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EXHIBIT 10.30
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.
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"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 either 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
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of its Affiliates or Associates shall be deemed to have become an
Acquiring Person or have any obligation under Section 14 of this
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, Section 14 of 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.
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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
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