<PAGE> 1
As filed with the Securities and Exchange Commission on October 1, 1997.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAY STATE GAS COMPANY
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2548120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
300 FRIBERG PARKWAY, WESTBOROUGH, MASSACHUSETTS 01581
(Address of principal executive office, including zip code)
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BAY STATE GAS COMPANY
STOCK PERFORMANCE SHARING PLAN
(Full title of the plan)
Thomas W. Sherman
BAY STATE GAS COMPANY
300 Friberg Parkway
Westborough, Massachusetts 01581
(508) 836-7000
(Name, address, and telephone number, including area code, of agent
for service)
Copies to:
DAVID S. BALABON, ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
260 Franklin Street
Boston, Massachusetts 02110
(617) 439-9500
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================
PROPOSED PROPOSED
TITLE OF AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
SECURITIES BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 $29.22 $14,610,000 $4,428
$3.33 1/3 par value shares
==============================================================================================
</TABLE>
(1) IN ADDITION, THIS REGISTRATION STATEMENT COVERS AN INDETERMINATE NUMBER OF
ADDITIONAL SHARES OF COMMON STOCK WHICH MAY BE ISSUED UNDER SUCH PLAN AS A
RESULT OF STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR TRANSACTIONS IN ACCORDANCE
WITH THE PROVISIONS OF SUCH PLAN.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(h) UNDER THE SECURITIES ACT OF 1933 ON THE BASIS OF THE
AVERAGE OF THE HIGH AND LOW PRICES OF THE COMMON STOCK AS REPORTED BY THE NEW
YORK STOCK EXCHANGE ON SEPTEMBER 24, 1997, WHICH DATE IS WITHIN FIVE(5) BUSINESS
DAYS OF THE FILING HEREOF.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
this Form S-8 and the statement of availability of information of Bay State Gas
Company (the "Company" or the "Registrant"), and other information required by
Item 2 of this Form will be sent or given to employees as specified by Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428 and the requirements of Part 1 of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. The Company shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the Company shall furnish to the Commission or its staff a copy of any
or all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Bay State
Gas Company (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
(e) The Company's Current Report on Form 8-K dated July 1, 1997.
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, File No. 1-7479, filed with the
Commission pursuant to Section 12 of the Exchange Act, and any amendment or
report filed with the Commission for the purpose of updating such description.
<PAGE> 3
(g) All other reports filed by the Company with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act since the end of
the fiscal year covered by the Registrant's Annual Report referred to above.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment that indicates that all securities offered
hereby have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby has been passed
upon by LeBoeuf, Lamb, Greene & MacRae, L.L.P., Boston, Massachusetts, legal
counsel to the Company. Douglas W. Hawes, whose professional corporation is a
partner of LeBoeuf, Lamb, Greene & MacRae, L.L.P., is a director of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees, and other agents of another
organization, or who serve at its request in any capacity with respect to any
employee benefit plan, may be provided by the corporation to whatever extent
specified in its charter documents or votes adopted by its shareholders, except
that no indemnification may be provided for any person with respect to any
matter as to which the person shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in the
best interests of the corporation, or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan. Under Massachusetts
law, a corporation can purchase and maintain insurance on behalf of any person
against any liability incurred as a director, officer, employee, agent, or
person serving at the request of the corporation as a director, officer,
employee, or other agent of another organization or with respect to any employee
benefit plan, in his capacity as such, whether or not the corporation would have
power to itself indemnify him against such liability.
The Company's Articles of Organization provide that its directors shall
not be personally liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director notwithstanding any provision of law
imposing such liability; provided, however, that this provision does not
eliminate the liability of a director, to the extent that such liability is
provided
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<PAGE> 4
by applicable law, (i) for any breach of the director's duty of loyalty to the
Company 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 stockholders at a time when the Company is
insolvent; (iv) for approving certain loans to officers or directors of the
Company 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.
In addition, the Company holds a directors and officers liability and
corporate indemnification policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO.
-------
4.1 Bay State Gas Company Stock Performance Sharing Plan.
4.2 Articles of Organization of the Company, as amended (filed as
Exhibit 3.1 to the Company's Form 10-Q dated February 9, 1995
(File No. 1-7479), and incorporated herein by reference).
4.3 By-Laws of the Company.
4.4 Form of Common Stock Certificate.
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23.1 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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<PAGE> 5
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a) (1)(i) and (a) (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Westborough, Massachusetts, on this 25th day of
September, 1997.
BAY STATE GAS COMPANY
By: /s/ Thomas W. Sherman
----------------------------------
Thomas W. Sherman
Executive Vice President,
Treasurer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Roger A. Young Chairman of the Board of September 25, 1997
- ------------------------- Directors and Director
Roger A. Young (Principal Executive Officer)
/s/ Joel L. Singer President and Director September 25, 1997
- -------------------------
Joel L. Singer
/s/ Thomas W. Sherman Executive Vice President, September 25, 1997
- ------------------------- Treasurer and Director
Thomas W. Sherman (Principal Financial and
Accounting Officer)
/s/ Lawrence J. Finnegan Director September 25, 1997
- -------------------------
Lawrence J. Finnegan
/s/ Douglas W. Hawes Director September 25, 1997
- -------------------------
Douglas W. Hawes
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<PAGE> 7
Signature Title Date
- --------- ----- ----
/s/ Walter C. Ivancevic Director September 25, 1997
- --------------------------
Walter C. Ivancevic
/s/ John H. Larson Director September 25, 1997
- --------------------------
John H. Larson
/s/ Jack E. McGregor Director September 25, 1997
- --------------------------
Jack E. McGregor
/s/ Daniel J. Murphy III Director September 25, 1997
- --------------------------
Daniel J. Murphy III
/s/ George W. Sarney Director September 25, 1997
- --------------------------
George W. Sarney
/s/ Charles H. Tenney II Director September 25, 1997
- --------------------------
Charles H. Tenney II
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<PAGE> 8
EXHIBIT INDEX
Exhibit
No. Title of Exhibit Page No.
- ------- ---------------- --------
4.1 Bay State Gas Company Stock Performance Sharing Plan.
4.2 Articles of Organization of the Company, as
amended (filed as Exhibit 3.1 to the Company's
Form 10-Q dated February 9, 1995 (File No. 1-7479),
and incorporated herein by reference).
4.3 By-Laws of the Company.
4.4 Form of Common Stock Certificate.
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23.1 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
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<PAGE> 1
BAY STATE GAS COMPANY
STOCK PERFORMANCE SHARING PLAN
Amended And Restated Effective As Of October 1, 1997
<PAGE> 2
AMENDED AND RESTATED
BAY STATE GAS COMPANY
STOCK PERFORMANCE SHARING PLAN
Amended and Restated Effective as of October 1, 1997
1. Background and Purposes of the Plan
Bay State Gas Company (the "Company") adopted the Bay State Gas Company
Key Employee Long-Term Incentive Plan, as most recently amended and restated on
October 1, 1996 ("KELTIP") to provide long-term incentives and to increase the
opportunity for ownership of stock in the Company by those employees of the
Company and its affiliated companies who are directly responsible for the
management, growth and success of the Company's business.
Effective October 1, 1997, the KELTIP was amended and restated as the
Bay State Gas Company Stock Performance Sharing Plan (the "Plan"). In addition
to providing the incentives and opportunity enhancements fostered by the KELTIP,
the Plan is intended to achieve the following three goals by providing long-term
stock-based incentives to employees who contribute directly to the Company's
success and advancement of the Company's legitimate interests: (1) align the
interests of Company employees and shareholders; (2) encourage superior
employment performance; and (3) stimulate employee teamwork and commitment.
2. Administration of the Plan
The Plan shall be administered by the Compensation Committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board"),
which shall consist of two or more members of the Board who qualify as
disinterested persons, within the meaning of rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and as outside
directors, within the meaning of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"). No member of the Committee shall be eligible to
receive an award under the Plan.
The Committee shall act by a majority of its members, without the
necessity of a meeting. The Committee shall have full power, discretion and
authority to interpret and administer the Plan, and any interpretation or other
determination made, and any action taken, by the Committee shall be conclusive
and binding on all persons having an interest under the Plan, except as
otherwise determined by the Board.
The Committee shall (a) determine the number of participants eligible
for participation and, subject to the provisions of Section 3 hereof, the
criteria for such participation, (b) determine the number of shares to award to
each participant, provided however that the Committee shall not award any shares
to an officer of the Company without prior Board
<PAGE> 3
approval, and (c) set the maximum number of shares to be awarded under the Plan
and the performance measures; provided, however, that fifty percent of the
target Performance Shares shall vest if the Company's total return is in the
33rd or greater percentile of the group of companies to which the Company is
compared, unless the Board determines otherwise. The details of the goals and
measures of the Plan shall be established by the Committee.
All rights, powers, duties and responsibilities granted to the
Committee under this Plan may be delegated, in whole or in part, by the
Committee to the Company's Leader of Culture Development or to such other
person(s) as the Committee may deem appropriate, provided however that such
delegation(s) shall be ineffective to the extent, but only to the extent, that
such delegation(s) would result in adverse consequences under the provisions of
Rule 16b-3 of the Exchange Act and/or Section 162(m) of the Code.
3. Participation
All employees of the Company and it affiliated companies who meet such
criteria for participation in the Plan as shall be established from time to time
by the Committee, shall be eligible to participate in the Plan, provided
however, that in no event shall the Committee establish criteria or approve or
deny participant status to individuals in violation of any applicable federal or
state law.
4. Performance Shares
The maximum number of performance shares ("Performance Shares") which
may be awarded under the Plan is 500,000. Each Performance Share shall, upon
vesting in accordance with the provisions of the Plan, be exchangeable for (i) a
cash payment in an amount equal to the closing price for the Company's common
stock par value $3.33 1/3 per share ("Common Stock") as reported for trades on
the New York Stock Exchange on the last day on which such trades took place
immediately preceding the date of vesting (the "Exchange Price"), but in no
event shall such cash payment be less than the par value of such common stock,
which cash payment shall only be made on the condition that the participant
receiving such cash payment immediately invest all of such cash payment in
shares of Common Stock, which the Company shall make available to such
participant at a per share price equal to the Exchange Price, without brokerage
or other commissions of any kind, and (ii) an additional cash payment equal to
the dividends which would have been paid on all such shares of Common Stock if
owned by the participant during the performance period, as defined below. The
award of Performance Shares shall not entitle a participant to any rights as a
shareholder of the Company.
5. Grant of Awards
The Committee shall grant awards of Performance Shares to the selected
employees, who shall then become participants in the Plan, as of October 1 of
each year from
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<PAGE> 4
1994 through 2003, inclusive. Performance Shares awarded to any one employee
shall not exceed 100,000 in the aggregate for the period the Plan is in effect.
In no event shall awards be granted to participating employees with respect to
any period for which the employee (i) received a performance rating of less than
3.0 (or its successor standard(s)), unless such requirement is waived by the
Committee, on a general or individual basis, after due deliberation, (ii) is
subject to disciplinary action, as determined by the Compensation Committee, or
(iii) is deemed by the Compensation Committee to have engaged in conduct
contrary or harmful to the interests of the Company.
6. Vesting
The Performance Shares awarded to a participant in any year shall vest
at the end of the three-consecutive year period beginning on the date the award
is granted (a "Performance Period"), depending on the Company's total return to
shareholders for the Performance Period, as determined by the Committee.
Except as otherwise provided in Section 7, if a participant terminates
employment with the Company and/or its affiliates, voluntarily or involuntarily,
or is otherwise inactive (as determined by the Committee) as of the date his or
her Performance Shares would otherwise vest, he or she shall forfeit all
Performance Shares awarded for the Performance Period in which the termination
of employment occurs or inactive status arises.
7. Retirement, Disability, Death or Termination of Participant
In the event a participant terminates employment by reason of
retirement, disability or death, the participant shall be entitled to payment of
a portion of the Performance Shares awarded to him or her for the Performance
Period in which the termination occurs. Such portion shall be equal to the
portion of the Performance Period for which the employee was employed by the
Company or an affiliate, except that, in the case of a participant's disability
or death, the Company's total return to shareholders shall be determined as of
the last day of the month in which participant's disability or death, as the
case may be, occurs.
A participant whose employment is terminated for any reason other than
retirement, disability or death shall forfeit any award granted with respect to
the year of such termination. Without limiting the foregoing, effective October
1, 1997, a participant who is not actively employed, as determined by the
Compensation Committee, as of the date awards are granted for any Performance
Period and who is not entitled to a portion of such award based on retirement,
disability or death during the Performance Period shall not be eligible to
receive an award with respect to such period.
A participant may designate a beneficiary or revoke a beneficiary
designation, at any time. Such designation or revocation must be in writing and
received by the Culture Development Group to be effective. In absence of a
designation of a beneficiary, a deceased participant's award will be paid to the
participant's estate.
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<PAGE> 5
For purposes of the Plan, disability means the complete and permanent
inability of a participant to perform the participant's duties under the terms
of employment. The determination of disability and the date thereof shall be
made by the Committee in its sole discretion, on the basis of evidence,
including medical examinations and reports, satisfactory to the Committee.
8. Change of Control
In the event of a change of control of the Company, as defined in this
Section 8, each Participant shall be entitled to payment of fifty percent of the
Performance Shares awarded to him or her for the Performance Period in which the
change of control occurs. A change of control shall be considered to have
occurred if:
(a) any person, entity or group of persons (other than the Company or
any wholly-owned subsidiary of the Company), within the meaning of sections
13(d) or 14(d) of the Exchange Act, becomes the beneficial owner, within the
meaning of Rule 13d-3 promulgated under such Act, directly or indirectly, of
twenty-five percent or more of the Company's then outstanding shares of Common
Stock;
(b) any person, entity or group of persons (other than the Company or
any wholly-owned subsidiary of the Company), after purchasing Common Stock of
the Company in a tender or exchange offer, becomes the beneficial owner,
directly or indirectly, of twenty-five percent or more of the Company's then
outstanding shares of Common Stock;
(c) the shareholders of the Company approve (i) a merger or
consolidation of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which the shares of Common Stock would be
converted into cash, securities or other property, or (ii) any sale, lease,
exchange or other transfer of all or substantially all of the Company's assets;
or
(d) there is a change in the majority of the members of the Company's
Board of Directors within a twenty-five month period, unless such change has
been approved by two-thirds of the Directors then still in office who were in
office at the beginning of the twenty-five month period.
9. Payment of Awards
Payment of Performance Shares shall be made to the participant or, in
the event of the participant's death, his or her beneficiary. In the absence of
a designation of a beneficiary, payment shall be made to the participant's
estate on condition that the executor or administrator thereof immediately
invest such cash payment in Common Stock as provided herein. Shares of Common
Stock into which the cash payment made to a participant (or beneficiary) is to
be invested pursuant to the Plan shall be made available from authorized and
unissued shares or treasury shares of the Company.
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<PAGE> 6
The participant (or beneficiary) shall also receive payment in cash of
an amount equal to the dividends paid during the Performance Period on an equal
number of shares of Common Stock.
Payment of Performance Shares and cash shall be made as-soon as
practicable after the event giving rise to the participant's entitlement to
payment.
10. Nontransferability of Awards
Neither Performance Shares nor any interest of a participant under the
Plan shall be sold, transferred, pledged, assigned, disposed of or encumbered,
voluntarily or by operation of law.
11. Compliance with Securities Laws
If at any time the Company determines that the listing, registration or
qualification of Performance Shares or shares of Common Stock issuable pursuant
to an award of Performance Shares on any securities exchange or under any
federal or state law, or the approval of any governmental entity, is necessary
to the issue or transfer of such shares, such Performance shares or shares of
Common Stock may not be accepted unless the listing, registration, qualification
or approval is obtained. However, the Company shall not be required to apply for
or to obtain such listing, registration, qualification or approval.
12. Forfeiture and Cancellation of Shares
Performance Shares awarded to a participant which do not become vested
shall be forfeited and canceled. The Committee may also cancel Performance
Shares with the written consent of the participant to whom the Performance
Shares were awarded. In the event of any cancellation, all rights of the
participant with respect to the canceled Performance Shares shall terminate, and
the Performance Shares shall be available for subsequent award under the Plan.
13. Adjustments
In the event of any recapitalization, reclassification, stock dividend,
stock split, change in par value, merger, consolidation or similar event
involving a change in the capital structure of the Company, the Committee may
make such adjustments in Performance Shares or awards and shares of Common Stock
available for issuance under the Plan, or the terms, conditions or restrictions
on such Performance Shares or awards, as the Committee considers equitable.
-5-
<PAGE> 7
14. Withholding
A participant or beneficiary receiving an award shall pay to the
Company the amount of any taxes required to be withheld with respect thereto or
make provision satisfactory to the Committee for payment of any such taxes no
later than the date of the event creating the tax liability. In the Committee's
discretion, such tax obligations may be paid in whole or in part in shares of
Common Stock retained from the award creating the tax obligation. The Company
shall deduct from awards any taxes required to be withheld on the portion of
such award payable with respect to dividends which would have been paid on the
Common Stock during the Performance Period.
15. Amendment and Termination
The Company at any time may amend or terminate the Plan by action of
the Board of Directors. No amendment shall, without the approval of the
shareholders of the Company, cause the Plan no longer to comply with Rule 16b-3
under the Exchange Act or any listing requirement or no longer to be described
in section 162(m) (4) (C) of the Code. The termination or amendment of the Plan
shall not adversely affect any right or obligation with respect to any award
previously granted to a participant.
16. No Employment or Other Rights
No employee shall have any claim or right to the grant of an award
under the Plan. Neither the Plan nor any action taken by the Company or the
Committee under the Plan shall be construed as giving any employee any right to
be retained in the employ of the Company or any affiliated company.
17. Shareholder Approval
The Plan was approved by the shareholders of the Company at the Annual
Meeting on January 26, 1995. All amendments to the Plan shall be submitted to
the shareholders for approval if so required under Section 16(b) of the Exchange
Act. In the event such approval is not obtained, all awards made thereafter
under the Plan shall be null and void.
18. Effective Date and Duration of Plan
The Plan was adopted by the Board on July 28, 1994, to begin as of
October 1, 1994. The Plan shall remain in effect through the fiscal year ending
September 30, 2004, unless sooner terminated, except that any awards outstanding
at the end of such period shall remain subject to the terms, conditions and
restrictions of the document evidencing the award and the Plan as in effect at
the date of grant of the award.
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<PAGE> 8
19. Governing Law
The Plan shall be governed by the laws of the Commonwealth of
Massachusetts.
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<PAGE> 1
EXHIBIT 4.3
BY-LAWS
OF
BAY STATE GAS COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
The annual meeting of the stockholders of Bay State Gas Company entitled
to vote thereat shall be held on the fourth Thursday in January 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 vote at such 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 (7) nor more than
sixty (60) 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, the holders of record of a majority of the shares
entitled to vote at the meeting, present in person or by proxy, shall constitute
a quorum, but less than a quorum may adjourn the meeting, either sine die or to
a date certain.
At any meeting, each stockholder of the Corporation entitled to vote at
such meeting shall have one vote in person or by proxy for each share of stock
having voting rights registered in his name on the books of the Corporation. A
stockholder may vote through a proxy authorized by a written instrument signed
by the stockholder or by his duly authorized attorney-in-fact. No proxy shall be
valid unless executed within six months previous to the meeting at which it is
used.
ARTICLE II
BOARD OF DIRECTORS
The property, business and affairs of the Corporation shall be managed by
a Board of Directors, and they are hereby vested 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. No Director need be a
stockholder of the Corporation.
Effective May 2, 1996
<PAGE> 2
The Board of Directors shall be comprised of such number of Directors as
shall be fixed by the Board from time to time, but not less than eight nor more
than thirteen. The Board as so comprised shall be divided into three classes
having as nearly equal a number of Directors in each class as possible. The term
of office of each class shall be three years, with the term of office of not
more than one class expiring in any particular year. At each annual meeting of
shareholders, the successors to the class of Directors whose terms expire at
that time shall be elected to serve for terms of three years. In the event of
any increase or decrease in the number of Directors, the additional or
eliminated Directorships shall be so classified or chosen so that all classes of
Directors shall remain or become as nearly equal in number as possible.
Any vacancy occurring in the Board of Directors from the death,
resignation, removal, disqualification or inability to act of any Director, or
from an increase in the size of the Board, may be filled for the unexpired term
of the vacant Directorship by majority vote of the remaining Directors, even if
the number of remaining Directors be less than a quorum, and provided that the
Director so elected by the Board to fill such vacancy shall be subject to
subsequent election by the shareholders of the Corporation at the next annual
meeting of shareholders to serve for the unexpired term of the vacant
Directorship.
The Directors 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; 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.
Meetings of the Board of Directors may be held at any time and place
within The Commonwealth of Massachusetts or elsewhere within the United States
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 participating
therein, or if the members who are absent waive notice by a written instrument
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.
Members of the Board of Directors shall be entitled to such reasonable
compensation for their services as Directors as shall be fixed from time to time
by vote of the Board of Directors and shall also be entitled to reimbursement
for any reasonable expenses incurred in connection with attendance at meetings
thereof. The compensation of Directors may be on such basis as shall be
determined in the vote of the Board relating thereto.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by vote or votes duly adopted, may appoint such
committees as said Board may deem appropriate. Each committee shall consist of
three (3) or more members of the Board of Directors and shall have and may
exercise such powers and authority as shall be conferred or authorized by the
vote(s) establishing it and as allowed by law. Each committee shall have such
name as may be determined by the vote(s) establishing it. The existence of any
committee may be terminated, or its powers and authority modified, at any time
by vote of the
2
<PAGE> 3
Board of Directors. Members of each committee shall be entitled to receive a fee
for attendance at meetings thereof as shall be provided or authorized by the
vote(s) establishing it, and all members of each committee shall be entitled to
reimbursement for expenses incurred in connection with attendance at meetings
thereof.
Each committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required. Unless otherwise determined by
the Board of Directors, each committee may appoint a chairman and a secretary
and such other officers of the committee as it may deem advisable and may
determine (a) the time and place of holding each meeting thereof, (b) the notice
of meetings to be given to members and (c) all other procedural questions which
may arise in connection with the work of such committee.
ARTICLE IV
OFFICERS
The officers of the Corporation shall be a Chairman of the Board of
Directors, a President, one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers, a Clerk, any Assistant Clerk, a Controller and such other
officers and agents as the Directors may from time to time authorize. No officer
need be a stockholder of the Corporation.
All officers of the Corporation shall be elected, chosen or appointed by
the Board of Directors at its first meeting after the annual meeting of
stockholders, or special meeting held in lieu thereof. Each of said officers so
elected, chosen or appointed shall hold his office until the first meeting of
Directors after the next annual meeting of stockholders, or special meeting in
lieu thereof, and until his successor shall have been chosen and qualified, or
until his death, resignation or removal.
Any officer may be removed from office, with or without cause, at any
time by the affirmative vote of a majority of the Board of Directors.
ARTICLE V
CHAIRMAN OF THE BOARD OF DIRECTORS
PRESIDENT
The Chairman of the Board of Directors and the President shall be chosen
from among the members of the Board of Directors.
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.
3
<PAGE> 4
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; and shall attend all meetings of the stockholders and
the Board of Directors, keep accurate records thereof and perform all other
duties incident to such 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
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
TREASURER
The Treasurer shall perform such duties as are deemed by superior
executive officers of the Corporation incident to the office of Treasurer and
such other duties as from time to time may be assigned by the Board of
Directors.
ARTICLE X
ASSISTANT TREASURERS
In case of the death, absence or inability to act of the Treasurer, any
Assistant Treasurer shall have all the powers and perform all the duties of the
Treasurer, subject to such limitations as the Board of Directors may impose.
ARTICLE XI
CONTROLLER
The Controller shall cause accurate books of account of the Corporation's
transactions to be kept, which books shall be the property of the Corporation
and shall be subject at all times to the inspection and control of the Board of
Directors. He shall be responsible for the preparation and filing of necessary
statements and reports and shall perform such other duties as from time to time
may be assigned by the Board of Directors.
4
<PAGE> 5
ARTICLE XII
CERTIFICATES OF STOCK
Each stockholder shall be entitled to a certificate representing shares
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.
Certificates of stock shall be signed by the President or a Vice President and
the Treasurer or an Assistant Treasurer and sealed with the corporate seal. Such
seal may be a facsimile, engraved or printed. When any such certificate is
manually signed by a transfer agent and/or by a registrar, the signatures of the
President, Vice President, Treasurer or Assistant Treasurer of the Corporation
upon such certificate may be facsimiles, engraved or printed. In case any
officer who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such before the certificate is issued, it
may be issued by the Corporation with the same effect as if such officer had not
ceased to be such at the time of its issue.
Shares of stock of the Corporation may be transferred on the books of the
Corporation by the registered owner thereof or by his duly authorized attorney
by assignment thereof in writing, accompanied by delivery of the certificate. No
such transfer of stock, however, 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 upon such
reasonable terms as the Board of Directors shall prescribe.
The Board of Directors may appoint one or more transfer agents and one or
more registrars and may require all certificates representing shares of the
Corporation's stock to bear the signature or signatures of any of them.
ARTICLE XIII
FISCAL YEAR
The fiscal year of the Corporation shall end on the 30th day of September
in each year.
ARTICLE XIV
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 (2/3) 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.
* * * *
5
<PAGE> 1
EXHIBIT 4.4
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ---------------------- COMMON CERTIFICATE FOR
STOCK NOT MORE THAN
------------ [GRAPHIC] 100,000 SHARES
NUMBER PAR VALUE
$3.33 1/3 PER SHARE ---------------
FBU SHARES
------------
---------------
THIS CERTIFICATE IS TRANSFERABLE CUSIP 072612 60 9
IN NEW YORK OR IN BOSTON SEE REVERSE FOR CERTAIN DEFINITIONS
[GRAPHIC BOX] BAY STATE GAS COMPANY
ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
------------------------------------------------------------------------------------------------------------
This certifies that
is the registered holder of
------------------------------------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Bay State Gas Company, transferable on the books of the Company in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed or assigned. This Certificate and the
shares represented hereby are subject to the laws of The Commonwealth of Massachusetts and to the
Articles of Organization and By-Laws of the Company, and amendments to each. This Certificate is not
valid unless countersigned by the Transfer Agent and registered by the Registrar of the Company.
Witness the corporate seal of the Company and the signatures of its duly authorized officers.
DATED:
[BAY STATE COUNTERSIGNED AND REGISTERED:
GAS COMPANY THE FIRST NATIONAL BANK OF BOSTON
1974 SEAL] TRANSFER AGENT
BY: AND REGISTRAR,
/s/ Thomas W. Sherman /s/ Joel L. Singer
AMERICAN BANK NOTE
COMPANY AUTHORIZED SIGNATURE. TREASURER PRESIDENT
- ----------------------
</TABLE>
<PAGE> 2
BAY STATE GAS COMPANY
THE COMPANY WILL FURNISH TO ANY SHAREHOLDER, WITHOUT CHARGE, UPON WRITTEN
REQUEST ADDRESSED TO THE CLERK OF THE COMPANY, A STATEMENT OF THE PREFERENCES
AND VOTING POWERS AND RESTRICTIONS OR QUALIFICATIONS RELATING TO ALL CLASSES OF
THE COMPANY'S CAPITAL STOCK.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties ----- -----
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as under Uniform Gifts to Minors
tenants in common Act
------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________ HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- ------------------------------
- ------------------------------_________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE.
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT_____________________________________________
_______________________________________________________________________________
ATTORNEY TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN-NAMED COMPANY
WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.
DATED THIS _____________ DAY OF __________ 19 __.
___________________________________________
IN PRESENCE OF
___________________________________
Signature(s) Guaranteed: ___________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between Bay State Gas Company and The
First National Bank of Boston, dated as of November 15, 1989 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference and
a copy of which is on file at the principal executive offices of Bay State Gas
Company. Under certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. Bay State Gas Company will mail to the holder
of this certificate a copy of the Rights Agreement without charge after receipt
of a written request therefor. As described in the Rights Agreement, Rights
issued to any Person who becomes an Acquiring Person (as defined in the Rights
Agreement) shall become null and void.
<PAGE> 1
EXHIBIT 5
LETTERHEAD OF LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
September 30, 1997
Bay State Gas Company
300 Friberg Parkway
Westborough, MA 01581-5039
Ladies and Gentlemen:
We have acted as counsel to Bay State Gas Company, a Massachusetts
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") executed and filed for the purpose of
registering under the Securities Act of 1933, as amended (the "1933 Act"),
500,000 shares of the Company's Common Stock, $3.33 1/3 par value (the "Common
Stock"), to be sold pursuant to the Company's Stock Performance Sharing Plan
(the "Plan") (formerly, the Bay State Gas Company Key Employee Long-Term
Incentive Plan).
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such instruments,
certificates, records and documents, and have reviewed such questions of law, as
we have deemed necessary or appropriate for purposes of this opinion. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of the
originals of all such latter documents. As to any facts material to this
opinion, we have relied upon the aforesaid instruments, certificates, records
and documents and inquiries of Company representatives.
Based upon the foregoing examination, and subject to the limitations set
forth below, we are of the opinion that the Common Stock, when sold pursuant to
the Plan, will be validly issued, fully paid and nonassessable when:
(a) the Registration Statement shall have become and so long as it
shall remain effective for the purpose of the issue and sale of the Common
Stock; and
(b) the certificates for the Common Stock have been duly executed,
countersigned, registered and delivered in accordance with the provisions of the
Plan and the consideration therefor provided for in the Plan has been received
by the Company.
<PAGE> 2
Bay State Gas Company
September 30, 1997
Page 2
This opinion is rendered under and limited to the law of The Commonwealth
of Massachusets (without reference to "blue sky" matters) and the federal law of
the United States. We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and the use of our name therein, and in any amendments
thereto.
Very truly yours,
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Bay State Gas Company:
We consent to incorporation by reference in the Registration Statement on Form
S-8 pertaining to the Bay State Gas Company Stock Performance Sharing Plan of
our report dated October 24, 1996, relating to the consolidated balance sheets
and statements of capitalization of Bay State Gas Company and subsidiaries as of
September 30, 1996 and 1995 and the related consolidated statements of earnings,
shareholders' equity and cash flows for each of the years in the three-year
period ended September 30, 1996, which report is included in the September 30,
1996 annual report on Form 10-K of Bay State Gas Company.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Boston, Massachusetts
September 30, 1997
