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AMENDMENT NO. 2 TO
RIGHTS AGREEMENT
This Amendment No. 2 to Rights Agreement, dated as of July
8, 1999, by and between K N Energy, Inc., a Kansas corporation
(the "Company"), and First Chicago Trust Company of New York (the
"Rights Agent").
WHEREAS, the Board of Directors of the Company has
authorized the execution and delivery by the Company of an
Agreement and Plan of Merger, dated as of July 8, 1999, by and
among the Company, Rockies Merger Corp., a Delaware corporation
and wholly-owned subsidiary of the Company ("Merger Sub"), and
Xxxxxx Xxxxxx, Inc., a Delaware corporation ("Xxxxxx Xxxxxx"),
and in connection therewith the Board has determined in good
faith that certain amendments set forth below to the Rights
Agreement, dated as of August 21, 1995, as amended by Amendment
No. 1 thereto dated as of September 8, 1998, between the Company
and The Bank of New York, as the initial Rights Agent (the
"Rights Agreement"), are desirable and, pursuant to Section 29 of
the Rights Agreement, has duly authorized such amendments to the
Rights Agreement. A duly authorized officer of the Company has
executed and delivered this Amendment No. 2 to Rights Agreement
(the "Amendment").
WHEREAS, First Chicago Trust Company of New York has
succeeded The Bank of New York as Rights Agent.
NOW THEREFORE, for good and valuable consideration, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Amendment, terms which are capitalized but not defined herein and
which are defined in the Rights Agreement shall have the meanings
ascribed to them in the Rights Agreement.
Section 2. Amendment to Section 1 of the Rights
Agreement. Section 1 of the Rights Agreement is hereby amended
to add the following definitions:
"Xxxxxx Xxxxxx" shall mean Xxxxxx Xxxxxx, Inc., a
Delaware corporation.
"Merger" shall mean the merger of Merger Sub with
and into Xxxxxx Xxxxxx pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and
Plan of Merger dated as of July 8, 1999, by and among the
Company, Merger Sub and Xxxxxx Xxxxxx, as the same may be
amended from time to time in accordance with its terms.
"Merger Sub" shall mean Rockies Merger Corp., a
Delaware corporation and a wholly owned subsidiary of the
Company.
Section 3. Restatement of the Definition of "Acquiring
Person". The definition of "Acquiring Person" set forth in
Section 1 of the Rights Agreement is hereby deleted in its
entirety and replaced with the following definition:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 20% or more of the Voting
Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of
the Company or any trustee of or fiduciary with respect to
any such plan when acting in such capacity. Notwithstanding
the foregoing, no Person shall become an "Acquiring Person"
as the result of an acquisition of Voting Shares by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially
owned by such Person to 20% or more of the Voting Shares of
the Company then outstanding; provided, however, that, if a
Person shall become the Beneficial Owner of 20% or more of
the Voting Shares of the Company then outstanding by reason
of share purchases by the Company and shall, after such
share purchases by the Company and at a time when such
Person is the Beneficial Owner of 20% or more of the Voting
Shares of the Company then outstanding, become the
Beneficial Owner of any additional percentage of the
outstanding Voting Shares of the Company, then such Person
shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, (i) Cabot shall not become an
"Acquiring Person" as the result of either its right to
acquire, or its acquisition of, any Voting Shares underlying
any Warrants and (ii) neither Xxxxxxx X. Xxxxxx nor Xxxxxx
Associates, Inc., in each case together with all Affiliates
and Associates of such Person, individually or together as a
group, shall become an "Acquiring Person" as a result of
their respective rights to acquire, or their respective
acquisition of, any Voting Shares. Notwithstanding the
foregoing, 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, has become such
inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this
paragraph, then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
Section 4. Addition of Section 36 of Rights Agreement.
The Rights Agreement is hereby amended to add thereto Section
36, which provides as follows:
Section 36. The Merger Agreement. Notwithstanding
anything in this Agreement to the contrary, no
Distribution Date or Shares Acquisition Date shall be
deemed to have occurred, neither Xxxxxx Xxxxxx nor any
of its Affiliates or Associates shall be deemed to have
become an Acquiring Person or have any obligation under
this Rights Agreement, and no holder of any Rights
Certificate shall be entitled to exercise the Rights
evidenced thereby under, or be entitled to any rights
or benefits pursuant to, this Rights Agreement, in each
case by reason of (a) the approval, execution or
delivery of the Merger Agreement or (b) consummation of
any of the transactions contemplated thereby,
including, without limitation, the Merger.
Section 5. Effectiveness. This Amendment shall be
deemed effective as of July 8, 1999 as if executed by both
parties on such date. Except as expressly amended by this
Amendment, the Rights Agreement shall remain in full force and
effect.
Section 6. Governing Law. This Amendment shall be
deemed to be a contract made under the laws of the State of
Kansas and for all purposes shall be governed by and construed
and enforced in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
Section 7. Counterparts. This Amendment may be
executed in any number of counterparts and 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.
Section 8. Severability. 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, then the remainder of the terms, provisions,
covenants or restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
Section 9. Descriptive Headings. Descriptive headings
of the several Sections of this Amendment are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed, all as of the day and year first above
written.
K N ENERGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK, Rights Agent
By: /s/ Xxxxxx XxXxxxxxx
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Name: Xxxxxx XxXxxxxxx
Title: Assistant Vice
President
