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[CONFORMED COPY]
AGREEMENT AND PLAN OF CONSOLIDATION
OF
BROCKTON TAUNTON GAS COMPANY
(A MASSACHUSETTS CORPORATION)
AND
BAY STATE GAS COMPANY
(A MASSACHUSETTS CORPORATION)
INTO A NEW CORPORATION TO BE ORGANIZED UNDER THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS UNDER THE NAME
BAY STATE GAS COMPANY
AGREEMENT AND PLAN OF CONSOLIDATION, dated as of August 28, 1974,
between BROCKTON TAUNTON GAS COMPANY, a Massachusetts corporation ("Brockton"),
and BAY STATE GAS COMPANY, a Massachusetts corporation ("Bay State"), which
corporations are herein collectively referred to as the "Constituent
Corporations",
WITNESSETH:
WHEREAS, Brockton and Bay State are corporations organized and
existing under the laws of The Commonwealth of Massachusetts; and
WHEREAS, the authorized, issued and outstanding capital stock of
Brockton consists of (i) 624,383 shares of Common Stock, $10 par value (the
"Brockton Common Stock"), and (ii) 74,000 shares of Cumulative Preferred Stock,
$50 par value (the "Brockton Cumulative Preferred Stock"), consisting of 14,534
shares of $3.80 Series, 30,346 shares of 5 5/8% Series and 29,120 shares of
$3.25 Series; and
WHEREAS, the authorized, issued and outstanding capital stock of Bay
State consists of (i) 636,010 shares of Common Stock, $10 par value (the "Bay
State Common Stock"), and (ii) 90,650 shares of Cumulative Preferred Stock,
$100 par value (the "Bay State Cumulative Preferred Stock"), consisting of
21,100 shares of 4.70% Series, 29,550 shares of 8.70% Series and 40,000 shares
of 9.95% Series; and
WHEREAS, the Board of Directors of each of the Constituent Corporations
deems it advisable and to the advantage and welfare of such Constituent
Corporations and their respective stockholders that Brockton and Bay State
shall be consolidated to form a new corporation as authorized by Chapter 164,
Section 96, of the General Laws of The Commonwealth of Massachusetts under and
pursuant to the terms and conditions hereinafter set forth; and
WHEREAS, the principal office of Brockton is located at 995 Belmont
Street, Brockton, Massachusetts 02401, and the principal office of Bay State is
located at 2025 Roosevelt Avenue, Springfield, Massachusetts 01101 ;
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Now, THEREFORE, the parties to this Agreement, in consideration of the
mutual agreements and provisions herein contained, have agreed and do hereby
agree, each with the other, that Brockton and Bay State shall be consolidated
into a single corporation which shall be a new corporation formed by means of
such consolidation under Chapter 164, Sections 96 and 102A, of the General Laws
of The Commonwealth of Massachusetts, and do hereby agree on and prescribe the
terms and conditions of such consolidation, the mode of carrying such
consolidation into effect and the manner of converting the shares of stock of
each of such Constituent Corporations into shares of stock of such new
corporation as follows:
ARTICLE I
This Agreement and the consolidation contemplated thereby shall be
submitted to the holders of Brockton Common Stock and Brockton Cumulative
Preferred Stock and of Bay State Common Stock and Bay State Cumulative
Preferred Stock at meetings thereof held separately for their respective
approvals in accordance with the requirements of Chapter 164, Section 96, of
the General Laws of The Commonwealth of Massachusetts.
ARTICLE II
Subject to approval by the stockholders, approval by the Massachusetts
Department of Public Utilities and the appropriate filings with that Department
and with the Secretary of the Commonwealth pursuant to Chapter 164, Sections 96
and 102A, of the General Laws of The Commonwealth of Massachusetts, on the
Effective Date (as hereinafter defined), Brockton and Bay State shall be and
hereby are consolidated into a single new corporation to be formed by means of
such consolidation, the name of which new corporation shall be Bay State Gas
Company (the "Resulting Corporation" or the "Corporation").
ARTICLE III
The nature of the business, or objectives or purposes to be transacted,
promoted or carried on by the Corporation are: to manufacture, to produce or
otherwise acquire, to transport, store, compress and liquefy and to supply for
public and private use artificial or natural gases or other gases, fuels or
mixture of gases for flame, fuel, light, heat, refrigeration or power, for
domestic or industrial use and other public and private uses and for lighting
the streets and public and private buildings of cities, villages and towns in
The Commonwealth of Massachusetts; and in connection with the foregoing: to
purchase, build, own, lease, hold, sell and maintain lands and interests in
lands, buildings, equipment, chattels, plants, franchises and appurtenances
incidental to the production, manufacture, storage, transporting, compression,
liquefaction and sale of gas; to do all kinds of mining, drilling,
manufacturing and trading businesses authorized by the laws of The Commonwealth
of Massachusetts; to lay and operate pipelines or other means of transporting
gas; to purchase or otherwise acquire, hold, sell, assign and transfer its own
securities and shares of capital stock, bonds or other evidences of ownership
and indebtedness of other corporations or other business entities, and to
exercise all the privileges of ownership, including voting upon the stock of
other corporations so held, to carry on this business and have officers and
agents therefor in other parts of the world; to hold, purchase, or otherwise
acquire, mortgage and convey real estate and personal property inside and
outside of The Commonwealth of Massachusetts and to have and possess all other
powers and privileges incident, conducive or necessary to the attainment or
carrying out of the objectives and purposes heretofore enumerated, together
with all other powers and privileges now granted or which may hereafter be
granted by the laws of The Commonwealth of Massachusetts to corporations of
this nature.
ARTICLE IV
SECTION 1. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 1,612,358, of which 74,000 shall
be shares of Cumulative Preferred Stock, $50 par value; 90,650 shall be shares
of Cumulative Preferred Stock, $100 par value; and 1,447,708 shall be shares of
Common Stock, $10 par value (the "Common Stock").
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SECTION 2. The preferences and voting powers or restrictions or
qualifications applicable to both the Cumulative Preferred Stock, $50 par
value, and the Cumulative Preferred Stock, $100 par value (hereinafter
sometimes referred to collectively as the "Cumulative Preferred Stock"), are as
follows:
(A) The shares of both classes of Cumulative Preferred Stock may be
issued, as the Board of Directors may determine, in one or more series
designated "Cumulative Preferred Stock, $ (or %) Series" (inserting in each
case the dividend rate for the particular series). All shares of Cumulative
Preferred Stock, irrespective of class or series, shall be of equal rank and
shall be identical in all respects except that (i) the par value of one class
of Cumulative Preferred Stock shall be $50 per share and the par value of the
other class of Cumulative Preferred Stock shall be $100 per share, and (ii) the
shares of different series within each class may vary, as determined by the
Board of Directors and, if required by law, by the stockholders, in the
following respects:
(1) the number of shares of the particular series which may
be issued;
(2) the annual dividend rate for the particular series;
(3) the redemption price or prices for the particular
series;
(4) the distributive amount payable on the particular
series in the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, when the same is voluntary and when the
same is involuntary; and the distributive amount payable on the
particular series in the event of any distribution to holders of, or
any purchase or acquisition of, shares of Common Stock or any other
stock ranking junior to the Cumulative Preferred Stock in respect of
the distribution of assets, other than out of or from the Corporation's
earned surplus;
(5) the terms and amount of any sinking fund or purchase fund
which may be provided for the redemption or purchase of shares of the
particular series; and
(6) the terms of any conversion, participation or other special
rights, restrictions or qualifications which may lawfully be provided
for the particular series.
Whenever a vote of the Cumulative Preferred Stock may be required for
any purpose, the shares voting, if of different classes or series, shall be
counted irrespective of class or series and not by different classes or series,
except as otherwise provided by law or by the Articles of Organization. All
shares of the same series of either class of Cumulative Preferred Stock shall
be identical (except as to the date from which dividends on shares issued at
different times will be cumulative) in all respects and each certificate
representing Cumulative Preferred Stock shall state the designation of the par
value of the class and the series of which the shares represented by such
certificate are a part.
(B) Holders of the Cumulative Preferred Stock shall be entitled to
receive, but only when and as declared by the Board of Directors out of funds
legally available for the declaration and payment of dividends, cumulative
dividends at the annual dividend rate per share fixed for the particular
series, and no more, payable in cash quarterly on the first day of January,
April, July and October in each year, commencing on the date specified for the
first dividend payment, as herein provided to stockholders of record on the
respective dates fixed in advance for the purpose by the Board of Directors
prior to the payment of each such dividend, which record date for each dividend
shall be the same for all series, before any dividends on, or distribution of
assets (by purchase of shares or otherwise) to holders of, the Common Stock or
any other stock ranking junior to the Cumulative Preferred Stock in respect of
the payment of dividends shall be declared or paid or set apart for payment.
Dividends on shares of both classes of Cumulative Preferred Stock shall
be cumulative: (1) on shares of any series issued prior to the first dividend
payment date, from the date of issue of such shares; (2) on shares of any
series issued on or after such first dividend payment date, from the quarterly
dividend payment date next preceding the date of issue of such shares or from
the date of issue if that be a dividend payment date.
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No dividend shall be declared on any series of either class of the
Cumulative Preferred Stock, or on any other class of preferred stock ranking on
a parity with the Cumulative Preferred Stock in respect of the payment of
dividends, for any quarterly dividend period, unless there shall likewise be
declared on all shares of all series of both classes of Cumulative Preferred
Stock and on any such parity preferred stock at the time outstanding, like
proportionate dividends, ratably, in proportion to the respective annual
dividend rates fixed therefor, for the same quarterly dividend period, to the
extent that such shares are entitled to receive dividends for such quarterly
dividend period.
Whenever dividends accrued on all outstanding shares of Cumulative
Preferred Stock to the next succeeding quarterly dividend payment date shall
have been paid in full or declared and set apart for payment, the Board of
Directors may declare and pay dividends on the Common Stock or any other stock
ranking junior to the Cumulative Preferred Stock in respect of the payment of
dividends.
Accumulations of dividends on any shares of the Cumulative Preferred
Stock shall not bear interest.
The expression "dividends accrued", as used in Sections 2 and 3 of this
Article IV, shall mean the sum of amounts in respect of shares of the
Cumulative Preferred Stock then outstanding which, as to each share, shall be
an amount computed at the dividend rate per annum fixed for the particular
share from the date from which dividends on such share became cumulative to the
date with reference to which the expression is used, irrespective of whether
such amount or any part thereof shall have been declared as dividends or there
shall have existed any funds legally available for the declaration and payment
thereof, less the aggregate of all dividends paid on such share.
(C) The Corporation shall have the right, at its option and by
resolution of its Board of Directors, to redeem any series of either class of
the Cumulative Preferred Stock, as a whole at any time, or in part from time to
time, upon payment in cash, in respect of each share redeemed, of the
applicable redemption price fixed for the shares of the particular series,
together with dividends accrued thereon to the date fixed for redemption, and
by mailing, postage prepaid, at least thirty (30) days and not more than ninety
(90) days prior to the date fixed for said redemption, a notice specifying said
redemption date to the holders of record of the Cumulative Preferred Stock to
be redeemed, at their respective addresses as the same shall appear on the
books of the Corporation. Except as otherwise provided in Subsection (A) (1)
of Article IV, Section 3, in case of the redemption of a part only of any
series of the Cumulative Preferred Stock at the time outstanding, the
particular shares to be redeemed shall be, to the nearest full share, a
proportionate part of the holdings of each holder of shares of such series, or,
if in the judgment of the Board of Directors such proportionate selection shall
be impracticable, the particular shares to be redeemed shall be selected in
whole or in part by lot as the Board of Directors may determine.
If such notice of redemption shall have been so mailed, and if, on or
before the redemption date specified in such notice, all funds necessary for
such redemption shall have been set aside by the Corporation, separate and
apart from its other funds, in trust for the account of the holders of the
shares so to be redeemed, so as to be and continue to be available therefor,
then, on and after said redemption date, notwithstanding that any certificate
for the shares of the Cumulative Preferred Stock so called for redemption shall
not have been surrendered for cancellation, the shares represented thereby
shall no longer be deemed outstanding, the right to receive dividends thereon
shall cease to accrue, and all rights with respect to such shares of the
Cumulative Preferred Stock so called for redemption shall forthwith cease and
terminate, except only the right of the holders thereof to receive, out of the
funds so set aside in trust, the amount payable on redemption thereof, but
without interest, and thereupon such stock shall be deemed canceled and
retired. However, if, after mailing said notice as aforesaid and prior to the
date of redemption specified in such notice, said funds shall be set aside by
deposit in trust, for the account of the holders of the Cumulative Preferred
Stock to be redeemed (and so as to be and continue to be available therefor),
with a bank or trust company having a combined capital and surplus of at least
$2,000,000, organized under the laws of the United States of America or of The
Commonwealth of Massachusetts, thereupon all shares of the Cumulative Preferred
Stock with respect to which such deposit shall have been made shall no longer
be deemed to be outstanding, all rights with respect to such shares of the
Cumulative Preferred Stock shall forthwith upon such
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deposit in trust cease and terminate, except only the right of the holders
thereof to receive from such deposit the amount payable upon the redemption,
but without interest.
In case less than all the shares represented by a particular
certificate are to be redeemed, a new certificate or certificates shall be
issued representing the unredeemed shares.
In case the holders of shares of Cumulative Preferred Stock which shall
have been redeemed shall not within four (4) years after the redemption date
claim any amount so deposited in trust for the redemption of such shares, such
bank or trust company shall, upon demand, pay over to the Corporation any such
unclaimed amount so deposited with it, and shall thereupon be relieved of all
responsibility in respect thereof, and thereafter the holders of such shares
shall look only to the Corporation for payment of the redemption price thereof,
together with dividends accrued thereon to the date fixed for redemption, but
without interest.
If at any time the Corporation shall have failed to declare and pay or
set apart for payment dividends in full upon both classes of the Cumulative
Preferred Stock of all series for all past quarterly dividend periods,
thereafter and until all such dividends shall have been paid in full or
declared and set apart for payment, the Corporation shall not redeem or
purchase, or permit any subsidiary to purchase, for any purpose, any shares of
Cumulative Preferred Stock of either class or any series thereof, unless all
shares of Cumulative Preferred Stock of both classes and all series thereof
then outstanding shall be redeemed.
Except as otherwise provided in the Articles of Organization, all
shares of Cumulative Preferred Stock redeemed shall be canceled and retired and
no shares shall be issued in place thereof.
(D) In the event of any liquidation, dissolution or winding up
(whether voluntary or involuntary) of the affairs of the Corporation, or of any
distribution to holders of, or any purchase or acquisition of, shares of Common
Stock or any other stock ranking junior to the Cumulative Preferred Stock in
respect of the distribution of assets, other than out of or from the
Corporation's earned surplus, then the holders of each series of both classes
of the Cumulative Preferred Stock at the time outstanding shall be entitled to
be paid in cash the distributive amount fixed for the particular series,
together in each case with dividends accrued thereon to the date fixed for
payment of such distributive amounts, and no more, before any such distribution
or payment shall be made to the holders of Common Stock or any other stock
ranking junior to the Cumulative Preferred Stock in respect of the distribution
of assets.
No payments on account of such distributive amounts shall be made to
the holders of any series of either class of the Cumulative Preferred Stock or
any other preferred stock ranking on a parity with the Cumulative Preferred
Stock in respect of the distribution of assets, unless there shall likewise be
paid at the same time to the holders of each other series of both classes of
the Cumulative Preferred Stock or such parity stock like proportionate
distributive amounts, ratably, in proportion to the full distributive amounts
to which they are respectively entitled.
After such payment to the holders of the Cumulative Preferred Stock or
such parity stock, the remaining assets and funds of the Corporation shall be
distributed among the holders of the Common Stock or any other stock ranking
junior to the Cumulative Preferred Stock in respect of the distribution of
assets then outstanding according to their respective rights.
Neither the consolidation or merger of the Corporation with or into any
other corporation or corporations, nor the sale or transfer by the Corporation
of all or any part of its assets, shall be deemed a liquidation, dissolution or
winding up of the affairs of the Corporation within the meaning of this
Subsection (D).
(E) Except as provided in the Articles of Organization, holders of the
Cumulative Preferred Stock shall have no right to be represented at or to
receive notice of meetings of the stockholders and shall have no right to vote
for the election of Directors or for any other purpose or on any other subject.
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However, whenever dividends accrued on any shares of any series of
either class of the Cumulative Preferred Stock at the time outstanding shall
equal or exceed an amount equivalent to six (6) full quarterly dividends
thereon, holders of both classes of the Cumulative Preferred Stock shall have
the right to be represented at and to receive notice of any meeting of the
stockholders of the Corporation held for the purpose of electing Directors and
the exclusive right, voting jointly as a single class, to elect the smallest
number of Directors which will constitute a majority of the total number of
Directors of the Corporation constituting the full Board; and the remaining
Directors shall be elected by the holders of Common Stock and any other class
of stock entitled to vote therefor.
If and when all dividends in default on both classes of the Cumulative
Preferred Stock shall have been paid in full or declared and set apart for
payment, the holders of the Cumulative Preferred Stock shall again be excluded
from the right to be represented at and to receive notice of any meeting of the
stockholders of the Corporation and from the right to vote, except as provided
in the Articles of Organization.
Such dividends in default shall be declared and paid as soon as
reasonably practicable unless payment thereof is prevented by law or by the
provisions of any indenture or agreement to which the Corporation is a party or
is bound.
At any time when the right to vote for Directors shall accrue to
holders of the Cumulative Preferred Stock as herein provided, a meeting of
stockholders, if not otherwise called, shall be called by the Clerk of the
Corporation upon request of, or may be called by, the holders of record of at
least 2% of all shares of both classes of Cumulative Preferred Stock then
outstanding for the purpose of electing (and if necessary increasing the number
of) Directors. If at the time of any such meeting there shall not exist
sufficient vacancies in the office of Director so as to permit the holders of
both classes of the Cumulative Preferred Stock to elect a majority of the
Directors of the Corporation, the holders of both classes of the Cumulative
Preferred Stock, voting jointly as a single class, shall have the exclusive
right to increase the number of Directors from eleven (11) to such number as
will permit the holders of the Cumulative Preferred Stock to elect a majority
of the total number of Directors of the Corporation. However, at the next
meeting of stockholders of the Corporation at which Directors are elected, the
number of Directors shall, without further vote of the holders of any class of
stock of the Corporation, be reduced to eleven (11) and the holders of both
classes of the Cumulative Preferred Stock shall, so long as they have the right
to vote for Directors as herein provided, elect six (6) of such eleven (11)
Directors.
At any election of Directors held during a period when the holders of
both classes of the Cumulative Preferred Stock have the right to vote for the
election of Directors, the division of Directors into classes as provided in
Article V shall be disregarded and of no effect and all Directors elected at
any such election shall serve until the next annual meeting of stockholders,
subject to the following provision and until their successors shall be chosen
and qualified.
When all dividends in default on the Cumulative Preferred Stock shall
have been paid in full, each Director elected by the holders of the Cumulative
Preferred Stock shall cease to hold office upon the election of a new Board of
Directors by the stockholders then entitled to vote for Directors at a meeting
of stockholders which, if not otherwise called, shall be called by the Clerk of
the Corporation upon request of, or may be called by, one or more of the
Directors then in office. The eleven (11) Directors constituting any such new
Board of Directors shall be divided into classes as provided in Article V and
with such terms of office as would have pertained to the several classes had
there been no interruption in their continuity by reason of the election of
Directors by holders of the Cumulative Preferred Stock.
If the event calling for the election of Directors as provided for
herein shall occur not more than sixty (60) and not less than thirty (30) days
before the date for an annual meeting of the stockholders, the election of
Directors shall be held at such annual meeting, but otherwise at a special
meeting of the stockholders to be called for such purpose.
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Notice of every meeting of the stockholders held for the election of
Directors during a period when the holders of the Cumulative Preferred Stock
have the right to vote for the election of Directors shall be given to the
holders of record of both classes of Cumulative Preferred Stock and of Common
Stock and of any other class of stock entitled to vote therefor and shall state
the purpose of the meeting in respect of the election of Directors representing
the different classes of stock.
At each such meeting, one-third of the outstanding shares of both
classes of the Cumulative Preferred Stock shall be required to constitute a
quorum for the election of Directors by the Cumulative Preferred Stock and a
majority of the outstanding shares of the Common Stock and of any other class
of stock entitled to vote therefor shall be required to constitute a quorum for
the election of Directors by the Common Stock and such other class of stock.
If for lack of a quorum or for any other reason, at any meeting at
which holders of the Cumulative Preferred Stock have the right to elect
Directors, such holders or the holders of the Common Stock or of any other
class of stock entitled to vote therefor shall not elect the number of
Directors they are entitled to elect, the holders of the other class or classes
of stock, provided they have elected the number of Directors they are entitled
to elect, may also elect such additional Directors as are necessary to
constitute the full Board, but no person shall be so elected as an additional
Director except a Director in office at the time of the meeting who had been
elected by the class or classes of stock failing to exercise its or their
voting rights so long as any such Director in office is available for such
election.
In case of any vacancy in the office of a Director elected by the
holders of a particular class or classes of stock, the remaining Directors
elected by the holders of that class or those classes, by vote of a majority
thereof, or the remaining Director so elected if there be only one, may fill
the vacancy by the election of a successor to hold office for the unexpired
term of such Director. So long as any shares of the Cumulative Preferred Stock
of any class or any series thereof are outstanding, no amendment of the
Articles of Organization shall authorize the removal of any Director elected by
holders of the Cumulative Preferred Stock except by vote of the holders thereof
in accordance with Subsection (F) (1) of this Article IV, Section 2.
Directors elected by, or in place of Directors elected by, holders of
the Cumulative Preferred Stock need not be stockholders of the Corporation.
(F) (1) So long as any shares of either class of Cumulative Preferred
Stock of any series thereof are outstanding, the Corporation shall not, by
merger, consolidation or otherwise, without the vote at a meeting called for
that purpose of holders of at least two-thirds of the total number of shares of
both classes of the Cumulative Preferred Stock of all series then outstanding,
voting jointly as a single class:
(a) amend, alter or repeal any of the provisions of either
class of the Cumulative Preferred Stock, or of any series thereof,
which would change the preferences or rights of the holders thereof in
any manner adverse to the holders thereof, except that if such
amendment, alteration or repeal shall affect the rights of the holders
of either class or any series thereof differently from that in which
the rights of both classes or all series are affected, the vote of the
holders of two-thirds of the total number of shares of each class or
series so affected shall be required; provided, however, that no such
amendment, alteration or repeal shall affect the right of the holders
of both classes of the Cumulative Preferred Stock to receive
cumulative dividends at the rate fixed for the series of which their
respective shares are a part, or to receive payment in cash of the
redemption price or prices fixed for the series of which their
respective shares are a part in the event of redemption, or to receive
payment in cash of the distributive amount fixed for the series of
which their respective shares are a part in the event of either
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, or in the event of any distribution to
holders of, or any purchase or acquisition of, shares of Common Stock
or any other stock ranking junior to the Cumulative Preferred Stock in
respect of the distribution of assets, other than out of or from the
Corporation's earned surplus; or
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(b) create, authorize or issue any class of stock ranking
prior to or on a parity with the Cumulative Preferred Stock in respect
of either the payment of dividends or the distribution of assets, or
issue any shares of any such class of stock more than one hundred
eighty (180) days after the issue thereof has been so authorized by
the holders of both classes of the Cumulative Preferred Stock; or
(c) merge into or consolidate with any other corporation
unless such merger or consolidation shall have been approved by order
of the Massachusetts Department of Public Utilities or other
regulatory authority having Jurisdiction in the premises, and unless
the Corporation shall itself be the successor corporation; or
(d) sell or transfer its assets as, or substantially as, an
entirety. The term "sell or transfer", as used herein, includes a
lease or exchange but does not include a mortgage or pledge.
(2) So long as any shares of the Cumulative Preferred Stock of either
class or any series thereof are outstanding, the Corporation shall not, without
the vote at a meeting called for that purpose of the holders of at least a
majority of the total number of shares of both classes of the Cumulative
Preferred Stock of all series then outstanding, voting jointly as a single
class, issue any shares of either class of Cumulative Preferred Stock in
addition to the shares of all series of both classes of the Cumulative
Preferred Stock initially authorized to be issued up to that time (except for
the purpose of retiring the Cumulative Preferred Stock, $100 par value, or
stock ranking prior to or on a parity with the Cumulative Preferred Stock, $100
par value, in respect of either the payment of dividends or the distribution of
assets, provided the aggregate par or stated value of any shares so issued
shall not exceed the aggregate par or stated value of the shares to be retired)
unless, after giving effect thereto,
(a) net income of the Corporation for any period of twelve
months within the next preceding fifteen months shall have been at
least equal to two (2) times the sum of the annual dividend
requirements on all shares of both classes of the Cumulative Preferred
Stock and on all shares of stock ranking prior to or on a parity with
the Cumulative Preferred Stock in respect of either the payment of
dividends or the distribution of assets which are to be outstanding
after giving effect to such issue, including the shares to be issued
but excluding any shares of either class of Cumulative Preferred Stock
or of such prior or parity stock to be retired in connection with such
issue; and
(b) net income of the Corporation for any period of twelve
months within the next preceding fifteen months (after adding back
interest charges on funded debt of the Corporation deducted in the
computation) shall have been at least equal to one and one-half (1
1/2) times the sum of (x) the annual interest charges on funded debt
of the Corporation to be outstanding at the time of such issue, plus
(y) the annual dividend requirements on all shares of both classes of
the Cumulative Preferred Stock and on all shares of stock ranking
prior to or on a parity with the Cumulative Preferred Stock in respect
of either the payment of dividends or the distribution of assets which
are to be outstanding after giving effect to such issue, including the
shares to be issued but excluding any funded debt or shares of either
class of Cumulative Preferred Stock or of such prior or parity stock
to be retired in connection with such issue; and
(c) the aggregate amount of (x) capital represented by the
Common Stock and any other stock ranking junior to the Cumulative
Preferred Stock in respect of the distribution of assets, plus (y) the
sum of the capital surplus, earned surplus, surplus invested in plant
and premiums paid on capital stock of all classes of the Corporation,
would be at least equal to the aggregate amount payable upon
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation on all shares of both classes of the Cumulative
Preferred Stock and on all shares of stock ranking prior to or on a
parity with the Cumulative Preferred Stock in respect of the
distribution of assets which are to be outstanding after giving effect
to such issue, including the shares to be issued but excluding any
shares of either class of Cumulative Preferred Stock or of such prior
or parity stock to be retired in connection with such issue.
The term "funded debt", as used in this Subsection (F), shall mean all
indebtedness, determined in accordance with generally accepted accounting
principles, maturing more than twelve months from the date on which it was
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incurred, except that there shall not be included in funded debt any
indebtedness for the payment or redemption of which at maturity or on a
redemption date sums sufficient for the payment thereof have been deposited in
trust.
The term "net income", as used in this Subsection (F), shall mean the
net income of the Corporation, after provision for all Federal and state taxes,
determined in accordance with generally accepted accounting principles, subject
to any applicable requirements imposed by the Massachusetts Department of
Public Utilities or other regulatory body having jurisdiction.
(G) Except as otherwise provided by law, no holder of either class of
Cumulative Preferred Stock shall be entitled as such as a matter of right to
subscribe for or purchase any part of any new or additional issue of stock or
warrants carrying rights to stock, or securities convertible into stock, of any
class whatever, whether now or hereafter authorized, and whether issued for
cash, property, services or otherwise. If it is required by law that such new
or additional issue be offered proportionately to the stockholders, then the
holders of all classes of preferred stock only shall be entitled to subscribe
for new or additional preferred stock of any class and the holders of Common
Stock only shall be entitled to subscribe for new or additional Common Stock;
and notice of such increase as required by law need be given and the new shares
need be offered proportionately only to stockholders who are so entitled to
subscribe.
(H) Except as otherwise provided by law, shares of either class of
Cumulative Preferred Stock when duly authorized may be issued for such
consideration as may be fixed from time to time by the Board of Directors and,
upon receipt by the Corporation of the consideration so fixed, such shares
shall be deemed to have been fully paid and shall not be liable to any further
call or assessment.
(I) Subject to the limitations, if any, contained in this Section 2 of
Article IV, the Corporation may from time to time issue additional capital
stock divided into classes with such preferences, voting powers, restrictions,
qualifications and other incidents as may be determined in accordance with
applicable provisions of law and the terms of outstanding capital stock.
Without limiting the generality of the foregoing, any such additional capital
stock may be an additional series of either class of Cumulative Preferred Stock
or additional shares of any series of either class of Cumulative Preferred
Stock (other than all series of both classes authorized to be issued up to that
time) within the limit fixed for such series.
(J) No stockholder, Director, officer or agent of the Corporation
shall be held individually responsible for any action taken in good faith
though subsequently adjudged to be in violation of this Section 2 of Article
IV.
SECTION 3. Terms applicable to each class of Cumulative Preferred
Stock are as follows:
(A) Terms applicable to particular series of the Cumulative
Preferred Stock, $50 par value:
(1) The first series of the Cumulative Preferred Stock, $50
par value, shall be designated "Cumulative Preferred Stock, $3.80
Series"; the number of shares of such series which may be issued shall
be limited to 14,534 shares; the annual dividend rate per share for
such series shall be $3.80; the redemption price for such series shall
be $83 per share, plus dividends accrued thereon to the date fixed
for redemption; and the distributive amount fixed for said series in
the event of any involuntary liquidation, dissolution or winding up of
the affairs of the Corporation shall be $81.50 per share, and the
distributive amount fixed for said series in the event of any
voluntary liquidation, dissolution or winding up of the affairs of the
Corporation and in the event of any distribution to holders of, or any
purchase or acquisition of, shares of Common Stock or any other stock
ranking junior to the Cumulative Preferred Stock in respect of the
distribution of assets, other than out of or from the Corporation's
earned surplus, shall be $83 per share, plus in each case dividends
accrued thereon to the date of distribution.
Subject to the provisions of the Articles of Organization and of any
law and of any indenture or agreement to which the Corporation is a party or is
bound, the Corporation will, on July 1 in each year, redeem at least 400 shares
of the Cumulative Preferred Stock, $3.80 Series, at $83 per share together with
dividends accrued thereon to
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the particular July 1; provided, however, that the Corporation may credit
against the 400 shares so required to be redeemed on each July 1 up to 200
shares purchased during the twelve month period ended with the next preceding
May 31.
Shares so to be redeemed will be redeemed in accordance with the
provisions of Subsection (C) of Article IV, Section 2, except that the
particular shares to be redeemed shall be selected by lot. On or before May 31
in each year, the Corporation will call for redemption the number of shares
required to be redeemed on the next following July 1.
The Corporation shall not be obligated to redeem any shares of
Cumulative Preferred Stock, $3.80 Series, on any July 1 unless all dividends
accrued on all shares of such series shall have been declared or paid,
including the quarterly dividend payable on such July 1. The Corporation's
obligation to redeem shares of such series shall be non-cumulative.
(2) The second series of the Cumulative Preferred Stock, $50 par
value, shall be designated "Cumulative Preferred Stock, 5 5/8% Series"; the
number of shares of such series which may be issued shall be limited to 30,346
shares; the annual dividend rate per share for such series shall be 5 5/8% of
the par value thereof; the redemption prices for such series shall be $52 per
share if such date is before December 1, 1975 and $51 per share if such date is
on or after December 1, 1975, together in each case with dividends accrued
thereon to the date fixed for redemption; and the distributive amount fixed for
said series in the event of any involuntary liquidation, dissolution or winding
up of the affairs of the Corporation shall be $50 per share, and the
distributive amount fixed for said series in the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Corporation and in
the event of any distribution to holders of, or any purchase or acquisition of,
shares of Common Stock or any other stock ranking junior to the Cumulative
Preferred Stock in respect of the distribution of assets, other than out of or
from the Corporation's earned surplus, shall be equal to the applicable
redemption price per share, plus in each case dividends accrued thereon to the
date of distribution.
Subject to the provisions of the Articles of Organization and of any
law and of any indenture or agreement to which the Corporation is a party or is
bound, the Corporation will on each January 1, purchase, at the price of $50
per share plus dividends accrued to the particular January 1, shares of
Cumulative Preferred Stock, 5 5/8% Series, tendered to the Corporation, the
number of shares so to be purchased not to exceed 1,300 shares.
Such purchases shall be made from the holders of record of shares of
such series at the close of business on the record date for the payment of the
quarterly dividend payable on such January 1, and shall be made, as nearly as
may be practical and without the purchase of fractional shares, so that, except
as hereinafter provided, the number of shares purchased on any January 1 from
each such holder of record shall, to the extent shares are tendered by such
holder, equal but not exceed that number of shares which bears the same ratio
to 1,300, as the number of shares so held of record by such holder bears to the
total number of shares of such series outstanding on such record date.
However, if the shares so held of record by any such holder are shares acquired
by such holder from the Corporation upon the original issue of the Cumulative
Preferred Stock, 5 5/8% Series, the number of shares purchased from such holder
shall, to the extent shares are tendered by Such holder, equal but not exceed
that number of shares which bears the same ratio to 1,300 as the number of
shares so acquired by such holder upon such original issue bears to 40,000.
On or before December 1 of each year, the Corporation shall give to
each holder of record of shares of such series at the close of business, on the
record date for the payment of the quarterly dividend payable on the next
following January 1, written notice of the Corporation's willingness to
purchase shares of such series on such January 1 and designating the place at
which tenders are to be made. Each such holder of record may, whether or not
the Corporation shall give such written notice, deliver to the Corporation, on
or before December 24 next following such December 1, written notice of the
number of shares which, within the limitations provided above, it elects to
tender for purchase by the Corporation on such January 1. At least one (1) full
business day prior to January 1, each such holder of record who has given such
a written notice shall tender such shares by delivering to the Corporation, at
the place so designated by the Corporation, certificates for said number of
shares, duly endorsed
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with signature properly guaranteed. All shares so purchased shall be cancelled
and shall not be reissued.
The Corporation shall not be obligated to purchase any shares of
Cumulative Preferred Stock, 5 5/8% Series, on any January 1 unless all
dividends accrued on all shares of such series shall have been declared or
paid, including the quarterly dividend payable on such January 1. The
Corporation's obligation to purchase shares of such series shall be cumulative,
so that, if for any reason the Corporation shall (i) be unable to purchase any
shares, or (ii) fail to purchase the full number of shares tendered to it,
then, the number of shares for which the Corporation would have been required
to receive tenders in the case of (i) above, or the number of shares which the
Corporation failed to purchase in the case of (ii) above, shall be added to the
1,300 shares, which the Corporation shall be required to receive tenders for
and to purchase on the next January 1 or, in the event the Corporation shall
for any reason be unable to purchase any shares on such next January 1, on the
first succeeding January 1 on which the Corporation is not so unable to
purchase shares.
(3) The third series of the Cumulative Preferred Stock, $50 par value,
shall be designated "Cumulative Preferred Stock, $3.25 Series"; the number of
shares of such series which may be issued shall be limited to 29,120 shares;
the annual dividend rate per share for such series shall be $3.25; the
redemption prices for such series shall be $55 per share if the date fixed for
redemption is before December 15, 1976, $51.625 per share if such date is on or
after December 15, 1976 but before December 15, 1979, $50.8125 per share if
such date is on or after December 15, 1979 but before December 15, 1982, and
$50 per share if such date is on or after December 15, 1982, together in each
case with dividends accrued thereon to the date fixed for redemption. The
distributive amount fixed for said series in the event of any involuntary
liquidation, dissolution or winding up of the affairs of the Corporation shall
be $50 per share, and the distributive amount fixed for said series in the
event of any voluntary liquidation, dissolution or winding up of the affairs of
the Corporation and in the event of any distribution to holders of, or any
purchase or acquisition of, shares of Common Stock or any other stock ranking
junior to the Cumulative Preferred Stock in respect of the distribution of
assets, other than out of or from the Corporation's earned surplus, shall be
equal to the applicable redemption price per share, plus in each case dividends
accrued thereon to the date of distribution.
Subject to the provisions then in effect of the Articles of
Organization, any law and any agreements relating to borrowed money to which
Brockton Taunton Gas Company was a party on December 31, 1965, the Corporation
will, on each January 1, purchase, at the price of $50 per share, plus
dividends accrued to the particular January 1, shares of Cumulative Preferred
Stock, $3.25 Series, tendered to the Corporation, the number of shares so to be
purchased to be not less than 640 shares; provided, however, that, if in
accordance with the provisions of the Articles of Organization the Corporation
receives from the holders of record of shares of such series tenders of an
aggregate of less than 640 shares of such series for purchase by the
Corporation on any January 1, the obligation of the Corporation to purchase
shares of such series on the particular January 1 shall be limited to the
number of shares so tendered.
Such purchases shall be made from the holders of record of shares of
such series at the close of business on the record date for the payment of the
quarterly dividend payable on such January 1, and shall be made, is nearly as
may be practical and without the purchase of fractional shares, so that the
number of shares purchased on any January 1 from each such holder of record
shall, to the extent shares are tendered by such holder, equal but not exceed
that number of shares which bears the same ratio to 640 as the number of shares
so held of record by such holder bears to the total number of shares of such
series outstanding on such record date.
On or before December 1 of each year, the Corporation shall give to
each holder of record of shares of such series at the close of business on the
record date for the payment of the quarterly dividend payable on the next
following January 1 written notice of the Corporation's willingness to purchase
shares of such series on such January 1 and designating the place at which
tenders are to be made. Each such holder of record may, whether or not the
Corporation shall give such written notice, deliver to the Corporation, on or
before December 24 next following such December 1, written notice of the number
of shares which, within the limitations provided above, it elects to tender for
purchase by the Corporation on such January 1. At least one ( 1 ) full business
day prior to such January 1, each such holder of record who has given such
written notice shall tender such shares by delivering to
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the Corporation, at the place so designated by the Corporation, certificates
for said number of shares, duly endorsed with signature properly guaranteed.
All shares so purchased shall be cancelled and shall not be reissued.
The Corporation shall not be obligated to purchase any shares of
Cumulative Preferred Stock, $3.25 Series, on any January 1 unless all dividends
accrued on all shares of such series shall have been declared or paid,
including the quarterly dividend payable on such January 1. The Corporation's
obligation to purchase shares of such series shall be cumulative, so that, if
for any reason the Corporation shall (i) be unable to purchase any shares, or
(ii) fail to purchase the full number of shares tendered to it, then, the
number of shares for which the Corporation would have been required to receive
tenders in the case of (i) above, or the number of shares which the Corporation
failed to purchase in the case of (ii) above, shall be added to the 640 shares
which the Corporation shall be required to receive tenders for and to purchase
on the next January 1 or, in the event the Corporation shall for any reason be
unable to purchase any shares on such next January 1, on the first succeeding
January 1 on which the Corporation is not so unable to purchase shares.
(B) Terms applicable to particular series of the Cumulative Preferred
Stock, $100 par value:
(1) The first series of Cumulative Preferred Stock, $100 par
value, shall be designated "Cumulative Preferred Stock, 4.70% Series";
the number of shares of such series which may be issued shall be
limited to 21,100 shares; the annual dividend rate per share for such
series shall be 4.70% of the par value thereof; the redemption prices
for such series shall be $103 per share if such date is on or before
June 30, 1979 and $102 per share if such date is after June 30, 1979,
plus in each case dividends accrued thereon to the date fixed for
redemption; the distributive amount fixed for said series in the event
of any involuntary liquidation, dissolution or winding up of the
affairs of the Corporation shall be $100 per share, plus dividends
accrued thereon to the date of distribution; and the distributive
amount fixed for said series in the event of any voluntary
liquidation, dissolution or winding up of the affairs of the
Corporation and in the event of any distribution to holders of, or any
purchase or acquisition of, shares of Common Stock or any other stock
ranking junior to the Cumulative Preferred Stock in respect of the
distribution of asset other than out of or from the Corporation's
earned surplus, shall be the applicable redemption price per share,
which shall include dividends accrued thereon to the date of
distribution.
Subject to the provisions of the Articles of Organization and of any
law and of any agreement as in effect on April 1, 1964 relating to borrowed
money to which Springfield Gas Light Company was, on that date, a party, the
Corporation will, on each July 1, purchase, at the price of $100 per share,
plus dividends accrued to the particular July 1, not less than 500 shares of
Cumulative Preferred Stock, 4.70% Series, tendered to the Corporation;
provided, however, that, if in accordance with the provisions of the Articles
of Organization, the Corporation receives from the holders of record of shares
of such series tenders of an aggregate of less than 500 shares of such series
for purchase by the Corporation on any July 1, the obligation of the
Corporation to purchase shares of such series on the particular July 1 shall be
limited to the number of shares so tendered.
Such purchases shall be made from the holders of record of shares of
such series at the close of business on the record date for the payment of the
quarterly dividend payable on such July 1, and shall be made, as nearly as may
be practical and without the purchase of fractional shares, so that, except as
hereinafter provided, the number of shares purchased on any July 1 from each
such holder of record shall, to the extent shares are tendered by such holder,
equal but not exceed that number of shares which bears the same ratio to the
aggregate number of shares to be purchased by the Corporation on the particular
July 1, as the number of shares so held of record by such holder bears to the
total number of shares of such series outstanding on such record date.
However, if the shares so held of record by any such holder are shares acquired
by such holder from the Corporation upon the original issue of the shares of
Cumulative Preferred Stock, 4.70% Series, the number of shares purchased from
such holder shall, to the extent shares are tendered by such holder, equal but
not exceed that number of shares which bears the same ratio to the aggregate
number of shares to be purchased by the Corporation on the particular July 1,
as the number of shares so acquired by such holder upon such original issue
bears to 25,000.
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On or before June 1 of each year, the Corporation shall give to each
holder of record of shares of such series at the close of business on the
record date for the payment of the quarterly dividend payable on the next
following July 1 written notice of the Corporation's willingness to purchase
shares of such series on such July 1 and designating the place at which tenders
are to be made. Each such holder of record may, whether or not the Corporation
shall give such written notice, deliver to the Corporation, on or before June
23 next following such June 1, written notice of the number of shares which,
within the limitations provided above, it elects to tender for purchase by the
Corporation on such July 1. At least one (1) full business day prior to such
July 1, each such holder of record who has given such a written notice shall
tender such shares by delivering, to the Corporation, at the place so
designated by the Corporation, certificates for said number of shares, duly
endorsed with signature properly guaranteed. All shares so purchased shall be
cancelled and shall not be reissued.
The Corporation shall not be obligated to purchase any shares of
Cumulative Preferred Stock, 4.70% Series, on any July 1, unless all dividends
accrued on all shares of such series shall have been declared or paid,
including the quarterly dividend payable on such July 1. The Corporation's
obligation to purchase shares of such series shall not be cumulative, except
that, if on any July 1 the Corporation shall (i) fail as the result of its
financial inability to purchase any shares, or (ii) fail for any other reason
to purchase the full number of shares which the Corporation is required to
purchase on the particular July 1, then, the number of shares which the
Corporation failed to purchase shall be added to the number of shares which the
Corporation shall be required to receive tenders for and to purchase on the
next July 1 or, in the event the Corporation shall for any reason be unable to
purchase any shares on such next July 1, on the first succeeding July 1 on
which the Corporation is not so unable to purchase shares.
(2) The second series of the Cumulative Preferred Stock, $100 par
value, shall be designated "Cumulative Preferred Stock, 8.70% Series"; the
number of shares of such series which may be issued shall be limited to 29,550
shares; the annual dividend rate per share for such series shall be 8.70% of
the par value thereof; the redemption prices for such series shall be $108.70
per share if the date fixed for redemption is on or before January 1, 1982,
$104.35 per share if such date is after January 1, 1982 but on or before
January 1, 1985, $102.175 per share if such date is after January 1, 1985 but
on or before January 1, 1988, and $100 per share if such date is after January
1, 1988, plus in each case dividends accrued thereon to the date fixed for
redemption; the distributive amount fixed for said series in the event of any
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation shall be $100 per share, plus dividends accrued thereon to the date
of distribution; and the distributive amount fixed for said series in the event
of any voluntary liquidation, dissolution or winding up of the affairs of the
Corporation and in the event of any distribution to holders of, or any purchase
or acquisition of, shares of Common Stock or any other stock ranking junior to
the Cumulative Preferred Stock, in respect of the distribution of assets, other
than out of or from the Corporation's earned surplus, shall be the applicable
redemption price per share, which shall include dividends accrued thereon to
the date of distribution.
Prior to January 1, 1982, the Corporation shall not, except for
purchases made pursuant to this Subsection (B) (2) of Article IV, Section 3,
redeem any shares of the Cumulative Preferred Stock, 8.70% Series, through any
refunding operation resulting in a dividend rate, interest rate or other cost
of money to the Corporation of less than 8.70% per annum.
Subject to the provisions of the Articles of Organization and of any
law and of any agreement as in effect on October 1, 1971 relating to borrowed
money to which Springfield Gas Light Company was, on that date, a party, the
Corporation will, on each January 1, purchase, at the price of $100 per share,
plus dividends accrued to the particular January 1, not less than 900 shares of
Cumulative Preferred Stock, 8.70% Series, tendered to the Corporation;
provided, however, that, if in accordance with the provision of the Articles of
Organization the Corporation receives from the holders of record of shares of
such series tenders of an aggregate of less than 900 shares of such series for
purchase by the Corporation on any January 1, the obligation of the Corporation
to purchase shares of such series on the particular January 1 shall be limited
to the number of shares so tendered.
Such purchases shall be made from the holders of record of shares of
such series at the close of business on the record date for the payment of the
quarterly dividend payable on such January 1, and shall be made, as nearly as
may be practical and without the purchase of fractional shares, so that, except
as hereinafter provided, the number
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of shares purchased on any January 1 from each such holder of record shall, to
the extent shares are tendered by such holder, equal but not exceed that
number of shares which bears the same ratio to the aggregate number of shares
to be purchased by the Corporation on the particular January 1, as the number
of shares so held of record by such holder bears to the total number of shares
of such series outstanding on such record date. However, if the shares so
held of record by any such holder are shares acquired by such holder from the
Corporation upon the original issue of the shares of Cumulative Preferred
Stock, 8.70% Series, the number of shares purchased from such holder shall, to
the extent shares are tendered by such holder, equal but not exceed that number
of shares which bears the same ratio to the aggregate number of shares to be
purchased by the Corporation on the particular January 1, as the number of
shares so acquired by such holder upon such original issue bears to 30,000.
On or before December 1 of each year, the Corporation shall give to
each holder of record of shares of such series at the close of business on the
record date for the payment of the quarterly dividend payable on the next
following January 1 written notice of the Corporation's willingness to purchase
shares of such series on such January 1 and designating the place at which
tenders are to be made. Each such holder of record may, whether or not the
Corporation shall give such written notice, deliver to the Corporation, on or
before December 23 next following such December 1, written notice of the number
of shares which, within the limitations provided above, it elects to tender for
purchase by the Corporation on such January 1. At least one (1) full business
day prior to such January 1, each such holder of record who has given such a
written notice shall tender such shares by delivering to the Corporation, at
the place so designated by the Corporation, certificates for said number of
shares, duly endorsed with signature properly guaranteed. All shares so
purchased shall be cancelled and shall not be reissued.
The Corporation shall not be obligated to purchase any shares of
Cumulative Preferred Stock, 8.70% Series, on any January 1 unless all dividends
accrued on all shares of such series shall have been declared or paid,
including the quarterly dividend payable on such January 1. The Corporation's
obligation to purchase shares of such series shall not be cumulative, except
that, if on any January 1 the Corporation shall (i) fail as the result of its
financial inability to purchase any shares, or (ii) fail for any other reason
to purchase the full number of shares which the Corporation is required to
purchase on the particular January 1, then, the number of shares which the
Corporation failed to purchase shall be added to the number of shares which the
Corporation shall be required to receive tenders for and to purchase on the
next January 1 or, in the event the Corporation shall for any reason be unable
to purchase any shares on such next January 1, on the first succeeding January
1 on which the Corporation is not so unable to purchase shares.
(3) The third series of the Cumulative Preferred Stock, $100 par
value, shall be designated "Cumulative Preferred Stock, 9.95% Series"; the
number of shares of such series which may be issued shall be limited to 40,000
shares; the annual dividend rate per share for such series shall be 9.95% of
the par value thereof; the redemption prices for such series shall be $115 per
share if the date fixed for redemption is on or before July 1, 1979, $110 per
share if such date is after July 1, 1979 but on or before July 1, 1984, $108
per share if such date is after July 1, 1984 but on or before July 1, 1989,
$105 per share if such date is after July 1, 1989 but on or before July 1, 1994
and $101 per share if such date is after July 1, 1994, plus in each case
dividends accrued thereon to the date fixed for redemption; the distributive
amount fixed for said series in the event of any involuntary liquidation,
dissolution or winding up of the affairs of the Corporation shall be $100 per
share, plus dividends accrued thereon to the date of distribution; and the
distributive amount fixed for said series in the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Corporation and in
the event of any distribution to holders of, or any purchase or acquisition of,
shares of Common Stock or any other stock ranking junior to the Cumulative
Preferred Stock in respect of the distribution of assets, other than out of or
from the Corporation's earned surplus, shall be the applicable redemption price
per share, which shall include dividends accrued thereon to the date of
distribution.
Prior to July 1, 1979, the Corporation shall not, except for purchases
made pursuant to this Subsection (B) (3) of Article IV, Section 3, redeem any
shares of the Cumulative Preferred Stock, 9.95% Series, through any refunding
operation resulting in a dividend rate, interest rate or other cost of money to
the Corporation of less than 9.95% per annum.
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Subject to the provisions of the Articles of Organization and of any
law and of any agreement as in effect on April 25, 1974 relating to borrowed
money to which Bay State Gas Company was, on that date, a party, the
Corporation will, on July 1, 1977 and on each July 1 thereafter, purchase, at
the price of $100 per share, plus dividends accrued to the particular July 1,
not less than 1,600 shares of Cumulative Preferred Stock, 9.95% Series,
tendered to the Corporation; provided, however, that, if in accordance with the
provisions of the Articles of Organization the Corporation receives from the
holders of record of shares of such series tenders of an aggregate of less than
1,600 shares of such series for purchase by the Corporation on any July 1, the
obligation of the Corporation to purchase shares of such series on the
particular July 1 shall be limited to the number of shares so tendered.
Such purchases shall be made from the holders of record of shares of
such series at the close of business on the record date for the payment of the
quarterly dividend payable on such July 1, and shall be made, as nearly as
practical and without the purchase of fractional shares, so that the number of
shares purchased on any July 1 from each such holder of record shall, to the
extent shares are tendered by such holder, equal but not exceed that number of
shares which bears the same ratio to the aggregate number of shares to be
purchased by the Corporation on the particular July 1, as the number of shares
so held of record by such holder bears to the total number of shares of such
series outstanding on such record date.
On or before June 1 of each year commencing June 1, 1977, the
Corporation shall give to each holder of record of shares of such series at the
close of business on the record date for the payment of the quarterly dividend
payable on the next following July 1 written notice of the Corporation's
willingness to purchase shares of such series on such July 1 and designating
the place at which tenders are to be made. Each such holder of record may,
whether or not the Corporation shall give such written notice, deliver to the
Corporation, on or before June 23 next following such June 1, written notice of
the number of shares which, within the limitations provided above, it elects to
tender for purchase by the Corporation on such July 1. At least one (1) full
business day prior to such July 1, each such holder of record who has given
such a written notice shall tender such shares by delivering to the
Corporation, at the place so designated by the Corporation, certificates for
said number of shares, duly endorsed with signature properly guaranteed. All
shares so purchased shall be cancelled and shall not be reissued.
The Corporation shall not be obligated to purchase any shares of the
Cumulative Preferred Stock, 9.95% Series, on any July 1 unless all dividends
accrued on all shares of such series shall have been declared or paid,
including the quarterly dividend payable on such July 1. The Corporation's
obligation to purchase shares of such series shall not be cumulative, except
that, if on any July 1 the Corporation shall (i) fail as the result of its
financial inability to purchase any shares, or (ii) fail for any other reason
to purchase the full number of shares which the Corporation is required to
purchase on the particular July 1, then, the number of shares which the
Corporation failed to purchase shall be added to the number of shares which the
Corporation shall be required to receive tenders for and to purchase on the
next July 1 or, in the event the Corporation shall for any reason be unable to
purchase any shares on such next July 1, on the first succeeding July 1 on
which the Corporation is not so unable to purchase shares.
SECTION 4. The terms of the Common Stock, in addition and subject to
the provisions of Sections 1, 2 and 3 of this Article IV, are as follows:
Each share of the Common Stock shall be equal to every other share
thereof in all respects.
Except as in the Articles of Organization provided, holders of the
Common Stock shall have the exclusive right to vote for the election of
Directors and for any other purpose or on any other subject and to be
represented at and to receive notice of any meeting of stockholders.
ARTICLE V
The Corporation shall have eleven Directors divided into five classes
with their respective terms of office arranged so that the term of office of
one class expires in each year. The terms of office of the directorships are
as follows: two Directors whose term will expire
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at the annual meeting in 1975, two Directors whose term will expire at the
annual meeting in 1976, two Directors whose term will expire at the annual
meeting in 1977, two Directors whose term will expire at the annual meeting in
1978 and three Directors whose term will expire at the annual meeting in 1979.
As the term of each class expires, a corresponding number of Directors will be
elected by ballot for a term of five years.
ARTICLE VI
SECTION 1. The Corporation is to have perpetual existence.
SECTION 2. No holder of any share of stock of the Corporation shall,
because of his holding or ownership of stock, have a preemptive or other right
to purchase, subscribe for or take any part of any stock of such Corporation.
SECTION 3. The Directors of the Corporation may make, amend or repeal
the By-Laws in whole or in part except with respect to any provision thereof
which by law or the Articles of Organization requires action by the
stockholders or any class thereof.
SECTION 4. In the absence of fraud, no contract or other transaction
between the Corporation and any other firm or corporation shall be affected or
invalidated by reason of the fact that any one or more of the Directors or
officers of the Corporation is or are interested in, or is a member,
stockholder, director or officer, or are members, stockholders, directors or
officers, of such other firm or corporation; and any Director or Directors, or
officer or officers, individually or jointly, may be a party or parties to, or
may be interested in, any contract or transaction of the Corporation, or in
which the Corporation is interested, and no contract, act or transaction of the
Corporation with any person or persons, firm, association or corporation shall
be affected or invalidated by reason of the fact that any Director or
Directors, or officer or officers, of the Corporation is a party or are parties
to, or interested in, such contract, act or transaction, or in any way
connected with such person or persons, firm, association, or corporation, and
each and every person who may become a Director or officer of the Corporation
is hereby relieved from any liability that might otherwise exist from thus
contracting with the Corporation for the benefit of himself or any firm,
association, or corporation in which he may be in anywise interested.
ARTICLE VII
SECTION 1. The warranties and representations of Brockton are as
follows:
(A) Brockton is a corporation duly organized, validly existing and in
good standing under the laws of The Commonwealth of Massachusetts; is duly
qualified to do business and in good standing in such jurisdiction; has
corporate power to own all of its properties and assets and to carry on its
business as it is now being conducted; has statutory authority, franchises and
consents free from burdensome restrictions and adequate for the conduct of the
business in which it is engaged and, subject to the approval of the holders of
its capital stock, has corporate power and is duly authorized to enter into
this Agreement. The execution and delivery of this Agreement does not, and,
subject to the approval of such transactions by the holders of the capital
stock of Brockton and the receipt of consents to assignments of leases and
other contracts where required, the consummation of the transactions
contemplated hereby will not, violate any provision of Brockton's Articles of
Organization or By-Laws, or any provision of, or result in the acceleration of
any obligation under, any mortgage, lien, lease, agreement, instrument, order,
arbitration award, judgment or decree to which Brockton is a party or by which
it is bound and will not violate or conflict with any other restriction of any
kind or character to which Brockton is subject. The Board of Directors of
Brockton has taken all action required by law, its Articles of Organization,
its By-Laws or otherwise to authorize the execution and delivery of this
Agreement and, by the Effective Date, the Board of Directors of Brockton will
have taken all action required by law, its Articles of Organization, its
By-Laws or otherwise to carry out the transactions contemplated in this
Agreement.
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(B) The balance sheet of Brockton as of June 30, 1974, the statement
of earnings for the twelve months ended June 30, 1974, and the statements of
retained earnings, surplus invested in plant and changes in financial position
for the twelve months ended June 30, 1974, furnished to Bay State, have been
prepared in accordance with generally accepted accounting principles
consistently applied (except to the extent disclosed in the notes thereto) and
fairly present the financial position, the results of its operations and
changes in the financial position of Brockton on the dates and for the periods
indicated.
(C) Brockton owns free and clear of any liens, claims, charges,
options or encumbrances all of the personal and real property reflected in the
balance sheet of Brockton as of June 30, 1974 referred to above in Subsection
(B) and all personal and real property acquired since June 30, 1974 by
Brockton, except such personal property as has been disposed of in the ordinary
course of business or with the written consent of Bay State. All of such
property has been well maintained and is in good and serviceable condition,
reasonable wear and tear excepted.
(D) Since June 30, 1974 there has not been:
(1) any change in the business, operations or financial
condition or the manner of conducting the business of Brockton other
than changes in the ordinary course of business, none of which has had
a material adverse effect on such business, operations or financial
condition;
(2) any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting any material asset or
the business or operations of Brockton;
(3) any increase in compensation payable or to become payable
by Brockton to any of its officers, employees or agents over the rate
of compensation in effect on June 30, 1974 other than normal merit
increases;
(4) any split, combination or issuance of stock by Brockton;
(5) any amendment or termination by Brockton of any material
contract, agreement or license, otherwise than in the ordinary course
of business, except as may have been disclosed to and approved by Bay
State; or
(6) any indebtedness incurred, otherwise than in the ordinary
course of business, by Brockton for borrowed money or any commitment
to borrow money entered into by Brockton.
(E) To the best of Brockton's knowledge, the accounts receivable on
the books of Brockton are not subject to any material counterclaim or setoff
and are good and collectible at the aggregate recorded amounts thereof, less
the amount of the existing reserve for doubtful accounts as shown on the books
of Brockton, which have been provided on a basis consistent with prior
practice.
(F) There are no material liabilities of Brockton, whether or not
accrued and whether or not determined or determinable, other than:
(1) liabilities disclosed or provided for in the balance sheet
of Brockton as of June 30, 1974 referred to in Subsection (B) above,
including the notes to such balance sheet; and
(2) liabilities incurred or recorded in the ordinary course of
business since June 30, 1974, none of which have been materially
adverse to the business, assets or operations of Brockton.
(G) There are no material claims, actions, suits, or proceedings
pending or, to the knowledge of Brockton, threatened against or affecting
Brockton or the properties or the business of Brockton, or which would prevent
or hinder the consummation of the transactions contemplated by this Agreement,
and Brockton is not charged with
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or, to the knowledge of Brockton, threatened with a charge of violation, or
under investigation with respect to a possible violation, of any provision of
any Federal, state or local law or administrative ruling or regulation relating
to any aspect of the business of Brockton.
(H) Brockton has filed all income tax and other tax returns required
to be filed and has paid, or has set up an adequate reserve for the payment of,
all income taxes and other taxes required to be paid in respect of the periods
covered by such returns and has set up an adequate reserve for the payment of
all income taxes or other taxes anticipated to be payable in respect of the
periods subsequent to the last of such periods and is not delinquent in the
payment of any tax, assessment or governmental charge.
SECTION 2. The warranties and representations of Bay State are as
follows:
(A) Bay State is a corporation duly organized, validly existing and in
good standing under the laws of The Commonwealth of Massachusetts; is duly
qualified to do business and in good standing in such jurisdiction; has
corporate power to own all of its properties and assets and to carry on its
business as it is now being conducted; has statutory authority, franchises and
consents free from burdensome restrictions and adequate for the conduct of the
business in which it is engaged and, subject to the approval of the holders of
its capital stock, has corporate power and is duly authorized to enter into
this Agreement. The execution and delivery of this Agreement does not, and,
subject to the approval of such transactions by the holders of the capital
stock of Bay State and the receipt of consents to assignments of leases and
other contracts where required, the consummation of the transactions
contemplated hereby will not, violate any provision of Bay State's Articles of
Organization or By-Laws, or any provision of, or result in the acceleration of
any obligation under, any mortgage, lien, lease, agreement, instrument, order,
arbitration award, judgment or decree to which Bay State is a party or by which
it is bound and will not violate or conflict with any other restriction of any
kind or character to which Bay State is subject. The Board of Directors of Bay
State has taken all action required by law, its Articles of Organization, its
By-Laws or otherwise to authorize the execution and delivery of this Agreement
and, by the Effective Date, the Board of Directors of Bay State will have taken
all action required by law, its Articles of Organization, its By-Laws or
otherwise to carry out the transactions contemplated in this Agreement.
(B) The only subsidiary of Bay State, the financial statements of
which are consolidated with those of Bay State, is Lawrence Gas Company
("Lawrence"), which is a corporation duly organized, validly existing and in
good standing under the laws of The Commonwealth of Massachusetts.
(C) The consolidated balance sheet of Bay State as at June 30, 1974,
the consolidated statement of earnings for the twelve months ended June 30,
1974, and the consolidated statements of retained earnings and changes in
financial position for the twelve months ended June 30, 1974, furnished to
Brockton, have been prepared in accordance with generally accepted accounting
principles consistently applied (except to the extent disclosed in the notes
thereto) and fairly present the consolidated financial position, the
consolidated results of their operations and changes in the consolidated
financial position of Bay State and Lawrence as of the dates and for the
periods indicated.
(D) Bay State and Lawrence own free and clear of any liens, claims,
charges, options or encumbrances (except the lien securing the obligation of
Lawrence under an Indenture, dated as of November 1, 1957, between Lawrence and
New England Merchants National Bank, Trustee) all of the personal and real
property reflected in the consolidated balance sheet of Bay State as of June
30, 1974 referred to above in Subsection (C) and all personal and real property
acquired since June 30, 1974 by Bay State and Lawrence, except such personal
property as has been disposed of in the ordinary course of business or with the
written consent of Brockton. All of such property has been well maintained and
is in good and serviceable condition, reasonable wear and tear excepted.
(E) Since June 30, 1974 there has not been:
(1) any change in the business, operations or financial
condition or the manner of conducting the business of Bay State and
Lawrence other than changes in the ordinary course of business, none
of which has
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had a material adverse effect on such business, operations or financial
condition;
(2) any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting any material asset or
the business or operations of Bay State and Lawrence;
(3) any increase in compensation payable or to become payable
by Bay State and Lawrence to any of their officers, employees or
agents over the rate of compensation in effect on June 30, 1974 with
respect to Bay State, and in effect on July 2, 1974 with respect to
Lawrence, other than normal merit increases;
(4) any split, combination or issuance of stock by Bay State
and Lawrence;
(5) any amendment or termination by Bay State and Lawrence of
any material contract, agreement or license, otherwise than in the
ordinary course of business, except as may have been disclosed to and
approved by Brockton; or
(6) any indebtedness incurred, otherwise than in the ordinary
course of business, by Bay State and Lawrence for borrowed money or
any commitment to borrow money entered into by Bay State and Lawrence.
(F) To the best of Bay State's knowledge, except as provided in
paragraph (H) hereof, the accounts receivable on the books of Bay State and
Lawrence are not subject to any material counterclaim or setoff and are good
and collectible at the aggregate recorded amounts thereof, less the amount of
the existing reserve for doubtful accounts as shown on the books of Bay State
and Lawrence, which have been provided on a basis consistent with prior
practice.
(G) There are no material liabilities of Bay State and Lawrence,
whether or not accrued and whether or not determined or determinable, other
than:
(1) liabilities disclosed or provided for in the consolidated
balance sheet of Bay State as of June 30, 1974 referred to in
Subsection (C) above, including the notes to such balance sheet; and
(2) liabilities incurred or recorded in the ordinary course of
business since June 30, 1974, none of which have been materially
adverse to the business, assets or operations of Bay State and
Lawrence.
(H) There are no material claims, actions, suits or proceedings
pending or, to the knowledge of Bay State, threatened against or affecting Bay
State and Lawrence or the properties or the business of Bay State and Lawrence,
or which would prevent or hinder the consummation of the transactions
contemplated by this Agreement other than Association of Massachusetts
Consumers, Inc. v. Securities and Exchange Commission, matters presently under
review by the Massachusetts Department of Public Utilities in Docket No. 18079,
the proceedings before that Department in Docket No. 18085 and the matters
before the Superior Court of The Commonwealth of Massachusetts in Monsanto
Company v. Department of Public Utilities and Bay State Gas Company relating to
the subject matter of Docket Nos. 18079 and 18085, and neither Bay State nor
Lawrence is charged with or, to the knowledge of Bay State, threatened with a
charge of violation, or under investigation with respect to a possible
violation, of any provision of any Federal, state or local law or
administrative ruling or regulation relating to any aspect of the business of
Bay State and Lawrence other than as described above.
(I) Bay State and Lawrence have each filed (separately or in
consolidation) all income tax and other tax returns (except for their
respective 1973 Federal corporate tax and 1973 state franchise tax returns)
required to be filed and have paid, or have set up an adequate reserve for the
payment of, all income taxes and other taxes required to be paid in respect of
the periods covered by such returns and have set up an adequate reserve for the
payment of all income taxes or other taxes anticipated to be payable in respect
of the periods subsequent to the last of such periods and neither Bay State nor
Lawrence is delinquent in the payment of any tax, assessment or governmental
charge.
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ARTICLE VIII
The covenants of Brockton and Bay State are as follows:
SECTION 1. Brockton and Bay State agree that prior to the Effective
Date neither will encumber any asset or enter into any transaction or make any
commitment relating to its assets and business, otherwise than in the ordinary
course of its business, without first obtaining the written consent of the
other Constituent Corporation.
SECTION 2. Brockton and Bay State each agree that they will take all
necessary corporate and other actions and obtain all consents and approvals
required to carry out the transactions contemplated in this Agreement.
SECTION 3. Brockton and Bay State further agree that each will furnish
the other Constituent Corporation with all information concerning Brockton, Bay
State and Lawrence, respectively, required for inclusion in the proxy
statements of the Constituent Corporations pursuant to Regulation 14 of the
Securities Exchange Act of 1934, as amended (the "Proxy Statements"), and any
registration or other statement or application made by Brockton, Bay State and
Lawrence to the Securities and Exchange Commission, to the Internal Revenue
Service or to any other governmental body in connection with the transactions
contemplated in this Agreement; and Brockton and Bay State each represent and
warrant that all information so furnished for such statements and applications
shall be true and correct in all material respects without omission of any
material fact required to be stated to make the information therein not
misleading.
SECTION 4. Brockton and Bay State will each use its best efforts to
submit all necessary Blue Sky filings and obtain permits required to carry out
the transactions contemplated in this Agreement prior to the Effective Date.
SECTION 5. Brockton and Bay State will at all times subsequent to the
date of this Agreement and prior to such Effective Date operate their
businesses in a normal manner consistent with past practice.
ARTICLE IX
SECTION 1. (A) Until altered, amended or repealed, as therein
provided, the By-Laws of the Resulting Corporation shall be as set forth in
Exhibit A hereto.
(B) The first annual meeting of the stockholders of the Resulting
Corporation to be held after the Effective Date shall be held on the first
Thursday in April of 1975 (April 3, 1975).
SECTION 2. (A) The names of the first Directors of the Resulting
Corporation who shall hold office from the Effective Date until their
respective terms of office expire and their successors are chosen according to
the By-Laws, together with their residences and post office addresses, are as
follows:
Expiration Date Residence and
Name of Term of Office* Post Office Address
---- ------------------ -------------------
Richard L. Brickley 1977 4 W. Cedar St., Boston, Mass. 02108
Robert M. Brigham 1975 977 Longmeadow St., Longmeadow, Mass. 01106
Herbert A. Burns 1976 39 Dimming Rd., Saddle River, N.J. 07458
Anthony D. Matarese 1975 7 Captains Row, Mashpee Village, Buzzards Bay,
Mass. 02532
Robert V. Shupe 1977 45 Fairview Ave., Brockton, Mass. 02401
Endicott Smith 1979 97 Essex Rd., Newton, Mass. 02167
James F. Smith 1978 2 Powder Hill Rd., Lynnfield, Mass. 01940
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Expiration Date Residence and
Name of Term of Office* Post Office Address
---- ------------------ -------------------
Charles H. Tenney II 1979 30 Cedar Rd., Chestnut Hill, Brookline Mass. 02167
Charles M. Tenney, Jr. 1978 Harrison St., Duxbury, Mass. 02332
Ralph E. Trower 1976 55 Rock Meadow Dr., Brockton, Mass. 02401
Thomas D. Welch 1979 180 Beacon St., Boston, Mass. 02116
<FN>
*At annual meeting for year shown.
If, on the Effective Date, a vacancy shall exist in the Board of
Directors of the Resulting Corporation by reason of the failure or inability of
any of the above-named persons to accept a directorship in the Resulting
Corporation, such vacancy may be filled in the manner provided in the By-Laws
of the Resulting Corporation.
(B) The names of the first officers of the Resulting Corporation who
shall hold office from the Effective Date until their successors are chosen or
appointed according to the By-Laws, together with their residences and post
office addresses, are as follows:
Residence and
Name Title Post Office Address
---- ----- -------------------
Charles H. Tenney II Chairman of the 30 Cedar Rd., Chestnut Hill,
Board of Directors Brookline, Mass. 02167
Robert M. Brigham Vice Chairman of the 977 Longmeadow St.,
Board of Directors Longmeadow, Mass. 01106
Robert V. Shupe President 45 Fairview Ave.,
Brockton, Mass. 02401
James F. Smith Vice President and 2 Powder Hill Rd.,
Treasurer Lynnfield, Mass. 01940
Henry R. Bailey Vice President 1374 Canton Ave.,
Milton, Mass. 02186
Robert T. Kyle Vice President 32 Hollywood Rd.,
Winchester, Mass. 01890
John D. Sampson Vice President 280 Old Oaken Bucket Rd.,
Scituate, Mass. 02066
Leonard W. Stone Vice President 94 Farmington Ave.,
Longmeadow, Mass. 01106
Thomas W. Sherman Assistant Treasurer 5 Harold St.,
and Clerk Manchester, Mass. 01944
George A. Carlson Assistant Treasurer 45 Ridge Rd.,
Lexington, Mass. 02173
Edward D. McKenzie Assistant Treasurer 64 Woodside Ave.,
Brockton, Mass. 02401
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Residence and
Name Title Post Office Address
---- ----- -------------------
Angela P. Carlson Assistant Clerk 45 Ridge Rd.,
Lexington, Mass. 02173
If, on the Effective Date, a vacancy shall exist among the officers of
the Resulting Corporation by reason of the failure or inability of any of the
above-named persons to accept a position as an officer in the Resulting
Corporation, such vacancy may be filled in the manner provided in the By-Laws
of the Resulting Corporation.
SECTION 3. The fiscal year of the Resulting Corporation shall be the
calendar year.
SECTION 4. On the Effective Date the separate and independent
corporate existences of Brockton and Bay State shall cease and the corporate
existence of the Resulting Corporation shall commence.
SECTION 5. On the Effective Date all surpluses of Brockton and Bay
State shall be and become surpluses of the Resulting Corporation with the same
quality and character and usable by the Resulting Corporation for the same
purposes as if such surpluses had been created by the Resulting Corporation.
SECTION 6. On the Effective Date the Resulting Corporation shall have
and possess all of the powers, rights, locations, licenses, privileges,
franchises, property, real, personal or mixed, and immunities held at such time
by Brockton and Bay State to the same extent as though said powers, rights,
locations, licenses, privileges, franchises, property and immunities had been
originally owned by it or granted to it.
SECTION 7. On the Effective Date all of the duties, liabilities and
restrictions of Brockton and Bay State shall be assumed by the Resulting
Corporation and the officers of the Resulting Corporation shall execute and
deliver such documents of assumption as shall be necessary or appropriate and
see to the proper filing and recording of all such documents as may require
such filing or recording.
SECTION 8. The title to any real estate, whether vested by deed or
otherwise, of Brockton and Bay State shall not revert or be in any way impaired
by reason of the consolidation.
SECTION 9. All rights of creditors and all liens upon the property of
Brockton and Bay State, if any, shall be preserved and each of such companies
shall continue in existence so far as may be necessary to preserve the same.
SECTION 10. Without limiting the generality of the foregoing and
unless and until otherwise determined by the Board of Directors of the
Resulting Corporation, all pension plans, salary adjustment and incentive
compensation plans and all other plans, agreements or arrangements of Brockton
and Bay State relating to their respective employees or any of them in force at
the Effective Date shall be effective in respect to the Resulting Corporation
in the same manner as if adopted, contracted or made by it and shall be
applicable to persons who would have been covered thereby in the absence of the
consolidation provided for herein.
ARTICLE X
SECTION 1. Upon the Effective Date the outstanding shares of stock of
Brockton and Bay State will be converted into shares of stock of the Resulting
Corporation as follows:
(A)( 1) Each share of Brockton Common Stock issued and outstanding
shall be, without any action on the part of the holder thereof, converted and
changed into 1.3 shares of Common Stock of the Resulting Corporation and each
of the shares of Brockton Common Stock shall be cancelled and cease to exist.
The shares of Common Stock will have substantially the same rights as the
Brockton Common Stock.
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(2) Each share of Bay State Common Stock issued and outstamdding shall
be, without any action on the part of the holder thereof, converted and changed
into 1.0 share of Common Stock of the Resulting Corporation and each of the
shares of Bay State Common Stock shall be cancelled and cease to exist. The
shares of Common Stock will have substantially the same rights as the Bay State
Common Stock.
(3) Each share of Brockton Cumulative Preferred Stock issued and
outstanding shall be, without any action on the part of the holder thereof,
converted and changed into 1.0 share of Cumulative Preferred Stock, $50 par
value, of the Resulting Corporation and each of the shares of Brockton
Cumulative Preferred Stock shall be cancelled and cease to exist. Such shares
of Cumulative Preferred Stock, $50 par value, shall have the same par value and
substantially the same terms, preferences, voting powers or restrictions and
qualifications as the Brockton Cumulative Preferred Stock.
(4) Each share of Bay State Cumulative Preferred Stock issued and
outstanding shall be, without any action on the part of the holder thereof,
converted and changed into 1.0 share of Cumulative Preferred Stock, $100 par
value, of the Resulting Corporation and each of the shares of Bay State
Cumulative Preferred Stock shall be cancelled and cease to exist. Such shares
of Cumulative Preferred Stock, $100 par value, shall have the same par value
and substantially the same terms, preferences, voting powers or restrictions
and qualifications as the Bay State Cumulative Preferred Stock.
(B) Each holder of a certificate or certificates theretofore
representing a share or shares of Brockton Common Stock or Brockton Cumulative
Preferred Stock or Bay State Common Stock or Bay State Cumulative Preferred
Stock shall, upon presentation of such certificate or certificates for
surrender for cancellation to the Resulting Corporation or its agents, be
entitled to receive in exchange therefor a certificate or certificates
representing whole shares of fully paid and nonassessable Common Stock,
Cumulative Preferred Stock, $50 par value, or Cumulative Preferred Stock, $100
par value, as the case may be, of the Resulting Corporation to which such
holder shall be entitled upon the aforesaid basis of exchange. Until so
surrendered, each such outstanding certificate, which prior to the
consolidation represented Brockton Common Stock or Brockton Cumulative
Preferred Stock or Bay State Common Stock or Bay State Cumulative Preferred
Stock, shall be deemed, for all corporate purposes, to evidence ownership of
the number of whole shares of Common Stock, Cumulative Preferred Stock, $50 par
value, or Cumulative Preferred Stock, $100 par value, as the case may be, of
the Resulting Corporation into which the same shall have been converted;
provided, however, that no dividends declared with respect to such Common
Stock, Cumulative Preferred Stock, $50 par value, or Cumulative Preferred
Stock, $100 par value, of the Resulting Corporation shall be paid to the holder
of any unsurrendered certificate of Brockton Common Stock or Brockton
Cumulative Preferred Stock or Bay State Common Stock or Bay State Cumulative
Preferred Stock until such holder shall surrender such certificate for exchange
as provided for herein, at which time the holder shall be paid the amount of
dividends, without interest, which theretofore became payable with respect to
the whole number of shares of Common Stock, Cumulative Preferred Stock, $50 par
value, or Cumulative Preferred Stock, $100 par value, of the Resulting
Corporation evidenced by such certificate.
(C) No scrip or fractional share certificates will be issued in
connection with the exchange of shares described above and an outstanding
fractional share interest will not entitle the owner thereof to vote, to
receive dividends or to any rights of a shareholder with respect to such
fractional interest. Instead, The First National Bank of Boston will be
appointed Exchange Agent to act as agent for the common shareholders of
Brockton and Bay State, so that for 90 days after the Effective Date any common
shareholder of Brockton or Bay State, upon the surrender of a certificate(s) of
Brockton Common Stock or Bay State Common Stock, as the case may be, may
purchase or sell the appropriate fractional interest in a share of the Common
Stock in order to round out his holdings to whole shares. Thereafter, the
Exchange Agent will sell, for the account of all owners of the then remaining
fractional share interests, shares of Common Stock of the Resulting Corporation
equivalent to the aggregate fractional interest then outstanding. The Exchange
Agent will, until six years after such Effective Date, pay to such owners upon
surrender of their certificates of Brockton Common Stock or Bay State Common
Stock, as the case may be, their pro rata share of the net proceeds of such
sale. Upon the expiration of this six-year period, any remaining proceeds of
such sale shall become the property of the Resulting Corporation.
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ARTICLE XI
Neither Brockton nor Bay State shall declare or pay any dividend on its
outstanding capital stock prior to the Effective Date other than regular
quarterly dividends on such capital stock paid by such Constituent
Corporations.
ARTICLE XlI
This Agreement shall become effective at such time and on such date
(the "Effective Date") as shall be determined by the chief executive officers
of the Constituent Corporations and upon such filings as shall be required by
law. The obligations of the Constituent Corporations under this Agreement are
subject to the satisfaction on the Effective Date, or prior thereto as may be
agreed by the Constituent Corporations, of the following conditions:
SECTION 1. All consents, approvals and court orders relating to this
Agreement which are deemed necessary or appropriate by the officers and
Directors of Brockton and Bay State, respectively, shall have been received.
SECTION 2. There shall have been received either (i) an opinion of
counsel satisfactory to Brockton and Bay State or (ii) a ruling or rulings from
the Internal Revenue Service in form and content satisfactory to Brockton and
Bay State to the effect that:
(A) the consolidation contemplated hereby will constitute a
reorganization within the meaning of the Internal Revenue Code (the
"Code") Section 368(a) (1) (A) ;
(B) Brockton, Bay State and the Resulting Corporation each will
be considered "a party to the reorganization";
(C) no gain or loss will be recognized to Brockton, Bay State
or the Resulting Corporation upon the transfer of all of Brockton's and
Bay State's assets to the Resulting Corporation in exchange for the
assumption by the Resulting Corporation of the liabilities of Brockton
and Bay State and the issuance of the Resulting Corporation stock;
(D) the basis of the assets of Brockton and Bay State acquired
by the Resulting Corporation will be the same as the basis of those
assets in the hands of Brockton and Bay State immediately prior to the
consolidation into the Resulting Corporation;
(E) no gain or loss will be recognized to the shareholders of
Brockton and Bay State upon their receipt of the Resulting
Corporation's stock in exchange for their Brockton and Bay State stock;
(F) the basis of the Resulting Corporation stock received by
the shareholders of Brockton and Bay State pursuant to the
reorganization will be the same as the basis of stock in Brockton and
Bay State surrendered in exhange therefor;
(G) the Cumulative Preferred Stock, $50 par value, and
Cumulative Preferred Stock, $100 par value, to be received by the
preferred shareholders of Brockton and Bay State, respectively, will
not constitute "Section 306 stock" within the meaning of Section 306(c)
of the Code; and
(H) where cash is received by a shareholder of Brockton or Bay
State upon the sale of a fractional interest in Common Stock by an
agent of a shareholder, gain or loss will be recognized to the
shareholder measured by the difference between the amount of cash
received and the basis of the fractional share interest as determined
in accordance with paragraph (F) above, and, where the stock
surrendered in the exchange qualifies as a capital asset in the hands
of the shareholder, such gain or loss will be a capital gain or loss
subject to the provisions and limitations in Subchapter P of Chapter 1
of the Code.
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SECTION 3. A copy of this Agreement and the related Articles of
Consolidation shall have been signed and filed in the manner and as required by
the provisions of Chapter 164, Section 102A, of the General laws of The
Commonwealth of Massachusetts.
SECTION 4. The consolidation contemplated hereby shall have been
rapproved by the Massachusetts Department of Public Utilities.
SECTION 5. This Agreement shall have been approved by the holders of
Brockton Common Stock and Brockton Cumulative Preferred Stock and by the
holders of Bay State Common Stock and Bay State Cumulative Preferred Stock in
accordance with the requirements of Chapter 164, Section 96, of the General
Laws of The Commonwealth of Massachusetts.
SECTION 6. Brockton shall have received a favorable opinion, dated the
Effective Date, of Messrs. Doherty, Wallace, Pillsbury and Murphy to the
effect that:
(A) Bay State and Lawrence are corporations duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts, have power to own all of their
properties and assets and to carry on their businesses as presently
conducted and have received all necessary authorizations, consents and
approvals of governmental authorities to own the properties and to
conduct the businesses which they now own and conduct;
(B) Bay State has the corporate power to execute and deliver this
Agreement and to consolidate with Brockton as specified in this
Agreement and has taken all action required by law, its Articles of
Organization, its By-Laws or otherwise to authorize, and to have its
shareholders authorize, the transactions contemplated by this Agreement;
(C) the shares of Common Stock, Cumulative Preferred Stock, $50
par value, and Cumulative Preferred Stock, $100 par value, of the
Resulting Corporation to be issued to the shareholders of Brockton and
Bay State, as the case may be, pursuant to this Agreement have been
duly authorized and, when issued and delivered pursuant to this
Agreement, will have been legally and validly issued and will be fully
paid and non-assessable;
(D) the execution and delivery of this Agreement do not, and the
transactions contemplated hereby will not, violate any provision of the
Articles of Organization or By-Laws of Bay State or any provisions of,
or result in the acceleration of any obligation under, any mortgage,
lien, lease, agreement, instrument, order, arbitration award, judgment
or decree of which such counsel has knowledge, to which Bay State is a
party or by which it is bound, and will not violate or conflict with
any other restrictions of any kind or character of which such counsel
has knowledge and to which Bay State is subject; and
(E) this Agreement has been duly authorized and is a valid and
binding agreement.
In rendering the opinion specified above, Messrs. Doherty, Wallace, Pillsbury
and Murphy may rely as to matters of fact upon certificates of any officer or
officers of Brockton and Bay State.
SECTION 7. Bay State shall have received a favorable opinion, dated the
Effective Date, of Messrs. LeBoeuf, Lamb, Leiby & MacRae to the effect that:
(A) Brockton is a corporation duly organized, validly existing and
in good standing under the laws of The Commonwealth of Massachusetts,
has power to own all of its properties and assets and to carry on its
business at presently conducted and has received all necessary
authorizations, consents and approvals of governmental authorities to
own the properties and to conduct the business which it now owns and
conducts;
(B) Brockton has the corporate power to execute and deliver this
Agreement and to consolidate with Bay
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State as specified in this Agreement and has taken all action required
by law, its Articles of Organization, its By-Laws or otherwise to
authorize, and to have its shareholders authorize, the transactions
contemplated by this Agreement;
(C) the shares of Common Stock, Cumulative Preferred Stock, $50
par value, and Cumulative Preferred Stock, $100 par value, of the
Resulting Corporation to be issued to the shareholders of Brockton and
Bay State, as the case may be, pursuant to this Agreement have been
duly authorized and, when issued and delivered pursuant to this
Agreement, will have been legally and validly issued and will be fully
paid and non-assessable;
(D) the execution and delivery of this Agreement do not, and
the transactions contemplated hereby will not, violate any provision of
the Articles of Organization or By-Laws of Brockton or any provisions
of, or result in the acceleration of any obligation under, any
mortgage, lien, lease, agreement, instrument, order, arbitration award,
judgment or decree of which such counsel has knowledge, to which
Brockton is a party or by which it is bound, and will not violate or
conflict with any other restrictions of any kind or character of which
such counsel has knowledge and to which Brockton is subject; and
(F) this Agreement has been duly authorized and is a valid and
binding agreement.
In rendering the opinion specified above, Messrs. LeBoeuf, Lamb, Leiby & MacRae
may rely as to matters of fact upon certificates of any officer or officers
of Brockton and Bay State and upon the opinion of Messrs. Brickley, Sears &
Cole insofar as such opinion of Messrs. LeBoeuf, Lamb, Leiby & MacRae concerns
the laws of The Commonwealth of Massachusetts. Insofar as their opinion
concerns of titles and franchises, Messrs. LeBoeuf, Lamb, Leiby & MacRae may
rely upon the opinion Messrs. Keith, Reed, Wheatley & Frenette.
SECTION 8. Alexander Grant & Company shall have furnished to Brockton
and Bay State a letter, dated as of the Effective Date, in form and substance
satisfactory to Brockton and Bay State, confirming that with respect to
Brockton and Bay State they are independent certified public accountants as
required under the Securities Act of 1933, as amended (the "Act"), and the
applicable published rules and regulations thereunder and stating in effect
that (i) in their opinion the financial statements of Brockton and Bay State
included in the Proxy Statements and covered by their report comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder; and (ii) a reading (but not
an examination in accordance with generally accepted auditing standards) of the
latest available financial statements of Brockton and Bay State and
consultations with certain officials of Brockton and Bay State responsible for
financial and accounting matters of Brockton and Bay State as to events not
later than five business days prior to the Effective Date, did not cause them
to believe that: (a) the unaudited financial statements of Brockton and Bay
State included in the Proxy Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder, or (b) said unaudited financial
statements are not fairly presented in conformity with generally accepted
accountting principles applied on a basis substantially consistent with that of
the audited financial statements of Brockton and audited consolidated financial
statements of Bay State included in the Proxy Statements.
SECTION 9. Coopers & Lybrand shall have furnished to Brockton and Bay
State a letter, dated as of the Effective Date, in form and substance
satisfactory to Brockton and Bay State, confirming that with respect to
Lawrence they are independent certified public accountants as required under
the Act and the applicable published rules and regulations thereunder and
stating in effect that, in their opinion, the financial statements of Lawrence
included in the Proxy Statements and covered by their report comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder.
SECTION 10. Coopers & Lybrand (formerly Lybrand, Ross Bros. &
Montgomery) shall have furnished to Brockton and Bay State a letter, dated as
of the Effective Date, in form and substance satisfactory to Brockton and Bay
State, confirming that with respect to Northampton Gas Light Company (the name
of which was changed to Bay State Gas Company) they are independent certified
public accountants as required under the Act and the
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applicable published rules and regulations thereunder and stating in effect
that, in their opinion, the financial statements of Northampton Gas Light
Company included in the proxy statements and covered by their report comply as
to form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder.
ARTICLE XIII
Except for the conditions specified in Article XII, Sections 4 and 5,
this Agreement may be amended, modified or supplemented at any time by mutual
agreement between the Boards of Directors of Brockton and Bay State, provided
that such amendment, modification or supplement shall not affect the rights of
the shareholders of Brockton or Bay State in a manner which is materially
adverse to such shareholders in the judgment of the respective Boards of
Directors.
ARTICLE XIV
Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated at any time prior to the Effective Date (a) by
mutual consent of the Boards of Directors of the Constituent Corporations, or
(b) by the Board of Directors of either of the Constituent Corporations if such
Board of Directors shall determine that it is not in the best interests of such
Constituent Corporations to consummate the transactions contemplated hereby.
Nevertheless, anything in this Agreement to the contrary notwithstanding, if
any of the conditions specified in Article XII hereof (with the exception of
the conditions set forth in Sections 4 and 5) have not been satisfied, Brockton
and Bay State, in addition to any other rights which may be available to them,
shall have the right to waive such conditions and proceed with the transactions
contemplated hereby.
ARTICLE XV
Brockton, Bay State and the Resulting Corporation shall pay their
respective expenses in connection with the proposed consolidation.
ARTICLE XVI
If at any time Brockton or Bay State shall deem or be advised that any
further assignments, assurances in the law or other acts or instruments are
necessary or desirable to vest in the Resulting Corporation the title to any
property of Brockton or Bay State, the proper officers and Directors of
Brockton or Bay State, as the case may be, shall do all such acts and things as
may be necessary or proper to vest title to such property in the Resulting
Corporation and otherwise to carry out the purposes of this Agreement.
ARTICLE XVII
This Agreement shall be construed under and in accordance with the
General Laws of The Commonwealth of Massachusetts.
ARTICLE XVIII
This Agreement shall be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party.
IN WITNESS WHEREOF, the said Constituent Corporations, parties to this
Agreement, have caused their respective corporate seals to be hereunto affixed
and these presents to be signed by their respective Presidents or Vice
Presidents and Treasurers or Assistant Treasurers and attested by their
respective Clerks or Assistant Clerks, all thereunto duly authorized, as of the
day and year first above mentioned.
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BROCKTON TAUNTON GAS COMPANY BAY STATE GAS COMPANY
By: ROBERT V. SHUPE By: ROBERT M. BRIGHAM
President President
By: JAMES F. SMITH By: JAMES F. SMITH
Treasurer Treasurer
Attest: ANGELA P. CARLSON Attest: ANGELA P. CARLSON
Assistant Clerk Assistant Clerk
[SEAL] [SEAL]
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EXHIBIT A
BY-LAWS
OF
BAY STATE GAS COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
An annual meeting of the stockholders of Bay State Gas Company entitled
to vote thereat shall be held on the first Thursday in April in each year; and
special meetings of the stockholders entitled to vote thereat shall be held
whenever the Chairman of the Board of Directors, the President or a majority of
the Board of Directors, in their discretion, shall order the same, or whenever
one or more stockholders, holding in the aggregate not less than one-tenth
(1/10) of the capital stock of the Corporation entitled to be voted at the
meeting, shall so request the Clerk in writing, which writing shall indicate
the purposes for which said meeting is to be called.
All such meetings, both annual and special, may be held in such place
in The Commonwealth of Massachusetts as the call therefor shall specify, and
notice of every such meeting shall be given to each stockholder of record
entitled to vote at the meeting by mailing a notice not less than seven days
before the day named for the meeting. Notices of all meetings of stockholders
shall state the purposes for which the meetings are called.
In the event of the annual meeting, by mistake or otherwise, not being
called and held as herein provided, a special meeting of the stockholders may
be called and held in lieu of and for the purposes of the annual meeting. Any
such special meeting may be called in the same manner as other special
meetings. Any election had or business done at any such special meeting shall
be as valid and effectual as if had or done at a meeting called as an annual
meeting and duly held on said date.
At any meeting a majority in interest of the stockholders entitled to
vote at the meeting, present in person or represented by proxy, shall
constitute a quorum, but less than a quorum may adjourn, either sine die or to
a date certain.
At any meeting, each stockholder of record entitled to vote at the
meeting may cast one vote for each whole share of stock owned by him. Absent
stockholders may vote by proxy authorized by a writing executed within six
months previous to the meeting at which it is used.
ARTICLE II
OFFICERS
The officers of the Corporation shall be a Chairman of the Board of
Directors, a President, one or more Vice Presidents, a Board of eleven (11)
Directors, a Treasurer, one or more Assistant Treasurers, a Clerk, any
Assistant Clerk and such other officers and agents as the Directors may from
time to time authorize. No officer or Director need be a stockholder.
ARTICLE III
ELECTION OF OFFICERS
The Treasurer, one or more Assistant Treasurers, the Clerk and any
Assistant Clerk shall be chosen by ballot at
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30
the annual meeting of stockholders and shall hold their respective offices
for one year from the date hereinbefore fixed for such meeting
and until others are chosen and qualified in their stead.
The eleven (11) Directors of this Corportion are divided into five
classes, with their respective terms of arranged so that the term of office of
one class expires in each year. As provided in the Articles of Organization,
provisions were made for directorships as follows: two (2) Directors whose term
will expire at the annual meeting in 1975; two (2) Directors whose term will
expire at the annual meeting in 1976; two (2) Directors whose term will expire
at the annual meeting in 1977; two (2) Directors whose term will expire at the
annual meeting 1978; and three (3) Directors whose term will expire at the
annual meeting in 1979. As the term of each class expires, a corresponding
number of Directors shall be elected by ballot for a term of five years.
ARTICLE IV
THE DIRECTORS
Any vacancy occurring in the Board of Directors from the death,
resignation, removal, disqualification or inability to act of any Director, or
from any other cause, may be filled for the unexpired term by majority vote of
the remaining Directors, though said remaining Directors be less than a quorum.
Meetings of the Board may be held at any time and place in The
Commonwealth of Massachusetts, on call of the Chairman of the Board of
Directors, the President or any two Directors, twenty-five hours' notice
thereof being given. Any such meeting, however, and all business transacted
thereat, shall be legal and valid without notice if all the members of the
Board are present in person, or if the members who are absent waive notice by a
writing filed with the records of the meeting.
A majority of the Board of Directors shall constitute a quorum for the
transaction of business, but a lesser number may adjourn any meeting from time
to time, and the meeting may be held as adjourned without further notice. When
a quorum is present at or participating in any meeting, a majority of the
members in attendance thereat or participating therein shall decide any
question brought before such meeting.
The Directors shall annually at their first meeting after the annual
meeting of stockholders, or special meeting in lieu thereof, elect one of their
number Chairman of the Board of Directors and another President; and they shall
also elect, choose or appoint, from among the members of the Board or from
persons not members of the Board as they may deem best, one or more Vice
Presidents. The said officers, so elected, chosen or appointed, shall hold
their offices until the first meeting of Directors after the next annual
meeting of stockholders and until their successors are chosen and qualified.
The Directors as a Board shall have the management of the property,
business and affairs of the Corporation; and they are hereby invested in such
management with all the powers which the Corporation itself possesses so far as
such delegation of power is not incompatible with the provisions of these
By-Laws, the Articles of Organization or the laws of The Commonwealth of
Massachusetts.
They may appoint and remove at pleasure such subordinate officers and
employees as may seem to them wise.
They shall have access to the books, vouchers and funds of the
Corporation in the custody of the Treasurer; shall determine upon the forms of
the certificates of stock and of the corporate seal; shall fix all salaries and
fees; may fill all vacancies that may occur at any time during the year in any
office; and shall declare dividends from time to time as they may deem best.
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ARTICLE V
THE CHAIRMAN OF THE BOARD OF DIRECTORS
THE PRESIDENT
The Chairman of the Board of Directors shall be the chief executive
officer of the Corporation and, subject to its Board of Directors, shall
exercise general supervision of its affairs. He shall preside at all meetings
of the stockholders and of the Directors, when present.
The President, subject to the Board of Directors and its Chairman,
shall have charge of the business of the Corporation relating to general
operation and shall perform all the duties of his office prescribed by law or
by vote of the Directors.
In the absence of the Chairman of the Board of Directors, the President
shall, with like authority, preside at meetings both of the stockholders and of
the Directors. In the absence of the Chairman of the Board of Directors and of
the President, any Vice President shall preside with like authority. In the
absence of the Chairman of the Board of Directors, the President and all the
Vice Presidents, a President pro tempore shall be chosen.
ARTICLE VI
VICE PRESIDENTS
Any Vice President shall have, in addition to any duties and powers set
forth in these By-Laws, such duties and powers as are usually incident to such
office and as the Directors shall from time to time designate.
ARTICLE VII
THE CLERK
The Clerk, who shall be sworn, shall be the Clerk both of the Directors
and of the Corporation. He shall attend all meetings of stockholders and
Directors, keep accurate records thereof and perform all other duties incident
to his office. In the absence of the Clerk and any Assistant Clerk from any of
the meetings, a Clerk pro tempore shall be chosen.
ARTICLE VIII
THE ASSISTANT CLERK
In case of the death, absence or inability to act of the Clerk, any
Assistant Clerk, who shall be sworn, shall have all the powers and perform all
the duties of the Clerk.
ARTICLE IX
THE TREASURER-CHECKS, DRAFTS, NOTES, ETC.
The Treasurer, when required by the Directors, shall give bond with
sureties acceptable to them for the faithful discharge of his duties and in
such sum as the Directors may determine.
He shall be responsible for the transfer of all of the capital stock of
the Corporation, shall have the custody of the corporate seal and of all the
moneys, funds and valuable papers and documents of the Corporation, except his
own bond, which shall be in the custody of the President.
He shall cause all the funds of the Corporation to be deposited in such
bank or banks as the Directors may authorize or designate to the credit of the
Corporation in its corporate name.
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He shall have power to endorse for deposit or collection all checks,
drafts, notes or other obligations for the payment of money payable to the
Corporation or its order.
Except as the Directors may otherwise order or approve, all checks,
drafts, notes or other obligations for the payment of money shall be signed by
the Treasurer or, in case of his absence or inability to act, by an Assistant
Treasurer. When signed by an Assistant Treasurer, however, they shall require
as a condition precedent to their validity countersignature by such officer or
agent as the Directors may by vote direct, except that dividend checks shall
not require any countersignature.
He shall cause notes to be issued and drafts to be accepted on behalf
of the Corporation only when authorized thereto by the Directors.
He shall cause accurate books of account of the Corporation's
transactions to be kept, which books shall be the property of the Corporation,
which, together with all its property in his custody, shall be subject at all
times to the inspection and control of the Directors.
ARTICLE X
ASSISTANT TREASURERS
In case of the death, absence or inability to act of the Treasurer, any
Assistant Treasurer may exercise any or all of the powers of the Treasurer,
subject, however, to the limitation expressed in Article IX hereof and such
further limitations as the Directors may impose.
The Assistant Treasurers, and each of them, shall, when required by the
Directors, give bond with sureties acceptable to them for the faithful
discharge of their duties and in such sum as the Directors may determine.
ARTICLE XI
CERTIFICATES OF STOCK-TRANSFERS
Each stockholder shall be entitled to a certificate of the capital
stock of the Corporation owned by him, in such form as shall, in conformity to
law, be prescribed from time to time by the Board of Directors. Such
certificate shall be signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer and sealed with the corporate seal, but,
when any such certificate is signed by a transfer agent or by a registrar and
such transfer agent or registrar is not a Director, officer or employee of the
Corporation, the signature of the President or a Vice President or of the
Treasurer or an Assistant Treasurer of the Corporation, or both such
signatures, or the seal of the Corporation, or either or both such signatures
and such seal, upon such certificate may be facsimile.
Shares of stock may be transferred by assignment thereof in writing,
accompanied by delivery of the certificate; but no such transfer of stock shall
affect the right of the Corporation to pay any dividend thereon or to treat the
holder of record as the holder in fact until the transfer has been recorded
upon the books of the Corporation or a new certificate has been issued to the
person to whom the stock has been transferred.
In case of the loss of a certificate, a duplicate may be issued on such
reasonable terms as the Directors shall prescribe.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of
December in each year.
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ARTICLE XIII
AMENDMENTS
These By-Laws may, upon notice, be altered, amended or repealed at any
meeting of the stockholders by vote of the holders of two-thirds or more of the
stock entitled to vote at such meeting. Notwithstanding the foregoing, as
provided in the Articles of Organization, a majority of the Directors may make,
amend or repeal these By-Laws in whole or in part, except with respect to any
provision thereof which by law or the Articles of Organization requires action
by the stockholders.
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[CONFORMED COPY]
AMENDMENT TO
AGREEMENT AND PLAN OF CONSOLIDATION
OF
BROCKTON TAUNTON GAS COMPANY
(A MASSACHUSETTS CORPORATION)
AND
BAY STATE GAS COMPANY
(A MASSACHUSETTS CORPORATION)
INTO A NEW CORPORATION TO BE ORGANIZED UNDER THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS UNDER THE NAME
BAY STATE GAS COMPANY
AMENDMENT, dated as of November 8, 1974, to the AGREEMENT AND PLAN OF
CONSOLIDATION, dated as of August 28, 1974 (the "Agreement"), between BROCKTON
TAUNTON GAS COMPANY, a Massachusetts corporation ("Brockton"), and BAY STATE
GAS COMPANY, a Massachusetts corporation ("Bay State"),
W I T N E S S E T H
WHEREAS, the Agreement provides for a Board of Directors of the new
corporation (the "Resulting Corporation") to be formed by means of the
consolidation (the "Consolidation") of Brockton and Bay State, consisting of
eleven Directors divided into five classes with their respective terms of
office arranged so that the term of office of one class expires each year; and
WHEREAS, the New York Stock Exchange, Inc. has advised Brockton and Bay
State that the approval of the listing of the Resulting Corporation's Common
Stock on that Exchange will be conditioned upon, among other things, the
reduction in the number of classes of Directors from five to three with their
respective terms of office arranged so that the term of office of one class
expires in each year; and
WHEREAS, the Boards of Directors of Brockton and Bay State have
mutually agreed that the Agreement and By-Laws attached as Exhibit A thereto
should be amended to provide for a Board of Directors of the Resulting
Corporation divided into three classes with their respective terms of office
arranged so that the term of office of one class expires in each year; and
WHEREAS, the shareholders of both Brockton and Bay State have approved
the Agreement and authorized the execution of all documents necessary to effect
the Consolidation; and
WHEREAS, the amendments contemplated hereby will not, in the judgment
of the Boards of Directors of Brockton and Bay State, affect the rights of the
shareholders of Brockton or Bay State in a manner which is materially adverse
to such stockholders;
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NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and in accordance with
the provisions of Article XIII of the Agreement, the Agreement is hereby
amended as follows:
Article V of the Agreement is hereby amended so that it should read in
its entirety as set forth herein:
ARTICLE V
The Corporation shall have eleven Directors divided into three
classes with their respective terms of office arranged so that the term
of office of one class expires in each year. The terms of office of
the directorships are as follows: four Directors whose term will expire
at the annual meeting in 1975, four Directors whose term will expire at
the annual meeting in 1976 and three Directors whose term will expire
at the annual meeting in 1977. As the term of each class expires, a
corresponding number of Directors will be elected by ballot for a term
of three years.
Article IX, Section 2(A), of the Agreement is hereby amended so that
the expiration dates of the terms of office set forth therein opposite the
following names are amended as follows:
Endicott Smith............ 1977
James F. Smith............ 1975
Charles H. Tenney II...... 1976
Charles M. Tenney, Jr..... 1975
Thomas D. Welch........... 1976
The By-Laws of the Resulting Corporation set forth as Exhibit A to the
Agreement are hereby amended so that the second paragraph of Article III
thereof should read in its entirety as set forth herein:
The eleven (11) Directors of this Corporation are divided into
three classes, with their respective terms of office arranged so that
the term of office of one class expires in each year. As provided in
the Articles of Organization, provisions were made for directorships as
follows: four (4) Directors whose term will expire at the annual
meeting in 1975; four (4) Directors whose term will expire at the
annual meeting in 1976; and three (3) Directors whose term will expire
at the annual meeting in 1977. As the term of each class expires, a
corresponding number of Directors will be elected by ballot for a term
of three years.
IN WITNESS WHEREOF, Brockton Taunton Gas Company and Bay State Gas
Company have caused their respective corporate seals to be hereunto affixed and
these presents to be signed by their respective Presidents or Vice Presidents
and Treasurers or Assistant Treasurers and attested to by their respective
Clerks or Assistant Clerks, all thereunto duly authorized, as of the date first
above mentioned.
BROCKTON TAUNTON GAS COMPANY BAY STATE GAS COMPANY
By: ROBERT V. SHUPE, JR. By: ROBERT M. BRIGHAM
President President
By: JAMES F. SMITH By: JAMES F. SMITH
Treasurer Treasurer
Attest: ANGELA P. CARLSON Attest: ANGELA P. CARLSON
Assistant Clerk Assistant Clerk
[SEAL] [SEAL]
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36
[Conformed Copy]
ARTICLES OF CONSOLIDATION
OF
BROCKTON TAUNTON GAS COMPANY
AND
BAY STATE GAS COMPANY
FORMING
BAY STATE GAS COMPANY
Under Chapter 164, Section 102A, of
the General Laws of The Commonwealth of Massachusetts
Pursuant to the provisions of Chapter 164, Section 102A, of the General
Laws of The Commonwealth of Massachusetts, the undersigned being a Vice
President and the Assistant Clerk of Brockton Taunton Gas Company ("Brockton")
and a Vice President and the Assistant Clerk of Bay State Gas Company ("Bay
State"), respectively, hereby certify that:
1. Attached hereto are conformed copies of the duly executed
Agreement and Plan of Consolidation of Brockton and Bay State, dated as
of August 28, 1974, as approved by the stockholders of such
corporations and by the Massachusetts Department of Public Utilities in
the manner required by Chapter 164, Section 96, of the General Laws of
The Commonwealth of Massachusetts, and of a duly executed Amendment
thereto, dated as of November 8, 1974, which Agreement, as amended,
provides for the consolidation of Brockton and Bay State into a new
corporation (the "Resulting Corporation") to be formed by means of such
consolidation under the name Bay State Gas Company.
2. The post office address of the initial principal executive
office of the Resulting Corporation shall be:
Bay State Gas Company
125 High Street
Boston, Massachusetts 02110
3. The name, residence and post office address of each of the
initial Directors and President, Treasurer and Clerk of the Resulting
Corporation are:
Name Residence and Post Office Address
---- ---------------------------------
Directors
Richard L. Brickley 4 W. Cedar Street
Boston, Mass. 02108
Robert M. Brigham 977 Longmeadow Street
Longmeadow, Mass. 01106
Herbert A. Burns 39 Dimmig Road
Saddle River, NJ 07458
Anthony D. Matarese 7 Captains Row, Mashpee Village
Buzzards Bay, Mass. 02532
Robert V. Shupe 45 Fairview Avenue
Brockton, Mass. 02401
Endicott Smith 97 Essex Road
Newton, Mass. 02167
37
Name Residence and Post Office Address
---- ---------------------------------
James F. Smith 2 Power Hill Road
Lynnfield, Mass. 01940
Charles H. Tenney II 30 Cedar Road, Chestnut Hill
Brookline, Mass. 02167
Charles M. Tenney, Jr. Harrison Street
Duxbury, Mass. 02332
Ralph E. Trower 55 Rock Meadow Drive
Brockton, Mass. 02401
Thomas D. Welch 180 Beacon Street
Boston, Mass. 02116
President
Robert V. Shupe 45 Fairview Avenue
Brockton, Mass. 02401
Treasurer
James F. Smith 2 Powder Hill Road
Lynnfield, Mass. 01940
Clerk
Thomas W. Sherman 5 Harold Street
Manchester, Mass. 01944
4. The fiscal year for the Resulting Corporation shall end on the
thirty-first day of December in each year.
5. The date initially fixed in the By-Laws for the Annual Meeting of
the stockholders of the Resulting Corporation is the first Thursday
in April of each year.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 19th day of November, 1974.
/s/JAMES F. SMITH
----------------------------------
James F. Smith, Vice President
Brockton Taunton Gas Company
/s/ANGELA P. CARLSON
----------------------------------
Angela P. Carlson, Assistant Clerk
Brockton Taunton Gas Company
/s/JAMES F. SMITH
----------------------------------
James F. Smith, Vice President
Bay State Gas Company
/s/ANGELA P. CARLSON
----------------------------------
Angela P. Carlson, Assistant Clerk
Bay State Gas Company
2
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THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF CONSOLIDATION
(General Laws, Chapter 164B, Section 102A)
I hereby approve the within articles of consolidation and, the filing
fee in the amount of $936.58 having been paid, said articles are deemed to have
been filed with me this 19th day of November 1974.
Effective Date
/s/John F. X. Davoren
JOHN F. X. DAVOREN
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo Copy of Articles of Consolidation to be Sent
To: Richard L. Brickley
Brickley, Sears & Cole
75 Federal Street, Boston
Copy Mailed Nov. 22, 1974
39
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS. 02133
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws. Make check
payable to the Commonwealth of Massachusetts.
__________________
We, James F. Smith ,VicePresident, and
John A. Lodge , Clerk of
BAY STATE GAS COMPANY
- -------------------------------------------------------------------------------
(Name of Corporation)
located at 125 High Street, Boston, Massachusetts,
--------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held
on April 3 ,1975, by vote of
1,086,126 shares of Common Stock out of 1,447,708 shares
------------- ---------------- -------------
(Class of Stock)
outstanding, being at least a majority of each class outstanding and entitled
to vote thereon:
VOTED: That the Articles of Organization of the Company be amended to reduce
the authorized capital stock of this Company by $187,000, consisting of
1,940 shares of Cumulative Preferred Stock, $50 par value, and 900
shares of Cummulative Preferred Stock, $100 par value, redeemed in
accordance with the provisions of the Articles of Organization, thereby
reducing the total number of shares of all classes of stock which the
Company has authority to issue from 1,612,358 to 1,609,518, of which
72,060 shall be shares of Cumulative Preferred Stock, $100 par value;
and 1,447,708 shall be shares of Common Stock, $10 par value.
Note: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8 1/2" wide x 11" high paper and must have
a left-hand margin 1 inch wide for binding. Only one side should be used.
40
2A
The total amount of capital stock already authorized is
74,000 shares preferred, $50 par value
90,650 shares preferred, $100 par value
1,447,708 shares common, $10 par value
The total amount of capital stock already
already issued is 74,000 shares preferred, $50 par value
90,650 shares preferred, $100 par value
1,447,708 shares common, $10 par value
The amount of the reduction of
the capital stock is $97,000 preferred, $50 par value
$97,000 preferred, $100 par value
--------
$187,000
========
The amount of issued stock after
reduction is
$3,603,000 preferred, $50 par value
$8,975,000 preferred, $100 par value
$14,477,080 common, $10 par value
The manner in which said reduction will be effected is as follows:
In accordance with the provisions of the Articles of Organization of
the Company, on January 1, 1975 1,300 shares of Cumulative Preferred
Stock, 5 5/8% Series, $50 par value; 640 shares of Cumulative
Preferred Stock, $3.25 Series, $50 par value; and 900 shares of
Cumulative Preferred Stock, 8.70% Series, $100 par value, were redeemed.
41
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 3rd day of April , in the year 1975.
/s/ James. F. Smith ,Vice Presdent
/s/ John A. Lodge ,Clerk
42
THE COMMONWEALTH OF MASSACHUSETTS
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $50.00
having been paid, said articles are deemed to have
been filed with me this 7th
------------------------
day of April , 19 75 .
------------------- --
/s/ Paul Guzzi
------------------------
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed Apr. 8, 1975
43
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS. 02133
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws. Make check
payable to the Commonwealth of Massachusetts.
__________________
We, James F. Smith ,Vice President and
John A. Lodge ,Clerk of
BAY STATE GAS COMPANY
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 125 High Street, Boston, Massachusetts
--------------------------------------------------------------- do
hereby certify that the following amendment to the articles of organization of
the corporation was duly adopted at a meeting held on
April 3 , 1975, by vote of
1,070,402 shares of Common Stock out of 1,447,708
- ----------------------- --------------------- -----------
(Class of Stock)
shares outstanding, being atleast a majority of each class outstanding and
entitled to vote thereon:
VOTED: That the Articles of Organization of the Company be amended to
increase the authorized capital stock of this Company by $3,750,000 by
increasing the number of authorized shares of Common Stock, $10 par
value, by 375,000 shares, thereby increasing the total number of shares
of all classes of stock which the Company has authority to issue from
1,609,518 to 1,984,518, of which 72,060 shall be shares of Cumulative
Preferred Stock, $50 par value; 89,750 shall be shares of Cumulative
Preferred Stock, $100 par value; and 1,822,708 shall be shares of
Common Stock, $10 par value.
Note: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8-1/2" wide by 11" high paper and must
==================
have a left-hand margin 1 inch wide for binding. Only one side should be
used.
44
2A
The total amount of capital stock 72,060 shares preferred, $50 par value
already authorized is 89,750 shares preferred, $100 par value
1,447,708 shares common, $10 par value
The total amount of capital stock 72,060 shares preferred, $50 par value
already issued is 89,750 shares preferred, $100 par value
1,447,708 shares common, $10 par value
The amount of the increase of the
capital stock is $3,750,000 common, $10 par value
The amount of issued stock $3,603,000 shares preferred, $50 par value
after increase is $8,975,000 shares preferred, $100 par value
$18,227,080 shares common, $10 par value
The manner in which said increase will be effected is as follows:
It is expected that, pursuant to the Order dated April 9, 1975 of the
Massachusetts Department of Public Utilities in DPU 18286 and
subsequent to a Registration Statement as filed with the Securities and
Exchange Commission becoming effective, the 375,000 additional shares
of Common Stock, $10 par value, of the Company will be issued and sold
by negotiated public sales on or about May 6, 1975.
45
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 28th day of April , in the year 1975.
/s/ James F. Smith, Vice President
/s/ John A. Lodge, Clerk
46
THE COMMONWEALTH OF MASSACHUSETTS
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $1,875.00
having been paid, said articles are deemed to have
been filed with me this 29th day of April , 1975.
/s/ Paul Guzzi
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
542-0898
Copy Mailed: May 2, 1975
47
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
02133
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws.
Make check payable to the Commonwealth of Massachusetts.
__________________
We, Thomas W. Sherman ,Vice President and
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
- -------------------------------------------------------------------------------
(Name of Corporation)
located at 125 High Street, Boston, Massachusetts, do
----------------------------------------------------------------
hereby certify that the following amendment to the articles of organization of
the corporation was duly adopted at a meeting held on April 1, 1976, by vote
of
1,327,905 shares of Common Stock out of 1,822,708 shares outstanding,
- ----------------------------------------------------------------------------
(Class of Stock)
being at least a majority of each class outstanding and entitled to vote
thereon:
VOTED: That the Articles of Organization of the Company be amended to reduce
the authorized capital stock of this Company by $257,000 consisting of
2,340 shares of Cumulative Preferred Stock, $50 par value, and 1,400
shares of Cumulative Preferred Stock, $100 par value, redeemed and
purchased in accordance with the provisions of the Articles of
Organization, thereby reducing the total number of shares of all
classes of stock which the Company has authority to issue from
1,984,518 to 1,980,778, of which 69,720 shall be shares of Cumulative
Preferred Stock, $50 par value; 88,350 shall be shares of Cumulative
Preferred Stock, $100 par value; and 1,822,708 shall be shares of
Common Stock, $10 par value.
NOTE: Amendments for which the space provided above is not sufficient should
be set out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets should be on 8-1/2" wide X 11" high paper and have a left-hand margin
=================
1 inch wide for binding. Only one side should be used.
48
2A
The total amount of capital stock 72,060 shares preferred, $50 par value
already authorized is 89,750 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The total amount of capital stock 72,060 shares preferred, $50 par value
already issued is 89,750 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The amount of the reduction of the
authorized capital stock is $117,000 preferred, $50 par value
140,000 preferred, $100 par value
--------
$257,000
========
The amount of issued stock after $3,486,000 preferred, $50 par value
reduction is $8,835,000 preferred, $100 par value
$18,227,080 common, $10 par value
The manner in which said reduction will be effected is as follows:
In accordance with the provisions of the Articles of Organization of
the Company, (1) on July 1, 1975 500 shares of Cumulative Preferred
Stock, 4.70% Series, $100 par value, were purchased and cancelled and
200 shares of Cumulative Preferred Stock, $3.80 Series, $50 par value,
were redeemed and cancelled, with 200 additional shares of the $3.80
Series having been purchased and cancelled since that date; and (2)
on January 1, 1976 1,300 shares of Cumulative Preferred Stock,
5 5/8% Series, $50 par value; 640 shares of Cumulative Preferred
Stock, $3.25 Series, $50 par value; and 900 shares of Cumulative
Preferred Stock, 8.70% Series, $100 par value, were purchased and
cancelled, making a total of 2,340 shares of Cumulative Preferred
Stock, $50 par value, and 1,400 shares of Cumulative Preferred Stock,
$100 par value, purchased or redeemed and cancelled.
49
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 14th day of April , in the year 1976.
/s/Thomas W. Sherman ,Vice President
/s/Angela P. Carlson ,Clerk
50
THE COMMONWEALTH OF MASSACHUSETTS
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $50.00
having been paid, said articles are deemed to have
been filed with me this 16th day of April , 1976.
/s/Paul Guzzi
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed April 26, 1976
51
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
State House Boston, Mass. 02133
ARTICLES OF MERGER
Pursuant to General Laws, Chapter 164, Section 102A
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the last of the meetings of the stockholders of the
constituent corporations at which the agreement enclosed herein was approved.
The fee for filing this certificate is prescribed by General Laws. In order
that the filing fee may be readily computed there shall be submitted to the
Secretary at the time of filing this certificate a statement as to each
constituent Massachusetts corporation signed under the penalties of perjury by
its president or vice president setting out the amounts of capital stock which
at the time of such filing such corporation is authorized to issue. Make check
payable to the Commonwealth of Massachusetts.
* * * *
__________________
LAWRENCE GAS COMPANY
--------------------
AND
BAY STATE GAS COMPANY
---------------------
the constituent corporations
into
BAY STATE GAS COMPANY
---------------------
ONE OF THE CONSTITUENT CORPORATIONS
The undersigned officers of each of the constituent corporations
certify under the penalties of perjury as follows:
1. The agreement of merger compiles with the requirements of the first
paragraph of subsection (b) of General Laws, Chapter 156B, Section 78 is as
follows: (Copy of agreement inserted.)
(Here set forth such agreement, or insert a copy thereof, which shall
be on paper 8 1/2 inches by 11 inches with a left-hand margin of 1 inch wide
for binding).
52
2. The effective date of the merger determined pursuant to the
agreement referred to in paragraph 1 shall be June 1, 1976.
3. The following information shall not for any purpose be
treated as a permanent part of the articles of organization of the surviving
corporation:
(a) The post office address of the initial principal office of
the surviving corporation in Massachusetts is
Bay State Gas Company
125 High Street
Boston, Massachusetts 02110
(b) The name, residence and post office address of each of the
initial directors and president, treasurer and clerk of the surviving
corporation is as follows:
Name Residence Post Office Address
President Charles H. Tenney II 30 Cedar Rd., Chestnut Hill,
Brookline, Mass. 02167
Treasurer Thomas W. Sherman 5 Harold St., Manchester, Mass. 01944
Clerk Angela P. Carlson 45 Ridge Rd., Lexington, Mass. 02173
Directors Richard L. Brickley 4 W. Cedar St., Boston, Mass. 02108
Robert M. Brigham 977 Longmeadow St., Longmeadow, Mass. 01106
Anthony D. Matarese 7 Captains Row, Mashpee Village, Buzzards
Bay, Mass. 02532
Thomas W. Sherman 5 Harold St., Manchester, Mass. 01944
Robert V. Shupe 45 Fairview Ave., Brockton, Mass. 02401
Endicott Smith 97 Essex Rd., Newton, Mass. 02167
Charles H. Tenney II 30 Cedar Rd., Chestnut Hill, Brookline,
Mass. 02167
Charles M. Tenney, Jr. Harrison St., Duxbury, Mass. 02332
Thomas D. Welch 180 Beacon St., Boston, Mass. 02116
Roger U. Wellington Garrison Lane., Osterville, Mass. 02655
Roger A. Young 17 Happy Hollow Rd., Wayland, Mass. 01778
(c) The fiscal year of the surviving corporation initially adopted
is By-Laws provide that fiscal year shall end on the 31st day of
December in each year.
(d) The date initially fixed in the by-laws for the annual meeting
of stockholders of the surviving corporation is By-Laws provide
that the annual meeting of stockholders shall be held on the
first Thursday in April in each year.
53
LAWRENCE GAS COMPANY
--------------------
C E R T I F I C A T E
---------------------
I, Thomas W. Sherman, Vice President of Lawrence Gas Company, do hereby
certify that the amount of capital stock which said Company has authority to
issue as of the date hereof is 670,002 shares of Common Stock, $10 par value;
and that all of said shares of stock are issued and outstanding as of the date
hereof.
WITNESS my hand and the seal of said corporation this 1st day
of June, 1976.
/s/ Thomas W. Sherman
--------------------------------------------
Vice President
[SEAL]
54
BAY STATE GAS COMPANY
---------------------
C E R T I F I C A T E
------------------------------
I, Thomas W. Sherman, Vice President of Bay State Gas Company, do
hereby certify that the amount of capital stock which said Company has
authority to issue as of the date hereof is 1,822,708 shares of Common Stock,
$10 par value; 69,720 shares of Cumulative Preferred Stock, $50 par value; and
88,350 shares of Cumulative Preferred Stock, $100 par value; and that all of
said shares of stock are issued and outstanding as of the date hereof.
WITNESS my hand and the seal of said corporation this 1st day
of June, 1976.
/s/ Thomas W. Sherman
------------------------------------
Vice President
[SEAL]
55
[CONFORMED COPY]
AGREEMENT AND PLAN OF MERGER
OF
LAWRENCE GAS COMPANY
(A Massachusetts Corporation)
INTO AND WITH
BAY STATE GAS COMPANY
(A Massachusetts Corporation)
the corporate existence of which shall be continued under the name of
BAY STATE GAS COMPANY
(the "Surviving Company")
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of April 1,
1976, between LAWRENCE GAS COMPANY, a Massachusetts corporation ("Lawrence"),
and BAY STATE GAS COMPANY, a Massachusetts corporation ("Bay State" or the
"Surviving Company"), which corporations are herein collectively referred to as
the "Constituent Companies,"
WITNESSETH:
WHEREAS, Bay State owns all of the issued and outstanding shares of
Common Stock of Lawrence, par value $10 per share (the "Lawrence Common
Stock"); and
WHEREAS, it is proposed to merge Lawrence into and with Bay State in
accordance with the terms and conditions herein set forth and the applicable
requirements of law, and to continue to the corporate existence of Bay State
under and in pursuance of the General Laws of The Commonwealth of
Massachusetts under the name of "Bay State Gas Company" and
WHEREAS, Bay State will have outstanding upon the consummation of the
merger 1,822,708 shares of Common Stock, par value $10 per share (the "Bay
State Common Stock"); and 69,720 shares of Cumulative Preferred Stock, par
value $50 per share, and 88,350 shares of Cumulative Preferred Stock, par value
$100 per share (herein collectively referred to as the "Bay State Preferred
Stock"), or such number of shares as shall be duly authorized at that time; and
WHEREAS, the applicable provisions of the General Laws of The
Commonwealth of Massachusetts permits the merger of Lawrence into and with Bay
State;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions, covenants and grants herein contained, and in order to
prescribe the terms and conditions of the merger and the mode of carrying it
into effect, it is hereby agreed as follows:
FIRST: It is intended that this instrument shall constitute an
agreement and the terms for a merger within the meaning of Chapter 164 of the
General Laws of The Commonwealth of Massachusetts and shall constitute a plan
of reorganization within the meaning of Internal Revenue Code Section 368 (a),
and that the merger to be effected pursuant hereto is intended to qualify under
that provision.
56
SECOND: Lawrence shall be merged into and with Bay State, the
corporate existence of which shall be continued as the Surviving Company under
and in accordance with the General Laws of the Commonwealth of Massachusetts.
THIRD: The articles of organization, as amended, and By-Laws, as
amended, of Bay State shall continue in full force and effect as the Articles
of Organization and By-Laws of the Surviving Company, with the purposes of Bay
State set forth in its Articles of Organization, as amended, continuing as the
purposes of the Surviving Company.
FOURTH: Upon the Effective Date (as hereinafter defined):
(a)(i) each of the issued and outstanding shares of Lawrence Common
Stock shall be cancelled and no new shares or other consideration of Bay State
shall be issued in exchange therefor; and (ii) each of the shares of Bay State
Common Stock and Bay State Preferred Stock which is then issued and outstanding
shall remain issued and outstanding;
(b) the separate and independent corporate existence of Lawrence shall
cease;
(c) Bay State shall have and possess all of the rights, powers,
privileges, franchises, property, real, personal or mixed, and immunities held
at such time by Lawrence and Bay State, to the same extent as though said
rights, powers, privileges, franchises, property and immunities had been
originally owned by or granted to it;
(d) all of the liabilities of Lawrence shall be assumed by Bay State
and the officers of Bay State shall execute and deliver such documents as shall
be necessary or appropriate to effect such assumption except that the lien of
the Indenture (the "Indenture") between Lawrence and the Merchants National
Bank of Boston (now New England Merchants National Bank), Trustee, dated as of
November 1, 1957, shall be confined to the properties held by Lawrence as of
the Effective Date (as hereinafter defined), together with all repairs,
renewals, replacements, substitutions, betterments, additions, extensions and
improvements made on such properties subsequent to the Effective Date and
nothing herein contained shall be deemed to be a consent by Bay State to the
subjection of its properties to such lien;
(e) the right, title or interest to any real estate, whether vested by
deed or otherwise, of Lawrence shall not revert or be in any way impaired by
reason of the merger; and
(f) all rights of creditors and all liens upon the property of
Lawrence shall be preserved unimpaired, and each of the Constituent Companies
shall continue in existence so far as may be necessary to preserve the same.
FIFTH: Bay State shall pay all expenses of the merger.
SIXTH: This Agreement shall become effective upon execution and the
merger shall become effective at such time and on such date (the "Effective
Date") as shall be determined by the chief executive officers of the
Constituent Companies and upon such filings as shall be required by law. The
obligations of the Constituent Companies under this Agreement are subject to
the satisfaction on the Effective Date, or prior thereto as may be agreed by
the Constituent Companies, of the following conditions:
(a) All approvals and court orders relating to this Agreement which
are deemed necessary or appropriate by the officers and Directors of Lawrence
and Bay State shall been received.
(b) There shall have been received either a ruling or rulings from the
Internal Revenue Service, in form and content satisfactory to Bay State, to the
effect that the merger is a tax-free reorganization and that no gain or loss
will be recognized to either of the Constituent Companies as a result of or
with respect to the merger contemplated hereby or an opinion of counsel to the
foregoing effect.
(c) This Agreement shall have been approved by the shareholders of
both Lawrence and Bay State in accordance with the requirements of Chapter 164,
Section 96, of the General Laws of The Commonwealth of Massachusetts.
(d) A copy of this Agreement shall have been signed, verified and
filed in such manner as required by the provisions of Chapter 164 of the
General Laws of The Commonwealth of Massachusetts.
(e) The merger of Lawrence into Bay State pursuant to the terms of
this Agreement shall have been approved by the Massachusetts Department of
Public Utilities.
(f) The Constituent Companies shall have received favorable opinions,
dated the Effective Date, of Messrs. LeBoeuf, Lamb, Leiby & MacRae and Messrs.
Brickley, Sears & Cole to the effect that:
2
57
(i) Lawrence and Bay State are corporations duly organized, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts, have power to own all of their properties and assets and to
carry on their businesses as presently conducted and have received all
necessary authorizations, consents and approvals of governmental authorities to
own the properties and to conduct the businesses which they now own and
conduct:
(ii) Lawrence has the corporate power to execute and deliver this
Agreement and to merge into Bay State as specified in this Agreement and has
taken all action required by law, its Articles of Organizations, as amended,
its By-Laws, as amended, or otherwise to authorize, and to have its sole
shareholder authorize, the transactions contemplated by this Agreement;
(iii) Bay State has the corporate power to execute and deliver this
Agreement and has taken all action required by law, its Articles of
Organization, as amended, its By-Laws, as amended, or otherwise to authorize,
and to have its shareholders authorize, the transactions contemplated by this
Agreement;
(iv) the execution and delivery of this Agreement do not, and the
transactions contemplated hereby will not, violate any provision of the
Articles of Organization, as amended, or By-Laws, as amended, of Lawrence or
Bay State or any provisions of, or result in the acceleration of any obligation
under, any mortgage, lien, lease, agreement, instrument, order, arbitration
award, judgment or decree of which such counsel has knowledge to which Lawrence
or Bay State is a party or by which any of them is bound, and will not violate
or conflict with any other restrictions of any kind or character of which such
counsel has knowledge and to which Lawrence or Bay State is subject; and
(v) this Agreement has been duly authorized and is a valid and binding
agreement.
In rendering the opinion specified above Messrs. LeBoeuf, Lamb, Leiby &
MacRae may rely upon certificates of any officer or officers of Lawrence and
Bay State and upon the opinion of Messrs. Brickley, Sears & Cole insofar as
such opinion of Messrs. LeBoeuf, Lamb, Leiby & MacRae concerns the laws of The
Commonwealth of Massachusetts. Insofar as their opinions concern titles and
franchises, Messrs. LeBoeuf, Lamb, Leiby & MacRae and Messrs. Brickley, Sears &
Cole may rely upon the opinions of local counsel. Insofar as such opinion
concerns matters relating to Lawrence, Messrs. LeBoeuf, Lamb, Leiby & MacRae
and Messrs. Brickley, Sears & Cole may rely upon a satisfactory opinion of
Richard B. Dunn, Esq., General Counsel of New England Electric System, with
respect to the matters set forth in (i), (ii), (iv), or (v), but only as at or
prior to November 14, 1973.
SEVENTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated at any time prior to the Effective Date (a) by
mutual consent of the Boards of Directors of the Constituent Companies, or (b)
by the Board of Directors of either of the Constituent Companies if such Board
of Directors shall determine that it is not in the best interests of such
Constituent Company to consummate the transactions contemplated hereby.
Nevertheless, anything in this Agreement to the contrary notwithstanding, if
any of the conditions specified in Article SIXTH hereof (with the exception of
the conditions set forth in Paragraphs (b), (c) and (e)) have not been
satisfied, Lawrence and Bay State, in addition to any other rights which may be
available to them, shall have the right to waive such conditions and proceed
with the transactions contemplated hereby.
EIGHTH: If at any time Bay State shall deem or be advised that any
further assignments, assurances in the law or other acts or instruments are
necessary or desirable to vest in Bay State the title to any property of
Lawrence, the proper officers and Directors of Lawrence shall do all such acts
and things as may be necessary or proper to vest title to such property in Bay
State and otherwise to carry out the purposes of this Agreement.
NINTH: Bay State agrees to execute and cause to be recorded, no later
than the Effective Date, any documents required to prevent the lien of the
Lawrence Indenture referred to above in Article FOURTH from attaching to any
properties other than those held by Lawrence on the Effective Date and all
repairs, renewals, replacements, substitutions, betterments, additions,
extensions and improvements made on such properties subsequent to the Effective
Date.
TENTH: This Agreement shall be construed under and in accordance with
the General Laws of The Commonwealth of Massachusetts.
ELEVENTH: This Agreement shall be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party.
3
58
TWELFTH: Anything in this agreement to the contrary notwithstanding,
the Boards of Directors of the Constituted Companies may, by mutual consent,
amend any provision of this Agreement, provided, however, that the conditions
set forth in Paragraphs (b), (c) and (e) of Article SIXTH hereof may not be so
amended.
IN WITNESS WHEREOF, the Constituent Companies have caused their
respective corporate seals to be hereunto affixed and these presents to be
signed by their respective Presidents or Vice Presidents and Treasurers or
Assistant Treasurers and attested by their respective Clerks or Assistant
Clerks, all thereunto duly authorized, as of the day and year first above
mentioned.
LAWRENCE GAS COMPANY BAY STATE GAS COMPANY
By: Roger A. Young By: Roger A. Young
------------------------- --------------------------
Vice President Vice President
By: Thomas W. Sherman By: Thomas W. Sherman
------------------------- --------------------------
Treasurer Treasurer
[SEAL] [SEAL]
Attest: Angela P. Carlson Attest: Angela P. Carlson
--------------------- ----------------------
Clerk Clerk
4
59
The undersigned officers of the several constituent corporations listed
above further state under the penalties of perjury as to their respective
corporations that the agreement of merger which is set forth under paragraph 1,
has been duly executed on behalf of such corporation and duly approved by the
stockholders of such corporation in the manner required by General Laws,
Chapter 164, Section 96 and in compliance with all pertinent requirements of
the articles or organization of such corporation at meetings of stockholders
held on the following dates.
Name Date of stockholders meeting
Lawrence Gas Company April 1, 1976
Bay State Gas Company April 1, 1976
and that said agreement of merger has been approved by the Massachusetts
Department of Public Utilities by its Order dated May 4, 1976 in D.P.U. 18620
in the manner required by General Laws, Chapter 164, Section 96.
/s/ Thomas W. Sherman Vice President
----------------------------------------------
/s/ Angela P. Carlson Clerk
----------------------------------------------
of
LAWRENCE GAS COMPANY
--------------------
(name of constituent corporation)
/s/ Thomas W. Sherman Vice President
----------------------------------------------
/s/ Angela P. Carlson Clerk
----------------------------------------------
of
BAY STATE GAS COMPANY
---------------------
(name of constituent corporation)
60
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER
(General Laws, Chapter 164, Section 102A)
I hereby approve the within articles of merger and, the filing fee in
the amount of $150.00 having been paid, said articles are deemed to have been
filed with me this 1st day of June, 1976.
/s/ PAUL GUZZI
----------------------------------
Paul Guzzi
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Photo Copy of Articles of Merger To Be Sent
To:
Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed June 10, 1976
61
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
02133
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws.
Make check payable to the Commonwealth of Massachusetts.
__________________
We, Roger A. Young , Vice President and
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
- -------------------------------------------------------------------------------
(Name of Corporation)
located at 125 High Street, Boston, Massachusetts
--------------------------------------------------------------------
do hereby certify that the following amendment to the articles of
organization of the corporation was duly adopted at a meeting held on
April 7 , 1977, by vote of
1,232,698 shares of Common Stock out of 1,822,708 shares outstanding, being
- -----------------------------------------------------
(Class of Stock)
at least a majority of each class outstanding and entitled to vote thereon:
VOTED: That the Articles of Organization of the Company be amended to
reduce the authorized capital stock of this Company by $257,000,
consisting of 2,340 shares of Cumulative Preferred Stock, $50 par
value, and 1,400 shares of Cumulative Preferred Stock, $100 par value,
redeemed and purchased in accordance with the provisions of the
Articles of Organization, thereby reducing the total number of shares
of all classes of stock which the Company has authority to issue from
1,980,778 to 1,977,038, of which 67,380 shall be shares of Cumulative
Preferred Stock, $50 par value; 86,950 shall be shares of Cumulative
Preferred Stock, $100 par value; and 1,822,708 shall be shares of
Common Stock, $10 par value.
NOTE: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8-1/2 X 11" high paper and must have a
===========
left-hand margin 1 inch wide for binding. Only one side should be used.
62
2A
The total amount of capital stock 69,720 shares preferred, $50 par value
already authorized is 88,350 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The total amount of capital stock 69,720 shares preferred, $50 par value
already issued is 88,350 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The amount of the reduction of
the capital stock is $117,000 preferred, $50 par value
140,000 preferred, $100 par value
--------
$257,000
========
The amount of issued stock $3,369,000 preferred, $50 par value
after reduction is $8,695,000 preferred, $100 par value
$18,227,080 common, $10 par value
The manner in which said reduction will be effected is as follows:
In accordance with the provisions of the Articles of Organization of
the Company, (1) on July 1, 1976 500 shares of Cumulative Preferred
Stock, 4.70% Series, $100 par value, were purchased and cancelled and
200 shares of Cumulative Preferred Stock, $3.80 Series, $50 par value,
were redeemed and cancelled, with 200 additional shares of the $3.80
Series having been purchased and cancelled since that date; and (2) on
January 1, 1977 1,300 shares of Cumulative Preferred Stock, 5 5/8%
Series, $50 par value; 640 shares of Cumulative Preferred Stock, $3.25
Series, $50 par value, and 900 shares of Cumulative Preferred Stock,
8.70% Series, $100 par value, were purchased and cancelled, making a
total of 2,340 shares of Cumulative Preferred Stock, $50 par value, and
1,400 shares of Cumulative Preferred Stock, $100 par value, purchased
or redeemed and cancelled.
63
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 15th day of April, in the year 1977.
/s/ Roger A. Young , Vice President
/s/ Angela P. Carlson , Clerk
64
THE COMMONWEALTH OF MASSACHUSETTS
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $50.00
having been paid, said articles are deemed to
have been filed with me this 19TH day of April, 1977.
/s/ Paul Guzzi
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
542-0896
Copy Mailed Apr. 20, 1977
65
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
02133
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of the vote of stockholders adopting the amendment.
The fee for filing this certificate is prescribed by General Laws. Make check
payable to the Commonwealth of Massachusetts.
__________________
We, Roger A. Young , Vice President and
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
- -------------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021,
--------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on
April 7,* , 1977 , by vote of
1,208,430 shares of Common Stock out of 1,822,708
- --------------- ------------------ -------------
(Class of Stock)
shares outstanding, being at least a majority of each class outstanding and
entitled to vote thereon:
VOTED: That the Articles of Organization of the Company be amended to increase
the authorized capital stock of this Company by $3,000,000 by
increasing the number of authorized shares of Common Stock, $10 par
value, by 300,000 shares, thereby increasing the total number of shares
of all classes of stock which the Company has authority to issue from
1,977,038 to 2,277,038, of which 67,380 shall be shares of Cumulative
Preferred Stock, $50 par value; 86,950 shall be shares of Cumulative
Preferred Stock, $100 par value; and 2,122,708 shares of Common Stock,
$10 par value.
*Meeting adjourned September 14, 1977.
Note: Amendments for which the space provided above is not
sufficient should be set out on continuation sheets to be numbered 2A,
2B, etc. Continuation sheets shall be on 8 1/2" wide X 11" high paper
=================
must have a left-hand margin 1 inch wide for binding. Only one side
should be used.
66
2A
The total amount of capital 67,380 shares preferred, $50 par value
stock already authorized is 86,950 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The total amount of capital 67,380 shares preferred, $50 par value
stock already issued is 86,950 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The amount of the increase of $ 3,000,000 common, $10 par value
authorized capital stock is
The amount of the authorized $ 3,369,000 preferred, $50 par value
capital stock after $ 8,695,000 preferred, $100 par value
increase is $21,227,080 common, $10 par value*
<FN>
(*$18,227,080 of which is already issued)
NOTE: None of the 300,000 additional authorized shares of Common
Stock, $10 par value, of the Company will be issued without receiving
prior written approval from the Massachusetts Department of Public
Utilities.
67
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which
event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 17th day of October, in the year 1977.
/s/Roger A. Young Vice President
- ------------------------------------------------
/s/Angela P. Carlson Clerk
- ------------------------------------------------
68
THE COMMONWEALTH OF MASSACHUSETTS
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $1,500.00
having been paid, said articles are deemed to have
been filed with me this 19th day of
October , 1977 .
/s/PAUL GUZZI
PAUL GUZZI
Secretary of the Commonwealth
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Richard L. Brickley, Esquire
-------------------------------------
75 Federal Street
-------------------------------------
Boston, Massachusetts 02110
-------------------------------------
542-0896
-------------------------------------
Copy Mailed
69
The Commonwealth of Massachusetts
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, MASS.
02133
REDUCTION OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws.
Make check payable to the Commonwealth of Massachusetts.
__________________
We, Thomas W. Sherman , Vice President
Angela P. Carlson ,Clerk
BAY STATE GAS COMPANY
- ------------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts
-------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on
April 6 , 1978, by vote of 1,330,023 shares of Common
- ----------------------------------------------- -------------------
(Class of Stock)
out of 1,822,708 shares outstanding,
----------------
being at least a majority of each class outstanding and entitled to vote
thereon.
VOTED: That the Articles of Organization of the Company be amended to reduce
the authorized capital stock of the Company by $262,600, consisting of
2,340 shares of Cumulative Preferred Stock, $50 par value, and 1,456
shares of Cumulative Preferred Stock, $100 par value, redeemed and
purchased in accordance with the provisions of the Articles of
Organization, thereby reducing the total number of shares of all classes
of stock which the Company has authority to issue from 2,277,038 to
2,273,242, of which 65,040 shall be shares of Cumulative Preferred
Stock, $50 par value; 85,494 shall be shares of Cumulative Preferred
Stock, $100 par value; and 2,122,708 shall be shares of Common Stock,
$10 par value.
Note: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8 1/2" wide x 11" high paper
=================
and must have a left-hand margin 1 inch wide for binding. Only one
side should be used.
70
2A
The total amount of capital 67,380 shares preferred, $50 par value
Stock already authorized is 86,950 shares preferred, $100 par value
2,122,708 shares common, $10 par value
The total amount of capital 67,380 shares preferred, $50 par value
Stock already issued is 86,950 shares preferred, $100 par value
1,822,708 shares common, $10 par value
The amount of the reduction 117,000 preferred, $50 par value
of the capital stock is 145,600 preferred, $100 par value
--------
$262,600
========
The amount of issued $ 3,252,000 preferred, $50 par value
stock after reduction is $ 8,549,400 preferred, $100 par value
$18,227,080 common, $10 par value
The manner in which said reduction will be effected is as follows:
In accordance with the provisions of the Articles of Organization of
the Company, (1) on July 1, 1977 500 shares of Cumulative Preferred Stock,
4.70% Series, $100 par value, and 56 shares of Cumulative Preferred Stock,
9.95% Series, $100 par value, were purchased and cancelled; and 200 shares of
Cumulative Preferred Stock, $3.80 Series, $50 par value, were redeemed and
cancelled, with 200 additional shares of the $3.80 Series having been
purchased and cancelled since that date; and (2) on January 1, 1978 1,300
shares of Cumulative Preferred Stock, 5 5/8% Series, $50 par value; 640 shares
of Cumulative Preferred Stock, 3.25% Series, $50 par value; and 900 shares of
Cumulative Preferred Stock, 8.70% Series, $100 par value, were purchased and
cancelled, making a total of 2,340 shares of Cumulative Preferred Stock, $50
par value, and 1,456 shares of Cumulative Preferred Stock, $100 par value,
purchased or redeemed and cancelled.
71
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 7th day of April , in the year 1978.
/s/Thomas W. Sherman, Vice President
/s/Angela P. Carlson, Clerk
72
THE COMMONWEALTH OF MASSACHUSETTS
REDUCTION OF CAPTIAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $50.00
having been paid, said articles are deemed to have
been filed with me this 10th
day of April , 1978.
/s/ Paul Guzzi
PAUL GUZZI
Secretary of the Commonwealth
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed 4/11/78
73
The Commonwealth of Massachusetts
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS. 02133
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws.
Make check payable to the Commonwealth of Massachusetts.
__________________
We, Thomas W. Sherman ,Vice President and
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts
-------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on
February 27 , 1979, by vote of 1,435,471 shares of
--------------------------
Common out of 2,075,691 shares outstanding,
- -------------------------- ----------------------
(Class of Stock)
being at least a majority of each class outstanding and entitled to vote
thereon:
VOTED: That the Articles of Organization of the Company be amended to increase
the authorized capital stock of this Company by $29,471,520 by
increasing the number of authorized shares of Common Stock, $10 par
value, by 1,377,292 shares, of Cumulative Preferred Stock, $50 par
value, by 84,960 shares and of Cumulative Preferred Stock, $100 par
value, by 114,506 shares, thereby increasing the total number of shares
of all classes of stock which the Company has authority to issue from
2,273,242 to 3,850,000, of which 3,500,000 shall be shares of Common
Stock, $10 par value; 150,000 shall be shares of Cumulative Preferred
Stock, $50 par value; and 200,000 shall be shares of Cumulative
Preferred Stock, $100 par value.
NOTE: Amendments for which the space provided above is not sufficient should
be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8-1/2" wide X 11" high paper and must
=================
have a left hand margin 1 inch wide for binding. Only one side should
be used.
74
2A
The total amount of capital 65,040 shares preferred, $50 par value
stock already authorized is 85,494 shares preferred, $100 par value
2,122,708 shares common, $10 par value
The total amount of capital 65,040 shares preferred, $50 par value
stock already issued is 85,494 shares preferred, $100 par value
2,075,691 shares common, $10 par value
The amount of the increase $ 4,248,000 preferred, $50 par value
of the authorized capital 11,450,600 preferred, $100 par value
stock is 13,772,920 common, $10 par value
The amount of the authorized $ 7,500,000 preferred, $50 par value
capital stock after increase 20,000,000 preferred, $100 par value
35,000,000 common, $10 par value
NOTE: None of the 84,960 additionally authorized shares of
Cumulative Preferred Stock, $50 par value; 114,506 additionally
authorized share of Cumulative Preferred Stock, $100 par value; or
1,377,292 additionally authorized shares of Common Stock, $10 par
value, of the Company will be issued without receiving prior written
approval from the Massachusetts Department of Public Utilities.
75
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 6th day of March, in the year 1979.
/s/ Thomas W. Sherman, Vice President
/s/ Angela P. Carlson, Clerk
76
THE COMMONWEALTH OF MASSACHUSETTS
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $14,735.16
having been paid, said articles are deemed to have
been filed with me this 7th
day of March , 1979 .
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed Mar. 12, 1979
77
The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws.
Make check payable to the Commonwealth of Massachusetts.
__________________
We, Thomas W. Sherman , Vice President
Angela P. Carlson , Clerk
BAY STATE GAS COMPANY
- ------------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts
-------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on
February 27, 1979, by vote of 1,449,003 shares of
--------------------
Common out of 2,075,691 shares outstanding, being at
- ----------------- ---------------
(Class of Stock)
least a majority of each class outstanding and entitled to vote thereon:
VOTED: That the Articles of Organization of the Company be amended to insert
therein the terms of the two new series of the Company's Cumulative
Preferred Stock, $50 par value, and Cumulative Preferred Stock, $100
par value, to be issued in connection with the acquisition of Northern
pursuant to the terms of the aforementioned Agreements, said terms to
be as follows:
"The fourth series of the Cumulative Preferred Stock, $50 par value, shall be
designated "Cumulative Preferred Stock, 7.2% Series"; the number of shares of
such series which may be issued shall be limited to
Note: Amendments for which the space provided above is not sufficient should
be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8 1/2" wide x 11" high paper and must
=================
have a left-hand margin 1 inch wide for binding. Only one side should
be used.
78
2A
17,710 shares, the annual dividend rate per share for such series shall
be 7.2% of the par value thereof; the redemption price for such series
shall be $50 per share, together with dividends accrued thereon to the date
fixed for redemption; and the distributive amount fixed for said series in
the event of any involuntary liquidation, dissolution or winding up of the
affairs of the Corporation shall be $50 per share and the distributive
amount fixed for said series in the event of any voluntary liquidation,
dissolution or winding up of the affairs of the Corporation and in the
event of any distribution to holders of, or any purchase or acquisition of,
shares of Common Stock or any other stock ranking junior to the Cumulative
Preferred Stock in respect of the distribution of assets, other than out of
or from the Corporation's earned surplus, shall be equal to the redemption
price per share, plus in each case dividends accrued thereon to the date of
distribution."
and
"The fourth series of the Cumulative Preferred Stock, $100 par value,
shall be designated "Cumulative Preferred Stock, 5% Series"; the number of
shares of such series which may be issued shall be limited to 16,901
shares; the annual dividend rate per share for such series shall be 5% of
the par value thereof; the redemption price for such series shall be $105
per share, together with dividends accrued thereon to the date fixed for
redemption; the distributive amount fixed for said series in the event of
any involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $100 per share, plus dividends accrued thereon to
the date of distribution; and the distributive amount fixed for said series
in the event of any voluntary liquidation, dissolution or winding up of the
affairs of the Corporation and in the event of any distribution to holders
of, or any purchase or acquisition of, shares of Common Stock or any other
stock ranking junior to the Cumulative Preferred Stock in respect of the
distribution of assets, other than out of or from the Corporation's earned
surplus, shall be the redemption price per share, which shall include
dividends accrued thereon to the date of distribution."
79
October 5, 1979
Richard L. Brickley, Esquire
Brickley, Sears & Cole
75 Federal Street
Boston, Massachusetts 02110
Dear Mr. Brickley:
Enclosed are two (2) copies of originally signed Articles of Amendment
as voted by the common shareholders of the Company at the special meeting
thereof held February 27, 1979. These Articles must be filed within thirty
(30) days of September 24, 1979, the date on which the Massachusetts
Department of Public Utilities issued its Order approving the issue of the two
new series of the Company's Cumulative Preferred Stock in connection with the
Company's proposed acquisition of Northern Utilities, Inc.
One copy has a check in the amount of $50 attached, payable to The Commonwealth
of Massachusetts, to cover the fee for filing and should be filed in the office
of the Secretary of the Commonwealth; the other copy is for filing with the
DPU. A photo copy is also enclosed for your records.
We would like to have you obtain two (2) certified copies of the Articles filed
with the Secretary. Please notify the undersigned as to the cost of obtaining
the same and a check will be forwarded to you in that amount.
Very truly yours,
BAY STATE GAS COMPANY
/s/Angela P. Carlson
By
Angela P. Carlson
Clerk
C/c
Enclosures
Copy: J. A. Raffaele
80
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 2nd day of October , in the year 1979.
/s/Thomas W. Sherman, Vice President
/s/Angela P. Carlson, Clerk
81
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $50.00
having been paid, said articles are deemed to have
been filed with me this 11th
day of October , 1979 .
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Richard L. Brickley, Esquire
75 Federal Street
Boston, Massachusetts 02110
Telephone: 542-0896
Copy Mailed 10-11-79
82
(Initialed)
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26 and
Chapter 164, 8B
The filing fee to accompany this certificate is $75.00. Make
check payable to the Commonwealth of Massachusetts
__________________
We,
Roger A. Young , President
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
- ----------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021,
- ----------------------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held on
September 15, 1982, the following vote establishing and designating a series of
a class of stock and determining the relative rights and preferences thereof
was duly adopted:
VOTED: That the Articles of Organization of this Company, as
- ----- amended, be and hereby are further amended to insert therein
immediately after Section 3(B) (4) of the capital stock
provisions the following:
"5. The fifth series of the Cumulative Preferred Stock,
$100 par value, shall be designated "Cumulative Preferred Stock,
14.45% Series"; the number of shares of such series which may be
issued shall be limited to 100,000 shares; the annual dividend
rate per share for such series shall be 14.45% of the par value
thereof; the redemption prices for such series shall be $114.45
per share if the date fixed for redemption is on or before
August 1, 1983, $112.64 per share if such date is after August
1, 1983 but on or before August 1, 1984, $110.84 per share if
such date is after August 1, 1984 but on or before August 1,
1985, $109.03 per share if such date is after August 1, 1985 but
on or before August 1, 1986, $107.23 per share if such date is
after August 1, 1986 but on or before August 1, 1987, $105.42
per share if such date is after August 1, 1987 but on or before
August 1, 1988, $103.61 per share if such date is after August
1, 1988 but on or before August 1, 1989, $101.81 per share if
such date is after August 1, 1989 but on or before August 1,
1990 and $100.00 per share if such date is after August 1, 1990,
plus in each case dividends accrued thereon to the date fixed
for redemption; the distributive amount fixed for said series in
the event of any involuntary liquidation, dissolution or winding
up of the affairs of the Corporation shall be $100 per share,
plus dividends accrued thereon to the date of distribution; and
the distributive amount fixed for said series in the event of
any voluntary liquidation, dissolution or winding up of the
affairs of the Corporation and in the event of any distribution
to holders of, or any purchase or acquisition of, shares of
Common Stock or any other stock ranking junior to the Cumulative
Preferred Stock in respect of the distribution of assets, other
than out of or from the Corporation's earned surplus, shall be
the applicable redemption price per share, including dividends
accrued thereon to the date of distribution as aforesaid.
Note: Votes for which the space provided above is not
sufficient should be set out on continuation sheets to be
numbered 2A, 2B etc. Continuation sheets must have a left-hand
margin 1 inch wide for binding and shall be 8 1/2" x 11." Only
one side should be used.
83
2A
Prior to August 1, 1987, the Corporation shall not, except for
purchases made pursuant to this Subsection (B) (5) of Article
IV, Section 3, redeem any shares of the Cumulative Preferred
Stock, 14.45% Series, through any refunding operation resulting
in a dividend rate, interest rate or other cost of money to the
Corporation of less than 14.45% per annum.
Subject to the provisions of the Articles of Organization and
of any law and of any agreement as in effect on October 1, 1982
relating to borrowed money to which the Corporation was, on that
date, a party, the Corporation will, on July 1, 1988, and each
July 1 thereafter, purchase, at the price of $100 per share,
plus dividends accrued to the particular July 1, 20,000 shares
of Cumulative Preferred Stock, 14.45% Series, as and for a
sinking fund. At its option, the Corporation may purchase on
July 1 of each such year not more than 20,000 additional shares
thereof, at the price of $100 per share, plus dividends accrued
to the particular July 1; provided, however, that the right to
purchase such additional shares will not be cumulative and will
not affect any such subsequent required purchases hereunder.
The aggregate number of additional shares of Cumulative
Preferred Stock, 14.45% Series, which the Corporation has the
option to purchase shall be limited to 25,000 shares thereof.
Such purchases shall be made from the holders of record of
shares of such series at the close of business on the record
date for the payment of the quarterly dividend payable on such
July 1, and shall be made, as nearly as may be practical and
without the purchase of fractional shares, so that the number of
shares purchased on any July 1 from each such holder of record
shall equal but not exceed that number of shares which bears the
same ratio to the number of shares to be purchased as the number
of shares so held of record by such holder bears to the total
number of shares of such series outstanding on such record date.
On or before June 1 of each year, commencing June 1, 1988, the
Corporation will call for purchase the number of shares to be
purchased as aforesaid on the next following July 1 and will
mail, postage prepaid, to each holder of record of shares of
such series at their respective addresses as the same shall
appear on the books of the Corporation, written notice of the
Corporation's intent to purchase shares from such holder on
such July 1, designating the place at which shares are to be
delivered. If such notice of purchase shall have been so
mailed, and if on or before the July 1 specified in such notice,
all funds necessary for such purchase shall have been set aside
by the Corporation, separate and apart from its other funds, in
trust for the account of holders of the shares so to be
purchased, so as to be and continue to be available therefor,
then, on and after such July 1, notwithstanding that any
certificate representing the shares of Cumulative Preferred
Stock, 14.45% Series, so called for purchase shall not have been
surrendered for cancellation, the shares so called shall no
longer be deemed outstanding, the right to receive dividends
thereon shall cease to accrue, and all rights with respect to
such shares of Cumulative Preferred Stock, 14.45% Series, so
called for purchase shall forthwith cease and terminate, except
only the right of the holders thereof to receive, out of the
funds so set aside in trust, the amount payable on purchase
thereof, but without interest, and thereupon such shares shall
be deemed canceled and retired. All shares so purchased shall
be canceled and shall not be reissued.
84
2B
In case less than all the shares represented by a particular
certificate are called for purchase, a new certificate or
certificates shall be issued representing the shares not called
for purchase.
The Corporation shall not be obligated to purchase any shares
of Cumulative Preferred Stock, 14.45% Series, on any July 1
unless all dividends accrued on all shares of such series shall
have been declared or paid, including the quarterly dividend
payable on such July 1. The Corporation's obligation to
purchase shares of such series shall be cumulative if on any
July 1 the Corporation shall (i) fail as the result of its
financial inability to purchase any shares or (ii) fail for any
other reason to purchase the full number of shares which the
Corporation is required to purchase on the particular July 1.
In such case, the number of shares which the Corporation failed
to purchase shall be added to the number of shares which the
Corporation shall be required to purchase on the next July 1
or, in the event the Corporation shall for any reason be unable
to purchase any shares on such next July 1, on the first
succeeding July 1 on which the Corporation is not so unable to
purchase shares."
85
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 22nd day of September in
the year 1982.
/s/ Roger A. Young ,President
/s/ Angela P. Carlson ,Clerk
86
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26, and
Chapter 164, Section 8B)
I hereby approve the within certificate and, the
filing fee in the amount of $75.00
having been paid, said certificate is hereby filed this
29th day of September 1982.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Richard L. Brickley, Esq.
75 Federal Street
Boston, Massachusetts 02110
Telephone: 542-0896
Copy Mailed 9-29-82
87
The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting
the amendment. The fee for filing this certificate is prescribed by
General Laws. Make check payable to the Commonwealth of Massachusetts.
__________________
We, Roger A. Young ,President
Angela P. Carlson , Clerk of
BAY STATE GAS COMPANY
- -----------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021
--------------------------------------------------------------
do hereby certify that the following amendment to the articles of
organization of the corporation was duly adopted at a meeting held on
April 24, 1986 , by vote of
1,902,440 shares of Common out of 2,965,703 shares outstanding,
- -------------------------------------------------------------------------
(Class of Stock)
being at least a majority of each class outstanding and entitled
to vote thereon:
VOTED: That, in accordance with the provisions of Chapter 164 of
the General Laws of the Commonwealth of Massachusetts, as
amended, the par value of the Common Stock of this Company be
changed, subject to the approval of the Massachusetts Department
of Public Utilities (the "DPU"), from $10 to $5 per share, so
that the authorized Common Stock of this Company, now in the
amount of $35,000,000 consisting of 3,500,000 shares, $10 par
value per share, shall be $35,000,000 consisting of 7,000,000
shares, $5 par value per share; and further
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
88
VOTED: That, in order to accomplish the foregoing, the
President or any Vice President and the Clerk or any Assistant
Clerk of the Company be and they are, and each of them singly
is, hereby authorized in the name and on behalf of this Company
to execute appropriate Articles of Amendment of the Articles of
Organization of the Company under Chapter 164, Section 8B, of
the General Laws of The Commonwealth of Massachusetts and,
subsequent to the approval of the DPU, to cause the same to be
filed with the Secretary of said Commonwealth and with the DPU.
(NOTE: DPU approval in D.P.U. 86-94 dated June 5, 1986.)
The foregoing amendment will become effective when these
articles of amendment are filed in accordance with Chapter 156B,
Section 6 of the General Laws unless these articles specify, in
accordance with the vote adopting the amendment, a later
effective date not more than thirty days after such filing, in
which event the amendment will become effective on such later
date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 2nd day of July,
in the year 1986.
/s/ Roger A. Young, President
/s/ Angela P. Carlson, Clerk
89
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $75.00
having been paid, said articles are deemed to have
been filed with me this 3rd
day of July, 1986.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Bay State Gas Company
Att: Mrs. Angela P. Carlson, Clerk
120 Royall Street
Canton, MA 02021
Telephone: 828-8650
copy mailed
90
(Initialed)
- -----------
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
__________________
Exec.
We, Thomas W. Sherman , Vice President
Angela P. Carlson , Clerk of
Bay State Gas Company
- -----------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021
-------------------------------------------------------------
do hereby certify that the following amendment to the articles
of organization of the corporation was duly adopted at a meeting
held on January 28, 1988, by vote of
4,638,729 shares of Common out of 5,997,730 shares outstanding,
- ---------------------------------------------------
(Class of Stock)
being at least two-thirds of each class outstanding and
entitled to vote thereon.
VOTED: That the Articles of Organization of this Company as
amended be and hereby are further amended by insertion therein
of the following:
"No Director shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary
duty as a Director notwithstanding any provision of law imposing
such
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
91
liability; provided, however,that this provision shall not eliminate the
liability of a Director, to the extent that such liability is provided by
applicable law, (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law;
(iii) for authorizing certain distributions to shareholders at a time when the
Corporation is insolvent; (iv) for approving certain loans to officers or
Directors of the Corporation which are not repaid and which were not approved
by a majority of disinterested Directors or (v) for any transaction from which
the Director derived an improper personal benefit. This provision shall not
eliminate the liability of a Director for any act or omission occurring prior
to the date upon which this provision becomes effective. No amendment to or
repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any Director for of with respect to any acts or omissions
of such Director occurring prior to such amendment or repeal."
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the Geneal Laws unless
these articles specify, in accordance with the vote adopting the amendment,
a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 22nd day of March, in the year 1988.
Exec.
/s/ Thomas W. Sherman, Vice President
/s/ Angela P. Carlson, Clerk
92
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $75.00
having been paid, said articles are deemed to have
been filed with me this 25th
day of March , 1988 .
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Bay State Gas Company
Attn: Mrs. Angela P. Carlson
120 Royall Street
Canton, MA 02021
Telephone: 828-8650
93
(Initialed)
- -----------
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
Chapter 164, Section 8B
The filing fee to accompany this certificate is $100. Make check payable
to the Commonwealth of Massachusetts.
__________________
We, Roger A. Young ,President and
James J. Flanagan III , Clerk of
BAY STATE GAS COMPANY
- ------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021
--------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held
on March 13, 1989, the following vote establishing and designating a series of
a class of stock and determining the relative rights and preferences
thereof was duly adopted.:
VOTED: That the Articles of Organization of this Company, as amended, be
and hereby are further amended to insert therein immediately after Section
3(B) (5), of the capital stock provisions the following:
"6(a) Designation, Amount and Dividends. The sixth series of
Cumulative Preferred Stock, $100 par value, shall be designated
"Cumulative Preferred Stock, 9.90% Series"; the number of
shares of such series shall be 150,000 shares; and the annual
dividend rate per share for such series shall be $9.90 per
share, accruing and cumulative from and after the date of issue
of said shares. Dividends paid on the shares of Cumulative
Preferred Stock, 9.90% Series in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro-rata on a share-by-share basis
among all such shares at the time outstanding.
Note: Votes for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc. Continuation sheets
must have a left-hand margin 1 inch wide for binding and shall be 8 1/2" x 11."
Only one side should be used. ===========
94
2A
(b) Certain Restrictions. Whenever the Corporation has not met all
obligations matured at such time with respect to mandatory redemptions of
Cumulative Preferred Stock, 9.90% Series as hereinafter provided in this
Subsection (B)(6), thereafter and until all obligations of the Corporation
matured with respect to mandatory redemptions of Cumulative Preferred Stock,
9.90% Series shall have been paid in full, the Corporation shall not pay
dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of common stock or other stock
of the Corporation junior to the Cumulative Preferred Stock, 9.90% Series.
(c) Mandatory Redemption. On July 1, 1995 and on July 1 of each year
thereafter through and including July 1, 2013 and on the maturity date, July 1,
2014, the Corporation shall, so long as any of the shares of Cumulative
Preferred Stock, 9.90% Series remain outstanding, set apart out of its funds
lawfully available for such purpose for the redemption of the Cumulative
Preferred Stock 9.90% Series, that sum in cash which shall be sufficient to
redeem, at a price per share equal to $100 plus all accrued and unpaid
cumulative dividends thereon (whether or not declared or earned) to the date
fixed for such redemption, the lessor of (x) 7,500 shares of Cumulative
Preferred Stock, 9.90% Series or (y) the total number of shares of the
Cumulative Preferred Stock, 9.90% Series at the time outstanding.
The amounts so set apart pursuant to the preceding paragraph shall be applied
by the Corporation, on the respective dates aforesaid, to the redemption
(upon the notice and otherwise in the manner hereinafter specified) of the
maximum number of whole shares of Cumulative Preferred Stock, 9.90% Series
redeemable from such amount so set apart at the price specified in the
preceding paragraph.
The redemptions required under the two preceding paragraphs on any July 1 shall
be made from the holders of record of shares of the Cumulative Preferred Stock,
9.90% Series at the close of business on the record date for the payment of the
quarterly dividend payable on such July 1, and shall be made, as nearly as may
be practical and without the purchase of fractional shares, so that the number
of shares redeemed on any July 1 from each such holder of record shall equal
but not exceed that number of shares which bears the same ratio to the
aggregate number of shares of such series to be redeemed as the number of
shares so held of record by such holder bears to the total number of shares of
such series outstanding on such record date.
On or before June 1 of each year, commencing June 1, 1995, the Corporation
will call for redemption the number of shares of the Cumulative Preferred
Stock, 9.90% Series to be redeemed as aforesaid on the next following July 1
and will mail, postage prepaid, to each holder of record of shares of such
series at their respective addresses as the same shall appear on the books of
the Corporation or its transfer agent, written notice of the Corporation's
intent to redeem shares from such holder on such July 1. If such notice of
redemption shall have been so mailed, and if on or before the July 1 specified
in such notice, all funds necessary for such redemption shall have been set
aside by the Corporation, separate and apart from its other funds, in trust for
the account of holders of the shares so to be redeemed, so as to be and
continue to be available therefor, then, on and after such July 1 and upon
delivery to the holders of the amounts due on account of such redemption,
notwithstanding that any certificate representing the shares of Cumulative
Preferred Stock, 9.90% Series, so called for redemption shall not have been
surrendered for cancellation, the shares so called shall no longer be deemed
outstanding, the right to receive dividends thereon shall cease to accrue, and
all rights with respect to such shares, so called for redemption shall
forthwith cease and terminate, except only the right of the holders thereof to
receive, out of the funds so set aside in trust, the amount payable with
respect to the redemption of such shares. All shares so redeemed shall be
cancelled and shall not be reissued.
The obligation of the Corporation to redeem shares of Cumulative Preferred
Stock, 9.90% Series pursuant to this Subsection (B)(6)(c) shall be cumulative
so that if the full number of shares required to be redeemed as aforesaid on
any July 1 shall not be so redeemed, the deficiency shall be made good
thereafter as and when funds shall become lawfully available therefor. The
Corporation's election to optionally redeem shares of Cumulative Preferred
Stock, 9.90% Series pursuant to the provisions of Subsection (B)(6)(d) and
Subsection (B)(6)(e) shall not affect its obligations to redeem shares pursuant
to the requirements of this Subsection (B)(6)(c) as set forth herein.
95
2B
(d) Optional Redemptions Without Premium. In addition to the
redemptions required by Subsection (B)(6)(c) above and the optional
redemptions permitted by Subsection (B)(6)(e) below, the Corporation shall have
the option (upon the notice and otherwise in the manner set forth in these
Articles of Organization) to redeem shares of Cumulative Preferred Stock, 9.90%
Series on July 1, 1995 and on July 1 of each year thereafter through and
including July 1, 2013 at a redemption price of $100 per share, plus, in each
case, all accrued and unpaid cumulative dividends thereon (whether or not
declared or earned) to the date fixed for redemption; provided, however, that
(i) the number of shares redeemable pursuant to this paragraph on any such July
1 shall not exceed the lesser of (x) 7,500 shares or (y) the number of shares
of such series redeemed on such date pursuant to the provisions of Subsection
(B)(6)(c), and (ii) the right of optional redemption contained in this
paragraph shall be non-cumulative.
(e) Optional Redemptions With Premium. In addition to the mandatory
redemptions required by Subsection (B)(6)(c) above and the optional
redemptions permitted by the preceding paragraph, the Cumulative Preferred
Stock, 9.90% Series shall be redeemable in whole or in part as follows:
(1) At any time prior to July 1, 1994 at a redemption price
equal to the greater of (a) $109.90 per share, plus all dividends
accrued thereon (whether or not declared or earned) to the date fixed for
redemption, or (b) the sum of (i) $100 per share, (ii) all dividends accrued
thereon (whether or not declared or earned) to the date fixed for redemption,
plus (iii) a premium equal to the Make-Whole Premium.
For purposes of this subparagraph (e)(1), "Make-Whole Premium" shall
mean with respect to any optional redemption the product of (i) the excess, if
any, of (A) the present value as of the date of, but immediately prior to, such
redemption of the remaining scheduled mandatory redemptions provided for in
Subsection (B)(6)(c) at an aggregate amount determined on the basis of $100 per
share and the aggregate amount of the remaining scheduled dividends (including
any dividends accrued) on the Cumulative Preferred Stock, 9.90% Series
(determined by discounting such amounts on a quarterly compounded basis at the
"Reinvestment Yield" from the respective dates on which such mandatory
redemptions and dividend payments would have been payable without regard to
such optional redemption) over (B) the product of (1) $100 per share multiplied
by (2) the total number of shares of Cumulative Preferred Stock, 9.90% Series
then outstanding plus dividends accrued thereon to the date fixed for
redemption times (ii) a fraction, the numerator of which is the total number of
shares of Cumulative Preferred Stock, 9.90% Series to be redeemed on such date
pursuant to this subparagraph (e)(1) and the denominator of which is the total
number of shares of Cumulative Preferred Stock, 9.90% Series outstanding
immediately prior to such optional redemption.
For purposes of this subparagraph (e)(1), "Reinvestment Yield" shall
mean the lesser of (A) 9.90% or (B) the arithmetic mean of the two most recent
weekly average yields to maturity for actively traded marketable U.S. Treasury
fixed interest securities (adjusted to constant maturities as hereinafter
provided equal to the remaining Weighted Average Life of the Cumulative
Preferred Stock, 9.90% Series as of the date fixed for redemption of the
Cumulative Preferred Stock, 9.90% Series), as published by the Federal Reserve
Board in its Statistical Release H.15 (519) for the two calendar weeks ending
on the Saturday next preceding such date or, if such average is not published
for such period, of a reasonably comparable index designated by the holder or
holders of at least 75% of the shares of the Cumulative Preferred Stock, 9.90%
Series to be redeemed for such period. If no maturity exactly corresponds to
such remaining Weighted Average Life, yields for the two most closely
corresponding published maturities shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Yield shall be interpolated
from such yields on a straight-line basis, rounding in each of such relevant
periods to the nearest months.
The "Weighted Average Life" of the Cumulative Preferred Stock, 9.90%
Series shall mean as of the time of the determination thereof the number of
years obtained by dividing the then Remaining Dollar-years of the Cumulative
Preferred Stock, 9.90% Series by an amount equal to the product of $100
multiplied by the total number of shares of Cumulative Preferred Stock, 9.90%
Series then outstanding. The term "Remaining Dollar-years" of the Cumulative
Preferred Stock, 9.90% Series means the amount obtained by (1) multiplying (A)
the amount payable at $100 per share to make each mandatory redemption of
Cumulative Preferred Stock, 9.90% Series, by (B) the number of years
(calculated at the nearest one-twelfth) which will elapse between the date of
determination of the Weighted Average Life of the Cumulative Preferred Stock,
9.90% Series and the date of that mandatory redemption and (2) totaling all the
products obtained in the computation pursuant to clause (1).
96
2C
(2) At any time on or after July 1, 1994 at price per share
as follows:
If Redeemed During
the Twelve Month Optional
Period Beginning July 1 Redemption Price
- -------------------------- ------------------
1994 $107.84
1995 $107.43
1996 $107.01
1997 $106.60
1998 $106.19
1999 $105.78
2000 $105.36
2001 $104.95
2002 $104.54
2003 $104.13
2004 $103.71
2005 $103.30
2006 $102.89
2007 $102.48
2008 $102.06
2009 $101.65
2010 $101.24
2011 $100.83
2012 $100.41
2013 $100.00
<FN>
Plus, in each case, all accrued and unpaid cumulative dividends
thereon (whether or not declared or earned) to the date fixed for
redemption.
(f) Liquidation. Dissolution or Winding Up.
(1) Upon any voluntary liquidation, dissolution or winding up of
the Corporation, the amount payable on each share of Cumulative Preferred
Stock, 9.90% Series shall be the amount per share which would be payable
if the Corporation then had elected to redeem the Cumulative Preferred
Stock, 9.90% Series pursuant to Subsection (B)(6)(e) hereof.
(2) Upon any involuntary liquidation, dissolution or winding
up of the Corporation, the amount payable on each share of Cumulative
Preferred Stock, 9.90% Series shall be $100 per share plus all dividends
accrued thereon (whether or not declared or earned) to the date fixed
for distribution.
97
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 15th day of March , in
the year 1989.
/s/ Roger A. Young ,President
/s/ J.J. Flanagan III ,Clerk
98
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
Chapter 164, Section 8B)
I hereby approve the within certificate and,
filing fee in the amount of $100.00
having been paid, said certificate is
hereby filed with me this 15th
day of March , 1989 .
/s/ Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: James J. Flanagan III
Treasurer
Bay State Gas Company
120 Royall Street
Canton, MA 02021
Copy Mailed
99
(Initialed)
- -----------
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
__________________
We, Roger A. Young , President and
James J. Flanagan III , Clerk of
BAY STATE GAS COMPANY
- --------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021,
----------------------------------------------------------------
do hereby certify that the following amendment to the articles of
organization of the corporation was duly adopted at a meeting held
on January 26 , 1989 , by vote of
4,982,403 shares of Common out of 6,050,313 shares outstanding, being at
- ----------- -------- ---------
(Class of Stock)
least a majority of each class outstanding and entitled to vote thereon1:
VOTED:That the Articles of Organization of the Company be amended to
increase the authorized capital stock of this Company by $25,000,000 by
increasing the number of authorized shares of Common Stock, $5 par
value, by 5,000,000 shares, thereby increasing the total number of
shares for all classes of stock which the Company has authority to issue
from 7,350,000 to 12,350,000, of which 12,000,000 shall be shares of
Common Stock, $5 par value; 150,000 shall be shares of Cumulative
Preferred Stock, $50 par value; and 200,000 shall be shares of
Cumulative Preferred Stock, $100 par value.
1 For amendments adopted pursuant to Chapter 156B, Section 70.
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
100
The total amount of capital stock
already authorized is 150,000 shares preferred, $50 par value
200,000 shares preferred, $100 par value
7,000,000 shares common, $5 par value
The total amount of capital stock
already issued is 58,255 shares preferred, $50 par value
30,962 shares preferred, $100 par value
6,064,041 shares common, $5 par value
The amount of the increase of the
authorized capital stock is 5,000,000 common, $5 par value
The amount of the authorized 150,000 preferred, $50 par value
capital stock after increase is 200,000 preferred, $100 par value
12,000,000 common, $5 par value
<FN>
NOTE: None of the authorized shares of Common Stock, $10 par value of the
Company will be issued without receiving prior written approval from the
Massachusetts Department of Public Utilities.
101
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 15th day of March , in the year 1989.
/s/Roger A. Young President
- ---------------------------------------------------
/s/James J. Flanagan, III Clerk
- ---------------------------------------------------
102
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $25,000.00
having been paid, said articles are deemed to have
been filed with me this 15th
day of March , 1989.
/s/ Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
James J. Flanagan, III
--------------------------------------
Treasurer
--------------------------------------
Bay State Gas Company
--------------------------------------
120 Royall Street, Canton, MA 02021
--------------------------------------
Telephone 617-828-8650
-----------------------------
Copy Mailed
103
(Initialed)
- -----------
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
__________________
We, Roger A. Young , President and
James J. Flanagan III , Clerk
BAY STATE GAS COMPANY
- -------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, Massachusetts 02021,
---------------------------------------------------------------
do hereby certify that the following amendment to the articles of
organization of the corporation was duly adopted at a meeting
held on January 26 , 1989 , by vote of
4,850,967 shares of Common out of 6,050,313 shares outstanding, being at
- ---------- --------- -----------
(Class of Stock)
least a majority of each class outstanding and entitled to vote thereon1:
VOTED: That, in accordance with the provisions of Chapter 164 of
the General Laws of The Commonwealth of Massachusetts, as
amended, the par value of the Common Stock of this Company be
changed, subject to the approval of the Massachusetts Department
of Public Utilities (the "DPU"), from $5 to $3.33 1/3 per share,
so that the authorized Common Stock of this Company, which will
be in the amount of $60,000,000 consisting of 12,000,000
shares, $5 par value per share, shall become $60,000,000
consisting of 18,000,000 shares, $3.33 1/3 par value per share;
and further
1 For amendments adopted pursuant to Chapter 156B, Section 70.
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
104
VOTED:That in order to accomplish the foregoing, the President or any Vice
President and the Clerk or any Assistant Clerk of the Company be and they
are, and each of them singly is, hereby authorized in the name and on behalf of
this Company to execute appropriate Articles of Amendment of the Articles of
Organization of the Company under Chapter 164, Section 8B, of the General Laws
of The Commonwealth of Massachusetts and, subsequent to the approval of the
DPU, to cause the same to be filed with the Secretary of said Commonwealth and
with the DPU.
(NOTE: Approval by DPU was received on April 26, 1989 in Docket
DPU 89-46 with respect to the foregoing.)
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the
General Laws unless these articles specify, in accordance with the
vote adopting the amendment, a later effective date not more than
thirty days after such filing, in which event the amendment will
become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 18th day of May, in the year 1989
/s/Roger A. Young President/Vice President
---------------------------------------
/s/James J. Flanagan, III Clerk/Assistant Clerk
---------------------------------------
105
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $100.00
having been paid, said articles are deemed to have
been filed with me this 18th
day of May , 1989 .
/s/Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
James J. Flanagan, III, Treasurer
------------------------------------
Bay State Gas Company
------------------------------------
120 Royall Street, Canton, MA 02021
------------------------------------
Telephone 617-828-8650
---------------------------
Copy Mailed
106
(Initialed)
- -----------
Examiner The Commonwealth of Massachusetts
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
INCREASE OF CAPITAL
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
__________________
We, Roger A. Young , President and
James J. Flanagan III , Clerk of
BAY STATE GAS COMPANY
- ------------------------------------------------------------------------
(Name of Corporation)
located at 120 Royall Street, Canton, MA 02021
-------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting
held on January 25 ,1990 , by vote of
7,719,718 shares of Common out of 10,279,450 shares outstanding, being at
- ------------ ---------- -------------
(Class of Stock)
least a majority of each class outstanding and entitled to vote thereon:1
VOTED: That the Articles of Organization of the Company be
amended to increase the authorized capital stock of this Company
by $60,000,000 by increasing the number of authorized shares of
Common Stock, $3.33 1/3 par value, by 18,000,000 shares, thereby
increasing the total number of shares of all classes of stock
which the Company has authority to issue from 18,350,000 to
36,350,000, of which 36,000,000 shall be shares of Common Stock,
$3.33 1/3 par value; 150,000 shall be shares of Cumulative
Preferred Stock, $50 par value; and 200,000 shall be shares of
Cumulative Preferred Stock, $100 par value.
1 For amendments adopted pursuant to Chapter 156B, Section 70.
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch for binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
107
The total amount of capital stock 150,000 shares preferred, $50 par value
already authorized is 200,000 shares preferred, $100 par value
18,000,000 shares common, $3.33 1/3 par value
The total amount of capital stock 56,546 shares preferred, $50 par value
already outstanding is 180,561 shares preferred, $100 par value
10,308,398 shares common, $3.33 1/3 par value
The amount of the increase of the 18,000,000 shares common, $3.33 1/3 par value
authorized capital stock is
The amount of the authorized 150,000 shares preferred, $50 par value
capital stock after increase is 200,000 shares preferred, $100 par value
36,000,000 shares common, 3.33 1/3
<FN>
NOTE: None of the authorized shares of Common Stock, $3.33 1/3
par value of the Company will be issued without receiving prior
written approval from the Massachusetts Department of Public
Utilities. All shares of Common Stock outstanding are as at
2/28/90.
108
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 13th day of March , in the year 1990.
/s/Roger A. Young President
- --------------------------------------------------------
/s/James J. Flanagan, III Clerk
- --------------------------------------------------------
109
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $60,000.00
having been paid, said articles are deemed to have
been filed with me this 15th
day of March , 1990 .
/s/Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
James J. Flanagan, III
----------------------------------------
Bay State Gas Company
----------------------------------------
120 Royall Street, Canton, MA 02021
----------------------------------------
Telephone 617-828-8650
-------------------------------
Copy Mailed
110
The Commonwealth of Massachusetts
- ------------------
Examiner OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
WILLIAM FRANCIS GALVIN, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
FEDERAL IDENTIFICATION
NO: 04-2548120
-------------------
General Laws, Chapter 164, Section 8B
Executive
We, Thomas W. Sherman , Vice President, and
Charles H. Tenney III , Clerk of
Bay State Gas Company
- ------------------------------------------------------------------------------
(EXACT Name of Corporation)
located at: 300 Friberg Parkway; Westborough, Massachusetts 01581
do hereby certify that the following amendment to the ARTICLES OF
AMENDMENT affect Articles NUMBERED: V
---------
- ------------------------------------------------------------------------------
(Number those articles 1,2,3,4,5 and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting
held on Jan. 26 , 1995, by vote of
----------------
9,861,896 shares of common .out of 13,337,794 shares outstanding,
- ---------- --------- -------------
type, class & series, (if any)
being at least two-thirds of each class outstanding and entitled
to vote thereon:
VOTED: That Article V of the Agreement and Plan of
Consolidation dated as of August 28, 1974, between Brockton
Taunton Gas Company, a Massachusetts corporation, and Bay State
Gas Company, a Massachusetts corporation, which Agreement forms
part of the Articles of Organization of Bay State Gas Company
(the "Company"), is hereby amended by deleting said Article V
from the Articles of Organization of the Company.
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
111
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of The General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
LATER EFFECTIVE DATE: ___________________________.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this 26th day of January , in the year 1995 .
/s/Thomas W. Sherman ,Executive Vice President
/s/Charles H. Tenney III ,Clerk
112
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
===========================================================================
I hereby approve the within articles of amendment
and, the filing fee in the amount of $
having been paid, said articles are deemed to have
been filed with me this 26th
day of January , 1995 .
WILLIAM FRANCIS GALVIN
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT
TO: Charles H. Tenney III
Bay State Gas Company
300 Friberg Parkway
Westborough, MA 01581
Telephone: (508) 836-7000
113
The Commonwealth of Massachusetts
- ------------
Examiner OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
WILLIAM FRANCIS GALVIN, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
FEDERAL IDENTIFICATION
NO: 04-2548120
-----------
General Laws, Chapter 164, Section 8B
Executive
We, Thomas W. Sherman , Vice President, and
Charles H. Tenney III , Clerk of
Bay State Gas Company
- --------------------------------------------------------------------------
(EXACT Name of Corporation)
located at: 300 Friberg Parkway; Westborough, Massachusetts 01581
---------------------------------------------------------------
(MASSACHUSETTS Address of Corporation)
do hereby certify that the following amendment to the ARTICLES OF AMENDMENT
affect Articles NUMBERED: III
-----
- ---------------------------------------------------------------------------
(Number those articles 1,2,3,4,5 and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting
held on Jan. 26 , 1995, by vote of
11,029,753 shares of common out of 13,337,794 shares outstanding,
- ----------- -------- ------------
type, class & series, (if any)
being at least two-thirds of each class outstanding and entitled
to vote thereon:
VOTED: That the Articles or Organization of this Company as
amended be and hereby are further amended by the addition of the
following paragraph to Article III of such Articles or
Organization:
"The Corporation shall also have the authority to carry on any
business or other activity itself, through a wholly or partially
Note: If the space provided under any Amendment or item on this
form is insufficient, additions shall be set forth on separate
8, x 11 sheets of paper leaving a left hand margin of at least 1
inch of binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring
each such addition is clearly indicated.
114
owned subsidiary or affiliate, or as a joint venture with, partner of, as
an investor in, or any other arrangement with any other corporation, trust,
firm, entity or individual which may be lawfully carried on by a corporation
organized under Chapter 164 of the General Laws of Massachusetts whether or not
related or connected to those objectives and purposes specifically referred to
herein."
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of The General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
LATER EFFECTIVE DATE: ___________________________.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 26th day of January , in the year 1995 .
/s/Thomas W. Sherman ,Executive Vice President
/s/Charles H. Tenney III ,Clerk
115
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
=============================================================================
I hereby approve the within articles of amendment
and, the filing fee in the amount of $
having been paid, said articles are deemed to have
been filed with me this 26th
day of January , 1995 .
WILLIAM FRANCIS GALVIN
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT
TO: Charles H. Tenney III
Bay State Gas Company
300 Friberg Parkway
Westborough, MA 01581
Telephone: (508) 836-7000