FORM OF AGREEMENT AND PLAN OF MERGER OF EASTERN ENTERPRISES (a Massachusetts voluntary association) AND KEYSPAN NEW ENGLAND, LLC (a Massachusetts limited liability company)
EXHIBIT A-5
FORM OF
AGREEMENT AND PLAN OF MERGER
OF
EASTERN ENTERPRISES
(a Massachusetts voluntary association)
AND
KEYSPAN NEW ENGLAND, LLC
(a Massachusetts limited liability company)
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”), is made and entered
into as of May __, 2002, by Eastern Enterprises, a Massachusetts voluntary
association (“Eastern”), and KeySpan New England, LLC, a Massachusetts
limited liability company (“KNE LLC”). Eastern and KNE LLC are
collectively referred to herein as the “Constituent Entities.”
WHEREAS, KeySpan
Corporation, a New York corporation (“KeySpan”), owns all of
the issued and outstanding shares of common stock of Eastern;
WHEREAS,
KeySpan owns 99% of the membership interests of KNE LLC, and KSNE, LLC, a
wholly-owned subsidiary of KeySpan, owns 1% of the membership interests of KNE
LLC;
WHEREAS,
the Board of Trustees of Eastern and the Managers of KNE LLC declare it
advisable and to the advantage, welfare, and best interests of said Constituent
Entities and their respective stockholders and members to merge (the
“Merger”) Eastern with and into KNE LLC pursuant to the provisions of
Section 2 of Chapter 182 and Section 59 of Chapter 156C of the Massachusetts
General Laws (the “MGL”) upon the terms and conditions hereinafter set
forth;
WHEREAS,
the Constituent Entities intend that the Merger will qualify as a liquidation
within the meaning of Section 332 of the Internal Revenue Code of 1986, as
amended (the “Code”), and that this Agreement shall be, and is hereby,
adopted as a plan of liquidation for purposes of Section 332 of the Code; and
WHEREAS,
this Agreement shall be submitted to the stockholders and members, respectively,
of the Constituent Entities for their approval.
NOW, THEREFORE,
in consideration of the premises and of the mutual agreement of the
parties hereto, this Agreement and the terms and conditions hereof and the mode
of carrying the same into effect, together with any provisions required or
permitted to be set forth herein, are hereby determined and agreed.
1. At the
Effective Time (as defined in paragraph 6), Eastern shall be merged with and into KNE LLC in
accordance with Section 2 of Chapter 182 and Section 59 of Chapter 156C of the
MGL and the separate existence of Eastern shall thereupon cease, and KNE LLC, as
the surviving entity in the merger (the “Surviving Entity”), shall
continue its existence as a limited liability company in accordance with the
laws of the Commonwealth of Massachusetts under its present name.
2. At
the Effective Time, the Certificate of Organization of KNE LLC as in effect immediately prior to the
Effective Time shall be the Certificate of Organization of the Surviving Entity
until thereafter amended as provided by law and such Certificate of
Organization. At the Effective Time, the Operating Agreement of KNE LLC as in
effect immediately prior to the Effective Time shall be the Operating Agreement
of the Surviving Entity until thereafter amended as provided by law and such
Operating Agreement. Subject to the foregoing, the additional effects of the
Merger shall be as provided in the applicable provisions of Chapter 182 and
Chapter 156C of the MGL.
3. The
managers and officers in office of KNE LLC immediately prior to the Effective
Time shall be the managers and officers of the Surviving Entity, each of whom shall hold office
from the Effective Time until the election or appointment and qualification of
their respective successors or until their tenure is otherwise terminated in
accordance with the Operating Agreement of the Surviving Entity or as otherwise
provided by applicable law.
4. At the
Effective Time, by virtue of the Merger and without any action on the part of the holder of any
securities of the Constituent Entities:
a. each issued and
outstanding share of common stock of Eastern and each share of common stock of
Eastern held in Eastern’s treasury at the Effective Time shall be canceled
and retired without payment of any consideration therefor; and
b. all of
the issued and outstanding membership interests of KNE LLC shall remain outstanding and
unchanged as the membership interests of the Surviving Entity.
5. If, at
any time after the Effective Time, any further assignments or assurances in law or any other things
are necessary or desirable to vest or to perfect or confirm of record in the
Surviving Entity the title to any property or rights of Eastern, or otherwise to
carry out the provisions of this Agreement, the officers and managers of the
Surviving Entity are hereby authorized and empowered on behalf of Eastern, in
the name of and on behalf of Eastern, to execute and deliver any and all things
necessary or proper to vest or to perfect or confirm title to such property or
rights in the Surviving Entity, and otherwise carry out the purposes and
provisions of this Agreement and comply with the provisions of the MGL.
6. The
date and time when the Merger shall become effective (the “Effective Time”), shall be the
date and time of the filing of an appropriate Certificate of Merger with the
Secretary of the Commonwealth of Massachusetts.
7. The
holders of shares of common stock of Eastern who dissent from the Merger within the time and in the
manner provided in Sections 86 through 98 of Chapter 156B of the MGL shall have
substantially the rights as they would have if Eastern were at the Effective
Time a Massachusetts business corporation. Each outstanding share of common
stock of Eastern
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the holder of which has perfected his appraisal rights under
Chapter 156B of the MGL and has not effectively withdrawn or lost such right as
of the Effective Time shall not be canceled and retired in the Merger, and the
holder thereof shall be entitled only to such rights as are granted by
applicable law.
8. This
Agreement is intended to constitute a plan of liquidation for purposes of Section 332 of the
Code. KNE LLC shall cause Form 966 to be filed with the Internal Revenue Service
on behalf of Eastern within 30 days of the Effective Time.
9. This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement and Plan of Merger to be executed on its behalf by duly authorized representatives as of the date first above written.
EASTERN ENTERPRISES,
a Massachusetts voluntary association
By: ____________________________________
Name:
Title:
By: ____________________________________
Xxxxx Xxxxxxxxx
Trustee
By: ____________________________________
Xxxx Xxxx
Trustee
By: ____________________________________
Xxxx Xxxxxx
Trustee
KEYSPAN NEW ENGLAND, LLC, a Massachusetts limited
liability company
By: ____________________________________
Name:
Title:
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