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EXHIBIT 2.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made as of December 30, 2009,
by and between ENERGY WEST, INCORPORATED, a Montana corporation (“Assignor”) and ENERGY, INC., a
Montana corporation (“Assignee”).
RECITALS
WHEREAS, on June 29, 2009, Assignor entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with Richard M. Osborne, as Trustee of the Richard M. Osborne Trust, Rebecca Howell,
Stephen M. Rigo, Marty Whelan, and Thomas J. Smith, Lightning Pipeline Company, Inc. (“Lightning
Pipeline”), Great Plains Natural Gas Company (“Great Plains”), Brainard Gas Corp. (“BGC”, and
together with Lightning Pipeline and Great Plains, the “Companies” and each a “Company”) and three
to-be-formed wholly-owned Ohio subsidiary corporations of Assignor (each an “Acquisition Sub”);
WHEREAS, the Merger Agreement provides for three separate mergers whereby an Acquisition Sub
will merge with and into each Company and the Companies will survive the mergers, becoming three
separate wholly-owned subsidiaries of Assignee (collectively, the “Merger Transaction”);
WHEREAS, on August 3, 2009, Assignor completed a holding company reorganization, and Assignor
thereby became a wholly-owned operating subsidiary of Assignee (collectively, the “Holding Company
Reorganization”);
WHEREAS, one purpose of the Holding Company Reorganization was to permit Assignor to complete
acquisitions, such as the Merger Transaction, more efficiently; and
WHEREAS, the Merger Transaction has not yet been completed and the parties hereto desire that
the Assignee be a party to the Merger Agreement rather than Assignor.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the receipt
and sufficiency of which is acknowledged by the parties hereto, the parties intending to be legally
bound, agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement and not otherwise defined shall
have the respective meanings assigned to them in the Merger Agreement.
2. Assignment. Assignor hereby assigns to Assignee all of its rights and obligations under the
Merger Agreement.
3. Assumption. Assignee hereby assumes all of the rights and obligations of Assignor under the
Merger Agreement, and agrees to abide by and perform all terms, covenants and conditions of
Assignor under the Merger Agreement.
4. Further Assurances. Subject to the terms of this Agreement, the parties hereto shall take
all reasonable and lawful action as may be necessary or appropriate to cause the intent of this
Agreement to be carried out.
5. Successors and Assigns. This Agreement shall be binding upon Assignor and Assignee, and
their respective successors and assigns. The terms and conditions of this Agreement shall survive
the consummation of the transfers provided for herein.
6. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Ohio, without giving effect to conflicts of law principles.
7. Entire Agreement. This Agreement constitutes the entire agreement and supersede all other
agreements and undertakings, both written and oral, among the parties, or any of them, with respect
to the subject matter hereof. This Agreement may not be modified or amended except by a writing
executed by the parties hereto.
8. Severability. The provisions of this Agreement are severable, and in the event any
provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability
shall not in any way affect the validity or enforceability of the remaining provisions hereof.
9. Counterparts. This Agreement may be executed in any number of counterparts, including by
facsimile or electronic signature included in an Adobe PDF file, each of which shall be deemed to
be an original, but all of which together shall constitute one and the same instrument. This
Agreement shall become effective when counterparts have been signed by each party and delivered to
the other parties, it being understood that the parties need not sign the same counterpart.
[Signatures to Immediately Follow]
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This Assignment and Assumption Agreement is signed as of the date first written above.
| Assignor | Assignee | |||||||
| ENERGY WEST, INCORPORATED | ENERGY, INC. | |||||||
By:
|
/s/ Kevin J. Degenstein | By: | /s/ Jed D. Henthorne | |||||
| Title: President | Title: Vice President of Administration | |||||||
Assignment and Assumption Agreement
Signature Page
Signature Page
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