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Amendment No. 1
FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NUEVO ENERGY COMPANY
(Exact name of registrant as
specified in its charter)
Delaware
(State of incorporation or organization)
75-0304436
(I.R.S. Employer Identification No.)
1021 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive
offices, including zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Series C Preferred Stock Purchase Rights New York Stock Exchange
If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: N/A.
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Amendment No. 1 amends the Registration Statement on Form 8-A, filed
April 1, 1997, by Nuevo Energy Company (the "Company") in connection with the
Company's listing of its preferred stock purchase rights on the New York Stock
Exchange.
This amendment No. 1 is being filed to amend and restate Item 1 to this
Registration Statement and include as an exhibit to this Registration Statement
the Amendment (the "Amendment") dated as of January 10, 2000 to the Rights
Agreement (the "Rights Agreement") dated as of March 5, 1997 by and between the
Company and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent"). Except as amended hereby, there are no other changes to this
Registration Statement.
ITEM 1. Description of Registrant's Securities to be Registered
On March 5, 1997, the Board of Directors of the Company authorized and
declared a dividend of one preferred stock purchase right (a "Right") for each
share of common stock, par value $.01 per share, of the Company (the "Common
Shares"). The dividend is payable on March 21, 1997 (the "Record Date") to the
holders of record of Common Shares as of the close of business on such date.
The following is a brief description of the Rights. It is intended to
provide a general description only and is subject to the detailed terms and
conditions of the Rights Agreement, as amended by the Amendment.
1. Common Share Certificates Representing Rights
Until the Distribution Date (as defined in Section 2 below), (a) the Rights
shall not be exercisable, (b) the Rights shall be attached to and trade only
together with the Common Shares and (c) the stock certificates representing
Common Shares shall also represent the Rights attached to such Common Shares.
Common Share certificates issued after the Record Date and prior to the
Distribution Date shall contain a notation incorporating the Rights Agreement by
reference.
After the Distribution Date, the Rights shall separate from the Common
Shares, Rights certificates shall be issued, and the Rights shall become
exercisable to purchase Preferred Shares as described in Section 5 below.
2. Distribution Date and Qualifying Offers
(a) Distribution Date. The "Distribution Date" is the earliest of (i) the
tenth day following the date of the first public announcement that any person
(other than the Company or certain related entities, and with certain additional
exceptions) has become the beneficial owner of 15% or more of the then
outstanding Common Shares other than as the result of a Qualifying Offer (as
defined in (b) below) (such person is an "Acquiring Person" and the date of such
public announcement is the "Stock Acquisition Date") or (ii) the close of
business on the tenth business day (or such later day as shall be designated by
the Board of Directors) following the date of the commencement of, or the
announcement of an intention to make, a tender offer or exchange offer, the
consummation of which would cause any person (other than the Company and certain
related entities and with certain additional exceptions) to become an Acquiring
Person. In calculating the percentage of outstanding Common Shares that are
beneficially owned by any person, such person shall be deemed to beneficially
own any Common Shares issuable upon the exercise, exchange or conversion of any
options, warrants or other securities beneficially owned by such person and any
Common Shares beneficially owned by certain affiliates and associates of such
person. Notwithstanding the foregoing, if any person shall become the
beneficial owner of at least 15% of the outstanding Common Shares by reason of
purchases of Common Shares by the Company, then such person shall not be deemed
an "Acquiring Person" until such person thereafter acquires beneficial ownership
of, in the aggregate, a number of additional Common Shares equal to 1% or more
of the then outstanding Common Shares.
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(b) Qualifying Offers. A "Qualifying Offer" is an all-cash, fully-funded
tender offer for all outstanding Common Shares by a person who, at the
commencement of the offer, beneficially owns less than 5% of the outstanding
Common Shares. A Qualifying Offer must remain open for at least 120 days, must
be conditioned on the person commencing the Qualifying Offer acquiring at least
75% of the outstanding Common Shares and the per share consideration must exceed
the greater of (i) 135% of the highest closing price of the Common Shares prior
to the commencement of the Qualifying Offer or (ii) 150% of the average closing
price of the Common Shares during the 20-day period prior to the commencement of
the Qualifying Offer.
3. Issuance of Rights Certificates
As soon as practicable following the Distribution Date, separate
certificates representing only Rights shall be mailed to the holders of record
of Common Shares as of the close of business on the Distribution Date, and such
separate Rights certificates alone shall represent such Rights from and after
the Distribution Date.
4. Expiration of Rights
The Rights shall expire on March 21, 2007, unless earlier redeemed or
exchanged.
5. Exercise of Rights
Unless the Rights have expired or been redeemed or exchanged, they may be
exercised, at the option of the holders, pursuant to paragraphs (a), (b) or (c)
below. No Right may be exercised more than once or pursuant to more than one of
such paragraphs. From and after the first event of the type described in
paragraphs (b) or (c) below, each Right that is beneficially owned by an
Acquiring Person or an affiliate or associate thereof shall be void.
(a) Right to Purchase Preferred Shares. From and after the close of
business on the Distribution Date, each Right (other than a Right that has
become void) shall be exercisable to purchase one one-hundredth of a share of
Series C Preferred Stock, par value $1.00 per share, of the Company (the
"Preferred Shares"), at an exercise price of $150.00 (one hundred and fifty
dollars) (the "Purchase Price"). The Preferred Shares are nonredeemable and,
unless otherwise provided in connection with the creation of a subsequent series
of preferred stock, are subordinate to any other series of the Company's
preferred stock whether issued before or after the issuance of the Preferred
Shares. The Preferred Shares may not be issued except upon exercise of Rights.
The holder of a Preferred Share is entitled to receive when, as and if declared,
the greater of (i) cash and non-cash dividends in an amount equal to 100 times
the dividends declared on each Common Share or (ii) a preferential annual
dividend of $100.00 per Preferred Share ($1.00 per one one-hundredth of a
Preferred Share). In the event of liquidation, the holders of Preferred Shares
shall be entitled to receive a liquidation payment in an amount equal to the
greater of (1) $15,000.00 per Preferred Share ($150.00) per one one-hundredth of
a Preferred Share), plus all accrued and unpaid dividends and distributions on
the Preferred Shares, or (2) an amount equal to 100 times the aggregate amount
to be distributed per Common Share. Each Preferred Share has 100 votes, voting
together with the Common Shares. In the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, the holder of a
Preferred Share shall be entitled to receive 100 times the amount received per
Common Share. The rights of the Preferred Shares as to dividends, voting and
liquidation preferences are protected by antidilution provisions. It is
anticipated that the value of one one-hundredth of a Preferred Share should
approximate the value of one Common Share.
(b) Right to Purchase Common Shares of the Company. In the event that any
person, alone or together with its affiliates or associates, shall become an
Acquiring Person (subject to certain exceptions), each Right (other than a Right
that has become void) shall be exercisable to purchase, at the Purchase Price
(initially $150.00), Common Shares with a market value equal to two times the
Purchase Price. If the Company does not have sufficient Common Shares available
for all Rights to be exercised the Company shall substitute for all or any
portion of the Common Shares that would otherwise be issuable upon the exercise
of the Rights, cash, assets or
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other securities having the same aggregate value as such Common Shares.
(c) Right to Purchase Common Stock of a Successor Corporation. If, after a
person has become an Acquiring Person, (i) the Company is acquired in a merger
or other business combination in which the Company is not the surviving
corporation, (ii) the Company is the surviving corporation in a merger or other
business combination in which all or part of the outstanding Common Shares are
changed into or exchanged for stock or assets of another person or (iii) 50% or
more of the Company's consolidated assets or earning power are sold, then each
Right (other than a Right that has become void) shall thereafter be exercisable
to purchase, at the Purchase Price (initially $150.00), shares of common stock
or cash of the surviving corporation or purchaser, respectively, with an
aggregate market value equal to two times the Purchase Price. The above
provisions are not applicable to a transaction contemplated by (i) or (ii) in
the preceding sentence if such a transaction is consummated by a (x) person who
acquired Common Shares pursuant to a Qualifying Offer, (y) the price per share
offered in such transaction is not less than the price paid in the Qualifying
Offer and (z) the form of consideration is cash.
6. Adjustments to Prevent Dilution
The Purchase Price, the number of outstanding Rights and the number of
Preferred Shares or Common Shares issuable upon exercise of the Rights are
subject to adjustment from time to time as set forth in the Rights Agreement in
order to prevent dilution. With certain exceptions, no adjustment in the
Purchase Price shall be required until cumulative adjustments require an
adjustment of at least 1%.
7. Cash Paid Instead of Issuing Fractional Securities
No fractional securities shall be issued upon exercise of a Right (other
than fractions of Preferred Shares that are integral multiples of one one-
hundredth of a Preferred Share, which fractions may, at the election of the
Company, be evidenced by depositary receipts) and in lieu thereof, an adjustment
in cash shall be made based on the market price of such securities on the last
trading date prior to the date of exercise.
8. Redemption
Prior to the earlier of the Stock Acquisition Date or the close of business
on the earlier of the expiration, redemption or exchange of the Rights, the
Company may, by resolution of its Board of Directors, redeem all of the then
outstanding Rights at a redemption price of $.01 per Right, subject to
adjustment, payable in cash, Common Shares or other appropriate consideration.
9. Exchange
At any time after any Person becomes an Acquiring Person and prior to the
first date thereafter upon which an Acquiring Person (with certain exceptions)
shall be the beneficial owner of 50% or more of the outstanding Common Shares,
the Board of Directors may, at its option, direct the Company to exchange all,
but not less than all, of the then outstanding Rights for Common Shares at an
exchange ratio of one Common Share per Right, subject to adjustment.
Immediately upon such action by the Board of Directors, the right to exercise
Rights shall terminate and the only right of the holders of Rights thereafter
shall be to receive a number of Common Shares to which such holder is entitled
pursuant to such exchange ratio.
10. No Stockholder Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, shall have no
rights as a stockholder of the Company (other than rights resulting from such
holder's ownership of Common Shares), including, without limitation, the right
to vote or to receive dividends.
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11. Amendment of Rights Agreement
The board of Directors may, from time to time, without the approval of any
holder of Rights, direct the Company and the Rights Agent to supplement or amend
any provision of the rights Agreement in any manner, whether or not such
supplement or amendment is adverse to any holder of Rights, and the Company and
the Rights Agent shall so supplement or amend such provision; provided, however,
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 that would
adversely affect any holder of outstanding Rights other than an Acquiring
Person.
ITEM 2. Exhibits
Attached hereto as an exhibit and incorporated herein by reference is the
Amendment dated as of January 10, 2000 to the Rights Agreement dated as of March
5, 1997 by and between the Company and American Stock Transfer & Trust Company,
as Rights Agent.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Date: March 6, 2000 NUEVO ENERGY COMPANY, a Delaware corporation
By: /s/ Bruce K. Murchison
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Name: Bruce K. Murchison
Title: Vice President and General Counsel
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Exhibit Index
Exhibit
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1. Amendment dated as of January 10, 2000 to the Rights Agreement dated as of
March 5, 1997 by and between the Company and American Stock Transfer &
Trust Company, as Rights Agent.
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AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of January 10, 1999, 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),
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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;
(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;
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(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 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
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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."
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,"
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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
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
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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."
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"
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(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)"
(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"
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<PAGE>
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")"
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<PAGE>
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
--------------------------
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