EXHIBIT (e)(9)
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 25, 2000 (the "Amendment"), to the RIGHTS
AGREEMENT, dated as of May 4, 1999 (the "Agreement"), between KENETECH
Corporation, a Delaware corporation (the "Company"), and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company, as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Agent have entered into the Agreement; and
WHEREAS, the Company has directed the Agreement be amended; and
WHEREAS, the Flip-In Event (as defined in the Agreement) has not occurred
and the penultimate sentence of Section 27 of the Agreement is not applicable to
this Amendment;
NOW, THEREFORE, the parties hereby agree as follows (terms used and not
defined herein have meanings as defined in the Agreement):
1. Section 1(a) of the Agreement is amended by adding the following
sentence immediately following the last sentence of the definition of "Acquiring
Person":
Notwithstanding the foregoing, neither a Distribution Date, a Flip-In
Event nor a Stock Acquisition Date shall be deemed to have occurred, none
of Mark D. Lerdal ("Lerdal"), ValueAct Capital Partners L.P. ("VAC"), KC
Holding Corporation ("Parent") nor KC Merger Corp. ("Sub"), or their
Affiliates or Associates, shall be deemed to be an Acquiring Person, and no
holder of any rights shall be entitled to exercise any Rights under, or be
entitled to any rights pursuant to, Sections 3(a), 7(a), 11(a) or 13 of
this Agreement, in any such case solely by virtue of the execution,
delivery or performance of (w) the Agreement and Plan of Merger dated as of
October 25, 2000 among Parent, Sub and the Company (as it may be amended,
the "Merger Agreement"), (x) the Subscription and Contribution Agreement
dated as of October 24, 2000 to be entered into by and among Parent, VAC
and Lerdal, (y) the Voting Agreement dated as of October 24, 2000 to be
entered into among Parent, Sub and Lerdal or (z) the purchase by Sub of
Common Stock upon the consummation of the tender offer to be made by Sub on
the terms and subject to the conditions set forth in, and prior to the
termination of, the Merger Agreement.
2. Section 7(a) of the Agreement is amended in its entirety to read as
follows:
(a) Except as otherwise provided herein, the Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder
of any
Right Certificate may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced thereby in whole
or in part upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the
Rights Agent at the office or agency of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase Price with
respect to the total number of one one-thousandths of a share of Preferred
Stock (or other securities, cash or other assets, as the case may be) as to
which the Rights are exercised, at any time which is both after the
Distribution Date and prior to the time (the "Expiration Date") that is
earliest of (i) the Close of Business on May 4, 2009 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date"), (iii) the time at which such
Rights are exchanged as provided in Section 24, here, or (iv) immediately
prior to (and conditioned upon) the purchase by Sub of shares of Common
Stock upon consummation of the tender offer contemplated in the Merger
Agreement.
3. The form of Rights Certificate set forth as Exhibit B to the Agreement
is amended by adding the following paragraph at the end thereof:
The Rights Agreement was amended effective October 25, 2000 to provide
that (i) the Rights will not become exercisable as a result of the
execution, delivery and performance of (w) a Subscription and Contribution
Agreement among KC Holding Corporation ("Parent"), Value Act Capital
Partners, L.P. and Lerdal as contemplated in the Agreement and Plan of
Merger dated October 24, 2000 (as amended, the "Merger Agreement") among
Parent, KC Merger Corp. ("Sub") and the Company, (x) a Voting Agreement
among Parent, Sub and Lerdal (y) the Merger Agreement or (z) as a result of
the consummation of the tender offer contemplated in the Merger Agreement
and (ii) the Rights Agreement (and, accordingly, the Rights), will
terminate immediately prior to the consummation of the purchase by Sub of
shares of Common Stock upon consummation of the tender offer contemplated
in the Merger Agreement.
4. As permitted by Section 27 of the Rights Agreement, this amendment
shall be effective immediately upon execution by the Company.
5. Except as modified hereby, the Agreement remains in full force and
effect.
6. The provisions of Sections 29, 31, 32 and 33 of the Agreement shall
apply to this Amendment as if set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
KENETECH CORPORATION
By: /s/ Dianne Urhausen
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Name: Dianne P. Urhausen
Title: Vice President and Secretary
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Rights
Agent
By: /s/ Cecil D. Bobey
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Name: Cecil D. Bobey
Title: Assistant Vice President