SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 9)
EEX Corporation
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
26842V207
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(CUSIP Number)
Kathryn H. Smith, 114 John St. Greenwich, Ct 06831 (203) 861-7525
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 17, 2002
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(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box [_].
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 2 Pages)
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
CUSIP No.26842V207 13D Page 2 of 2 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Richard C. McKenzie, Jr.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES 7,476,400
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 129,300
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 7,476,400
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PERSON WITH 10 SHARED DISPOSITIVE POWER
WITH 129,300
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,605,700
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9%
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14 TYPE OF REPORTING PERSON*
IN
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This Amendment No. 9 amends and restates in its entirety the
Schedule 13D, dated as of October 10, 2001, as amended, filed by Richard C.
McKenzie, Jr. ("Mr. McKenzie") with respect to the shares of common stock,
par value $0.01 per share (the "Common Stock") of EEX Corporation, a Texas
corporation (the "Company").
Item 1. Security and Issuer.
The equity security to which this statement relates is the Common
Stock. The Company's principal executive offices are located at 2500 City
West Blvd., Houston, Texas 77042.
Item 2. Identity and Background
This statement is filed by Richard C. McKenzie, Jr.. Mr. McKenzie
is a professional investor. His address is 118 John Street, Greenwich,
Connecticut 06831. Mr. McKenzie is a United States citizen.
During the past five years, Mr. McKenzie has not been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was not and is not subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The shares of Common Stock set forth in this Schedule 13D were
purchased for an aggregate price of $14,993,140. Mr. McKenzie's personal
funds were used to purchase the shares held in his individual retirement
accounts (as described in Item 5). With respect to the shares held in trust
(as described in Item 5), the working capial of the trusts used for such
purchase was provided by Mr. McKenzie.
Item 4. Purpose of the Transaction.
All of the securities enumerated in Item 5 (the "Securities") were
acquired for investment purposes. Mr. McKenzie intends to review from time
to time the Company's business affairs and financial position. Based on
such evaluation and review, as well as general economic and industry
conditions existing at the time, Mr. McKenzie may consider from time to
time various alternative courses of action. Such actions may include,
subject to the Agreement referred to in Item 6 (so long as it is
applicable), the acquisition of additional shares of Common Stock through
open-market purchases, privately negotiated transactions, a tender or
exchange offer or otherwise.
Alternatively, depending on Mr. McKenzie's evaluation and review
of the Company, as well as general economic and industry conditions
existing at the time, Mr. McKenzie may elect to sell all or a portion of
the Securities in the open market, in privately negotiated transactions,
through a public offering or otherwise.
In the past, Mr. McKenzie has had discussions with the Company
regarding the possibility of lending money to the Company or purchasing
preferred stock. Those discussions have terminated.
Except as set forth above, Mr. McKenzie does not have any plans or
proposals which would relate to or result in any of the transactions
described in subparagraphs (a) through (j) of Item 4 on Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As of May 22, 2002, Mr. McKenzie beneficially owned 7,605,700
shares of Common Stock. These shares are comprised of (i) 4,558,100 shares
held in Mr. McKenzie's retirement accounts, through two custodians, (ii)
2,918,300 shares held by Mr. McKenzie as trustee for the Richard C.
McKenzie, Jr. 1997 Trust (the "1997 Trust"), of which Mr. McKenzie is also
a beneficiary, (iii) 50,000 shares held by Mr. McKenzie and his wife,
Margaret Byrne McKenzie, as co-trustees of the Charitable Lead Annuity
Trust 2000 (the "2000 Trust") and (iv) 79,300 shares directly held by Mr.
McKenzie and his wife, Margaret Byrne McKenzie, as co-trustees of the
Charitable Lead Annuity Trust 2001 (the "2001 Trust").
(b) Mr. McKenzie has the sole power to vote and dispose of
7,476,400 shares of Common Stock, comprised of the shares held in his
individual retirement accounts and the shares held as trustee for the 1997
Trust. Mr. McKenzie and his wife, Margaret Byrne McKenzie, are co-trustees
of the 2000 Trust and 2001 Trust, and they share power to vote and dispose
of the 129,300 shares of Common Stock held in the aggregate by such trusts.
(c) Attached hereto as Exhibit 1 is a schedule of purchases and
sales of Common Stock by Mr. McKenzie from and after July 1, 2001, which is
incorporated herein by reference.
(d) - (e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
In connection with the discussions between Mr. McKenzie and the
Company regarding a potential investment in the Company, Mr. McKenzie and
the Company entered into a letter agreement, dated March 11, 2002 (the
"Agreement"). The Agreement provides that Mr. McKenzie shall keep
confidential information regarding the Company provided to him in
connection with the discussions, and shall return all such information upon
request. During the term of the Agreement, Mr. McKenzie may not, without
invitation by the Company's Board of Directors, purchase any securities of
the Company or take certain other actions with respect to the Company.
The Agreement will terminate no later than October 11, 2002.
A copy of the Agreement and the amendment thereto are filed
herewith as Exhibits 2 and 3, respectively. This summary description of the
Agreement, as amended, does not purport to be complete and is qualified in
its entirety by reference to the Agreement and the amendment thereto, which
are incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
The following documents are each incorporated by reference herein:
1. Schedule of Purchases and Sales of Common Stock.
2. Letter Agreement between Richard C. McKenzie, Jr. and EEX
Corporation, dated March 11, 2002.
3. Amendment to Letter Agreement between Richard C. McKenzie, Jr.
and EEX Corporation, dated April 17, 2002.
SIGNATURE
After reasonable inquiry and to the best of his or her knowledge
and belief, each of the persons below certifies that the information set
forth in this statement is true, complete and correct.
Dated: June 5, 2002
Richard C. McKenzie, Jr.
/s/ Richard C. McKenzie, Jr.
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Exhibit 1.
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Number of Number of
shares Shares Price of
Name Date Acquired Sold Acquisition/Sale
-------------------------------- ------------ ------------ ----------- ------------------
Richard C. McKenzie, Jr. (IRA 7/26/01 100,000 238,000.00
Accounts)
7/28/01 100,000 238,000.00
7/31/01 7,900 24,153.43
8/1/01 25,000 75,747.45
9/7/01 171,000 413,717.40
9/10/01 50,000 115,995.00
9/19/01 100,000 183,500.00
9/20/01 50,000 95,200.00
9/20/01 50,000 92,500.00
9/21/01 50,000 89,350.00
9/21/01 50,000 83,250.00
9/26/01 26,900 35,389.64
10/2/01 150,000 183,000.00
10/3/01 100,000 125,500.00
10/4/01 50,000 61,000.00
10/18/01 29,600 46,516.40
10/19/01 143,200 243,640.48
10/23/01 13,200 19,532.04
10/24/01 50,700 75,603.84
10/25/01 17,700 27,877.50
10/26/01 97,500 164,531.25
10/29/01 40,000 71,400.00
10/31/01 25,000 42,450.00
11/5/01 450,000 729,000.00
11/13/01 1,000 1,650.00
11/15/01 62,100 93,025.80
11/16/01 99,200 155,644.80
11/20/01 33,500 56,996.90
11/21/01 14,500 24,940.00
12/3/01 100,800 173,154.24
12/4/01 13,900 23,917.73
12/5/01 150,000 280,515.00
12/11/01 35,000 57,400.00
12/12/01 85,000 137,904.00
12/17/01 16,000 27,200.00
12/18/01 113,400 195,399.54
12/19/01 39,800 68,105.76
12/20/01 160,000 274,992.00
12/21/01 128,200 225,849.94
12/26/01 14,300 27,456.00
12/28/01 65,000 124,800.00
12/31/01 55,900 102,626.81
1/2/02 2,000 3,600.00
1/10/02 100,000 222,000.00
1/23/02 16,600 35,852.68
1/24/02 63,400 140,158.38
1/25/02 20,000 45,740.00
1/28/02 83,500 181,211.70
2/4/02 5,600 11,872.00
2/5/02 125,000 273,550.00
2/6/02 29,000 64,139.30
2/14/02 130,000 291,005.00
2/15/02 14,000 31,080.00
2/19/02 45,000 102,069.00
2/22/02 100,000 177,000.00
3/4/02 25,000 54,250.00
3/5/02 30,000 65,016.00
3/6/02 36,500 76,715.70
3/7/02 15,000 33,300.00
3/8/02 14,000 29,680.00
Richard C. McKenzie, Jr. as
trustee of the Richard C.
McKenzie, Jr. 1997 Revocable
Trust 7/31/01 72,000 216,936.00
8/1/01 35,000 105,000.00
8/2/01 5,100 15,555.00
8/14/01 100,000 277,000.00
8/15/01 21,000 63,239.40
9/7/01 100,000 239,500.00
9/19/01 100,000 194,000.00
9/25/01 100,000 147,000.00
9/27/01 1,000,000 1,211,500.00
9/28/01 216,200 278,573.70
11/19/01 90,500 146,546.65
11/27/01 35,000 62,440.00
12/6/01 25,000 45,500.00
12/7/01 77,000 136,290.00
12/10/01 65,600 113,081.28
12/13/01 41,500 67,155.30
12/14/01 4,300 6,966.00
2/7/02 100,000 211,000.00
2/8/02 275,000 588,197.50
2/12/02 11,500 25,366.70
2/13/02 9,800 21,623.70
2/25/02 111,000 190,231.80
2/26/02 24,200 44,044.00
2/27/02 33,500 66,571.20
Richard C. McKenzie, Jr, as
trustee of the 2000
Charitable Lead Trust 2/01/02 50,000 108,400.00
Richard C. McKenzie, Jr, as
trustee of the 2001 Charitable
Lead Trust 2/05/02 79,300 170,495.00
Exhibit 2.
[EEX Corporation Logo]
EEX Corporation-2500 CityWest Blvd., Suite 1400-Houston, Texas 77042-
Phone 713-243-3106
March 11, 2002
Richard C. McKenzie, Jr.
118 John Street
Greenwich, CT 06831
Gentlemen:
In connection with discussions regarding a potential investment
(the "Transaction") by Richard C. McKenzie, Jr. ("McKenzie") in EEX
Corporation ("EEX"), EEX is willing to disclose to McKenzie certain
information with respect to EEX, including material nonpublic information,
on the terms set forth herein. For purposes of this letter agreement, the
term "Information" shall include all information about EEX and the
Transaction furnished to McKenzie or any of his Representatives (as defined
herein) by EEX or any of its officers, directors, employees, agents and
affiliates, whether before or after the date hereof, and all reports,
analyses, compilations, data, studies and other materials (in whatever form
maintained, whether documentary, computer storage or otherwise) prepared by
McKenzie or his representatives containing or based, in whole or in part,
on any such information.
1. As a condition to the disclosure of Information by EEX, McKenzie
agrees (i) to keep the Information confidential, (ii) to utilize
the Information solely for the purpose of evaluating the
Transaction, (iii) not to disclose any Information to any persons
other than McKenzie's employees, agents, affiliates and advisors
(collectively "Representatives") who are directly working on or
who are consulted in connection with this matter, and (iv) not to
disclose that he is in discussions with EEX or the nature of any
discussions.
2. The Information will not be deemed to include information that (i)
is already in the possession of McKenzie, other than in connection
with this matter, (ii) is or becomes available in the public
domain, other than as a result of an unauthorized disclosure by
McKenzie, or (iii) is not acquired from EEX or any other person
who is subject to a confidentiality agreement with EEX. McKenzie
understands and agrees that the Information will identify certain
offshore blocks as being acquired or to be acquired as a result of
certain plays being pursued by EEX. Notwithstanding the first
sentence of this Paragraph 2, McKenzie shall keep confidential the
identity of these offshore blocks and their relationship to plays
being pursued by EEX. Disclosure of Information by McKenzie will
not be deemed to be a breach of this letter agreement if such
disclosure is made with the consent of EEX or pursuant to a
subpoena or order issued by a court of competent jurisdiction or
by a judicial or administrative or legislative body or committee;
provided that, upon receipt by McKenzie of any subpoena or order
covering Information, McKenzie will promptly notify EEX of such
subpoena or order. McKenzie shall be liable for breaches of this
letter agreement by its Representatives.
3. McKenzie further agrees that he will, upon the request of EEX,
promptly deliver to EEX all Information provided by EEX to
McKenzie, including all copies, reproductions and extracts thereof
in its possession or in the possession of any of its
Representatives, and, upon the request of EEX, McKenzie and his
Representatives will destroy all other documents or records
prepared by McKenzie or its Representatives that are based on,
derived from or otherwise reflect the Information.
4. In addition, McKenzie hereby acknowledges that securities of EEX
are publicly traded and that it is a violation of federal and
state securities laws to purchase or sell such securities if an
entity or person possesses material nonpublic information. In
consideration of EEX's providing McKenzie with Information,
McKenzie hereby agrees that, during the term of this Agreement, he
will not, and will cause his affiliates and associates (as defined
in Rule 12b-2 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) and the officers and
directors of any of the foregoing not to, singly or as party of a
"partnership, limited partnership, syndicate or other group"
(within the meaning of Section 13(d)(3) of the Exchange Act),
directly or indirectly, through one or more Intermediaries or
otherwise, except upon invitation of the Board of Directors of
EEX, (i) purchase, acquire, or offer or agree to purchase, or
acquire, any securities of EEX; (ii) make, or in any way
participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are defined or used in Regulation 14A
under the Exchange Act) or become a "participant" in any "election
contest" (as such terms are defined or used in Rule 14a-11 of the
Exchange Act) with respect to EEX; (iii) seek to advise or
influence any person (within the meaning of Section 13(d)(3) of
the Exchange Act) with respect to the voting of any securities of
EEX; (iv) initiate, propose or otherwise solicit partners or other
security holders for the approval of one or more proposals with
respect to EEX as described in Rule 14a-8 under the Exchange Act;
(v) acquire or affect the control of EEX or directly or indirectly
participate in or encourage the formation of any "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) which owns or
seeks to acquire beneficial ownership of securities of EEX or to
affect control of EEX; (vi) otherwise act, directly or indirectly,
alone or in concert with others, to seek to control or influence
in any matter the management, policies or affairs of EEX, or
propose or seek to effect any form of business combination
transaction of or with respect to EEX or any restructuring,
recapitalization or similar transactions thereof; or (vii)
instigate or encourage any third party to do any of the foregoing.
McKenzie hereby acknowledges and agrees that any violation by him
at any time of the foregoing provisions of this paragraph shall
conclusively be deemed to have been made via an improper use of
the Information in violation of the provisions of this letter
agreement. In addition, McKenzie acknowledges and agrees that he
shall be responsible for any breach of the federal or state
securities laws that results from his violation of the provisions
of this paragraph.
5. Certain of the Information furnished to McKenzie is based upon
data acquired through the use of certain scientific techniques
associated with oil and gas exploration and production activities
and, as such, should not be taken as a statement of fact. Oil and
gas exploration and production activities inherently involve
substantial risk and expense. McKenzie acknowledges that he is (i)
able to bear the economic risk of any investment he might decide
to make with respect to the Transaction, (ii) capable of
evaluating the merits and risks of such an investment, and (iii)
acting solely for his own account in evaluating a possible
business arrangement with respect to the Transaction.
6. McKenzie and EEX agree that unless and until a definitive
agreement between McKenzie and EEX with respect to the Transaction
has been executed and delivered, neither McKenzie nor EEX will be
under any legal obligation of any kind whatsoever with respect to
the Transaction. McKenzie acknowledges that EEX does not make any
representations or warranties (express or implied) as to the
accuracy or completeness of the Information and that any specific
representations or warranties which may be made in connection with
the Transaction will only be those specific representations and
warranties in a definitive agreement, when, as and if it is
executed and subject to any limitations or restrictions as may be
specified in such definitive agreement.
7. McKenzie acknowledges that EEX would suffer irreparable damage
upon any breach of this letter agreement by McKenzie or any of its
Representatives, and agrees that EEX shall be entitled to
equitable relief, in addition to any other available remedies, in
connection with any actual or threatened breach of this letter
agreement by McKenzie or any of its Representatives, and that no
showing of actual damage or posting of any bond or other security
shall be required in connection therewith.
8. The interpretation and enforcement of this letter agreement shall
be governed by the laws of the State of Texas, without reference
to the conflict of law principles thereof.
9. This letter agreement shall be construed neutrally in accordance
with its plain meaning, rather than in favor of or against one
party or the other, inasmuch as both parties have been represented
by (or have been given the opportunity to be represented by)
independent counsel, each of whom has had a full opportunity to be
heard.
10. In the event that any provision or portion of this letter
agreement is determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this
letter agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by
applicable law.
11. Any assignment of this letter agreement by either party without
the prior written consent of the other party shall be void. The
prevailing party shall be entitled to recover reasonable
attorney's fees and expenses incurred in connection with the
enforcement of this letter agreement.
12. This letter agreement contains the entire agreement between
McKenzie and EEX concerning the confidentiality of Information and
the other matters addressed herein, and no modification of this
letter agreement or waiver of the terms and conditions hereof
shall be binding upon McKenzie or EEX, unless approved in writing
by each of McKenzie and EEX. This letter agreement shall be
binding upon and shall inure to the benefit of each party hereto.
13. This letter agreement and all obligations created hereunder shall
expire upon the earlier to occur of (i) the closing of the
Transactions contemplated by this agreement or (ii) two years from
the date hereof.
If you concur that this letter agreement accurately sets forth our
binding agreement of confidentiality and the other matters addressed
herein, please so indicate by signing on the space below.
Sincerely,
EEX CORPORATION
By: /s/ Thomas M. Hamilton
------------------------------
Name: Thomas M. Hamilton
Title: Chairman and President,
Chief Executive Officer
Accepted and Agreed as of the date first
Written above:
Richard C. McKenzie, Jr.
/s/ Richard C. McKenzie, Jr.
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Exhibit 3.
[EEX Corporation Logo]
EEX Corporation-2500 CityWest Blvd., Suite 1400-Houston, Texas 77042-
Phone 713-243-3106
April 17, 2002
Richard C. McKenzie, Jr.
118 John Street
Greenwich, CT 06831
Dear Mr. McKenzie:
EEX Corporation ("EEX") and Richard C. McKenzie, Jr. ("McKenzie")
wish to amend the Confidentiality Agreement dated March 11, 2002 ("the
Agreement"). EEX and McKenzie agree that Paragraph 13 of the Agreement is
deleted in its entirety and the following substituted therefore:
13. This letter agreement and all obligations created hereunder
shall expire upon the earlier to occur of (i) the closing of the
Transaction contemplated by this agreement or (ii) six months from the date
hereof.
If you are in agreement with the above please sign in the space
provided below and return one copy of this letter to the undersigned for
our files.
Sincerely,
/s/ Richard S. Langdon
-----------------------------------
Richard S. Langdon
Executive Vice President &
Chief Financial Officer
AGREED AND ACCEPTED
this 17th day of April, 2002
/s/ Richard C. McKenzie
----------------------------------
RICHARD C. McKENZIE, JR.