EXHIBIT 4.9
**AMENDMENT TO RIGHTS AGREEMENT**
     AMENDMENT, dated as of January 10, 2000, to the Rights Agreement dated as ofMarch5, 1997 between Nuevo Energy Company, a Delaware corporation (the “Company”),andAmerican Stock Transfer & Trust Company, a New York corporation, as rightsagent (the “RightsAgent”).
     WHEREAS, the Company and the Rights Agent have heretofore executed and enteredinto the Rights Agreement, and, pursuant to the Rights Agreement, the Companyand the Rights Agent may from time to time supplement or amend the RightsAgreement in accordance with the provisions of Section 27 thereof; and
     WHEREAS, all acts and things necessary to make this Amendment a valid agreementaccording to its terms have been done and performed, and the execution anddelivery of this Amendment by the Company and the Rights Agent has been in allrespects duly authorized by the Company and the Rights Agent.
     NOW THEREFORE, in consideration of the foregoing premises and mutualagreements set forth in the Rights Agreement and this Amendment, the partieshereby agree as follows:
**1. Section 1 of the Rights Agreement is hereby amended as follows:**
First, Section 1(a) of the Rights Agreement is hereby amended to read in itsentirety as follows:
     “(a) “Acquiring Person” shall mean any Person (as hereinafter defined) who orwhich, together with all Affiliates (as hereinafter defined) and Associates (ashereinafterdefined) of such Person, shall be the Beneficial Owner (as hereinafterdefined) of securities representing 15% or more of the shares of Common Stockthen outstanding other than as the result of a Qualifying Offer (as hereinafterdefined), but shall not include the Company any Subsidiary (as hereinafterdefined) of the Company, any employee benefit plan of the Company or anySubsidiary of the company or any entity organized, appointed or established bythe Company or any Subsidiary of the Company for or pursuant to the terms ofany such plan. Notwithstanding the foregoing, (i) no Person shall become an“Acquiring Person” as a result of an acquisition of Common Stock by the Companywhich, by reducing the aggregate number of shares of Common Stock outstanding,increases the percentage of the total number of shares of Common Stockoutstanding which are beneficially owned by such Person to 15% or more;provided however, that if a Person shall become the Beneficial Owner of 15% ormore of the Common Stock then outstanding by reason of purchases of CommonStock by the Company and such Person shall   after such share purchases by theCompany, become the Beneficial Owner of additional shares of Common Stocktotaling 1% or more of the shares of Common Stock then outstanding other thanas the result of a Qualifying Offer, then such Person shall constitute an
 

 

“Acquiring Person” and (ii) if the Board of Directors of the Company determinesin good faith that a Person who would otherwise be an Acquiring Person, asdefined pursuant to the foregoing provisions of this paragraph (a), has becomesuch inadvertently and in good faith, and, if requested by the Board ofDirectors, such Person agrees to divest himself of a sufficient number ofshares of Common Stock so that such Person would no longer be an AcquiringPerson, as defined pursuant to the foregoing provisions of this paragraph (a),then such Person shall not be deemed to be an “Acquiring Person” for anypurposes of this Agreement.”
Second, Section 1(h) is hereby deleted.
Third, Sections 1(i) through 1(n) are hereby re-designated as Sections 1(h)through 1(m), respectively.
Fourth, a new Section 1(n) is hereby added to read in its entirety as follows:
     “(n) “Qualifying Offer” shall mean an offer for all outstanding shares ofCommon Stock of the Company which meets all of the following requirements:
     (i) the Person making the offer beneficially owns less than 5% of theoutstanding shares of Common Stock of the Company and has beneficially ownedless than 5% of the outstanding shares of Common Stock of the Company duringthe six-month period preceding the Commencement Date (as defined below);
     (ii) the consideration offered is the same for all holders of shares of CommonStock and is in the form of cash;
     (iii) on or prior to the date that such offer is commenced within the meaningof Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act(the “Commencement Date”), the Person making the offer has, and has provided tothe Company, firm written commitments from responsible financial institutions,which have been accepted by such Person (or one of its Affiliates), to provide,subject only to customary terms and conditions, funds for such offer which,when added to the amount of cash and cash equivalents which such Person thenhas available and has irrevocably committed in writing to the Company toutilize for purposes of such offer, will be sufficient to pay for all sharesof Common Stock outstanding on a fully diluted basis and all related expenses;
     (iv) the offer shall be conditioned upon and shall not be consummated unless,after consummating such offer, such Person, alone or together with any of itsAffiliates, would own 75% of the then outstanding shares of Common Stock of theCompany;
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     (v) the consideration per share being offered pursuant to such offer shall be,on the date of the commencement of the offer, at least equal to the greatestamount of consideration paid for any shares of Common Stock purchased by thePerson or group making the offer within the two-year period prior to theCommencement Date;
     (vi) in addition to the requirements of clause (v) above, the consideration pershare being offered pursuant to such offer shall be, on the date of thecommencement of the offer, at least equal to the greater of: (x) 135 % of thehighest closing price (as described in Section 11(d) hereof) for the CommonStock during the one-year period prior to the Commencement Date or (y) 150% ofthe average closing price (as described in Section 11(d) hereof) for the CommonStock during the 20-day period prior to the Commencement Date;
     (vii) such offer remains open for at least 120 Business Days; provided,however, that (x) if there is any increase in the price of such offer, suchoffer must remain open for at least an additional 20 Business Days after thelast such increase, (y) such offer must remain open for at least 20 BusinessDays after the date that any bona fide alternative offer, whether or not suchoffer is a Qualifying Offer, is made which, in the opinion of a nationallyrecognized investment banking firm designated by the Company, provides forconsideration per share in excess of that provided for in such offer, and (z)such offer must remain open for at least 20 Business Days after the date onwhich such Person reduces the per share price offered in accordance with clause(ix)(y) below; provided further, however, that such offer need not remain open,as a result of this clause (vii), beyond (A) the time which any other offersatisfying the criteria for a Qualifying Offer is then required to be kept openunder this clause (vii), or (B) the scheduled expiration date, as such date maybe extended by public announcement on or prior to the then scheduled expirationdate, of any other tender offer for shares Common Stock with respect to whichthe Board of Directors of the Company has agreed to redeem the Rightsimmediately prior to acceptance for payment of shares of Common Stockthereunder (unless such other offer is terminated prior to its expirationwithout any shares of Common Stock having been purchased thereunder);
     (viii) such offer is accompanied by a written opinion, in customary form, of anationally recognized investment banking firm designated by the Company,stating that the price to be paid to holders of Common Stock pursuant to theoffer is fair from a financial point of view to such holders; and
     (ix) prior to the Commencement Date, such Person or group makes an irrevocablewritten commitment to the Company (x) to consummate a transaction ortransactions promptly upon the completion of such offer, whereby all shares ofCommon Stock not purchased in such offer will be acquired for the same all cash
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consideration and at the same price per share paid in such offer, subject onlyto the condition that the Board of Directors of the Company shall have grantedany approvals required to enable such Person to consummate such transaction ortransactions following consummation of such offer without obtaining the vote ofany other stockholder, (y) that such Person will not make any amendment to suchoffer which reduces the per share price offered (other than a reduction toreflect any dividend declared by the Company after the commencement of suchoffer or any material change in the capital structure of the Company initiatedby the Company after the commencement of such offer, whether by way ofrecapitalization, reorganization, repurchase or otherwise), changes the form ofconsideration offered, reduces the number of shares being sought or which isotherwise in any other respect materially adverse to the Company’s stockholders,and (z) that neither such Person nor any of its Affiliates or Associates willmake any other offer for any equity securities of the Company for a period ofsix months after the commencement of the original offer if such original offerdoes not result in the tender of the number of shares Common Stock required tobe purchased pursuant to clause (iv) above, unless another all cash tenderoffer by another party for all outstanding shares of Common Stock is commenced(A) at a consideration per share in excess of that provided for in suchoriginal offer (in which event any new offer by such Person or any of itsAffiliates or Associates must be at a consideration no less than that providedfor in such higher offer), or (B) with the approval of the Board of Directorsof the Company (in which event any new offer by such Person or any of itsAffiliates or Associates must be at a consideration no less than that providedfor in such approved offer).”
**2. Section 7(a) of the Rights Agreement is hereby amended to read in itsentirety as follows:**
     ***“Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.***(a)The registered holder of any Rights Certificate may exercise the Rightsevidenced thereby (except as otherwise provided herein) in whole or in part atany time after the Distribution Date upon surrender of the Rights Certificate,with the form of election to purchase and the certificate on the reverse sidethereof duly executed, to the Rights Agent at the principal office or officesof the Rights Agent designated for such purpose, together with the aggregatePurchase Price with respect to the total number of one-hundredths of a share ofPreferred Stock (or other securities or property, as the case may be) as towhich the Rights are exercised, at or prior to the earlier of (i) the Close ofBusiness on the tenth anniversary of the Record Date, (ii) the time at whichthe Rights are redeemed as provided in Section 24 hereof, (iii) the time atwhich the Board of Directors of the Company orders the exchange of Rightspursuant to paragraph (a) of Section 23 or (iv) the consummation of atransaction contemplated by Section 13(f) hereof (the earlier of (i), (ii),(iii) and (iv) is herein referred to as the “Expiration Date”). Subject toadjustment as provided herein, each Right shall initially be exercisable forone one-hundredth of a share of PreferredStock.”
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**3. Section 11(a)(iii) of the Rights Agreement is hereby amended as follows:**
     (a) The first sentence of Section 11 (a)(iii) is amended by deleting thefollowing:
“, acting by resolution of its Board of Directors (which resolution shall beeffective only with the concurrence of a majority of the Continuing Directors),may, and,”
and replacing such deleted language with the following:
“shall,”
     (b) The first sentence of Section 11(a)(iii) is further amended by deletingthe word “shall” immediately preceding clause (A).
     (c) The first sentence of Section 11 (a)(iii) is further amended by deleting,in the two places where such quote appears, the following parenthetical:
“(with the concurrence of a majority of the Continuing Directors)”
     (d) The second sentence of Section 11 (a)(iii) is amended by deleting thefollowing parenthetical:
“(which resolution shall be effective only with the concurrence of a majorityof theContinuing Directors)”
**4. Section 13 of the Rights Agreement is hereby amended as follows:**
First, Section 13(a) is hereby amended to read in its entirety as follows:
     ***“Section 13. Consolidation, Merger or Sale or Transfer of Assets or EarningPower.*** (b) In the event that, at any time after a Stock Acquisition Date,directly or indirectly, (x) the Company shall consolidate with, or merge withand into, any other Person (other than a Subsidiary of the Company in atransaction that complies with Section 11(o) hereof) and the Company shall notbe the continuing or surviving corporation of such consolidation or merger, (y)any Person shall consolidate with the Company or merge with and into theCompany and the Company shall be the continuing or surviving corporation ofsuch merger and, in connection with such merger, all or part of the shares ofCommon Stock shall be changed into or exchanged for stock or other securitiesof any other Person or cash or any other property, or (z) the Company shallsell, mortgage or otherwise
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transfer (or one or more of its Subsidiaries shall sell, mortgage or otherwisetransfer), in one or more transactions, assets or earning power aggregatingmore than 50% of the assets or earning power of the Company and itsSubsidiaries (taken as a whole) to any other Person (other than the Company orone or more of its wholly-owned Subsidiaries in one or more transactions eachof which complies with Section 11(o) hereof) (each, a “Section 13 Event”),then, and in each such case (except as provided in Section 13(f) hereof),proper provision shall be made so that (i) each holder of a Right, subject toSection 7(e) hereof, shall have the right to receive, upon the exercise thereofat the then current Purchase Price in accordance with the terms of thisAgreement, such number of shares of validly authorized and issued, fully paid,non-assessable, and freely tradable shares of Common Stock of the principalparty (as hereinafter defined), free and clear of liens, rights of call orfirst refusal, encumbrances or other adverse claims, as shall be equal to theresult obtained by (1) multiplying the then current Purchase Price by thenumber of one-hundredths of a share of Preferred Stock for which a Right isthen exercisable (without taking into account any adjustment previously madepursuant to Section 11(a)(ii) hereof) and (2) dividing that product by 50% ofthe current market price per share of the Common Stock of such principal party(determined pursuant to Section 11(d) hereof) on the date of consummation ofsuch consolidation, merger, sale or transfer; (ii) such Principal Party shallthereafter be liable for, and shall assume, by virtue of such consolidation,merger, sale or transfer, all the obligations and duties of the Companypursuant to this Agreement; (iii) the term “Company” shall thereafter be deemedto refer to such principal party, it being specifically intended that theprovisions of Section 11 hereof shall apply to such principal party; and (iv)such principal party shall take such steps (including, but not limited to, thereservation of a sufficient number of shares of its Common Stock in accordancewith Section 9 hereof) in connection with such consummation as may be necessaryto assure that the provisions hereof shall thereafter be applicable, as nearlyas reasonably may be, in relation to its shares of Common Stock thereafterdeliverable upon the exercise of the Rights.”
Second, a new Section 13(f) is hereby added to read in its entirety as follows:
     “(f) Notwithstanding anything in this Agreement to the contrary, Section 13shall not be applicable to a transaction described in subparagraphs (x) and (y)of Section 13(a) if: (i) such transaction is consummated with a Person orPersons who acquired shares of Common Stock pursuant to a Qualifying Offer (ora wholly owned Subsidiary of any such Person or Persons); (ii) the price pershare of Common Stock offered in such transaction is not less than the priceper share of Common Stock paid to all holders of Common Stock whose shares werepurchased pursuant to such Qualifying Offer; and (iii) the form ofconsideration offered in such transaction is the same all cash considerationpaid pursuant to such Qualifying Offer. Upon consummation of any suchtransaction contemplated by this Section 13(f), all Rights hereunder shallexpire.”
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**5. Section 24 of the Rights Agreement is hereby amended as follows:**
First, Section 24(a) is hereby amended as follows:
     (a) The first sentence of Section 24(a) is amended by deleting the followingparenthetical:
“(which resolution shall, if adopted following the Stock Acquisition Date, beeffective only with the concurrence of a majority of the Continuing Directorsand only if the Continuing Directors constitute a majority of the number ofdirectors then in offices)”
     (b) The first sentence of Section 24(a) is further amended by deleting thefollowing:
“the Close of Business on the tenth Business Day following”
     (c) The first sentence of Section 24(a) is further amended by deleting thefollowing”
“; PROVIDED, HOWEVER, that the Board of Directors of the Company may act onlywith the concurrence of a majority of the Continuing Directors in authorizingredemption of the rights on or after the date of a change (resulting from aproxy or consent solicitation effected in compliance with applicable law andthe requirements of any national securities exchange on which the Common Stockof the Company is listed) in a majority of the directors in office at thecommencement of such solicitation if any Person who is a participant in suchsolicitation has stated (or, if upon the commencement of such solicitation, amajority of the Board of Directors of the Company has determined in good faith)that such Person (or any of its Affiliates or Associates) intends to take, ormay consider taking, any action which would result in such Person becoming anAcquiring Person or which would cause the occurrence of a triggering event”
Second, Section 24(b) is hereby deleted.
Third, Section 24(c) is hereby re-designated as Section 24(b) and allreferences in the Rights Agreement to Section 24(c) are hereby amended to read24(b).
Fourth, Section 24(d) is hereby amended as follows:
     (a) The first Sentence of Section 24(d) is amended by deleting the followingparenthetical:
“(with, if required, the concurrence of a majority of the ContinuingDirectors)”
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     (b) The first Sentence of Section 24(d) is further amended by deleting thefollowing:
“with the concurrence of a majority of the Continuing Directors,”
     (c) Section 24(d) is hereby re-designated as Section 24(c) and all referencesin the Rights Agreement to Section 24(d) are hereby amended to read 24(c).
**6. Section 27 of the Rights Agreement is hereby amended as follows:**
     (a) The first sentence of Section 27 is amended by inserting “(i)” prior to thelanguage which reads “adversely affect the interests of the holders of theRights”
     (b) The first sentence of Section 27 is further amended by deleting thefollowing:
“and only if approved by the Continuing Directors”
and replacing such deleted language with the following:
“, (ii) cause this Agreement to become amenable other than in accordance withthis sentence or (iii) cause the Rights to become redeemable”
**7. Exhibit C of the Rights Agreement is hereby amended as follows:**
First, the First sentence of Section 8. Redemption is amended by deleting thefollowing:
“close of business on the tenth business day following a”
Second, the First sentence of Section 8. Redemption is amended by deleting thefollowing parenthetical:
“(or of certain “Continuing Directors”, as hereinafter defined, if suchresolution is adopted after a Stock Acquisition Date)”
Third, the First Sentence of Section 11. Amendment of Rights Agreement isamended by deletingthe following:
“;provided, further that from and after the time that any person becomes anAcquiring Person, the Rights Agreement shall not be supplemented or amended inany manner without the approval of certain Directors who were elected at aregularly scheduled, annual meeting of the Company or Directors appointed bysuch Directors so elected (“Continuing Directors”)”
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be dulyexecuted as of the date first written above.
**NUEVO ENERGY COMPANY**     By: /s/ DOUGLAS L. FOSHEE       Douglas L. Foshee, Chairman of theBoard of Directors, President andChief Executive Officer  
**AMERICAN STOCK TRANSFER & TRUST COMPANY**     By: /s/ HERBERT J. LEMMER      Name: HERBERT J. LEMMER      Title: VICE PRESIDENT      
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