exv4w1






Exhibit 4.1




Amendment to Rights Agreement




          This Amendment to the Rights Agreement between Mariner Energy, Inc., a Delaware
corporation (the “Company”), and Continental Stock Transfer & Trust Company, as Rights
Agent (the “Rights Agent”), dated as of October 12, 2008 (the “Rights Agreement”)
is hereby adopted and dated as of April 14, 2010.




          WHEREAS, the Company and the Rights Agent entered into the Rights Agreement specifying the
terms of the Rights (as defined therein);




          WHEREAS, Section 27 of the Rights Agreement permits the Company to amend the Rights Agreement
so long as the Rights are then redeemable, and Section 23 of the Rights Agreement provides that the
Board of Directors of the Company may redeem the Rights at any time before a Person becomes an
Acquiring Person;




          WHEREAS, no Person is currently an Acquiring Person, and the Rights are currently redeemable;




          WHEREAS, the Company desires to amend the Rights Agreement in accordance with Section 27 of
the Rights Agreement;




          WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger, dated as of April
14, 2010 (the “Merger Agreement”), by and among the Company, Apache Corporation, a Delaware
corporation (“Apache”), and ZMZ Acquisitions LLC, a Delaware limited liability company
(“Merger Sub”);




          WHEREAS, the Board of Directors of the Company has determined it advisable and in the best
interest of its stockholders to amend the Rights Agreement to enable the Company to enter into the
Merger Agreement and consummate the transactions contemplated thereby without causing Apache or any
of its subsidiaries to become an “Acquiring Person” (as defined in the Rights Agreement).




          NOW, THEREFORE, in consideration of the premises and mutual agreements set forth herein and in
the Rights Agreement, the parties hereby agree as follows:




          SECTION 1. DEFINITIONS. Capitalized terms used and not otherwise defined herein shall have
the meaning assigned to such terms in the Rights Agreement.




          SECTION 2. AMENDMENTS TO RIGHTS AGREEMENT. The Rights Agreement is hereby amended as set
forth in this Section 2.





     (a) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is
amended to add the following sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, none of Apache,
Merger Sub or any Affiliate or Associate of either of them shall













 






be deemed to be an Acquiring Person, either individually or collectively, solely as a
result of any or all of the Merger Events.”




     (b) The definition of “Distribution Date” in Section 1 of the Rights Agreement is
amended to add the following sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as the result of any or all
of the Merger Events.”




     (c) The definition of “Flip-In Event” in Section 1 of the Rights Agreement is amended
to add the following sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, none of the
Merger Events shall be a Flip-In Event.”




     (d) The definition of “Flip-Over Event” in Section 1 of the Rights Agreement is amended
to add the following sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, none of the
Merger Events shall be a Flip-Over Event.”




     (e) The definition of “Stock Acquisition Date” in Section 1 of the Rights Agreement is
amended to add the following sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the result
of any or all of the Merger Events.”




     (f) The definition of “Expiration Date” in Section 1 of the Rights Agreement is amended
to replace the words “and (iv)” with “, (iv)” and to add at the end thereof the words “and
(v) the Effective Time (as such term is defined in the Merger Agreement) of the Merger (as
such term is defined in the Merger Agreement).”




     (g) The following definitions shall be added to Section 1 of the Rights Agreement:




“Apache” shall mean Apache Corporation, a Delaware corporation.




“Merger Agreement” shall mean the Agreement and Plan of Merger dated as of
April 14, 2010 by and among the Company, Apache and Merger Sub.




“Merger Events” shall mean (i) the announcement of the Merger (as such term
is defined in the Merger Agreement), (ii) the execution and delivery of the
Merger Agreement, (iii) the conversion of Common Stock into the
right to receive the Merger Consideration (as such term is defined in the
Merger Agreement) in accordance with Article I of the Merger Agreement



2









 






and (iv) the consummation of the Merger (as such term is defined in the Merger
Agreement) or any other transaction contemplated by the Merger Agreement.




“Merger Sub” shall mean ZMZ Acquisitions LLC, a Delaware limited liability
company.




     SECTION 3. MISCELLANEOUS.




     (a) The term “Agreement” as used in the Rights Agreement shall be deemed to refer to
the Rights Agreement as amended hereby.




     (b) The foregoing amendment shall be effective as of the date first above written, and,
except as set forth herein, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby. Without limiting the foregoing, the Rights Agent
shall not be subject to, nor required to interpret or comply with, or determine if any
Person has complied with, the Merger Agreement, even though reference thereto may be made in
this Amendment and the Rights Agreement.




     (c) This Amendment may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all for which together shall constitute one and the same
instrument.




     (d) This Amendment shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance with the laws
of such State applicable to contracts to be made and performed entirely within such State.




     (e) The undersigned officer of the Company, as an appropriate officer of the Company,
(i) hereby certifies pursuant to Section 27 of the Rights Agreement that this Amendment is
in compliance with the terms of such Section 27 and (ii) hereby directs the Rights Agent to
execute and deliver this Amendment.



3









 






	 	 	IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed
as of the day and year first above written.





	 	 	 	 	 
	 	MARINER ENERGY, INC.

 	 
	 	By:  	/s/ Jesus G. Melendrez
 	 
	 	 	Jesus G. Melendrez 	 
	 	 	Senior Vice President,

Chief Commercial Officer,

Acting Chief Financial Officer

and Treasurer 	 
	 
	 	CONTINENTAL STOCK TRANSFER & TRUST COMPANY

 	 
	 	By:  	/s/ John W. Comer, Jr.
 	 
	 	 	Name:  	John W. Comer, Jr. 	 
	 	 	Title:  	Vice President 	 
	 




4