EXHIBIT 4.1
AMENDMENT NO. 7 TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT NO. 7 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of February 23, 2003, is between Ocean Energy, Inc., a Delaware corporation
(formerly known as Seagull Energy Corporation) (the "Company"), and EquiServe
Trust Company, N.A., as rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of March 19, 1989, as amended June 13, 1992, as amended and
restated as of December 12, 1997, as further amended November 24, 1998, March
10, 1999, May 19, 1999, May 19, 2000, May 9, 2001 and December 12, 2001, between
the Company and the Rights Agent (collectively, the "Rights Agreement"); and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent desire to further amend the Rights Agreement as set forth
below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 7.
Paragraph (a) of Section 7 of the Rights Agreement is amended by (i)
deleting the word "and" immediately preceding clause (ii) thereof and inserting
a "," in lieu thereof, and (ii) by adding a new clause (iii) immediately
following clause (ii) thereof which shall read as follows: "or (iii) immediately
prior to the Effective Time (as defined in the Agreement and Plan of Merger,
dated as of February 23, 2003, by and between Devon Energy Corporation, a
Delaware corporation, the Company, and Devon NewCo Corporation, a Delaware
corporation, as the same may be amended from time to time (the "Merger
Agreement" )."
2. Addition of New Section 34.
The Rights Agreement is amended by adding a Section 34 thereof which
shall read as follows:
"Section 34. Exception For Merger Agreement. Notwithstanding
any provision of this Agreement to the contrary, neither a
Distribution Date nor a Shares Acquisition Date shall be
deemed to have occurred, none of Devon Energy Corporation, a
Delaware corporation, or any of its Affiliates or Associates
shall be deemed to have become an Acquiring Person, and no
holder of any Rights shall be entitled to exercise such Rights
under, or be entitled to any rights pursuant to, any of
Sections 3, 7, 11 or 13 of this Agreement, in any such case by
reason of (a) the approval, execution or delivery of the
Merger Agreement or any amendments thereof approved in advance
by the Board of Directors of the Company or (b) the
commencement or,
prior to termination of the Merger Agreement, the consummation
of any of the transactions contemplated by the Merger
Agreement in accordance with the provisions of the Merger
Agreement, including the Merger (as defined in the Merger
Agreement)."
3. Effectiveness.
This Amendment shall be deemed effective as of February 23, 2003 as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
4. Miscellaneous.
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. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
OCEAN ENERGY, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board, Chief
Executive Officer and President
EQUISERVE TRUST COMPANY, N.A.
By: /s/ XXXXX XXXXXX-XXXX
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Name: Xxxxx Xxxxxx-Xxxx
Title:
