Exhibit 2.5
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").
Page 13 of 15 Pages
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 i. Definitions. Capitalized terms used herein and not otherwise
defined herein have the respective meanings given in the Merger Agreement.
Section ii. 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 iii. 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 aggregate, 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
Page 14 of 15 Pages
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 iv. 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 v. 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.
Section vi. Counterparts. This Amendment may be executed in one or more
counter- parts, 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
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
Page 15 of 15 Pages
