Exhibit 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of July 8, 1999, is
entered into by and among K N Energy, Inc., a Kansas corporation ("Parent"),
Xxxxxxx X. Xxxxxx, an individual ("Kinder") and Xxxxxx Associates, Inc.
("Xxxxxx"), a Kansas corporation wholly-owned by Xxxxxxx X. Xxxxxx. Xxxxxx and
Xxxxxx may be referred to individually as a "Stockholder" and together as the
"Stockholders."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Rockies Merger Corp., a Delaware corporation and wholly-owned subsidiary of
Parent ("Merger Sub") and Xxxxxx Xxxxxx, Inc., a Delaware corporation (the
"Company") are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), which provides, among other things, that
Merger Sub will merge with and into the Company with the Company continuing as
the surviving corporation (the "Merger");
WHEREAS, as of the date hereof, each of the Stockholders is the record
and beneficial owners of, and has the sole right to vote and dispose of, the
number of shares of capital stock in the Company (the "Company Stock") set forth
opposite his name on Schedule I hereto; and
WHEREAS, as an inducement and a condition to Parent and Merger Sub
entering into the Merger Agreement and incurring the obligations set forth
therein, Parent and Merger Sub have required that the Stockholders enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain Definitions. Capitalized terms used herein but not
defined shall have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement:
"Affiliate" shall mean, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 promulgated under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person includes securities Beneficially Owned
by all Affiliates of such Person and all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d) of the Exchange
Act and the rules promulgated thereunder.
"Company Stock" shall have the meaning set forth in the recitals to
this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Merger" shall have the meaning set forth in the recitals to this
Agreement.
"Owned Shares" shall mean, with respect to the Stockholders, the
shares of Company Stock Beneficially Owned by each such Stockholder on the date
hereof, together with any other shares of Company Stock, or any other securities
of the Company entitled, or which may be entitled, to vote generally in the
election of directors and any securities convertible into or exercisable or
exchangeable for such securities (whether or not subject to contingencies with
respect to any matter or proposal submitted for the vote or consent of
stockholders of the Company), now or hereafter Beneficially Owned by each such
Stockholder.
"Person" shall mean an individual, corporation, partnership, limited
liability corporation, joint venture, association, trust, unincorporated
organization or other entity.
"Subject Company" shall have the meaning set forth in Section 2.
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"Transfer" shall mean, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "Transfer"
shall have a correlative meaning.
2. Voting of Owned Shares; Proxy. (a) Each Stockholder hereby agrees
that, during any time prior to the Effective Time while this Agreement is in
effect, at any meeting (whether annual or special, and whether or not an
adjourned or postponed meeting) of the Company's stockholders, however called,
or in connection with any written consent of the Company's stockholders, he
shall vote (or cause to be voted) all Owned Shares: (i) in favor of the Merger,
the Merger Agreement (as amended from time to time) and the transactions
contemplated by the Merger Agreement; (ii) against any action or agreement that
would (A) result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or of
the Stockholders under this Agreement or (B) impede, interfere with, delay,
postpone, or adversely affect the Merger or the transactions contemplated by the
Merger Agreement or this Agreement; and (iii) against the following actions
(other than the Merger and the transactions contemplated by the Merger Agreement
and this Agreement): (I) any extraordinary corporate transaction, such as a
recapitalization, merger, consolidation or other business combination involving
the Company and/or any of its Subsidiaries (the "Subject Companies"), (II) any
sale, lease or transfer of a material amount of the assets or business of the
Subject Companies; and (III) any other action which is intended or could
reasonably be expected to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the transactions contemplated by the
Merger Agreement or this Agreement or the contemplated economic benefits of any
of the foregoing. The Stockholders, in their capacity as Stockholders of the
Company, shall not enter into any agreement, arrangement or understanding with
any Person the effect of which would be inconsistent with or violative of the
provisions and agreements contained in or referenced by this Section 2(a).
(b) Each Stockholder agrees to grant, at the request of the Company,
upon the execution and delivery of the Merger Agreement, a proxy to vote the
Owned Shares as indicated in subsection 2(a) above. Each Stockholder intends
such proxy to be irrevocable and coupled with an interest and will take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by him with respect to the Owned Shares; provided, however, that such
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proxy shall terminate and be deemed revoked upon the termination of this
Agreement pursuant to Section 3 hereof.
3. Termination. This Agreement shall terminate upon the earlier to
occur of (i) the consummation of the transactions contemplated by the Merger
Agreement and (ii) the termination of the Merger Agreement in accordance with
its terms.
4. Restrictions on Transfer; Other Proxies. The Stockholders shall
not, directly or indirectly: (i) Transfer to any Person any or all Owned Shares;
(ii) grant any proxies or powers of attorney, deposit any Owned Shares into a
voting trust or enter into a voting agreement, understanding or arrangement with
respect to such Owned Shares; or (iii) take any action in their capacity as
Stockholders of the Company that would make any representation or warranty of
the Stockholders contained herein untrue or incorrect or would result in a
breach by the Stockholders of their obligations under this Agreement or a breach
by the Company of its obligations under the Merger Agreement.
5. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Parent as follows:
(a) Xxxxxx is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas. Each Stockholder has all
necessary corporate or other, as the case may be, power and authority to execute
and deliver this Agreement and to perform their respective obligations
hereunder. The execution and delivery by Xxxxxx of this Agreement and the
performance by Xxxxxx of its obligations hereunder have been duly and validly
authorized by the Board of Directors of Xxxxxx and no other corporate
proceedings on the part of Xxxxxx are necessary to authorize the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by each Stockholder and, assuming the due authorization, execution and delivery
hereof by Parent, constitutes a valid and binding obligation of each
Stockholder, enforceable against each of them in accordance with its terms
(subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law)).
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(c) Each of the Stockholders is the record and Beneficial Owner of
all of the Owned Shares indicated opposite such Stockholders' name on Schedule I
hereto, which constitute all of the Owned Shares Beneficially Owned by such
Stockholder, free and clear of all liens, pledges, charges, claims, security
interests and other encumbrances. Other than as provided in this Agreement or in
the Company Disclosure Schedule, there are no restrictions on the voting rights
or right of disposition pertaining to such Owned Shares.
(d) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholders of the transactions contemplated hereby will
conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which either
Stockholder is a party or by which either Stockholder is bound.
6. Representations and Warranties of Parent. Parent hereby
represents, warrants and covenants to the Stockholders as follows:
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas. Parent has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by Parent of this
Agreement and the performance by Parent of its obligations hereunder have been
duly and validly authorized by the Board of Directors of Parent and no other
corporate proceedings on the part of Parent are necessary to authorize the
execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by Parent and, assuming the due authorization, execution and delivery hereof by
the Stockholders, constitutes a valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms (subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law)).
(c) Neither the execution and delivery of this Agreement nor the
consummation by Parent of the transactions contemplated hereby will conflict
with or constitute a violation of or default under any contract, commitment,
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agreement, arrangement or restriction of any kind to which Parent is a party or
by which Parent is bound.
7. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
8. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) The Stockholders agree that this Agreement and the respective
rights and obligations of the Stockholders hereunder shall attach to any shares
of Company Stock, any securities convertible into such shares, and any other
securities of the Company entitled, or which may be entitled, to vote generally
in the election of directors and any securities convertible into or exercisable
or exchangeable for such securities (whether or not subject to contingencies
with respect to any matter or proposal submitted for the vote or consent of the
stockholders of the Company), that may become Beneficially Owned by such
Stockholders.
(c) Except as otherwise provided in this Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(d) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party (whether by operation of
law or otherwise) without the prior written consent of each other party to this
Agreement; provided, that Parent may assign its rights and obligations hereunder
to any Subsidiary or Affiliate of Parent, but no such assignment shall relieve
Parent of its obligations hereunder. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
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rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(e) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
(f) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Parent:
K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
Phase II - 0xx Xxxxx XX
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Vice President and General Counsel
Fax: (000) 000-0000
Copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
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If to the Stockholders:
c/o Xxxxxx Xxxxxx, Inc.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxxxx
Fax: (000) 000-0000
Copy to:
Bracewell & Xxxxxxxxx, L.L.P.
South Tower Pennzoil Place
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without affecting the
validity or enforceability of the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. If any provision
of this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
(h) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in Delaware. The
parties hereto consent to personal jurisdiction in any such action brought in
any state or federal court sitting in Delaware and to service of process upon it
in the manner set forth in Section 8(f) hereof.
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(i) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware (regardless of the laws that might otherwise
govern under applicable principles of conflicts of law) as to all matters,
including matters of validity, construction, effect, performance and remedies.
(k) The descriptive headings used herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. "Include," "includes," and "including" shall
be deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import.
(l) Unless otherwise noted, all section references in this Agreement
are references to the specified section of this Agreement.
(m) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent and each of the Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
K N ENERGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Interim CEO
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
XXXXXX ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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Schedule I
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Stockholder Number of Shares of Company Stock
----------- ---------------------------------
Xxxxxxx X. Xxxxxx: 5,801.0 shares of Class A Common Stock
444.8 shares of Class B Common Stock
Xxxxxx Associates, Inc.: 2,246.0 shares of Class A Common Stock
111.2 shares of Class B Common Stock
Sch.1-1
