. The Company agrees to issue and sell the Notes to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company (i) the respective principal amount of 2015 Notes set
forth opposite such Underwriters name on Annex II hereto at a price equal to 99.195% of
the principal amount thereof and (ii) the respective principal amount of 2020 Notes set forth
opposite such Underwriters name on Annex II hereto at a price equal to 99.084% of the
principal amount thereof, in each case plus accrued interest, if any, from May 20, 2010 to the
Closing Date (as defined below). The Company will not be obligated to deliver any of the Notes
except upon payment for all the Notes to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the Notes as
soon after the effectiveness of this Agreement as in the judgment of Barclays Capital Inc., J.P.
Morgan Securities Inc. and UBS Securities LLC (the Representatives) is advisable, and
initially to offer the Notes on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an
Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any
Underwriter.
Payment for and delivery of the Notes will be made at the offices of Bracewell & Giuliani LLP,
711 Louisiana Street, Suite 2300, Houston, Texas, at 10:00 a.m., New York City time, on May 20,
2010, or at such other time or place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may agree upon in writing. The
time and date of such payment and delivery is referred to herein as the Closing Date.
Payment for the Notes shall be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representatives against delivery to the nominee of The
Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Notes (collectively, the Global Note), with any transfer taxes payable
in connection with the sale of the Notes duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00 p.m., New York City time, on
the business day prior to the Closing Date.
The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of
an arms length contractual counterparty to the Company with respect to the offering of Notes
contemplated hereby (including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
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3. The Company represents and warrants to, and agrees with, each Underwriter that:
(a) The Registration Statement is an automatic shelf registration statement as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the offering has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will comply in all material
respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the Trust Indenture
Act), and did not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto.
(b) The Time of Sale Information, at the Time of Sale did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of
Sale Information and no statement of material fact included in the Time of Sale Information
that is required to be included in the Prospectus has been omitted therefrom.
(c) The Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not prepared, made, used, authorized, approved or referred to
and will not prepare, make, use, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Notes (each such communication by the Company or its
agents and representatives (other than a
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communication referred to in clauses (i), (ii) and (iii) below) an Issuer Free
Writing Prospectus) other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the
Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex III
hereto as constituting the Time of Sale Information and (v) any electronic road show or
other written communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all material respects
with the Securities Act, has been or will be (within the time period specified in Rule 433)
filed in accordance with the Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus filed prior to the first use of such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in any Issuer
Free Writing Prospectus.
(d) The documents incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information, 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 Exchange Act and none of such documents contained any 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, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information, 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 Securities Act or the Exchange Act, as
applicable, and will not contain any 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.
(e) Since the respective dates as of which information is given in the Registration
Statement, the Time of Sale Information and the Prospectus, there has not been any material
adverse change in the general affairs, prospects, management, financial position or results
of operations of the Company and its consolidated subsidiaries taken as a whole, whether or
not arising in the ordinary course of business, in each case other than as set forth in or
contemplated by the Registration Statement, the Time of Sale Information and the Prospectus;
(f) The Company is a corporation duly incorporated and validly existing in good
standing under the laws of the State of Delaware, has full corporate power and authority to
own its properties and to conduct its business as such business is described in the
Registration Statement, the Time of Sale Information and the Prospectus, and is duly
qualified to do business and is in good standing as a foreign corporation in each
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jurisdiction in which the ownership of its properties or the conduct of its business
requires such qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company;
(g) Each of the Companys subsidiaries has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own its properties and to conduct its business as such
business is described in the Registration Statement, the Time of Sale Information and 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 jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a material adverse
affect on the Company and its consolidated subsidiaries, taken as a whole; and all the
outstanding shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable, and (except in the case of
foreign subsidiaries, for directors qualifying shares) are owned by the Company, directly
or indirectly, free and clear of all liens, encumbrances, security interests and claims;
(h) This Agreement has been duly authorized, executed and delivered by the Company;
(i) The Notes have been duly authorized for issuance and sale by the Company and, when
issued, authenticated and delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor in accordance with this Agreement,
the Notes will be valid and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws relating to or affecting creditors rights generally and to
general equity principles; and the Notes will conform in all material respects to the
description thereof in the Registration Statement, the Time of Sale Information and the
Prospectus;
(j) The Indenture has been duly authorized by the Company, has been duly qualified
under the Trust Indenture Act and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws
relating to or affecting creditors rights generally and to general equity principles; and
the Indenture conforms in all material respects to the description thereof in the
Registration Statement, the Time of Sale Information and the Prospectus;
(k) The issuance and delivery of the Notes and the execution and delivery of this
Agreement, the consummation of the transactions contemplated by the Indenture or this
Agreement and the compliance with the terms of the Indenture, the Notes and this Agreement
are within the corporate powers of the Company, and do not and will not conflict with,
violate or result in a breach of any of the terms or provisions of, or
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constitute a default under, (i) the certificate of incorporation, as amended or
restated, or bylaws, as amended, of the Company, (ii) any indenture, mortgage or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which any of their respective properties or assets is subject, or (iii) any existing
applicable law, rule, regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over the Company or any of its subsidiaries or
any of their respective properties, other than in the case of (ii) or (iii) above, for any
such conflict, violation, breach or default that would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the Company or
materially and adversely affect the ability of the Company to perform its obligations under
this Agreement; and no consent, approval, authorization, order, registration or
qualification of or with any such governmental instrumentality or court is required for the
issue and sale of the Notes or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except as have been obtained under the
Securities Act and 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;
(l) Other than as set forth in the Registration Statement, the Time of Sale Information
and the 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 of their respective properties
or assets is the subject that are required to be described in the Registration Statement,
the Time of Sale Information and the Prospectus, or that could adversely affect the
consummation of the transactions contemplated by this Agreement, the terms of the Notes or
the Indenture; and, to the knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or by others;
(m) The Company and its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all governmental
regulatory officials and bodies that are necessary to own or lease their respective
properties and conduct their respective businesses as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except for such licenses,
franchises, permits, authorizations, approvals, orders or concessions as to which the
failure to obtain will not have a material adverse effect on the financial condition or
results of operations of the Company and its consolidated subsidiaries taken as a whole;
(n) The Company is not, and after giving effect to the offering and sale of the Notes
and the application of the net proceeds therefrom will not be, an investment company as
such term is defined in the Investment Company Act of 1940, as amended (the Investment
Company Act);
(o) The consolidated financial statements of the Company incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus, together with
related schedules and notes, comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and present fairly
the consolidated financial position, results of operations and changes in financial position
of the Company and its consolidated subsidiaries on the basis stated
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therein at the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods involved, except
as otherwise disclosed therein; the supporting schedules, if any, incorporated by reference
in the Registration Statement, the Time of Sale Information and the Prospectus present
fairly in accordance with generally accepted accounting principles the information required
to be stated therein; any summary or selected financial data included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus
present fairly the information shown therein and, to the extent based upon or derived from
the financial statements, have been compiled on a basis consistent with the financial
statements presented therein except as otherwise stated therein or the notes thereto; and
the other financial and statistical information and data included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus
are, in all material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company;
(p) The Company is not an ineligible issuer and is a well-known seasoned issuer, in
each case as defined under the Securities Act, in each case at the times specified in the
Securities Act in connection with the offering of the Notes; and the Company has paid the
registration fee for this offering of the Notes pursuant to Rule 457 under the Securities
Act;
(q) The Company and its subsidiaries maintain an effective system of disclosure
controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed
to ensure that information required to be disclosed by the Company in reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commissions rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Companys management as appropriate to allow timely decisions regarding required disclosure;
and the Company and its subsidiaries have carried out evaluations of the effectiveness of
their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act; and
(r) The Company and its subsidiaries maintain systems of internal control over
financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act, that have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, and effected by their respective boards of directors, management and
other personnel, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles and that include those policies and procedures
that: (i) pertain to the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the Company and its
subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary
to permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and
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expenditures of the Company and its subsidiaries are being made only in accordance with
authorizations of management and directors of the Company and its subsidiaries; and (iii)
provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Companys and its subsidiaries assets that could
have a material effect on the financial statements; and except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there are no
material weaknesses in the Companys internal controls.
4. The Company agrees with each Underwriter as follows:
(a) To file the Prospectus in a form approved by the Underwriters with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act; and to file any Issuer Free Writing Prospectus (including the Term Sheet in
the form of Annex IV hereto) to the extent required by Rule 433 under the Securities
Act; and 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 Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of the Notes;
and to furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m.,
New York City time, on the business day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request;
(b) To cooperate with the Underwriters in qualifying the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably
request; provided that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified, to take any action which would subject
it to service of process in suits, other than those arising out of the offering or sale of
the Notes, in any jurisdiction where it is not now so subject, to qualify in any
jurisdiction as a broker-dealer or to subject itself to any taxing authority where it is not
now so subject;
(c) To deliver, without charge, to each Underwriter during the Prospectus Delivery
Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto) and each Issuer Free Writing Prospectus as the Representatives may
reasonably request. As used herein, the term Prospectus Delivery Period means
such period of time after the first date of the public offering of the Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Notes is required by
law to be delivered (or required to be delivered but for Rule 172 under the Securities Act)
in connection with sales of the Notes by any Underwriter or dealer;
(d) Before making, preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to the Representatives and counsel for
the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and to not make, prepare, use,
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authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file
any such proposed amendment or supplement to which the Representatives reasonably object;
(e) To advise the Representatives promptly, and confirm such advice in writing,
(i) when any amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer
Free Writing Prospectus has been filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Prospectus or
the receipt of any comments from the Commission relating to the Registration Statement or
any other request by the Commission for any additional information; (iv) of the issuance by
the Commission of any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period
as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing
Prospectus as then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when the Prospectus,
the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of
the Commission to the use of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the Notes for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its reasonable best efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification
of the Notes and, if any such order is issued, to obtain as soon as possible the withdrawal
thereof;
(f) If at any time prior to the Closing Date, (i) any event shall occur or condition
shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any 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, not misleading or (ii) it is necessary to amend or supplement the Time of
Sale Information to comply with law, to immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (d) above, file with the Commission (to the
extent required) and furnish to the Underwriters and to such dealers as the Representatives
may designate, such amendments or supplements to the Time of Sale Information as may be
necessary so that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so that the Time
of Sale Information will comply with law;
(g) If during the Prospectus Delivery Period, (i) any event shall occur or condition
shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact
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required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, to immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (d) above, file with the Commission and furnish to the Underwriters and
to such dealers as the Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(h) During the period from the date hereof through and including the Closing Date, the
Company will not, without the prior written consent of the Representatives, offer, sell or
otherwise dispose of any debt securities issued or guaranteed by the Company and having a
tenor of more than one year;
(i) During the period of five years from the date hereof, to supply to the
Representatives, and to each other Underwriter who may so request in writing, copies of such
financial statements and other periodic and special reports as the Company may from time to
time distribute to the holders of any class of its securities registered under Section 12 of
the Exchange Act and to furnish to the Representatives and such Underwriters a copy of each
annual or other report it shall be required to file with the Commission;
(j) To make generally available to its security holders and each Underwriter as soon as
practicable an earnings statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder; and
(k) Pursuant to reasonable procedures developed in good faith, to retain copies of each
Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule
433 under the Securities Act.
5. The Company covenants and agrees with each Underwriter that, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated, the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys
counsel and accountants in connection with the issue of the Notes, the preparation and printing of
the Registration Statement, each Preliminary Prospectus, the Prospectus, and Issuer Free Writing
Prospectus and any amendments and supplements thereto and the mailing and delivering of copies
thereof to each Underwriter and dealers; (ii) the cost of printing or producing this Agreement, the
Indenture, any Blue Sky and legal investment memoranda 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, including the
reasonable fees and disbursements of a single counsel for the Underwriters in connection with such
qualification and in connection with any Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Notes; (v) the cost of preparing the Notes;
(vi) the cost of qualifying the Notes with The Depository Trust Company; (vii) the cost of
furnishing to the Underwriters copies of all reports and
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information required by Section 4(i) hereof; (viii) all fees and expenses of the Trustee and
any agent thereof and any fees and disbursements of counsel therefor in connection with the
Indenture and the Notes; and (ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section, Section 8,
Section 10 and Section 11 hereof, each Underwriter will pay all of its own costs and expenses,
including transfer taxes, if any, on resale of any of the Notes by it.
6. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any free writing prospectus, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement
and any press release issued by the Company) other than (i) a free writing prospectus that,
solely as a result of use by such underwriter, would not trigger an obligation to file such
free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free
Writing Prospectus listed on Annex III or prepared pursuant to Section 3(c) or
Section 4(d) above (including any electronic road show), or (iii) any free writing
prospectus prepared by such underwriter and approved by the Company in advance in writing
(each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter
Free Writing Prospectus). Notwithstanding the foregoing, the Underwriters may use a
term sheet substantially in the form of Annex IV hereto without the consent of the
Company; and
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
7. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company herein are,
at and as of the Closing Date, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Securities Act, shall be pending before or threatened by the
Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 4(a) hereof; and all requests by the Commission for additional information
shall have been complied with to the reasonable satisfaction of the Representatives;
(b) Bracewell & Giuliani LLP, counsel for the Underwriters, shall have furnished to
them such opinion or opinions, dated the Closing Date, with respect to the
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Company, this Agreement, the Notes and the Indenture, and other related matters as the
Underwriters 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) Fulbright & Jaworski L.L.P., counsel for the Company, shall have furnished to the
Underwriters an opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) the Registration Statement is an automatic shelf registration statement as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; to such counsels knowledge, no notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by
the Company; each of the Preliminary Prospectus and the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in
such opinion on the date specified therein; and, to such counsels knowledge, no order
suspending the effectiveness of the Registration Statement has been issued, and, to such
counsels knowledge, no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company has been initiated or threatened by the Commission;
(ii) the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Time of Sale Information and the Prospectus and any amendments or
supplements thereto (other than the financial statements and related schedules, natural
resource reserve reports or other financial and reserve data included therein, as to which
such counsel need express no opinion) comply as to form in all material respects with the
requirements of the Securities Act; and the Indenture has been qualified under the Trust
Indenture Act;
(iii) the Notes have been duly authorized, executed and delivered by the Company, and
when authenticated by the Trustee and issued and delivered in the manner provided in the
Indenture against payment of the consideration therefor pursuant to the Underwriting
Agreement, will constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their respective terms and entitled to the benefits
provided by the Indenture, except (a) as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other laws affecting
creditors rights generally and (b) that the remedy of specific performance and injunctive
and other forms of equitable relief are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, and
assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes
a valid and binding agreement of the Company enforceable against the Company in accordance
with its terms, except (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or
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other laws affecting creditors rights generally and (b) that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to certain
equitable defenses and to the discretion of the court before which any proceeding therefor
may be brought;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Notes and the Indenture conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Time of Sale Information and the
Prospectus;
(vii) the issuance and delivery of the Notes, the execution and delivery of this
Agreement and the consummation of the transactions contemplated in this Agreement and the
Indenture and the compliance with the terms of this Agreement and the Indenture, do not and
will not conflict with or violate any of the terms or provisions of the certificate of
incorporation, as amended or restated, or the bylaws, as amended, of the Company;
(viii) the Company is not, and after the consummation of the sale of the Notes
contemplated by this Agreement will not be, an investment company or an entity
controlled by an investment company, as such terms are defined in the Investment Company
Act; and
(ix) subject to the assumptions, qualifications, and limitations set forth in the
discussion in the Preliminary Prospectus and the Prospectus under the caption Material U.S.
Federal Income Tax Considerations (the Discussion) and based on the accuracy of
the representations made by the Company in this Agreement and the accuracy of the facts set
forth in the Discussion, the Discussion, insofar as it describes U.S. federal income tax
law, is accurate in all material respects;
(d) Frederick J. Plaeger, II, Senior Vice President and General Counsel of the Company,
shall have furnished to the Underwriters an opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) the Company is a corporation duly incorporated, validly existing and 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 such business is described in
the Registration Statement, the Time of Sale Information and the Prospectus;
(ii) the issuance and delivery of the Notes and the execution and delivery of this
Agreement, and the consummation of the transactions contemplated by this Agreement and the
Indenture and the compliance with the terms of the Notes, this Agreement and the Indenture,
do not and will not conflict with, violate or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage or, to such counsels
knowledge, other agreement or instrument to which the Company or any of its subsidiaries
listed on Annex V hereto (the Major Subsidiaries) is
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a party or to which any of the properties or assets of any of them is subject, or any
existing applicable law, rule, regulation, judgment, order or decree of any domestic
government, governmental instrumentality or court known to such counsel and having
jurisdiction over the Company or any Major Subsidiary or any of their respective properties;
and no consent, approval, authorization, order, registration or qualification of or with any
such governmental instrumentality or court is required for the issue and sale of the Notes
pursuant to and in accordance with the terms of this Agreement and the Indenture and as
contemplated by the Registration Statement, the Time of Sale Information and the Prospectus,
or the consummation by the Company of the transactions contemplated by this Agreement or the
Indenture, except as have been obtained under the Securities Act and the Trust Indenture Act
and such consents, approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws, or by the rules and regulations of the
Financial Industry Regulatory Authority Inc., in connection with the purchase and
distribution of the Notes by the Underwriters;
(iii) each of the Major Subsidiaries is a corporation duly incorporated, validly
existing and 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
such business is described in the Registration Statement, the Time of Sale Information and
the Prospectus;
(iv) each document filed with the Commission pursuant to the Exchange Act (except for
the reports of experts pertaining to natural resource reserves and the financial statements,
financial schedules and other financial and accounting data, the oil and gas reserve
information and the Statement of Eligibility and Qualification of the Trustee on Form T-1
included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, as to which such counsel need express no opinion), complied
as to form, when so filed, in all material respects with the requirements of the particular
form of the Commission upon which it was filed;
(v) other than as set forth in the Registration Statement, the Time of Sale Information
and the Prospectus, there are no legal or governmental proceedings pending to which the
Company or any Major Subsidiary is a party or of which any property or assets of the Company
or a Major Subsidiary is the subject that are required to be described in the Registration
Statement, the Time of Sale Information and the Prospectus, or that could adversely affect
the consummation of the transactions contemplated by this Agreement; and to such counsels
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
by others; and
(vi) the descriptions in the Registration Statement, the Time of Sale Information and
the Prospectus, of statutes, legal and governmental proceedings and contracts and other
documents are accurate in all material respects and fairly present the information contained
therein.
The opinions to be provided on behalf of the Company shall also contain a statement to
the effect that such counsel has participated in conferences with representatives of the
Company, representatives of the Underwriters and counsel for the
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Underwriters, and with representatives of the Companys independent accountants at
which conferences the contents of the Registration Statement, the Time of Sale Information
and the Prospectus and any amendment and supplement thereto and related matters were
discussed and, although such counsel has not independently verified, is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of the Registration
Statement, the Time of Sale Information, the Prospectus and any amendment or supplement
thereto (except as expressly provided above), no facts have come to such counsels attention
that have caused such counsel to believe that the Registration Statement (including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to
be part of the Registration Statement at the time it became effective), at the time it
became effective, contained any 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, that the Time of Sale Information, at the Time of Sale, contained any 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 the Prospectus or any amendment or supplement thereto as of its date and
the Closing Date contained or contains any untrue statement of a material fact or omitted 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 (in each case above, other than the
financial statements, schedules and related data and other financial or accounting data and
information pertaining to natural resource reserves, as to which such counsel need not
comment).
(e) On the date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall
have furnished to the Underwriters letters, dated the date hereof and the Closing Date, in
form and substance satisfactory to the Underwriters, containing statements and information
of the type customarily included in accountants comfort letters as to financial
information contained in or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus;
(f) (i) Since the date of the Companys latest audited financial statements
incorporated by reference in the Time of Sale Information, the Company shall not have
sustained 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
Time of Sale Information, and (ii) since the respective dates as of which information is
given in the Time of Sale Information there shall not have been any change in the capital
stock or long-term debt of the Company or any change, or any development involving a
prospective change, in or affecting the general affairs, prospects, management, financial
position, stockholders equity or results of operations of the Company otherwise than as set
forth or contemplated in the Time of Sale Information, the effect of which, in any such case
described in clause (i) or (ii), is in the Representatives judgment so material and adverse
as to make it impracticable or inadvisable to proceed with the offering of the Notes for
resale or the delivery of the Notes on the terms and in the manner contemplated in this
Agreement and the Prospectus;
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(g) On or after the earlier of the Time of Sale or the date hereof, (i) no downgrading
shall have occurred in the rating accorded any securities of the Company by any nationally
recognized statistical rating organization, as that term is defined for purposes of
Rule 436(g)(2) under the Securities 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 securities of the Company;
(h) On or after the earlier of the Time of Sale or 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; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State authorities;
(iii) a material disruption in securities settlement, payment or clearance services in the
United States; or (iv) an attack on, outbreak or escalation of hostilities or act of
terrorism 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 clause (iv) in the
Representatives judgment makes it impracticable or inadvisable to proceed with the offering
or the delivery of, or materially impairs the ability of the Underwriters to purchase, hold
or effect resales of, the Notes on the terms and in the manner contemplated by this
Agreement and the Prospectus;
(i) The Company shall have furnished or caused to be furnished to the Underwriters at
the Closing Date certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company herein at and as of
the Closing Date, as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Closing Date, as to the matters set forth in subsections
(f) and (g) of this Section and as to such other matters as the Underwriters may reasonably
request; and
(j) The Notes shall be eligible for clearance and settlement through The Depository
Trust Company.
8. (a) The Company will indemnify and hold harmless each Underwriter, each partner, manager,
director, principal and officer of each Underwriter, and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus (or any amendment or supplement to such documents), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
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(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, subject to
Section 8(c) hereof, the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the indemnity set forth in this Section 8(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Representatives on behalf of the
Underwriters expressly for use in the Registration Statement, any Preliminary Prospectus or
the Prospectus (or any amendment or supplement to such documents), or any Issuer Free
Writing Prospectus.
(b) Each Underwriter, severally but not jointly, agrees to indemnify and hold harmless
the Company, each director and officer of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment or supplement to such documents), or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by the
Representatives on behalf of such Underwriter expressly for use therein.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 8(a) above, counsel to the indemnified parties shall
be selected by the Underwriters, and, in the case of parties indemnified pursuant to
Section 8(b) above, counsel to the indemnified parties shall be selected by the Company,
provided that if it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such
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notice, may assume the defense of such action with counsel chosen by it and approved by
the indemnified parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying party. If
an indemnifying party assumes the defense of such action, the indemnifying parties shall not
be liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 8 (whether or not
the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding 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.
(d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 8(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an indemnifying party
shall not be liable for any settlement of the nature contemplated by Section 8(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such indemnified
party in accordance with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 8 is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to herein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages
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and expenses incurred by such indemnified party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Notes pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Notes pursuant to this Agreement (before deducting expenses but
after deducting the total fee or commission received by the Underwriters ) received by the
Company and the total fee or commission received by the Underwriters bear to the aggregate
initial public offering price of the Notes. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in this
Section 8(e). The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8(e) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 8(e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which
the Notes purchased and resold by it were resold to investors exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission. For purposes of this
Section 8(e), each partner, manager, director, principal and officer of an Underwriter, and
each person, if any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Underwriter; and each director and officer of the Company, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as the Company. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters obligations to contribute as provided in
this Section 8(e) are several and not joint.
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(f) The Underwriters hereby confirm and the Company acknowledges that the statements
made in (i) the fifth paragraph of the text under the caption Underwriting in the
Prospectus concerning the terms of the offering of the Notes by the Underwriters and
(ii) the ninth paragraph of the text under the caption Underwriting in the Prospectus
concerning price stabilization and short positions constitute the only written information
furnished to the Company by the Representatives on behalf of the Underwriters expressly for
use in the Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment or supplement to such documents), or any Issuer Free Writing Prospectus.
9. The respective indemnities, agreements, representations, warranties and other statements of
the Company and the 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,
any partner, manager, director, principal or officer of an Underwriter or any controlling person of
any Underwriter, or the Company or any officer or director of the Company, or any controlling
person of the Company, and shall survive delivery of and payment for the Notes.
10. If for any reason, the Notes are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters for all out-of-pocket expenses approved in
writing by the Underwriters, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of the Notes, but the
Company shall then be under no further liability to the Underwriters except as provided in
Section 5 and Section 8 hereof.
11. If any of the Underwriters shall fail at the Closing Date to purchase the Notes which it
is obligated to purchase under this Agreement (the Defaulted Notes), the remaining
Underwriter(s) (the Non-Defaulting Underwriter(s)) shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements to purchase (alone or together with
any other underwriters) all, but not less than all, of the Defaulted Notes upon the terms herein
set forth. If, however, the Non-Defaulting Underwriter(s) shall not have completed such
arrangements within such 24-hour period, then this Agreement shall terminate without liability on
the part of the Non-Defaulting Underwriter(s).
No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
then the Non-Defaulting Underwriter(s) shall have the right to postpone the Closing Date for a
period not exceeding seven days in order to effect any required changes in the Prospectus or in any
other documents or arrangements.
12. All statements, requests, notices, and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by courier service, mail or facsimile transmission to
them in care of Barclays Capital Inc. at 745 Seventh Avenue, New York, New York 10019, Attention:
Syndicate Registration, Facsimile No. (646) 834-8133; J.P. Morgan
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Securities Inc., 383 Madison Avenue, New York, New York 10179, Attention: High Grade Syndicate
Desk 3rd Floor, Facsimile No. (212) 834-6081; and UBS Securities LLC at 677 Washington
Boulevard, Stamford, Connecticut 06901, Attention: Fixed Income Syndicate; and if to the Company
shall be delivered or sent by courier service, mail or facsimile transmission to it at EOG
Resources, Inc., 1111 Bagby, Sky Lobby 2, Houston, Texas, 77002, Attention: Helen Y. Lim, Vice
President and Treasurer, Facsimile No. (713) 651-6613. 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 Company, the
Underwriters and, to the extent provided in Section 8 and Section 9 hereof, the officers,
directors, partners, managers and principals of the Company and the Underwriters and each person
who controls the Company or the Underwriters, 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 in this Agreement.
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 respective counterparts
shall together constitute one and the same instrument. Facsimile copies of signatures shall
constitute original signatures for all purposes of this Agreement and any enforcement hereof.
-22-
If the foregoing is in accordance with your understanding, please sign and return to us five
counterparts hereof, and upon the acceptance hereof by the Representatives, this letter and such
acceptance hereof shall constitute a binding agreement between each of the Underwriters and the
Company in accordance with its terms.
Very truly yours, EOG RESOURCES, INC. |
||||
By: | /s/ Helen Y. Lim | |||
Name: | Helen Y. Lim | |||
Title: | Vice President and Treasurer |
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof:
BARCLAYS CAPITAL INC.
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
WELLS FARGO SECURITIES, LLC
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
MITSUBISHI UFJ SECURITIES (USA), INC.
DEUTSCHE BANK SECURITIES INC.
SCOTIA CAPITAL (USA) INC.
RBC CAPITAL MARKETS CORPORATION
SG AMERICAS SECURITIES, LLC
BMO CAPITAL MARKETS CORP.
COMERICA SECURITIES, INC.
BNP PARIBAS SECURITIES CORP.
BBVA SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
WELLS FARGO SECURITIES, LLC
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
MITSUBISHI UFJ SECURITIES (USA), INC.
DEUTSCHE BANK SECURITIES INC.
SCOTIA CAPITAL (USA) INC.
RBC CAPITAL MARKETS CORPORATION
SG AMERICAS SECURITIES, LLC
BMO CAPITAL MARKETS CORP.
COMERICA SECURITIES, INC.
BNP PARIBAS SECURITIES CORP.
BBVA SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
By: BARCLAYS CAPITAL INC.
By: | /s/ Paul Bjorneby | |||
Name: | Paul Bjorneby | |||
Title: | Managing Director | |||
By: J.P. MORGAN SECURITIES INC.
By: | /s/ Maria Sramek | |||
Name: | Maria Sramek | |||
Title: | Executive Director | |||
By: UBS SECURITIES LLC
By: | /s/ Scott Whitney | |||
Name: | Scott Whitney | |||
Title: | Managing Director, UBS Securities LLC | |||
By: | /s/ Mark Spadaccini | |||
Name: | Mark Spadaccini | |||
Title: | Associate Director, Debt Capital Markets, UBS Investment Bank | |||
Each acting severally on behalf of itself and the several Underwriters named above
[Signature Page to Underwriting Agreement]
Annex I
Certain Terms of the 2015 Notes:
Title of Notes: 2.95% Senior Notes due 2015
Aggregate Principal Amount of Notes: $500,000,000
Maturity Date: June 1, 2015
Interest Rate: 2.95%
Interest Payment Dates: June 1 and December 1 of each year, commencing December 1, 2010
Record Dates: May 15 and November 15 of each year
Redemption Provisions: Make whole call at any time at the greater of (i) 100% or (ii) a
discount rate of Treasury plus 15 basis points
Certain Terms of the 2020 Notes:
Title of Notes: 4.40% Senior Notes due 2020
Aggregate Principal Amount of Notes: $500,000,000
Maturity Date: June 1, 2020
Interest Rate: 4.40%
Interest Payment Dates: June 1 and December 1 of each year, commencing December 1, 2010
Record Dates: May 15 and November 15 of each year
Redemption Provisions: Make whole call at any time at the greater of (i) 100% or (ii) a
discount rate of Treasury plus 20 basis points
I-1
Annex II
Principal Amount | Principal Amount | |||||||
of 2015 Notes | of 2020 Notes | |||||||
Underwriter | to be Purchased | to be Purchased | ||||||
Barclays Capital Inc. |
$ | 83,334,000 | $ | 83,334,000 | ||||
J.P. Morgan Securities Inc. |
83,333,000 | 83,333,000 | ||||||
UBS Securities LLC |
83,333,000 | 83,333,000 | ||||||
Wells Fargo Securities, LLC |
75,000,000 | 75,000,000 | ||||||
Citigroup Global Markets Inc. |
22,750,000 | 22,750,000 | ||||||
Banc of America Securities LLC |
22,750,000 | 22,750,000 | ||||||
Mitsubishi UFJ Securities (USA), Inc. |
22,750,000 | 22,750,000 | ||||||
Deutsche Bank Securities Inc. |
22,750,000 | 22,750,000 | ||||||
Scotia Capital (USA) Inc. |
11,000,000 | 11,000,000 | ||||||
RBC Capital Markets Corporation |
11,000,000 | 11,000,000 | ||||||
SG Americas Securities, LLC |
11,000,000 | 11,000,000 | ||||||
BMO Capital Markets Corp. |
11,000,000 | 11,000,000 | ||||||
Comerica Securities, Inc. |
11,000,000 | 11,000,000 | ||||||
BNP Paribas Securities Corp. |
11,000,000 | 11,000,000 | ||||||
BBVA Securities Inc. |
6,000,000 | 6,000,000 | ||||||
Morgan Stanley & Co. Incorporated |
6,000,000 | 6,000,000 | ||||||
Goldman, Sachs & Co. |
6,000,000 | 6,000,000 | ||||||
Total |
$ | 500,000,000 | $ | 500,000,000 | ||||
II-1
Annex III
FREE WRITING PROSPECTUSES CONSTITUTING
TIME OF SALE INFORMATION
TIME OF SALE INFORMATION
Free Writing Prospectus dated May 17, 2010.
III-1
Annex IV
Filed Pursuant to Rule 433
Registration No. 333-163947
Free Writing Prospectus Dated May 17, 2010
Registration No. 333-163947
Free Writing Prospectus Dated May 17, 2010
EOG Resources, Inc.
Pricing Term Sheet
Pricing Term Sheet
Issuer:
|
EOG Resources, Inc. | |||
2.95% Senior Notes due 2015 | 4.40% Senior Notes due 2020 | |||
Principal Amount:
|
$500,000,000 | $500,000,000 | ||
Maturity:
|
June 1, 2015 | June 1, 2020 | ||
Coupon:
|
2.95% | 4.40% | ||
Treasury benchmark:
|
2.5% Notes due April 30, 2015 | 3.5% Notes due May 15, 2020 | ||
Treasury yield:
|
2.194% | 3.483% | ||
Re-offer spread:
|
80 bps | 95 bps | ||
Issue Price:
|
99.795% | 99.734% | ||
Yield to maturity:
|
2.994% | 4.433% | ||
Redemption Provisions: |
||||
Make-whole call
|
At any time at the greater of (i) 100% or (ii) a discount rate of Treasury plus 15 basis points | At any time at the greater of (i) 100% or (ii) a discount rate of Treasury plus 20 basis points | ||
CUSIP/ISIN:
|
26875PAF8 / US26875PAF80 | 26875PAE1 / US26875PAE16 | ||
Interest Payment Dates: | June 1 and December 1 commencing December 1, 2010 |
|||
Settlement:
|
T+3; May 20, 2010 | |||
Ratings*:
|
Moodys: A3 (stable outlook) | |||
S&P: A- (stable outlook) | ||||
Bookrunners:
|
Barclays Capital Inc. | |||
J.P. Morgan Securities Inc. | ||||
UBS Securities LLC | ||||
Wells Fargo Securities, LLC | ||||
Co-Managers:
|
Citigroup Global Markets Inc. | |||
Banc of America Securities LLC | ||||
Mitsubishi UFJ Securities (USA), Inc. | ||||
Deutsche Bank Securities Inc. | ||||
Scotia Capital (USA) Inc. | ||||
RBC Capital Markets Corporation | ||||
SG Americas Securities, LLC | ||||
BMO Capital Markets Corp. | ||||
Comerica Securities, Inc. | ||||
BNP Paribas Securities Corp. | ||||
BBVA Securities Inc. | ||||
Morgan Stanley & Co. Incorporated | ||||
Goldman, Sachs & Co. |
* | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and any other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the
IV-1
issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by calling Barclays Capital Inc. at (888) 603-5847, J.P. Morgan Securities Inc. collect at (212)
834-4533 or UBS Securities LLC at (877) 827-6444 (ext. 561-3884).
IV-2
Annex V
LIST OF MAJOR SUBSIDIARIES
EOG Resources Canada Inc.
EOG Resources Trinidad Limited
EOG Resources United Kingdom Limited
V-1