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CONSENT AND ASSIGNMENT UNDER AND AMENDMENT
TO REGISTRATION RIGHTS AGREEMENT
This Consent and Assignment under and Amendment to that certain
Registration Rights Agreement, dated as of January 31, 1996, among Xxx Xxxxx,
Inc. (the "Company"), and K N Energy, Inc. (the "Stockholder"), is executed by
the Company, the Stockholder and Xxxxxxxxxxx Funds, Inc., on behalf of
Xxxxxxxxxxx Main Street Growth and Income Fund (the "Buyer") as of September ,
1999.
WHEREAS, reference is made to that certain Registration Rights
Agreement (the "Registration Rights Agreement"), dated as of January 31, 1996,
among the Company and the Stockholder that grants to the Stockholder certain
registration rights with respect to Registrable Common Stock, as defined below,
held by the Stockholder;
WHEREAS, the Stockholder has agreed to transfer to the Buyer 1,000,000
shares of the Company's $1.75 Convertible Preferred Stock, Series A, par value
$.10 per share ("Convertible Preferred Stock") subject to the execution hereof;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
mentioned to be kept and performed, the parties hereto agree as follows:
1. Section 1.01(d) of the Registration Rights Agreement is hereby
amended by deleting said section in its entirety and replacing it with a new
Section 1.01(d) as is set forth below:
" "Registrable Common Stock" shall mean (i) the shares of
Common Stock of the Company issued to Stockholder as a result of the Merger and
(ii) the shares of Common Stock of the Company underlying the shares of
Convertible Preferred Stock of the Company issued to Stockholder pursuant to the
Merger and subsequently transferred to the Buyer."
2. The Stockholder hereby assigns to the Buyer all rights under the
Registration Rights Agreement relating to the Convertible Preferred Stock. The
Company hereby consents to such assignment and the transfer of the Convertible
Preferred Stock and waives the applicability of the last sentence of Section
1.02(e) of the Registration Rights Agreement to the assignment of rights herein
to the Buyer but not otherwise. In addition, the Buyer agrees to be bound by the
Registration Rights Agreement with respect to the Convertible Preferred Stock to
the same extent as the Stockholder was bound as owner of the Convertible
Preferred Stock.
3. The parties agree that upon the execution hereof, the Buyer shall
have the same rights under the Registration Rights Agreement with respect to the
Convertible Preferred Stock as the Stockholder had prior to the transfer thereof
to the Buyer. Accordingly, the Registration Rights Agreement is hereby amended
such that references in the Registration Rights Agreement to "the Stockholder"
shall be deemed to be references to "the Stockholder and/or the Buyer".
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4. Section 1.02(a) of the Registration Rights Agreement is hereby
amended by changing the reference therein to "1,000,000" to "900,000".
5. Section 1.09 of the Registration Rights Agreement is hereby amended
by adding a new subsection (c) thereto in the form below:
"(c) If to the Buyer, to:
Xxxxxxxxxxx Funds, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, General Counsel
6. Except as specifically set forth herein, the Registration Rights
Agreement shall remain in full force and effect.
7. Capitalized terms used but not otherwise defined herein shall have
those meanings ascribed to them in the Registration Rights Agreement.
8. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
9. This Amendment shall be governed and construed in accordance with
the laws of the State of Delaware, without regard to the principles of conflicts
of law of such state.
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IN WITNESS WHEREOF, the parties have executed this Consent and
Assignment Under and Amendment to Registration Rights Agreement as of this ___
day of September, 1999.
XXX XXXXX, INC.
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
K N ENERGY, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
XXXXXXXXXXX FUNDS, INC., on behalf of
Xxxxxxxxxxx Main Street Growth and
Income Fund
By: /s/ XXXXXXXX X. MONUYIOS
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Name: Xxxxxxxx X. Monuyios
Title: Vice President
