1
EXHIBIT C
[Please see attached.]
2
FIRST AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement and Plan of Merger (this "First
Amendment"), dated as of August 20, 1999, by and among K N Energy, Inc., a
Kansas corporation ("Parent"), Rockies Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), and Xxxxxx Xxxxxx, Inc., a
Delaware corporation (the "Company").
WHEREAS, the parties hereto are also parties to that certain Agreement and
Plan of Merger, dated as of July 8, 1999 (the "Merger Agreement");
WHEREAS, the parties hereto desire to amend the Merger Agreement to reflect
the parties' agreement as to the form of an employment agreement to be entered
into by and between Parent and Xxxxxxx X. Xxxxxx; and
WHEREAS, the parties hereto desire to amend the Merger Agreement to reflect
the parties' agreement as to the form of governance agreements to be entered
into by and between (i) Parent and Xxxxxxx X. Xxxxxx and (ii) Parent and Xxxxxx
Associates, Inc., a Kansas corporation wholly-owned by Xxxxxxx X. Xxxxxx.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained in this First Amendment and the Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Merger Agreement.
2. Section 6.12 of the Merger Agreement is hereby amended and restated as
follows:
SECTION 6.12 Employment Agreement. Parent shall execute and deliver
to Xxxxxxx X. Xxxxxx an employment agreement substantially in the form
attached as Amended Exhibit B hereto (the "Employment Agreement"), such
agreement to be effective as of the Effective Time. The Company shall use
its best efforts to cause Xxxxxxx X. Xxxxxx to enter into the Employment
Agreement.
3. Section 6.13 of the Merger Agreement is hereby amended and restated as
follows:
SECTION 6.13 Governance Agreements. Parent shall execute and deliver:
(i) a governance agreement substantially in the form attached as Exhibit
C-1 hereto (the "Kinder Governance Agreement") to Xxxxxxx X. Xxxxxx and
(ii) a governance agreement substantially in the form attached as Exhibit
C-2 hereto (the "Xxxxxx Governance Agreement") to Xxxxxx Associates, Inc.,
each such agreement to be effective as of the Effective Time. The Kinder
Governance
1
3
Agreement and the Xxxxxx Governance Agreement may be referred to
collectively herein as the "Governance Agreements." The Company shall use
its best efforts to cause Xxxxxxx X. Xxxxxx and Xxxxxx Associates, Inc. to
enter into the Kinder Governance Agreement and the Xxxxxx Governance
Agreement, respectively.
4. Section 7.2(g) of the Merger Agreement is hereby amended and restated as
follows:
(g) Governance Agreements. Xxxxxxx X. Xxxxxx shall have entered into
the Kinder Governance Agreement with Parent and Xxxxxx Associates, Inc.
shall have entered into the Xxxxxx Governance Agreement with Parent.
5. Section 7.3(h) of the Merger Agreement is hereby amended and restated as
follows:
(h) Governance Agreements. Parent shall have entered into (i) the
Kinder Governance Agreement with Xxxxxxx X. Xxxxxx and (ii) the Xxxxxx
Governance Agreement with Xxxxxx Associates, Inc.
6. Section 7.3(i) of the Merger Agreement is hereby amended and restated as
follows:
(i) Director Resignations; Bylaw Amendment. All of Parent's directors,
other than those directors listed on Annex A to each of the Governance
Agreements, shall have submitted their resignations from the Board of
Directors, effective as of the Effective Time, and the bylaws of Parent
shall have been amended, effective as of the Effective Time, in compliance
with Section 2.1 of each of the Governance Agreements.
7. Exhibit B to the Merger Agreement shall be deleted and replaced in its
entirety with Amended Exhibit B attached hereto.
8. Exhibit C to the Merger Agreement shall be deleted and replaced in its
entirety with Exhibit C-1 and Exhibit C-2 attached hereto.
9. Except where inconsistent with the express terms of this First
Amendment, all provisions of the Merger Agreement as originally entered into
shall remain in full force and effect.
[SIGNATURE PAGES FOLLOW]
2
4
IN WITNESS WHEREOF, each of the undersigned has caused this First Amendment
to be duly signed as of the date first written above.
K N ENERGY, INC.
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
ROCKIES MERGER CORP.
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXX, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
3
