AGREEMENT AND PLAN OF MERGER (Ensource Energy Income Fund LP)
Exhibit 10.5
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of , 2005 (this
“Agreement”), is entered into by and among Ensource Energy Income Fund LP, a Delaware
limited partnership (the “Partnership”), and Eastern American Natural Gas Trust, a Delaware
statutory trust (“NGT”). In this Agreement, each of the Partnership and NGT is
individually referred to as a “Party,” and those entities are collectively referred to as
the “Parties.”
W I T N E S S E T H:
WHEREAS, the Partnership, through Ensource Energy Partners, LP, a Delaware limited partnership
and the Partnership’s sole general partner (the “General Partner”), has implemented a plan
to acquire NGT (the “Acquisition Plan”), and in furtherance of such Acquisition Plan, has
effected an exchange offer pursuant to a registration statement on Form S-4 filed with the
Securities and Exchange Commission (Commission File No. 333-126068) pursuant to which the
Partnership has offered to exchange depositary units of NGT for common units of the Partnership on
a one for one basis (the “Exchange Offer”); and
WHEREAS, as a result of the Exchange Offer, the Partnership has accepted for exchange, and
owns, a total of ___depositary units representing more than 50% of the outstanding trust units
of NGT, and in furtherance of the Acquisition Plan and in accordance with that certain Second
Amended and Restated Trust Agreement of Eastern American Natural Gas Trust, dated January 1, 1993,
by and among Eastern American Energy Corporation, JPMorgan Chase Bank, as successor-in-interest to
Bank of Montreal Trust Company and trustee (the “Trustee”), and Wilmington Trust Company
(the “Trust Agreement”), the Partnership intends to effect the merger of NGT with and into
the Partnership, with the Partnership continuing as the surviving entity of such merger in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, the General Partner deems it advisable and in the best interest of the Partnership
and its limited partners to effect the contemplated merger, and in connection therewith the General
Partner has authorized, approved and adopted this Agreement; and
WHEREAS, the Partnership, being a trust unitholder of NGT qualified to call a special meeting
of trust unitholders, has exercised its rights under the Trust Agreement to call a special meeting
of trust unitholders of NGT for the purpose of approving and adopting this Agreement and the
transactions contemplated herein and to effect the Merger (as defined below); and
WHEREAS, the Trust Agreement requires a vote of at least 50% of all trust units of NGT in
favor of the Merger (as defined below); and
WHEREAS, the Partnership holds more than 50% of all trust units of NGT, has agreed to vote in
favor of the Merger (as defined below) and, therefore, does not intend to solicit proxies from the
other holders of NGT trust units; and
WHEREAS, NGT and the Partnership intend to prepare and provide to the other holders of NGT
trust units a definitive information statement relating to the Merger (as defined below); and
WHEREAS, the Trustee has approved and adopted this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the respective representations,
warranties, covenants and agreements herein contained, and intending to be legally bound, the
Parties hereby agree as follows:
ARTICLE I. THE MERGER
Section 1.1. The Merger. Upon the terms and subject to the conditions
contained in this Agreement, and in accordance with Section 211 of the Delaware Revised Uniform
Limited Partnership Act (the “DRULPA”) and Section 3815 of the Delaware Statutory Trust Act
(the “DSTA”), NGT shall be merged with and into the Partnership (the “Merger”) at
the Effective Time (as defined in Section 1.3 of this Agreement). At the Effective Time,
the separate statutory trust existence of NGT shall cease and the Partnership shall continue its
existence as the surviving entity (the “Surviving Entity”).
Section 1.2. Closing. Subject to the satisfaction or waiver of the conditions
to closing set forth in Article III of this Agreement, the consummation of the Merger shall
occur as close in time as possible to, but in no case later than the same day (which shall be a day
upon which the Office of the Secretary of State of the State of Delaware is open for business) as,
the special meeting of NGT trust unitholders at which the Agreement and the transactions
contemplated herein are properly approved and adopted. The consummation of the Merger shall be
effected through a closing held at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxxxxx Xxx.,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another place is agreed upon by the
Parties.
Section 1.3. Effective Time. As soon as practicable after the conditions to
closing set forth in Article III of this Agreement have been satisfied or waived, the
Parties shall (A) file a certificate of merger in the form attached as Annex A to this
Agreement (the “Certificate of Merger”) with the Secretary of State of the State of
Delaware in accordance with Section 211(d) of the DRULPA and Section 3815(b) of the DSTA and (B)
make all other filings or recordings, if any, as shall be required to consummate the Merger under
applicable laws. The Merger shall become effective upon the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware (the date and time of such filing, the
“Effective Time”).
Section 1.4. Effects of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in the DRULPA, DSTA and this Agreement. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, all the property
(including, without limitation, all rights, privileges, powers and franchises of NGT shall be
vested in the Surviving Entity, and all debts, liabilities and duties of NGT shall become the
debts, liabilities and duties of the Surviving Entity.
Section 1.5. Certificate of Limited Partnership. At and after the Effective
Time, the certificate of limited partnership of the Partnership, as in effect immediately
prior to the
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Effective Time, shall be the certificate of limited partnership of the Surviving Entity unless and
until thereafter amended in accordance with the terms thereof and applicable laws.
Section 1.6. Limited Partnership Agreement. At and after the Effective Time,
the agreement of limited partnership of the Partnership, as in effect immediately prior to the
Effective Time, shall be the agreement of limited partnership of the Surviving Entity unless and
until thereafter amended in accordance with the terms thereof and applicable laws.
Section 1.7. Officers, Managers and Committees of Managers. At and after the
Effective Time, the individuals serving as the officers, managers, directors and committee members
of the General Partner immediately prior to the Effective Time shall continue to serve in such
capacity for the general partner of the Surviving Entity, each of whom shall hold office subject to
the provisions of the DRULPA and the certificate of limited partnership and agreement of limited
partnership of the Partnership then in effect.
Section 1.8. Conversion of NGT Trust Units into Partnership Common Units. At
the Effective Time, by virtue of the Merger and without any action on the part of any Party or any
holder of the securities of any Party, (i) each trust unit of NGT outstanding immediately prior to
the Effective Time (except for trust units cancelled in accordance with the third sentence of this
Section 1.8) shall be converted into 0.4 common units of the Partnership, subject to any
adjustments thereto, and (ii) each depositary unit of NGT outstanding immediately prior to the
Effective Time that is tendered to the Partnership shall (except for depositary units cancelled in
accordance with the third sentence of this Section 1.8) entitle the person so tendering to
the right to receive one whole (1.0) common unit of the Partnership, subject to any adjustments
thereto, (collectively, the “Merger Consideration”); provided, however, that no common
units shall be issued in fractional part, and in lieu thereof shall be paid in cash in an amount
equal to such fractional part (expressed as a decimal and rounded to the nearest 0.01 of a common
unit) multiplied by the average of the daily volume-weighted average prices, rounded to four
decimal points, of the Partnership common units on the New York Stock Exchange, as reported by
Bloomberg, for the 10 consecutive trading day period commencing on the first trading day on which
the common units trade regular way after the consummation of the Merger. As of the Effective Time,
all trust units, including, but not limited to, those underlying the depositary units, outstanding
immediately prior to the Effective Time shall automatically be cancelled and shall cease to exist,
and any holder of any such trust units, including, but not limited to, those underlying depositary
units, shall cease to have any rights with respect thereto, except the right to receive the Merger
Consideration, without interest. Each trust unit, including, but not limited to those underlying
depositary units, if any, that are held in the treasury of NGT or by the Partnership immediately
prior to the Effective Time shall automatically be cancelled and retired as of the Effective Time
without any conversion thereof into Merger Consideration and without any payment or distribution
being made in respect thereto. Each equity security of the Partnership issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding at and after the
Effective Time and shall constitute issued and outstanding equity securities of the Surviving
Entity.
ARTICLE II. APPROVAL OF TRUST UNITHOLDERS OF NGT
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Section 2.1. Approval by Trust Unitholders. This Agreement and the
transactions contemplated herein shall be submitted to the holders of trust units of NGT for their
approval, and it shall have no force and effect unless approved by such holders in the manner
provided by the Trust Agreement and the DSTA. The Trust Agreement requires a vote of at least a
majority of all trust units of NGT in favor of the Merger. The Partnership holds more than a
majority of all trust units of NGT and has agreed to vote in favor of the Merger. As a
consequence, neither NGT nor the Partnership intends to solicit proxies from the other holders of
NGT trust units and will, instead, provide them with a definitive information statement relating to
the Merger.
ARTICLE III. CONDITIONS TO THE MERGER; TERMINATION
Section 3.1. Conditions to Closing. The respective obligations of each Party
to effect this Agreement and the transactions contemplated herein shall be subject to the
satisfaction at or immediately prior to the Effective Time of the following conditions:
(a) The approval of trust unitholders of NGT at the special meeting as contemplated by
Section 2.1 of the Agreement shall have been obtained.
(b) No temporary restraining order, preliminary or permanent injunction or other order issued
by any federal or state governmental authority (including, without limitation, any court of
competent jurisdiction) or any other legal restraint or prohibition preventing the consummation of
the Merger shall be in effect, and there shall not be in effect any law or other binding authority
that would make the consummation of the Merger illegal.
Section 3.2. Termination. This Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time by the General Partner of the Partnership,
without liability or other consequence to any Party, notwithstanding approval of this Agreement and
the transactions contemplated herein by the trust unitholders of NGT.
ARTICLE IV. MISCELLANEOUS
Section 4.1. Amendments. This Agreement may not be amended except by a
written instrument signed on behalf of each of the Parties.
Section 4.2. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
Section 4.3. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original, and such counterparts shall
together constitute one and the same instrument.
Section 4.4. Principal Office of Surviving Entity. The principal office of
the Partnership in the State of Delaware is, and at and after the Effective Time the principal
office of the Surviving Entity in the State of Delaware shall be, care of the Capitol Corporate
Services, Inc., 00 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of
the date first written above.
| The Partnership | ||||
| Ensource Energy Income Fund LP | ||||
| By: | Ensource Energy Partners, LP, its sole general partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| NGT | ||||
| Eastern American Natural Gas Trust | ||||
| By: | JPMorgan Chase Bank, its trustee | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
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Annex A
CERTIFICATE OF MERGER
MERGING
EASTERN AMERICAN NATURAL GAS TRUST
WITH AND INTO
ENSOURCE ENERGY INCOME FUND LP
MERGING
EASTERN AMERICAN NATURAL GAS TRUST
WITH AND INTO
ENSOURCE ENERGY INCOME FUND LP
Pursuant to Section 211(d) of the Delaware Revised Uniform Limited Partnership Act
and
Section 3815(b) of the Delaware Statutory Trust Act
and
Section 3815(b) of the Delaware Statutory Trust Act
In connection with the merger (the “Merger”) of Eastern American Natural Gas Trust, a
Delaware statutory trust (the “Non-Surviving Entity”), with and into Ensource Energy Income
Fund LP, a Delaware limited partnership (the “Surviving Entity”), the Surviving Entity DOES
HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization of each of the constituent
entities in the Merger are as follows:
| Jurisdiction of Formation | ||||||||
| Name of Entity | Form of Entity | or Organization | ||||||
Eastern American Natural Gas Trust
|
Statutory Trust | Delaware | ||||||
| Limited Partnership | Delaware | |||||||
SECOND: An Agreement and Plan of Merger governing the Merger has been approved and executed by
each of the constituent entities.
THIRD: Ensource Energy Income Fund LP shall be the surviving entity in the Merger.
FOURTH: The Certificate of Limited Partnership of the Surviving Entity in effect immediately
prior to the Merger shall be its Certificate of Limited Partnership after the Merger.
FIFTH: An executed copy of the Agreement and Plan of Merger governing the Merger is on file
at the office of the Surviving Entity at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
SIXTH: An executed copy of the Agreement and Plan of Merger governing the Merger will be
furnished by the Surviving Entity, on request and without cost, to any holder of trust units in the
Non-Surviving Entity and any holder of common units of the Surviving Entity.
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IN WITNESS WHEREOF, the Surviving Entity has caused this Certificate of Merger to be executed
and attested by its authorized officers and delivered to the Delaware Secretary of State on this
the ___day of ___, 2005.
| ENSOURCE ENERGY INCOME FUND LP | |||||
| By: | Ensource Energy Partners, LP, its sole general partner | ||||
| By: | |||||
| Name: | |||||
| Title: | |||||
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