<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1996
REGISTRATION NUMBER 333-04385
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
K N ENERGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
KANSAS 48-0290000
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
370 VAN GORDON STREET MARTHA B. WYRSCH
P.O. BOX 281304 VICE PRESIDENT, DEPUTY GENERAL COUNSEL & SECRETARY
LAKEWOOD, COLORADO 80228-8304 370 VAN GORDON STREET, P.O. BOX 281304
(303) 989-1740 LAKEWOOD, COLORADO 80228-8304
(303) 989-1740
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING (NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
------------------------
Copy to:
C. MICHAEL HARRINGTON
VINSON & ELKINS L.L.P.
3600 FIRST CITY TOWER
HOUSTON, TEXAS 77002-6760
(713) 758-2148
------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT PRICE FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Primary Offering:
Debt Securities............................... (1) (1) $300,000,000(2) $103,450(4)
Common Stock, par value $5.00 per share.......
- --------------------------------------------------------------------------------------------------------------------
Secondary Offering:
Common Stock, par value $5.00 per share....... 500,000 shares $32.6875(3) $16,343,750 $5,636(4)
====================================================================================================================
</TABLE>
(1) Omitted pursuant to Rule 457(o).
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices of the Common Stock on the
New York Stock Exchange Composite Tape on May 21, 1996.
(4) Previously paid.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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<PAGE> 2
PROSPECTUS
K N ENERGY, INC.
DEBT SECURITIES
COMMON STOCK
------------------------------
K N Energy, Inc. ("K N" or the "Company") may offer and sell from time to
time, in one or more series, its unsecured debt securities consisting of notes,
debentures or other evidences of indebtedness (the "Debt Securities"). Both the
Company and its largest stockholder, Cabot Corporation (the "Selling
Stockholder"), may also offer and sell from time to time shares of its common
stock, par value $5.00 per share (the "Common Stock"). The aggregate initial
offering prices of the Debt Securities and the Common Stock offered by the
Company hereby (the "Securities") will not exceed $300,000,000 or, if
applicable, the equivalent thereof in any other currency or currency unit, and
the number of shares of Common Stock offered by the Selling Stockholder hereby
will not exceed 500,000. The Securities will be offered in amounts, at prices
and on terms to be determined in light of market conditions at the time of sale
and set forth in a supplement to this Prospectus (a "Prospectus Supplement").
If the offering and sale of Securities in respect of which this Prospectus
is being delivered includes a series of Debt Securities, then the terms of such
series of Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, authorized denominations, ranking as
senior or subordinated Debt Securities, maturity, interest rate or rates (or
method of determining the same) and time or times of payment of any interest,
any terms for optional or mandatory redemption, which may include redemption at
the option of holders upon the occurrence of certain events, conversion into
Common Stock, or payment of additional amounts or any sinking fund provisions,
any initial public offering price, the proceeds to the Company and any other
specific terms in connection with the offering and sale of such series of Debt
Securities will be set forth in a Prospectus Supplement. As used herein, Debt
Securities shall include securities denominated in United States dollars or, at
the option of the Company if so specified in an applicable Prospectus
Supplement, in any other currency or currency unit, or in amounts determined by
reference to an index.
The Securities may be sold directly by the Company or the Selling
Stockholder to investors, through agents designated from time to time or to or
through underwriters or dealers. See "Plan of Distribution". If any agents of
the Company or the Selling Stockholder or any underwriters are involved in the
sale of any Securities in respect of which this Prospectus is being delivered,
the names of such agents or underwriters and any applicable commissions or
discounts will be set forth in a Prospectus Supplement. The net proceeds to the
Company from such sale also will be set forth in a Prospectus Supplement. The
Company will not receive any of the proceeds from the sale of any Common Stock
by the Selling Stockholder. See "Use of Proceeds."
Debt Securities may be issued in registered form or bearer form with or
without interest coupons attached, or both. In addition, all or a portion of the
Debt Securities of a series may be issuable in temporary or permanent global
form. Debt Securities in bearer form are offered only to non-United States
persons and to offices located outside the United States of certain United
States financial institutions.
------------------------------
The Common Stock is traded on the New York Stock Exchange under the symbol
"KNE." Any Common Stock sold pursuant to a Prospectus Supplement will be listed
on such exchange, subject to official notice of issuance.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
THE DATE OF THE PROSPECTUS IS JUNE 18, 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information filed by the Company with the Commission can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the following Regional Offices of the Commission: Chicago
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and New York Regional Office, Seven World Trade Center, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates.
In addition, reports, proxy statements and other information concerning the
Company can be inspected at the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, on which exchange the Common Stock is listed.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement, and reference is hereby
made to the Registration Statements for further information with respect to the
Company and the securities offered hereby. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statements or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-6446) pursuant to the Exchange Act are incorporated by reference and made a
part hereof:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995; and
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date of this Prospectus and
prior to the termination of the offering of the Securities pursuant hereto shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such document. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to any person, including any
beneficial owner of Securities, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of the documents
referred to above which have been incorporated by reference in this Prospectus
(other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Such requests should be directed
to the office of the Treasurer, K N Energy, Inc., P.O. Box 281304, Lakewood,
Colorado 80228-8304, telephone number (303) 989-1740.
2
<PAGE> 4
THE COMPANY
The Company and its subsidiaries constitute principally an integrated
natural gas enterprise with operations in the states of Colorado, Kansas,
Montana, Nebraska, Oklahoma, Texas and Wyoming. As an integrated organization,
the Company and its subsidiaries participate in all phases of the natural gas
business from reserve development and gas gathering to the gathering of field
supplies, transmission to markets and distribution to both industrial and retail
customers. In addition, certain of the Company's subsidiaries engage in energy
marketing.
K N was incorporated under the laws of the State of Kansas in 1927. The
address of its principal executive offices is 370 Van Gordon Street, P. O. Box
281304, Lakewood, Colorado 80228-8304 and its telephone number is (303)
989-1740.
USE OF PROCEEDS
Except as may otherwise be described in the Prospectus Supplement relating
to an offering of Securities, the net proceeds from the sale of the Securities
offered by the Company pursuant to this Prospectus and such Prospectus
Supplement (the "Offered Securities") will be used for general corporate
purposes. Any specific allocation of the net proceeds of an offering of
Securities by the Company to a specific purpose will be determined at the time
of such offering and will be described in the related Prospectus Supplement.
The Company will not receive any proceeds from the sale of any Common Stock
by the Selling Stockholder.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown.
<TABLE>
<CAPTION>
THREE MONTHS YEARS ENDED DECEMBER 31,
ENDED MARCH 31, -------------------------------------------------------------------------
1996 1995 1994 1993 1992 1991
- ------------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
3.73 3.07 1.69 2.41 2.61 2.70
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings are the sum of net income (from
continuing operations), taxes and fixed charges. Fixed charges are interest,
amortization of debt discount, premium and expense, preferred stock dividends of
a subsidiary, and the estimated interest portion of rental charges. The
allowance for borrowed funds used during construction recognized for gas utility
operations has been added to fixed charges and is included in earnings. A
statement setting forth the computation of the ratios of earnings to fixed
charges is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part.
3
<PAGE> 5
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt of
the Company and will be issued, in the case of Debt Securities that will be
senior debt ("Senior Debt Securities"), under an Indenture dated as of November
20, 1993 (the "Senior Debt Indenture"), between the Company and First Trust of
Illinois, National Association, as successor trustee, and, in the case of Debt
Securities that will be subordinated debt ("Subordinated Debt Securities"),
under a Subordinated Indenture dated as of May 15, 1996 (the "Subordinated Debt
Indenture"), between the Company and First Trust of Illinois, National
Association, as trustee. The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures." First Trust of Illinois, National
Association (and any successor thereto as trustee under the Indentures) is
hereinafter referred to as the "Trustee." The Indentures are filed as exhibits
to the Registration Statement. The following summaries of certain provisions of
the Indentures and the Debt Securities do not purport to be complete and
summaries of certain provisions of the Indentures and the Debt Securities do not
purport to be complete and such summaries are subject to the detailed provisions
of the applicable Indenture to which reference is hereby made for a full
description of such provisions, including the definition of certain terms used
herein. Section references in parentheses below are to sections in both
Indentures unless otherwise indicated. Wherever particular sections or defined
terms of the applicable Indenture are referred to, such sections or defined
terms are incorporated herein by reference as part of the statement made, and
the statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for certain covenants of the Company and
provisions relating to subordination and conversion.
The Debt Securities may be issued from time to time in one or more series.
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities of all series. The particular terms
of each series of Debt Securities offered by any Prospectus Supplement (the
"Offered Debt Securities") will be described therein.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Debt Securities will be unsecured senior or subordinated
obligations of the Company and may be issued from time to time in one or more
series. The Indentures do not limit the amount of Debt Securities, debentures,
notes or other types of indebtedness that may be issued by the Company or any of
its subsidiaries nor do they restrict transactions between the Company and its
affiliates or the payment of dividends or other distributions by the Company to
its stockholders. The rights of the Company's creditors, including holders of
Debt Securities, will be limited to the assets of the Company and will not be an
obligation of any of its Subsidiaries. In addition, other than as may be set
forth in any Prospectus Supplement, the Indentures do not and the Debt
Securities will not contain any covenants or other provisions that are intended
to afford holders of the Debt Securities special protection in the event of
either a change of control of the Company or a highly leveraged transaction by
the Company.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Offered Debt Securities): (i) the title of the
Offered Debt Securities; (ii) classification as either Senior Debt Securities or
Subordinated Debt Securities; (iii) whether the Offered Debt Securities that
constitute Subordinated Debt Securities are convertible into Common Stock and,
if so, the terms and conditions upon which such conversion will be effected
including the initial conversion price or conversion rate and any adjustments
thereto in addition to or different from those described herein, the conversion
period and other conversion provisions in addition to or in lieu of those
described herein; (iv) any limit on the aggregate principal amount of the
Offered Debt Securities; (v) whether the Offered Debt Securities are to be
issuable as Registered Securities or Bearer Securities or both, whether any of
the Offered Debt Securities are to be issuable initially in temporary global
form and whether any of the Offered Debt Securities are to be in permanent
global form; (vi) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (vii) the date or dates on which the Offered Debt Securities will
mature; (viii) the rate or rates per annum (or the method by which such will be
determined) at which the Offered Debt Securities will bear interest, if any, and
the date from which any such interest will accrue; (ix) the Interest Payment
Dates on
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<PAGE> 6
which any such interest on the Offered Debt Securities will be payable, the
Regular Record Date for any interest payable on any Offered Debt Securities
which are Registered Securities on any Interest Payment Date and the extent to
which, or the manner in which, any interest payable on a temporary global
Offered Debt Security on an Interest Payment Date will be paid; (x) any
mandatory or optional sinking fund or analogous provisions; (xi) each office or
agency where, subject to the terms of the Indentures as described below under
"Payment and Paying Agents", the principal of and any premium and interest on
the Offered Debt Securities will be payable and each office or agency where,
subject to the terms of the Indentures as described below under "Form, Exchange,
Registration and Transfer", the Offered Debt Securities may be presented for
registration of transfer or exchange; (xii) the right of the Company to redeem
the Offered Debt Securities at its option and the period or periods, if any,
within which and the price or prices at which the Offered Debt Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed, in
whole or in part, and the other detailed terms and provisions of any such
optional or mandatory redemption; (xiii) the denominations in which any Offered
Debt Securities which are Registered Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof, and the denomination
or denominations in which any Offered Debt Securities which are Bearer
Securities will be issuable, if other than the denomination of $5,000; (xiv) the
currency or currencies (including composite currencies) in which payment of
principal of and any premium and interest on the Offered Debt Securities is
payable; (xv) any index used to determine the amount of payments of principal of
and any premium and interest on the Offered Debt Securities; (xvi) information
with respect to book-entry procedures, if any; and (xvii) any other terms of the
Offered Debt Securities not inconsistent with the provisions of the Indentures.
(Section 301) Any such Prospectus Supplement will also describe any special
provisions for the payment of additional amounts with respect to the Offered
Debt Securities.
Debt Securities may be issued as Original Issue Discount Securities. An
Original Issue Discount Security is a Debt Security, including any Zero-Coupon
Security, which is issued at a price lower than the amount payable upon the
Stated Maturity thereof and which provides that upon redemption or acceleration
of the maturity thereof an amount less than the amount payable upon the Stated
Maturity thereof and determined in accordance with the terms of such Debt
Security shall become due and payable. Special United States federal income tax
considerations applicable to Debt Securities issued at an original issue
discount, including Original Issue Discount Securities, and special United
States tax considerations and other terms and restrictions applicable to any
Debt Securities which are issued in bearer form, offered exclusively to United
States Aliens or denominated in other than United States dollars, will be set
forth in a Prospectus Supplement relating thereto.
Form, Exchange, Registration and Transfer. Debt Securities of a series may
be issuable in definitive form solely as Registered Securities, solely as Bearer
Securities or as both Registered Securities and Bearer Securities. Unless
otherwise indicated in an applicable Prospectus Supplement, Bearer Securities
will have interest coupons attached. (Section 201) The Indentures also provide
that Debt Securities of a series may be issuable in temporary or permanent
global form. (Section 201)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both Registered Securities and Bearer Securities, at
the option of the Holder, and subject to the terms of the applicable Indenture,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Bearer Securities surrendered in exchange
for Registered Securities between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest accrued as of
such date will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the terms of the applicable Indenture.
Bearer Securities will not be issued in exchange for Registered Securities.
(Section 305)
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office
5
<PAGE> 7
of the Security Registrar or at the office of any transfer agent designated by
the Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
Indentures. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
will serve initially as Security Registrar. (Section 305) If a Prospectus
Supplement refers to any transfer agents (in addition to the Security Registrar)
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
solely as Registered Securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if Debt Securities
of a series are also issuable as Bearer Securities, the Company will be required
to maintain (in addition to the Security Registrar) a transfer agent in a Place
of Payment for such series located outside the United States. The Company may at
any time designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Debt Securities of that series for redemption and ending on the
close of business on (A) if Debt Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (B) if Debt Securities of the series are issuable as Bearer Securities, the
date of the first publication of the relevant notice of redemption or, if
Securities of the series are also issuable as Registered Securities and there is
no publication, the mailing of the relevant notice of redemption; (ii) register
the transfer of or exchange any Registered Security, or portion thereof, called
for redemption, except the unredeemed portion of any Registered Security being
redeemed in part; or (iii) exchange any Bearer Security called for redemption,
except to exchange such Bearer Security for a Registered Security of that series
and like tenor which is immediately surrendered for redemption. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Bearer Securities will be payable, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States as
the Company may designate from time to time, in the manner indicated in such
Prospectus Supplement. (Section 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest on Bearer Securities on
any Interest Payment Date will be made only against surrender to the Paying
Agent of the coupon relating to such Interest Payment Date. (Section 1001) No
payment with respect to any Bearer Security will be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a bank located in
the United States. Notwithstanding the foregoing, payments of principal of and
any premium and interest on Bearer Securities denominated and payable in U.S.
dollars will be made at the office of the Company's Paying Agent in the Borough
of Manhattan. The City of New York, if (but only if) payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made by check mailed on or before the due date to the
address of the Person entitled thereto as such address shall appear in the
Security Register. (Sections 307, 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the Person in whose name such Registered
Security is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Company, at its principal executive offices in Lakewood, Colorado will act as
its own Paying Agent for payments with respect to Debt Securities which are
issuable solely as Registered Securities and the Company will maintain a Paying
Agent outside the United States for payments with respect to Debt Securities
(subject to limitations described above
6
<PAGE> 8
in the case of Bearer Securities) which are issuable solely as Bearer Securities
or as both Registered Securities and Bearer Securities. Any Paying Agents
outside the United States and any other Paying Agents in the United States
initially designated by Company for the Debt Securities will be named in an
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that,
if Debt Securities of a series are issuable solely as Registered Securities, the
Company will be required to maintain a Paying Agent in each Place of Payment for
such series and, if Debt Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain (i) a Paying Agent in the
Borough of Manhattan, The City of New York for principal payments with respect
to any Registered Securities of the series (and for payments with respect to
Bearer Securities of the series in the circumstances described above, but not
otherwise), and (ii) a Paying Agent in a Place of Payment located outside the
United States where Debt Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (Section 1003)
Global Debt Securities. Debt Securities of a series may be issued in whole
or in part in the form of one or more global Debt Securities that will be
deposited with, or on behalf of, a depository identified in the Prospectus
Supplement relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
(Section 203) Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a global Debt Security may not
be transferred except as a whole by the depository for such global Debt Security
to a nominee of such depository or by a nominee of such depository to such
depository or another nominee of such depository or by the depository or any
nominee to a successor depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a series
of Debt Securities and certain limitations and restrictions relating to a series
of Bearer Securities in the form of one or more global Debt Securities will be
described in the Prospectus Supplement relating to such series.
Events of Default. Any one of the following events constitutes an Event of
Default under each Indenture with respect to Debt Securities of any series: (a)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days; (b) failure to pay principal of or any premium on any
Debt Security of that series when due; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d) failure
to perform any other covenant of the Company in such Indenture (other than a
covenant included in such Indenture solely for the benefit of series of any Debt
Securities other than that series), continued for 90 days after written notice
as provided in such Indenture; (e) certain events in bankruptcy, insolvency or
reorganization involving the Company; and (f) any other Event of Default
provided with respect to Debt Securities of that series (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series by notice as provided in the applicable Indenture may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Debt Securities of that series to be due
and payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
(Section 502)
Each Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee is under no
obligation to exercise any of its rights or powers under such Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee
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reasonable indemnity. (Sections 601, 603) Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series; provided, however, that the
Trustee is not obligated to take any action unduly prejudicial to Holders not
joining in such direction or involving the Trustee in personal liability.
(Section 512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of its obligations under each Indenture and as
to any default in such performance. (Section 1007)
Defeasance. If so specified with respect to any particular series of Debt
Securities issued under an Indenture, the Company may discharge its indebtedness
and its obligations or certain of its obligations under such Indenture with
respect to such series by depositing funds or obligations issued or guaranteed
by the United State of America with the Trustee. (Sections 1301-1303)
Defeasance and Discharge. Each Indenture provides that, if so specified
with respect to the Debt Securities of any series issued under such Indenture
(other than convertible Subordinated Debt Securities), the Company will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations relating to temporary Debt
Securities and exchange of Debt Securities, registration of transfer or exchange
of Debt Securities of such series, replacement of stolen, lost or mutilated Debt
Securities of such series, maintenance of paying agencies to hold moneys for
payment in trust and payment of additional amounts, if any, required in
consequence of United States withholding taxes imposed on payments to non-United
States persons) upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any), and each
installment of interest on, the Debt Securities of such series on the Stated
Maturity of such payments in accordance with the terms of such Indenture and the
Debt Securities of such series. (Sections 1302, 1304) Such a trust may only be
established if, among other things, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (ii)
since the date of such Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge, and will be subject to federal income
tax on the same amounts and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred.
(Section 1304) In the event of any such defeasance and discharge of Debt
Securities of such series, Holders of such series would be entitled to look only
to such trust fund for payment of principal of and any premium and any interest
on their Debt Securities until Maturity.
Covenant Defeasance. Each Indenture also provides that, if so specified
with respect to the Debt Securities of any series issued thereunder, the Company
may omit to comply with certain restrictive covenants, including (in the case of
the Senior Debt Indenture) the covenant described under "Limitation on Liens"
below, but excluding (in the case of the Subordinated Debt Indenture) any
applicable obligation of the Company respecting the conversion of Debt
Securities of such series into Common Stock, and any such omission shall not be
an Event of Default with respect to the Debt Securities of such series, upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any), and each installment of interest on, the
Debt Securities of such series on the Stated Maturity of such payments in
accordance with the terms of such Indenture and the Debt Securities of such
series. The obligations of the Company under such Indenture and the Debt
Securities of such series other than with respect to such covenants shall remain
in full force and effect. (Section 1303) Such a trust may be established only
if, among other things, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amounts and in the same manner and at the same time as would have been
the case if such deposit and defeasance had not occurred. (Section 1304)
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Although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Debt Securities of such series at the time of their Stated Maturity, in the
event the Company exercises its option to omit compliance with the covenants
defeased with respect to the Debt Securities of any series as described above,
and the Debt Securities of such series are declared due and payable because of
the occurrence of any Event of Default, such amount may not be sufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. The Company shall in any
event remain liable for such payments as provided in the applicable Indenture.
Federal Income Tax Consequences. Under current United States federal income
tax law, defeasance and discharge would likely be treated as a taxable exchange
of Debt Securities to be defeased for an interest in the defeasance trust. As a
consequence, a holder would recognize gain or loss equal to the difference
between the holder's cost or other tax basis for such Debt Securities and the
value of the holder's interest in the defeasance trust, and thereafter would be
required to include in income the holder's share of the income, gain or loss of
the defeasance trust. Under current United States federal income tax law,
covenant defeasance would ordinarily not be treated as a taxable exchange of
such Debt Securities.
Meetings, Modification and Waiver. Modifications and amendments of either
Indenture may be made by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without consent of the
Holder of each Outstanding Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any Debt Security, (b) change the Redemption Date with respect to any Debt
Security, (c) reduce the principal amount of, or premium or interest on, any
Debt Security, (d) change any obligation of the Company to pay additional
amounts, (e) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof, (f) change the coin
or currency in which any Debt Security or any premium or interest thereon is
payable, (g) change the redemption right of any Holder, (h) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security or any conversion right with respect thereto, (i) reduce the percentage
in principal amount of Outstanding Securities of any series, the consent of
whose Holders is required for modification or amendment of such Indenture or for
waiver of compliance with certain provisions of such Indenture or for waiver of
certain defaults, (j) reduce the requirements contained in such Indenture for
quorum or voting, (k) change any obligation of the Company to maintain an office
or agency in the places and for the purposes required by such Indenture, (l)
adversely affect the right to convert Subordinated Debt Securities, if
applicable, or (l) modify any of the above provisions. (Section 902)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness (as defined below under
"-- Provisions Applicable Solely to Subordinated Debt Securities") then
outstanding that would be adversely affected thereby. (Section 907 of the
Subordinated Debt Indenture)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of that series, waive,
insofar as that series is concerned, compliance by the Company with certain
restrictive provisions of the Indenture under which such series has been issued.
(Section 1008) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of that
series, waive any past default under the applicable Indenture with respect to
any Debt Securities of that series, except a default (a) in the payment of
principal of, or premium, if any, or any interest on any Debt Security of such
series or (b) in respect of a covenant or provision of such Indenture which
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected. (Section 513)
Each Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder or are
present at a meeting of the Holders for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that is deemed to be Outstanding
will be the amount of the principal that
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would be due and payable as of the date of such determination upon acceleration
of the Maturity thereof, and (ii) the principal amount of a Debt Security
denominated in a foreign currency or currency units will be the U.S. dollar
equivalent, determined on the date of original issuance of such Debt Security,
of the principal amount of such Debt Security or, in the case of an Original
issue Discount Security, the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the amount determined as provided in (i)
above. (Section 101)
Each Indenture contains provisions for convening meetings of the Holders of
a series if Debt Securities of that series are issuable as Bearer Securities.
(Section 1401) A meeting may be called at any time by the Trustee, and also,
upon request, by the Company or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of such series, in any such case
upon notice given in accordance with "Notices" below. (Section 1402) Except for
any consent which must be given by the Holder of each Outstanding Security
affected thereby, as described above, any resolution presented at a meeting (or
adjourned meeting at which a quorum is present) may be adopted by the
affirmative vote of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in aggregate
principal amount of the Outstanding Securities of a series may be adopted at a
meeting (or adjourned meeting duly reconvened at which a quorum is present) by
the affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series. Any resolution
passed or decision taken at any meeting of Holders of any series duly held in
accordance with the applicable Indenture will be binding on all Holders of that
series and related coupons. The quorum at any meeting, and at any reconvened
meeting, will be Persons holding or representing a majority in aggregate
principal amount of the Outstanding Securities of a series. (Section 1404)
Consolidation, Merger and Sale of Assets. The Company, without the consent
of the Holders of any of the outstanding Securities under either Indenture, may
consolidate with or merge into, or convey, transfer or lease its assets
substantially as an entirety to, any Person which is a corporation, partnership
or trust organized and validly existing under the laws of any domestic
jurisdiction, provided that any successor Person assumes the Company's
obligations on the Securities and under such Indenture, that after giving effect
to the transaction no Event of Default, and no event which, after notice or
lapse of time, would become an Event of Default, shall have occurred and be
continuing, and that certain other conditions are met. (Section 801)
Notices. Except as otherwise provided in the Indentures, notices to Holders
of Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Bearer Securities. Notices to Holders of Registered Securities
will be given by mail to the addresses of such Holders as they appear in the
Security Register. (Section 106)
Title. Title to any Bearer Securities (including Bearer Securities in
permanent global form) and any coupons appertaining thereto will pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon and the
registered owner of any Registered Security as the owner thereof (whether or not
such Debt Security or coupon shall be overdue and notwithstanding any notice to
the contrary) for the purpose of making payment and for all other purposes.
(Section 308)
Replacement of Securities and Coupons. Any mutilated Debt Security or a
Debt Security with a mutilated coupon appertaining thereto will be replaced by
the Company at the expense of the Holder upon surrender of such Debt Security to
the Trustee. Debt Securities or coupons that became destroyed, stolen or lost
will be replaced by the Company at the expense of the Holder upon delivery to
the Trustee of the Debt Security and coupons or evidence of destruction, loss or
theft thereof satisfactory to the Company and the Trustee; in the case of any
coupon which becomes destroyed, stolen or lost, such coupon will be replaced by
issuance of a new Debt Security in exchange for the Debt Security to which such
coupon appertains. In the case of a destroyed, lost or stolen Debt Security or
coupon, an indemnity satisfactory to the Trustee and the Company may be required
at the expense of the Holder of such Debt Security or coupon before a
replacement Debt Security will be issued. (Section 306)
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Governing Law. The Indentures, the Debt Securities and coupons will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 113)
Regarding the Trustee. First Trust of Illinois, National Association, the
Trustee under each Indenture, is also trustee under another indenture under
which several issues of the Company's debt securities are outstanding.
Each Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee is
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest (as described in the Indentures), it must eliminate such
conflict or resign. (Section 608)
Pursuant to the Trust Indenture Act of 1939, as amended, should a default
occur with respect to either the Senior Debt Securities or the Subordinated Debt
Securities, First Trust of Illinois, National Association would be required to
resign as Trustee under one of the Indentures within 90 days of such default
unless such default were cured, duly waived or otherwise eliminated.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. Senior Debt Securities will be issued under the Senior Debt
Indenture, and each series will rank pari passu as to the right of payment of
principal and any premium and interest with each other series issued thereunder
and will rank senior to all series of Subordinated Debt Securities that may be
issued.
Certain Definitions. For purposes of the following discussion, the
following definitions are applicable (Section 101 of the Senior Debt Indenture).
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (a) total current liabilities (excluding current maturities of
long-term debt and preferred stock); (b) all reserves for depreciation and other
asset valuation reserves but excluding reserves for deferred federal and state
income taxes; (c) all intangible assets such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense carried as an asset and
(d) all appropriate adjustments on account of minority interests of other
Persons holding common stock in any Subsidiary.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Property" means any natural gas pipeline, natural gas
distribution system, natural gas gathering system or natural gas storage
facility located in the United States, except any such property that in the
opinion of the Board of Directors is not of material importance to the business
conducted by the Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property.
"Subsidiary" means a corporation more than 50% of the outstanding stock of
which is owned, directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
Limitation on Liens. The Company covenants in the Senior Debt Indenture
that it will not, nor will it permit any Subsidiary to, issue, assume or
guarantee any debt for money borrowed ("Debt") if such Debt is secured by a
mortgage, pledge, security interest or lien (a "mortgage" or "mortgages") upon
any Principal Property of the Company or any Principal Subsidiary or upon any
shares of stock or indebtedness of any Principal Subsidiary (whether such
Principal Property, shares or indebtedness was owned on the date of the Senior
Debt Indenture or thereafter acquired) without in any such case effectively
providing that the Senior Debt Securities shall be secured equally and ratably
with (or prior to) such Debt, except that the foregoing
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restrictions shall not apply to: (a) mortgages on any property acquired,
constructed or improved by the Company or any Principal Subsidiary after the
date of the Senior Debt Indenture which are created within 180 days after such
acquisition (or in the case of property constructed or improved, after the
completion and commencement of commercial operation of such property, whichever
is later) to secure or provide for the payment of the purchase price or cost
thereof, provided that in the case of such construction or improvement the
mortgages shall not apply to any property theretofore owned by the Company or
any Subsidiary other than theretofore unimproved real property; (b) existing
mortgages on property acquired (including mortgages on any property acquired
from a Person which is consolidated with or merged with or into the Company or a
Subsidiary) or mortgages outstanding at the time any corporation becomes a
Subsidiary; (c) mortgages in favor of domestic or foreign governmental bodies to
secure advances or other payments pursuant to any contract or statute or to
secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages, including
mortgages to secure Debt of the pollution control or industrial revenue bond
type; (d) mortgages in favor of the Company or any Principal Subsidiary; or (e)
any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any mortgage referred to in any of the
foregoing clauses (a)-(d). (Section 1006 of the Senior Debt Indenture)
Notwithstanding the foregoing, the Company and any Subsidiary may, without
securing the Senior Debt Securities, issue, assume or guarantee secured Debt
(which would otherwise be subject to the foregoing restrictions) in an aggregate
amount which, together with all other such Debt, does not exceed 10% of the Net
Tangible Assets, as shown on a consolidated balance sheet as of a date not more
than 90 days prior to the proposed transaction prepared by the Company in
accordance with generally accepted accounting principles. (Section 1006 of the
Senior Debt Indenture)
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness (as defined below) of the Company. If the
Company should default in the payment of any principal of or premium or interest
on any Senior Indebtedness when the same becomes due and payable, whether at
maturity or a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Indebtedness or any trustee therefor and subject to
certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default has been cured or
waived or ceases to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of, premium, if any, or interest, if any, on the Subordinated Debt
Securities, or in respect of any redemption, retirement, purchase or other
acquisition of the Subordinated Debt Securities other than those made in capital
stock of the Company (or cash in lieu of fractional shares thereof) pursuant to
any conversion right of the Subordinated Debt Securities or otherwise made in
capital stock of the Company. (Sections 1601, 1604 and 1605 of the Subordinated
Debt Indenture)
"Senior Indebtedness" is defined in Section 101 of the Subordinated Debt
Indenture as Indebtedness (as defined below) of the Company outstanding at any
time except (a) any Indebtedness as to which, by the terms of the instrument
creating or evidencing the same, it is provided that such Indebtedness is not
senior in right of payment to the Subordinated Debt Securities, (b) the
Subordinated Debt Securities, (c) any Indebtedness of the Company to a
wholly-owned Subsidiary of the Company, (d) interest accruing after the filing
of a petition initiating certain bankruptcy or insolvency proceedings unless
such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (e) trade accounts
payable. "Indebtedness" is defined in Section 101 of the Subordinated Debt
Indenture as, with respect to any Person, (a) (i) the principal of and premium
and interest, if any, on indebtedness for money borrowed of such Person
evidenced by bonds, notes, debentures or similar obligations, including any
guaranty by such Person of any indebtedness for money borrowed of any other
Person, whether any such indebtedness or guaranty is outstanding on the date of
the Subordinated Debt Indenture or is thereafter created, assumed or incurred,
(ii) the principal of and premium and interest, if any, on indebtedness for
money borrowed, incurred,
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assumed or guaranteed by such Person in connection with the acquisition by it or
any of its subsidiaries of any other business, properties or other assets and
(iii) lease obligations which such Person capitalizes in accordance with
Statement of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect, (b) any other indebtedness of
such Person, including any indebtedness representing the balance deferred and
unpaid of the purchase price of any property or interest therein, including any
such balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect of any
indebtedness of another, which is outstanding on the date of the Subordinated
Debt Indenture or is thereafter created, assumed or incurred by such Person and
(c) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clause (a) or (b) above.
If (i) without the consent of the Company a court shall enter (A) an order
for relief with respect to the Company under the United States federal
bankruptcy laws, (B) a judgment, order or decree adjudging the Company a
bankrupt or insolvent, or (C) an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Company under the
United States federal bankruptcy laws or state insolvency laws or (ii) the
Company shall institute proceedings for the entry of an order for relief with
respect to the Company under the United States federal bankruptcy laws or for an
adjudication of insolvency, or shall consent to the institution of bankruptcy or
insolvency proceedings against it, or shall file a petition seeking, or seek or
consent to reorganization, arrangement, composition or similar relief under any
applicable law, or shall consent to the filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official in respect of the Company or of substantially
all of its property, or the Company shall make a general assignment for the
benefit of creditors, then all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings) will first be
paid in full before any payment or distribution, whether in cash, securities or
other property, is made on account of the principal of, premium, if any, or
interest, if any, on the Subordinated Debt Securities. In such event, any
payment or distribution on account of the principal of, premium, if any, or
interest, if any, on the Subordinated Debt Securities, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the Subordinated Debt Securities will be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. If any payment or distribution on account of the principal
of, premium, if any, or interest, if any, on the Subordinated Debt Securities of
any character, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
Subordinated Debt Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or any
holder of any Subordinated Debt Securities in contravention of any of the terms
of the Subordinated Debt Indenture, such payment or distribution will be
received in trust for the benefit of, and will be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the holders of Subordinated Debt Securities, together with the
holders of any obligations of the Company ranking on a parity with the
Subordinated Debt Securities, will be entitled to be repaid from the remaining
assets of the Company the amounts at that time due and owing on account of
unpaid principal of or any premium or interest on the Subordinated Debt
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall
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be made on account of any capital stock or obligations of the Company ranking
junior to the Subordinated Debt Securities and such other obligations. (Section
1601 of the Subordinated Debt Indenture)
The Prospectus Supplement respecting any series of Subordinated Debt
Securities will set forth any subordination provisions applicable to such series
in addition to or different from those described above.
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness and holders of other obligations of the
Company that are not subordinated to Senior Indebtedness may receive more,
ratably, than holders of the Subordinated Debt Securities. Such subordination
will not prevent the occurrence of an Event of Default or limit the right of
acceleration in respect of the Subordinated Debt Securities.
Conversion. The Subordinated Debt Indenture may provide for a right of
conversion of Subordinated Debt Securities into Common Stock (or cash in lieu
thereof). (Sections 301 and 1501 of the Subordinated Debt Indenture) The
following provisions will apply to Debt Securities that are convertible
Subordinated Debt Securities unless otherwise provided in the Prospectus
Supplement for such Debt Securities.
The holder of any convertible Subordinated Debt Securities will have the
right exercisable at any time prior to maturity, unless previously redeemed or
otherwise purchased by the Company, to convert such Subordinated Debt Securities
into shares of Common Stock at the conversion price or conversion rate set forth
in the Prospectus Supplement, subject to adjustment. (Section 1502 of the
Subordinated Debt Indenture) The holder of convertible Subordinated Debt
Securities may convert any portion thereof which is $1,000 in principal amount
or any integral multiple thereof. (Section 1502 of the Subordinated Debt
Indenture)
In certain events, the conversion price or conversion rate will be subject
to adjustment as set forth in the Subordinated Debt Indenture. Such events
include the issuance of shares of Common Stock of the Company as a dividend or
distribution on the Common Stock; subdivisions, combinations and
reclassifications of the Common Stock; the issuance to all holders of Common
Stock of rights or warrants entitling the holders thereof (for a period not
exceeding 45 days) to subscribe for or purchase shares of Common Stock at a
price per share less than the then current market price per share of Common
Stock (as determined pursuant to the Subordinated Debt Indenture); and the
distribution to substantially all holders of Common Stock of evidences of
indebtedness, equity securities (including equity interests in the Company's
Subsidiaries) other than Common Stock, or other assets (excluding cash dividends
paid from surplus) or subscription rights or warrants (other than those referred
to above). No adjustment of the conversion price or conversion rate will be
required unless an adjustment would require a cumulative increase or decrease of
at least 1% in such price or rate. (Section 1504 of the Subordinated Debt
Indenture) The Company has been advised by its counsel, Vinson & Elkins L.L.P.,
that certain adjustments in the conversion price or conversion rate in
accordance with the foregoing provisions may result in constructive
distributions to either holders of the Subordinated Debt Securities or holders
of Common Stock which would be taxable pursuant to Treasury Regulations issued
under section 305 of the Internal Revenue Code of 1986, as amended. The amount
of any such taxable constructive distribution would be the fair market value of
the Common Stock which is treated as having been constructively received, such
value being determined as of the time the adjustment resulting in the
constructive distribution is made.
Fractional shares of Common Stock will not be issued upon conversion, but,
in lieu thereof, the Company will pay a cash adjustment based on the then
current market price for the Common Stock. (Section 1503 of the Subordinated
Debt Indenture) Upon conversion, no adjustments will be made for accrued
interest or dividends, and therefore convertible Subordinated Debt Securities
surrendered for conversion between the record date for an interest payment and
the interest payment date (except convertible Subordinated Debt Securities
called for redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive. (Sections 1504 and 1502 of the Subordinated
Debt Indenture)
In the case of any consolidation or merger of the Company (with certain
exceptions) or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person, each
14
<PAGE> 16
holder of convertible Subordinated Debt Securities, after the consolidation,
merger, conveyance, transfer or lease, will have the right to convert such
convertible Subordinated Debt Securities only into the kind and amount of
securities, cash and other property which the holder would have been entitled to
receive upon or in connection with such consolidation, merger, conveyance,
transfer or lease, if the holder had held the Common Stock issuable upon
conversion of such convertible Subordinated Debt Securities immediately prior to
such consolidation, merger, conveyance, transfer or lease. (Section 1505 of the
Subordinated Debt Indenture)
DESCRIPTION OF CAPITAL STOCK
GENERAL
K N is currently authorized by its Restated Articles of Incorporation, as
amended (the "K N Charter") to issue 50,000,000 shares of Common Stock, of which
28,398,165 were outstanding on April 30, 1996; 200,000 shares of Class A
Preferred Stock, no par value ("Class A Preferred Stock"), of which 70,000
shares were outstanding as Class A $5.00 Cumulative Preferred Stock on such
date; and 2,000,000 shares of Class B Preferred Stock, no par value ("Class B
Preferred Stock"), of which 5,720 shares were outstanding as Class B $8.30
Series Cumulative Preferred Stock on such date.
The Board of Directors of K N is authorized by the K N Charter to provide,
without further stockholder action, for the issuance of one or more series of
Class A Preferred Stock and Class B Preferred Stock. The Board of Directors has
the power to fix various terms with respect to each such series, including
voting power, designations, preferences, dividend rates, conversion and exchange
provisions, redemption provisions and, in the case of the Class B Preferred
Stock, the amounts which holders are entitled to receive upon any liquidation,
dissolution or winding up of K N. Class A Preferred Stock and Class B Preferred
Stock will rank prior to the Common Stock with respect to both dividends and
distribution of assets on liquidation, dissolution or winding up of K N.
In the event of any liquidation, dissolution or winding up of K N, whether
voluntary or involuntary, the holders of shares of Class A Preferred Stock of
each series shall be entitled to receive in full out of the assets of K N the
sum of $100 per share of Class A Preferred Stock, plus any arrearages in
dividends thereon to the date fixed for the payment in liquidation, before any
distribution shall be made to the holders of shares of any stock junior to the
Class A Preferred Stock. K N may, at the option of the Board of Directors,
redeem the whole or any part of the Class A Preferred Stock, or of any series
thereof at any time or from time to time within the period during which such
stock is, according to the K N Charter, or the resolutions of the Board of
Directors providing for the issue thereof, redeemable, by paying the redemption
price thereof, including any arrearages in dividends thereon to the date fixed
for redemption. The Class A $5.00 Cumulative Preferred Stock is redeemable at
the price of $105 per share plus accrued and unpaid dividends. Holders of shares
of Class A $5.00 Cumulative Preferred Stock are entitled to receive, when and as
declared by the Board of Directors of K N, cumulative preferential cash
dividends at the annual rate of $5.00 per share prior to the payment of any
dividends or other distributions on (or purchase or redemption of) the Class B
Preferred Stock or the Common Stock.
In the event of any liquidation, dissolution or winding up of K N, whether
voluntary or involuntary, the holders of shares of Class B Preferred Stock of
each series shall be entitled to receive, subject to the prior rights of the
holders of shares of Class A Preferred Stock, the full preferential amount fixed
by the K N Charter, or the resolutions of the Board of Directors providing for
the issue thereof, including any arrearages in dividends thereon to the date
fixed for the payment in liquidation, before any distribution shall be made to
the holders of shares of any stock junior to the Class B Preferred Stock.
K N is required to redeem (at $100 per share, plus accrued and unpaid
dividends) 5,714 shares of the Class B $8.30 Series Cumulative Preferred Stock
on January 1, 1997 and the remaining 6 shares on January 1, 1998. At the option
of K N, this series of Preferred Stock is redeemable, in whole or in part, at
$100.87 per share, plus accrued and unpaid dividends, prior to January 2, 1997
and 5,714 shares of the series may be redeemed on January 1, 1997 at $100 per
share, plus accrued and unpaid dividends. Upon liquidation, dissolution or
winding up of K N, the holders of such series are entitled to receive (subject
to the prior rights
15
<PAGE> 17
of the holders of shares of Class A Preferred Stock) $100 plus accrued and
unpaid dividends for each such share then outstanding, before any distribution
is made on the Common Stock. Holders of shares of Class B $8.30 Series
Cumulative Preferred Stock are entitled to receive, when and as declared by the
Board of Directors of K N, cumulative preferential cash dividends at the annual
rate of $8.30 per share prior to the payment of any dividends or other
distributions on (or purchase or redemption of) the Common Stock. Dividends may
not be declared or paid or set apart for payment on any series of Class B
Preferred Stock, unless there shall be no arrearages in dividends on any series
of Class A Preferred Stock entitled to cumulative dividends for any past
dividend period and dividends in full for the current dividend period have been
paid or declared or set aside for payment on all Class A Preferred Stock.
In addition, the holders of the Class A Preferred Stock then outstanding
have the right to vote separately as a class with respect to (i) certain
amendments to the K N Charter or the By-laws of K N which adversely affect the
voting powers, rights or preferences of the holders of shares of Class A
Preferred Stock, (ii) the creation of any class of stock or any security
convertible into or exchangeable for or evidencing the right to purchase any
stock ranking prior to or on a parity with, either as to dividends or upon
liquidation, the Class A Preferred Stock, or (iii) certain mergers or
consolidations of K N with or into any other corporation. For such actions to be
taken by K N, including increasing the authorized amount of any class of stock
ranking prior to the Class A Preferred Stock, the affirmative vote of the
holders of at least 50% of the shares of the Class A Preferred Stock then
outstanding would be required. The affirmative vote of at least 50% of the
shares of any series of Class A Preferred Stock then outstanding is required for
K N to amend the K N Charter or resolutions of the Board of Directors of K N
providing for the issue of such series of Class A Preferred Stock so as to
affect adversely the powers, preferences or rights of holders of Class A
Preferred Stock of such series. The holders of Class B Preferred Stock then
outstanding also have the right to a separate vote regarding (a) the events
described in the first sentence of this paragraph with regard to such Class B
Preferred Stock, requiring the affirmative vote of at least 50% of the shares of
Class B Preferred Stock then outstanding, and (b) amendments to the K N Charter,
or to resolutions of K N's Board of Directors providing for the issue of any
series of Class B Preferred Stock so as to affect adversely the powers,
preferences or rights of the holders of such series, requiring the affirmative
vote of at least 50% of the shares of such series then outstanding.
Without the affirmative vote or consent of the holders of all Class B $8.30
Series Cumulative Preferred Stock at the time outstanding, voting or consenting
separately as a series, K N is not permitted to (i) issue or reissue any shares
of Class A Preferred Stock (other than for purposes of exchanges or transfers)
in excess of the first 195,000 shares of Class A Preferred Stock authorized and
issued, or (ii) increase above 120,000 the aggregate number of shares
constituting the Class B $8.30 Series Cumulative Preferred Stock authorized for
issuance, or issue or reissue any shares of such series (other than for purposes
of exchanges or transfers) in excess of the first 120,000 shares authorized and
issued.
If dividends are in arrears on the shares of any series of Class A
Preferred Stock to which the following provisions are made applicable pursuant
to the K N Charter or resolutions of K N's Board of Directors providing for the
issue of any such series (i) in an aggregate amount equal to three but less than
six full quarterly dividends, then the holders of the shares of all such series
of Class A Preferred Stock have the exclusive right, voting separately as a
class and without regard to series, to elect directors constituting one-third of
K N's Board of Directors or (ii) in an aggregate amount equal to six full
quarterly dividends, then such holders have the exclusive right, voting
separately as a class and without regard to series, to elect directors
constituting one-half of K N's Board of Directors plus one additional director,
in each case until all arrearages in dividends and dividends in full for the
current quarterly period have been paid on or declared and set aside for payment
on the shares of such series. These provisions are applicable to the Class A
$5.00 Cumulative Preferred Stock. The holders of the outstanding Class B $8.30
Series Cumulative Preferred Stock have the right to elect directors of K N
similar to the Class A $5.00 Cumulative Preferred Stock in the event of
non-declaration of dividends, for the periods described above, on the Class B
$8.30 Series Cumulative Preferred Stock if the holders of the Class A $5.00
Cumulative Preferred Stock are not then entitled to elect directors as described
above.
All outstanding shares of Common Stock are, and any shares of Common Stock
newly issued under any Prospectus Supplement will be, validly issued, fully paid
and nonassessable. Holders of K N Common Stock,
16
<PAGE> 18
Class A $5.00 Cumulative Preferred Stock and Class B $8.30 Series Cumulative
Preferred Stock are entitled to one vote for each share on all matters voted on
by stockholders. Holders of Common Stock, Class A Preferred Stock and Class B
Preferred Stock have no preemptive rights to subscribe for or purchase any
additional securities issued by K N. Subject to the preferential rights of the
holders of the Class A Preferred Stock and Class B Preferred Stock, the holders
of Common Stock are entitled to receive any dividends which may be declared by
the Board of Directors out of funds legally available therefor and to share pro
rata in the net assets of K N upon liquidation, dissolution or winding up.
Shares of Common Stock have no cumulative voting rights or redemption, sinking
fund or conversion privileges.
ANTI-TAKEOVER MATTERS
Charter and Bylaws Certain provisions of the K N Charter and the By-laws of
K N could have the effect of preventing a change in control of K N in certain
situations. These provisions generally provide for (a) the classification of the
Board of Directors of K N into three classes of as nearly an equal number as
possible, having staggered terms of three years each; (b) the removal of
directors only for cause or by unanimous vote of the remaining members of the
Board of Directors; (c) the filling of any vacancy on the Board of Directors by
the remaining directors then in office; (d) the limitation of the number of
directors to a minimum of nine and a maximum of 15, with the exact number to be
determined by the Board of Directors; (e) increasing the stockholder vote
required to amend, repeal or adopt any provision inconsistent with the foregoing
provisions under (a), (b) and (d) above to two-thirds of the outstanding voting
securities of K N; (f) the requirement that certain business combinations or
transactions involving K N and any beneficial owner of more than 5% of the
outstanding voting securities of K N be approved by holders of at least
two-thirds of the outstanding voting securities of K N, including those held by
such beneficial owner, unless the business combination or transaction is (I)
approved by the Board of Directors before such beneficial owner became a holder
of more than 5% of K N's outstanding voting securities or (II) approved by
sufficient members of the Board of Directors to constitute a majority of the
members of the full Board of Directors in office prior to the time such
beneficial owner became a holder of more than 5% of K N's voting securities, or
(III) with an entity of which a majority of the outstanding shares of voting
securities is owned by K N and its subsidiaries; (g) increasing the stockholder
vote required to amend, repeal or adopt any provision inconsistent with the
foregoing provision under (f) above to two-thirds or more of the then
outstanding shares of voting securities of K N; (h) the requirement that certain
business combinations or transactions involving K N and any beneficial owner of
10% or more of the outstanding voting securities of K N be approved by holders
of at least 80% of the outstanding voting securities of K N, including those
held by such beneficial owner, unless (I) the business combination or
transaction is approved by three-fourths of the Board of Directors then in
office who are not associated with or related to anyone who beneficially owns,
and do not themselves own, 10 percent or more of K N's voting securities or (II)
certain conditions relating generally to the fairness of the price to be
received by stockholders of K N in such business combination or transaction are
satisfied; (i) increasing the stockholder vote required to amend, repeal or
adopt any provision inconsistent with the foregoing provision under (h) above to
80% or more of the outstanding voting securities of K N unless approved by an
affirmative vote of three-fourths of the Board of Directors then in office who
are not associated with or related to anyone who beneficially owns, and do not
themselves own, 10% or more of K N's voting securities; (j) certain procedural
requirements for stockholder nominations to the Board of Directors; and (k) the
requirement that special meetings of stockholders may only be called by
stockholders owning 51% or more of the outstanding voting securities of K N, by
a majority of the Board of Directors, the Chairman of the Board of Directors or
the President of K N.
Shareholder Rights Plan. On August 17, 1995, the Board of Directors of K N
declared a dividend of one preferred share purchase right (a "Right") with
respect to each outstanding share of Common Stock held of record on September
15, 1995 or issued thereafter and prior to the date the Rights become
exercisable. Until the Rights become exercisable, they will be evidenced by
certificates for shares of Common Stock and will automatically trade with the
Common Stock. If and when the Rights become exercisable, Rights certificates
will be distributed and the Rights will become separately tradable. The full
terms of the Rights are set forth in the Rights Agreement dated as of August 21,
1995, between the Company and The Bank of New York, as Rights Agent, a copy of
which is filed as an exhibit to the Registration Statement.
17
<PAGE> 19
Each Right entitles the holder thereof to purchase from the Company one
one-thousandth of a share of Class B Junior Participating Series Preferred
Stock, without par value (the "Preferred Shares"), for a price of $80 per one
one-thousandth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The Rights become exercisable upon the earlier of (i) ten business
days following a public announcement that a person or group of affiliated or
associated persons has acquired beneficial ownership of 20% or more of the
outstanding voting shares of the Company of (ii) ten business days following the
commencement or announcement of an intention to commence a tender or exchange
offer the consummation of which would result in the beneficial ownership by a
person or group of 20% or more of the outstanding voting shares of the Company.
The Rights will expire on the later of September 15, 2005 or the third
anniversary of the date on which the Rights became exercisable (the "Final
Expiration Date"), unless the Final Expiration Date is extended or the Rights
are earlier redeemed or exchanged by the Company as described below.
If a person or group were to acquire 20% or more of the voting shares of
the Company, each Right then outstanding (other than Rights beneficially owned
by the acquiring person, which would become null and void) would become a right
to buy that number of shares of Common Stock (or, under certain circumstances,
the equivalent number of one one-thousandths of a Preferred Share) that at the
time of such acquisition would have a market value of two times the Purchase
Price of the Right. If the Company were acquired in a merger or other business
combination transaction or more than 50% of its consolidated assets or earning
power were sold, proper provision will be made so that holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have a market
value of two times the Purchase Price of the Right.
At any time after the acquisition by a person or group of beneficial
ownership of 20% or more of the outstanding voting shares of the Company and
before the acquisition by a person or group of 50% or more of the outstanding
voting shares of the Company, the Board of Directors may, at its option, issue
shares of Common Stock (or Preferred Shares) in mandatory redemption of, and in
exchange for, all or part of the then outstanding and exercisable Rights (other
than Rights owned by such person or group, which would become null and void) at
an exchange ratio of one share of Common Stock (or one one-thousandth of a
Preferred Share) for each Right, subject to adjustment. In addition, the Company
is entitled to redeem all of the outstanding Rights at a price of $0.01 per
Right at any time prior to the first public announcement that a person or group
has become the beneficial owner of 20% or more of the outstanding voting shares
of the Company.
Until a Right is exercised, the holder thereof, as such, has no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
KANSAS BUSINESS COMBINATION ACT
K N is subject to Sections 17-12,100 et seq. of the Kansas Statutes
Annotated (the "K.S.A."), which imposes a three-year moratorium on business
combinations between a Kansas corporation and an "interested stockholder" (in
general, a stockholder owning 15% or more of a corporation's outstanding voting
stock) or an affiliate or associate thereof unless (a) prior to an interested
stockholder becoming such, the board of directors of the corporation has
approved either the business combination or the transaction by which the
interested stockholder became such; (b) upon consummation of the transaction
resulting in an interested stockholder becoming such, the interested stockholder
owns 85% of the voting stock that was outstanding at the time the transaction
commenced (excluding, from the calculation of outstanding shares, shares
beneficially owned by management, directors and certain employees stock plans);
or (c) on or after the date an interested stockholder becomes such, the business
combination is approved by (i) the Board of Directors and (ii) the affirmative
vote of the holders of at least 66 2/3% of the outstanding shares (other than
those shares beneficially owned by the interested stockholder) at a meeting of
stockholders.
18
<PAGE> 20
KANSAS CONTROL SHARE ACQUISITIONS ACT
K N is also subject to Sections 17-1286 et seq. of the K.S.A. (the "Kansas
Control Share Acquisitions Act"), which applies to public corporations
incorporated in Kansas that have certain other connections with the state. The
Kansas Control Share Acquisitions Act relates principally to the acquisition of
"control shares" in such a corporation. Under the Kansas Control Share
Acquisitions Act, a control share acquisition is one that, except for the
operation of the Act, would raise the acquiring person's voting power in the
election of directors of the subject corporation to or above any of three
thresholds: one-fifth or more but less than one-third of all voting power;
one-third or more but less than a majority of all voting power; and at least a
majority of all voting power. Whenever a control share acquisition occurs, the
acquiring person has no voting rights with respect to those shares unless both a
majority of all outstanding shares and a majority of all such shares excluding
all "interested shares" (in general, shares beneficially controlled by the
acquiring person or any officer or inside director of the subject corporation)
approve the acquisition. If the control shares are accorded voting rights, then
dissenters' rights are available under the Kansas Control Share Acquisitions Act
to stockholders who did not vote in favor of the control share acquisition and
who comply with certain prescribed procedures. If the stockholders vote not to
accord voting rights to the control shares, however, then the issuing
corporation has a 60-day option to redeem all such shares at market value.
OTHER MATTERS
The Bank of New York serves as registrar and transfer agent for the Common
Stock and for the Class A $5.00 Cumulative Preferred Stock. K N serves as
registrar and transfer agent for its Class B $8.30 Series Cumulative Preferred
Stock.
SELLING STOCKHOLDER
The Selling Stockholder is a Delaware corporation having its principal
office in Boston, Massachusetts. On July 13, 1994, K N acquired American Oil and
Gas Corporation ("AOG") in a stock-for-stock merger (the "Merger") accounted for
as a pooling of interests. The Selling Stockholder was the largest stockholder
of AOG prior to the Merger, owning approximately 34.4% of the outstanding shares
of common stock of AOG at the time of the Merger plus warrants to purchase
approximately an additional 5.3% of such shares.
Before its acquisition of AOG, K N had no material relationship with the
Selling Stockholder. Pursuant to its merger agreement with AOG, at the time of
the Merger K N elected a designee of the Selling Stockholder as a non-voting
advisory director of K N, and for so long as the Selling Stockholder continues
to own beneficially at least 10% of K N's voting securities, the Selling
Stockholder will have the right to designate one such advisory director.
Currently, such advisory director is R. Gordon Shearer, President of Cabot LNG
Corporation. If the Selling Stockholder's beneficial ownership in K N is reduced
below 10% but continues over 5%, then the Board of Directors of K N will appoint
the Selling Stockholder's advisory director as a full director with voting
rights, and the Selling Stockholder will be entitled to have one designee for
election to the Board of Directors of K N.
The following table sets forth the number of shares of Common Stock owned
by the Selling Stockholder, the number of such shares being offered for sale by
it, the number of such shares to be owned by the Selling Stockholder after such
sale and the percentage of ownership of the outstanding shares of Common Stock
as of April 30, 1996 represented by the holdings of the Selling Stockholder
after such sale:
<TABLE>
<CAPTION>
SHARES TO PERCENT OF
SHARES BE CLASS TO
SHARES BEING OWNED AFTER BE OWNED
OWNED* SOLD SALE* AFTER SALE*
----------- ----------- ----------- -----------
<S> <C> <C> <C>
4,840,186 500,000 4,340,186 14.9%
</TABLE>
- ---------------
* Includes 642,232 shares of Common Stock underlying currently exercisable
warrants assumed by K N in the Merger.
19
<PAGE> 21
The Prospectus Supplement relating to any Offered Securities being offered
by the Selling Stockholder sets forth the number of shares of Common Stock being
offered for its account as well as the number of such shares and the percentage
of the outstanding Common Stock to be owned by the Selling Stockholder after
completion of the offering.
The Company will bear all of the expenses allocable to any Offered
Securities sold for the Selling Stockholder's account, excluding underwriting
discounts or commission allocable to such Offered Securities, fees and
disbursements of counsel for the Selling Stockholder and any stock transfer
taxes payable by reason of any such sale.
This Prospectus is not the exclusive means for resale of any Common Stock
of the Selling Stockholder registered hereunder. For example, the Selling
Stockholder may also sell Common Stock owned by it pursuant to Rule 144 under
the Securities Act. In addition, the Company has previously registered 1,500,000
shares of Common Stock of the Selling Stockholder for sale by the Selling
Stockholder, all of which shares remained unsold as of the date of this
Prospectus. Any sale of such 1,500,000 shares by the Selling Stockholder would
be by means of a separate prospectus.
PLAN OF DISTRIBUTION
GENERAL
Both the Company and the Selling Stockholder may sell Securities to or
through underwriters or dealers, and also may sell Securities directly to other
purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company, the Selling Stockholder or purchasers of
Securities for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions received by them from the Company or the Selling Stockholder, as
the case may be, and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any such person who may be deemed to be an underwriter will be identified, and
any such compensation received from the Company or the Selling Stockholder, as
the case may be, will be described, in the Prospectus Supplement.
Debt Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Debt Securities.
Under agreements which may be entered into by the Company or the Selling
Stockholder, underwriters, dealers and agents who participate in the
distribution of Securities may be entitled to indemnification by the Company or
the Selling Stockholder, as the case may be, against or contribution toward
certain liabilities, including liabilities under the Securities Act.
DELAYED DELIVERY ARRANGEMENT
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases will be subject to the approval of the
Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Debt Securities shall not at
the time of delivery be prohibited under the
20
<PAGE> 22
laws of any jurisdiction to which such purchaser is subject. The underwriters
and such agents will not have any responsibility in respect of the validity or
performance of such contracts.
VALIDITY OF SECURITIES
The validity of the Offered Securities, as well as certain tax matters in
connection therewith, will be passed upon for the Company by Vinson & Elkins
L.L.P., Houston, Texas, who may rely on the opinion of Polsinelli, White,
Vardeman & Shalton, Kansas City, Missouri, as to matters of Kansas law, and will
be passed upon for any agents, dealers or underwriters by counsel named in the
applicable Prospectus Supplement. If the Offered Securities include any Common
Stock of the Selling Stockholder, certain legal matters in connection therewith
will be passed upon for the Selling Stockholder by counsel named in the
applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements of K N Energy, Inc. included in its
Annual Report on Form 10-K for the year ended December 31, 1995, which is
incorporated by reference herein, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated herein in reliance upon the authority of said firm
as experts in accounting and auditing in giving said report. Reference is made
to such report, which calls attention to a change in accounting principles for
postemployment benefits effective January 1, 1994.
21
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the Company or the
Selling Stockholder in connection with the issuance and distribution of the
Securities, other than underwriting discounts and commissions. The Company will
bear all of such expenses, except for the Selling Stockholder's legal fees and
expenses. All the amounts shown are estimates, except the registration fee.
<TABLE>
<S> <C>
Registration Fee................................................ $ 120,067
Fees and expenses of accountants................................ 50,000
Fees and expenses of counsel to the Company..................... 75,000
Fees and expenses of the Selling Stockholder's counsel.......... 5,000
Fees and expenses of Trustee and counsel........................ 10,000
Printing and engraving.......................................... 100,000
Blue Sky fees and expenses (including counsel).................. 15,000
Rating agency fees.............................................. 150,000
Miscellaneous................................................... 49,933
----------
Total................................................. $ 575,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-6305 of the Kansas General Corporation Law provides that a
Kansas corporation shall have power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action or suit (including an action by or in the right of the
corporation to procure a judgment in its favor) or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit by or
in the right of the corporation, including attorney fees, and against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, including
attorney fees, if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation; and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. Article Ninth of
the articles of incorporation of the Company requires the Company to provide
substantially the same indemnification of its directors and officers as that
authorized by the Kansas General Corporation Law.
The Company has insurance policies which, among other things, include
liability insurance coverage for directors and officers, with a $200,000
corporate reimbursement deductible clause, under which directors and officers
are covered against "loss" arising from any claim or claims which may be made
against a director or officer by reason of any "wrongful act" in their
respective capacities as directors and officers. "Loss" is defined so as to
exclude, among other things, fines or penalties, as well as matters deemed
uninsurable under the law pursuant to which the policy is to be construed.
"Wrongful act" is defined to include any actual or alleged breach of duty,
neglect, error, misstatement, misleading statement or omission done or
wrongfully attempted. The policy also contains other specific definitions and
exclusions and provides an aggregate of $20,000,000 of insurance coverage.
II-1
<PAGE> 24
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parentheses:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
------- --------
<S> <C> <C>
(1.1) -- Form of Purchase Agreement (including form of Delayed Delivery
Contract) relating to Debt Securities (incorporated herein by
reference to Exhibit 1 to the Company's S-3 Registration Statement
No. 33-45091 filed with the Commission on January 17, 1992).
*(1.2) -- Form of Underwriting Agreement relating to Common Stock
(4.1) -- Form of Indenture, dated as of November 20, 1993, between K N Energy,
Inc. and Continental Bank, National Association (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement No.
33-51115).
(4.2) -- Form of Subordinated Indenture dated as of May 15, 1996 between the
Company and First Trust of Illinois, National Association as Trustee.
**(4.3) -- Forms of Debt Securities.
(4.4) -- Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994).
***(4.5) -- Bylaws of the Company, as amended.
(4.6) -- Rights Agreement dated as of August 21, 1995 between the Company and
The Bank of New York, as Rights Agent (incorporated by reference to
Exhibit 1 to the Company's Form 8-A Registration Statement dated
August 21, 1995).
(5) -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
Securities being registered.
(12) -- Computation of ratios of earnings to fixed charges.
(23.1) -- Consent of Independent Public Accountants.
(23.2) -- Consent of Vinson & Elkins L.L.P. (included in Exhibit (5)).
(24) -- Powers of Attorney.
(25) -- Statements of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of First Trust of Illinois, National
Association.
</TABLE>
- ---------------
* The Company will file any underwriting agreement relating to Common Stock
that it may enter into as an exhibit to a Current Report on Form 8-K which
is incorporated by reference into this Registration Statement.
** The Company will file any form of Debt Securities not previously so filed as
an exhibit to a Current Report on Form 8-K which is incorporated by
reference into this Registration Statement.
*** Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or
II-2
<PAGE> 25
in the aggregate, represent a fundamental change in the information set
forth in the registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(5) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
against the Company by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lakewood, State of Colorado on the 14th day of June,
1996.
K N ENERGY, INC.
BY: /s/ LARRY D. HALL
----------------------------------
Chairman of the Board,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 14, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
(i) Principal executive officer:
/s/ Larry D. Hall Chairman of the Board, President and Chief
- -------------------------------------------- Executive Officer
(Larry D. Hall)
(ii) Principal financial and accounting
Officer:
* Vice President and Chief Financial Officer
- --------------------------------------------
(Clyde E. McKenzie)
(iii) Directors:
*
- --------------------------------------------
(Edward H. Austin, Jr.)
*
- --------------------------------------------
(Charles W. Battey)
*
- --------------------------------------------
(Stewart A. Bliss)
*
- --------------------------------------------
(David W. Burkholder)
*
- --------------------------------------------
(David M. Carmichael)
*
- --------------------------------------------
(Robert H. Chitwood)
*
- --------------------------------------------
(Howard P. Coghlan)
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURE
---------
<S> <C>
*
- --------------------------------------------
(Jordan L. Haines)
/s/ LARRY D. HALL
- --------------------------------------------
(Larry D. Hall)
*
- --------------------------------------------
(William J. Hybl)
*
- --------------------------------------------
(Edward Randall, III)
*
- --------------------------------------------
(James C. Taylor)
*
- --------------------------------------------
(H. A. True, III)
*By: /s/ Larry D. Hall
---------------------------------------
(Larry D. Hall, Attorney-in-Fact)
</TABLE>
II-5
<PAGE> 28
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- --------------------- ---------------------------------------------------------------------
<S> <C> <C>
(1.1) -- Form of Purchase Agreement (including form of Delayed Delivery
Contract) relating to Debt Securities (incorporated herein by
reference to Exhibit 1 to the Company's S-3 Registration Statement
No. 33-45091 filed with the Commission on January 17, 1992).
*(1.2) -- Form of Underwriting Agreement relating to Common Stock
(4.1) -- Form of Indenture, dated as of November 20, 1993, between K N Energy,
Inc. and Continental Bank, National Association (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement No.
33-51115).
(4.2) -- Form of Subordinated Indenture dated as of May 15, 1996 between the
Company and First Trust of Illinois, National Association as Trustee.
**(4.3) -- Forms of Debt Securities.
(4.4) -- Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994).
(4.5) -- Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1994).
(4.6) -- Rights Agreement dated as of August 21, 1995 between the Company and
The Bank of New York, as Rights Agent (incorporated by reference to
Exhibit 1 to the Company's Form 8-A Registration Statement dated
August 21, 1995).
(5) -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
Securities being registered.
(12) -- Computation of ratios of earnings to fixed charges.
(23.1) -- Consent of Independent Public Accountants.
(23.2) -- Consent of Vinson & Elkins L.L.P. (included in Exhibit (5)).
(24) -- Powers of Attorney.
(25) -- Statements of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of First Trust of Illinois, National
Association.
</TABLE>
- ---------------
* The Company will file any underwriting agreement relating to Common Stock
that it may enter into as an exhibit to a Current Report on Form 8-K which is
incorporated by reference into this Registration Statement.
** The Company will file any form of Debt Securities not previously so filed as
an exhibit to a Current Report on Form 8-K which is incorporated by reference
into this Registration Statement.
<PAGE> 1
EXHIBIT 4.5
K N ENERGY, INC.
(Formerly Kansas-Nebraska Natural Gas Company, Inc.)
---ooOoo---
B Y - L A W S
As Amended to April 11, 1996
Effective April 11, 1996
---ooOoo---
ARTICLE I
OFFICES
Section 1. Offices. The registered office shall be at 205 F Street
in the City of Phillipsburg, County of Phillips, State of Kansas. The
Company's principal executive office shall be at 370 Van Gordon Street,
Lakewood, Colorado 80228-8304 (mailing address: Post Office Box 281304,
Lakewood, Colorado 80228-8304).
Section 2. Additional Offices. The corporation may also have offices
at such other places both within and without the State of Kansas as the Board
of Directors may from time to time determine or the business of the corporation
may require.
<PAGE> 2
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. Time and Place. The annual meeting of the shareholders
for the election of directors and all special meetings of shareholders for that
or for any other purpose may be held at such time and place within or without
the State of Kansas as shall be stated in the notice of the meeting, or in a
duly executed waiver of notice thereof.
Section 2. Annual Meeting. The annual meeting of the shareholders
shall be held each year at a time to be determined by the Board of Directors,
at which meeting the shareholders shall elect a Board of Directors, and
transact such other business as may be properly brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute may be
called by the Chairman of the Board, if any, the President or the Board of
Directors, and shall be called by the President or the Secretary at the request
in writing of a majority of the directors, or at the request in writing of
shareholders owning at least fifty-one percent (51%) in amount of the shares of
the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting.
Section 4. Notice. Written notice of the place, date and hour of any
annual or special meeting of shareholders shall be
2
<PAGE> 3
given personally or by mail to each shareholder entitled to vote thereat, not
less than ten (10) nor more than fifty (50) days prior to the meeting.
The notice shall state in addition, the purpose or purposes for which
the meeting is called, and by, or at whose direction it is being issued.
Section 5. Quorum. Except as otherwise provided by the Articles of
Incorporation, the holders of a majority of the shares of the Corporation
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall be necessary to and shall constitute a quorum for
the transaction of business at all meetings of the shareholders.
If, however, such quorum shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat present
in person or represented by proxy shall have power to adjourn the meeting from
time to time, but not for more than thirty (30) days, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed.
Section 6. Voting. At any meeting of the shareholders every
shareholder having the right to vote shall be entitled to vote in person, or by
proxy. Except as otherwise provided by law
3
<PAGE> 4
or the Articles of Incorporation, each shareholder of record shall be entitled,
as to each proposal, to one vote for each share of stock standing in his name
on the books of the Corporation on the date fixed as the record date for the
determination of its shareholders entitled to vote. All elections of directors
shall be by written ballot and shall be determined by a plurality vote, and,
except as otherwise provided by law or the Articles of Incorporation, all other
matters shall be determined by vote of a majority of the shares present or
represented at such meeting and voting on such questions.
Section 7. Proxies. Every proxy must be executed in writing by the
shareholder or by his attorney-in-fact. No proxy shall be valid after the
expiration of eleven (11) months from the date thereof, unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except in those cases where an irrevocable proxy is
permitted by law.
Section 8. Consents. Whenever by any provision of law or of the
Articles of Incorporation, the vote of shareholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action, the
meeting and vote of shareholders may be dispensed with, if all the shareholders
who
4
<PAGE> 5
would have been entitled to vote upon the action if such meeting were held,
shall consent in writing to such corporate action being taken.
Section 9. Presiding Officer. Meetings of the shareholders shall be
presided over by the Chairman of the Board, if any, or if he is not present, by
the President, or, if he is not present, by a Vice President or, if neither the
Chairman of the Board, the President nor a Vice President is present, by a
chairman to be chosen at the meeting. The Secretary of the Company or, if he
is not present, an Assistant Secretary of the Company or, if neither the
Secretary nor an Assistant Secretary is present, a secretary to be chosen at
the meeting, shall act as secretary of the meeting.
Section 10. Notice of Shareholder Business. At an annual meeting of
shareholders, only such business shall be conducted as shall have been properly
brought before the meeting (a) by or at the direction of the Board of Directors
or (b) by a shareholder who is a shareholder of record at the time of giving
such notice, who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section. For business to be
properly brought before an annual meeting by a shareholder, the shareholder
must have given timely notice
5
<PAGE> 6
thereof in writing to the Secretary. To be timely, a shareholder's notice must
be delivered to or mailed and received at the principal executive offices of
the Corporation, not less than 40 days prior to the meeting. A shareholder's
notice to the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the shareholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, and (d) any material interest of the
shareholder in such business. Nothwithstanding anything in these By-Laws to
the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section. The Chairman of an
annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
6
<PAGE> 7
Notwithstanding the foregoing provisions of this Section, a shareholder shall
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended and the rules and regulations thereunder with respect to the
matters set forth in this Section.
ARTICLE III
DIRECTORS
Section 1. Number and Tenure. The whole Board of Directors of the
Corporation shall consist of fourteen members. The directors shall be
classified with respect to the time for which they shall severally hold office
by dividing them into three classes, which were first approved at the annual
meeting of shareholders in 1975; Class I shall consist of three directors whose
initial term of office shall expire in 1994, Class II shall consist of four
directors whose initial term of office shall expire in 1995, and Class III
shall consist of three directors whose initial term of office shall expire in
1996. Each director shall hold office until his successor is duly elected and
qualified or until his resignation in writing has been filed with the
corporation. At each annual election, the successors of the class of directors
whose terms shall expire that year shall be
7
<PAGE> 8
elected to hold office for a term of three years, so that the term of office of
one class of directors shall expire in each year, except where the Board of
Directors determines that a newly elected director shall be elected by the
shareholders to fill a vacancy of a directorship created subsequent to the
previous annual meeting, such director shall be elected to hold office for the
balance of the term of the class of directors of which he is to be a member, as
determined by the Board of Directors, and until his successor is elected and
qualified.
Section 2. Vacancies. A vacancy on the Board of Directors or a newly
created directorship may be filled by a majority of the remaining directors,
though less than a quorum, or by the sole director, by election of a new
director, who at the time of his election shall be designated as a member of
one of the classes of directors and shall hold office until the next election
of the class of which he has become a member, unless his term of office is
terminated by death, resignation, or otherwise.
Section 3. Resignation; Removal. Any director may resign at any
time. The Board of Directors may by unanimous vote of other directors then in
office, remove a director with or without cause. The shareholders entitled to
vote for the election of
8
<PAGE> 9
directors may remove a director, with cause as provided in the Articles of
Incorporation.
Section 4. Advisory Directors and Directors Emeritus. The Board of
Directors by a vote of a majority of the directors present and entitled to
vote, at any regular or special meeting at which a quorum is present, may
designate such number of persons as it may from time to time determine, as an
"Advisory Director" or may designate a former member of the Board as a
"Director Emeritus," if such former member is willing to so serve. Each
Advisory Director and each Director Emeritus shall serve, subject to the
pleasure of the regular Board of Directors, until the next succeeding annual
meeting of the regular Board of Directors, following the annual meeting of the
stockholders, at which such regular directors are elected, unless he shall have
resigned. Each Advisory Director and each Director Emeritus shall be notified
of all regular or special meetings of the regular Board of Directors, shall be
entitled to attend and participate therein, but shall not be entitled to vote.
Each Advisory Director and each Director Emeritus shall be reimbursed for any
necessary expenses of attending directors' meetings.
Section 5. Nomination of Director Candidates.
(a) Eligibility to Make Nominations. Nominations of
9
<PAGE> 10
candidates for election as directors of the Corporation at any meeting of
shareholders called for election of directors, in whole or in part (an
"Election Meeting"), may be made by the Board of Directors or by any
shareholder who is a shareholder of record at the time of giving notice, who
shall be entitled to vote at such Election Meeting and who complies with the
notice procedures set forth in this Section.
(b) Procedure for Nominations by Shareholders. Nominations, other
than those made by the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary. To be timely, shareholder's notice shall
be delivered to or mailed and received at the principal executive offices of
the Corporation not less than 40 days prior to the date of the Election
Meeting. Such shareholder's notice shall set forth (i) the name, age, business
address and residence address of each nominee proposed in such notice, (ii) the
principal occupation or employment of each such nominee, (iii) the number of
shares of capital stock of the Corporation which are beneficially owned by each
such nominee and (iv) such other information concerning each such nominee as
would be required, under the rules of the SEC, in a proxy statement soliciting
proxies for the election of such nominees. Such notice shall include a signed
consent to serve as
10
<PAGE> 11
a director of the Corporation, if elected, of each such nominee. Such notice
shall also set forth as to the shareholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such shareholder and
(ii) the class and number of shares of the Corporation which are beneficially
owned by such shareholder.
(c) Meeting Procedures. No person shall be eligible for election as
a director of the Corporation unless nominated in accordance with the
procedures set forth in this Section. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by this Section 5, and if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(d) Substitution of Nominees. In the event that a person is validly
designated as a nominee to the Board and shall thereafter become unable or
unwilling to stand for election to the Board of Directors, the Board of
Directors or the shareholder who proposed such nominee, as the case may be, may
designate a substitute nominee.
(e) Securities Exchange Act of 1934. Notwithstanding the foregoing
provisions of this Section, a shareholder shall also
11
<PAGE> 12
comply with all applicable requirements of the Securities Exchange Act of 1934,
as amended and the rules and regulations thereunder with respect to the matters
set forth in this Section.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Place. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Kansas.
Section 2. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if any, or by the
President on two days' notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the Chairman, President or
Secretary in like manner and on like notice on the written request of two
directors.
Section 4. Quorum. At all meetings of the Board of Directors a
majority of the entire Board shall be necessary to and constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any meeting at
12
<PAGE> 13
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Articles of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time until a quorum shall be present. Notice of such adjournment shall be
given to any directors who were not present and, unless announced at the
meeting, to the other directors.
Section 5. Consents. Unless otherwise restricted by the Articles of
Incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or of such committee as the case
may be, consent thereto in writing and such written consent is filed with the
minutes of the Board or committee. Such consents may be in counterpart so that
each member will have signed a consent, but all members need not sign the same
document.
Section 6. Compensation. Directors, as such, shall not receive any
stated salary for their services, but, by resolution of the Board of Directors
an annual fee, plus a fee and expenses for attendance at meetings may be
allowed, provided that nothing herein contained shall be construed to preclude
any director from
13
<PAGE> 14
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 7. Presiding Officer. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or, if he is not
present, by the President or, if he is not present, by a chairman to be chosen
at the meeting. The Secretary of the Company, or, if he is not present, an
Assistant Secretary of the Company, or, if neither the Secretary nor an
Assistant Secretary is present, a secretary to be chosen at the meeting, shall
act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 1. Designation. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate from among its members
one or more committees, each consisting of two or more directors, each of
which, to the extent provided in such resolution, shall have and may exercise
the powers of the Board of Directors in the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it.
14
<PAGE> 15
The Board may designate one or more directors as alternate members of
any committee who may replace any absent or disqualified member at any meeting
of the committee.
Section 2. Tenure; Reports. Each such committee shall serve at the
pleasure of the Board. It shall keep minutes of its meetings and report the
same to the Board.
ARTICLE VI
EXECUTIVE COMMITTEE
Section 1. Appointment and Authority. The Board of Directors
may by resolution or resolutions passed by a majority of the whole Board create
and designate an Executive Committee consisting of the officer who is
designated as Chief Executive Officer and two or more other directors of the
Company who shall hold office subject to the pleasure of the Board of
Directors, and the Board shall have the power at any time to remove any of the
members of the Executive Committee and to appoint to the Committee other
directors in lieu of the directors so removed. The Chief Executive Officer
shall serve as Chairman of the Executive Committee. During the intervals
between the meetings of the Board of Directors the Executive Committee shall
possess and may exercise the powers delegated by the Board of Directors,
15
<PAGE> 16
including the power to authorize the seal of the Company to be affixed to all
papers which may require it, to authorize the payment of dividends, to
authorize the issuance of stock, to serve as a nominating committee for the
Board of Directors and to approve resolutions necessary for the day-to-day
operations of the Company; provided, however, that the Executive Committee
shall not have power to amend these By-Laws or to fill vacancies on the Board
of Directors or to fill vacancies in, or to change the membership of, said
Committee. The Executive Committee shall also have and may exercise all the
powers of the Board of Directors except as aforesaid whenever a quorum of the
Board shall fail to be present at any meeting of the Board.
Section 2. Report of Action Taken. All action of the Executive
Committee shall be reported to the Board of Directors at its meeting next
succeeding such action, and shall be subject to revision and alteration by the
Board, provided that no rights of third parties shall be affected by any such
revision or alteration. Regular minutes of the proceedings of the Executive
Committee shall be kept in a book provided for that purpose.
Section 3. Quorum and Procedure. A majority of the members of the
Executive Committee shall be necessary to constitute a quorum, and, in every
case, an affirmative vote of a majority of
16
<PAGE> 17
the members shall be necessary for the passage of any resolution. It shall fix
its own rules of procedure and shall meet as provided by such rules or by
resolution of the Board, and it shall also meet at the call of the Chairman or
of any two members of the Committee. Should the Executive Committee fail to
fix its own rules therefor, the provisions of these By-Laws, pertaining to the
calling of meetings and conduct of business by the Board of Directors, shall
apply as nearly as may be.
Section 4. Consent. Unless otherwise restricted by statute, the
Articles of Incorporation or these By-Laws, any action required or permitted to
be taken at any meeting of the Executive Committee thereof may be taken without
a meeting, if a written consent thereto is signed by each member of the
Executive Committee, and such written consent is filed with the minutes of
proceedings of the Executive Committee. Such consents may be in counterpart so
that each member will have signed a consent but all members need not sign the
same document.
ARTICLE VII
NOTICES
Section 1. Form; Delivery. Notices to directors and shareholders
shall be in writing and delivered personally or
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mailed to the directors or shareholders at their addresses appearing on the
books of the Corporation. Notice by mail shall be deemed to be given at the
time when the same shall be mailed. Notice to directors may also be given by
telegram.
Section 2. Waiver. Whenever any notice is required to be given under
the provisions of the statutes or of the Articles of Incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto. In addition, any shareholder attending a meeting of
shareholders in person or by proxy without protesting at the beginning of the
meeting the lack of notice thereof to him, and any director attending a meeting
of the Board of Directors without protesting prior to the meeting or at its
commencement such lack of notice shall be conclusively deemed to have waived
notice of such meeting.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The executive officers of the
Corporation shall be a President and one or more Vice
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Presidents, a Secretary, a Treasurer and may include a Chairman of the Board.
Section 2. Designation; Term of Office; Removal. All officers shall
be elected by the Board of Directors and shall hold office for such term as may
be prescribed by the Board or until their successors are chosen and qualified
or until their resignation is filed in the office of the Secretary, whichever
first occurs. Any officer elected by the Board may be removed with or without
cause at any time by the Board.
Section 3. Authority and Duties. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-Laws, or, to the
extent not so provided, by the Board of Directors.
Section 4. Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors and the compensation of
agents shall either be so fixed or shall be fixed by officers thereunto duly
authorized.
Section 5. Vacancies. If an office becomes vacant for any reason,
the Board of Directors shall fill such vacancy. Any officer so elected by the
Board shall serve only until such time
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as the unexpired term of his predecessor shall have expired unless re-elected
or reappointed by the Board.
Section 6. The Chairman of the Board. The Chairman of the Board of
Directors, if there be a Chairman, shall preside at all meetings of the
shareholders and directors and shall have such other powers and duties as may
from time to time be assigned by the Board including designation as Chief
Executive Officer if the President is not so designated.
Section 7. The President. The President shall be the Chief Executive
Officer of the Corporation unless the Chairman of the Board is so designated,
in which event the President shall be Chief Operating Officer of the
Corporation. In the absence of the Chairman of the Board, or if there be no
Chairman, he shall preside at all meetings of the shareholders and directors.
The Chief Executive Officer, whether the Chairman of the Board or the
President, shall be ex officio a member of all standing committees, shall have
general and active management and control of the business and affairs of the
Corporation subject to the control of the Board of Directors, and shall see
that all orders and resolutions of the Board are carried into effect.
Section 8. Vice Presidents. The Vice Presidents in the order of
their seniority or in any other order determined by the
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Board, shall in the absence or disability of the President, perform the duties
and exercise the powers of the President, and shall generally assist the
President and perform such other duties as the Board of Directors or the
President shall prescribe.
Section 9. The Secretary. The Secretary shall attend all meetings of
the Board and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the shareholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision
he shall act. He shall keep in safe custody the seal of the Corporation and,
when authorized by the Board, affix the same to any instrument requiring it
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or an Assistant Secretary or Assistant Treasurer. He shall
keep in safe custody the certificate books and shareholder records and such
other books and records as the Board may direct and shall perform all other
duties incident to the office of the Secretary.
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Section 10. Assistant Secretaries. The Assistant Secretaries, if
any, in order of their seniority or in any other order determined by the Board
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as the
Board of Directors or the Secretary shall prescribe.
Section 11. The Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
He shall establish and execute programs for the provision of the capital
required by the Company, including negotiating the procurement of capital and
maintaining the required financial arrangements. He shall establish and
maintain
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an adequate market for the Company's securities and, in connection therewith,
maintain adequate liaison with investment bankers, financial analysts and
shareholders. He shall maintain adequate sources for the Company's current
borrowings from commercial banks and other lending institutions.
He shall maintain banking arrangements to receive, have custody of and
disburse the Company's moneys and securities. He shall invest the Company's
funds as required and establish and coordinate policies for investment in
pension and other similar trusts.
Section 12. Assistant Treasurers. The Assistant Treasurers, if any,
in the order of their seniority or in any other order determined by the Board,
shall in the absence or disability of the Treasurer, perform the duties and
exercise the power of the Treasurer and shall perform such other duties as the
Board of Directors or the Treasurer shall prescribe.
ARTICLE IX
CERTIFICATE OF SHARES
Section 1. Form; Signature. The certificates for shares of the
Corporation shall be in such form as shall be determined by the Board of
Directors and shall be numbered consecutively and
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entered in the books of the Corporation as they are issued. Each certificate
shall exhibit the registered holder's name and the number and class of shares,
and shall be signed by the President or a Vice President and the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary, and shall
bear the seal of the Corporation or a facsimile thereof. Where any such
certificate is countersigned by a transfer agent or by a registrar other than
the Corporation, the signature of any such officer may be a facsimile
signature. In case any officer who signed, or whose facsimile signature or
signatures were placed on any such certificate shall have ceased to be such
officer before such certificate is issued, it may nevertheless be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
Section 2. Lost Certificates. The Board of Directors may direct a
new share certificate or certificates to be issued in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost or destroyed. When authorizing such issue
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance
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thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost or destroyed.
Section 3. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation,
or such transfer agent to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 4. Registered Shareholders. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends or
other distributions, and to vote as such owner, and to hold liable for calls a
person registered on its books as the owner of shares, and shall not be bound
to recognize any equitable or legal claim to or interest in such share or
shares on the part of any other person.
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Section 5. Record Date. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action affecting the interests of shareholders, the Board
of Directors may fix, in advance, a record date. Such date shall not be more
than sixty (60) nor less than ten (10) days before the date of any such
meeting, nor more than sixty (60) days prior to any other action.
In each such case, except as otherwise provided by law, only such
persons as shall be shareholders of record on the date so fixed shall be
entitled to notice of, and to vote at, such meeting and any adjournment
thereof, or to express such consent or dissent, or to receive payment of such
dividend, or such allotment of rights, or otherwise to be recognized as
shareholders for the related purpose, notwithstanding any registration of
transfer of shares on the books of the Corporation after any such record date
so fixed.
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ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the Articles of
Incorporation, if any, dividends upon the outstanding shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law and may be paid in cash, in property, or in shares of the
Corporation.
Section 2. Reserves. Before payment of any dividends, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 3. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full
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and clear statement of the business and condition of the corporation.
Section 4. Instruments Under Seal. All deeds, bonds, mortgages,
contracts, and other instruments requiring a seal may be signed in the name of
the Corporation by the President or by any other officer authorized to sign
such instrument by the President or the Board of Directors.
Section 5. Checks. All checks or demands for money and notes or
other instrument evidencing indebtedness or obligation of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 6. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of January of each year and shall end on the
thirty-first day of December following.
Section 7. Seal. The corporate seal shall have inscribed thereon the
name of the corporation and the words "Corporate Seal, Kansas 1927." The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
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ARTICLE XI
AMENDMENTS
Section 1. These By-Laws may be altered or repealed at any regular
meeting of the Board of Directors, or at any special meeting of the Board of
Directors if notice of such alteration or repeal be contained in the notice of
such special meeting.
ARTICLE XII
SPECIAL MANAGEMENT PROVISIONS
Section 1. General. The provisions of this Article XII of the By-Laws
have been adopted by the Board of Directors of the Corporation pursuant to that
certain Agreement of Merger by and between the Corporation, KNE Acquisition
Corporation, a Delaware corporation, and American Oil and Gas Corporation, a
Delaware corporation dated March 24, 1994 (the "Merger Agreement").
Capitalized terms used in this Article XII not otherwise defined herein shall
have the meaning ascribed to them in the Merger Agreement. The provisions of
this Article XII shall be effective from and after the Effective Time
notwithstanding any other provisions of these By-Laws to the contrary. In the
event of a conflict between the provisions of this Article XII and other
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provisions of the By-Laws, the provisions of this Article XII shall control.
Section 2. Vice-Chairman. The office of Vice-Chairman of the Board
shall be established by the Board of Directors. The Vice-Chairman shall
perform the duties of the Chairman of the Board as provided in these By-Laws in
the Chairman's absence and such additional duties as the Board of Directors may
prescribe from time to time.
Section 3. Cabot Director. For so long as Cabot Corporation shall
continue to own beneficially (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission) 10% or more of the issued and
outstanding voting stock of the Corporation, Cabot Corporation shall have the
right to designate one person to serve as an advisory director of the
Corporation. In the event beneficial ownership of Cabot Corporation of the
issued and outstanding voting stock of the Corporation falls below 10% but
constitutes more than 5%, the Board of Directors shall appoint the Cabot
Corporation advisory director as a full director, to serve the then remaining
term of a Class II director. For so long as Cabot Corporation continues to own
beneficially less than 10% but more than 5% of the issued and outstanding
voting stock of the Corporation, the Board of
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Directors shall nominate a Cabot Corporation designee (provided that such
nominee is otherwise qualified as required by these By-Laws) for election by
the Corporation's stockholders as a director. The Corporation shall at all
times during which Cabot Corportion shall beneficially own in excess 10% of the
issued and outstanding voting stock of the Corporation, maintain a vacancy on
its Board of Directors for such Cabot designee.
Section 4. Terms of Office for Certain Officers. The persons
designated as of the Effective Time to hold the offices of Chairman of the
Board, Vice-Chairman of the Board, President, Chief Executive Officer and
Chairman of the Management Committee will be elected to terms commencing as of
the Effective Time and terminating on the date of the Corporation's Annual
Meeting of Stockholders in 1996. After such date, nothwithstanding any other
provision of this Article XII to the contrary, such officers shall be elected
by majority of the Board of Directors.
Section 5. Vacancies in Certain Offices. Any vacancy arising
following the Effective Time and prior to the Corporation's Annual Meeting of
Stockholders in 1996, in the offices of the Chairman of the Board,
Vice-Chairman of the Board, President, Chief Executive Officer or Chief
Operating Officer, or on the Management Committee or the Chairman of the
Management
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Committee, shall be filled by the Board of Directors upon recommendation by a
Special Nominating Committee of the Board of Directors. The Board of Directors
shall by majority vote establish a Special Nominating Committee in the event of
a vacancy in any of the foregoing positions. The Special Nominating Committee
shall consist of four directors, two of whom shall be designated by the Board
of Directors from the directors of the Corporation who served as a director
prior to the Effective Time, and two of whom shall be designated by the
directors designated by American Oil and Gas Corporation in the Merger
Agreement.
Section 6. Continuation of Retirement Policy. The Corporation shall
continue its present retirement policy that officers of the Corporation
(including the Chairman of the Board, Vice-Chairman of the Board, President and
Chief Executive Officer or Chief Operating Officer) shall be ineligible and
cease to serve as an officer of the Corporation as of the first of the month
coincident with or next following his or her 65th birthday.
Section 7. Super-Majority Vote. For purposes of this Article XII,
the term "Super-Majority Vote" shall mean the affirmative vote of at least 12
of a 14-member Board of Directors; at least 11 of a 13-member Board of
Directors; at
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least 10 of a 12-member Board of Directors; at least 9 of an 11-member Board of
Directors; or in all other cases, the affirmative vote of a number of directors
equal to at least 85% of the total number of directors. A Super-Majority Vote
shall be required for the following actions to be taken by the Board of
Directors; (i) amendment, modification or revocation of any provision of this
Article XII; (ii) amendment, modification or revocation of the current
retirement policy of the Corporation; and (iii) any increase in the number of
members to serve on the Board of Directors; provided that, no Super-Majority
Vote shall be required for any such action taken by the Board of Directors from
and after the date of the annual stockholders meeting for 1997.
I hereby certify that the foregoing are the By-Laws of K N Energy,
Inc. as the same were adopted at the meeting of the Board of Directors on May
20, 1975, and subsequently amended at meetings of the Board of Directors on
November 20, 1975, November 8, 1978, August 5, 1983, November 11, 1983,
November 16, 1984, January 9, 1988, March 24, 1989, August 10, 1989, January
20, 1991, November 10, 1993, June 24, 1994, July 13, 1994 and are still in
force and effect on this 11th day of April, 1996.
__________________________________
Martha B. Wyrsch
Secretary
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