FORM OF AGREEMENT AND PLAN OF MERGER OF EASTERN ENTERPRISES (a Massachusetts voluntary association) AND EASTERN ENTERPRISES, LLC (a Massachusetts limited liability company)
EXHIBIT A-5
FORM OF
AGREEMENT AND PLAN OF MERGER
OF
EASTERN ENTERPRISES
(a Massachusetts voluntary association)
AND
EASTERN ENTERPRISES, LLC
(a Massachusetts limited liability company)
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”), is made and entered
into as of _________, 2002, by Eastern Enterprises, a Massachusetts voluntary
association (“Eastern”), and Eastern Enterprises, LLC, a Massachusetts
limited liability company (“Eastern LLC”). Eastern and Eastern 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 Eastern LLC, and KeySpan New
England, LLC, a wholly-owned subsidiary of KeySpan, owns 1% of the membership
interests of Eastern LLC;
WHEREAS,
the Board of Trustees of Eastern and the Managers of Eastern 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 Eastern 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 Eastern 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 Eastern
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 Eastern 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 Eastern 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 Eastern 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 Eastern 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.
2
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 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. Eastern 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
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
EASTERN ENTERPRISES, LLC, a Massachusetts limited
liability company
By: ____________________________________
Name:
Title:
4
