<PAGE> 1
File No. 070-09195
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 1
TO
FORM U-1
APPLICATION/DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EASTERN ENTERPRISES
9 Riverside Road
Weston, Massachusetts 02193
-------------------------------------------------------
(Name of company or companies filing this statement and
addresses of principal executive office)
EASTERN ENTERPRISES
------------------------------------------------------------------------------
(Name of top registered holding company parent of each applicant or declarant)
David W. Walker, Esq L. William Law, Jr., Esq.
Foley, Hoag & Eliot LLP Senior Vice President and General Counsel
One Post Office Square Eastern Enterprises
Boston, Massachusetts 02109 9 Riverside Road
Weston, Massachusetts 02193
------------------------------------------
(Names and addresses of agents for service)
<PAGE> 2
1. Applicant hereby amends Item 6, Exhibits and Financial Statements, by filing
the following:
A-7 Form of Articles of Organization of NEWCO.
A-8 Form of By-laws of NEWCO.
A-9 Form of Specimen copy of Common Stock certificate of NEWCO.
A-12 Form of Specimen copy of Common Stock certificate of Surviving
Corporation.
C Registration Statement on Form S-4, including all financial
statements and exhibits thereto, with reference to additional
Common Shares of Eastern (Incorporated herein by reference to
File No. 333-52235) (including the Prospectus/Proxy Statement
to be distributed to stockholders of Essex in connection with the
special meeting to be held on or about June 24, 1998).
2
<PAGE> 3
SIGNATURE
---------
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned company has duly caused this statement to be signed on
its behalf by the undersigned officer thereunto duly authorized.
EASTERN ENTERPRISES(1)
Date: May 11, 1998 By: /s/ Walter J. Flaherty
-------------------------- -------------------------------
Walter J. Flaherty
Senior Vice President and Chief
Financial Officer
(1) Reference is hereby made to the declaration of trust establishing Eastern
Enterprises (formerly Eastern Gas and Fuel Associates) dated July 18, 1929, as
amended, a copy of which is on file in the office of the Secretary of the
Commonwealth of Massachusetts. The name "Eastern Enterprises" refers to the
trustees under said declaration as trustees and not personally; and no trustee,
shareholder, officer or agent of Eastern Enterprises shall be held to any
personal liability in connection with the affairs of said Eastern Enterprises,
but the trust estate only is liable.
3
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EXHIBIT INDEX
See Item 6, "Exhibits and Financial Statements," for statement of locations of
exhibits incorporated by reference.
Exhibit No. Description
----------- -----------
A-7 Form of Articles of organization of NEWCO
A-8 Form of By-laws of NEWCO
A-9 Form of Specimen copy of Common Stock certificate of NEWCO
A-12 Form of Specimen copy of Common Stock certificate of
Surviving Corporation
4
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C Registration Statement on Form S-4, including all financial
statements and exhibits thereto, with reference to Common
Shares of Eastern
5
<PAGE> 1
EXHIBIT A-7
D
- --------- THE COMMONWEALTH OF MASSACHUSETTS
Examiner WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 164)
- ---------
Name
Approved ARTICLE I
The exact name of the corporation is:
ECGC ACQUISITION GAS COMPANY
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
See Attachment A
C [ ]
P [ ]
M [ ]
R.A. [ ]
Note: If the space provided under any article or item on this form is
- --------- insufficient, additions shall be set forth on one side only of
P.C. separate 8 1/2 (by) 11 sheets of paper with a left margin of at least
1 inch. Additions to more than one article may be made on a single
sheet so long as each article requiring each addition is clearly
indicated.
<PAGE> 2
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue.
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE WITH PAR VALUE
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
Common: Common: 200,000 $1.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: Preferred:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
None
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Attachment B
**If there are no provisions state "None".
Note: The preceding six (6) articles are considered to be permanent and may ONLY
be changed by filing appropriate Articles of Amendment.
<PAGE> 3
ARTICLE VII
The effective date of organization of the corporation shall be the date approved
and filed by the Secretary of the Commonwealth. If a later effective date is
desired, specify such date which shall not be more than thirty days after the
date of filing.
N/A
ARTICLE VIII
The information contained in Article VIII is not a permanent part of the
Articles of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is:
c/o Eastern Enterprises, 9 Riverside Road, Weston, MA 02193
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President:
Treasurer:
See Attachment C
Clerk:
Directors:
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of:
December
d. The name and business address of the resident agent, if any, of the
corporation is:
None
ARTICLE IX
By-laws of the corporation have been duly adopted and the president, treasurer,
clerk and directors whose names are set forth above, have been duly elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business or
residential address(es) are clearly typed or printed beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws, Chapter 164 and do hereby sign these Articles of
Organization as incorporator(s) this _______ day of __________________, 19__,
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Note: If an existing corporation is acting as incorporator, type in the exact
name of the corporation, the state or other jurisdiction where it was
incorporated, the name of the person signing on behalf of said corporation and
the title he/she holds or other authority by which such action is taken.
<PAGE> 4
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 164)
======================================================
I hereby certify that, upon examination of these
Articles of Organization, duly submitted to me, it
appears that the provisions of the General Laws
relative to the organization of corporations have
been complied with, and I hereby approve said
articles; and the filing fee in the amount of
$________ having been paid, said articles are deemed
to have been filed with me this __________ day of
_____________ 19__.
Effective date: ______________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
FILING FEE: One tenth of one percent of the total
authorized capital stock, but not less than $200.00.
For the purpose of filing, shares of stock with a par
value less than $1.00, or no par stock, shall be
deemed to have a par value of $1.00 per share.
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Matthew J. Cohen, Esq.
-------------------------------------------------------
Eastern Enterprises
-------------------------------------------------------
9 Riverside Road, Weston, MA 02193
-------------------------------------------------------
Telephone: (781) 647-2308
--------------------------------------------
<PAGE> 5
Attachment A
The purposes for which the corporation is formed are as follows:
A. To manufacture, produce, or in any manner acquire manufactured,
natural or by-product gas, or chemicals of any kind, and to use, own, hold,
store, sell, transport, transmit, distribute or otherwise dispose of any such
gas, and the by-products and the residual products of them or any of them, or
chemicals of any kind.
B. To sell, furnish, or in any manner to use, distribute or supply
light, heat, energy and power by gas, oil, steam, water or other means.
C. To explore, develop, produce and acquire oil and gas producing
properties, wherever situated; to gather, transmit, store and process oil and
gas and any related products and to perform all activities necessary or
incidental to those functions.
D. To engage in the sale, rental and installation of gas and other
appliances and to engage in gas fitting and installation work.
E. To lend money to and guarantee the obligations (liquidated or
unliquidated, including future obligations) of other persons, firms or
corporations, including the officers, directors and stockholders of this
corporation.
F. To acquire the good will, business, property or assets, to acquire
by lease, franchise or other agreement a trade name or trade style, and to
assume or undertake the whole or any part of the liabilities of any person,
firm, association or corporation and to pay for the same in cash, stock, bonds,
debentures or other securities of the corporation, or otherwise, as the
directors may determine.
G. To carry on any manufacturing, mercantile, selling, management,
service or other business, operation or activity which may be lawfully carried
on by a corporation organized under the Business Corporation Law of the
Commonwealth of Massachusetts, whether or not related to those referred to in
the foregoing paragraphs.
H. To carry on any business, operation or activity through a wholly or
partly owned subsidiary.
I. To carry on any business, operation or activity referred to in the
foregoing paragraphs to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or in conjunction or
a joint venture or other arrangement with any corporation, association, trust,
firm or individual.
J. To have as additional purposes all powers granted and conferred by
the laws of The Commonwealth of Massachusetts upon business corporations
organized under Chapter 156B of the General Laws of Massachusetts (including
without limitation
<PAGE> 6
as purposes all powers conferred by Section 9 of Chapter 156B thereof) and
Chapter 164 of said General Laws, provided that no such purpose shall include
any activity inconsistent with such Chapter 156B or Chapter 164 or any other
applicable provision of the General Laws of Massachusetts.
<PAGE> 7
Attachment B
To the fullest extent permitted by Chapters 164 and 156B, as incorporated by
Chapter 164 of the Massachusetts General Laws, as they may be amended from time
to time, no Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director. No repeal or amendment of these provisions shall increase
the personal liability of any Director of this Corporation nor otherwise
adversely affect any right or protection of a Director of the Corporation
existing hereunder prior to such repeal or amendment in respect of any act or
occurrence taking place prior to such repeal or amendment.
<PAGE> 8
Attachment C
<TABLE>
<CAPTION>
Name Residential Address Post Office Address
<S> <C> <C> <C>
President: Philip H. Reardon 6 North Knobb Hill Essex County Gas Company
Byfield, MA 01922 7 North Hunt Road
Amesbury, MA 01913
Treasurer: James H. Hastings 55 Stetson Street Essex County Gas Company
Bradford, MA 01835 7 North Hunt Road
Amesbury, MA 01913
Clerk: Cathy E. Brown 292 Water Street Essex County Gas Company
Newburyport, MA 01950 7 North Hunt Road
Amesbury, MA 01913
Directors: J. Atwood Ives 17 West Cedar Street Eastern Enterprises
Boston, MA 02108 9 Riverside Road
Weston, MA 02193
Walter J. Flaherty 76 Old Post Road Eastern Enterprises
East Walpole, MA 02032 9 Riverside Road
Weston, MA 02193
L. William Law, Jr. 75 Bacon Street Eastern Enterprises
Winchester, MA 01890 9 Riverside Road
Weston, MA 02193
Chester R. Messer 60 Selwyn Road Boston Gas Company
Belmont, MA 02178 One Beacon Street
Boston, MA 02108
Philip H. Reardon 6 North Knobb Hill Essex County Gas Company
Byfield, MA 01922 7 North Hunt Road
Amesbury, MA 01913
</TABLE>
<PAGE> 1
EXHIBIT A-8
BY-LAWS
OF
ECGC ACQUISITION GAS COMPANY
<PAGE> 2
BY-LAWS
OF
ECGC ACQUISITION GAS COMPANY
ARTICLE I.
NAME AND SEAL
The name of this Corporation shall be ECGC ACQUISITION GAS COMPANY.
The Board of Directors shall have power to adopt and alter the form of
the seal of the Corporation.
ARTICLE II.
PRINCIPAL OFFICE
The principal office shall be in the Town of Weston, County of
Middlesex, Commonwealth of Massachusetts. The Corporation may also have offices
at such other places as the Board of Directors may, from time to time, appoint,
or the business of the Corporation may require.
ARTICLE III.
STOCKHOLDERS
SECTION 1. MEETINGS. All meetings of the Stockholders shall be held at the
principal office of the Corporation in Weston, Massachusetts unless some other
place in Massachusetts is stated in the notice of meeting.
SECTION 2. ANNUAL MEETING. The annual meeting of the Stockholders of this
Corporation shall be held at such time and date as the Board of Directors, by
Resolution, shall determine and as set forth in the notice of meeting. If the
Board of Directors fails so to determine the time, date, and place of meeting,
the annual meeting of Stockholders shall be held on the third Tuesday in April
in each year, if not a legal holiday, and if a legal holiday, then on the next
succeeding Tuesday not a legal holiday, for the election of Directors and for
the transaction of such other business as properly may come before such meeting.
In the event that such annual meeting is omitted by oversight or otherwise on
the date earlier provided for, a subsequent meeting may be held in its place,
and any business transacted or elections held at such meeting shall be valid as
if transacted or held at the annual meeting. Such subsequent
1
<PAGE> 3
meeting shall be called in the same manner as provided for special meetings of
the Stockholders.
SECTION 3. SPECIAL MEETINGS. Special meetings of the Stockholders of
this Corporation shall be held whenever called by the President, a Vice
President, or a majority of the Board of Directors, or whenever one or more
Stockholders who are entitled to vote, and who hold at least one-third part in
interest of the capital stock entitled to vote on the subject matter in question
shall make written application to the Clerk, stating the time, place and purpose
of the meeting applied for.
SECTION 4. NOTICE OF MEETINGS. Notice of all meetings of the
Stockholders, stating the time and place of the meetings and the nature of the
business to be considered shall be given in writing by the Clerk of the
Corporation to each Stockholder of record, entitled to vote thereat, addressed
to him or her at his or her address as it appears on the books of the
Corporation, at least seven days and not more than sixty (60) days before the
time fixed for the meeting. If any Stockholder shall have failed to inform the
Corporation of his or her post office address, no notice need be sent to him or
her. Notice of any regular or any special meeting may be waived in writing by
any Stockholder entitled to notice, and whenever all such Stockholders shall
meet in person or by proxy filed with the Clerk of the meeting or shall have
waived notice in writing, the meeting shall be valid for all purposes without
call or notice, and at that meeting any corporate action may be taken. No holder
of stock of any class shall be entitled to receive notice of any meeting of
holders of any class of stock unless he or she is entitled to vote at that
meeting.
SECTION 5. QUORUM. At any meeting of the Stockholders, whether of one
or more than one class, a majority in voting power of all the shares of capital
stock issued and outstanding, and entitled to vote at the meeting, represented
by Stockholders of record in person or by proxy, shall constitute a quorum, but
whenever a quorum is not present, a majority in interest of the Stockholders
present may adjourn any meeting from time to time (provided no adjournment shall
be for more than three months), and the meeting may be held as adjourned without
further notice. When a quorum is present at any meeting, a majority in voting
power of the shares represented and entitled to vote shall decide any questions
brought before such meeting, unless the question is one upon which by express
provision of law or of these By-laws a larger or different vote is required, in
which case such express provision shall govern the decision of such question.
SECTION 6. PROXIES AND VOTING. At each meeting of the Stockholders
every Stockholder having the right to vote thereat shall be entitled, for each
share of stock outstanding in his or her name on the books of the Corporation,
to one vote in person or by proxy. All proxies shall be appointed by an
instrument subscribed by the Stockholder entitled to vote and bearing a date
not more than six months prior to that meeting which shall be filed with the
Clerk of the meeting before being voted. A telegram or cablegram appearing to
have been transmitted by the proper person or a photographic, photostatic,
telecopied, faxed or
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equivalent reproduction of a writing appointing a proxy shall be deemed a
sufficient, signed proxy appointment form. No such proxy shall be valid after
the final adjournment of the meeting. The vote for Directors and, upon the
demand of any stockholder, a vote upon any question before the meeting, shall be
by ballot. Each proxy shall be deemed valid unless challenged during the
meeting.
SECTION 7. RECORD DATE OR CLOSING TRANSFER BOOKS FOR STOCKHOLDERS'
MEETINGS. For the purpose of determining the stockholders having the right to
notice of and to vote at any meeting of Stockholders or any adjournment thereof
the Board of Directors may as hereinafter provided in Article XVIII fix in
advance a record date, or, without fixing such date, may close the transfer
books of the Corporation.
SECTION 8. NOTICE OF STOCKHOLDER BUSINESS AT MEETINGS. At any meeting
of Stockholders, only such business shall be conducted as shall have been
properly brought before the meeting as hereinafter provided. In addition to any
other requirements imposed by law, the Articles of Organization or these
By-Laws, to be properly brought before a meeting each item of business must
either (a) be specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors or the persons calling
the meeting as herein provided, (b) be otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (c) be otherwise
properly brought before the meeting by a Stockholder as hereinafter provided.
For business to be properly brought before a meeting by a Stockholder, the
Stockholder must have given timely notice thereof in writing to the Clerk of the
Corporation. To be timely, a Stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty (60) days nor more than ninety (90) days prior to the meeting; provided,
however, that in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting of Stockholders is given or made to
Stockholders, to be timely, notice by the Stockholder of business to be
conducted at a meeting must be received by the Clerk not later than the close of
business on the tenth day following the day on which notice of the date of the
meeting of Stockholders was mailed or such public disclosure was made to the
Stockholders. A Stockholder's notice to the Clerk shall set forth as to each
matter he or she proposes to bring before the meeting (a) a brief description of
the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (b) the name and address, as they
appear on the Corporation's books, of the Stockholder or Stockholders proposing
such business, (c) the class or classes of stock and number of shares of such
class or classes of stock which are beneficially owned by the proposing
Stockholder or Stockholders, and (d) any material interest of the proposing
Stockholder or Stockholders in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting except in accordance with the procedures set
forth in this section. The Chairman of a meeting shall, if the facts warrant,
determine and declare to the persons attending the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
section, and he or she shall further declare that any such business not properly
brought before such meeting shall not be transacted. The Chairman of a meeting
of
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Stockholders shall have absolute authority to decide questions of compliance
with the foregoing procedures and his or her ruling thereon shall be final and
conclusive.
ARTICLE IV.
DIRECTORS
SECTION 1. ELECTION AND NUMBER. The Board of Directors shall consist
of not less than one (1) nor more than fifteen (15) Directors; provided,
however, that the number may be amended from time to time only by affirmative
vote of the majority of the Board of Directors. The holders of Common Stock
shall elect the number of Directors so fixed at the annual meeting, or at the
meeting held in lieu of the annual meeting. Subject to death, resignation or
removal, each Director shall hold office until the next annual meeting or until
his or her successor is elected and qualified. Directors may, but need not be
Stockholders of the Corporation.
SECTION 2. POWERS. The business of the Corporation shall be managed by
the Directors. In the management and control of the property, business and
affairs of the Corporation, the Board of Directors is hereby vested with all the
powers possessed by the Corporation itself, so far as this delegation of
authority is not inconsistent with the laws of the Commonwealth of
Massachusetts, or with these By-laws. No contract or other transaction between
this Corporation and any other corporation or association shall be affected by
the fact that Directors or Officers of this Corporation are interested in, or
are directors or officers of, such other corporation or association.
SECTION 3. MEETINGS. Regular meetings of the Board of Directors shall
be held in such places and at such times, within or without the Commonwealth of
Massachusetts as the Board may by vote from time to time determine, and if so
determined, no notice of regular meetings need be given. Special meetings of the
Board of Directors may be held at any time or place whenever called by the
President, a Vice President, the Clerk, or three or more Directors, notice of at
least twenty-four hours being given by the Clerk or an Assistant Clerk or the
Officer calling the meeting, to each Director in person or by telephone, or
delivered, mailed, or telegraphed, to his or her usual address, or at any time
without formal notice, provided all the Directors are present, or those not
present have waived notice in writing or by telegraph. Such special meetings
shall be held at such times and places, within or without the Commonwealth, as
the notice or waiver shall specify. Unless otherwise specified in the notice,
any and all business may be transacted at any meeting of the Board. The Board
may hold meetings by telephonic conference calls.
SECTION 4. QUORUM. A majority of the Directors shall constitute a
quorum for the transaction of business, but whenever a quorum is not present, a
small 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 any
meeting, a majority of the members present shall decide any question brought
before such meeting, except as otherwise provided by law, the Articles of
Organization, or by these By-laws.
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<PAGE> 6
SECTION 5. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Directors may be taken without a meeting if all the
Directors consent to the action in writing and the written consents are filed
with the records of the meetings of the Directors. Such consents shall be
treated for all purposes as a vote taken at a meeting.
SECTION 6. PRESUMPTION OF ASSENT. A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless he
or she dissents or abstains from voting on the action and such dissent and
abstention is entered in the minutes of the meeting, or unless he or she files
his or her written dissent to such action before the adjournment of the meeting
or by registered mail to the Clerk of the Board immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
ARTICLE V.
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors may elect from their own number an executive
committee to consist of not less than three nor more than seven members. Except
as prohibited by law, the executive committee shall have and exercise the powers
of the Board of Directors in the management of the business and affairs of the
Corporation when the Board of Directors is not in session. The executive
committee shall report all action taken by it to the Board of Directors for
approval. The executive committee may make rules for the notice, holding,
conduct and keeping of records, of its meeting.
The Board of Directors may likewise elect from their own number other
committees from time to time, the number composing such committees and the
powers conferred upon them to be determined by vote of the Board of Directors.
Committees composed of members of the Board of Directors designated by
a resolution adopted by a majority of the whole Board of Directors, to the
extent provided by such resolution, shall have and may exercise the authority of
the Board of Directors, as so delegated in the resolution, in the management of
the Corporation. Each committee of the Board of Directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required. Vacancies in the membership of each committee shall be filled by the
Board of Directors at any regular or special meeting of the Board of Directors.
At all meetings of a committee, a majority of the committee members then in
office shall constitute a quorum for the purpose of transacting business, and
the acts of a majority of the committee members present at any meeting at which
there is a quorum shall be the acts of the committee. A Director who may be
disqualified, by reason of personal interest, from voting on any particular
matter before a meeting of a committee may nevertheless be counted for the
purpose of constituting a quorum of the committee.
5
<PAGE> 7
ARTICLE VI.
COMPENSATION OF DIRECTORS AND OTHERS
Directors shall receive such compensation for their services as
Directors as shall be determined from time to time by resolution of the Board.
Directors shall not be prohibited from serving this Corporation in any other
capacity and receiving compensation for it. Members of special or standing
committees may be allowed compensation, determined by resolution or vote of the
Board of Directors. Any compensation so determined by the Board of Directors
shall be subject, as to any payments not already made, to revision or amendment
by the Stockholders.
ARTICLE VII.
OFFICERS
SECTION 1. The Officers of this Corporation shall be a President, a
Clerk, and a Treasurer. The Board of Directors in its discretion may elect a
Chairman of the Board of Directors, who, when present, shall preside at all
meetings of the Board of Directors, and who shall have such other powers as the
Board shall from time to time prescribe. The Board of Directors in its
discretion may also from time to time elect one or more Vice Presidents. The
President, the Clerk, the Treasurer, and all other Officers shall be elected by
the Board of Directors as soon as may be practicable after its election by the
Stockholders, and shall hold office until their successors are duly elected and
qualified, subject, however, to the provisions of Article XII and a meeting of
the Directors may be held without notice for this purpose immediately after the
annual meeting of the Stockholders, and at the same place. Any person may hold
more than one office provided the duties can be consistently performed by the
same person.
SECTION 2. ELIGIBILITY OF OFFICERS. The President and the Chairman of
the Board of Directors may, but need not, be Stockholders. The Vice Presidents,
Clerk, Treasurer, and such other Officers as may be elected, may be, but need
not be, Stockholders of this Corporation.
SECTION 3. ADDITIONAL OFFICERS, AGENTS AND REPRESENTATIVES. The Board
of Directors in its discretion may elect such additional Officers, including a
general manager, one or more Assistant Clerks, one or more Assistant Treasurers,
and such other Officers, agents and representatives of the Corporation, with
such powers, and to perform such acts or duties on behalf of the Corporation, as
the Board of Directors may see fit, to the extent
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<PAGE> 8
authorized or permitted by law, the Articles of Organization and these By-laws.
All such Officers, agents and representatives shall hold office at the pleasure
of the Board of Directors.
ARTICLE VIII.
PRESIDENT
When present, the President shall preside at all the meetings of the
Stockholders. Unless a Chairman of the Board of Directors has been elected and
is present, the President, when present, shall preside at all meetings of the
Directors. The President shall perform such duties and shall have such powers as
the Board of Directors shall from time to time designate.
ARTICLE IX.
VICE PRESIDENTS
A Vice President, if elected, shall perform the duties and have the
powers of the President during the absence or disability of the President and
shall have the power to sign all certificates for shares of stock, bonds, deeds
and contracts of the Corporation, and shall perform such other duties and have
such other powers as the Board of Directors shall from time to time designate.
If more than one Vice President is elected, the Board of Directors may specify
the order in which they shall act as substitutes for the President and may
specify different powers and duties for each.
ARTICLE X.
CLERK
The Clerk may be, but need not be, a resident of the Commonwealth of
Massachusetts. He or she shall be sworn and shall attend and keep the minutes of
all meetings of the Board of Directors. He or she shall arrange for giving and
serving of all notices, and shall attend and keep the minutes, of all meetings
of the Stockholders. He or she shall have custody of the corporate seal of the
Corporation. The Clerk may execute and deliver on behalf of the Corporation
certified copies of the records of the Corporation and such other instruments
under its corporate seal, and such other instruments, as may be ordered by the
Board of Directors. He or she shall perform such other duties and have such
other powers as the Board of Directors may from time to time designate. In the
absence or disability of the Clerk, an Assistant Clerk, if any, or a clerk pro
tempore, shall perform all the duties of the Clerk. Such Assistant Clerk or
clerk pro tempore may be, but need not be, a resident of the Commonwealth of
Massachusetts.
7
<PAGE> 9
ARTICLE XI.
TREASURER
The Treasurer, subject to the control of the Board of Directors, shall
have the management and possession of all funds and securities of the
Corporation (other than his or her own bond, if one is required, which shall be
in the custody of the President) and shall have and exercise under the
supervision of the Board of Directors all of the powers and duties commonly
incident to his or her office. He or she shall, if required by the Board of
Directors, give bond for the faithful performance of his or her duties in such
forms and with such sureties as may be required by the Board of Directors. He or
she may, subject to the control of the Board of Directors, deposit the funds and
securities of the Corporation in any one or more banks or other depositories,
and may disburse them by checks or other instruments signed by him or her or, in
the case of payroll checks, by such person as he or she may designate. He or she
may endorse for deposit or collection all checks, notes and other instruments
payable to the Corporation or its order and may accept drafts on its behalf.
Together with the President or a Vice President he or she may sign bonds and
certificates of stock of the Corporation. He or she shall keep accurate books of
account of the Corporation's transactions, which shall be the property of the
Corporation, and, together with all its property in his or her possession, shall
be subject at all times to the inspection and control of the Directors. He or
she shall perform such other duties and have such other powers as the Board of
Directors may from time to time designate.
ARTICLE XII.
RESIGNATIONS AND REMOVAL
Any Officer or Director of the Corporation may resign at any time by
giving written notice to the Board of Directors or to the Chairman of the Board,
the President, or to the Clerk, and any member of any committee may resign by
giving written notice as stated above or to the committee of which he or she is
a member or to its chairman. Any such resignation shall take effect at the time
specified in it, but if no time is specified, upon its receipt; and unless
otherwise specified in the resignation, its acceptance shall not be necessary to
make it effective.
Directors elected by Stockholders, including persons elected by
Directors to fill vacancies in the Board, may be removed from their respective
offices with or without cause by the vote of the holders of a majority of the
shares entitled to vote in the election of Directors, provided, that the
Directors of a class elected by a particular class of Stockholders may be
removed only by the vote of the holders of a majority of the shares of the
particular class of Stockholders entitled to vote for the election of such
Directors; Officers elected or appointed by the Directors may be removed from
their respective offices with or without cause by vote of a majority of the
8
<PAGE> 10
Directors then in office; any Director elected by the Stockholders may be
removed from his or her office for cause by vote of a majority of the Directors
then in office.
A Director or Officer may be removed for cause only after a reasonable
notice and opportunity to be heard before the body proposing to remove him or
her.
ARTICLE XIII.
VACANCIES
If the office of any Director, Officer, or agent, one or more, becomes
vacant by reason of death, resignation, removal, disqualification or otherwise,
the remaining Directors, though less than a quorum may, by a vote of a majority
of such remaining Directors choose a successor or successors, who shall hold
office for the unexpired term.
ARTICLE XIV.
VOTING UPON STOCK OF OTHER CORPORATIONS
If authorized by the Board of Directors, the President or any Vice
President shall have full power and authority on behalf of the Corporation to
attend and to act and vote at any meetings of the Stockholders of any company in
which this Corporation may hold stock, and at any such meeting shall possess and
exercise any and all the rights and powers incident to the ownership of stock,
which, as the owner, this Corporation might possess and exercise if present. The
Board of Directors may confer like powers upon any other person or persons from
time to time, and may revoke any such power so granted at its pleasure. The
Board of Directors may authorize the President or any other Officer to sign on
behalf of the Corporation a proxy to vote stock of any company owned by the
Corporation at any meeting of the Stockholders of such company.
ARTICLE XV.
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
CONTRACTS. The Board of Directors may authorize any Officer or
Officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
LOANS. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
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<PAGE> 11
CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for the
payment of money, notes, or other evidence of indebtedness issued in the name of
the Corporation shall be signed by such Officer or Officers, agent or agents of
the Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
DEPOSITS. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies, or other depositories as the Board of Directors may designate.
ARTICLE XVI.
CAPITAL STOCK
SECTION 1. CERTIFICATES. Every Stockholder of the Corporation shall be
entitled to a certificate or certificates in form prescribed by the Directors,
and as required by law, duly numbered, under the seal of the Corporation,
setting forth the number of shares represented by it. Such certificates shall be
signed by the President or a Vice President and by the Treasurer or an Assistant
Treasurer.
SECTION 2. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint a transfer agent, or a registrar, or both, for the stock of the
Corporation and may require all certificates for shares of stock to bear the
countersignature of such transfer agent, or of such registrar, or of both.
Upon transfer, the old shares shall be surrendered to the Corporation
by delivery thereafter to the person in charge of the stock and transfer books
and ledgers, or such other persons as the Board of Directors may designate, by
whom they shall be canceled and new certificates shall be issued.
Except as otherwise expressly provided by Massachusetts law, the
Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the absolute owner thereof for all purposes and, shall not be
bound to recognize any legal, equitable or other claim to, or interest in, such
share or shares on the part of any other person whether or not it was given
express notice or other notice thereof.
SECTION 3. FACSIMILE SIGNATURES. If the Board of Directors shall
require all certificates for shares of a particular class of stock to bear the
signature of the transfer agent and of the registrar, and the registrar is not
the same person, partnership, association, trust or corporation as the transfer
agent, the Board of Directors may provide that 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,
and such certificate shall be valid and effective for all purposes as if signed
by such Officer or Officers and sealed with its corporate seal, as the case may
be.
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<PAGE> 12
SECTION 4. CERTIFICATES SIGNED BY OFFICERS CEASING TO HOLD OFFICE. In
case any Officer of the Corporation authorized to sign certificates for shares
of stock of the Corporation shall die or cease to hold office, the Board of
Directors may, by vote, adopt and permit to be issued when duly countersigned,
certificates bearing the signature, either real or facsimile of such Officer.
SECTION 5. LOST OR DESTROYED CERTIFICATES. The holder of any shares of
stock of the Corporation shall immediately notify the Corporation and its
transfer agents and registrars, if any, of any loss or destruction of the
certificates representing the same. The Corporation may issue a new certificate
in place of any certificate theretofore issued by it which is alleged to have
been lost or destroyed and the Board of Directors may require the owner of the
lost or destroyed certificate or the owner's legal representative to give the
Corporation a bond in a sum and in a form approved by the Board of Directors,
and with a surety or sureties which the Board of Directors finds satisfactory,
to indemnify the Corporation and its transfer agents and registrars, if any,
against any claim or liability that may be asserted against or incurred by it or
any transfer agent or registrar on account of the alleged loss or destruction of
any certificate or the issuance of a new certificate. A new certificate may be
issued without requiring any bond when, in the judgment of the Board of
Directors, it is proper so to do. The Board of Directors may delegate to any
Officer or Officers of the Corporation any of the powers and authorities
contained in this section.
SECTION 6. TRANSFER OF SHARES. Shares of stock may be transferred,
subject to such restrictions as may be set forth in the Articles of
Organization, by delivery of the certificates, accompanied either by an
assignment in writing on the back of the certificate or by a written power of
attorney, to sell, assign and transfer by the owner of the certificate. No
transfer of any share or shares shall be of any effect as regards the
Corporation nor shall it be in any way bound to recognize such transfer until it
has been recorded on the books of the Corporation kept for that purpose. It
shall be the duty of every Stockholder to notify the Corporation of his post
office address.
SECTION 7. SCRIP CERTIFICATES. No certificates for fractional shares
of any class of stock shall be issued. In lieu thereof scrip certificates may be
issued by the Corporation representing rights to such fractional shares and
exchangeable, when accompanied by other certificates in such amount as to
represent in the aggregate one or more full shares of stock, for certificates
for full shares of stock. The holders of scrip certificates will not be entitled
to any rights as Stockholders of the Corporation until the scrip certificates
are so exchanged. Such scrip certificates may, at the election of the Board of
Directors of the Corporation, be in bearer form, shall be non-dividend bearing,
nonvoting and shall have such expiration date as the Board of Directors of the
Corporation shall determine at the time of the authorization or issuance of such
scrip certificates.
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<PAGE> 13
ARTICLE XVII.
UNCLAIMED DIVIDENDS
Dividends declared by the Corporation which have not been paid to
claimed by the person entitled to them within six years after they have been
declared may at any time after such six-year period be regarded and used as
funds of the Corporation, and any claim upon the Corporation for such dividends
shall thereafter be barred.
ARTICLE XVIII.
FIXING OF RECORD DATE OR CLOSING
TRANSFER BOOKS
The Board of Directors may fix in advance a time which shall be not
more than sixty days before the date of any meeting of the Stockholders or the
date for the payment of any dividend or the making of any distribution to
Stockholders or the last day on which the consent or dissent of Stockholders may
be effectively expressed for any purpose, as the record date for determining the
Stockholders having the right to notice of and to vote at such meeting or any
adjournment thereof or the right to receive such dividend or distribution or the
right to give such consent or dissent, and in such case only Stockholders of
record on such record date shall have such right, notwithstanding any transfer
of stock on the books of the Corporation after the record date; or without
fixing such record date, the Board of Directors may for any of such purposes
close the transfer books for all or any part of such period.
ARTICLE XIX.
FISCAL YEAR
The fiscal year shall begin on the first day of January in each year
and shall end on the thirty-first day of December in each year.
ARTICLE XX.
INDEMNIFICATION AND RELATED MATTERS
A. ACTIONS INVOLVING DIRECTORS AND OFFICERS.
1. The Corporation shall indemnify and defend each person (other than
a party plaintiff suing on his or her own behalf or in the right of the
Corporation) who at any time is serving or has served as a Director or Officer
of the Corporation against any claim, liability, or expense incurred as a result
of this service, or as a result of any other service on behalf of the
Corporation, or service at the request of the Corporation as a Director,
Officer, employee,
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<PAGE> 14
member, or agent of another corporation, partnership, joint venture, trust,
trade or industry association or other enterprise (whether incorporated or
unincorporated, for-profit or not-for-profit), to the maximum extent permitted
by law. Without limiting the generality of the foregoing, the Corporation shall
indemnify any such person who was or is a party (other than a party plaintiff
suing on his or her own behalf or in the right of the Corporation), or is
threatened to be made a party, to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(including, without limitation, attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with such action, suit, or proceeding.
2. The Corporation shall not be liable to indemnify a Director or
Officer for any amounts paid in settlement of any action or claim effected
without the Corporation's written consent. The Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation on
the Director or Officer without the Director's or Officer's written consent.
Neither the Corporation nor the Director or Officer will unreasonably withhold
his or its consent to any proposed settlement.
B. ACTIONS INVOLVING EMPLOYEES OR AGENTS.
1. The Corporation may, if it deems appropriate and as may be
permitted by this Article, indemnify any person (other than a party plaintiff
suing on his or her own behalf or in right of the Corporation), who at any time
is serving or has served as an employee or agent of the Corporation against any
claim, liability, or expense incurred as a result of such service or as a result
of any other service on behalf of the Corporation, or service at the request of
the Corporation as a Director, Officer, employee, member, or agent of another
Corporation, partnership, joint venture, trust, trade or industry association,
or other enterprise (whether incorporated or unincorporated, for-profit or
not-for-profit), to the maximum extent permitted by law or to such lesser extent
as the Corporation, in its discretion, may deem appropriate. Without limiting
the generality of the foregoing, the Corporation may indemnify any such person
who was or is a party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative
(including, but not limited to, an action by or in the right of the Corporation)
by reason of such service against expenses (including, without limitation,
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her and in connection with the action, suit, or
proceeding.
2. To the extent that an employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Section B(1) of this Article, or in defense of any
claim, issue, or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection with the action, suit, or proceeding.
3. The Corporation shall not be liable to indemnify an employee or
agent for any amounts paid in settlement of any action or claim effected without
the Corporation's written consent. The Corporation shall not settle any action
or claim in any manner which would impose any penalty or limitation on the
employee or agent without the
13
<PAGE> 15
employee's or agent's written consent. Neither the Corporation nor the employee
or agent will unreasonably withhold his or her or its consent to any proposed
settlement.
C. DETERMINATION OF RIGHT TO INDEMNIFICATION IN CERTAIN CIRCUMSTANCES.
Any indemnification required under Section A of this Article or authorized by
the Corporation in a specific case pursuant to Section B of this Article (unless
ordered by a court) shall be made by the Corporation unless a determination is
made reasonably and promptly that indemnification of the Director, Officer,
employee, or agent is not proper under the circumstances because he or she has
not met the applicable standard of conduct set forth in or established pursuant
to this Article. Such determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of Directors who were not parties to
such action, suit, or proceeding, or (2) if such a quorum is not obtainable, or
even if obtainable a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (3) by majority vote of the
shareholders; provided that no such determination shall preclude an action
brought in an appropriate court to challenge such determination.
D. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a person who is
or was a Director or Officer of the Corporation in defending a civil or criminal
action, suit, or proceeding shall be paid by the Corporation in advance of the
final disposition of an action, suit, or proceeding, and expenses incurred by a
person who is or was an employee or agent of the Corporation in defending a
civil or criminal action, suit, or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit, or proceeding as
authorized by or at the direction of the Board of Directors, in either case upon
receipt of an undertaking by or on behalf of the Director, Officer, employee, or
agent to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in or
pursuant to this Article which undertaking may be accepted without reference to
the financial ability of such person to make repayment.
E. NOT EXCLUSIVE RIGHT. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled, whether under the By-laws of the Corporation or
any statute, agreement, vote of shareholders or disinterested Directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office.
F. INDEMNIFICATION AGREEMENTS AUTHORIZED. Without limiting the other
provisions of this Article, the Corporation is authorized from time to time,
without further action by the shareholders of the Corporation, to enter into
agreements with any Director, Officer, employee, or agent of the Corporation
providing such rights of indemnification as the Corporation may deem
appropriate, up to the maximum extent permitted by law. Any agreement entered
into by the Corporation with a Director may be authorized by other Directors,
and such authorization shall not be invalid on the basis that different or
similar agreements may have been or may thereafter be entered into with other
Directors.
G. STANDARD OF CONDUCT. Except as may otherwise be permitted by law,
no person shall be indemnified pursuant to this Article from or on account of
such person's
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<PAGE> 16
conduct who is adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his or her action was in the best interest 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. The Corporation may (but need not)
adopt a more restrictive standard of conduct with respect to the indemnification
of any employee or agent of the Corporation.
H. INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a Director, Officer, employee, or agent of
the Corporation, or who is or was otherwise serving on behalf or at the request
of the Corporation against any claim, liability, or expense asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this
Article. If the Corporation maintains such insurance, such insurance shall be
primary, to the extent of coverage provided thereby, and the Corporation's
obligation to provide the indemnification set forth herein shall be effective
only to the extent that the Director, Officer, employee, or agent is not
reimbursed pursuant to the coverage maintained under such insurance.
I. CERTAIN DEFINITIONS. For the purposes of this Article:
1. Any Director or Officer of the Corporation who shall serve as
a Director, Officer, employee of any other corporation, partnership, joint
venture, trust, or other enterprise of which the Corporation, directly or
indirectly, is or was the owner of 20% or more of either the outstanding equity
interests or the outstanding voting stock (or comparable interests) shall be
deemed to be so serving at the request of the Corporation, unless the Board of
Directors of the Corporation shall determine otherwise. In all other instances
where any person shall serve as a Director, Officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise of
which the Corporation is or was a Stockholder or creditor, or in which it is or
was otherwise interested, if it is not otherwise established that such person is
or was serving as a Director, Officer, employee, or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service.
2. References to a Corporation include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a Director, Officer, employee, or
agent of a constituent corporation or is or was serving at the request of a
constituent corporation as a Director, Officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he or she would if he or she had served
the resulting or surviving corporation in the same capacity.
3. The term "other enterprise" shall include, without limitation,
employee benefit plans and voting or taking action with respect to stock or
other assets
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therein; the term "serving at the request of the Corporation" shall include,
without limitation, any service as a Director, Officer, employee, or agent of
the Corporation which imposes duties on, or involves services by, a Director,
Officer, employee, or agent with respect to any employee benefit plan, its
participants, or beneficiaries; and a person who has acted in good faith and in
a manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have satisfied
any standard of care required by or pursuant to this Article in connection with
such plan; the term "fines" shall include, without limitation, any excise taxes
assessed on a person with respect to an employee benefit plan and shall also
include any damages (including treble damages) and any other civil penalties;
the masculine pronoun shall be replaced by the feminine when context requires
it.
J. SURVIVAL. Any indemnification rights provided pursuant to this
Article shall continue as to a person who has ceased to be a Director, Officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person. Notwithstanding any other provision in the
Articles of Organization or By-laws, any indemnification rights arising under or
granted pursuant to this Article shall survive amendment or repeal of this
Article with respect to any acts or omissions occurring prior to the effective
time of such amendment or repeal and persons to whom such indemnification rights
are given shall be entitled to rely upon such indemnification rights with
respect to such acts or omissions as a binding contract with the Corporation.
K. LIABILITY OF THE DIRECTORS. It is the intention of the Corporation
to limit the liability of the Directors of the Corporation, in their capacity as
such, whether to the Corporation, its shareholders, or otherwise, to the fullest
extent permitted by law. Consequently, should Massachusetts Business Corporation
Law or any other applicable law be amended or adopted hereafter so as to permit
the elimination or limitation of such liability, the liability of the Directors
of the Corporation shall be so eliminated or limited without the need for
amendment of the By-laws or further action on the part of the shareholders of
the Corporation.
ARTICLE XXI.
AMENDMENTS
These By-laws may be altered, amended or repealed at any annual or
special meeting of the Stockholders called for the purpose, of which the notice
shall specify the subject matter of the proposed alteration, amendment or repeal
or the sections to be affected thereby, by vote of the Stockholders. These
By-laws may also be altered, amended or repealed by vote of a majority of the
Directors then in office, except that the Directors shall not take any action
which provides for indemnification of Directors nor any action to amend this
Article XXI, and except that the Directors shall not take any action unless
permitted by law.
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Any By-law so altered, amended or repealed by the Directors may be
further altered or amended or reinstated by the Stockholders in the above
manner.
17
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<TABLE>
<S> <C>
EXHIBIT A-9
CERTIFICATE
No. -XXX- --------------------------------------------------------------------------------------
INCORPORATED UNDER THE LAWS OF [GRAPHIC] THE COMMONWEALTH OF MASSACHUSETTS
For ______________________________ Shares
Issued to NUMBER SHARES
-XXX- -XXX-
--------------------------------------------------------------------------------------
__________________________________________ ECGC ACQUISITION GAS COMPANY
__________________________________________
Dated ____________________________________ THIS CERTIFIES THAT SPECIMEN
FROM WHOM TRANSFERRED ---------------------------------------------------------------
is the owner of -XXX- Shares of the Capital Stock of
__________________________________________ ---------------------------
Dated ____________________________________ ECGC ACQUISITION GAS COMPANY
No. ORIGINAL No. ORIGINAL No. OF SHARES
CERTIFICATE SHARES TRANSFERRED transferable only on the books of the Corporation by the holder hereof in person or
by Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
Received CERTIFICATE No. _________________ signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed
For ______________________________ Shares
this -XXX- day of -XXX- A.D. -XX-
this ____________ day of _________________ --------------------- -------------------- --------
--------------------------------------------------------------------------------------
__________________________________________ [SEAL]
__________________________________________ ------------------- -----------------
President Treasurer
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE ==================================================
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERNATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER. CERTIFICATE
FOR
FOR VALUE RECEIVED, ____ hereby sell, assign and transfer unto
_______________________________________________________________________ -XXX-
________________________________________________________________ Shares
of the Capital Stock representated by the within Certificate, and do SHARES
hereby irrevocably constitute and appoint _____________________________
______________________________________________________________ Attorney OF THE
to transfer the said Stock on the books of the within named Corporation
with full power of substitution in the premises. CAPITAL STOCK
Dated _____________________ ______
In presence of ECGC ACQUISITION GAS COMPANY
__________________________________ __________________________________
ISSUED TO
SPECIMEN
DATE
-XXX-
==================================================
</TABLE>
<PAGE> 1
<TABLE>
<S> <C>
EXHIBIT A-12
CERTIFICATE
No. -XXX- --------------------------------------------------------------------------------------
INCORPORATED UNDER THE LAWS OF [GRAPHIC] THE COMMONWEALTH OF MASSACHUSETTS
For ______________________________ Shares
Issued to NUMBER SHARES
-XXX- -XXX-
--------------------------------------------------------------------------------------
__________________________________________ ESSEX COUNTY GAS COMPANY
__________________________________________
Dated ____________________________________ THIS CERTIFIES THAT SPECIMEN
FROM WHOM TRANSFERRED ---------------------------------------------------------------
is the owner of -XXX- Shares of the Capital Stock of
__________________________________________ ---------------------------
Dated ____________________________________ ESSEX COUNTY GAS COMPANY
No. ORIGINAL No. ORIGINAL No. OF SHARES
CERTIFICATE SHARES TRANSFERRED transferable only on the books of the Corporation by the holder hereof in person or
by Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
Received CERTIFICATE No. _________________ signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed
For ______________________________ Shares
this -XXX- day of -XXX- A.D. -XX-
this ____________ day of _________________ --------------------- -------------------- --------
--------------------------------------------------------------------------------------
__________________________________________ [SEAL]
__________________________________________ ------------------- -----------------
President Treasurer
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE ==================================================
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERNATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER. CERTIFICATE
FOR
FOR VALUE RECEIVED, ____ hereby sell, assign and transfer unto
_______________________________________________________________________ -XXX-
________________________________________________________________ Shares
of the Capital Stock representated by the within Certificate, and do SHARES
hereby irrevocably constitute and appoint _____________________________
______________________________________________________________ Attorney OF THE
to transfer the said Stock on the books of the within named Corporation
with full power of substitution in the premises. CAPITAL STOCK
Dated _____________________ ______
In presence of ESSEX COUNTY GAS COMPANY
__________________________________ __________________________________
ISSUED TO
SPECIMEN
DATE
-XXX-
==================================================
</TABLE>
