exv4w9



 





EXHIBIT 4.9




AMENDMENT TO RIGHTS AGREEMENT




     AMENDMENT, dated as of January 10, 2000, to the Rights Agreement dated as of
March
5, 1997 between Nuevo Energy Company, a Delaware corporation (the “Company”),
and
American Stock Transfer & Trust Company, a New York corporation, as rights
agent (the “Rights
Agent”).



     WHEREAS, the Company and the Rights Agent have heretofore executed and entered
into the Rights Agreement, and, pursuant to the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of Section 27 thereof; and



     WHEREAS, all acts and things necessary to make this Amendment a valid agreement
according to its terms have been done and performed, and the execution and
delivery of this Amendment by the Company and the Rights Agent has been in all
respects duly authorized by the Company and the Rights Agent.



     NOW THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby 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 its
entirety as follows:





     “(a) “Acquiring Person” shall mean any Person (as hereinafter defined) who or
which, together with all Affiliates (as hereinafter defined) and Associates (as
hereinafter
defined) of such Person, shall be the Beneficial Owner (as hereinafter
defined) of securities representing 15% or more of the shares of Common Stock
then outstanding other than as the result of a Qualifying Offer (as hereinafter
defined), but shall not include the Company any Subsidiary (as hereinafter
defined) of the Company, any employee benefit plan of the Company or any
Subsidiary of the company or any entity organized, appointed or established by
the Company or any Subsidiary of the Company for or pursuant to the terms of
any such plan. Notwithstanding the foregoing, (i) no Person shall become an
“Acquiring Person” as a result of an acquisition of Common Stock by the Company
which, by reducing the aggregate number of shares of Common Stock outstanding,
increases the percentage of the total number of shares of Common Stock
outstanding which are beneficially owned by such Person to 15% or more;
provided however, that if a Person shall become the Beneficial Owner of 15% or
more of the Common Stock then outstanding by reason of purchases of Common
Stock by the Company and such Person shall   after such share purchases by the
Company, become the Beneficial Owner of additional shares of Common Stock
totaling 1% or more of the shares of Common Stock then outstanding other than
as the result of a Qualifying Offer, then such Person shall constitute an



 









 




“Acquiring Person” and (ii) if the Board of Directors of the Company determines
in good faith that a Person who would otherwise be an Acquiring Person, as
defined pursuant to the foregoing provisions of this paragraph (a), has become
such inadvertently and in good faith, and, if requested by the Board of
Directors, such Person agrees to divest himself of a sufficient number of
shares of Common Stock so that such Person would no longer be an Acquiring
Person, as defined pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an “Acquiring Person” for any
purposes 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 of
Common Stock of the Company which meets all of the following requirements:




     (i) the Person making the offer beneficially owns less than 5% of the
outstanding shares of Common Stock of the Company and has beneficially owned
less than 5% of the outstanding shares of Common Stock of the Company during
the six-month period preceding the Commencement Date (as defined below);




     (ii) the consideration offered is the same for all holders of shares of Common
Stock and is in the form of cash;




     (iii) on or prior to the date that such offer is commenced within the meaning
of 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 to
the 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 then
has available and has irrevocably committed in writing to the Company to
utilize for purposes of such offer, will be sufficient to pay for all shares
of 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 its
Affiliates, would own 75% of the then outstanding shares of Common Stock of the
Company;



-2-









 






     (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 greatest
amount of consideration paid for any shares of Common Stock purchased by the
Person or group making the offer within the two-year period prior to the
Commencement Date;




     (vi) in addition to the requirements of clause (v) above, 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 greater of: (x) 135 % of the
highest closing price (as described in Section 11(d) hereof) for the Common
Stock during the one-year period prior to the Commencement Date or (y) 150% of
the average closing price (as described in Section 11(d) hereof) for the Common
Stock 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, such
offer must remain open for at least an additional 20 Business Days after the
last such increase, (y) such offer must remain open for at least 20 Business
Days after the date that any bona fide alternative offer, whether or not such
offer is a Qualifying Offer, is made which, in the opinion of a nationally
recognized investment banking firm designated by the Company, provides for
consideration 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 on
which 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 offer
satisfying the criteria for a Qualifying Offer is then required to be kept open
under this clause (vii), or (B) the scheduled expiration date, as such date may
be extended by public announcement on or prior to the then scheduled expiration
date, of any other tender offer for shares Common Stock with respect to which
the Board of Directors of the Company has agreed to redeem the Rights
immediately prior to acceptance for payment of shares of Common Stock
thereunder (unless such other offer is terminated prior to its expiration
without any shares of Common Stock having been purchased thereunder);




     (viii) such offer is accompanied by a written opinion, in customary form, of a
nationally recognized investment banking firm designated by the Company,
stating that the price to be paid to holders of Common Stock pursuant to the
offer is fair from a financial point of view to such holders; and




     (ix) prior to the Commencement Date, such Person or group makes an irrevocable
written commitment to the Company (x) to consummate a transaction or
transactions promptly upon the completion of such offer, whereby all shares of
Common Stock not purchased in such offer will be acquired for the same all cash



-3-









 






consideration and at the same price per share paid in such offer, subject only
to the condition that the Board of Directors of the Company shall have granted
any approvals required to enable such Person to consummate such transaction or
transactions following consummation of such offer without obtaining the vote of
any other stockholder, (y) that such Person will not make any amendment to such
offer which reduces the per share price offered (other than a reduction to
reflect any dividend declared by the Company after the commencement of such
offer or any material change in the capital structure of the Company initiated
by the Company after the commencement of such offer, whether by way of
recapitalization, reorganization, repurchase or otherwise), changes the form of
consideration offered, reduces the number of shares being sought or which is
otherwise in any other respect materially adverse to the Company’s stockholders,
and (z) that neither such Person nor any of its Affiliates or Associates will
make any other offer for any equity securities of the Company for a period of
six months after the commencement of the original offer if such original offer
does not result in the tender of the number of shares Common Stock required to
be purchased pursuant to clause (iv) above, unless another all cash tender
offer 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 such
original offer (in which event any new offer by such Person or any of its
Affiliates or Associates must be at a consideration no less than that provided
for in such higher offer), or (B) with the approval of the Board of Directors
of the Company (in which event any new offer by such Person or any of its
Affiliates or Associates must be at a consideration no less than that provided
for in such approved offer).”


2. Section 7(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:





     “Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. (a)
The registered holder of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal office or offices
of the Rights Agent designated for such purpose, together with the aggregate
Purchase Price with respect to the total number of one-hundredths of a share of
Preferred Stock (or other securities or property, as the case may be) as to
which the Rights are exercised, at or prior to the earlier of (i) the Close of
Business on the tenth anniversary of the Record Date, (ii) the time at which
the Rights are redeemed as provided in Section 24 hereof, (iii) the time at
which the Board of Directors of the Company orders the exchange of Rights
pursuant to paragraph (a) of Section 23 or (iv) the consummation of a
transaction contemplated by Section 13(f) hereof (the earlier of (i), (ii),
(iii) and (iv) is herein referred to as the “Expiration Date”). Subject to
adjustment as provided herein, each Right shall initially be exercisable for
one one-hundredth of a share of Preferred
Stock.”



-4-









 




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 the
following:




“, acting by resolution of its Board of Directors (which resolution shall be
effective 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 deleting
the 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 the
following parenthetical:




“(which resolution shall be effective only with the concurrence of a majority
of the
Continuing 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 Earning
Power. (b) In the event that, at any time after a Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof) and the Company shall not
be the continuing or surviving corporation of such consolidation or merger, (y)
any Person shall consolidate with the Company or merge with and into the
Company and the Company shall be the continuing or surviving corporation of
such merger and, in connection with such merger, all or part of the shares of
Common Stock shall be changed into or exchanged for stock or other securities
of any other Person or cash or any other property, or (z) the Company shall
sell, mortgage or otherwise



-5-









 






transfer (or one or more of its Subsidiaries shall sell, mortgage or otherwise
transfer), in one or more transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more of its wholly-owned Subsidiaries in one or more transactions each
of 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 to
Section 7(e) hereof, shall have the right to receive, upon the exercise thereof
at the then current Purchase Price in accordance with the terms of this
Agreement, such number of shares of validly authorized and issued, fully paid,
non-assessable, and freely tradable shares of Common Stock of the principal
party (as hereinafter defined), free and clear of liens, rights of call or
first refusal, encumbrances or other adverse claims, as shall be equal to the
result obtained by (1) multiplying the then current Purchase Price by the
number of one-hundredths of a share of Preferred Stock for which a Right is
then exercisable (without taking into account any adjustment previously made
pursuant to Section 11(a)(ii) hereof) and (2) dividing that product by 50% of
the 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 of
such consolidation, merger, sale or transfer; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term “Company” shall thereafter be deemed
to refer to such principal party, it being specifically intended that the
provisions of Section 11 hereof shall apply to such principal party; and (iv)
such principal party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock in accordance
with Section 9 hereof) in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its shares of Common Stock thereafter
deliverable 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 13
shall 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 or
Persons who acquired shares of Common Stock pursuant to a Qualifying Offer (or
a wholly owned Subsidiary of any such Person or Persons); (ii) the price per
share of Common Stock offered in such transaction is not less than the price
per share of Common Stock paid to all holders of Common Stock whose shares were
purchased pursuant to such Qualifying Offer; and (iii) the form of
consideration offered in such transaction is the same all cash consideration
paid pursuant to such Qualifying Offer. Upon consummation of any such
transaction contemplated by this Section 13(f), all Rights hereunder shall
expire.”



-6-









 




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 following
parenthetical:




“(which resolution shall, if adopted following the Stock Acquisition Date, be
effective only with the concurrence of a majority of the Continuing Directors
and only if the Continuing Directors constitute a majority of the number of
directors then in offices)”



     (b) The first sentence of Section 24(a) is further amended by deleting the
following:




“the Close of Business on the tenth Business Day following”



     (c) The first sentence of Section 24(a) is further amended by deleting the
following”




“; PROVIDED, HOWEVER, that the Board of Directors of the Company may act only
with the concurrence of a majority of the Continuing Directors in authorizing
redemption of the rights on or after the date of a change (resulting from a
proxy or consent solicitation effected in compliance with applicable law and
the requirements of any national securities exchange on which the Common Stock
of the Company is listed) in a majority of the directors in office at the
commencement of such solicitation if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such solicitation, a
majority 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, or
may consider taking, any action which would result in such Person becoming an
Acquiring 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 all
references in the Rights Agreement to Section 24(c) are hereby amended to read
24(b).



Fourth, Section 24(d) is hereby amended as follows:




     (a) The first Sentence of Section 24(d) is amended by deleting the following
parenthetical:




“(with, if required, the concurrence of a majority of the Continuing
Directors)”



-7-









 




     (b) The first Sentence of Section 24(d) is further amended by deleting the
following:



“with the concurrence of a majority of the Continuing Directors,”



     (c) Section 24(d) is hereby re-designated as Section 24(c) and all references
in 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 the
language which reads “adversely affect the interests of the holders of the
Rights”



     (b) The first sentence of Section 27 is further amended by deleting the
following:




“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 with
this 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 the
following:





“close of business on the tenth business day following a”


Second, the First sentence of Section 8. Redemption is amended by deleting the
following parenthetical:





“(or of certain “Continuing Directors”, as hereinafter defined, if such
resolution is adopted after a Stock Acquisition Date)”


Third, the First Sentence of Section 11. Amendment of Rights Agreement is
amended by deleting
the following:





“;provided, further that from and after the time that any person becomes an
Acquiring Person, the Rights Agreement shall not be supplemented or amended in
any manner without the approval of certain Directors who were elected at a
regularly scheduled, annual meeting of the Company or Directors appointed by
such Directors so elected (“Continuing Directors”)”



-8-









 




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



NUEVO ENERGY COMPANY




	 	 	 	 	 
	By:

	 	/s/ DOUGLAS L. FOSHEE
	 	 
	

	 	
 	 	 
	

	 	Douglas L. Foshee, Chairman of the
Board of Directors, President and
Chief Executive Officer	 	 







AMERICAN STOCK TRANSFER & TRUST COMPANY




	 	 	 	 	 
	By:

	 	/s/ HERBERT J. LEMMER
	 	 
	

	 	
 	 	 
	Name:

	 	HERBERT J. LEMMER	 	 
	

	 	
 	 	 
	Title:

	 	VICE PRESIDENT	 	 
	

	 	
 	 	 








-9-