The record contains somewhat inconsistent representations by Section Applicants regarding their view of the Commission's legal right to inspect the books and records of any entities above SFPP and Calnev.
However, Section Applicants' reply brief states: "There is no real controversy No action is necessary to enhance the existing level of complete Commission or shipper access to the books and records of SFPP and Calnev. No specific action is required to preserve the Commission's existing statutory authority governing access to the books and records of Knight Holdco and subjecting Knight Holdco's officers and employees to Commission process.
Thus, Section Applicants concede the Commission's jurisdiction to demand the production of such documents that we consider cognate and germane to our regulation of the pipelines, whether these documents are held at the pipeline or holding company level.
They also recognize our jurisdiction to order production to Shippers and other customers. To avoid any confusion in the future, we deem it prudent to condition our approval upon such access as the Commission, itself, may determine to be necessary, consistent with established precedent.
Like Calnev, SFPP traditionally has provided pipeline common carriage under cost-based ratemaking principles, and numerous contested issues in these proceedings may affect whether rate increases SFPP has levied over the past 10 years are allowed to stand or are determined to be excessive. If the Commission should order rate refunds, Shippers want to be sure to collect them and they ask us to condition any approval of the change of control upon the establishment by SFPP of liquid collateral, such as a letter of credit, for that purpose.
Section Applicants state that though they do not expect any refund liability for SFPP, the utility has adequate borrowing capacity to pay refunds, if ordered to do so.
They clearly view any Commission order as unnecessary micromanagement of their business preferences; in response to ConocoPhillip's request for a reserve of cash or cash equivalents, they argue:. ConocoPhillips asks the Commission to reform the existing KMEP partnership agreement and dilute the rights of existing unit holders by restricting the amount of cash available for distribution to them There is no need to discuss the somewhat "apples and oranges" presentations put forward by the parties on SFPP's ability to meet its current obligations or its borrowing ability the record on Calnev's status is very slim.
After reviewing all of the evidence on this subject, we conclude that Section Applicants have not fully rebutted Shipper's claims that SFPP's borrowing capacity will be insufficient to enable it to discharge all near-term liability, including intrastate and interstate rate refunds.
We are obliged to ensure that SFPP is able to honor and timely discharge any refund liability that may be determined in C. Under the circumstances presented here, we agree with Shippers that sound policy militates against using one potential mechanism we asked the parties to examine - a credit on future rates as the method of funding any past overcharges.
Not only might such method fail to reach those Shippers due refunds if any are ordered, but potentially it could reduce the monies available for necessary, ongoing maintenance and safety.
No other party supports a rate credit and we do not pursue it here. The letter of credit should be designed, in form and in substance, to convey the direct obligation of the bank to any Shippers entitled to refunds, notwithstanding the insolvency or credit risk of the entity or entities legally responsible for repayment of the letter of credit.
Shippers ask that we have the letter of credit served on them and permit comments. We decline to hold this proceeding open to do so, though we recognize Shippers' interest in the terms of a legal document created for their potential benefit. The assigned ALJ and Assigned Commissioner, or either of them, may determine whether to allow any further proceedings in that docket in connection with the letter of credit.
No costs associated with the financing shall be recovered in future rates charged to pipeline customers. The Commission may not adopt a cavalier attitude toward any utilities or any utility customers, even large oil companies. KMI should have entered into its acquisition of SFPP with full realization that while a public utility may provide a regular revenue stream, it also carries public service obligations.
Knight Holdco must recognize the same. Shippers must pursue their interstate claims at FERC. Acknowledgment of Conditions. Consistent with past practice, we require the Knight Holdco Board of Managers to acknowledge the conditions upon our authorization of the transfer of control.
Though different in form from the holding company organizations that led to the major restructuring of energy utilities beginning in the s, the transaction by which KMI will be taken private is significant and warrants this formality. Under CEQA, we must consider the environmental consequences of projects that are subject to our discretionary approval and may have an impact upon the environment.
Section Applicants affirmatively state in the Section Application and Amendment to it that the proposed change in control of KMI will not result in any change in the "public utility operations or related activities or in any additional construction" for either SFPP or Calnev.
Section Application at 14; Amendment at 2. Indicated Shipper's claim that this proves that Calnev does not intend to pursue what they represent to be a needed pipeline extension from Barstow to Las Vegas, but their claim has nothing to do with CEQA. We base our analysis on the following. One, the Barstow extension is not a reasonably foreseeable impact of approval of the Section Application, but at this time remains a speculative future undertaking.
Two, all review required under CEQA will occur in conjunction with future applications for all permits necessary to undertake the intrastate portion of such construction. After review, we agree that the proposed transfer of control does not raise issues which will give rise to physical, operational changes that could affect the environment.
Because the pipeline utilities will be operated as previously authorized by this Commission, the Section Application is not a project pursuant to Pub. CFC's objection, filed March 8, argues that we should require a verification that no other responsive documents exist, but we think that Rule 1. We grant the April 17, Motion of Indicated Shippers to Reopen the Record to receive this information and reject Joint Applicants opposition, filed the same day. We find that the information is material and therefore meets the requirements of Rule We identify the one-page document as Ex.
We identify these documents, respectively, as Ex. CFC's objection, filed April 18, , argues that we should require a verification, but we think that Rule 1. In the case of adjustment for a cash dividend that is, or is coincident with, a regular quarterly cash dividend, the Per Share Fair Market Value would be reduced by the per share amount of the portion of the cash dividend that would constitute an Ordinary Cash Dividend.
In such event, the Exercise Number shall be increased to the number obtained by multiplying the Exercise Number immediately prior to such adjustment by the quotient of x the Exercise Price in effect immediately prior to the Pro Rata Repurchase giving rise to this adjustment divided by y the new Exercise Price determined in accordance with the immediately preceding sentence. For the avoidance of doubt, no increase to the Exercise Price or decrease in the Exercise Number shall be made pursuant to this Section 2.
In case of any Business Combination or reclassification of Common Stock other than a reclassification of Common Stock referred to in Section 2. In determining the kind and amount of stock, securities or the property receivable upon exercise of a Warrant following the consummation of such Business Combination, if the holders of Common Stock have the right to elect the kind or amount of consideration receivable upon consummation of such Business Combination, then the consideration that a Holder shall be entitled to receive upon exercise shall be deemed to be the types and amounts of consideration received by the majority of all holders of the shares of Common Stock that affirmatively make an election or of all such holders if none make an election.
Whenever the Exercise Price or the Exercise Number shall be adjusted as provided in this Article II, the Company shall forthwith file at the principal office of the Company a statement showing in reasonable detail the facts requiring such adjustment and the Exercise Price that shall be in effect and the Exercise Number after such adjustment.
The Company shall deliver to the Warrant Agent a copy of such statement and shall cause a copy of such statement to be sent or communicated to the Holders pursuant to Section 4. In the event that the Company shall propose to take any action of the type described in this Article II but only if the action of the type described in this Article II would result in an adjustment in the Exercise Price or the Exercise Number or a change in the type of securities or property to be delivered upon exercise of a Warrant , the Company shall deliver to the Warrant Agent a notice and shall cause such notice to be sent or communicated to the Holders in the manner set forth in Section 4.
Such notice shall also set forth the facts with respect thereto as shall be reasonably necessary to indicate the effect on the Exercise Price and the number, kind or class of shares or other securities or property which shall be deliverable upon exercise of a Warrant. In the case of any action which would require the fixing of a record date, such notice shall be given at least ten 10 days prior to the date so fixed, and in case of all other action, such notice shall be given at least fifteen 15 days prior to the taking of such proposed action.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. As a condition precedent to the taking of any action which would require an adjustment pursuant to this Article II, the Company shall take any action which may be necessary, including obtaining regulatory, New York Stock Exchange, NASDAQ Stock Market or other applicable national securities exchange or stockholder approvals or exemptions, in order that the Company may thereafter validly and legally issue as fully paid and nonassessable all Warrant Shares that a Holder is entitled to receive upon exercise of a Warrant pursuant to this Article II.
Any adjustments pursuant to this Article II shall be made successively whenever an event referred to herein shall occur. If an adjustment in Exercise Price made under this Agreement would reduce the Exercise Price per share of Common Stock to an amount below par value of the Common Stock, then such adjustment in Exercise Price made under this Agreement shall reduce the Exercise Price per share of Common Stock to the par value of the Common Stock. The Company agrees that it will not take any action which would entitle a Holder to an adjustment of the Exercise Price if the total number of shares of Common Stock issuable after such action upon exercise of the Warrants, together with all shares of Common Stock then outstanding and all shares of Common Stock then issuable upon the exercise of all outstanding options, warrants, conversion and other rights, would exceed the total number of shares of Common Stock then authorized by its certificate of incorporation.
The form of Warrant Certificate or Warrant Statement need not be changed because of any adjustment made pursuant to this Agreement, and Warrant Certificates or Warrant Statements issued after such adjustment may state the same Exercise Price and the same Exercise Number as are stated in the Warrant Certificates or Warrant Statements initially issued pursuant to this Agreement.
The Company, however, may at any time in its sole discretion make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate, and any Warrant Certificate thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed.
The Company hereby appoints the Warrant Agent to act as agent for the Company with respect to the Warrants and in accordance with the provisions of this Agreement, and the Warrant Agent hereby accepts such appointment. The Warrant Agent shall act under this Agreement solely as agent, and its duties shall be determined solely by the provisions of this Agreement.
The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement, except for its own willful misconduct, gross negligence or bad faith.
The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty under this Agreement either itself or by or through its attorneys or agents which shall not include its employees. The Warrant Agent shall account as promptly as practicable to the Company with respect to Warrants exercised and shall concurrently pay to the Company all monies received by the Warrant Agent for the purchase of Warrant Shares through the exercise of such Warrants.
If the Warrant Agent shall receive any notice, demand or other document addressed to the Company by a Holder with respect to the Warrants, the Warrant Agent shall as promptly as practicable forward such notice, demand or other document to the Company. The Warrant Agent may consult at any time with legal counsel satisfactory to it who may be counsel to the Company , and the Warrant Agent shall incur no liability or responsibility for any action taken, suffered or omitted by it under this Agreement in reasonable reliance on and in accordance with the advice of such counsel.
The Warrant Agent will not incur any liability or responsibility for any action taken in reasonable reliance on any notice, written statement, resolution, waiver, consent, order, certificate or other paper, document or instrument reasonably believed by it to be genuine and to have been signed, sent, presented or made by the proper party or parties.
The statements contained herein and in the Warrants shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same, except as set forth by the Warrant Agent or as evidenced by action taken by the Warrant Agent.
The Warrant Agent shall not be responsible for the validity, execution or delivery of this Agreement except the due execution of this Agreement by the Warrant Agent or for the validity, execution or delivery of any Warrant except the due countersignature of such Warrant Certificate by the Warrant Agent , and the Warrant Agent shall not by any act under this Agreement be deemed to make any representation or warranty as to the authorization or reservation of any Warrant Shares or other stock to be issued pursuant to this Agreement or any Warrant, or as to whether any Warrant Shares or other stock will, pursuant to this Agreement or any Warrant, when issued, be validly issued, fully paid and nonassessable.
The Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties under this Agreement from the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, one of its Executive Vice Presidents or Vice Presidents, the Treasurer or the Controller of the Company, and to make an application to such officers for advice or instructions in connection with its duties, and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in reasonable reliance and in accordance with instructions of any such officer.
The Warrant Agent shall not be liable for any action taken by, or omission of any action by, the Warrant Agent in accordance with a proposal included in any such application to such officers on or after the date specified in such application which date shall not be less than five 5 business days after the date any such officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date unless, prior to taking any such action or the effective date in the case of an omission , the Warrant Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or. The Company agrees to pay the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent in the performance of its duties under this Agreement, to reimburse the Warrant Agent for all reasonable expenses, taxes and governmental charges and other charges incurred by the Warrant Agent in the performance of its duties under this Agreement.
The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity, and the Company shall notify the Warrant Agent promptly of any claim for which it may seek indemnity. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or any one or more Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses that may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as warrant agent, and any recovery of judgment shall be for the ratable benefit of the Holders, as their respective rights or interests may appear.
The Warrant Agent and any stockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract. Nothing in this Agreement shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
The Company agrees for the benefit of the Holders that there shall at all times be a Warrant Agent under this Agreement until all the Warrants have been exercised or cancelled or are no longer exercisable. The Warrant Agent may at any time resign by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective.
The Warrant Agent under this Agreement may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date when it shall become effective. Any removal under this Section 3. Company by an instrument in writing, filed with the successor Warrant Agent.
In the event that a successor Warrant Agent is not appointed by the Company, a successor Warrant Agent, qualified as aforesaid, may be appointed by the Warrant Agent or the Warrant Agent may petition a court to appoint a successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent under this Agreement; provided , however , that in the event of the resignation of the Warrant Agent under this Section 3.
Any successor Warrant Agent appointed under this Agreement shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment under this Agreement, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights and obligations of such predecessor with like effect as if originally named as the Warrant Agent under this Agreement, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as the Warrant Agent under this Agreement.
Any entity into which the Warrant Agent may be merged or consolidated, or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party, or any entity to which the Warrant Agent shall sell or otherwise transfer all or substantially all of its assets and business, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided , however , that it shall be qualified as aforesaid.
Any notice pursuant to this Agreement by the Company or by any Holder to the Warrant Agent, or by the Warrant Agent or by any Holder to the Company, shall be in writing and shall be delivered by facsimile transmission, or mailed first class, postage prepaid, a to the Company, at its offices at Dallas Street, Suite , Houston, Texas , Attention: General Counsel, or b to the Warrant Agent, at its offices at Royall Street, Canton, Massachusetts , Attn.
Corporate Actions Department. Each party to this Agreement may from time to time change the address to which notices to it are to be delivered or mailed by notice to the other party. Any notice mailed pursuant to this Agreement by the Company or the Warrant Agent to the Holders shall be in writing and shall be mailed first class, postage prepaid, or otherwise delivered, to such Holders at their respective addresses on the registry of the Warrant Agent.
The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holder in order to cure any ambiguity or to correct or supplement any provision contained in this Agreement that may be defective or inconsistent with any other provision in this Agreement, or to make any other provisions in regard to matters or questions arising under this Agreement that the Company and the Warrant Agent may deem necessary or desirable; provided , however , that no such supplement or amendment to this Agreement shall be made that adversely affects the interests or rights of any of the Holders in any respect.
Notwithstanding the foregoing, a supplement or amendment to this Agreement may be made by one or more substantially concurrent written instruments duly signed by the Holders of a majority of the then outstanding Warrants and delivered to the Company; provided , however , that the consent of each Holder affected thereby shall be required for any amendment pursuant to which: a the Exercise Price would be increased or the Exercise Number would be decreased in each case, other than pursuant to adjustments in accordance with Article II , b the time period during which the Warrants are exercisable would be shortened or c the antidilution provisions set forth in Article II would be changed in such a way as to adversely affect such Holder.
In determining whether the Holders of the required number of outstanding Warrants have approved any supplement or amendment to this Agreement, Warrants owned by the Company or its controlled Affiliates, if any, shall be disregarded and deemed not to be outstanding.
All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of the respective successors and assigns of the Company or the Warrant Agent under this Agreement.
Prior to the Expiration Date, the Company shall not effect any rights offering for the sale of Common Stock to substantially all of the holders of Common Stock if the per share price payable in such rights offering is less than the Market Price on the trading day immediately prior to the pricing of such rights offering.
This Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Warrant Agent and the Holders any legal or equitable right, remedy or claim under this Agreement. This Agreement may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
The table of contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not intended to be considered a part of this Agreement and shall not modify or restrict any of the terms or provisions of this Agreement. The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction.
The Warrant Agent shall keep copies of this Agreement and any notices given or received under this Agreement shall be made available for inspection by the Holders during normal business hours at its principal office in Massachusetts.
The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a business day, then such action may be taken or such right may be exercised on the next succeeding day that is a business day. Neither party to this Agreement shall be liable to the other party for any consequential, indirect, special or incidental damages under any provisions of this Agreement or for any consequential, indirect, penal, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility of such damages.
As used in this Agreement, the following terms having the meanings ascribed thereto below:. If such security is not listed and traded in a manner that the quotations referred to above are available for the period required under this Agreement, the Market Price per share of Common Stock shall be deemed to be the fair market value per share of such security as determined in good faith by the Board of Directors in reliance on an opinion of a nationally recognized independent investment banking corporation retained by the Company for such purpose; provided , however , that if any such security is listed or traded solely on a non-U.
Name: Joseph Listengart. Title: Vice President. Name: Thomas Borbely. Title: Manager, Corporate Actions. See Attached. Alexander David SampleMR. Warrants evidenced by this Warrant Certificate shall not have been exercised.
This Warrant Certificate may be The Warrants may be exercised in whole or in part by presentation of this Warrant Certificate with the Notice exchanged at the office of the Warrant Agent by surrender of this Warrant Certificate properly endorsed either of Exercise on the reverse side hereof duly executed and simultaneous payment of the Exercise Price at the separately or in combination with one or more other Warrant Certificates for one or more new Warrant Certificates principal office of Computershare Inc.
Payment of such price shall be made, at the option of the Holder, either i by certified purchasable on exercise of the Warrants evidenced by the Warrant Certificate or Certificates exchanged.
Price as defined in the Warrant Agreement on the trading day on which such Warrants are exercised that is equal The Warrants may be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or to the aggregate Exercise Price. The Exercise Price and the number of shares of Common Stock that may be disposed of, in whole or in part, but only in accordance with the terms of the Warrant Agreement and in compliance purchased upon the exercise of the Warrants evidenced by this Warrant Certificate are subject to modification and with all applicable laws.
Insurance Value And, if said number of shares shall not be all the shares purchasable under the within Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the shares purchasable thereunder less any fraction of a share paid in cash.
The IRS requires that we report the cost basis of certain shares acquired after January 1, If your shares were covered by the legislation and you have sold or transferred the shares and requested a specific cost basis calculation method, we have processed as requested. If you did not specify a cost basis calculation method, we have defaulted to the first in, first out FIFO method. Please visit our website or consult your tax advisor if you need additional information about cost basis.
If you do not keep in contact with us or do not have any activity in your account for the time periods specified by state law, your property could become subject to state unclaimed property laws and transferred to the appropriate state. Authorized Paying Agent. Security Features Details on Back. Authorized Signature s. Sales requests submitted on this Direct Registration Transaction Request Form will be processed as a batch order.
Please see instructions on the reverse side for more information. Signatures: The instructions given above must be signed by the registered holder. If held in joint name, both owners must sign. If you have any questions, call the number above. Signature 1 - Please keep signature within the box. Signature 2 - Please keep signature within the box.
Sale requests submitted on this Direct Registration Transaction Request Form will be treated as a batch order and are generally processed no later than five business days after the date on which the form is received. A market order sale may be available by telephone or through Investor Centre at www. Please contact us at the phone number listed on the reverse side or refer to the Terms and Conditions of Sales Facility in the Direct Registration brochure for more information concerning the types of orders available and fee details.
Note: market orders and batch orders are subject to different fees. The IRS requires that we report the cost basis of certain warrants acquired after January 2, If your warrants are covered by the legislation and you provide a written request specifying a cost basis calculation method to be used when selling those warrants, we will process as requested. If you do not specify a cost basis calculation method, we will default to selling warrants in first in, first out FIFO order as shown on our system.
When selling through Computershare, you are unable to direct the time at which the warrants may be sold and you are unable to select the broker through whom sales are made. If your warrants are covered by the legislation and you sell or transfer the warrants and request a specific cost basis calculation method, we will process as requested.
If you do not specify a cost basis calculation method, we will default to the first in, first out FIFO method. To be executed upon exercise of Warrant.
The purchase price shall be paid:. Please issue a certificate or certificates for such shares of Common Stock in the name of, and pay any cash for any fractional share to:.
To be executed only upon transfer of [Warrant Certificate] to the extent such transfer is permissible under the terms of the Warrant Agreement. For value received, hereby sells, assigns and transfers unto the within [Warrant Certificate], together with all right, title and interest therein, and does hereby irrevocably constitute and appoint attorney, to transfer said [Warrant Certificate] on the books of Kinder Morgan, Inc.
Dated: , TO THE. Capitalized terms used in this Amendment shall have the same meanings given to them in the Shareholders Agreement unless otherwise indicated. NOW, THEREFORE, in consideration of mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in accordance with Section 7.
The first sentence of Section 3. Section 3. A Partnership Observer shall recuse himself or herself from any portion of any board or committee meeting if i such Partnership Observer has actual.
All Partnership Observers, in connection with exercising their rights under this Section 3. Each Investor Shareholder who receives any non-public information pursuant to clause c or d agrees i to use it only in connection with purposes related to the subject matter of clauses c , d or e , as applicable, and ii to maintain the disclosed information in confidence, except as required by applicable law or applicable national securities exchange rule or to the extent that such information A enters the public domain through no fault of such Investor Shareholder or B is later lawfully acquired by such Investor Shareholder on a non-confidential basis from sources other than the Company and its Subsidiaries.
Each Executive Management Shareholder acknowledges and agrees that: A the time and geographical scope of the restrictions of this Section 3. Each Executive Management Shareholder consents and agrees that if the Executive Management Shareholder commits any such breach or threatens to commit any breach, the Company by vote of a majority of the members of the Board shall be entitled to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage, in addition to, and not in lieu of, such other remedies as may be available to the Company for such breach, including the recovery of money damages.
If any of the provisions of this Section 3. If the holders of Class C Shares representing a majority of the issued and outstanding Class. The employee payees of such one-time payments and amount payable to. Without limiting the generality of the foregoing, the parties shall, to the extent necessary or appropriate to achieve the purpose and intent of this Section 3.
Each Phantom Class C Share shall provide for payments, if any, in gross amounts and gross value no greater than the Class C Share held by the Canadian Plan Entity to which such Phantom Class C Share corresponds including, for the avoidance of doubt, Class P Shares, if any, received upon automatic conversion of such corresponding Class C Share ; provided , that, subject to the foregoing limitations and to the extent that the Company in good faith determines is necessary or appropriate to mitigate any negative consequences to either the Company or holders of Phantom Class C Shares, the Company may elect to make distributions in cash in lieu of Class P Shares received in respect of the automatic conversion of Class C Shares held by the Canadian Plan Entity that would otherwise be distributable as a result of such automatic conversion.
In the event that the Company elects to make a distribution in cash in lieu of Class P Shares pursuant to the foregoing provisos of this Section 3. Amendments, modifications or waivers of any provision of any organizational or other governing document of the Canadian Plan Entity or any governing or similar document of the Canadian Plan, in each case, shall require, in addition to any required approvals, the approval of i Kinder so long as Kinder together with his Permitted Transferees owns at least 1.
Effect on Shareholders Agreement. Other than as specifically set forth herein, all other terms and provisions of the Shareholders Agreement shall remain unaffected by the terms of this Amendment, and shall continue in full force and effect.
Certain Provisions of Shareholders Agreement. The provisions of Sections 7. Entire Agreement. This Amendment, together with the Agreement as amended hereby, constitutes the entire agreement and supersedes all other prior agreements, both written and oral, among the parties with respect to the subject matter hereof.
Kinder Richard D. Adequate Liquidity: KMI's liquidity is supported by its significant cash retention and availability under its revolving credit facility. As of Dec. KMI's revolving credit facility matures in November Fitch believes that KMI will have bond market access and revolver availability to handle the maturities, and management's stated goal of strengthening the balance sheet is consistent with its refinancings and debt retirements over the recent past.
Fitch typically adjusts midstream energy companies' EBITDA to exclude equity in earnings of unconsolidated affiliates but include cash distributions from unconsolidated affiliates.
Leverage metrics are calculated based on gross debt, not debt net of cash. Unless otherwise disclosed in this section, the highest level of ESG credit relevance is a score of '3'. This means ESG issues are credit neutral or have only a minimal credit impact on the entity, either due to their nature or the way in which they are being managed by the entity. The principal sources of information used in the analysis are described in the Applicable Criteria. View additional rating details.
Additional information is available on www. Numbers in parentheses accompanying applicable model s contain hyperlinks to criteria providing description of model s. Key Rating Drivers Cash Flow Stability: KMI's rating reflects Fitch's judgment that elevated leverage is offset by the cash flow stability of the company's large, significantly diversified asset base.
Key Assumptions --Apart from the considerable hedging of oil production KMI does, the assumptions are as follows: that for business lines that are directly and indirectly affected by commodity prices, Fitch's price deck for oil and natural gas, e. There are no outstanding contractual obligations, commitments, understandings or arrangements of the Company to repurchase, redeem or otherwise acquire or make any payment in respect of any shares of capital stock of the Company.
There shall be at least two additional standing committees, the Operating Committee, as provided for in Article 8, and the Business Issues Committee, as provided for in Article 9, both of which shall report to the Management Committee. Acquisition Shares The Acquisition Shares when delivered to the Kraft Shareholders pursuant to the Acquisition shall be validly issued and outstanding as fully paid and non-assessable shares and the Acquisition Shares shall be transferable upon the books of AUGI, in all cases subject to the provisions and restrictions of all applicable securities laws.
Conversion of Company Capital Stock At the Effective Time, by virtue of the Merger and without any action on the part of Parent, the Company or the holder of any of the following securities:. Merger Sub Capital Stock Each share of capital stock of Merger Sub issued and outstanding at the Effective Time shall remain outstanding and shall be unchanged at and after the Merger and immediately following the Effective Time shall constitute all of the issued and outstanding capital stock of the Surviving Corporation.
The Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4 2 of the U. Securities Act of , as amended, and the rules and regulations promulgated thereunder the "Securities Act" , including Regulation D "Regulation D" , and Regulation S promulgated thereunder.
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