AMENDMENT, ASSIGNMENT AND ASSUMPTION AGREEMENT
This AMENDMENT, ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as
of September 29, 1997 (this "AMENDMENT"), by and among THE
BROOKLYN UNION GAS COMPANY, a New York corporation ("BROOKLYN
UNION"), LONG ISLAND LIGHTING COMPANY, a New York corporation
("LILCO"), and KEYSPAN ENERGY CORPORATION, a New York corporation
and, prior to the Effective Time (as defined herein), a wholly
owned subsidiary of Brooklyn Union ("KEYSPAN"), among other things
amends the following agreements:
A. the AMENDED AND RESTATED AGREEMENT AND PLAN OF EXCHANGE
AND MERGER, dated as of June 26, 1997 (the "MERGER
AGREEMENT"), by and between Brooklyn Union and LILCO;
B. the AMENDED AND RESTATED BROOKLYN UNION STOCK OPTION
AGREEMENT, dated as of June 26, 1997 (the "BROOKLYN
UNION OPTION AGREEMENT"); and
C. the AMENDED AND RESTATED LILCO STOCK OPTION AGREEMENT,
dated as of June 26, 1997 (the "LILCO OPTION AGREEMENT",
and together with the Merger Agreement and the Brooklyn
Union Option Agreement, the "AGREEMENTS").
WHEREAS, Brooklyn Union and LILCO have determined to engage
in a business combination as peer firms in a merger and a binding
share exchange and to form a holding company to manage their
combined businesses (the "COMPANY") and have entered into the
Agreements for such purpose; and
WHEREAS, contemporaneously herewith, KeySpan is acquiring all
the outstanding shares of common stock, par value $0.33 1/3 per
share ("BROOKLYN UNION COMMON STOCK"), of Brooklyn Union in a
binding share exchange under Section 913 of the New York Business
Corporation Law, in which each share of Brooklyn Union Common
Stock will be exchanged for one share of common stock of KeySpan,
par value $0.33 1/3 per share ("KEYSPAN COMMON STOCK"), with the
result that Brooklyn Union will become a wholly owned subsidiary
of KeySpan (such transaction, the "KEYSPAN RESTRUCTURING"); and
WHEREAS, pursuant to Section 10.7 of the Merger Agreement the
parties desire to provide for the assignment by Brooklyn Union to
KeySpan, and the assumption by KeySpan, of all of Brooklyn Union's
rights and obligations under the Agreements and to substitute
KeySpan for Brooklyn Union thereunder, effective upon the
effective time of the KeySpan Restructuring (the "EFFECTIVE
TIME").
NOW THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
Section 1. Definitions. Capitalized terms used herein and
not otherwise defined herein have the respective meanings given in
the Merger Agreement.
Section 2. Assumption of Liabilities and Obligations by
KeySpan. KeySpan agrees to assume, effective as of the Effective
Time, all liabilities and obligations of Brooklyn Union
under each of the Agreements, including, without limitation, the
obligation under the Brooklyn Union Option Agreement to issue
shares of KeySpan Common Stock in certain circumstances as set
forth therein.
Section 3. Substitution of KeySpan for Brooklyn Union. (a)
Each of the Agreements is hereby amended, effective as of the
Effective Time, such that KeySpan is substituted for Brooklyn
Union for all purposes under the Agreements and all references to
Brooklyn Union in the Agreements shall be deemed to refer to
KeySpan, except as provided in paragraph (c) below and except for
purposes of or references in Article IV, Section 7.2, Section 7.4,
and Section 7.6 and the reference to Brooklyn Union in Section 7.1
of the Merger Agreement.
(b) Each of the Agreements is hereby amended, effective
as of the Effective Time, such that Subsidiaries of KeySpan are
substituted for Brooklyn Union Subsidiaries for all purposes under
the Agreements and all references to Brooklyn Union Subsidiaries
in the Agreements shall be deemed to refer to Subsidiaries of
KeySpan, except as provided in paragraph (c) below and except for
purposes of or references in Article IV of the Merger Agreement.
(c) Section 8.2(b) of the Merger Agreement is hereby
amended and restated to read in its entirety as follows:
"(b) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Brooklyn Union set
forth in this Agreement and the Brooklyn Union Stock
Option Agreement shall be true and correct (i) on and as
of December 29, 1996 except for such failures of
representations or warranties to be true and correct
(without regard to any materiality qualifications
contained therein) which, individually or in the ag-
gregate, would not be reasonably likely to result in a
Brooklyn Union Material Adverse Effect and (ii) on and
as of the Closing Date with the same effect as though
such representations and warranties had been made with
respect to KeySpan instead of Brooklyn Union or with
respect to Subsidiaries of KeySpan instead of Brooklyn
Union Subsidiaries, as the case may be, on and as of the
Closing Date (except for representations and warranties
that expressly speak only as of a specific date or time
other than December 29, 1996 or the Closing Date which
need only be true and correct as of such date or time)
except for such failures of representations or
warranties to be true and correct (without regard to any
materiality qualifications contained therein) which,
individually or in the aggregate, would not be
reasonably likely to result in a material adverse effect
on the business, assets, financial condition, results of
operations or prospects of KeySpan and its subsidiaries
taken as a whole."
Section 4. Substitution of KeySpan Common Stock for Brooklyn
Union Common Stock. Each of the Agreements is hereby amended,
effective as of the Effective Time, such that KeySpan Common Stock
is substituted for Brooklyn Union Common Stock for all purposes
under the Agreements and all references to Brooklyn Union Common
Stock in the Agreements shall be deemed to refer to KeySpan Common
Stock, except for purposes of Article IV of the Merger Agreement.
Section 5. Acknowledgment of KeySpan Assumption and
Substitution. LILCO hereby acknowledges and confirms that,
effective as of the Effective Time, all of the liabilities,
obligations, benefits and rights of Brooklyn Union under the
Agreements shall inure to the benefit of KeySpan under those
Agreements.
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Section 6. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
agreement.
IN WITNESS WHEREOF, Brooklyn Union, LILCO and KeySpan have
caused this Amendment to be signed by their respective officers
thereunto duly authorized as of the date first written above.
THE BROOKLYN UNION GAS COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Chief Executive Officer
LONG ISLAND LIGHTING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Xx. Xxxxxxx X. Xxxxxxxxxxx
Chief Executive Officer
KEYSPAN ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Chief Executive Officer
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