SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarter Ended December 31, 1996 Commission File No. 0-1857-3
THE BERKSHIRE GAS COMPANY
Massachusetts 04-1731220
115 Cheshire Road, Pittsfield, Massachusetts 01201-1879
Registrant's telephone number, including Area Code 413:442-1511
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
At December 31, 1996, the Registrant had issued and outstanding 2,177,377 shares
of Common Stock, par value $2.50.
THE BERKSHIRE GAS COMPANY
STATEMENTS OF INCOME AND RETAINED EARNINGS - Unaudited
(In Thousands)
<TABLE>
<CAPTION>
Three Months Three Months
Ended 12/31/96 Ended 12/31/95
-------------- --------------
<S> <C> <C>
Operating Revenues $ 12,109 $ 11,952
Cost of Gas Sold 5,650 5,298
-------------------------
Operating Margin 6,459 6,654
-------------------------
Other Operating Expenses 2,905 2,975
Depreciation 1,003 982
-------------------------
Total 3,908 3,957
-------------------------
Utility Operating Income 2,551 2,697
Other Income - Net 747 466
-------------------------
Operating and Other Income 3,298 3,163
Interest Expense 1,034 912
Other Taxes 438 402
-------------------------
Pre-Tax Income 1,826 1,849
Income Taxes 702 711
-------------------------
NET INCOME 1,124 1,138
Retained Earnings at Beginning of Period 6,396 5,389
-------------------------
Total 7,520 6,527
-------------------------
Dividends Declared:
Preferred Stock 88 173
Common Stock 609 584
-------------------------
Total Dividends 697 757
-------------------------
Retained Earnings at End of Period $ 6,823 $ 5,770
=========================
Earnings Available for Common Stock $ 1,036 $ 965
-------------------------
Average Shares of Common Stock Outstanding 2,177.4 2,125.0
-------------------------
Earnings Per Share of Common Stock $ 0.48 $ 0.45
=========================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
THE BERKSHIRE GAS COMPANY
STATEMENTS OF INCOME AND RETAINED EARNINGS - Unaudited
(In Thousands)
<TABLE>
<CAPTION>
Six Months Six Months
Ended 12/31/96 Ended 12/31/95
-------------- --------------
<S> <C> <C>
Operating Revenues $ 16,226 $ 16,105
Cost of Gas Sold 7,282 7,017
-------------------------
Operating Margin 8,944 9,088
-------------------------
Other Operating Expenses 5,635 5,257
Depreciation 1,339 1,317
-------------------------
Total 6,974 6,574
-------------------------
Utility Operating Income 1,970 2,514
Other Income - Net 1,163 782
-------------------------
Operating and Other Income 3,133 3,296
Interest Expense 1,824 1,779
Other Taxes 626 593
-------------------------
Pre-Tax Income 683 924
Income Taxes 267 360
-------------------------
NET INCOME 416 564
Retained Earnings at Beginning of Period 7,883 6,718
-------------------------
Total 8,299 7,282
-------------------------
Dividends Declared:
Preferred Stock 261 346
Common Stock 1,215 1,166
-------------------------
Total Dividends 1,476 1,512
-------------------------
Retained Earnings at End of Period $ 6,823 $ 5,770
=========================
Earnings Available for Common Stock $ 155 $ 218
-------------------------
Average Shares of Common Stock Outstanding 2,169.0 2,119.0
-------------------------
Earnings Per Share of Common Stock $ 0.07 $ 0.10
=========================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
THE BERKSHIRE GAS COMPANY
STATEMENTS OF INCOME AND RETAINED EARNINGS - Unaudited
(In Thousands)
<TABLE>
<CAPTION>
Twelve Months Twelve Months
Ended 12/31/96 Ended 12/31/95
-------------- --------------
<S> <C> <C>
Operating Revenues $ 46,170 $ 47,121
Cost of Gas Sold 20,480 23,079
-------------------------
Operating Margin 25,690 24,042
-------------------------
Other Operating Expenses 11,860 11,310
Depreciation 3,868 3,719
-------------------------
Total 15,728 15,029
-------------------------
Utility Operating Income 9,962 9,013
Other Income - Net 1,916 1,447
-------------------------
Operating and Other Income 11,878 10,460
Interest Expense 3,516 3,355
Other Taxes 1,748 1,905
-------------------------
Pre-Tax Income 6,614 5,200
Income Taxes 2,548 1,997
-------------------------
NET INCOME 4,066 3,203
Retained Earnings at Beginning of Period 5,770 5,580
-------------------------
Total 9,836 8,783
-------------------------
Dividends Declared:
Preferred Stock 607 693
Common Stock 2,406 2,320
-------------------------
Total Dividends 3,013 3,013
-------------------------
Retained Earnings at End of Period $ 6,823 $ 5,770
=========================
Earnings Available for Common Stock $ 3,459 $ 2,510
-------------------------
Average Shares of Common Stock Outstanding 2,153.9 2,105.5
-------------------------
Earnings Per Share of Common Stock $ 1.61 $ 1.19
=========================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
THE BERKSHIRE GAS COMPANY
BALANCE SHEETS
(In Thousands)
<TABLE>
<CAPTION>
December 31, June 30,
1996 1996
(Unaudited) (Audited)
------------ ---------
<S> <C> <C>
ASSETS:
Utility Plant:
Utility Plant - at original cost $ 99,296 $ 96,571
Less: Accumulated Depreciation 26,207 25,356
----------------------
Utility Plant - Net 73,089 71,215
----------------------
Other Property:
Other Property - at original cost 11,621 11,229
Less: Accumulated Depreciation 5,618 5,280
----------------------
Other Property - Net 6,003 5,949
----------------------
Current Assets:
Cash 402 196
Accounts Receivable
Utility Service (less allowance: Dec. 1996-$569;
June 1996-$720) 7,036 5,781
Merchandise & Other (less allowance: Dec. 1996-$118;
June 1996-$96) 1,153 685
Other Receivables 173 347
Inventories (at the lower of average cost or market):
Natural Gas 2,806 1,330
Liquefied Petroleum 454 248
Materials and Supplies 1,481 1,492
Prepayments and Other 586 307
Prepaid and Current Deferred Taxes 1,934 249
Recoverable(Refundable) Gas Costs 3,784 (831)
----------------------
Total Current Assets 19,809 9,804
----------------------
Deferred Debits:
Unamortized Debt Expense 2,240 729
Capital Stock Expense 454 508
Environmental Cleanup Costs 1,048 973
Other 1,674 1,192
----------------------
Total Deferred Debits 5,416 3,402
----------------------
Recoverable Environmental Cleanup Costs 3,290 3,290
----------------------
TOTAL ASSETS $ 107,607 $ 93,660
======================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
THE BERKSHIRE GAS COMPANY
BALANCE SHEETS
(In Thousands)
<TABLE>
<CAPTION>
December 31, June 30,
1996 1996
(Unaudited) (Audited)
------------ ---------
<S> <C> <C>
CAPITALIZATION AND LIABILITIES Common Shareholders'
Equity:
Common Stock $ 5,443 $ 5,382
Premium on Common Stock 16,652 16,330
Retained Earnings 6,823 7,883
----------------------
Total Common Shareholders' Equity 28,918 29,595
----------------------
Redeemable Cumulative Preferred Stock 363 8,406
----------------------
Long-Term Debt 40,000 31,999
----------------------
Current Liabilities:
Notes Payable to Banks 14,965 3,636
Accounts Payable 4,727 3,176
Other Current Liabilities 2,246 2,453
----------------------
Total Current Liabilities 21,938 9,265
----------------------
Other Liabilities 1,391 1,159
----------------------
Unamortized Investment Tax Credit 1,244 1,280
----------------------
Deferred Income Taxes 10,463 8,666
----------------------
Reserve for Recoverable Environmental Cleanup Costs 3,290 3,290
----------------------
TOTAL CAPITALIZATION AND LIABILITIES $ 107,607 $ 93,660
======================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
THE BERKSHIRE GAS COMPANY
STATEMENTS OF CASH FLOWS - Unaudited
(In Thousands)
<TABLE>
<CAPTION>
Six Months Six Months
Ended 12/31/96 Ended 12/31/95
-------------- --------------
<S> <C> <C>
Cash Flows from Operating Activities:
Net Income $ 416 $ 564
Adjustments to Reconcile Net Income to Net Cash Used
in Operating Activities:
Depreciation and Amortization 1,817 1,780
Provision for Losses on Accounts Receivable 351 448
Refundable Gas Costs (4,615) (2,593)
Deferred Income Taxes 1,797 1,016
Changes in Assets and Liabilities Which Provided
(Used) Cash:
Accounts Receivable (2,074) (2,235)
Other Receivables 174 130
Inventories (1,671) 78
Accounts Payable 1,551 863
Prepaid and Current Deferred Taxes (1,685) (971)
Other (983) (1,019)
--------------------------
Total Adjustments (5,338) (2,503)
--------------------------
Net Cash Used in Operating Activities (4,922) (1,939)
--------------------------
Cash Flows from Investing Activities:
Construction Expenditures (3,705) (3,970)
--------------------------
Cash Flows from Financing Activities:
Dividends Paid (1,477) (1,512)
Proceeds from Issuance of Long-Term Debt 16,000 0
Proceeds from Note Payable Borrowings 3,330 7,015
Redemption of Preferred Stock (9,360) 0
Proceeds from Other Stock Transactions 340 278
--------------------------
Net Cash Provided by Financing Activities 8,833 5,781
--------------------------
Net Increase (Decrease) in Cash 206 (128)
Cash at Beginning of Period 196 492
--------------------------
Cash at End of Period $ 402 $ 364
==========================
</TABLE>
See Independent Accountants' Review Report and Notes to Financial Statements.
The Berkshire Gas Company
Notes to Financial Statements
December 31,1996
- -------------------------------------------------------------------------------
(Dollars in Thousands Except Share Amounts)
NOTES:
OTHER FINANCIAL INFORMATION:
The accompanying unaudited financial statements have been prepared in
accordance with the instructions to Form 10-Q and do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. All adjustments, which in the opinion of
management are necessary for a fair presentation of the operations for the
interim periods presented, have been made. These adjustments are of a normal
recurring nature. The results of operations for such interim periods are not
necessarily indicative of results of operations for a full year. These financial
statements should be read in conjunction with the summary of accounting policies
and notes to financial statements included in the Company's Annual Report on
Form 10-K for the year ended June 30, 1996.
CONTINGENCIES:
ENVIRONMENTAL:
Like other companies in the natural gas industry, the Company is a party
to governmental actions associated with former gas manufacturing sites.
Management estimates that expenditures to remediate and monitor known
environmental sites will range from $3,290 to $12,302. In accordance with SFAS
No. 5, the Company has recorded the most likely cost of $3,290. The Company's
unamortized costs at December 31, 1996 were $1,048 and should be recovered over
a seven-year period through the Cost of Gas Adjustment Clause ("CGAC").
Management's Discussion and Analysis of Financial Condition and
Results of Operations
- --------------------------------------------------------------------------------
Results of Operations - Second Quarter Ended December 31, 1996
versus Second Quarter Ended December 31, 1995
- --------------------------------------------------------------------------------
Berkshire Gas considers Operating Margin (Operating Margin or Gross Profit
= Operating Revenues Net of Cost of Gas Sold) to be a more pertinent measure of
operating results than Operating Revenues. This is due primarily to the fact
that revenues include changes in the cost of natural gas which must be recovered
or returned to customers through the Cost of Gas Adjustment Clause.
Consequently, changes in the cost of gas will affect revenue levels, but does
not have a corresponding affect on income. Additionally, margins earned on
interruptible gas sold and transported are flowed back to firm customers and
therefore are not included in income. Accordingly, the discussion below pertains
to Operating Margin.
Operating Margin decreased $195,000 or 2.9% from the three months ended
December 31, 1995. Operating Margin is primarily affected by the change in the
level of firm gas sold and transported. The decrease from 1995 is primarily due
to lower volumes of firm residential and commercial gas sold resulting from
warmer than normal weather, partially offset by higher transportation revenues
and an increase in the number of customers.
<TABLE>
<CAPTION>
1996 1995
----------- ------------
<S> <C> <C>
3 Month Firm MCF Sold & Transported 1,651,000 1,662,000
3 Month Operating Margin $ 6,459,000 $ 6,654,000
3 Month Average Operating Margin Per Firm MCF $ 3.91 $ 4.00
</TABLE>
Other Operating Expenses decreased $70,000 or 2.4% from the three months
ended December 31, 1996. The decrease is primarily due to lower Administrative
and General Costs reflecting lower costs of employee benefits and a decrease in
customer accounts expense due to reduced bad debt expense.
Depreciation Expense increased $21,000 due to an increase in the amount of
depreciable assets.
Other Income increased $281,000 or 60.3% from 1995. The increase was
primarily due to higher interest income from the over/under collection of gas
costs from customers through the CGAC, increase in propane net revenues due to
greater margins, and to a lesser extent, an increased customer base. Higher
jobbing revenues was due to higher levels of service activity.
Interest Expense increased $122,000 due to higher levels of borrowings
caused by increased gas costs and to a debt restructuring which replaced
$8,000,000 of the 8.4% Preferred Stock with a 7.8% Senior Note.
Dividends on Preferred Stock decreased $85,000 due to the retirement of
the 8.4% Preferred series. Dividends on Common Stock increased $25,000 due to an
increase in the dividend rate of 1/2 cent per share quarterly and an increase in
the number of shares reflecting shareholder participation in the Dividend
Reinvestment Program.
The Allowance for Doubtful Accounts on Utility Service Accounts Receivable
was reduced by $151,000 since June 30, 1996 due to additional accounts being
written off.
Management's Discussion and Analysis of Financial Condition and
Results of Operations
- --------------------------------------------------------------------------------
Results of Operations - Six Months Ended December 31, 1996
versus Six Months Ended December 31, 1995
- --------------------------------------------------------------------------------
Operating Margin decreased $144,000 or 1.6% as compared with the six
months ended December 31, 1995. The decrease is due to 6% warmer than normal
weather, partially offset by higher transportation revenues and increased
customer base.
<TABLE>
<CAPTION>
1996 1995
----------- -----------
<S> <C> <C>
6 Month Firm MCF Sold & Transported 2,347,000 2,363,000
6 Month Operating Margin $ 8,944,000 $ 9,088,000
6 Month Average Operating Margin Per Firm MCF $ 3.81 $ 3.85
</TABLE>
Other Operating Expenses increased $378,000 or 7.2% from the six months
ended December 31, 1995. The increase is due primarily to higher Administrative
and General Expenses of $239,000 due to the implementation of an early
retirement program to lower payroll costs, higher Transmission and Distribution
expense of $112,000 due to increased customer service costs and vehicle leasing
costs, and higher Marketing expenses, partially offset by lower costs of
uncollectible accounts expense.
Depreciation expense increased $22,000 due to an increase in the amount of
depreciable assets.
Other Income increased $381,000 or 48.7%, Interest Expense increased
$45,000 or 2.5%, Dividends on Preferred Stock decreased $85,000, and Dividends
on Common Stock increased $49,000 from the six months ended December 31, 1995
for the same reasons as discussed in the Results of Operations - Second Quarter.
Income Taxes decreased $93,000 or 25.8% due to a decrease in Pre-Tax
Income.
Management's Discussion and Analysis of Financial Condition and
Results of Operations
- --------------------------------------------------------------------------------
Results of Operations - Twelve Months Ended December 31, 1996
versus Twelve Months Ended December 31, 1995
- --------------------------------------------------------------------------------
Earnings available for Common Stock were $3,459,000 for the twelve months
ended December 31, 1996 as compared to $2,510,000 for 1995. The increase is due
primarily to a return to colder weather during the 1996 heating season.
Operating Margin increased $1,648,000 or 6.9% from the twelve months ended
December 31, 1995. Operating Margin is primarily affected by the change in the
level of firm gas sold and transported.
The Company's sales are affected by weather as the majority of its firm
customers use natural gas for heating. The increase from 1995 is primarily due
to higher volumes of firm gas sold due to 13.0% colder weather for the winter
period of January - March as compared with 1995.
<TABLE>
<CAPTION>
1996 1995
------------ ------------
<S> <C> <C>
12 Month Firm MCF Sold & Transported 6,498,000 6,122,000
12 Month Operating Margin $ 25,690,000 $ 24,042,000
12 Month Average Operating Margin Per Firm MCF $ 3.95 $ 3.93
</TABLE>
Other Operating Expenses increased $550,000 or 4.9% over the twelve months
ended December 31, 1995. The increase is primarily the result of higher Customer
Accounts expenses of $255,000 due to higher levels of uncollectible accounts and
increased data processing costs, higher Transmission and Distribution expenses
of $256,000 and net increase in all other expenses of $39,000.
Depreciation increased $149,000 over the twelve months ended December 31,
1995, due to an increase in the level of depreciable assets.
Other Income increased $469,000 or 32.4% from 1995. The increase was
primarily due to higher interest on the undercollection of prior period gas
costs through the CGAC, higher Propane revenues due to colder weather, partially
offset by lower Appliance Rental revenues.
Interest expense increased $161,000 due to the increase in long-term debt
used to retire the $8,000,000, 8.4% Preferred Stock series.
Income Taxes increased $551,000 due to higher earnings in 1996.
Dividends on Preferred Stock decreased $86,000 due to the retirement of
the 8.4% Preferred Stock in the fourth quarter of 1996.
Dividends declared on Common Stock increased $86,000 due to additional
shares outstanding through the Company's DRIP and to a lesser extent, an
increase in quarterly dividends to $.28 per share from $.275, effective the
fourth quarter of 1996.
Liquidity and Capital Resources - December 31, 1996
The Company added approximately $3,705,000 to Plant assets during the six
months ended December 31, 1996. These construction expenditures primarily
represent investments in new and replacement mains and services, and the
continued conversion to automated meter reading.
The capital structure of the Company at December 31, 1996 was 41.7% Common
Equity, .5% Preferred Stock and 57.8% Long-Term Debt.
The Company initially finances construction expenditures and other funding
needs primarily with short-term bank borrowings, and to a lesser extent with the
reinvestment of dividends. The Company continually evaluates its short-term
borrowing position and based on prevailing interest rates, market conditions,
etc., makes determinations regarding conversion of short-term borrowings to
long-term debt or equity. As part of this process and in keeping with its cost
containment program, the Company called for redemption the First Mortgage Bonds,
Series K, 7.875%, $540,000 and Series M, 9.375%, $720,000 and the 9.125%
Debentures, $6,543,000 during the third quarter of fiscal 1996. During the
second quarter of fiscal 1997, the Company repurchased the 80,000 shares of the
8.4% Preferred Stock at $117 per share. To finance these redemptions, the
Company sold a $16,000,000 Senior Note at 7.8% due 2021. As of June 30, 1996, in
accordance with SFAS No. 6, the Company had classified $7,999,000 of Notes
Payable to Banks as Long-Term Debt in anticipation of the Senior Note
transaction.
Funds for environmental clean-up costs are initially financed through
short-term borrowings and all such costs will be recovered over a seven year
period under a ruling issued by the MDPU.
Cautionary Statement for Purposes of the "Safe Harbor"
Provisions of the Private Securities Litigation Reform
Act of 1995
This Quarterly Report contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995. Actual results
could differ materially from those contemplated by such statements. Such
statements reflect management's current views, are based on many assumptions and
are subject to risks and uncertainties.
Certain important factors which could cause such results to differ include
risks associated with the Company's maintaining contracts with specific
customers, government regulation, the increasingly competitive nature of the
markets in which the Company is engaged, and dependence on key personnel. These
factors are not intended to represent a complete list of the general or specific
risks that may affect the Company.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
- ---------------------------
No developments during the quarter.
Item 2. Changes in Securities
- -------------------------------
During November, 1996, the Company repurchased all 80,000 shares of
the 8.4% Preferred Stock series at $117 per share. The redemptions
were financed through the sale of a $16,000,000, 7.8% Senior Note
due 2021.
Item 3. Defaults Upon Senior Securities
- -----------------------------------------
Not Applicable
Item 4. Submission of Matters to a Vote of Security Holders
- -------------------------------------------------------------
On November 13, 1996, the Annual Meeting of the shareholders of the
Berkshire Gas Company was held at the Berkshire Hilton Inn,
Pittsfield, Massachusetts at 10:00 a.m.
Proxies for said annual meeting were solicited pursuant to
Regulation 14A. There was no solicitation in opposition to
Management's nominees, as listed in the Proxy statement, for the
election of Directors. All nominees were duly elected.
Item 5. Other Information
- ---------------------------
Not Applicable
Item 6. Exhibits and Reports on Form 8 - K
- --------------------------------------------
(a) List of Exhibits
3(i) - Articles of Incorporation including an Amendment to the
Company's Charter dated September 10, 1996, and attached
herewith.
4 - A copy of the Senior Note Agreement dated November 1,
1996, and attached herewith.
27 - Financial Data Schedule
The balance sheet as of December 31, 1996, the related statements of operations
and retained earnings for the three month, six month and twelve month periods
ended December 31, 1996 and 1995, and the statements of cash flows for the six
month periods ended December 31, 1996 and 1995 have been reviewed, prior to
filing, by the Registrant's independent public accountants, Deloitte & Touche
LLP, whose report covering their review of the financial statements is presented
below.
Deloitte &
Touche LLP
- ------------- --------------------------------------------------------------
City Place Telephone: (860) 280-3000
185 Asylum Street Facsimile: (860) 280-3051
Hartford, Connecticut 06103-3402
INDEPENDENT ACCOUNTANTS' REPORT
The Berkshire Gas Company:
We have reviewed the accompanying balance sheet of The Berkshire Gas Company as
of December 31, 1996, the related statements of operations and retained earnings
for the three month, six month and twelve month periods ended December 31, 1996
and 1995, and the statements of cash flows for the six month periods ended
December 31, 1996 and 1995. These financial statements are the responsibility of
the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and of making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements as a whole.
Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to such financial statements for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the balance sheet of The Berkshire Gas Company as of June 30, 1996,
and the related statements of income and retained earnings and of cash flows for
the year then ended (not presented herein); and in our report dated August 19,
1996, we expressed an unqualified opinion on those financial statements. In our
opinion, the information set forth in the accompanying balance sheet as of June
30, 1996 is fairly stated, in all material respects, in relation to the balance
sheet from which it has been derived.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
February 10, 1997
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE BERKSHIRE GAS COMPANY
Registrant
/s/ MICHAEL J. MARRONE
----------------------------------------
Michael J. Marrone
Vice President, Treasurer &
Chief Financial Officer
Dated: February 11, 1997
COMMONWEALTH OF MASSACHUSETTS
IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND FIFTY-THREE.
AN ACT to incorporate the Pittsfield Coal Gas Company.
Be it enacted by the Senate and House of Representatives in General
Court assembled, and by the authority of the same, as follows,-Section 1.
George S. Willis, Henry Colt and Thomas F. Plunkett, their associates and
successors, are hereby made a corporation, by the name of the Pittsfield
Coal Gas Company; for the purpose of erecting gas works and manufacturing
gas, in the town of Pittsfield, in the county of Berkshire, and supplying
the said town and the inhabitants thereof with the same: with all the rights
and privileges and subject to all the duties, liabilities and restrictions,
set forth in the thirty-eighth and forty-fourth chapters of the Revised
Ltatlio.-Section 2. Said corporation may take and hold such real and
personal estate, as may be necessary for the purpose aforesaid; but the
capital stock of said company shall not exceed one hundred thousand dollars
and no shares in the capital stock shall be issued for a less sum or amount,
to be paid in on each, than the par value of the shares first issued.-
Section 3. The said corporation, with the consent of the selectman of the
said town, shall have power and authority to open the ground in any part of
the streets, lanes and highways of the said town, for the purpose of sinking
and repairing such pipes and conductors as it may be necessary to sink for
the purpose aforesaid; and the said corporation after opening the ground in
such streets, lanes and highways, shall be held to put the same in repair
again, under the penalty of being prosecuted for a nuisance: provided that
the said selectman for the time being, shall at all times have the power to
regulate, restrict and control the acts and doings of the said corporation,
which may in any manner affect the health, safety or convenience of the
inhabitants of the said town.-Section 4. This act shall take affect from
and after its passage.
House of Representatives, February 22, 1853.
Passed to be enacted. R. /s/ Speaker
----------------
In Senate, February, 23, 1853.
Passed to be enacted. C. H. Warren, President
February 23, 1853
Approved. John H. Clifford
Robert W. Adam President, William R. Plunkett Treasurer, and
Robert W. Adam
Thomas F. Plunkett
John R. Warriner
George G. Willis
being a majority of the Directors of The Berkshire Coal Gas Company in
compliance with the provisions of the thirty-fourth section of chapter two
hundred and twenty-four of the Acts of the year eighteen hundred and
seventy, do hereby certify, that the capital stock of said Corporation has
been increased by the amount of twelve thousand five hundred ($12,500)
dollars, and that the same has been paid in.
IN WITNESS WHEREOF, we have hereunto signed our names, this fifth day of
February in the year eighteen hundred and seventy four.
Robert W. Adam
Thomas F. Plunkett
J. R. Warriner
George G. Willis
W. R. Plunkett
COMMONWEALTH OF MASSACHUSETTS
Berkshire ss. February 5, 1874.
Then personally appeared the above-named Robert W. Adam W. R. Plunkett
Thomas F. Plunkett John R. Warriner George S. Willis and severally made oath
that the foregoing certificate, by them subscribed, is true to the best of
their knowledge and belief.
Before me,
/s/ Henry N. Newton
-------------------------------
Henry N. Newton
Justice of the Peace
Pittsfield Coal Gas Company
Fee $6.26 paid.
CERTIFICATE OF INCREASE OF CAPITAL
ACTS OF 1870, CHAP. 224, SECT. 34.
Filed in the office of the Secretary of the Commonwealth, February 9, 1874.
I hereby approve the within writing Certificate, this Seventh day of
February, A. D. Eighteen hundred and seventy-four.
Dan A. Eleasen
Commissioner of Corporations.
Recorded.
J.S.C. 2:161.
Robert W. Adam President, William R. Plunkett Treasurer, and Robert W. Adam,
William R. Plunkett Jackus, Jas W. Hull, and Geo H. Tucker, being a majority
of the Directors of The Pittsfield Coal Gas Company in compliance with the
provisions of the fifty-fourth section of chapter one hundred and ten of the
Revised Laws, do hereby certify, that the capital stock of said Corporation
has been increased by the amount of Sixty Two Thousand Five Hundred dollars,
and that the same has been paid in.
IN WITNESS WHEREOF, we have hereto signed our names, this Sixth day of
September in the year nineteen hundred and two.
Rob W. Adam, President.
William R. Plunkett, Treasurer.
W. G. Backus
Rob W. Adam
Jac W. Hull
W. R. Plunkett
Geo H. Tucker
COMMONWEALTH OF MASSACHUSETTS
Berkshire ss. Pittsfield Sept 6th 1902.
Then personally appeared the above-named Robert W. Adam, William R.
Plunkett, W. G. Backus, Jas W. Hull, and Geo H. Tucker and severally made
oath that the foregoing certificate, by them subscribed, is true, to the
best of their knowledge and belief.
Before me,
/s/ Human C. Nloms
-------------------------------
Human C. Nloms
Justice of the Peace.
Pittsfield Coal Gas Company
In $31.25 paid
CERTIFICATE OF INCREASE OF CAPITAL
REVISED LAWS, CHAP. 110, SECT. 54
Filed in the office of the Secretary of the Commonwealth, September 9, 1902.
I hereby approve the within certificate, this Ninth day of September A. D.
Nineteen hundred and two.
William D.T. Trefry
Commissioner of Corporations.
Recorded Vol. 140, fr. ebo.
RECEIVED
SEP 9 - 1902
CORPORATION DIVISION
SECRETARY'S OFFICE
COMMISSIONER OF
SEP
9
1902
CORPORATIONS
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATION AND TAXATION
We, William L. Adam, President, Thomas F. Plunkett, Treasurer and William L.
Adam, Thomas F. Plunkett, George H. Tucker, and Norman C. Hull, being a
majority of the Directors of Pittsfield Coal Gas Company, in compliance with
the provisions of section thirty-nine of chapter on hundred and fifty-eight
as amended (Chapter 164 Section 10) of the General Laws, and all other
pertinent provisions of law, do hereby certify that at a meeting of the
stockholders called for the purpose and held on October 26, 1906 the capital
stock of said corporation was increased by the amount of fifty thousand
dollars, and that the same had been paid in on May 12, 1907.
The total amount of capital stock then already authorized was
twenty-five hundred {shares common.
The amount of full paid capital stock then already issued for
cash was
twenty-five hundred {shares common.
The amount of full paid capital stock then already issued for
property was
{shares preferred.
none {shares common.
The amount of additional capital stock authorized as aforesaid
was
{shares preferred.
five hundred {shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this 29th day of July in the year 1932.
William L. Adam, President.
Thomas F. Plunkett, Treasurer.
William L. Adam ) Majority
Thomas F. Plunkett ) of
George H. Tucker ) Directors
Norman C. Hull )
Pittsfield Coal Gas Company
[Including Fee $40.00 pd
Validation fee $15 paid]
CERTIFICATE OF INCREASE OF CAPITAL.
GENERAL LAWS, CHAP. 164, SEC. 10 AND
CHAP.. 158, SECTS 39 AND 41.
Filed in the office of the Secretary of the Commonwealth August 1, 1932.
I hereby approve the within certificate, this first day of August, A.D.
1932.
Henry T. Long
Commissioner of Corporations and Taxation.
RECEIVED
AUG 1 - 1932
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
A. M. AUG 1 - 1932
CORPORATIONS AND TAXATION
DEPARTMENT OF
CORPORATIONS AND TAXATION
A
W AUG 1 - 1932
M
WITH FEE OF $40(87.50)CK
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
We, William L. Adam, President, Thomas F. Plunkett, Treasurer and William L.
Adam Thomas F. Plunkett, George H. Tucker, and Norman C. Hull being a
majority of the Directors of Pittsfield Coal Gas Company, in compliance
with the provision of section thirty-nine of chapter one hundred and fifty-
eight as amended (Chapter 164 Section 10) of the General Laws, and all other
pertinent provisions of law, do hereby certify that at a meeting of the
stockholders called for the purpose and held on April 15, 1904 the capital
stock of said corporation was increased by the amount of sixty thousand
dollars, and that the same had all been paid in on May 10, 1906.
The total amount of capital stock then already authorized was
nineteen hundred {shares common.
The amount of full paid capital stock then already issued for
cash was
nineteen hundred {shares common.
The amount of full paid capital stock then already issued for
property was
{shares preferred.
none {shares common.
The amount of additional capital stock authorized as aforesaid
was
six hundred {shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this 29th day of July in the year 1932.
/s/ William L. Adam
-------------------------------
William L. Adam, President.
/s/ Thomas F. Plunkett
-------------------------------
Thomas F. Plunkett, Treasurer.
William L. Adam ) Majority
Thomas F. Plunkett ) of
George H. Tucker ) Directors
Norman C. Hull )
Pittsfield Coal Gas Company
[Including Fee $45.00 pd
Validation Fee $15 paid
CERTIFICATE OF INCREASE OF CAPITAL
GENERAL LAWS, CHAP. 164, SEC. 10 AND
CHAP. 158, SECTS. 39 AND 41.
Filed in the office of the Secretary of the Commonwealth Aug. 1, 1932.
I hereby approve the within certificate, this first day of August A.D. 1932.
/s/ Henry T. Long
-------------------------------
Henry T. Long
Commissioner of Corporations and Taxation.
RECEIVED
AUG 1 - 1932
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
CORPORATIONS AND TAXATION
A
W AUG 1 - 1932
M
WITH FEE OF $45(87.50CK)($15 VAL)
DEPARTMENT OF
A. M. Aug 1 - 1932
CORPORATIONS AND TAXATION
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATION AND TAXATION
We, William L. Adam, President, Thomas F. Plunkett, Treasurer and William L.
Adam, Thomas F. Plunkett, George H. Tucker, and Norman C. Hull, being a
majority of the Directors of Pittsfield Coal Gas Company, in compliance with
the provisions of section thirty-nine of chapter one hundred and fifty-eight
as amended (Chapter 164 Section 10) of the General Laws, and all other
pertinent provisions of law, do hereby certify that at a meeting of the
stockholders called for the purpose and held on May 12, 1903 the capital
stock of said corporation was increased by the amount of sixty-five thousand
dollars, and that the same had all been paid in on August 15, 1903.
The total amount of capital stock then already authorized was
twelve hundred and fifty {shares common.
The amount of full paid capital stock then already issued for
cash was
twelve hundred and fifty {shares common.
The amount of full paid capital stock then already issued for
property was
{shares preferred
none {shares common.
The amount of additional capital stock authorized as aforesaid
was
six hundred and fifty {shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this 29th day of July in the year 1932.
William L. Adam, President.
Thomas F. Plunkett, Treasurer.
William L. Adam ) Majority
George H. Tucker ) of
Thomas F. Plunkett ) Directors
Norman C. Hull )
Pittsfield Coal Gas Company
[Including Fee $47.50 pd
Validation fee $15 paid]
CERTIFICATE OF INCREASE OF CAPITAL
GENERAL LAWS, CHAP. 164, SEC. 10 AND
CHAP. 158, SECTS. 39 AND 41.
Filed in the office of the Secretary of the Commonwealth. August 1, 1932.
I hereby approve the within certificate, this first day of August A.D. 1932.
Henry T. Long
Commissioner of Corporations and Taxation.
RECEIVED
AUG 1 - 1932
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
A. M. AUG 1 - 1932
CORPORATIONS AND TAXATION
DEPARTMENT OF
CORPORATIONS AND TAXATION
A
W AUG 1 - 1932
M
WITH FEE OF $47.50 CK
CHAPTER 159
COMMONWEALTH OF MASSACHUSETTS
IN THE YEAR ONE THOUSAND NINE HUNDRED AND THREE
AN ACT To Authorize the Pittsfield Coal Gas Company, under certain
conditions to furnish Garand Electricity in the Town of Dalton.
BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES IN GENERAL
COURT ASSEMBLED, AND BY THE AUTHORITY OF THE SAME, AS FOLLOWS: SECTION 1.
The Pittsfield Coal Gas Company is hereby authorized, upon the approval of
the board of gas and electric light commissioners, and with the consent of
the selectman of the town of Dalton to furnish gas and electricity for heat,
light and power in the town of Dalton, with all the rights, powers and
privileges and subject to all the duties, restrictions and liabilities set
forth in all general laws now on hereafter in force applicable to such
corporations. SECTION 2. This act shall take effect upon its passage.
House of Representatives, March 12, 1903.
Passed to be enacted. James J. Myren Speaker
In Senate, March 13, 1903.
Passed to be enacted. George R. Jones President
March 17, 1903
Approved.
/s/ John L. Batio
-------------------------------
John L. Batio
We, Robert W. Adam President, Harry A. Dunbar, Treasurer, and Robert W.
Adam, James N. Hall, William G. Backus, Thomas F. Plunkett, being a majority
of the Directors of The Pittsfield Coal Gas Company in compliance with the
provisions of the fifty-fourth section of chapter one hundred and ten of the
Revised Laws of the Commonwealth of Massachusetts, do hereby certify that at
a legal meeting of the stockholders called for the purpose the capital stock
of said Corporation has been increased by the amount of Thirty Thousand
dollars, and that the same has all been paid in, on May 20th, 1909.
IN WITNESS WHEREOF, we have hereto signed our names, this twenty-seventh day
of August in the year nineteen hundred and nine.
Rob W. Adam, President.
H. A. Dunbar, Treasurer.
Rob W. Adam
James W. Hall
Thomas F. Plunkett
W. G. Backus
COMMONWEALTH OF MASSACHUSETTS
Berkshire ss. August 27, 1909.
Then personally appeared the above-named Robert W. Adam, President and Harry
A. Dunbar, Treasurer and Robert W. Adam, James W. Hall, William G. Backus,
and Thomas F. Plunkett, Directors and severally made oath that the foregoing
certificate, by them subscribed, is true, to the best of their knowledge and
belief.
Before me,
/s/ William L. Adam
-------------------------------
William L. Adam,
Justice of the Peace.
Pittsfield Coal Gas Company
Fee $15.00 paid
CERTIFICATE OF INCREASE OF CAPITAL
REVISED LAWS, CHAP. 110 SECT. 54.
Filed in the office of the Secretary of the Commonwealth, September 3, 1909.
I hereby approve the within certificate, this 3rd day of September A.D.
nineteen hundred and nine.
William D.T. Trefry
Commissioner of Corporations.
Recorded volume 14.0
Page 486
RECEIVED
SEP 3 - 1909
CORPORATION DIVISION
SECRETARY'S OFFICE
COMMISSIONER OF
SEP 1 - 1909
CORPORATIONS.
We, William L. Adam, President and Henry A. Dunbar Treasurer, and Norman C.
Hull, William L. Adam, George H. Tucker and W.G. Backus being a majority of
the Directors of the Pittsfield Coal Gas Company in compliance with the
provisions of section sixty-eight of chapter seven hundred and forty-two of
the Acts of the year 1914, do hereby certify that the capital stock of said
Corporation has been increased by the amount of Two Hundred and Four
Thousand Dollars, and that the same has all been paid in, on February 1,
1919.
IN WITNESS WHEREOF, we have hereto signed our names, this 19th day of August
in the year nineteen hundred and nineteen.
William L. Adam, President.
Harry A. Dunbar, Treasurer.
Norman C. Hull
William L. Adam
George H. Tucker
W.G. Backus
THE COMMONWEALTH OF MASSACHUSETTS.
Berkshire ss. August 9, 1919.
Then personally appeared the above-named William L. Adam, Pres., Harry A.
Dunbar, Treas., and Norman C. Hull, William L. Adam, George. H. Tucker, and
W.G. Backus and severally made oath that the foregoing certificate, by them
subscribed, is true, to the best of their knowledge and belief.
Before me,
/s/ Leroy F. Kelley
-------------------------------
Leroy F. Kelley
Notary Public.
GAS AND ELECTRIC COMPANIES
Pittsfield Coal Gas Company
Fee $102.00 pd.
CERTIFICATE OF INCREASE OF CAPITAL STOCK
ACTS OF 1914, CHAPTER 742.
Filed in the office of the Secretary of the Commonwealth, AUG. 18, 1919.
I hereby approve the within certificate, this 18th day of August A.D.
nineteen hundred and nineteen.
William T. Trefry
Commissioner of Corporations.
Recorded
Vol. 314 p. 275
RECEIVED
AUG 18 - 1919
CORPORATION DIVISION
SECRETARY'S OFFICE
COMMISSIONER
OF CORPORATIONS
AUG 18 - 1919
WITH FEE OF $102.00
COMMISSIONER OF
AUG 18 - 1919
CORPORATIONS
COMMISSIONER OF
AUG 11 - 1919
CORPORATIONS
We, Robert W. Adam, President, Harry A. Dunbar, Treasurer, and Robert W.
Adam, James W. Hull, W. G. Backus, Geo. H. Tucker and Thomas F. Plunkett
being a majority of the Directors of the Pittsfield Coal Gas Company, in
compliance with the provisions of the fifty-fourth section of chapter one
hundred and ten of the Revised Laws of the Commonwealth of Massachusetts, do
hereby certify that at a legal meeting of the stockholders called for the
purpose the capital stock of said Corporation has been increased by the
amount of Sixty-Six Thousand dollars, and that the same has all been paid
in, on March 25th., 1910.
IN WITNESS WHEREOF, we have hereto signed our names, this twenty-
seventh day of September in the year nineteen hundred and ten.
Rob. W. Adam, President.
Harry A. Dunbar, Treasurer.
Rob W. Adam
James W. Hull
W. G. Backus
Geo. H. Tucker
Thomas F. Plunkett
THE COMMONWEALTH OF MASSACHUSETTS.
Berkshire ss. September 27, 1910.
Then personally appeared the above-named Robert W. Adam, President, Harry A.
Dunbar, Treasurer, and Robert W. Adam, James W. Hull, W. G. Backus, George
H. Tucker, and Thomas F. Plunkett, majority of the Board of Directors and
severally made oath that the foregoing certificate, by them subscribed, is
true, to the best of their knowledge and belief.
Before me,
William G. Adam
Justice of the Peace.
Pittsfield Coal Gas Company
Fee $33.00 paid
CERTIFICATE OF INCREASE OF CAPITAL
REVISED LAWS, CHAP. 110, SECT. 54.
Filed in the office of the Secretary of the Commonwealth Oct. 1, 1910
I hereby approve the within certificate, this first day of October A.D.
nineteen hundred ten.
William D.J. Trefry
Commissioner of Corporations.
Recorded
Col. 140, p. 507.
COMMISSIONER OF
OCT 1 - 1910
CORPORATIONS
RECEIVED
OCT 1 - 1910
CORPORATION DIVISION
SECRETARY'S OFFICE
COMMISSIONER
OF CORPORATIONS
OCT 1 - 1910
WITH FEE OF $33.00 CK
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
We, William L. Adam President, Harry A. Dunbar Treasurer and Williams L.
Adam, W. G. Backus, Geo H. Tucker and Norman C. Hull, Directors being a
majority of the Directors of the Pittsfield Coal Gas Company in compliance
with the provisions of the thirty-ninth section of chapter one hundred and
fifty-eight of the General Laws and of all acts in amendment thereof and in
addition thereto, do hereby certify that at a meeting of the stockholders
called for the purpose the capital stock of said corporation has been
increased by the amount of Two Hundred and Fifty Thousand dollars, and that
the same has all been paid in on December third 1925.
IN WITNESS WHEREOF, we have hereto signed our names, this 17th day of
December in the year nineteen hundred and twenty-five.
/s/ William L. Adam
-------------------------------
William L. Adam, President
/s/ Harry A. Dunbar
-------------------------------
Harry A. Dunbar, Treasurer
William L. Adam
W. G. Backus
Geo H. Tucker
Norman C. Hull
THE COMMONWEALTH OF MASSACHUSETTS
Berkshire ss. December 17, 1925.
Then personally appeared the above-named William L. Adam, Pres., Harry
A. Dunbar, Treas., and William L. Adam, W. G. Backus, Geo H. Tucker and
Norman C. Hull, Directors and severally made oath that the foregoing
certificate, by them subscribed, is true, to the best of their knowledge and
belief.
Before me,
/s/ Leroy F. Kelley
-------------------------------
Leroy F. Kelley
Notary Public.
My Commission expires
Pittsfield Coal Gas
Company Fee $125.00 pd.
CERTIFICATE OF INCREASE OF CAPITALl.
GENERAL LAWS, CHAP 164, SECT. 10 AND
CHAP. 158, SECT. 39 AND 41.
Filed in the office of the Secretary of the Commonwealth. December 21,
1925.
I hereby approve the within certificate, this 21st day of December A.D.
1925.
/s/ Henry T. Long
-------------------------------
Henry T. Long
Commissioner of Corporations and Taxation.
DEPARTMENT OF
G. L. DEC. 21 - 1925
CORPORATIONS AND TAXATION
DEPARTMENT OF
CORPORATIONS AND TAXATION
DEC 21 - 1925
WITH FEE OF $125.00
We, William L. Adam President, and Harry A. Dunbar Treasurer, and William L.
Adam, Arthur H. Rice, I. D. Ferrey, Thomas F. Plunkett and W.G. Backus being
a majority of the Directors of the Pittsfield Coal Gas Company in compliance
with the provisions of chapter one hundred and sixty-four of the General
Laws of the Commonwealth of Massachusetts, do hereby certify that the
capital stock of said Corporation has been increased by the amount of
150,000 dollars, and that the same has been paid in, December 31, 1924.
IN WITNESS WHEREOF, we have hereto signed our names, this 27th day of
January in the year nineteen hundred and twenty five.
William L. Adam, President
Harry A. Dunbar, Treasurer
William L. Adam )
A. H. Rice )
I. D. Ferrey ) Directors
Thomas F. Plunkett )
W.G. Backus )
THE COMMONWEALTH OF MASSACHUSETTS
Berkshire ss. Jan. 27, 1925.
Then personally appeared the above-named William L. Adam, Arthur H.
Rice, I. D. Ferrey, Thomas F. Plunkett and W.G. Backus and severally made
oath that the following certificate, by them subscribed, is true, to the
best of their knowledge and belief.
Before me,
/s/ Norman C. Hull
-------------------------------
Norman C. Hull
Justice of the Peace
CERTIFICATE OF INCREASE OF CAPITAL
GENERAL LAWS, CHAP 164.
Filed in the office of the Secretary of the Commonwealth, Feb. 12, 1925.
I hereby approve the within certificate, this 12th day of February A.D.
1925.
/s/ Henry T. Long
-------------------------------
Henry T. Long
Commissioner of Corporations and Taxation.
RECEIVED
FEB 12 - 1925
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
CORPORATIONS AND TAXATION
FEB 12 - 1925
WITH FEE OF $75.00
ARTICLES OF AMENDMENT.
This filing fee to accompany this blank is $10.00. Checks should be made
payable to The Commonwealth of Massachusetts.
This certificate must be submitted to the Commissioner within thirty days of
the date of the vote of the stockholders. (Sect. 2, Chapter 354 of the Acts
of 1922.)
We, ROBERT W. McCRACKEN, President, LEROY F. KELLEY, Treasurer and ROBERT W.
McCRACKEN, LEROY F. KELLEY, THOMAS F. PLUNKETT, FRANK A. WOODHEAD, and
GEORGE M. SHIPTON, being a majority of the Directors of the PITTSFIELD COAL
GAS COMPANY, located at No. 31 South St. Pittsfield, Massachusetts, in
compliance with the provisions of chapter 354 of the Acts of 1922 and of all
Acts in amendment thereof and in addition thereto, do hereby certify that at
a meeting of the stockholders of the said corporation, duly called for the
purpose, held July 20, 1951, and by the affirmative vote of No shares of the
preferred stock and of 8,078 shares of the common stock of said corporation,
being the unanimous vote of all shares represented in person or by proxy at
said meeting, and being at least eighty and 78/100ths per cent (80.78%) of
all the stock outstanding and entitled to vote, the following amendment or
alteration in the agreement of Association and Articles of Organization of
said corporation was duly adopted, namely:
p. 121A
VOTED, that the Agreement of Association and Articles of Organization,
if any of the Pittsfield Coal Gas Company, and the purposes and businesses
for which said corporation was formed be and the same hereby are amended by
adding thereto all of the following; if, and to the extent that said
corporation does not now have the power, right and authority to do or
transact such business:
1. The power, right and authority to distribute and sell
manufactured gas in the city of Pittsfield, and towns of Dalton,
Lenox, Lee, Stockbridge and Lanesboro, all in the County of Berkshire
and Commonwealth of Massachusetts, and in which city and towns the
corporation is now, and has heretofore been engaged in said business
of distributing and selling manufactured gas;
2. The power, right and authority to purchase, distribute and
sell natural gas in the city of Pittsfield, and the towns of Dalton,
Lenox, Lee, Stockbridge and Lanesboro, all in the County of Berkshire
and Commonwealth of Massachusetts, and in which city and towns the
corporation is now, and has heretofore been engaged in the business of
distributing and selling manufactured gas; and
3. The power, right and authority to purchase, sell and install
gas burning appliances and equipment of every type, nature and
description.
The passage of this vote shall not operate or construed as an admission that
the corporation does not already have the power or authority to do or
transact any of the business described above; but shall be in confirmation
thereof as to any such power or authority if the corporation is now vested
therewith.
IN WITNESS WHEREOF, we have hereunto signed our names, this twentieth day of
July, in the year 1951.
George M. Shipton, Director Robert W. McCracken, President and Director
Frank A. Woodhead, Vice-President and Director
Leroy F. Kelley, Treasurer and Director
Thomas F. Plunkett, Clerk and Director
THE COMMONWEALTH OF MASSACHUSETTS
Berkshire: ss. July 20, 1951.
Then personally appeared the above-named Robert W. McCracken, Leroy F.
Kelley, Thomas F. Plunkett, Frank A. Woodhead, and George M. Shipton and
severally made oath that the foregoing certificate, by them subscribed, is
true to the best of their knowledge and belief.
Before me,
Francis J. Giniro
Notary Public.
CERTIFICATE
RECEIVED
AUG 13 - 1951
BY SECRETARY'S OFFICE
FROM DEPARTMENT OF CORPORATIONS
AND TAXATION
RECEIVED
$10 CASH
JUL 23 - 1951
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
B
A JUL 23 - 1951
H
CORPORATIONS AND TAXATION
CERTIFICATE
RECEIVED
JUL 23 - 1951
BY SECRETARY'S OFFICE
DEPARTMENT OF CORPORATIONS
AND TAXATION
GAS OR ELECTRIC COMPANY
Pittsfield Coal Gas Company
FEE $10.00 PAID
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAP. 164, AS AMENDED BY SECT.2 OF CHAP. 354 OF ACTS OF
1922.)
Amendment to Purpose
Filed in the office of the Secretary of the Commonwealth, July 23, 1951.
I hereby approve the within certificate, this 23rd day of July, A.D. 1951.
/s/ Henry T. Long
-------------------------------
Henry T. Long
Commissioner of Corporations and Taxation.
THE COMMONWEALTH OF MASSACHUSETTS
Be it known that whereas Pittsfield Coal Gas Company, a corporation
organized under the laws of this Commonwealth, at a meeting duly called
for the purpose, has complied with the provisions of section ten of
chapter one hundred and fifty-five of the General Laws, Tercentenary
Edition, as amended, as appears from articles of amendment, duly executed
by the proper officers of said corporation, authorizing said corporation
to change and adopt the name of The Pittsfield Gas Company, duly approved
and filed in this office, and the officers of said corporation having
given public notice of such change of name by publication two times in the
Berkshire Eagle, a newspaper published in the city of Pittsfield and
County of Berkshire in said Commonwealth:
NOW, THEREFORE, I, EDWARD J. CRONIN, Secretary of The Commonwealth of
Massachusetts, do hereby certify, that the name which said corporation
shall bear is The Berkshire Gas Company, which shall hereafter be its
legal name.
Stamp
Witness my official signature hereunto subscribed, and the Great Seal of
The Commonwealth of Massachusetts hereunto affixed, this sixteenth day of
September in the year of our Lord one thousand nine hundred and fifty-
four.
Edward J. Cronin
SECRETARY OF THE COMMONWEALTH
/s/ LEO W. HARLOW
Leo W. Harlow
DEPUTY SECRETARY
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
William A. Schan COMMISSIONER
236 STATE HOUSE, BOSTON 33
ARTICLES OF AMENDMENT
This certificate must be submitted to the Commissioner of Corporations and
Taxation within thirty days after the date of the vote of the
stockholders, in accordance with General Laws, Chapter 156, Section 43.
FEE for filing certificate providing for a change of shares with par value
to shares without par value, whether or not the capital is changed
thereby, one cent for each share without par value resulting from such
change, less an amount equal to one twentieth of one per cent of the total
par value of the shares so changed; but not in any case less than $25.00.
The fee for filing all other amendments is $10.00.
Make check payable to THE COMMONWEALTH OF MASSACHUSETTS
WE, KENNETH D. KNOBLOCK, President, FRANK A. O'NEILL, Treasurer
and KENNETH D. KNOBLOCK, FRANK A. O'NEILL, J. T. KELLY, LEONARD MILANO,
GEORGE H. MARCHANT, and ROBERT W. McCRACKEN,
being a majority of the Directors of the PITTSFIELD COAL GAS COMPANY, a
corporation duly organized by law, and whose principal place of business
is located at 31 South Street, Pittsfield, Massachusetts, in compliance
with the provisions of General Laws, Chapter 156, do hereby certify that
at a meeting of the stockholders of the corporation, duly called for the
purpose, held August 2, 1954, by the affirmative vote of No shares of the
preferred stock and of 70,840 shares of the common stock of the
corporation, being at least two-thirds of all the stock outstanding and
entitled to vote, the following amendment or alteration in the Agreement
of Association and Articles of Organization of the corporation was duly
adopted, namely:
RESOLVED, that the Charter Agreement of Association and Articles of
Organization of the Pittsfield Coal Gas Company be and hereby are
amended by adding thereto the following:
The power, right and authority to purchase, manufacture,
distribute and sell gas, natural gas, or mixed gas and to
purchase, sell and install gas burning appliances and
equipment of every type, nature and description, in the
municipalities of Adams, Clarksburg, North Adams, Williamstown
and Cheshire, all in the Count of Berkshire and Commonwealth
of Massachusetts.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this second day of August, in the year 1954.
/s/ KENETH D. KNOBLOCK
President: Majority of Directors:
Kenneth D. Knoblock 1. Kenneth D. Knoblock
/s/ FRANK A. O'NEILL 2. J. T. Kelley
Treasurer: 3. Leonard Milano
Frank A. O'Neill 4. George H. Marchant
5. Robert W. McCracken
6. Frank A. O'Neill
RECEIVED
$15 CK
AUG 4 - 1954
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
E AUG 4 - 1954
A
CORPORATIONS AND TAXATION
CERTIFICATE
RECEIVED
AUG 4 - 1954
BY SECRETARY'S OFFICE
FROM DEPARTMENT OF CORPORATIONS
AND TAXATION
THE COMMONWEALTH OF MASSACHUSETTS
Pittsfield Coal Gas Company
FEE $15.00 PAID
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156, SECTION 42
Amendment to Purpose
Filed in the office of the Secretary of the Commonwealth,
August 4, 1954
I hereby approve the within certificate, this
4th day of August, 1954.
William A. Schan
Commissioner of Corporations and Taxation.
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
William A. Schan COMMISSIONER
236 STATE HOUSE, BOSTON 33
INCREASE OF CAPITAL
This certificate must be submitted to the Commissioner and Taxation within
thirty days after the date of the vote of the stockholders, General Laws,
Chapter 156, Section 43.
FEE must accompany this certificate: 1/20 of 1% of the amount by which the
capital stock with par value is increased, and one cent for each
additional share without par value, but not in any case less than $25.
Make checks payable to THE COMMONWEALTH OF MASSACHUSETTS.
We, KENNETH D. KNOBLOCK, President, FRANK A. O'NEILL, Treasurer, and
KENNETH D. KNOBLOCK, FRANK A. O'NEILL, J. T. KELLEY, LEONARD MILANO,
GEORGE H. MARCHANT and ROBERT W. McCRACKEN, of the PITTSFIELD COAL GAS
COMPANY, a corporation duly organized by law, and those principal place of
business is located at 31 South Street, Pittsfield, Massachusetts, in
compliance with the provisions of General Laws, Chapter 156, hereby
certify that at a meeting of the stockholders of the corporation, duly
called for the purpose, held August 2, 1954, of 73,840 shares of the
common stock of the corporation, being at least a majority of each class
of stock outstanding and entitled to vote, the following amendment
authorizing and increase in the capital stock of the corporation was duly
adopted, namely:
RESOLVED, that the Charter, Agreement of Association and Articles of
Organization of Pittsfield Coal Gas Company be and they hereby are
amended by adding thereto the following provisions creating and
authorizing an issue of 6,435 shares of 5% Cumulative Preferred
Stock:
(Statement relative to Stock in Drawer 337)
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we hereto sign our
names, this second day of August, 1954.
President: Majority of Directors:
Kenneth D. Knoblock 1. Kenneth D. Knoblock
2. J. T. Kelley
Treasurer: 3. Leonard Milano
Frank A. O'Neill 4. George H. Marchant
5. Robert W. McCracken
6. Frank A. O'Neill
RECEIVED
$321.75
AUG 4 - 1954
CORPORATION DIVISION
SECRETARY'S OFFICE
DEPARTMENT OF
E AUG 4 - 1954
A
CORPORATIONS AND TAXATION
CERTIFICATE
RECEIVED
AUG 4 - 1954
BY SECRETARY'S OFFICE
FROM DEPARTMENT OF CORPORATIONS
AND TAXATION
THE COMMONWEALTH OF MASSACHUSETTS
Pittsfield Coal Gas Company
Fee $321.75 paid
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156, SECTION 44
INCREASE OF CAPITAL
Establishment of 5% Cumulative Preferred Stock at a Par Value of $100 per
share.
Filed in the office of the Secretary of the Commonwealth
August 4, 1954
I hereby approve the within certificate
this 4th day of August, 1954.
William A. Schan
Commissioner of Corporations and Taxation
PITTSFIELD COAL GAS COMPANY
31 South Street
Pittsfield, Massachusetts
June 18, 1954
CERTIFICATE OF VOTE FOR REDUCTION OF PAR VALUE OF COMMON STOCK
I, JOSEPH T. KELLEY, of Pittsfield, Massachusetts, hereby upon oath,
declare and certify as follows:
1. That I am the duly elected and qualified clerk of the PITTSFIELD
COAL GAS COMPANY, a gas company duly incorporated under the laws of the
Commonwealth of Massachusetts:
2. That the following is a true copy of a vote adopted by the
stockholders of said corporations at a meeting of stockholders held on
March 23, 1954, which meeting was duly called for such purpose:
RESOLVED, That the Stockholders of the Pittsfield Coal Gas
Company hereby authorize a change of the par value of the Company's
present common capital stock from the present par value of One
Hundred Dollars ($100.00) per share to a new par value of Ten
Dollars ($10.00) per share; and that, subject to the approval by the
Department of Public Utilities of the Commonwealth of Massachusetts,
and upon its becoming effective pursuant to General Laws (Ter. Ed.),
Chapter 164, new certificates evidencing the new Ten Dollars
($10.00) par value stock of the Company be issued in exchange for
and upon surrender of certificates for the present One Hundred
Dollars ($100.00) par value stock of the Company, said new stock to
be issued in the ratio of Ten (10) shares of new stock for each
share of the present One Hundred Dollars ($100.00) par value stock
represented by the certificates so surrendered, but without any
capitalization or impairment of any existing surplus or accumulated
and undistributed profits.
3. That the total number of shares of common stock of said
corporation issued and outstanding on the date of said meeting was 10,000.
4. That the total amount of shares of common stock of said
corporation represented in person or by proxy at said meeting, and
entitled to vote on the above quoted vote, was 8,373; and that the vote
thereon was a follows:
(a) Number of shares voted in favor: 8,370
(b) Number of shares voted against: 3
T O T A L 8,373
5. That said corporation did not on the date of said meeting, nor
at any other time prior thereto have any class of stock except said common
stock.
6. That on March 24, 1954, said corporation filed with the
Massachusetts Department of Public Utilities an application for the
approval of said reduction in the par value of its common stock, such
application being required by General Laws (Ter. Ed.), Chapter 164,
Section 8; and that on June 16, 1954, said Department of Public Utilities
approved of such reduction in the par value of the corporation's common
stock by an Order issued in case bearing docket number 10871, such order
reading as follows:
"ORDERED: That the Department hereby approves and authorizes
the change in the par value of the shares of capital stock of
Pittsfield Coal Gas Company from one hundred dollars ($100) to ten
dollars ($10) a share, provided, however, that the aggregate par
value of the outstanding shares of the Company shall not be
increased by the change in the par value of the shares thereof."
(Affix Seal of
Corporation) Joseph T. Kelley
Joseph T. Kelley
Pittsfield Coal Gas Company
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE: ss. June 18, 1954
Subscribed and sworn to, before me
Francis J. Guirico
Francis J. Guirico, Notary Public
My commission expires on:
August 27, 1954
THE COMMONWEALTH OF MASSACHUSETTS
Department of Corporations and Taxation
William A. Schan Commissioner
237 State House, Boston.
ARTICLES OF AMENDMENT
The filing fee to accompany this certificate is $10.00. Checks should be
made payable to The Commonwealth of Massachusetts.
This certificate must be submitted to the Commissioner of Corporations and
Taxation within thirty days after the date of the approval by the
Department of Public Utilities. (Section 8, Chapter 164, General Laws as
amended.)
I, Clerk
of
located at No. St.,
in compliance with the provisions of Section 8 of chapter 164 of the
General Laws as amended, do hereby state that at a meeting of the
stockholders of the said corporation, duly called for the purpose,
held 19 , and by the affirmative vote of shares
of the preferred stock and of shares of the common stock
of said corporation, being at least
of all the stock outstanding and entitled to vote, the following amendment
or alteration in the agreement of association and articles of organization
of said corporation was duly adopted, namely:
IN WITNESS WHEREOF, and under the penalties of perjury, I have
hereto signed my name, this day of in the year 19 .
RECEIVED
$15 CK.
JUL 1 - 1954
CORPORATION DIVISION
SECRETARY'S OFFICE
CERTIFICATE
RECEIVED
JUL 1 - 1954
BY SECRETARY'S OFFICE
FROM DEPARTMENT OF CORPORATIONS
AND TAXATION
DEPARTMENT OF
JUL 1 - 1954
CORPORATIONS AND TAXATION
GAS OR ELECTRIC COMPANY
Pittsfield Coal Gas Company
FEE $15.00 PAID
Articles of Amendment.
CHANGE OF PAR VALUE
(GENERAL LAWS, SEC 8, CHAP. 164, AS AMENDED.)
Filed in the office of the Secretary of the Commonwealth,
July 1, 1954
I hereby approve the within certificate, this 1st day of July A. D. 1954.
William A. Schan
Commissioner of Corporations and Taxation.
THE COMMONWEALTH OF MASSACHUSETTS
Be it known that whereas Pittsfield Coal Gas Company, a corporation
organized under the laws of this Commonwealth, at a meeting duly called
for the purpose, has complied with the provisions of section ten of
chapter one hundred and fifty-five of the General Laws, Tercentenary
Edition, as amended, as appears from articles of amendment, duly executed
by the proper officers of said corporation, authorizing said corporation
to change its name and adopt the name of The Berkshire Gas Company, duly
approved and filed in this office, and the officers of said corporation
having given public notice of such change of name by publication two times
in the Berkshire Eagle, a newspaper published in the City of Pittsfield
and County of Berkshire in said Commonwealth:
NOW, THEREFORE, I, EDWARD J. CRONIN, Secretary of The Commonwealth of
Massachusetts, Do hereby certify, that the name which said corporation
shall bear is The Berkshire Gas Company, which shall hereafter be its
legal name.
Stamp
Witness my official signature hereunto subscribed, and the Great Seal of
The Commonwealth of Massachusetts hereunto affixed, this sixteenth day of
September in the year of our Lord one thousand nine hundred and fifty-
four.
Edward J. Cronin
SECRETARY OF THE COMMONWEALTH
Leo W. Harlow
DEPUTY SECRETARY
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
JOHN DANE, JR. COMMISSIONER
236 STATE HOUSE, BOSTON 33
ARTICLES OF AMENDMENT
This certificate must be submitted to the Commissioner of Corporations and
Taxation within thirty days after the date of the vote of the stockholders,
in accordance with General Laws, Chapter 156, Section 43. FEE for filing
certificate providing for a change of shares with par value to shares
without par value, whether or not the capital is changed thereby, one cent
for each share without par value resulting from such change, less an amount
equal to one twentieth of one per cent of the total par value of the shares
so changed; but not in any case less than $25.00. The fee for filing all
other amendments is $15.00. Make check payable to THE COMMONWEALTH OF
MASSACHUSETTS.
WE, KENNETH D. KNOBLOCK, President, FRANK O'NEILL, Treasurer
Kenneth D. Knoblock, Director
Frank A. O'Neill, Director
J.C. Donnelly, Director
Robert W. McCracken, Director
Joseph T. Kelley, Director
being a majority of the Directors of
THE BERKSHIRE GAS COMPANY, located at 31 South Street, in Pittsfield,
Massachusetts, in compliance with the provisions of General laws, Chapter
156, do hereby certify that at a meeting of the stockholders of the
corporation, duly called for the purpose, held on January 13, 1956, by the
affirmative vote of SIX THOUSAND NINETY-SEVEN (6,097) shares of the
preferred stock and of 68, 532 shares of the common stock of the
corporation, being at least TWO-THIRDS of all the stock outstanding and
entitled to vote, the following amendment or alteration in the Agreement of
Association and Articles of Organization of the corporation was duly
adopted, namely;
"RESOLVED", That the Charter, Agreement of Association and Articles of
Organization, if any, of The Berkshire Gas Company be and hereby is amended
by elimination of Paragraph (j) (A) (d) of the Statement of the
designations, terms, relative rights, privileges, limitations, etc., of the
5% Cumulative Preferred Stock, which reads as follows:
'(d) create, assume or suffer to exist any mortgage, pledge, encumbrance,
lien or charge of any kind (including the charge upon property purchased
under conditional sales or other title retention agreements) upon any of its
property or assets whether now owned or hereafter acquired, except permitted
liens. Permitted liens as used herein shall mean (I) the lien of the First
Mortgage Indenture and Deed of Trust, dated as of July 1, 1954, from the
Company to Chemical Bank & Trust Company, as Trustee, securing an issue of
$1,330,000 principal amount of the Company's First Mortgage Bonds, Series A,
4% due 1979, and any indentures supplemental thereto which may be entered
into with respect to additional series of First Mortgage Bonds, as
contemplated in said Indenture and Deed of Trust, (ii) liens for taxes not
yet due or which are being contested in good faith by appropriate
proceedings and (iii) other liens, charges and encumbrances incidental to
the conduct of the business or the ownership of the property and assets
which were not incurred in connection with the borrowing of money and which
do not secure indebtedness or extensions of credit aggregating at any one
time in excess of $100,000 and which do not in the aggregate materially
detract from the value of the property of the Company or materially impair
the use thereof in the operation of the business of the Company; or'
"FURTHER RESOLVED, That the Charter, Agreement of Association and Articles
of Organization, if any, of The Berkshire Gas Company be and hereby is
amended by elimination of the last paragraph of (j) (B) of the Statement of
the designations, terms, relative rights, privileges, limitations, etc., of
the 5% Cumulative Preferred Stock, which reads as follows:
'The term 'minimum provision for depreciation' shall mean, for any
twelve months' period, an amount equal to the amount of depreciation
and/or obsolescence recorded on the books of the Company or claimed as
a deduction for Federal Income Tax purposes, whichever is larger, but
in no event less than an amount equal to 1-1/2% of the average gross
plant property account of the Company during such period.'
Inserting in lieu thereof:
'The term 'minimum provision for depreciation' shall mean, for any
twelve months' period, an amount equal to 2% of the average gross
depreciable plant property accounts of the Company during such
period.'
"FURTHER RESOLVED, That if the Stockholders approve the proposed amendment,
the President or a Vice President and the Clerk of this Company be and they
hereby are authorized and directed to prepare and file any necessary
documents with the Secretary of Sate and with any other person as may be
required by law."
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
We, K.D. Knoblock, F.A. O'Neill, J.C. Donnelly, J.T. Kelley and R.W.
McCracken, being a majority of Directors of the Berkshire Gas Company, in
compliance with the provisions of section thirty-nine of chapter one hundred
and fifty-eight (Chapter 164 Section 10) of the General Laws, Ter. Ed., do
hereby certify that a meeting of the stockholders called for the purpose the
capital stock of said corporation has been increased by the amount of One
Hundred Eighty-Seven Thousand dollars, and that the same has all been paid
in on June 10, 1957.
The Total amount of capital stock already authorized is
6,049 (shares preferred.
100,000 (shares common.
The amount of fully paid capital stock already issued for cash is
6,049 (shares preferred.
100,000 (shares common.
The amount of fully paid capital stock already issued for property is
None (shares preferred.
None (shares common.
The amount of additional capital stock authorized is
None (shares preferred.
18,000 (shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names, this 8th day of June in the year 1957.
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth.
July 8, 1957
I hereby approve the within certificate this 8th day of July 1957
/s/
--------------------------------
Commissioner of Corporations and Taxation
Berkshire Gas Company, The
Received
51.00
Dec. 08, 1958
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, chapter 164, Ter. Ed., Section 10
and Chapter 158, Ter. Ed., Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth
I hereby approve the within certificate, this 8th day of 1958.
/s/
-------------------------------
Commissioner of Corporations and Taxation
THE COMMONWEALTH OF MASSACHUSETTS
Department of Corporation and Taxation
We J.T. Kelley, Vice President, J.R. Cottrell, Assistant Treasurer and
F.A. ONEILL LEONARD MILANO
J.C. DONNELLY J.T. KELLEY
W. BARTON CUMMINGS
being a majority of the Directors of The Berkshire Gas Company in compliance
with the provisions of section thirty-nine of chapter one hundred and fifty-
eight (Chapter 164 Section 10) of the General Laws, Ter. Ed., do hereby
certify that a meeting of the stockholders called for the purpose the
capital stock of said corporation has been increased by the amount of
$184,610.00 dollars, and that the same has all been paid in on September 29,
1958.
The total amount of capital stock already authorized is
6,435* (Shares preferred.
118,700 (Shares common.
The amount of fully paid capital stock already issued for cash is
6,435* (Shares preferred.
118,700 (Shares common.
*772 shares Pfd. Have been redeemed in accordance with the sinking
fund provision.
The amount of fully paid capital stock already issued for property is
-0- (Shares preferred.
-0- (Shares common.
The amount of additional capital stock authorized is
-0- (Shares preferred
18,461 (Shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have signed our
names, this 29th day of October in the year 1958.
/s/
--------------------------------
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.
Sections 39 and 41. Filed in the office of the Secretary of the
Commonwealth
October 31, 1958
/s/
--------------------------------
Commissioner of Corporations and Taxation
Berkshire Gas Company, The
Received
51.00
Dec. 08, 1958
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, chapter 164, Ter. Ed., Section 10
and Chapter 158, Ter. Ed., Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth
I hereby approve the within certificate, this 8th day of December 1958.
/s/
-------------------------------
Commissioner of Corporations and Taxation
THE COMMONWEALTH OF MASSACHUSETTS
Department of Corporation and Taxation
We J.T. Kelley, Vice President, J.R. Cottrell, Assistant Treasurer and
F.A. ONEILL K.D. KNOBLOCK
J.C. DONNELLY J.T. KELLEY
ROBERT MCCRACKEN
being a majority of the Directors of The Berkshire Gas Company in compliance
with the provisions of section thirty-nine of chapter one hundred and fifty-
eight (Chapter 164 Section 10) of the General Laws, Ter. Ed., do hereby
certify that a meeting of the stockholders called for the purpose the
capital stock of said corporation has been increased by the amount of
$100,000.00 dollars, and that the same has all been paid in on November 7,
1958.
The total amount of capital stock already authorized is
6,435* (Shares preferred.
137,161 (Shares common.
The amount of fully paid capital stock already issued for cash is
6,435* (Shares preferred.
137,161 (Shares common.
*772 shares Pfd. Have been redeemed in accordance with the sinking
fund provision.
The amount of fully paid capital stock already issued for property is
-0- (Shares preferred.
-0- (Shares common.
The amount of additional capital stock authorized is
-0- (Shares preferred
5,000 (Shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have signed our
names, this 25th day of November in the year 1958.
/s/
--------------------------------
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.
Sections 39 and 41. Filed in the office of the Secretary of the
Commonwealth
October 31, 1958
/s/
--------------------------------
Commissioner of Corporations and Taxation
RECEIVED
$25 CK.
MAY 28 - 1959
CORPORATION DIVISION
SECRETARY'S OFFICE
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
GENERAL LAWS, CHAPTER 164, TER. ED., SECTION 10
AND CHAPTER 158, TER. ED., SECTIONS 39 AND 41
Filed in the office of the Secretary of the Commonwealth. May 28, 1959
I hereby approve the within certificate, this 27 th day of May, 1959
/s/ ROBERT T. CAPELESS
Robert T. Capeless
Commissioner of Corporations and Taxation
DEPARTMENT OF
T
J MAY 27 - 1959
R
CORPORATIONS AND TAXATION
RECEIVED
$25.00 CK
MAY 28 - 1959
CORPORATION DIVISION
SECRETARY'S OFFICE
THE COMMONWEALTH OF MASSACHUSETTS
Berkshire Gas Company, The
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156, SECTION 42
Substitution of statement of terms relating to stock;
Filed in the office of the Secretary of the Commonwealth,
May 28, 1959
I hereby approve the within certificate, this 27th day of May 1959.
Robert T. Capeless
Commissioner of Corporations and Taxation.
DEPARTMENT OF
T
J MAY 15 - 1959
R
CORPORATIONS AND TAXATION
DEPARTMENT OF
T
J MAY 27 - 1959
R
CORPORATIONS AND TAXATION
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this twentieth day of May in the year 1959.
/s/
J. C. Donnelly
K. R. Knoblock
F. A. O'Neill
Robert W. McCracken
Joseph T. Kelley
J. Richard Cottrell
THE BERKSHIRE GAS COMPANY
STATEMENT OF THE DESIGNATIONS, PREFERENCES AND VOTING POWERS OR
RESTRICTIONS OR QUALIFICATIONS OF THE CAPITAL STOCK OF THE COMPANY
The authorized capital stock of the Company shall include, in addition to
the common capital stock heretofore authorized, 7,935 shares of Cumulative
Preferred Stock, of the par value of $100 per share, with the following
designations, preferences, voting powers, restrictions and qualifications:
SECTION 1.
Provisions Applicable to All Shares of Cumulative Preferred Stock.
(a) All shares of Cumulative Preferred Stock shall be of equal rank
with each other, regardless of class, and shall be identical with each
other in all respects except as otherwise provided in Section II hereof
with respect to the 5% Cumulative Preferred Stock and in Section III
hereof with respect to the 6% Cumulative Preferred Stock; and the shares
of Cumulative Preferred Stock of any one class shall be identical with
each in all respects.
(b) In case the stated dividends on each class of Cumulative
Preferred Stock are not paid in full, the shares of each class of
Cumulative Preferred Stock shall share ratably in the payment of
dividends, including accumulations thereof, if any, in accordance with the
sums which would be payable on such shares if all dividends were declared
and paid in full.
(c) The Cumulative Preferred Stock of each class shall be preferred
as to assets over the Common Stock, so that the holders of each class of
Cumulative Preferred Stock shall be entitled to have set apart for them or
to be paid out of the assets of the Company, before any distribution is
made to or set apart for the holders of Common Stock, an amount in cash
equal to and in no event more than (1) in the event of any voluntary
liquidation, dissolution or windings up of the Company, the redemption
price of such class of the Cumulative Preferred Stock which would have
been in effect at the time of the distribution or payment date if there
had been no such liquidation, dissolution or winding up of the Company, or
(2) in the event of involuntary liquidation, dissolution or winding up of
the Company, the sum of $100 per share, plus in each case an amount equal
to all dividends accrued and unpaid to the date of such liquidation,
dissolution or winding up, whether or not earned or declared.
If upon any liquidation, dissolution or winding up of the Company,
the assets of the Company available for distribution to its stockholders
shall be insufficient to permit the distribution in full of the amount
receivable as aforesaid by the holders of each class of the Cumulative
Preferred Stock, then all such assets of the Company shall be distributed
ratably among the holders of each class of the Cumulative Preferred Stock
in proportion to the amounts which they would be entitled to receive if
such assets were sufficient to permit distribution in full as aforesaid.
In the event of any liquidation, dissolution or winding up of the
Company, all assets and funds of the Company remaining after paying or
providing for the payment of all creditors of the Company and after paying
or providing for the payment to the holders of shares of each class of the
Cumulative Preferred Stock of the full distributive amounts to which they
are respectively entitled, as herein provided, shall be divided among and
paid to the holders of the Common Stock according to their respective
shares.
Neither the consolidation nor the merger of the Company with or into
any other corporation or corporations, nor the sale or transfer by the
Company of all or any part of its assets shall be deemed to be a
liquidation, dissolution or winding up of the Company for the purpose of
this paragraph (c). (d) No holder of shares or Cumulative Preferred Stock
of any cash sale be entitled as such as a matter of right to subscribe for
or purchased any part of any new or additional issue of any stock of any
class, series or kind whatsoever, or securities convertible into stock or
any class, series or kind whatsoever, whether now or here after
authorized, and whether issued for cash, property, services, by way of
dividends, or otherwise.
(e) (A) At all meetings of the stockholders of the Company, the
holders of shares of Cumulative Preferred Stock of any class shall have no
right to vote and shall not be entitled to notice of any meetings of the
stockholders of the Company nor to participate in any such meeting except
as herein otherwise expressly provided and except for those purposes, if
any, for which said rights can not be denied or waived under some
mandatory provision of law which shall be controlled.
(B) If and when dividends payable on any shares of Cumulative
Preferred Stock of any class shall be in default, in whole or in part, for
four (4) full quarterly dividend periods (whether consecutive or not), or
the Company shall be in default in making any sinking fund payment
required by paragraph (e) or Section II hereof in respect of the 5%
Cumulative Preferred Stock or by paragraph (e) of Section III hereof in
respect of the 6% Cumulative Preferred Stock the holders of the shares of
all classes of the Cumulative Preferred Stock, voting separately as a
class, shall be entitled to elect the smallest number of directors
necessary to constitute a majority of the full Board of Directors, in
holders of the shares of the Common Stock, voting separately as a class,
shall be entitled to elect the remaining directors of the Company,
anything herein or in the by-laws to the contrary notwithstanding. The
terms of office of all persons who may be directors of the Company at the
time shall terminate upon the election of one or more holders of the
shares of the Common Stock shall then have elected the remaining directors
of the Company.
(C) If and when all dividends then in default on the shares of the
Cumulative Preferred Stock of all classes then outstanding shall be paid
(and such dividends shall be declared and paid out of any funds legally
available therefor as soon as reasonably practicable) and the full
dividends as each class of the Cumulative Preferred Stock for the then
current quarterly dividend period shall have been declared and paid or set
apart for payment, and if and when all sinking fund payments under
paragraph (e) of Section II hereof in respect of the 5% Cumulative
Preferred Stock, and under paragraph (e) of Section III hereof in respect
of the 6% Cumulative Preferred Stock, then in default shall have been
made, and holders of the shares of all classes of the Cumulative Preferred
Stock shall be divested of all voting rights with respect to the election
of directors provided in sub-paragraph (B) of this paragraph (e), and the
voting power of the holders of the shares of all classes of Cumulative
Preferred Stock and holders of the shares of the Common Stock shall revert
to the status existing before the first dividend payment on which
dividends on the shares of all classes of Cumulative Preferred Stock were
not paid in full; but always subject to the same prevision vesting such
voting rights in the holders of the shares of all classes of Cumulative
Preferred Stock in case of further like default or defaults on dividends
thereon or in sinking fund payments, as provided in subparagraph (B) of
this paragraph (e). Upon the termination of any such voting rights as
hereinabove provided, the terms of office of all persons who may have been
elected directors of the Company by vote of the holders of the shares of
all classes of Cumulative Preferred Stock as a class, pursuant to such
voting rights, shall forthwith terminate and the resulting vacancies shall
be filled by the vote of a majority of the remaining directors.
Any director who shall have been elected by the holders of all
classes of Cumulative Preferred Stock or by any directors so elected as
herein provided may be removed during his aforesaid term of office, either
for or without cause, by, and only by, the affirmative votes of the
holders of record of a majority of the outstanding shares of all classes
of Cumulative Preferred Stock given at a special meeting of such stock
holders called for the purpose, and any vacancy thereby created may be
filled by the holders of such stock presented at such meeting.
(D) In the case of any vacancy in the office of a director
occurring among the directors elected buy the holders of the shares of all
classes of Cumulative Preferred Stock, as a class, pursuant to the
foregoing prevision of subparagraph (B) of this paragraph (e), the
remaining directors elected by the holders of the shares of all classes of
Cumulative Preferred Stock by affirmative vote of a majority thereof, or
the remaining director so elected if there but not one, may, subject to
the provisions of subparagraph (c) of this paragraph (e) elect a successor
or successors to hold office for the unexpired terms of the director or
the directors whose place or places shall be vacant. Likewise, in case of
any vacancy in the office of a director occurring among the directors
elected by the holders of the shares of Cumulative Preferred Stock
pursuant to the foregoing provisions of subparagraph (B) of this paragraph
(e), the remaining directors elected by the holders of Common Stock, by
affirmative vote of a majority thereof, or the remaining director so
elected if there be but one, they elect a successor or successors to hold
office for unexpired term of the director or directors whose place or
places shall be vacant.
(E) Whenever under the provisions of subparagraph (B) of this
paragraph (e), the right shall have occurred to be the holders of the
shares of all classes of Cumulative Preferred Stock to elect directors,
the Board of Directors shall be, within ten (10) days after the delivery
of the Company at its principle office of a request to such elect by any
holders of shares of any class Cumulative Preferred Stock entitled to
vote, call a special meeting of the stockholders, to be held on 20 days'
notice. If such meeting shall not be called within such ten-day period,
the holders of record of at least 10% in amount of any class of Cumulative
Preferred Stock then outstanding, may designate in writing one of there
number to call such meeting and the same may be called at the expense of
the Company by such person so designated upon 20 days' notice. Any holder
of any class of Cumulative Preferred Stock so designated shall have access
to the stock books of the Company for the purpose of causing a meeting of
stockholders to be pursuant to these provisions. At all meetings of
stockholders held for the purpose of electing directors during such time
as the holders of the shares of all classes of Cumulative Preferred Stock
shall have the special right, voting separately as a class, to elect
directors pursuant to subparagraph (B) of this paragraph (e), the presence
in person or by proxy, of the holders of a majority of the outstanding
shares of each class of stock (i.e. Cumulative Preferred Stock and Common
Stock ) shall be required to constitute a quorum of such class for the
election of directors; provided, however, that the absence of a quorum of
the holders of stock of either such class shall not prevent the election
at any such meeting or adjournment thereof of directors by the other such
class if the necessary quorum of the holders of such stock is present in
person or by proxy at such meeting; and provided further that in the event
such a quorum of the holders of the shares of the Common Stock if present
but such a quorum of the holders of the shares of all classes of
Cumulative Preferred Stock is not present then the election of the
directors elected by the holders of the shares of the Common Stock shall
not be effective in the directors so elected by the holders of the shares
of the Common Stock shall not assume there offices and duties until the
holders of the shares of all classes of Cumulative Preferred Stock, with
such a quorum present, shall have elected the directors they shall be
entitled to elect; and provide further, however, that in the absence of a
quorum of the holders of stock of either such class, a majority of those
holders of the stock of such class who are present in person or by proxy
shall have power to adjourn the election of the directors to be elected by
such class from time to time without notice other than announcement at the
meeting until the requisite amount of holders of such class shall be
present in person or by proxy, but such adjournment shall not be made to a
date beyond the date for the mailing of notice for the next annual meeting
or the Company or the special meeting in lieu thereof.
(F) Except as otherwise required by the laws applicable to the
Company and subject to the right of the Cumulative Preferred Stock of all
classes (i) to vote in certain events as hereinbefore set forth in this
paragraph (e); and (ii) not to have certain corporate action taken without
the consent of the holders thereof as required by the provisions of
paragraph h of Section II hereof and paragraph h of Section III hereof,
the Common Stock shall have the exclusive voting rights for the election
of directors and for all other purposes.
SECTION II.
Provisions applicable to all shares of 5% Cumulative Preferred Stock.
(a) 6,435 shares of the Cumulative Preferred Stock shall be
designated as "5% Cumulative Preferred Stock".
(b) The annual dividend rate shall be 5% per annum of the par value
of $100 per share, of $5.00 per share per annum, payable quarterly on the
15th days of October, January, April, and July.
(c) The aforesaid dividends shall accrue from the date of original
issue and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate $5.00 per annum shall not have been
paid or declared and set apart for the 5% Cumulative Preferred Stock and
deficiency shall be fully paid or declared and set apart any dividend
shall be paid upon or declared or set apart for the Common Stock.
Dividends on 5% Cumulative Preferred Stock shall be deemed to accrue from
day to day.
(d) The Company, by action of its Board of Directors, may redeem
the whole or any part of the 5% Cumulative Preferred Stock at any time or
from time to time, at the following redemption prices:
$105 per share if redeemed prior to the fifth anniversary of the
date of issue;
$104 per share if redeemed on or after the fifth anniversary but
before the tenth anniversary of the date of issue;
$103 per share if redeemed on or after the tenth anniversary but
before the fifteenth anniversary of the date of issue; and
$102 per share if redeemed on or after the fifteenth anniversary
of the date of issue.
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared.
If less than all of the outstanding shares of 5% Cumulative
Preferred Stock are to redeemed in pursuance of the foregoing provisions
for voluntary redemption, the aggregate number of shares so to be redeemed
shall be allocated at the Company among the registered holders of such
Stock at the time outstanding, to the nearest share, in the proportion
that their respective holdings bear to the aggregate number of shares of
such Stock at the time outstanding, provided that if the number of such
registered holders shall be more than twenty, the shares to be redeemed
shall be determined by lot in such usual manner as the Board of Directors
shall deem proper.
If less than all the outstanding shares of 5% Cumulative Preferred
Stock are to be redeemed in pursuance of the foregoing provisions for
voluntary redemption, the Company shall simultaneously with such
redemption redeem such proportion of the then outstanding shares of 6%
Cumulative Preferred Stock as the number of shares of 5% Cumulative
Preferred Stock so to be redeemed bears to the aggregate number of shares
of 5% Cumulative Preferred Stock then outstanding.
The 5% Cumulative Preferred Stock shall also be redeemable through
the operation of the sinking fund described in paragraph (e) hereof at
$100 per share, together in each case with an amount equal to all accrued
and unpaid dividends thereon to the date fixed for redemption, whether of
not earned or declared.
(e) So long as any of the shares of the 5% Cumulative Preferred
Stock shall be outstanding, the Company covenants to apt to a bank or
trust company selected for that purpose by the Board of Directors
(hereinafter called the "5% Preferred Stock Sinking Fund Trustee") as and
for a sinking fund for the retirement of shares of the 5% Cumulative
Preferred Stock, not later than September 1 in each calendar year
commencing with the year 1959, an amount of cash equal to 4% of the
aggregate par value of the largest number of shares of 5% Cumulative
Preferred Stock issued at any time prior to the time of such payment.
Without limitation of the rights and remedies of the holders of 5%
Cumulative Preferred Stock in case of the Company's default in respect of
the foregoing sinking fund obligation, such annual sinking fund obligation
shall be cumulative so that if for any reason the Company shall bot have
satisfied its full annual sinking fund obligation in any calendar year,
then any such deficiency shall be added to the sinking fund obligation for
the next succeeding calendar year. Any cash paid to the 5% Preferred
Stock Sinking Fund Trustee shall be held by it in trust for the equal and
proportionate benefit of the holders of the 5% Cumulative Preferred Stock
and shall be applied by it, subject to the provisions of paragraph (f) of
this Section II, to the redemption of 5% Cumulative Preferred Stock, at
$100 per share, together in each case with an amount equal to all accrued
and unpaid dividends thereon to the date fixed for redemption, whether or
not earned or declared.
The 5% Preferred Stock Sinking Fund Trustee shall allocate the
aggregate number of shares of 5% Cumulative Preferred Stock so to be
redeemed among the registered holders of such Stock at the time
outstanding, to the nearest share, in the proportion that their respective
holdings bear to the aggregate number of shares of such Stock at the time
outstanding, provided that if the number of such registered holders shall
be more than twenty, the shares to be redeemed shall be determined by lot
in such usual manner as the Preferred Stock Sinking Fund Trustee shall
deem proper.
(f) At least 30 days prior to the date fixed for redemption (which
latter date, in the case of redemption by operation of the foregoing
sinking fund provisions, shall be no later than September 1 of the
particular year, as heretofore provided) notice of every redemption shall
be mailed to the holders of the record of the shares to be redeemed at
their respective addresses as the same to be made by lot under the
provisions of paragraphs (d) and (e) of this Section II, at least 30 days'
previous notice of every redemption shall also be given by appropriate
publication at least once in a daily newspaper printed in the English
language and of general circulation in the City of Boston, Massachusetts.
The notice so mailed shall state the date fixed for redemption
(hereinafter called the redemption date) and shall call upon each
stockholder to whom such notice shall be addressed to surrender to the
Company on the redemption date, at the place designated in such notice,
his certificate or certificates representing the number of shares
specified in such notice of redemption.
On or after the redemption date each holder of shares of 5%
Cumulative Preferred Stock so called for redemption shall present and
surrender his certificate or certificates for such shares to the Company
at the place designated in the foregoing written notice and thereupon the
redemption price of such shares shall be paid to or on the order of the
person whose name appears on the certificate or certificates as the owner
thereof. In case less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares. If notice of redemption shall have been duly given
as hereinbefore provided, and if on or before the redemption date
specified in such notice all funds necessary for such redemption shall
have been set aside by the Company, separate and apart from its other
funds, in trust for the account of holders of the shares to be redeemed,
so as to be and continue to be available therefor, then, notwithstanding
that any certificate for such shares so called for redemption shall not
have been surrendered for cancellation, from and after the date fixed for
redemption, the shares represented thereby shall no longer be deemed to be
outstanding, the right to receive dividends thereon shall cease to accrue
and all rights with respect to such shares so called for redemption shall
cease and terminate, except only the right of the holders thereof to
receive, out of the funds so set aside in trust, the amount payable upon
redemption thereof, without interest; provided, however, that the Company
may, after giving notice of any such redemption as hereinbefore provided
or after giving to the bank or trust company hereinafter referred to
irrevocable authorization to give such notice and at any time prior to the
redemption date specified in such notice, deposit in trust, for the
account of the holders of the shares to be redeemed, funds necessary for
such redemption with a bank or trust company in good standing, organized
under the laws of the United States of America or of the Commonwealth of
Massachusetts, doing business in the City of Boston, Massachusetts, having
capital, surplus and undivided profits aggregating at least $5,000,000, in
which case the aforesaid redemption notice to be mailed to the holders of
record of the shares to be redeemed shall specify the office of such bank
or trust company as the place of payment of the redemption price, and
shall be redeemed at such place on or after the date fixed in such
redemption notice (which shall not be later than the redemption date)
against payment of the redemption price.
Upon such deposit in trust, all shares with respect to which such
deposit shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares so called for redemption shall
forthwith cease and terminate, except only the right of the holders
thereof to receive, out of all the funds so deposited in trust, from and
after the date of such deposit, the amount payable upon the funds so
deposited in trust, from and after the date of such deposit, the amount
payable upon the redemption thereof, without interest. In case the holder
of shares of 5% Cumulative Preferred Stock which shall have been called
for redemption as provided herein shall not within six years of the date
of redemption thereof or the date of such deposit with a bank or trust
company, whichever is earlier, claim the amount so set aside or deposited
in trust, as the case may be, for the redemption of such shares, such bank
or trust company shall upon demand, pay over to the Company any such
unclaimed amount so deposited with it and shall thereupon be relieved of
all responsibility in respect thereof and the Company shall not be
required to hold the amount so paid over to it, or any amount so set aside
by it for the redemption of such shares, separate and apart from its other
funds, and thereafter except as may be otherwise provided by law, the
holders of such shares of 5% Cumulative Preferred Stock shall look only to
the Company for payment of the redemption price redeemed, purchased or
acquired by the Company whether by operation of the sinking fund
provisions of paragraph (e) of this Section II or pursuant to paragraph
(d) of this Section II shall not under any circumstances by reissued or
otherwise disposed of by the Company and each surrendered certificate for
shares of 5% Cumulative Preferred Stock so redeemed shall be canceled and
retired in the manner permitted by law.
(g) Whenever full dividends on the shares of the 5% Cumulative
Preferred Stock at the time outstanding for all past quarterly dividend
periods and for the current quarterly dividend period shall have been paid
or declared and set apart for payment, and provided that the Company shall
be not be in default in respect of any sinking fund payment with respect
to the 5% Cumulative Preferred Stock , then, and only then (subject to the
provisions of subparagraph (h) (B) (b) of this Section II), such dividends
as may be determined by the Board of Directors may be declared and paid on
the Common Stock, but only out of funds legally available for the payment
of dividends; provided, however, that so long as any shares of the 5%
Cumulative Preferred Stock are outstanding, the Company shall not pay any
dividends (other than dividends payable in Common Stock or in any other
stock of the Company junior to the 5% Cumulative Preferred Stock as to
assets and dividends) or make any distribution on, or purchase, or redeem,
retire or otherwise acquire for value any of its Common Stock or other
stock junior to 5% Cumulative Preferred Stock, if after giving affect to
any such payment, distribution, purchase, redemption, retirement or
acquisition the aggregate amount of such dividends, distribution,
purchases and acquisitions, paid or made since July , 1954, including the
amount then proposed to be expended for any such purpose, together with
all other charges to earned surplus since July 1, 1954, exceeds the sum of
the aggregate of (i) credits to earned surplus since July 1, 1954, (ii)
amounts credited to capital surplus after July 1, 1954 arising from the
donation to the Company of cash or securities (other than securities of
the Company junior to the 5% Cumulative Preferred Stock) or transfers of
amounts from earned surplus to capital surplus, and (iii) the aggregate
net cash proceeds, or the fair value of any property other than cash,
received by the Company from the sale of shares or any other security of
the Company junior to 5% Cumulative Preferred Stock. In computing the
amount available for any such dividend, distribution, purchase,
redemption, retirement or acquisition, charges and credits to earned
surplus shall be made in accordance with sound accounting practice.
(h) (A) So long as any shares of the 5% Cumulative Preferred Stock
are outstanding, the Company shall not without the consent (given at a
meeting duly called and held for that purpose) of the holders at least
two-thirds of the total number of shares of 5% Cumulative Preferred Stock
then outstanding;
(a) Create or authorize any stock ranking prior to or on a
parity with the 5% Cumulative Preferred Stock or the 6% Cumulative
Preferred Stock as to assets or dividends, or create or authorize
any security convertible into, or evidencing the right to purchase,
shares of any such stock, or increase the total authorized amount of
5% Cumulative Preferred Stock; or
(b) amend, alter, change or repeal any of the rights,
privileges, preferences, powers, terms and conditions of the 5%
Cumulative Preferred Stock in any manner which would be prejudicial
to the holders thereof; or
(c) sell, lease, transfer or convey all or the greater part of
the Company's property or business; or
(d) become a party to any indenture, mortgage or deed of trust
or other agreement or instrument which by its terms shall restrict
the earned surplus or any other funds of the Company available for
the payment of dividends on the 5% Cumulative Preferred Stock or at
any sinking fund obligation imposed by paragraph (e) of this Section
II, unless provision shall be made in such indenture, mortgage or
deed of trust or other agreement or instrument permitting the
payment by the Company of (i) not less than $10.00 in respect of
each share of 5% Cumulative Preferred Stock then outstanding as
dividends thereon pursuant to the terms of paragraph (b) of this
Section II, and (ii) not less than $51,480 to satisfy the sinking
fund obligation for two yearly periods imposed by paragraph (e) of
this Section II; or
(e) merge or consolidate with or into another corporation in
such manner that the Company does not survive as a continuing
entity, if hereby the rights, privileges, preferences, powers, terms
or conditions of the 5% Cumulative Preferred Stock would be
adversely affected, or if there would thereupon be authorized or
outstanding securities which the Company, if it owned all of the
properties then owned by the resulting corporation, could not create
without the vote or consent of the holders of the 5% Cumulative
Preferred Stock.
(B) So long as any shares of the 5% Cumulative Preferred Stock are
outstanding, the Company shall not, without the consent (given at a
meeting duly called and held for that purpose) of the holders of the
majority of the total number of shares of 5% Cumulative Preferred Stock
then outstanding;
(a) issue or sell addition shares of 5% Cumulative Preferred
Stock, or any shares of any stock ranking prior to or on a parity
with the 5% Cumulative Preferred Stock as to assets or dividends,
unless, after giving affect to such proposed issue or sale, (i) the
net earnings available for interest and dividends, determine an
accordance with sound accounting practice after all taxes and after
provision for depreciation and amortization at least equal to the
"minimum provision for depreciation" as hereinafter defined, for
twelve (12) consecutive calendar months out of fifteen (15) months
immediately preceding shall be at least one and one-half (1-1/2) times
the sum of (x) the aggregate annual interest requirements on all
indebtedness of the Company then outstanding and (y) the aggregate
annual dividend requirements on all shares of 5% Cumulative
Preferred Stock and all shares of any stock ranking to or on a
parity with 5% Cumulative Preferred Stock, to be outstanding; and
(ii) the Company's net earning available for dividends determine in
accordance with sound accounting practice after all taxes and after
provision for depreciation and amortization at least equal to the
"minimum provision for depreciation" as hereinafter defined, for
twelve (12) consecutive calendar months out of the fifteen (15)
months immediately proceeding shall be at least two and one-half
(2-1/2) times the aggregate annual dividends requirements on all
shares of 5% Cumulative Preferred Stock and all shares of any stock
ranking prior to or on a parity with 5% Cumulative Preferred Stock,
to be outstanding; and (iii) the total of the Company's capital
represented by the then outstanding shares of its stock ranking
junior to the 5% Cumulative Preferred Stock, plus the Company's
surplus and any amounts carried as premium on capital stock, would
be at least equal to the resulting aggregate par value, or in case
of stock without par value, the preference on involuntary
liquidation, of all shares of 5% Cumulative Preferred Stock, and all
shares of any stock ranking higher to or on a parity with 5%
Cumulative Preferred Stock, which would be outstanding after giving
affect to such proposed issue or sale; or
(b) declare or pay any dividends (other than dividends payable
in stock ranking junior to the 5% Cumulative Preferred Stock as to
assets and dividends) or make any distribution on, or purchase, or
redeem, retire or otherwise acquire for a consideration, any shares
of any kind of stock ranking junior to 5% Cumulative Preferred Stock
as to assets of dividends, except out of net earnings accumulated
after July 1, 1954, after all dividends paid or accrued since that
date on the 5% Cumulative Preferred Stock, or on any stock ranking
prior to or on a parity with the 5% Cumulative Preferred Stock as to
assets or dividends, and then only if after such action the
aggregate par value or, in the case of stock without par value, the
preference on voluntary liquidations of all outstanding shares of 5%
Cumulative Preferred Stock and all shares of any stock ranking prior
to or on parity with the 5% Cumulative Preferred Stock would not
exceed the sum of (i) the total capital of the Company represented
by the then outstanding stock ranking junior to 5% Cumulative
Preferred Stock as to assets and dividends and (ii) the surplus of
the Company and any amounts carried as premium on its capital stock.
(C) So long as dividends shall be in arrears on the 5% Cumulative
Preferred Stock outstanding, the Company shall not, without the consent of
the holders of a majority of the number of outstanding shares of such
stock represented at a meeting duly called and held for such purpose (or,
if at least one-third of the outstanding shares of such stock shall be
voted against such action, then the affirmative vote of an absolute
majority of such outstanding shares), purchase, redeem, retire or
otherwise acquire for a consideration any shares of 5% Cumulative
Preferred Stock or of any stock ranking on a parity with the 5% Cumulative
Preferred Stock as to assets or dividends.
(D) The foregoing provisions as to vote or consent shall not apply
if, in connection with any of the matters mentioned in subparagraphs (A),
(B) or c above, provision is to be made for the redemption or retirement
of all outstanding 5% Cumulative Preferred Stock.
(E) From time to time, and without limitation of other rights and
powers of the Company as provided by law, the Company may reclassify its
capital stock and may create or authorize one or more classes or kinds of
stock ranking prior to or on a parity with or subordinate to the 5%
Cumulative Preferred Stock, or may increase the authorized amount of the
5% Cumulative Preferred Stock or of the Common Stock or of any other class
of stock of the Company or may amend, after, change or repeal any of the
rights, privileges, terms and conditions of the shares of the 5%
Cumulative Preferred Stock or of the Common Stock, or of any other class
of stock of the Company upon the vote, given at a meeting called for that
purpose, of the holders of a majority of the shares of stock then entitled
to vote thereon or upon such other vote of the holders of the shares of
stock then entitled to vote thereon as may then be provided by law;
provided that the consent of the holders of the shares of the 5%
Cumulative Preferred Stock, required by the provisions of subparagraphs
(A), (B) and (C) of this paragraph (h), if any such consent to be so
required, shall have been obtained; and provided further that the rights,
privileges, terms and conditions of the share of the Common Stock shall
not subject to amendment, alteration, change or repeal without a consent
(given in writing or by vote at a meeting called for that purpose) of all
the holders of a majority of the total number of shares of the Common
Stock then outstanding.
(F) For the purpose of this paragraph (h) of this Section II,
outstanding shares of the 5% Cumulative Preferred Stock shall include all
shares of such stock theretofore issued, except (a) shares held in the
treasury of the Company, (b) shares which shall have been redeemed and (c)
shares for the redemption of which moneys in the necessary amount shall
have been deposited in trust with a bank or trust company in accordance
with paragraphs (e) and (f) of this Section II, and which shall have been
duly called for redemption.
(i) The rights and remedies herein granted to holders of the 5%
Cumulative Preferred Stock shall be in addition to all other rights and
remedies to which they may be otherwise entitled by law.
SECTION III.
Provisions Applicable to All Shares of 6% Cumulative Preferred Stock.
(a) 1,500 shares of the Cumulative Preferred Stock shall be
designated as "6% Cumulative Preferred Stock."
(b) The annual dividend rate shall be 6% per annum of the par value
of $100.00 per share, or $6.00 per share, payable quarterly on the 15th
days of October, January, April, and July.
(c) The aforesaid dividends shall accrue from the date of original
issue and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate $6.00 per annum shall not have been
paid upon or declared and set apart for the 6% Cumulative Preferred Stock,
the deficiency shall be fully paid or declared and set apart before any
dividend shall be paid upon or declared or set apart for the Common Stock.
Dividends on the 6% Cumulative Preferred Stock shall be deemed to accrue
from day to day.
(d) The Company, by action of its Board of Directors, may redeem
the whole or any part of the 6% Cumulative Preferred Stock at any time or
from time to time, at the following redemption prices:
$110.00 per share if redeemed prior to the 5th anniversary of the
date of issue;
$105.00 per share if redeemed on and after the 5th anniversary
but before the 10th anniversary of the date of issue;
$103.00 per share if redeemed on or after the 10th anniversary
but before the 15th anniversary of the date of issue; and
$100.00 per share if redeemed on or after the 15th anniversary of
the date of issue,
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared.
If less than all of the outstanding shares of 6% Cumulative
Preferred Stock are to be redeemed in pursuance of the foregoing
provisions for voluntary redemption, the aggregate number of shares so to
be redeemed shall be determined in the manner specified in paragraph (d)
of Section II hereof.
If less than all of the outstanding shares of 6% Cumulative
Preferred Stock are to be redeemed in pursuance of the foregoing
provisions for voluntary redemption, the Company shall simultaneously with
such redemption redeem such proportion of the then outstanding shares of
5% Cumulative Preferred Stock as the number of shares of 6% Cumulative
Preferred Stock so to be redeemed bears to the aggregate number of shares
of 6% Cumulative Preferred Stock then outstanding.
The 6% Cumulative Preferred Stock shall also be redeemable at $100
per share, together in each case with an amount equal to all accrued and
unpaid dividends thereon to the date fixed for redemption, whether or not
earned or declared through the operation of the sinking fund described in
paragraph (e) of this Section III.
(e) So long as any of the shares of the 6% Cumulative Preferred
Stock shall be outstanding, the Company covenants to pay to a bank or
trust company selected for that purpose by the Board of Directors
(hereinafter called the "6% Preferred Stock Sinking Fund Trustee") as and
for a sinking fund for the retirement of shares of the 6% Cumulative
Preferred Stock not later than April 1 in each calendar year commencing
with the year 1960, an amount of cash equal to 4% of the aggregate par
value of the largest number of shares at 6% Cumulative Preferred Stock
issued at any time prior to the time of such payment. Without limitation
of the rights and remedies of the holders of the 6% Cumulative Preferred
Stock in case of the Company's default in respect of the foregoing sinking
fund obligation, such sinking fund obligation shall be cumulative so that
if for any reason the Company shall not have satisfied its full annual
sinking fund obligation in any calendar year with respect to the 6%
Cumulative Preferred Stock, then any such deficiency shall be added to the
sinking fund obligation for the next succeeding calendar year. Any cash
paid to the 6% Preferred Stock Sinking Fund Trustee shall be held by it in
trust for the equal and proportionate benefit of the holders of the 6%
Cumulative Preferred Stock and shall be applied by it, subject to the
provisions of paragraph (f) of this Section III, to the redemption of 6%
Cumulative Preferred Stock, at $100.00 per share, together in each case
with an amount equal to all accrued and unpaid dividends thereon to the
date fixed for redemption, whether or not earned or declared.
(f) Every redemption of shares of 6% Cumulative Preferred Stock,
whether by operation of the sinking fund provisions therefor or by
voluntary action by the Company, shall be made in the manner, upon the
notice and with the effect provided in paragraphs (e) and (f) of Section
II hereof and all or any shares of the 6% Cumulative Preferred Stock at
any time redeemed, purchased or acquired by the Company whether by
operation of the sinking fund provisions of paragraph (e) of the is
Section III or pursuant to paragraph (f) of this Section III shall not
under any circumstances by reissued or otherwise disposed of by the
Company and each surrendered certificate for shares of 6% Cumulative
Preferred Stock so redeemed shall be canceled and retired in the manner
permitted by law.
(g) Whenever full dividends on the shares of the 6% Cumulative
Preferred Stock at the time outstanding for all past quarterly dividends
periods and for the current quarterly dividends period shall have been
paid or declared and set apart for payment with respect to the 6%
Cumulative Preferred Stock, then, and only then (subject to the provisions
of subparagraph (h)(B)(b) of this Section III), such dividends as may be
determined by the Board of Directors may be declared and paid on the
Common Stock, but only out of funds legally available for the payment of
dividends; provided, however, that so long as any shares of the 6%
Cumulative Preferred Stock are outstanding, the Company shall not pay any
dividends (other than dividends payable in Common Stock or in any other
stock of the Company junior to the 6% Cumulative Preferred Stock as to
assets and dividends) or make any distribution on, or purchase, or redeem,
retie or otherwise acquire for value, any of its Common Stock or other
stock junior to the 6% Cumulative Preferred Stock, if after giving effect
to any such payment, distribution, purchase, redemption, retirement or
acquisition the aggregate amount of such dividends, distributions,
purchases and acquisitions, paid or made since June 30, 1958, including
the amount then proposed to be expended for any such purpose, together
with all other charges to earned surplus since June 30, 1958, exceeds the
sum of the aggregate of (i) $50,000, (ii) credits to earned surplus since
June 30, 1958, (iii) amounts credited to capital surplus after June 30,
1958 arising from the donation to the Company of cash or securities (other
than securities of the Company junior to the 6% Cumulative Preferred
Stock) or transfers of amounts from earned surplus to capital surplus, and
(iv) the aggregate net cash proceeds, or the fair value of any property
other than cash, received by the Company from the sale of shares or any
other security of the Company junior to the 6% Cumulative Preferred Stock.
In computing the amount available for any such dividend, distribution,
purchase, redemption, retirement or acquisition, charges and credits to
earned surplus shall be made in accordance with sound accounting practice.
(h) (A) So long as any shares of the 6% Cumulative Preferred Stock
are outstanding, the Company shall not without the consent (given at a
meeting duly called and held for that purpose) of the holders of at least
two-thirds of the total number of shares of 6% Cumulative Preferred Stock
then outstanding;
(a) create or authorize any stock ranking prior to or on a
parity with the 6% Cumulative Preferred Stock or the 5% Cumulative
Preferred Stock as to assets or dividends, or create or authorize
any security convertible into, or evidencing the right to purchase,
shares of any such stock, or increase the total authorized amount of
6% Cumulative Preferred Stock; or
(b) amend, alter, change or repeal any of the rights,
privileges, preferences, powers, terms and conditions of the 6%
Cumulative Preferred Stock in any manner which would be prejudicial
to the holders hereof; or
(c) sell, lease, transfer or convey all or the greater part of
the Company's property or business; or
(d) create, assume, incur, have outstanding, or in any manner
become liable in respect of, any unsecured indebtedness for borrowed
money in excess of $1,200,000 at any one time outstanding, payable on
demand or within one year from the date of borrowing and nor
renewable at the option of the Company; or
(e) create, assume, incur, have outstanding, or in any manner
become liable in respect of, any indebtedness, direct or contingent,
secured by the pledge of evidence of indebtedness executed by
customers of the Company as consideration for the purchase (whether
from the Company or from dealers) of standard gas appliance unless
the Company shall have simultaneously therewith created and set
aside a reserve at $1,500 in respect of each $100,000 principal
amount, or part thereof, of evidences of customers indebtedness so
pledged by the Company as security for the payment of such
indebtedness of the Company; or
(f) become a party to any indenture, mortgage or deed of trust
or other agreement or instrument which by its terms shall restrict
the earned surplus or any other funds of the Company available for
the payment of dividends on the 6% Cumulative Preferred Stock or of
any sinking fund obligation imposed by paragraph (e) of this Section
III, unless provision shall be made in such indenture, mortgage or
deed of trust or other agreement or instrument permitting the
payment by the Company of (i) not less than $12.00 in respect of
each share of 6% Cumulative Preferred Stock then outstanding as
dividends thereon pursuant to the terms of paragraph (b) of this
Section III, and (ii) not less than $12,000 to satisfy the sinking
fund obligation for two yearly periods imposed by paragraph (e) of
this Section III; or
(g) merge or consolidate with or into any other corporation in
such manner that the Company does not survive as a continuing
entity, if thereby the rights, privileges, preferences, powers,
terms or conditions of the 6% Cumulative Preferred Stock would be
adversely affected, or if there would, thereupon, be authorized or
outstanding securities which the Company, if it owned all of the
properties then owned by the resulting corporation, could not create
without the vote or consent of the holders of the 6% Cumulative
Preferred Stock.
(B) So long as any shares of the 6% Cumulative Preferred Stock are
outstanding, the Company shall not, without the consent (given at a
meeting duly called and held for that purpose) of the holders of a
majority of the total number of shares of 6% Cumulative Preferred Stock
then outstanding:
(a) issue or sell any additional shares of 6% Cumulative
Preferred Stock, or any shares of any stock ranking prior to or on a
parity with the 6% Cumulative Preferred Stock as to assets or
dividends, unless, after giving effect to such proposed issue or
sale, (i) the net earnings of the Company available for interest and
dividends, determined in accordance with sound accounting practice
after all taxes and after provision for depreciation and
amortization at least equal to the "minimum provision for
depreciation" as hereinafter defined, for twelve (12) consecutive
calendar months out of fifteen (15) months immediately preceding
shall be at least one and one-half (1-1/2) times the sum of (x) the
aggregate annual interest requirements on all indebtedness of the
Company then outstanding and (y) the aggregate annual dividend
requirements on all shares of 6% Cumulative Preferred Stock and all
shares of any stock ranking prior to or on a parity with the 6%
Cumulative Preferred Stock, to be outstanding; and (ii) the
Company's net earnings available for dividends, determined in
accordance with sound accounting practice after all taxes and after
provision for depreciation and amortization at least equal to the
"minimum provision for the fifteen (15) months immediately
preceding, shall be at least two and one-half (2-1/2) times the
aggregate annual dividend requirements on all shares of 6%
Cumulative Preferred Stock and all shares of any stock ranking prior
to or on a parity with the 6% Cumulative Preferred Stock, to be
outstanding; and (iii) the total of the Company's capital
represented by the then outstanding shares of its stock ranking
junior to the 6% Cumulative Preferred Stock, plus the Company's
surplus and any amounts carried as premium on capital stock, would
be at least equal to the resulting aggregate par value, or in case
of stock without par value, the preference on involuntary
liquidation, of all shares of 6% Cumulative Preferred Stock and all
shares of any stock ranking prior to or on a parity with the 6%
Cumulative Preferred Stock, which would be outstanding after giving
affect to such proposed issue or sale; or
(b) declare or pay any dividends (other than dividends payable
in stock ranking junior to the 6% cumulative Preferred Stock as to
assets and dividends) or make any distribution on, or purchase, or
redeem, retire or otherwise acquire for a consideration, any shares
of any kind of stock ranking junior to the 6% Cumulative Preferred
Stock as to assets or dividends, except out of net earnings
accumulated after June 30, 1958 plus $50,000, after all dividends
paid or accrued since that date on the 6% Cumulative Preferred
Stock, or on any stock ranking prior to or on a parity with the 6%
Cumulative Preferred Stock as to assets or dividends, and then only
if after such action the aggregate par value or, in the case of
stock without par value, the preference on involuntary liquidation
of all outstanding shares of 6% Cumulative Preferred Stock and all
shares of any stock ranking prior to or on a parity with the 6%
Cumulative Preferred Stock would not exceed the sum of (I) the total
capital of the Company represented by the then outstanding stock
ranking junior to the 6% Cumulative Preferred Stock as to assets and
dividends and (ii) the surplus of the Company and any amounts
carried as premium on its capital stock. The term "minimum
provision for depreciation" shall mean, for any 12-months' period,
an amount equal to 2% of the average gross depreciable plant
property account of the Company during such period.
(C) So long as dividends shall be in arrears on the 6% Cumulative
Preferred Stock outstanding, the Company shall not, without the consent of
the holders of a majority of the number of outstanding shares of such
stock represented at a meeting duly called and hold for such purpose (or,
it at least one-third of the outstanding shares of such stock shall be
voted against such action, then the affirmative vote of an absolute
majority of such outstanding shares), purchase, redeem, retire or
otherwise acquire for a consideration any shares of 6% Cumulative
Preferred Stock or of any stock ranking on a parity within the 6%
Cumulative Preferred Stock as to assets or dividends.
(D) The foregoing provisions as to vote or consent shall not apply
if, in connection with any of the matters mentioned in subparagraphs (A),
(B), or (C) of this paragraph (h), provision is to be made for the
redemption or retirement of all the outstanding 6% Cumulative Preferred
Stock.
(E) From time to time, and without limitation of other rights and
powers of the Company as provided by law, the Company may reclassify its
capital stock and may create or authorize one or more classes or kinds of
stock ranking prior to or on a parity with or subordinate to the 6%
Cumulative Preferred Stock, or may increase the authorized amount of the
6% Cumulative Preferred Stock or of the Common Stock or of any other class
of stock of the Company or may amend, alter, change or repeal any of the
rights, privileges, terms and conditions of the shares of the 6%
Cumulative Preferred Stock or of the Common Stock, or of any other class
of stock of the Company, upon the vote, given at a meeting called for that
purpose, of the holders of a majority of the shares of stock then entitled
to vote thereon or upon such other vote of the holders of the shares of
stock then entitled to vote thereon as may then be provided by law;
provided that the consent of the holders of the shares of the 6%
Cumulative Preferred Stock, required by the provisions of subparagraph
(A), (B), and (C) of this paragraph (h), if any such consent be so
required, shall have been obtained; and provided further that the rights,
privileges, terms and conditions of the shares of the Common Stock shall
not be subject to amendment, alteration, change or repeal without the
consent (given in writing or by vote at a meeting called for that purpose)
of the holders of a majority of the total number of shares of the Common
Stock then outstanding.
(F) For the purpose of this paragraph (h) of this Section III,
outstanding shares of the 6% Cumulative Preferred Stock shall include all
shares of such stock theretofore issued, except (a) shares held in the
treasury of the Company, (b) shares which shall have been redeemed and (c)
shares for the redemption of which moneys in the necessary amount shall
have been deposited in trust with a bank or trust company in accordance
with paragraphs (e) and (f) of this Section III, and which shall have been
duly called for redemption.
(i) The rights and remedies herein granted to holders of the 6%
Cumulative Preferred Stock shall be in addition to all other rights and
remedies to which they may be otherwise entitled by law.
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
235 STATE HOUSE, BOSTON 33
ARTICLES OF AMENDMENT
This certificate must be submitted to the Commissioner of Corporations and
Taxation within thirty days after the date of the vote of the stockholders,
in accordance with General Laws, Chapter 156, Section 43. FEE for filing
certificate providing for a change of shares with par value to shares
without par value, whether or not the capital is changed thereby, one cent
for each shares without par value resulting from such change, less an amount
equal to one twentieth of one per cent of the total par value of the shares
so changed; but not in any case less than $25.00. The fee for filing all
other amendments is $15.00. Make check payable to THE COMMONWEALTH OF
MASSACHUSETTS
WE, Joseph T. Kelley, Vice President, J. Richard Cottrell, Assistant
Treasurer, and J.C. Donnelly, K.D. Knoblock, F.Q. O'Neill, Robert McCracken
and Joseph T. Kelley being a majority of the Directors of The Berkshire Gas
Company located at Pittsfield, Massachusetts in compliance with the provisions
of General Laws, Chapter 156, do hereby certify that at a meeting of the
stockholders of the corporation, duly called for the purpose, held April 16,
1959, by the affirmative vote of 10,531 shares of the preferred stock and of
107,366 shares of the common stock of the corporation, being at least a
majority of all the stock outstanding and entitled to vote, the following
amendment or alteration in the Agreement of Association and Articles of
Organization of the corporation was duly adopted, namely;
That the Charter, Agreement of Association and Articles of Organization of
The Berkshire Gas Company be and they hereby are amended by striking out the
statement of the terms on which the 5% Cumulative Preferred Stock and the 6%
Preferred Stock are to be created and of the method of voting thereon and by
substituting therefor the following statement:
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
WE, Joseph T. Kelley, Vice President, J. Richard Cottrell, Assistant
Treasurer, and J.C. Donnelly, K.D. Knoblock, F.Q. O'Neill, Robert McCracken
and Joseph T. Kelley being a majority of the Directors of The Berkshire Gas
Company in compliance with the provisions of section forty of chapter one
hundred and fifty-eight (Chapter 164 Section 10) of the General Laws, Ter.
Ed., do hereby certify that a meeting of the stockholders called for the
purpose the capital stock of said corporation has been decreased by the
amount of One hundred thousand dollars,
The total amount of capital stock already authorized is
11,435 (shares preferred.
137,161 (shares common.
The amount of fully paid capital stock already issued for cash is
11,435 (shares preferred*
137,161 (shares common.
722 shares of preferred stock have been redeemed in accordance with the
sinking fund provision
The amount of fully paid capital stock already issued for property is
none (shares preferred.
None (shares common.
The amount of stock by which the capital stock is to be reduced is
5,000 (shares preferred
(shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names, this 22nd day of May in the year 1959.
Berkshire Gas Company, The
CERTIFICATE OF REDUCTION OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Section 40.
Filed in the office of the Secretary of the Commonwealth.
May 26, 1959.
I hereby approve the within certificate, this 26th day of May, 1959.
Commissioner of Corporations and Taxation.
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
WE, Joseph T. Kelley, Vice President, J. Richard Cottrell, Assistant
Treasurer, and J.C. Donnelly, K.D. Knoblock, F.Q. O'Neill, Robert McCracken
and Joseph T. Kelley being a majority of the Directors of The Berkshire Gas
Company in compliance with the provisions of section thirty-nine of chapter
one hundred and fifty-eight (Chapter 164 Section 10) of the General Laws,
Ter. Ed., do hereby certify that a meeting of the stockholders called for
the purpose the capital stock of said corporation has been increased by the
amount of One hundred fifty thousand dollars, and that the same has all been
paid in on May 27, 1959.
The toatal amount of capital stock already authorized is
6,435 (shares preferred.
137,161 (shares common
the amount of fully paid capital stock already issued for cash is
6,435 (shares preferred*
137,161 (shares common
*722 shares of preferred stock have been redeemed in accordance with the
sinking fund provisions. The amount of fully paid capital stock already
issued for property is
None (shares preferred
None (shares common
The amount of additional capital stock authorized is
1,500 (shares preferred
(shares common
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY,
we have hereto signed our names, this 27th day of May in the year 1959.
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Section 39 and 41
Filed in the office of the Secretary of the Commonwealth.
May 28, 1959.
I hereby approve the within certificate, this 27th day of May, 1959.
Commissioner of Corporations and Taxation.
The Commonwealth of Massachusetts
Berkshire Gas Company
Articles of Amendment
General Laws, Chapters 156, Section 42
58, Section 39
Amendment to statement of designations, preferences and voting powers or
restrictions or qualifications of capital stock.
Filed in the office of Secretary of the Commonwealth, August 8, 1960
I hereby approve the within certificate, this 8th day of August, 1960
/s/
Commissioner of Corporations and Taxation
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this eighth day of August in the year 1960.
The term "minimum provision for depreciation" shall mean, for any 12-
months' period, an amount equal to 2% of the average gross depreciable
plant property account of the Company during such period.
(C) So long as dividends shall be in arrears on the 5 7/8% Cumulative
Preferred Stock outstanding, the Company shall not, without the consent of
the holders of a majority of the number of outstanding shares of such
stock represented at a meeting duly called and held for such purpose (or,
if at least one-third of the outstanding shares of such stock shall be
voted against such action, then the affirmative vote of the absolute
majority of such outstanding shares), purchase, redeem, retire or
otherwise acquire for a consideration any shares of 57/8% Cumulative
Preferred Stock or of any stock ranking on a parity with the 5 7/8%
Cumulative Preferred Stock or of any stock ranking on a parity with the 5
7/8% Cumulative Preferred Stock as to assets or dividends.
(D) The foregoing provisions as to vote or consent shall not apply if,
in connection with any of the matters mentioned in subparagraphs (A), (B)
or (C) of this paragraph (h), provision is to be made for the redemption
or retirement of all the outstanding 5 7/8% Cumulative Preferred Stock.
(E) From time to time, and without limitation of other rights and
powers of the Company as provided by law, the Company may reclassify its
capital stock and may create or authorize one or more classes or kinds of
stock ranking prior to or on a parity with or subordinate to the 5 7/8%
Cumulative Preferred Stock, or may increase the authorized amount of the 5
7/8% Cumulative Preferred Stock or of the Company Stock or of any other
class of stock of the Company or may amend, alter, change or repeal any of
the Common Stock, or of any other class of stock of the Company, upon the
vote, given at a meeting called for that purpose, of the holders of a
majority of the shares of stock then entitled to vote thereon or upon such
other vote of the holders of the shares of stock then entitled to vote
thereon as may then be provided by law; provided that the consent of the
holders of the shares of the 5 7/8% Cumulative Preferred Stock required by
the provisions of subparagraphs (A), (B) and (C) of this paragraph (h), if
any such consent be so required, shall have been obtained; and provided
further that the rights, privileges, terms and conditions of the shares of
the Common Stock shall not be subject to amendment, alteration, change or
repeal without the consent (given in writing or by vote at a meeting
called for that purpose) of the holders of a majority of the total number
of shares of the Common Stock then outstanding.
(F) For the purpose of the paragraph (h) of this Section IV,
outstanding shares of the 5 7/8% Cumulative Preferred Stock shall include
all shares of such stock theretofore issued, except (a) shares held in the
treasury of the Company, (b) shares which shall have been redeemed and (c)
shares for the redemption of which moneys in the necessary amount shall
have been deposited in trust with a bank or trust company in accordance
with paragraphs (e) and (f) of this Section IV, and which shall have been
duly called for redemption.
(i) The rights and remedies herein granted to holders of the 5 7/8%
Cumulative Preferred Stock shall be in addition to all other rights and
remedies to which they may be otherwise entitled by law.
SECTION IV
(a) 5,000 shares of the Cumulative Preferred Stock shall be designated
as "5 7/8% Cumulative Preferred Stock"
(b) The annual dividend rate shall be 5 7/8% per annum of the par value of
$100.00 per shares, or $5.875 per share, payable quarterly on the 15th
days of October, January, April and July.
(c) The aforesaid dividends shall accrue from the date of original issue
and shall be cumulative so that if dividends in respect of any quarterly
dividend period at the rate of $5.875 per annum shall not have been paid
upon or declared and set apart for the 5 7/8% Cumulative Preferred Stock,
the deficiency shall be fully paid or declared and set apart before any
dividend shall be paid upon or declared or set apart for the 5 7/8%
Cumulative Preferred Stock shall be deemed to accrue from day to day.
(d) The Company, by action of its Board of Directors, may redeem the
whole or any part of the 5 7/8% Cumulative Preferred Stock at any time or
from time to time, at the following redemption prices:
$110.00 per share if redeemed prior to the 5th anniversary of
the date of issue;
$105.00 per share if redeemed on and after the 5th anniversary
but before the 10th anniversary of the date of issue;
$103.00 per share if redeemed on or after the 10th anniversary
but before the 15th anniversary of the date of issue; and
$100.00 per share if redeemed on or after the 15th anniversary of
the date of issue.
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared.
If less than all of the outstanding shares of 5 7/8% Cumulative Preferred
Stock are to be redeemed in pursuance of the foregoing provisions for
voluntary redemption, the aggregate number of shares so to be redeemed
shall be allocated in the manner specified in paragraph (d) of Section II
hereof.
If less than all of the outstanding shares of 5 7/8% Cumulative Preferred
Stock are to be redeemed in pursuance of the foregoing provisions for
voluntary redemption, the Company shall simultaneously with such
redemption redeem such proportion of the then outstanding shares of 5%
Cumulative Preferred Stock and 6% Cumulative Preferred Stock as the number
of shares of 5 7/8% Cumulative Preferred Stock so to be redeemed bears to
the aggregate number of shares of 5 7/8% Cumulative Preferred Stock then
outstanding.
The 5 7/8% Cumulative Preferred Stock shall also be redeemable at $100 per
share, together in each case with an amount equal to all accrued and
unpaid dividends thereon to the date fixed for redemption, whether or not
earned or declared, through the operation of the sinking fund described in
paragraph (e) of this Section IV.
(e) So long as any of the shares of the 5 7/8% Cumulative Preferred Stock
shall be outstanding, the Company covenants to pay to a bank or trust
company selected for that purpose by the Board of directors (hereinafter
called the "5 7/8% Preferred Stock Sinking Fund Trustee") as and for a
sinking fund for the retirement of shares of the 5 7/8% Cumulative
Preferred Stock not later than April 1 in each calendar year commencing
with the year 1962 an amount of cash equal to 4% of the aggregate par
value of the largest number of shares of 5 7/8% Cumulative Preferred Stock
issued at any time prior to the time of such payment. Without limitation
of the rights and remedies of the holders of the 5 7/8% Cumulative
Preferred Stock in case of the Company's default in respect of the
foregoing sinking fund obligation, such sinking fund obligation shall be
cumulative so that if for any reason the Company shall not have satisfied
its full annual sinking fund obligation in any calendar year with respect
to the 5 7/8% Cumulative Preferred Stock, then any such deficiency shall
be added to the sinking fund obligation for the next succeeding calendar
year. Any cash paid to the 5 7/8% Preferred Stock Sinking Fund Trustee
shall be held by it in trust for the equal and proportionate benefit of
the holders of the 5 7/8% Cumulative Preferred Stock and shall be applied
by it, subject to the provisions of paragraph (f) of this Section IV, to
the redemption of 5 7/8% Cumulative Preferred Stock, at $100.00 per share,
together in each case with an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared.
(f) Every redemption of shares of 5 7/8% Cumulative Preferred Stock,
whether by operation of the sinking fund provisions therefore or by
voluntary action by the Company, shall be made in the manner, upon the
notice and with the effect provided in paragraphs (e) and (f) of Section
II hereof and all or any shares of the 5 7/8% Cumulative Preferred Stock
at any time redeemed, purchased or acquired by the Company whether by
operation of the sinking fund provisions of paragraph (e) of this Section
IV or pursuant to paragraph (f) of this Section IV shall not under any
circumstances be reissued or otherwise disposed of by the Company and each
surrendered certificate for shares of 5 7/8% Cumulative preferred Stock so
redeemed shall be canceled and retired in the manner permitted by law.
(g) Whenever full dividends on the shares of the 5 7/8% Cumulative
Preferred stock at the time outstanding for all past quarterly dividend
periods and for the current quarterly dividend period shall have been paid
or declared and set apart for payment, and provided that the Company shall
not be in default in respect of any sinking fund payment with respect to
the 5 7/8% Cumulative Preferred Stock, then and only then (subject to the
provisions of subparagraph (h), (B), (b) of this Section IV, such
dividends as may be determined by the Board of Directors may be declared
and paid on the Common Stock, but only out of funds legally available for
payment of dividends; provided, however, that so long as any shares of the
5 7/8% Cumulative Preferred Stock are outstanding, the Company shall not
pay any dividends (other than dividends payable in Common Stock or in any
other stock of the Company junior to the 5 7/8% Cumulative Preferred Stock
as to assets and dividends)or make any distribution on, or purchase, or
redeem, retire or otherwise acquire for value, any of its Common Stock or
other stock junior to the 5 7/8% Cumulative Preferred Stock, if after
giving effect to any such payment, distribution, purchase, redemption,
retirement or acquisition the aggregate amount of such dividends,
distributions, purchases and acquisitions, paid or made since June 30,
1960, including the amount then proposed to be expended for any such
purpose, together with all other charges to earned surplus since June 0,
1960, exceeds the sum of the aggregate of (i) $100,000; (ii) credits to
earned surplus since June 30, 1060; (iii) amounts credited to capital
surplus after June 30,1960 arising from the donation to the Company of
cash or securities (other than securities of the Company junior to the 5
7/8% Cumulative Preferred Stock) or transfers of amounts from earned
surplus to capital surplus and (v) the aggregate net cash proceeds, or the
fair value of any property other than cash, received by the Company from
the sale of shares or any other security of the Company junior to the 5
7/8% Cumulative Preferred Stock. In computing the amount available for
any such dividend, distribution, purchase, redemption, retirement or
acquisition, charges and credits to earned surplus shall be made in
accordance with sound accounting practice.
(h) (A) So long as any shares of the 5 7/8% Cumulative Preferred Stock
are outstanding, the Company shall not without the consent (given at a
meeting duly called and held for that purpose) of the holders of at least
two-thirds of the total number of shares of
5 7/8% Cumulative Preferred Stock then outstanding;
(a) create or authorize any stock ranking prior to or on a parity
with the 6% Cumulative Preferred Stock or the 5% Cumulative Preferred
Stock or the 5 7/8% Cumulative Preferred Stock as to assets or dividends,
or create or authorize any security convertible into, or evidencing the
right to purchase, shares of any such stock, or increase the total
authorized amount of 5 7/8% Cumulative Preferred Stock; or
(b) amend, alter, change or repeal any of the rights, privileges,
preferences, powers, terms and conditions of the
5 7/8% Cumulative Preferred Stock in any manner which would be prejudicial
to the holders hereof; or
(c) sell, lease, transfer or convey all or the greater part of the
Company's property or business; or
(d) merge or consolidate with or into any other corporation in such
manner that the Company does not survive as a continuing entity, if
thereby the rights, privileges, preferences, powers, terms or conditions
of the 5 7/8% Cumulative Preferred Stock would be adversely affected, or
if there would, thereupon, be authorized or outstanding securities which
the Company, if it owned all of the properties then owned by the resulting
corporation, could not create without the vote or consent of the holders
of the 5 7/8% Cumulative Preferred Stock.
(B) So long as any shares of the 5 7/8% Cumulative Preferred Stock are
outstanding, the Company shall not, without the consent (given at a
meeting duly called and held for that purpose) of the holders of a
majority of the total number of shares of 5 7/8% Cumulative Preferred
Stock then outstanding.
(a) issue or sell any additional shares of 5 7/8% Cumulative
Preferred Stock, or any shares of any stock ranking prior to or on a
parity with the 5 7/8% Cumulative Preferred Stock as to assets or
dividends, unless after giving effect to such proposed issue or sale, (i)
the net earnings of the Company available for interest and dividends,
determined in accordance with sound accounting practice after all taxes
and after provision for depreciation and amortization at least equal to
the "minimum provisions for depreciation" as hereinafter defined, for
twelve (12) consecutive calendar months out of fifteen (15) months
immediately preceding shall be at least one and one-half (1 1/2) times the
sum of (x) the aggregate annual interest requirements on all indebtedness
of the Company then outstanding and (y) the aggregate annual dividend
requirements on all shares of 5 7/8% Cumulative Preferred Stock and all
shares of any stock ranking prior to or on a parity with the 5 7/8%
Cumulative Preferred Stock, to be outstanding; and (ii) the Company's net
earnings available for dividends, determined in accordance with sound
accounting practice after all taxes and after provision for depreciation
and amortization at least equal to the "minimum provisions for
depreciation" as hereinafter defined, for twelve (12) consecutive calendar
months out of the fifteen (15) months immediately preceding, shall be at
least two and one-half (2 1/2) times the aggregate annual dividend
requirements on all shares of 5 7/85 Cumulative Preferred Stock and all
shares of any stock ranking prior to or on a parity with the 5 7/8%
Cumulative Preferred Stock, to be outstanding; and (iii) the total of the
Company's capital represented by the then outstanding shares of its stock
ranking junior to the 5 7/8% Cumulative Preferred Stock, plus the
Company's surplus and any amounts carried as premium on capital stock,
would be at least equal to the resulting aggregate par value, or in case
of stock without par value, the preference on involuntary liquidation, of
all shares of 5 7/8% Cumulative Preferred Stock, which would b outstanding
after giving effect to such proposed issue or sale; or
(b) declare or pay any dividends (other than dividends payable in
stock ranking junior to the 5 7/8% Cumulative Preferred Stock as to
assets and dividends) or make any distribution on, or purchase, or redeem,
retire or otherwise acquire for a consideration, any shares of any kind of
stock ranking junior to the 5 7/8% Cumulative Preferred Stock as to assets
or dividends, and then only if after such action the aggregate par value
or, in the case of stock without par value, the preference on involuntary
liquidation of all outstanding shares of 5 7/8% Cumulative Preferred Stock
would not exceed the sum of (i) the total capital of the Company
represented by the then outstanding stock ranking junior to the 5 7/8%
Cumulative Preferred Stock as to assets and dividends and (ii) the surplus
of the Company and any amounts carried as premium on its capital stock.
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Sections A39 and 41
We, Joseph T. Kelley, Vice President and J. Richard Cottrell, Assistant
Treasurer and K.D. Knowblock, Robert w. McCracken, Joseph T. Kelley, J.c.
Donnelly and F.A. O'Neill being a majority of the Directors of The
Berkshire Gas Company in compliance with the provisions of section thirty-
nine of chapter one hundred and fifty-eight (Chapter 164 Section 10) of
the General Laws, Ter. Ed., do hereby certify that a meeting of the
stockholders called for the purpose the capital stock of said corporation
has been increased by the amount of five hundred thousand dollars, and
that the same has all been paid in on August 8, 1960.
The total amount of capital stock already authorized is
7935 (shares preferred.
137161 (shares common.
The amount of fully paid capital stock already issued for cash is
7935 (Shares preferred.*
137161 (shares common.
*1089 shares of preferred stock have been redeemed in accordance with
sinking fund provisions.
The amount of fully paid capital stock already issured for property is
0 (Shares preferred.
0 (Shares common.
The amount of additional capital stock authroized is
5000 (Shares preferred**
(Shares common.
**5 7/8 Cumulative Preferred of a par value of $100.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY,we have signed our
neames, this eighth day of August in the year 1960.
Filed in the office of the Secretary of the Commonwealth . August 8, 1960.
I hereby approve the within certificate, this 8th day of August 1960.
Commissioner or Corporations and Taxation
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF CORPORATIONS AND TAXATION
235 STATE HOUSE BOSTON 33
ARTICLES OF AMENDMENT
This certificate must be submitted to the Commissioner of Corporations and
Taxation within thirty days after the date of the vote of stockholders, in
accordance with General Laws, Chapter 156, Section 43. FEE for filing
certificate providing for a change of shares with par value to shares
without par value, whether or not the capital is changed thereby, one cent
for each share without par value resulting from such change, less an
amount equal to one twentieth of one percent of the total par value of the
shares so changed; but not in any case less than %25.00. The fee for
filing all other amendments is $25.00 Make check payable to THE
COMMONWEALTH OF MASSACHUSETTS
WE Joseph T. Kelley, Vice President, J. Richard Cottrell, Ass't. Treasurer
and K.D. Knoblock, Robert W. McCracken, Joseph T. Kelley, J. Cl Donnelly
and F. A. O'Neill
the Berkshire Gas Company being a majority of the Directors of located at
Pittsfield, Massachusetts, in compliance with the provisions of General
Laws, Chapter 156, do hereby certify that at a meeting of the stockholders
of the corporation, duly called for the purpose, held on July 20, 1960 by
the affirmative vote of 5642 shares of the preferred stock and of 103326
shares of the common stock of the corporation, being at least a majority
of all the stock outstanding and entitled to vote, the following amendment
or alteration in the Agreement of Association and Articles of Organization
of the corporation was duly adopted, namely:
the Charter, Agreement of Association and Articles of Organization of this
Company be, and they hereby are, amended by amending the Statement of the
Designations, Preferences and Voting Powers or Restrictions or
Qualifications of the Capital Stock of the Company in the following
manner:
"(a) Introductory Paragraph. The number '7,935' is deleted and the
number '12,935' is substituted in lieu thereof.
"(b) Section I(a). The words 'and in Section IV hereof with
respect to the 5-7/8% Cumulative Preferred Stock.' are inserted after the
words '6% Cumulative Preferred Stock.'
"(c) Section I(e) (B). The words 'or by paragraph (e) of Section
IV hereof in respect of the 5 7/8% Cumulative Preferred Stock' are
inserted after the words '6% Cumulative Preferred Stock.'
"(d) Section I(e) (C). The words 'and under paragraph (e) of
Section IV hereof in respect of the 5-7/8% Cumulative Preferred Stock' are
inserted after the words '6% Cumulative Preferred Stock.'
"(e) Section I (e) (F). The words 'and paragraph h of section IV
hereof' are inserted after the words 'Section III hereof.'
"(f) Section II(d). The words 'and 5-7/8% Cumulative Preferred
Stock' are inserted after the words '6% Cumulative Preferred Stock' in the
next to the last paragraph.
"(g) Section III(d). The words 'and 5-7/8% Cumulative Preferred
Stock' are inserted after the words '5% Cumulative Preferred Stock' in the
next to the last paragraph.
"(h) By adding Section IV which is inserted after Section III,
which Section IV is hereto annexed and incorporated as a part of this
resolution with the same force and effect as though herein set forth in
full."
We, Joseph T. Kelley, Vice-President, J. Richard Cottrell, Asst. Treasurer
and Joseph T. Kelley, J.C. Donnelly, K.D. Knoblock, W. Barton Cummings,
Leonard Milano, and Robert W. McCracken
being a majority of the Directors of The Berkshire Gas Company
in compliance with the provisions of section thirty-nine of chapter one
hundred and fifty-eight (Chapter 164 Section10) of the General Laws, Ter.
Ed., do hereby certify that ameeting of the stockholders called for the
purpose the capital stock of said corporation has been increased by the
amount of 274,320. dollars, and that the same has all been paid in on
June 6, 1962 (give date).
The total amount of capital stock already authorized is
12,935 (shares preferred.
137,161 (shares common.
The amount of fully paid capital stock already issured for cash is
12,935 (shares preferred.
137,161 (shares common.
2,123 shares of preferred stock have been redemmed in accordance with
the sinking fund provision
The amount of fully paid capital stock already issued for property is
none (shares preferred.
none (shares common.
The amount of additional capital stock authorized is
(shares preferred.
27,432 (shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this 6 day of June in the year 1962.
WRITE NOTHING BELOW
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
General Lawws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter.
Ed., Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth June 11, 1962
I hereby approve the within certificate this 11th day of June 1962
/s/
Comminissioner of Corporations and Taxation
THE COMMONWEALTH OF MASSACHUSETTS
Kevin H. White, SECRETARY OF THE COMMONWEALTH
STATE HOUSE, BOSTON, MASSACHUSETTS 02133
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 43
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
We, J.T. Kelley, Vice President, and J.R. Cottrell, Clerk of The Berkshire
Gas Company located at 20 Elm Street, Pittsfield, Massachusetts do hereby
certify that the following amendment to the articles of organization of the
corporation was duly adopted at a meeting held on October 26, 1965, by a
vote of:
122,046 shares of common stock, out of 164,593 shares outstanding,
being at least two-thirds of each class outstanding and entitled to vote
thereon and of each class or series of stock whose rights are adversely
affected thereby.
"RESOLVED, That the Charter, Agreement of Association and Articles of
Organization of this Company be, and they hereby are, amended by
"(a) reducing the capital stock of this Company by the redemption and
cancellation of all of the 5%, 5-7/8% and 6% Cumulative Preferred Stock, par
value $100, of the Company;
"(b) increasing the capital stock of the Company by creating and
issuing 15,000 shares of 4.80% Cumulative Preferred Stock, par value $100
per share; and
"(c) deleting the Statement of the Designations, Preferences and
Voting Powers or Restrictions or Qualifications of the capital stock of the
Company and by substituting in lieu thereof, the following:
THE BERKSHIRE GAS COMPANY
STATEMENT OF THE DESIGNATIONS, PREFERENCES AND VOTING POWERS OR RESTRICTIONS
OR QUALIFICATIONS OF THE CAPITAL STOCK OF THE COMPANY
The authorized capital stock of the Company shall include, in addition to
the common capital stock heretofore authorized, 15,000 shares of Cumulative
Preferred Stock, of the par value of $100 per share, with the following
designations, preferences, voting powers, restrictions and qualifications:
SECTION 1.
Provisions Applicable to All Shares of Cumulative Preferred Stock.
(a) All shares of Cumulative Preferred Stock shall be of equal rank
with each other, regardless of class, and shall be identical with each other
in all respects except as otherwise provided herein; and the shares of
Cumulative Preferred Stock of any one class shall be identical with each
other in all respects.
(b) In case of the stated dividends on each class of Cumulative
Preferred Stock are not paid in full, the shares of each class of Cumulative
Preferred Stock shall share ratably in the payment of dividends,including
accumulations thereof, if any, in accordance with the sums which would be
payable on such shares if all dividends were declared and paid in full.
(c) The Cumulative Preferred Stock of each class shall be preferred as
to assets over the Common Stock, so that the holders of each class of
Cumulative Preferred Stock shall be entitled to have set apart for them or
to be paid out of the assets of the Company, before any distribution is made
to or set apart for the holders of Common Stock, an amount in cash equal to
and in no event more than (1) in the event of any volntary liquidation,
dissolution or winding up of the Company, the redemption price of such class
of the Cumulative Preferred Stock which would have been in effect at the
time of the distribution or payment date if there had been no such
liquidation, dissolution or winding up of the Company, or (2) in the event
of involuntary liquidation, dissolution or winding up of the Company,the sum
of $100 per share, plus in each case an amount equal to all dividends
accrued and unpaid to the date of such liquidation, disslution or winding
up, whether or not earned or declared.
If upon any liquidation, dissolution or winding up of the Company, the
assets of the Company available for distribution to its stockholders shall
be insufficient to permit the distribution in full of the amount receivable
by the holders of each class of the Cumulative Preferred Stock, then all
such assets of the Company shall be distributed ratably among the holders of
each class of the Cumulative Preferred Stock in proportion to the amounts
which they would be entitled to receive if such assets were sufficient to
permit distribution in full as aforesaid.
In the event of any liquidation, dissolution or winding up of the
Company, all assets and funds of the Company remaining after paying or
providing for the payment of all creditors of the Company and after paying
or providing for the payment to the holders of shares of each class of the
Cumulative Preferred Stock of the full distributive amounts to which they
are respectively entitled, as herein provided, shall be divided among and
paid to the holders of the Common Stock according to their respective
shares.
Neither the consolidation nor merger of the Company with or into any
other corporation or corporations, nor the sale or transfer by the Company
of all or any part of its assets shall in and of itself be deemed to be a
liquidation, dissolution or winding up of the Company for the purposes of
this paragraph (c).
(d) No holder of shares of Cumulative Preferred Stock of any class
shall be entitled as such as a matter of right to subscribe for or purchase
any part of any new or additional issues of any stock of any class, series
or kind whatsoever, or securities convertible into stock of any class,
series or kind whatsoever, whether now or hereafter authorized, and whether
issued for cash, property, services by way of dividends, or otherwise.
(e) (A) At all meetings of the stockholders of the Company, the
holders of shares of Cumulative Preferred Stock of any class shall have no
right to vote and shall not be entitled to notice of any meeting of the
stockholders of the Company or to participate in any such meeting except as
herein otherwise expressly provided and except for those purposes, if
any,for which said rights cannot be denied or waived under some mandatory
provisions of law which shall be controlling.
(B) If and when dividends payable on any shares of Cumulative
Preferred Stock of any class shall be in default in an amount equivalent to
or exceeding four (4) full quarterly dividends (whether consecutive or not),
the holders of the shares of all classes of the Cumulative Preferred Stock,
voting separately as a class, shall be entitled to elect the smallest number
of directors necessary to constitute a majority of the full Board of
Directors, and the holders of the shares of the Common Stock, voting
separately as a class, shall be entitled to elect the remaining directors of
the Company, anything herein or in the By-Laws to the contrary
notwithstanding. The terms of office of all persons who may be directors of
the Company at the time shall terminate upon the election of one or more
directors by the holders of the shares of the Cumulative Preferred Stock
whether or not the holders of the shares of the Common Stock shall then have
elected the remaining directors of the Company.
(C) If and when all dividends then in default on the shares of the
Cumulative Preferred Stock of all classes then outstanding shall be paid
(and such dividends shall be declared and paid out of any funds legally
available therefore as soon as reasonably practicable) and the full
dividends on each class of the Cumulative Preferred Stock for the then
current quarterly dividend period shall have been declared or paid or set
apart for payment, the holders of the shares of all classes of Cumulative
Preferred Stock shall be divested of all voting rights with respect to the
election of directors provided in sub-paragraph (B) of this paragraph (e),
and the voting power of the holders of the shares of all classes of
Cumulative Preferred Stock and the holders of the shares of the Common Stock
shall revert to the status existing before the first dividend payment on
which dividends on the shares of all classes of Cumulative Preferred Stock
were not paid in full; but always subject to the same provisions vesting
such voting rights in the holders of the shares of all classes of Cumulative
Preferred Stock in case of further like default or defaults on dividends
thereon, as provided in subparagraph (B) of this paragraph (e). Upon the
termination of any such voting rights as hereinabove provided, the terms of
office of all persons who may have been elected directors of the Company by
vote of the holders of the shares of all classes of Cumulative Preferred
Stock as a class, pursuant to such voting rights, shall forthwith terminate
and the resulting vacancies shall be filled by the vote of a majority of the
remaining directors.
Any director who shall have been elected by the holders of all classes
of Cumulative Preferred Stock or by any directors so elected as herein
provided may be removed during his aforesaid term of office, either for or
without cause, by, and only by, the affirmative votes of the holders of
record of a majority of the outstanding shares of all classes of Cumulative
Preferred Stock given at a special meeting of such stockholders called for
the purpose, and any vacancy thereby created may be filled by the holders of
such stock represented as such meeting.
(D) In the case of any vacancy in the office of a director occurring
among the directors elected by the holders of the shares of all classes of
Cumulative Preferred Stock, as a class, pursuant to the foregoing provisions
of subparagraph (B) of this paragraph (e), the remaining directors elected
by the holders of the shares of all classes of Cumulative Preferred Stock,
by affirmative vote of a majority thereof, or the remaining director so
elected if there by but one, may, subject to the provisions of subparagraph
(C) of this paragraph (e), elect a successor or successors to hold office
for the unexpired terms of the director or directors whose place or places
shall be vacant. Likewise, in case of any vacancy in the office of a
director occurring among the directors elected by the holders of the shares
of the Common Stock pursuant to the foregoing provisions of subparagraph (D)
of this paragraph (e), the remaining directors elected by the holders of the
Common Stock, by affirmative vote of a majority thereof, or the remaining
director so elected if there be but one, may elect a successor or successors
to hold office for the unexpired term of the director or directors whose
place or places shall be vacant.
(E) Whenever under the provisions of subparagraph (B) of this
paragraph (e), the right shall have accrued to the holders of the shares of
all classes of Cumulative Preferred Stock to elect directors. The Board of
Directors shall, within ten (10) days after the delivery to the Company at
its principal office of a request to such effect by any holder of shares of
any class of Cumulative Preferred Stock entitled to vote, call a special
meeting of the stockholders, to be held on 20 days' notice. If such meeting
shall not be so called within such ten-day period, the holders of record of
at least 10% in amount of any class of Cumulative Preferred Stock then
outstanding, may designate in writing one of their number to call such
meeting and the same may be called at the expense of the Company by such
persons so designated, upon 20 days' notice. Any holders of any class of
Cumulative Preferred Stock so designated shall have access to the stock
books of the Company for the purpose of causing a meeting of stockholders to
be called pursuant to these provisions. At all meetings of stockholders
held for the purpose of electing directors during such time as the holders
of the shares of all classes of Cumulative Preferred Stock shall have the
special right, voting separately as a class, to elect directors pursuant to
subparagraph (B) of this paragraph (e), the presence, in person or by proxy,
of the holders of a majority of the outstanding shares of each class of
stock (i.e. Cumulative Preferred Stock and Common Stock) shall be required
to constitute a quorum of such class for the election of directors;
provided, however, that the absence of a quorum of the holders of stock of
either such class shall not prevent the election at any such meeting or
adjournment thereof of directors by the other such class of the necessary
quorum of the holders of such stock is present in person or by proxy at such
meeting; and provided further that in the event such a quorum of the holders
of the shares of the Common Stock is present but such a quorum of the
holders of the shares of all classes of Cumulative Preferred Stock is not
present then the election of the directors elected by the holders of the
shares of the Common Stock shall not be effective and the directors so
elected by the holders of the shares of the Common Stock shall not assume
their offices and duties until the holders of the shares of all classes of
Cumulative Preferred Stock, with such a quorum present, shall have elected
the directors they shall be entitled to elect; and provided further,
however, that in the absence of a quorum of the holders of stock of either
such class, a majority of those holders of the stock of such class who are
present in person or by proxy shall have power to adjourn the election of
the directors to be elected by such class from time to time without notice
other than announcement at the meeting until the requisite amount of holders
of such class shall be present in person or by proxy, but such adjournment
shall not be made to a date beyond the date for the mailing of notice for
the next annual meeting of the Company or a special meeting in lieu thereof.
Notwithstanding the foregoing, to the extent permitted by law the holders of
the shares of all classes of Cumulative Preferred Stock, by unanimous
written consent, may elect such number of directors as they shall be
entitled to elect under the provisions of subparagraph (B) of this paragraph
(e), without the necessity of a meeting or the observance of the aforesaid
notice provisions.
(F) Except as otherwise required by the laws applicable to the Company
and subject to the right of the Cumulative Preferred Stock of all classes
(i) to vote in certain events as herein-before set forth in this paragraph
(e) and (ii) not to have certain corporate action taken without the consent
of the holders thereof as set forth herein, the Common Stock shall have the
exclusive voting rights for the election of directors and for all other
purposes. The Company shall have no voting rights with respect to shares of
Cumulative Preferred Stock of all classes held in the treasury of the
Company.
SECTION II.
Provisions Applicable to All Shares of 4.80% Cumulative Preferred
Stock.
(a) The 15,000 shares of the Cumulative Preferred Stock initially
issued shall be designated as "4.80% Cumulative Preferred Stock".
(b) The annual dividend rate shall be 4.80% per annum of the par value
of $100 per share, or $4.80 per share per annum, payable quarterly on the
15th days of October, January, April and July.
(c) The aforesaid dividends shall accrue from the date of original
issue and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate of $4.80 per annum shall not have been
paid upon or declared and set apart for the 4.80% Cumulative Preferred
Stock, the deficiency shall be fully paid or declared and set apart before
any dividend shall be paid upon or declared or set apart for the Common
Stock. Dividends on the 4.80% Cumulative Preferred Stock shall be deemed to
accrue from day to day.
(d) The Company, by action of its Board of Directors, may redeem the
whole or any part of the 4.80% Cumulative Preferred Stock at any time or
from time to time, at the following redemption prices:
$104.80 per share if redeemed prior to the fifth anniversary
of the date of original issue;
$103.60 per share if redeemed on or after the fifth
anniversary but
before the tenth anniversary of the date of original
issue;
$102.40 per share if redeemed on or after the tenth
anniversary but
before the fifteenth anniversary of the date of original
issue; and
$101.20 per share, if redeemed on or after the fifteenth
anniversary,
but before the twentieth anniversary of the date of
original issue;
and thereafter at par,
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned or
declared.
If less than all of the outstanding share of 4.80% Cumulative Preferred
Stock are to be redeemed in pursuance of the foregoing provisions for
voluntary redemption, the aggregate number of share so to be redeemed shall
be allocated by the Company among the registered holders of such Stock at
the time outstanding, to the nearest share, in the proportion that their
respective holdings bear to the aggregate number of share of such Stock at
the time outstanding, provided that if the number of such registered holders
shall be more than twenty, the shares to be redeemed shall be determined by
lot in such usual manner as the Board of Directors shall deem proper.
(e) At least 30 days prior to the date fixed for redemption, notice of
every redemption shall be mailed to the holders of record of the shares to
be redeemed at their respective addresses as the same shall appear on the
books of the Company. If selection of the shares to be redeemed is required
to be made by lot, at least 30 days' previous notice of every redemption
shall also be given by appropriate publication at least once in a daily
newspaper printed in the English language and of general circulation in the
City of Boston, Massachusetts.
The notice so mailed shall state the date fixed for redemption
(hereinafter called the redemption date), shall state the applicable
redemption price and amount of all accrued dividends payable on the
redemption date and shall call upon each stockholder to whom such notice
shall be addressed to surrender to the Company on the redemption date, at
the place designated in such notice, his certificate or certificates
representing the number of shares specified in such notice of redemption.
On or after the redemption date each holder of shares of 4.80%
Cumulative Preferred Stock so called for redemption shall present and
surrender his certificate or certificates for such shares to the Company at
the place designated in the foregoing written notice and thereupon the
redemption price of such shares together with the amount of accrued
dividends thereon payable on the redemption date shall be paid to or on the
order of the person whose name appears on the certificate or certificates as
the owner thereof. In case less than all the shares represented by any such
certificate are redeemed a new certificate shall be issued representing the
unredeemed shares. If notice of redemption shall have been duly given as
hereinbefore provided, and if on or before the redemption date specified in
such notice all funds necessary for such redemption shall have been set
aside by the Company, separate and apart from its other funds, in trust for
the account of the holders of the shares to be redeemed, so as to be and
continue to be available therefore, then, notwithstanding that any
certificate for such shares so called for redemption shall not have been
surrendered for cancellation, from and after the redemption date, the shares
represented thereby shall no longer be deemed to be outstanding, the right
to receive dividends thereon shall cease to accrue and all rights with
respect to such shares so called for redemption shall cease and terminate,
except only the right of the holders thereof to receive, out of the funds
so set aside in trust, the amount payable upon redemption thereof, without
interest.
Provided, however, that the Company may, after giving notice of any
such redemption as hereinbefore provided or after giving to the bank or
trust company hereinafter referred to irrevocable authorization to give such
notice and at any time prior to the redemption date specified in such
notice, deposit in trust, for the account of the holders of the shares to be
redeemed, funds necessary for such redemption with a bank or trust company
in good standing, organized under the laws of the United States of America
or of the Commonwealth of Massachusetts, doing business in the City of
Boston, Massachusetts, having capital, surplus and undivided profits
aggregating at least $5,000,000, in which case the aforesaid redemption
notice to be mailed to the holders of record of the shares to be redeemed
shall specify the office of such bank or trust company as the place of
payment of the redemption price, and shall call upon such holders to
surrender the certificates representing the shares so to be redeemed at such
place on or after the date fixed in such redemption notice (which shall not
be later than the redemption date) against payment of the amount payable on
the redemption thereof. Upon such deposit in trust, all shares with respect
to which such deposit shall have been made shall no longer be deemed to be
outstanding, and all rights with respect to such shares so called for
redemption shall forthwith cease and terminate, except only the right of the
holders thereof to receive, out of all the funds so deposited in trust, from
and after the date of such deposit, the amount payable upon the redemption
thereof, without interest.
In case any holder of shares of the 4.80% Cumulative Preferred Stock
which shall have been called for redemption as provided herein shall not
within six years of the date of redemption thereof or the date of such
deposit with a bank or trust company, whichever is earlier, claim the amount
so set aside or deposited in trust, as the case may be, for the redemption
of such shares, such bank or trust company shall upon demand, pay over to
the Company any such unclaimed amount so deposited with it and shall
thereupon be relieved of all responsibility in respect thereof and the
Company shall not be required to hold the amount so paid over to it, or any
amount so set aside by it for the redemption of such shares, separate and
apart from its other funds, and thereafter except as may be otherwise
provided by law, the holders of such shares of 4.80% Cumulative Preferred
Stock shall look only to the Company for payment of the redemption price
thereof, without interest. (f) Subject to the provisions of
subparagraph (h)(C) below, so long as any of the shares of the 4.80%
Cumulative Preferred Stock shall be outstanding, the Company shall between
August 1 and August 10 in each year commencing 1970 offer to purchase o the
next ensuing September 15, a total of 450 shares (or such lesser amount as
may be outstanding) of 4.80% Cumulative Preferred Stock as the par value
thereof plus unpaid accumulated dividends to the date of purchase from the
4.80% Cumulative Preferred stockholders of record as of the close of
business on the preceding July 31 (except that if July 31 is a Saturday,
Sunday or holiday then the immediate preceding business day). The Company
shall offer to purchase from each such stockholder that proportion of the
total number of shares of 4.80% Cumulative Preferred Stock offered to be
purchased which such stockholder's number of shares of 4.80% Cumulative
Preferred Stock bears to the total number of such shares outstanding,
provided that the Company shall not be obligated to offer to purchase a
fraction of a share. Such offer shall state that it is made pursuant to the
purchase provision of this paragraph (f) for the retirement of 4.80%
Cumulative Preferred Stock, and shall contain a brief summary of the terms
upon which tenders will be accepted, as herein provided, including a
statement that all offers may be accepted by tenders in part. Tenders
pursuant to any such offer must be made in writing received by the Company
at least five business days before the next ensuing September 15. If the
aggregate number of shares of 4.80% Cumulative Preferred Stock tendered for
sale and purchased as aforesaid in any year is less than the number of
shares offered to be purchased by the Company pursuant to the provisions of
this paragraph, the Company's obligation in respect of such purchase offers
for such year shall be discharged by the purchase of the shares tendered,
and the fact that the remainder of the shares offered to be purchased
hereunder are not tendered and purchased shall not increase the number of
shares to be purchased in subsequent years.
(g) Whenever full dividends on the shares of the 4.80% Cumulative
Preferred Stock at the time outstanding for all past quarterly dividend
periods and for the current quarterly dividend period shall have been paid
or declared and set apart for payment, and provided that the Company shall
have made stock purchase offers and purchases for all past years and for the
current year as provided in paragraphs (f) and (h) (C) hereof with respect
to the 4.80% Cumulative Preferred Stock, then, and only then (subject to the
provisions of subparagraph (h) (B) (b) below), such dividends as may be
determined by the Board of Directors may be declared and paid on the Common
Stock, but only out of funds legally available for the payment of dividends;
provided, however, that so long as any shares of the 4.80% Cumulative
Preferred Stock are outstanding, the Company shall not pay any dividends
(other than dividends payable in Common Stock or in any other stock of the
Company junior to the 4.80% Cumulative Preferred Stock as to assets and
dividends) or make any distribution on, or purchase, or redeem, retire or
otherwise acquire for value, any of its Common Stock or other stock junior
to the 4.80% Cumulative Preferred Stock, if after giving effect to any such
payment, distribution, purchase, redemption, retirement or acquisition the
aggregate amount of such dividends, distributions, purchases, redemptions,
retirements and acquisitions, paid or made since June 30, 1964, including
the amount then proposed to be expended for any such purpose, together with
all other charges to earned surplus since June 30, 1964, would exceed the
sum of the aggregate of (i) credits to earned surplus since June 30, 1964,
(ii) amounts credited to capital surplus since June 30, 1964 arising from
the donation to the Company of cash or securities (other than securities of
the Company junior to the 4.80% Cumulative preferred Stock) or transfers of
amounts from earned surplus to capital surplus, (iii) the aggregate net cash
proceeds, or the net fair value of any property other than cash, received by
the Company from the sale since June 30, 1964 of shares or any other
securities of the Company junior to the 4.80% Cumulative Preferred Stock,
and (iv) $200,000. In computing the amount available for any such dividend,
distribution, purchase, redemption, retirement or acquisition, charges and
credits to earned surplus shall be made in accordance with sound accounting
practice.
(h) (A) So long as any shares of the 4.80% Cumulative Preferred Stock
are outstanding, the Company shall not without the consent (given at a
meeting duly called and held for that purpose) of the holders of at least
two-thirds of the total number of shares of 4.80% Cumulative Preferred Stock
then outstanding;
(a) create or authorize any stock ranking prior to or on a parity with
the 4.80% Cumulative Preferred Stock, as to assets or dividends, or create
or authorize any security or right convertible into, or evidencing the right
to purchase, shares of any such stock, or increase the total authorized
amount of 4.80% Cumulative Preferred Stock; or
(b) amend, alter, change or repeal any of the rights, privileges,
preferences, powers, terms and conditions of the 4.80% Cumulative Preferred
Stock in any manner which would be prejudicial to the holders thereof; or
(c) sell, lease, transfer or convey all or the greater part of the
Company's property or business; or
(d) merge or consolidate with or into another corporation in such
manner that the Company does not survive as a continuing entity, if thereby
the rights, privileges, preferences, powers, terms or conditions of the
4.80% Cumulative Preferred Stock would be adversely affected, or if there
would thereupon be authorized or outstanding securities which the Company,
if it owned all of the properties then owned by the resulting corporation,
could not create without the vote or consent of the holders of the 4.80%
Cumulative Preferred Stock.
(B) So long as any shares of the 4.80% Cumulative Preferred Stock are
outstanding, the Company shall not, without the consent (given at a meeting
duly called and held for that purpose) of the holders of a majority of the
total number of shares of 4.80% Cumulative Preferred Stock then outstanding;
(a) issue or sell any additional shares of 4.80% Cumulative Preferred
Stock, including shares held in the treasury of the Company, or any shares
of any stock ranking prior to or on a parity with the 4.80% Cumulative
Preferred Stock as to assets or dividends, or any security or right
convertible into, or evidencing the right to purchase, shares of any such
stock, unless, after giving effect to such proposed issue or sale, (i) the
net earnings of the Company available for interest and dividends determined
in accordance with sound accounting practice after all taxes and after
provision for depreciation and amortization at least equal to the "minimum
provision for depreciation" as hereinafter defined, for twelve (12)
consecutive calendar month out of fifteen (15) months immediately preceding
shall be at least one and one-half (1 1/2) times the sum of (x) the
aggregate annual interest requirements on all "long-term indebtedness", as
hereinafter defined, of the Company then outstanding and (y) the aggregate
annual dividend requirements on all shares of 4.80% Cumulative Preferred
Stock and all shares of any stock ranking prior to or on a parity with 4.80%
Cumulative Preferred Stock, to be outstanding; and (ii) the Company's net
earnings available for dividends, determined in accordance with sound
accounting practice after all taxes and after provision for depreciation and
amortization at least equal to the "minimum provisions for depreciation", as
hereinafter defined, for twelve (12) consecutive calendar months out of the
fifteen (15) months immediately preceding shall be at least two and one-half
(2 1/2) times the aggregate annual dividend requirements on all shares of
4.80% Cumulative Preferred Stock and all shares of any stock ranking prior
to or on a parity with 4.80% Cumulative Preferred Stock , to be outstanding;
and (iii) the total of the Company's capital represented by the then
outstanding shares of its stock ranking junior to the 4.80% Cumulative
Preferred Stock, plus the company's surplus and any amounts carried as
premium on capital stock, would be at least equal to the resulting aggregate
par value, or in case of stock without par value, the preference on
involuntary liquidation, of all shares of 4.80% Cumulative Preferred Stock,
and all shares of any stock ranking prior to or on a parity with 4.80%
Cumulative Preferred Stock, which would be outstanding after giving effect
to such proposed issue or sale; or
(b) declare or pay any dividends (other than dividends payable in
stock ranking junior to 4.80% Cumulative Preferred Stock as to assets and
dividends) or make any distribution on, or purchase, or redeem, retire or
otherwise acquire for a consideration, any shares of any kind of stock
ranking junior to the 4.80% Cumulative Preferred Stock as to assets or
dividends, unless after such action an amount equal to twice the aggregate
par value or in the case of stock without par value, an amount equial to
twice the preference on involuntary liquidation of all outstanding share of
4.80% Cumulative Preferred Stock would not exceed the sum of (i) the total
capital of the Company represented by the then outstanding stock ranking
junior to 4.80% Cumulative Preferred Stock as to assets and dividends and
(ii) the surplus of the Company and any amounts carried as premium on its
capital stock.
The term "minimum provision for depreciation" shall mean, for any twelve
month's period, an amount equial to 2% of the average gross depreciable
plant property account of the Company during such period. The term "long
term indebtedness" shall mean all indebtedness which by its terms matures
more than one year from the date as of which any calculation of long term
indebtedness is made, and any indebtedness maturing within one year from
such date which is renewable or extendible at the option of the obligor to a
date beyond one year from such date.
(C) So long as dividends shall be in arrears on the 4.80% Cumulative
Preferred Stock outstanding, the Company shall not, without the consent of
the holders of a majority of the total number of shares of such stock then
outstanding, purchase, offer to purchase, redeem, retire or otherwise
acquire for a consideration any shares of 4.80% Cumulative Preferred Stock
or of any stock ranking prior to or on a parity with the 4.80% Cumulative
Preferred Stock as to assets or dividends. In the event of such arrears,
the obligation of the Company to offer to purchase shares of 4.80%
Cumulative Preferred Stock in each year as provided in paragraph (f) above
shall be cumulative and if the Company shall not purchase or offer to
purchase the number of shares required by such paragraph in any year by
reason of an arrearage of dividends as aforesaid, it shall make an offer to
purchase such shares promptly after all dividends in arrears shall be a paid
or declared or set apart for payment or the aforesaid consent shall have
become effective. Such deferred offer shall state that the Company will
purchase such share on a date 45 days after the date of such offer at the
par value thereof plus unpaid accumulated dividends thereon to the date of
purchase and shall otherwise be upon the same terms and conditions and shall
contain the same statements provided in respect of other offers made
pursuant to the purchase fund provisions of paragraph (f) above.
(D) A consent of the character referred to in subparagraphs (A), (B)
or (C) above shall also be deemed to be effective upon the consent in
writing, without a meeting, of all the then outstanding shares of 4.80%
Cumulative Preferred Stock.
(E) The foregoing provisions as to vote or consent shall not apply
if, in connection with any of the matters mentioned in subparagraphs (A),
(B) or (C) above, provision is to be made for the redemption or retirement
of all the outstanding 4.80% Cumulative Preferred Stock.
(F) From time to time, and without limitation of other rights and
powers of the Company as provided by law, the Company may reclassify its
capital stock and may create or authorize one or more classes or kinds of
stock ranking prior to or on a parity with or subordinate to the 4.80%
Cumulative Preferred Stock, or may increase the authorized amount of the
4.80% Cumulative Preferred Stock or of the Common Stock or of any other
class of stock of the Company or may amend, alter, change or repeal any of
the rights, privileges, terms and conditions of the shares of the 4.80%
Cumulative Preferred Stock or of the Common Stock, or of any other class of
stock of the Company, upon the vote, given at a meeting called for that
purpose, of the holders of a majority of the shares of stock then entitled
to vote thereon or upon such other vote of the holders of a majority of the
shares of stock then entitled to vote thereon or upon such other vote of the
holders of the shares of stock then entitled to vote thereon as may then be
provided by law; provided that the consent of the holders of the shares of
the 4.80% Cumulative Preferred Stock, required by the provisions of
subparagraphs (A), (B) and (C) of paragraph (h) hereof, if any such consent
to be so required, shall have been obtained; and provided further that the
rights, privileges, terms and conditions of the shares of the Common Stock
shall not be subject to amendment, alteration, change or repeal without the
consent A(given in writing or by vote at a meeting called for that purpose)
of the holders of a majority of the total number of shares of the Common
Stock then outstanding.
(G) For the purposes of paragraph (h) of this Section II, outstanding
shares of the 4.80% Cumulative Preferred Stock shall not include shares held
in the treasury of the Company.
(i) All or any shares of the 4.80% Cumulative Preferred Stock at any
time redeemed, purchased or acquired by the Company may thereafter, in the
discretion of the Board of Directors subject to subparagraph (h)B)(a) above,
be reissued or otherwise disposed of at any time or from time to time to the
extent and in the manner now or hereafter permitted by law, provided that
any such shares acquired by operation of the purchase provisions of
paragraph (f) of this Section II shall not under any circumstances be
reissued or otherwise disposed of by the Company and each surrendered
certificate for shares so redeemed shall be cancelled.
(j) The rights and remedies herein granted to holders of the 4.80%
Cumulative Preferred Stock shall be in addition to all other rights and
remedies to which they may be otherwise entitled by law.
We, Kenneth D. Knoblock, President, Frank A. O'Neill,Treasurer and
Joseph T. Kelley John W. Bond
K.D. Knoblock F.A. O'Neill
Leonard Milano Robert W. McCracken
being a majority of the Directors of The Berkshire Gas Company
in compliance with the provisions of section thirty-nine of chapter one
hundred and fifty-eight (Chapter 164 Section10) of the General Laws, Ter.
Ed., do hereby certify that ameeting of the stockholders called for the
purpose the capital stock of said corporation has been increased by the
amount of $1,500,000.00 dollars, and that the same has all been paid in on
October, 28, 1965 (give date).
The total amount of capital stock already authorized is
(shares preferred.
164,593 (shares common.
The amount of fully paid capital stock already issured for cash is
(shares preferred.
164,593 (shares common.
The amount of fully paid capital stock already issued for property is
none (shares preferred.
none (shares common.
The amount of additional capital stock authorized is
15000 (shares preferred.
(shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names, this 16 day of November in the year 1965.
WRITE NOTHING BELOW
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
General Lawws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth November 16, 1965
I hereby approve the within certificate this November 16,1965
/s/
--------------------------------
Comminissioner of Corporations and Taxation
THE BERKSHIRE GAS COMPANY
CERTIFICATE OF REDUCTION OF CAPITAL
General Laws Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter. Ed.,
Sections 40 and 41 filed in the office of the Secretary of the
Commonwealth . November 19, 1965.
I hereby and approve the within certificate, this 19th day of November.
We, Kenneth D. Knoblock, President, Frank A. O'Neill,Treasurer and
J. T. Kelley John W. Bond
K.D. Knoblock F.A. O'Neill
Leonard Milano Robert W. McCracken
being a majority of the Directors of The Berkshire Gas Company
in compliance with the provisions of section forty of chapter one hundred
and fifty-eight of the General Laws, Ter. Ed., do hereby certify that a
meeting of the stockholders called for the purpose the capital stock of
said corporation has been decreased by the amount of $1,293,500.00
dollars,
The total amount of capital stock already authorized is
12,935 (shares preferred.
164,593 (shares common.
The amount of fully paid capital stock already issured for cash is
12,935 (shares preferred.
164,593 (shares common.
The amount of fully paid capital stock already issued for property is
none (shares preferred.
none (shares common.
The amount by which the capital stock authorized is to be reduced is
12,935 (shares preferred.
(shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names, this 16 day of November in the year 1965.
WRITE NOTHING BELOW
Berkshire Gas Company, The
CERTIFICATE OF INCREASE OF CAPITAL
General Lawws, Chapter 164, Ter. Ed., Section 10 and Chapter 158, Ter.
Ed., Sections 39 and 41
Filed in the office of the Secretary of the Commonwealth November 16, 1965
I hereby approve the within certificate this November 16,1965
/s/
Comminissioner of Corporations and Taxation
stamp
John F. X. Davoren
Secretary of the Commonwealth
The Commonwealth of Massachusetts
Office of the Secretary
State House, Boston 02133
MAR 27, 1972
A true Copy Witnessed under the Great Seal of the Commonwealth of
Massachusetts.
/s/ John F. X. Davoren
-------------------------------
John F. X. Davoren
Secretary of the Commonwealth.
/s/ Archie D. Dickerson
-------------------------------
Archie D. Dickerson
Deputy Secretary.
THE COMMONWEALTH OF MASSACHUSETTS
JOHN F. X. DAVOREN
Secretary of the Commonwealth
STATE HOUSE BOSTON, MASS.
CERTIFICATE OF INCREASE OF CAPITAL
General Laws, Chapter 164, Ter. Ed., Section 10
and Chapter 158, Ter. Ed., Sections 39 and 41
We, Joseph T. Kelley President, J. Richard Cottrell Treasurer and Joseph T.
Kelley, Leonard Milano, George L. Nye, John W. Bond,Sidney M. Schreiber, K.
D. Knoblock being a majority of the Directors of The Berkshire Gas Company
in Compliance with the provisions of the General Laws, Chapter 164, Section
10 and Chapter 158, Sections 39 and 41, do hereby certify that at a meeting
of the stockholders called for the purpose the capital stock of said
corporation has been increased by the amount of Two hundred seventy-four
thousand three hundred twenty ($274,320) dollars, and that same has all been
paid in on March 9th 1972.
The total amount of capital stock already authorized is Fifteen
thousand (15,000) (shares preferred.
One hundred sixty-four thousand five hundred ninety-three
(164,593) (shares common.
The total amount of fully paid capital stock already
issued for cash is Fifteen thousand (15,000) (shares preferred.
One hundred sixty-four thousand five hundred ninety-three
(164,593) (shares common.
The amount of fully paid capital stock already
issued for property is None (shares preferred.
None (shares common.
The amount of additional capital stock
authorized is (shares preferred.
Twenty-seven thousand four hundred thirty-two
(27,432) (shares common.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY,
we have hereunto signed our names, this 16th day of March in the year 1972
President Joseph T. Kelley, Treasurer J. Richard Cottrell, Director Joseph
T. Kelley,Director Leonard Milano, Director George L. Nye, Director John W.
Bond,Director Sidney M. Schreiber, Director K. D. Knoblock
RECEIVED
MAR 20, 1972
CORPORATION DIVISION
SECRETARY'S OFFICE
THE COMMONWEALTH OF MASSACHUSETTS
CERTIFICATE OF INCREASE OF CAPITAL
GENERAL LAWS, CHAPTER 164, SECTION 10 AND
CHAPTER 158, SECTIONS 39 AND 41
I hereby approve the within certificate of increase of capital and, the
filing fee in the amount of $137.16 having been paid, said certificate is
deemed to have been filed with me this 20th day of March, 1972.
John F. X. Davoren
JOHN F. X. DAVOREN
Secretary of the Commonwealth
MAR 23, 1972
The Berkshire Gas Company
P. O. Box 1388
Pittsfield, MA 01201
J. R. Cottrell, Treas. And Clerk
stamp
John F. X. Davoren
Secretary of the Commonwealth
The Commonwealth of Massachusetts
Office of the Secretary
State House, Boston 02133
FEB 23, 1972
A true Copy Witnessed under the Great Seal of the Commonwealth of
Massachusetts.
John F. X. Davoren
Secretary of the Commonwealth.
Milhard D. Vast
Deputy Secretary
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
STATE HOUSE, BOSTON, MASSACHUSETTS 02133
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 8B No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Joseph T. Kelly, President, and Scott S. Robinson, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
Articles of Organization was duly adopted at a meeting held on October 17,
1978, by a vote of:
130,600 shares of Common Stock, out of 192,025 outstanding.
11,430 shares of 4.80% Cumulative Preferred Stock, out of 11,430
outstanding.
being at least two-thirds of each class outstanding and entitled to vote
thereon and of each class or series of stock whose rights are adversely
affected thereby.
SECTION III
Provisions Applicable to All Shares of 9% Cumulative Preferred Stock
(a) 10,000 shares of the Cumulative Preferred Stock shall be and are
designated as "9% Cumulative Preferred Stock."
(b) The holders of shares of 9% Cumulative Preferred Stock shall be
entitled to receive cash dividends at the rate of 9% per annum of the par
value of $100 per share, or $9.00 per share per annum, payable quarterly
on the 15th days of January, April, July and October in each year.
(c) The aforesaid dividends shall accrue from the date of original issue
and shall be cumulative so that if dividends in respect of any quarterly
dividend period at the rate of $9.00 per anum shall not have been paid
upon or declared and set apart for the 9% Cumulative Preferred Stock, the
deficiency shall be fully paid or declared and set apart before any
dividend shall be paid upon or declared and set apart for the Common
Stock. Dividends on the 9% Cumulative Preferred Stock shall be deemed to
accrue from day to day.
(d) Subject to the provisions of subparagraph (h) c of this Section iii,
the Company, by action of its Board of Directors, may redeem the whole or
any part of the 9% Cumulative Preferred Stock at any time or from time to
time, at the following redemption prices:
$109.00 per share if redeemed prior to April 1, 1983;
$105.00 per share if redeemed on or after April 1, 1983 and prior
to April 1, 1988;
$103.00 per share if redeemed on or after April 1, 1988 and prior
to April 1, 1993; and
$100 per share if redeemed on or after April 1, 1993,
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared; provided, however, that prior to April 1, 1988 the Company
may not redeem pursuant to the provisions of this paragraph (d) any shares
of 9% Cumulative Preferred Stock directly or indirectly from or in
anticipation of funds borrowed, or obtained through the sale of capital
stock, by or for the amount of the Company at an effective interest or
dividend cost (as the case may be), calculated in accordance with
generally accepted financial practice, to the Company of less than 9% per
annum.
Prior to the date fixed for redemption pursuant to this paragraph
(d), the Company shall deposit with a bank or trust company in good
standing, organized under the laws of the United States or of the
Commonwealth of Massachusetts, doing business in the City of Boston,
Massachusetts, having capital, surplus and undivided profits (as shown by
its latest published statement) aggregating at least $25,000,000 (a
"Qualified Trustee"), or shall set aside, in each case separate and apart
from the Company's other funds and in trust for the account of the holders
of the shares to be redeemed so as to be and continue to be available
therefor, the funds necessary for such redemption.
If fewer than all of the outstanding shares of 9% Cumulative
Preferred Stock are to be redeemed in pursuance of the foregoing
provisions for voluntary redemption, the aggregate number of shares so to
be redeemed shall be allocated by the Company among the registered holders
of such Stock at the time outstanding, to the nearest share, in the
proportion that their respective holdings bear to the aggregate number of
shares of such Stock at the time outstanding, provided that if the number
of such registered holders shall be more than twenty, the shares to be
redeemed shall be determined by lot in such equitable manner as the Board
of Directors shall deep proper.
(e) (A) Subject to the provisions of subparagraph (h) (c) of this
Section III, so long as any of the shares of the 9% Cumulative Preferred
Stock shall be outstanding, the Company covenants to pay, at least one day
prior to November 15 in each calendar year commencing with the year 1983
(each such November 15 being the "mandatory sinking fund redemption
date"), to a Qualified Trustee selected for that purpose by the board of
Directors (the "9% Preferred Stock Sinking Fund Trustee") as and for a
sinking fund for the retirement of shares of the 9% Cumulative Preferred
Stock, an amount of cash sufficient to retire 500 shares (or such lesser
number of shares as may then be outstanding) of 9% Cumulative Preferred
Stock at $100 per share plus all accrued and unpaid dividends thereon to
the mandatory sinking fund redemption date, whether or not earned or
declared (the "Sinking Fund Redemption Price"). The foregoing annual
obligation (the "annual sinking fund obligation") shall be cumulative (but
without interest), so that if for any reason the Company shall not have
satisfied its full annual sinking fund obligation in any calendar year,
then any deficiency shall be added to the annual sinking fund obligation
for the next succeeding calendar year. The holders of 9% Cumulative
Preferred Stock shall not have the right to compel the Company to make
any sinking fund payment in the event that the Company shall not have
funds legally available therefore; provided, however, that in such case
the obligation to make such payment shall be fulfilled by the Company as
soon as practicable after such funds become legally available. Until
every deficiency in the annual sinking fund obligation shall have been
paid in full, the holders of the 9% Cumulative Preferred stock shall share
ratably with the holders of any other stock ranking on a parity with the
9% Cumulative Preferred Stock as to liquidation rights or dividends in the
payment of funds in satisfaction of any required redemption or other
obligation with respect to such stock.
(B) Subject to the provisions of subparagraph (h) (c) of this
Section III, and provided that the Company (I) shall have made stock
purchase offers (and purchases of stock tendered) for all past years and
for the current year as provided in paragraphs (f) and (h) (c) of Section
II with respect to the 4.80% Cumulative Preferred Stock, (ii) shall have
satisfied the annual sinking fund obligation for all past years and for
the current year and, (iii) shall not be in default with respect to any
other obligation involving any voluntary or optional redemption of the 9%
Cumulative Preferred Stock, the Company may, at its option, on November 15
(or such earlier date on or after the date on which the Company shall pay
to the 9% Preferred Stock Sinking Funds Trustee the amount required in
satisfaction of its current annual sinking fund obligation) in each
calendar year commencing with the year 1983, pay to the 9% Preferred Stock
Sinking Fund Trustee an amount of cash sufficient to retire, at the
Sinking Fund Redemption Price, an additional number, not to exceed 500, of
shares of 9% Cumulative Preferred Stock. Notwithstanding the foregoing,
the Company may not at any time redeem pursuant to the provisions of this
subparagraph (e) (B), more than an aggregate of 3,000 shares of 9%
Cumulative Preferred Stock. Such annual redemption option shall be non-
cumulative, so that the failure of the Company, for any reason, to redeem
500 shares of 9% Cumulative Preferred Stock pursuant to this subparagraph
(e) (B) in any year shall not increase the number of shares redeemable
pursuant to this subparagraph (e) (B) in any subsequent year.
(c) Any cash paid to the 9% Preferred Stock Sinking Fund Trustee
pursuant to subparagraphs (e) (A) and (B) of this Section III shall be
held by it in trust for the equal and proportionate benefit of the holders
of the 9% Cumulative Preferred Stock and shall be applied by it in trust
for the equal and proportionate benefit of the holders of the 9%
Cumulative Preferred Stock and shall be applied by it (subject to the
provisions of paragraph (f) of this Section III regarding failure of any
holder to claim the amount set aside for redemption of such shares) to the
redemption of 9% Cumulative Preferred Stock at the Sinking Fund Redemption
Price.
The 9% Preferred Stock Sinking Fund Trustee shall allocate the
aggregate number of shares of 9% Cumulative Preferred Stock so to be
redeemed among the registered holders of shares of 9% Cumulative Preferred
Stock at the time outstanding, to the nearest share, in the proportion
that their respective holdings bear to the aggregate number of shares of
9% Cumulative Preferred Stock at the time outstanding, provided that if
the number of such registered holders shall be more than twenty, the
shares to be redeemed shall be determined by lot in such equitable manner
as the 9% Preferred Stock Sinking Fund Trustee shall deem proper.
(f) Not more than 60 nor less than 30 days prior to the date fixed
for redemption pursuant to paragraphs (d) or (e) of this Section III,
notice of every redemption shall be mailed, certified mail, return receipt
requested, to the holders of record of the shares to be redeemed at their
respective addresses as the same shall appear on the books of the Company.
If selection of the shares to be redeemed is required to be made by lot,
not more than 60 nor less than 30 days' previous notice of every
redemption shall also be given by appropriate publication at least once in
a daily newspaper printed in the English language and of general
circulation in the City of Boston, Massachusetts.
The notice so mailed shall state the date fixed for redemption
(hereinafter called the "redemption date:"), the applicable redemption
price and amount of all accrued dividends payable on the redemption date,
and the number of shares to be redeemed. Such notice shall call upon each
shareholder to whom such notice shall be addressed to surrender to the
Company on the redemption date, at the place designated in such notice,
the certificate or certificates representing the shares to be redeemed.
On or after the redemption date each holder of shares of 9%
Cumulative Preferred Stock so called for redemption shall present and
surrender his certificate or certificates for such shares to the Company
at the place designated in the foregoing written notice and thereupon the
redemption price of such shares together with the amount of accrued
dividends thereupon payable on the redemption date shall be paid to or on
the order of the person whose name appears on the certificate or
certificates as the owner thereof. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares.
The Company may, after giving notice of any such redemption as
hereinbefore provided or after giving to a Qualified Trustee irrevocable
authorization to give such notice and at any time prior to the redemption
date specified or to be specified in such notice, deposit with a Qualified
Trustee (in the case of redemption pursuant to paragraph (e), the 9%
Cumulative Preferred Stock Sinking Fund Trustee), separate and apart from
its other funds, in trust for the account of the holders of the shares to
be redeemed, the funds necessary for such redemption. In such case the
redemption notice to be mailed to the holders of record of the shares to
be redeemed shall specify the office of such Qualified Trustee as the
place of payment of the redemption price, and shall call upon such holders
to surrender at such place on the redemption date the certificates
representing the shares so to be redeemed against payment of the amount
payable on the redemption thereof. Upon such deposit in trust, all shares
with respect to which such deposit shall have been made shall no longer be
deemed to be outstanding, and all rights with respect to such shares so
called for redemption shall forthwith cease and terminate, except only the
right of the holders thereof to receive, out of all the funds so deposited
in trust, from and after the redemption date, the amount payable upon the
redemption thereof, without interest.
In case any holder of shares of the 9% Cumulative Preferred Stock
which shall have been called for redemption as provided herein shall not
within six year of the date of redemption thereof or the date of deposit
of the funds necessary for such redemption with the Qualified Trustee,
whichever is earlier, claim the amount so set aside or deposited in trust,
as the case may be, for the redemption of such shares, the Qualified
Trustee shall upon demand, pay over to the Company any such unclaimed
amount and shall thereupon be relieved of all responsibility in respect
thereof and the Company shall not be required to hold the amount so paid
over to the Company, or any amount so set aside by the Company for the
redemption of such shares separate and apart from its other funds, and
thereafter except as may be otherwise provided by law, the holders of such
shares of 9% Cumulative Preferred Stock shall look only to the Company for
payment of the redemption price thereof, without interest.
(g) So long as any shares of the 9% Cumulative Preferred Stock are
outstanding, the Company shall not pay or declare and set apart for
payment any dividend (other than dividends payable in stock junior to the
9% Cumulative Preferred Stock with respect to liquidation rights and
dividends), or make any other distribution on, or purchase, redeem,
retire, or otherwise acquire for consideration, or set aside any funds for
any such acquisition of, any such shares of capital stock ranking junior
to the 9% Cumulative Preferred Stock unless and until: (A) full dividends
on the shares of the 9% Cumulative Preferred Stock at the time outstanding
for all past quarterly dividend periods and for the current quarterly
dividend period shall have been paid or declared and set apart for
payment, (B) the Company shall not be in default in respect of the annual
sinking fund obligation or any other obligation with respect to any
voluntary or optional redemption of the 9% Cumulative Preferred Stock, and
(c) after such action the amount of capital of the Company represented by
(I) the then outstanding capital stock of the Company ranking junior to
the 9% Cumulative Preferred Stock as to liquidation rights and dividends,
(ii) the premium on the Company's capital stock and (iii) the Company's
surplus (including retained earnings), would be equal to or greater than
twice the aggregate par value or preference on involuntary liquidation
(whichever, in the case of each share, is greater) of all outstanding
shares of 9% Cumulative Preferred Stock and all shares of any stock
ranking prior to or on a parity with the 9% Cumulative Preferred Stock as
to liquidation rights or dividends. Unless otherwise indicated, the terms
"capital", "surplus" and "premium on capital stock", as used in this
Section III, shall have the meanings ascribed to them in accordance with
generally accepted accounting principles. Subject to the foregoing, this
Section III shall not otherwise prevent the Company form declaring or
paying out of funds legally available therefor such dividends on the
Common Stock as may be determined by the Board of Directors.
(h) ( A) So long as any shares of the 9% Cumulative Preferred Stock
are outstanding, the Company shall not without the consent (given in
person or by proxy at a meeting duly called and held for that purpose) of
the holders of at least two-thirds of the total number of shares of 9%
Cumulative Preferred Stock then outstanding:
(a) create, authorize or increase the total authorized amount
of any class or series of stock ranking prior to or on a parity with
the 9% Cumulative Preferred Stock as to liquidation rights or
dividends, or increase the total authorized amount of 9% Cumulative
Preferred Stock, or create, authorize or increase the total
authorized amount of any security or right convertible into, or
evidencing the right to purchase, shares of any such stock; or
(b) amend, alter, change or repeal any of the rights,
privileges, preferences, powers, terms and conditions of the 9%
Cumulative Preferred Stock in any manner which would adversely
affect any of the rights of the holders thereof; or
(c) sell, lease, transfer, convey, pledge, assign, mortgage
or otherwise encumber all or the greater part of the Company's
property or business (provided, however, that this subparagraph (h)
(A) (c) shall not be construed to require the consent of the holders
of 9% Cumulative Preferred Stock for the issuance of additional
bonds under the Company's First Mortgage Indenture and Deed of Trust
dated as of July 1, 1954, as amended); or
(d) merge or consolidate with or into another corporation,
whether or not the Company survives as a continuing entity, if
thereby any of the rights, privileges, preferences, powers, terms or
conditions of the 9% Cumulative Preferred Stock would be adversely
affected, or in the event that the Company does not survive as a
continuing entity, there would thereupon be authorized or
outstanding securities which the Company, of it owned all of the
properties then owned by the resulting corporation, could not create
without the vote or consent of the holders of the 9% Cumulative
Preferred Stock.
(B) So long as any shares of the 9% Cumulative Preferred Stock are
outstanding, the Company shall not, without the consent (given in person
or by proxy at a meeting duly called and held for that purpose) of the
holders of a majority of the total number of shares of 9% Cumulative
Preferred Stock then outstanding, voting separately as a class, issue or
sell any additional (but previously authorized shares of 9% Cumulative
Preferred Stock, including shares held in the treasury of the Company, or
any shares of any stock ranking prior to or on a parity with the 9%
Cumulative Preferred Stock as to liquidation rights or dividends, or any
security or right convertible into, or evidencing the right to purchase,
shares of any such stock, unless, after giving effect to such proposed
issue or sale, (I) the net earnings of the Company available for interest
and dividends, determined in accordance with generally accepted accounting
principles after all taxes and after provision for depreciation and
amortization at least equal to the "minimum provision for depreciation" as
hereinafter defined, for twelve (12) consecutive calendar months out of
the fifteen (15) months immediately preceding shall be at least one and
one-half (1 1/2) times the sum of (x) the aggregate annual interest
requirements on all "long-term indebtedness," as hereinafter defined, of
the Company then outstanding and (y) the aggregate annual dividend
requirements on all shares of 9% Cumulative Preferred Stock and all shares
of any stock ranking prior to or on a parity with the 9% Cumulative
Preferred Stock, to be outstanding; and (ii) the Company's net earnings
available for dividends, determined in accordance with generally accepted
accounting principles after all taxes and after provisions for
depreciation and amortization," as hereinafter defined, for twelve (12)
consecutive calendar months out of the fifteen (15) months immediately
preceding shall be at least two and one-half (2 1/2) times the aggregate
annual dividend requirements on all shares of 9% Cumulative Preferred
Stock and all shares of any stock ranking prior to or on a parity with the
9% Cumulative Preferred Stock, to be outstanding; and (iii) the Company's
capital represented by the then outstanding shares of its stock ranking
junior to the 9% Cumulative Preferred Stock, plus the company's surplus
(including retained earnings) and any amounts carried as premium on
capital stock, would be at least equal to the resulting aggregate par
value or preference on involuntary liquidation (whichever, in the case of
each share, is greater) of all shares of 9% Cumulative Preferred Stock and
all shares of any stock ranking prior to or on a parity with the 9%
Cumulative Preferred Stock , which would be outstanding after giving
effect to such proposed issue or sale.
The term "minimum provision for depreciation" shall mean, for any
twelve months' period, an amount equal to 2% of the average gross
depreciable plant property account of the Company during such period,.
The term "long term indebtedness" shall mean all "indebtedness" which by
its terms matures more than one year from the date as of which any
calculation of long term indebtedness is made, and " indebtedness"
maturing within one year from such date which is renewable or extendible
at the option of the obligor to a date beyond one year from such date.
The term "indebtedness" of the Company shall mean all liability of the
Company for the repayment of borrowed money as of the date on which
indebtedness is to be determined, including without limitation, (a) all
indebtedness secured by any mortgage, pledge, lien, security agreement,
conditional sale or other title retention agreement or other charge or
encumbrance existing on any property or asset owned or held by the Company
subject thereto, whether or not the indebtedness secured thereby shall
have been assumed, and (b) all indebtedness of others which the Company
has directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), discounted with
recourse or agreed (contingently or otherwise) to purchase or repurchase
or otherwise acquire, or in respect of which the Company has agreed to
supply or advance funds (whether by way of loan, stock, purchase, capital
contribution or otherwise) or otherwise to become directly or indirectly
liable.
(C) So long as full dividends on the shares of 9% Cumulative
Preferred Stock outstanding for all past quarterly dividend periods and
for the current quarterly dividend period shall be in arrears, or the
Company shall be in default with respect to any sinking fund payment or
obligation provided for in subparagraph (e) (A) of this Section III or any
other obligation with respect to any voluntary or optional redemption of
the 9% Cumulative Preferred Stock, the Company shall not, without the
consent (given in person or by proxy at a meeting duly called and held for
that purpose) of the holders of a majority of the total number of shares
of such Stock then outstanding, purchase, offer to purchase, redeem,
retire or otherwise acquire for a consideration, or set aside any funds
for any such acquisition of, any shares of 9% Cumulative Preferred Stock
or of any stock ranking prior to or on a parity with the 9% Cumulative
Preferred Stock as to liquidation rights or dividends; provided, however,
that any funds deposited in trust for the purchase or redemption of any
stock of the Company in accordance with the terms thereof prior to any
such arrearage or default may thereafter be applied to such purchase or
redemption in accordance with such terms, whether or not at the time of
such application such arrearage or default is continuing under the
provisions hereof.
(D) A consent of the character referred to in subparagraph (A), (B)
OR (C) of this paragraph (h) shall also be deemed to be effective upon the
consent in writing, without a meeting, of all the then outstanding shares
of 9% Cumulative Preferred Stock.
(E) The foregoing provisions as to vote or consent shall not apply
if, in connection with connection with any of the matters mentioned in
subparagraph (A), (B) or (C) above, provision is to be made for the
redemption or retirement of all outstanding 9% Cumulative Preferred Stock
in accordance with paragraph (d) hereof.
(F) From time to time, and without limitation of other rights and
powers of the Company as provided by law, the Company may reclassify its
capital stock and may create or authorize one or more classes or kinds of
stock ranking prior to or on a parity with or subordinate to the 9%
Cumulative Preferred Stock, or may increase the authorized amount of the
9% Cumulative Preferred Stock or of the Common Stock or of any other
class of stock of the Company or may amend, alter, change, or repeal any
of the rights, privileges, terms and conditions of the shares of the 9%
Cumulative Preferred Stock or of the Common Stock, or of any other class
of stock of the Company, upon the vote, given at a meeting called for that
purpose, of the holders of a majority (or such other number of shares of
stock as may then be required by law) of the shares of stock then entitled
to vote thereon; provided that the consent of the holders of the shares of
the 9% Cumulative Preferred Stock, required by the provisions of
subparagraphs (A), (B) and c of paragraph (h) hereof, if any such consent
be so required, shall have been obtained, and provided further that the
rights, privileges, terms and conditions of the shares of the Common Stock
shall not be subject to amendment, alteration, change or repeal without
the consent (given in writing or by vote at a meeting called for that
purpose) of the holders of a majority (or such other number as may then be
required by law) of the total number of shares of the Common Stock then
outstanding.
(G) For the purposes of paragraph (h) of this Section III,
outstanding shares of the 9% Cumulative Preferred Stock shall not include
shares held in the treasury of the Company.
(I) All or any shares of the 9% Cumulative Preferred Stock at any
time redeemed, purchased or acquired by the Company may thereafter, in the
discretion of the Board of Directors subject to subparagraph (h) (B)
above, be reissued or otherwise disposed of at any time or from time to
time to the extent and in the manner now or hereafter permitted by law,
provided that any such shares acquired by operation of the redemption
provisions of paragraph (e) of this Section III shall not under any
circumstances be reissued or otherwise disposed of by the Company and each
surrendered certificate for shares so redeemed shall be canceled.
(j) The rights and remedies herein granted to holders of the 9%
Cumulative Preferred Stock shall be in addition to all other rights and
remedies to which they may be otherwise entitled by law.
THE COMMONWEALTH OF MASSACHUSETTS
SECRETARY OF THE COMMONWEALTH
STATE HOUSE, BOSTON, MASSACHUSETTS 02133
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 33 No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Joseph T. Kelley, President, and Scott S. Robinson, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
articles of organization of the corporation was duly adopted at a meeting
held on September 25, 1979, by a vote of:
141,825 shares of Common Stock, out of 192,025 outstanding.
being at least a majority of each class outstanding and entitled to vote
thereon: two thirds of each class outstanding and entitled to vote thereon
and of each class or series of stock whose rights are adversely affected
thereby.
RESOLVED: That the Charter, Agreement of Association and Articles of
Organization of this Company be, and the same hereby are,
amended to increase the capital stock of the Company by
creating an additional 20,000 shares of the Company's Common
Stock, $10 par value, thereby increasing the number of
authorized shares of said Common Stock from 192,025 to 212,025
shares; such additional 20,000 shares to be issued and sold
from time, subject to the approval of the Massachusetts
Department of Public Utilities, through the Company's Share
Owner Dividend Reinvestment and Stock Purchase Plan; and it is
further
RESOLVED: That the Charter, Agreement of Association and Articles of
Organization of the Company be, and the same hereby are,
amended to provide that the By-Laws of the Company may be
amended by vote of the shareholders of the Company or by vote
of the Company's directors, in accordance with the provisions
of such By-Laws.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 15th day of October , in the year 19
/s/ , President
/s/ , Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in
the amount of $ having been paid, said articles are deemed to have
been filed with me this 16th day of October, 1979 .
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
TO: Franklin M. Hundley, Esquire
Rich, May, Bilodeau & Flaherty
294 Washington Street
Boston, Massachusetts, 02108
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
John F. X. Davoren, SECRETARY OF THE COMMONWEALTH
STATE HOUSE, BOSTON, MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 164, SECTION 33
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Joseph T. Kelley, President, and Scott S. Robinson, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
Articles of Organization of the corporation was duly adopted at a meeting
held on January 30,1980, by a vote of:
158,374 shares of Common stock, out of 192,025 outstanding.
being at least a majority of each class outstanding and entitled to vote
thereon.
VOTED: That the Charter, Agreement of Association and Articles of
Organization of this Company be and hereby are amended so that the
total number of shares and the par value per share of Common Stock
of the Company authorized for issuance shall be changed from
212,025 shares, $10 par value per share, to 424,050 shares, $5.00
par value per share, subject to the obtaining of requisite
approval and authorization of the Department of Public Utilities
of the Commonwealth of Massachusetts; and;
FURTHER
VOTED: That each share of Common Stock of the par value of $10.00
currently issued and outstanding or authorized for issuance but
unissued shall be and, on the effective date of the aforesaid
Amendment, hereby is reclassified and changed into two shares of
Common Stock of the par value of $5.00 per share.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 21st day of February, in the year 1980.
/s/ , President
/s/ , Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $50.00 having been paid, said articles are deemed to have been
filed with me this day of , 1980.
John F. X. Davoren
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
TO: Franklin M. Hundley, Esquire
Rich, May, Bilodeau & Flaherty
294 Washington Street
Boston, Massachusetts, 02108
The Commonwealth of Massachusetts
Michael Joseph connolly
secretary of State
One Ashburton Place, Boston, MA 02108
FEDERAL IDENTIFICATION
NO. 04-1731220
CERTIFICATE OF CHANGE OF PRINCIPAL OFFICE
General Laws, Chapter 156B, Section 14
I, Cheryl M. Clark, Clerk of The Berkshire Gas Company having its principal
office at P. O. Box 1388
31 South Street., Pittsfield, MA 01201
do hereby certify that pursuant to General Laws, Chapter 156B, Section 14,
the directors of said corporation have changed the principal office of the
corporation to P.O. Box 1388
115 Cheshire Road, Pittsfield, MA 01201
SUBSCRIBED THIS 30TH DAY OF JULY 1982, UNDER THE PENALTIES OF PERJURY
SIGNATURE
/s/ CHERYL M. CLARK
CHERYL M. CLARK
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
SECRETARY OF THE COMMONWEALTH
STATE HOUSE, BOSTON, MASSACHUSETTS 02133
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 33 No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, J.T.Kelley, President, and Cheryl M. Clark, Clerk of The Berkshire Gas
Company located at 115 Cheshire Road, Pittsfield, Massachusetts, 01201 do
hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on October 1982, by a
vote of:
311,037 shares of Common Stock, out of 398,421 outstanding.
being at least a majority of each class outstanding and entitled to vote
thereon:
VOTED: That the Charter, Agreement of Association and Articles of
Organization of this Company be, and hereby are, amended to
increase shares of the Company's Common stock, $5. par value,
thereby increasing the number of authorized shares of said Common
stock from 424,050 to 440,000 shares; such additional 15,950
shares are to be issued from time to time, subject to the approval
of the Massachusetts Department of Public Utilities, to a Tax
Credit Employees Stock Ownership Plan and Trust.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $75.00 having been paid, said articles are deemed to have been
filed with me this 9 day of November, 1982.
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
TO: Eric J. Krathwohl, Esq.
Rich, May, Bilodeau & Flaherty
294 Washington Street
Boston, Massachusetts, 02108
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
Michael Joseph Connolly, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 8B No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, Vice President, and Cheryl M. Clark, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
articles of organization of the corporation was duly adopted at a meeting
held on July 22, 1983, by a vote of:
317,419 shares of Common Stock, out of 408,946 shares outstanding.
being at least a majority of each class outstanding and entitled to vote
thereon.*1
*1For the amendment adopted pursuant to Chapter 156B, Section 70.
VOTED: That the Charter, Agreement of Association and Articles of
Organization of this Company be, and hereby are, amended to increase the
capital stock of the Company by creating an additional 60,000 shares of the
Company's Common Stock, $5 par value, thereby increasing the number of
authorized shares of said Common Stock from 440,000 to 500,000 shares; such
additional 60,000 shares to be issued and sold to certain institutional
investors, subject to the approval of the Massachusetts Department of Public
Utilities.
TO CHANGE the number of shares and the par value, if any, of each class of
stock within the corporation fill in the following:
The total presently authorized is:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common - 440,000 $5.00
Preferred
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common - 500,000 $5.00
Preferred
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this day of July , in the year 1983.
/s/ , President
/s/ , Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $ having been paid, said articles are deemed to have been filed
with me this day of , 19.
/s/ MICHAEL JOSEPH CONNOLLY
Michael Joseph Connolly
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
TO: Eric J. Krathwohl, Esquire
Rich, May, Bilodeau & Flaherty
294 Washington Street
Boston, Massachusetts, 02108
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 8B No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, Executive Vice President, and Cheryl M. Clark, Clerk
of The Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
articles of orgainzation of the corporation was duly adopted at a meeting
held on October 12, 1983, by a vote of:
363,229 shares of Common Stock, out of 471,273 outstanding.
being at least two-thirds of each class outstanding and entitled to vote
thereon and of each class or series of stock whose rights are adversely
affected thereby.
VOTED: That notwithstanding any other provision thereof, the Charter,
Agreement of Association and Articles of Organization of the
Company be and hereby are amended to add thereto the following
provision to specify as a proper corporate power of the Company:
"The power, right and authority to do business, carry on its
operations, and have offices and exercise powers granted by
Massachusetts law in any jurisdiction within or outside the United
States."
TO CHANGE the number of shares and the par value, if any, of each class of
stock within the corporation fill in the following:
The total presently authorized is:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
COMMON
PREFERRED
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
COMMON
PREFERRED
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 24 day of October, in the year 1983.
, Executive VicePresident
/s/
, Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $ having been paid, said articles are deemed to have been filed
with me this day of , 19.
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
Eric J. Krathwohl, Esq.
Rich, May, Bilodeau & Flaherty
294 Washington Street, Boston, MA 02108
THE COMMONWEALTH OF MASSACHUSETTS
Secretary of the Commonwealth
ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 164, SECTION 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, Exec. Vice President, and Cheryl M. Clark, Clerk of
The Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
Articles of Organization of the corporation was duly adopted at a meeting
held on October 16, 1984, by a vote of:
387,922 shares of Common Stock, out of 484,812 outstanding
at least a majority of each class outstanding and entitled to vote thereon
and of each class or series of stock whose rights are adversely affected
thereby.*1
*1For amendments adopted pursuant to Chapter 164, Section 8.
VOTED: that the Charter, Agreement of Association and Articles of
Organization of this Company be, and the same hereby are, amended
to increase the capital stock of the Company by creating an
additional 50,000 shares of the Company's Common Stock, $5 par
value, thereby increasing the number of authorized shares of said
Common Stock from 500,000 to 550,000 shares; such additional
50,000 shares to be issued and sold from time to time, subject to
the approval of the Massachusett Department of Public Utilities,
through the Company's Share Owner Dividend Reinvestment and Stock
Purchase Plan.
TO CHANGE the number of shares and the par value, if any, of each class of
stock within the corporation fill in the following:
The total presently authorized is:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common 500,000 $ 5
Preferred
(4.8%) 15,000 $100
(9.0%) 10,000 $100
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common 550,000 $ 5
Preferred
(4.8)% 15,000 $100
(9.08)% 10,000 $100
THE COMMONWEALTH OF MASSACHUSETTS
SECRETARY OF THE COMMONWEALTH
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 164, SECTION 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, Exec. Vice President, and Cheryl M. Clark, Clerk of
The Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that the following amendment to the
articles of organization of the corporation was duly adopted at a meeting
held on: October 16, 1984, by a vote of:
347,361 shares ofCommon Stock, out of 484,812 outstanding
being at least two-thirds of each class outstanding and entitled to vote
thereon and of each class or series of stock whose rights are adversely
affected thereby:
VOTED: that the Charter, Agreement of Association and Articles of
Organization of the Company (the "Charter") be and hereby are
amended by adding the following provisions thereto:
The affirmative vote or consent of the holders of seventy-five
percent (75%) of the outstanding voting shares (as hereinafter
defined) of the Company shall be required for the adoption or
authorization of a business combination between the Company and an
other entity (as hereinafter defined); provided that the aforesaid
seventy-five (75%) voting requirement shall not be applicable to
the approval by the Company's shareholders of a business
combination authorized by a two-thirds vote of the Board of
Directors.
*for amendments adopted pursuant to Chapter 164, Section 8A.
As used in this amendment,(a) the term 'other entity' shall
include any corporation, trust, partnership, association, person
or other entity, and any other entity with which it or its
affiliate or associate (as defined below) has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of stock in the
Company in any transaction or series of transactions not involving
a public offering of the Company's stock within the meaning of the
Securities Act of 1933, or which its 'affiliate' or 'associate' as
those terms are defined in Rule 12b-2 of the General Rules and
Regulations under the Securities and Exchange Act of 1934 as in
effect September 1, 1984, together with the successors and assigns
of such persons; (b) as other entity shall be deemed to be the
beneficial owner of any voting shares which such other entity has
the right to acquire pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise; (c) the
outstanding shares of any class of stock of the Company shall
include shares deemed owned through application of clause (b)
above but shall not include any other shares which may be issuable
pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise; (d) the term 'business
combination' shall include any merger or consolidation of the
Company with or into any other entity; (e) the term 'voting
shares' shall mean shares of stock of the Company regularly
entitled to vote in elections of directors, otherwise than as the
result of a default in dividends or the occurrence of any other
contingency set forth in this Charter.
A two-thirds majority of the directors shall have the power and
duty to determine for the purpose of this amendment on the basis
of information known to them whether (a) an other entity is an
affiliate or associate (as defined above) of another, or (b) an
other entity.
No amendment to the Company's Charter shall amend, alter, change
or repeal any of the provisions, or the effect, of this amendment,
unless the amendment effecting such amendment, alteration, change
or repeal shall receive the affirmative vote or consent of the
holders of seventy-five (75%) of all outstanding voting shares of
the Company.
VOTED: that the Charter, Agreement of Association and Articles of
Organization of the Company (the 'Charter') be and hereby are
amended by adding the following provisions thereto:
The Board of Directors shall be divided into three classes, with
the term of office of one class expiring each year. At the Annual
Meeting of Shareholders in 1984, three directors of the first
class shall be elected to hold office for a term expiring at the
1985 Annual Meeting, three directors of the second class shall be
elected to hold office for a term expiring at the 1986 Annual
Meeting and three directors of the third class shall be elected to
hold office for a term expiring at the 1987 Annual Meeting.
Commencing with the Annual Meeting of Shareholders in 1985, each
class of directors whose term shall then expire shall be elected
to hold office for a three year term and until the election and
qualification of their respective successors in office. In case
of any increase in the number of directors, the number of
directors in each class shall be as nearly equal as possible.
Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be
filled solely by the Board of Directors, acting by not less than a
two-thirds vote of the directors then in office. Any director so
chosen shall hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
No amendment to the Company's Charter shall amend, alter, change
or repeal any of the provisions, or the effect, of this amendment,
unless the amendment effecting such amendment, alteration, change
or repeal shall receive the affirmative vote or consent of the
holders of seventy-five percent (75%) of all outstanding voting
shares of the Company. Nothing contained in this amendment shall
in any way limit any other provision of the Charter of the By-Laws
of the Company or of any applicable law under which any class of
the Company's equity securities shall have the benefit of a higher
voting standard or be entitled to a separate class vote in
addition to any other vote required by this amendment.
VOTED: that the Charter, Agreement of Association and Articles of
Organization of the Company (the 'Charter') be and hereby are
amended by adding the following provisions thereto:
Nominations for the election of directors may be made by the Board
of Directors or by any shareholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States mail,
postage prepaid, to the Clerk of the Company not less than 14 days
nor more than 50 days prior to any meeting of the shareholders
called for the election of directors. Notice of nominations which
are proposed by the Board of Directors shall be given by the
Chairman of the Board.
Each notice under the above paragraph shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of each such nominee and (iii) the number
of shares of stock of the Company which are beneficially owned by
each such nominee.
Notice for special meetings of shareholder must be given by the
Clerk and such notice shall be mailed or delivered at least 30
days prior to the meeting.
No amendment to the Company's Charter shall amend, alter, change
or repeal any of the provisions, or the effect, of this amendment,
unless the amendment effecting such amendment, alteration, change
or repeal shall receive the affirmative vote or consent of the
holders of seventy-five percent (75%) of all outstanding voting
shares of the Company.
Nothing contained in this amendment shall in any way limit any
other provision of the Charter, or of the By-Laws of the Company
or of any applicable law under which any class of the Company's
equity securities shall have the benefit of a higher voting
standard or be entitled to a separate class vote in addition to
any other vote required by this amendment.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this Twenty-ninth day of October, in the year 1984.
Exec. Vice President
/s/
Clerk
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS 02108 NO. 04-1731220
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, President
Cheryl M. Clark, Clerk of the BERKSHIRE GAS COMPANY located at 115
Cheshire Road, Pittsfield, Massachusetts 01201
do hereby certify that the following amendment to the articles of
organization of the corporation was duly adopted at a meeting held on May
21, 1986, by vote of
414,864 shares of Common Stock out of 607,004 shares outstanding
being at least a majority of each class outstanding and entitled to vote
thereon.
TO CHANGE the number of shares and the par value, if any, of each class of
stock within the corporation fill in the following:
The total presently authorized is:
NO PAR VALUE WITH PAR VALUE PAR
KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE
Common 800,000 $ 5.00
Preferred 7,967 $100.00
8,500 $100.00
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE PAR
KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE
Common 1,600,000 $ 2.50
Preferred 7,967 $100.00
8,500 $100.00
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $75.00 having been paid, said articles are deemed to have been
filed with me this day of ,19 .
Michael J. Connolly
Secretary of State
To: RICH, MAY, BILODEAU & FLAHERTY, P.C.
ATTN. JAMES M. AVERY, ESQUIRE
297 WASHINGTON STREET
BOSTON MA 02108
(617) 482-1360
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS 02108 NO. 04-1731220
ARTICLES OF AMENDMENT
General Laws, Chapter 164, Section 8B
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 33. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, President
Cheryl M. Clark, Clerk of the BERKSHIRE GAS COMPANY located at 115
Cheshire Road, Pittsfield, Massachusetts 01201 on this 14th day of July
1986.
VOTED: That the Charter, Agreement of Association and Articles of
Organization of the Company be and hereby are amended so that
the total number of shares and the par value per share of Common
Stock of the company authorized for issuance shall be changed
from 800,000 shares, $5.00 par value per share, to 1,600,000
shares, $2.50 par value per share, subject to the obtaining of
requisite approval and authorization of the Department of Public
Utilities of the Commonwealth of Massachusetts; and:
FURTHER
VOTED: That each share of Common Stock of the par value of $5.00
currently issued and outstanding or authorized for issuance but
unissued shall be and, on the effective date of the aforesaid
Amendment, hereby is reclassified and changed into two shares of
Common Stock of the par value of $2.50 per share; and
FURTHER
VOTED: That the aforesaid change of par value and the proposed two-for-
one shall be effective at the close of business on August 1,
1986, or such other date as may be fixed by the Board of
Directors, subject to the obtaining of all requisite regulatory
authorizations, and the Board of Directors is authorized and
empowered to do such things and to take such action as may be
necessary or appropriate to give effect to the foregoing votes.
The foregoing amendment will become effective in accordance with the vote
adopting the amendment.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 14th day of July , 1986.mj
/s/
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY
STATE HOUSE, BOSTON, MASSACHUSETTS 02133
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 33 No. 04-1731220
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General
Laws, Chapter 164, Section 8B. Make check payable to the Commonwealth of
Massachusetts.
We, Scott S. Robinson, President, and Cheryl M. Clark, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that these ARTICLES OF AMENDMENT
affecting Articles NUMBERED:
of the Articles of Organization were duly adopted at a meeting held on
October 28, 1987, by a vote of:
908,281 * shares of Common Stock, out of 1,249,167 outstanding.
912,500 ** shares of Common Stock, out of 1,249,167 outstanding.
being at least a majority of each type, class or series outstanding and
entitled to vote.
* Common Stock Authorization
** Elimination of Personal Liability of Directors
(See page 3)
TO CHANGE the number of shares and the par value, if any of each class of
stock within the corporation fill in the following:
The total presently authorized is:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common 1,600,000 $ 2.50
Preferred 15,000 4.8% $100.00
10,000 9.0% $100.00
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE
TYPE NUMBER OF NUMBER OF PAR
SHARES SHARES VALUE
Common 2,100,000 $ 2.50
Preferred 15,000 4.8% $100.00
10,000 9.0% $100.00
VOTED: That the Charter, Agreement of Association and Articles
of Organization of this Company be, and the same hereby
* are, amended to increase the authorized capital stock
of the Company by creating an additional 500,000 shares
of the Company's Common Stock, $2.50 par value, thereby
increasing the number of authorized shares of said
Common stock from 1,600,000 to 2,100,000 shares, such
shares to be issued as authorized by the Board of
Directors for proper corporate purposes, subject to the
requisite approval of the Massachusetts Department of
Public Utilities; and
FURTHER
VOTED: That all shares of Common Stock, $2.50 par value, that
were previously authorized for issuance to a Tax Credit
* and Employees Stock Ownership Plan and Trust and that
remain unissued be, and hereby are, authorized for
issuance from time to time for any other purpose deemed
appropriate by the Board of Directors, subject to the
obtaining of requisite approval and authorized of the
Massachusetts Department of Public Utilities; and
FURTHER
VOTED: That the Articles of Organization of the Company be and
hereby are amended to provide that, to the fullest
extent that the General Laws of the Commonwealth of
** Massachusetts as they exist on the date hereof, or as
they may hereafter be amended, permit the limitation or
elimination of the liability of directors, no director
of this Company shall be personally liable to this
Company or its shareholders for monetary damages for
breach of fiduciary duty, notwithstanding any provision
of the law imposing such liability. No amendment to or
have any effect on the liability or alleged liability
of any director of this Company for or with respect to
any acts or omissions of such director occurring prior
to such amendment or repeal.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this twenty-eighth day of October, in the
year 1987
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee
in the amount of $775.00 having been paid, said articles are deemed to have
been filed with me this 16th day of November, 1987.
MICHAEL JOSEPH CONNOLLY
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Rich, May, Bilodeau & Flaherty, P.C.
Attn.: James M. Avery, Esquire
294 Washington Street
Boston, MA. 02108
Telephone 617-482-1360
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL J. CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
General Laws, Chapter 164, Section 8A NO. 04-1731220
We, Scott S. Robinson, President and Cheryl M. Clark, Clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts 01201 do hereby certify that these ARTICLES OF AMENDMENT of
the Articles of Organization were duty adopted at a meeting held on
June 2, 1992, by vote of:
1,151,275 shares of Common Stock out of 1,693,580 shares
outstanding,
4,127 shares of 4.80% Preferred Stock out of 5,614 shares
outstanding, and
5,500 shares of 9.0% Preferred Stock out of 5,500 shares
outstanding,
being at least two-thirds of each type, class or series outstanding and
entitled to vote thereon and of each type, class or series of stock whose
rights are adversely affected thereby:-2
C
P
M
R.A.
1 For amendments adopted pursuant to Chapter 164, Section 8.
2 For amendments adopted pursuant to Chapter 184, Section 8A.
Note: If the space provided under any Amendment or item on this form is
insuffiecient, additions shall be set forth on separate 8 1/2 x 11 sheets
of paper leaving a left-hand margin of at least 1 inch for binding.
Additions to more than one Amendment may be continued on a single sheet so
long as each Amendment requiring each such addition is clearly indicated.
To CHANGE the number of shares and the par value (if any) of any type,
class or series of stock which the corporation is authorized to issue,
fill in the following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS
TYPE NUMBER OF SHARES
COMMON:
PREFERRED:
WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES PAR VALUE
COMMON: 2,100,000 $2.50
PREFERRED: 15,000 4.80% $100.00
10,000 9.0% $100.00
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS
TYPE NUMBER OF SHARES
COMMON:
PREFERRED:
WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES PAR VALUE
COMMON: 2,100,000 $2.50
PREFERRED: 15,000 4.80% $100.00
10,000 9.0% $100.00
80,000 8.4% $100.00
THE BERKSHIRE GAS COMPANY
STATEMENT OF THE DESIGNATIONS, PREFERENCES AND VOTING
POWERS OR RESTRICTIONS OR QUALIFICATIONS OF THE
CLASS B CUMULATIVE PREFERRED STOCK OF THE COMPANY
The capital stock of the Company shall include, in addition to the
common stock heretofore authorized, 105,000 shares of Cumulative Preferred
Stock, of the par value of $100 per share, with the following
designations, preferences, voting powers, restrictions and qualifications:
Section I.
Provisions Applicable to All Shares of Cumulative Preferred Stock
(a) All shares of Cumulative Preferred Stock shall be of equal rank
with each other, regardless of class or series, and shall be identical
with each other in all respects except as otherwise provided herein; and
the shares of Cumulative Preferred Stock of any one class or series shall
be identical with each other in all respects.
(b) In case the stated dividends on each class or series of
Cumulative Preferred Stock are not paid in full, the shares of each class
or series of Cumulative Preferred Stock shall share ratably in the payment
of dividends, including accumulations thereof, if any, in accordance with
the sums which would by payable on such shares if all dividends were
declared and paid in full.
(c) The Cumulative Preferred Stock of each class or series shall be
preferred as to assets over the Common Stock, so that the holders of each
class or series of Cumulative Preferred Stock shall be entitled to have
set apart for them or to be paid out of the assets of the Company, before
any distribution is made to or set apart for the holders of Common Stock,
and amount in cash equal to and in no event more than (1) in the event of
any voluntary liquidation, dissolution or winding up of the Company, the
redemption price of such class or series of the Cumulative Preferred Stock
which would have been in effect at the time of the distribution or payment
date if there had been no such liquidation, dissolution or winding up of
the Company, or (2) in the event of involuntary liquidation, dissolution
or winding up of the Company, the sum of $100 per share, plus each case an
amount equal to all dividends accrued and unpaid to the date of such
liquidation, dissolution or winding up, whether or not earned or declared.
If upon any liquidation, dissolution or winding up of the Company,
the assets of the Company available for distribution to its stockholders
shall be insufficient to permit the distribution in full of the amount
receivable by the holders of each class or series of the Cumulative
Preferred Stock, then all such assets of the Company shall be distributed
ratably among the holders of each class or series of the Cumulative
Preferred Stock in proportion to the amounts which such holders would be
entitled to receive if such assets were sufficient to permit distribution
in full as aforesaid.
In the event of any liquidation, dissolution or winding-up of the
Company, all assets and funds of the Company remaining after paying or
providing for the payment of all creditors of the Company and after paying
or providing for the payment to the holders of shares of each class or
series of the Cumulative Preferred Stock of the full distribution amounts
to which such holders are respectively entitled, as herein provided, shall
be divided amount and paid to the holders of the Common Stock according to
their respective shares.
Neither the consolidation nor merger of the Company with or into any
other corporation or corporations, not the sale or transfer by the Company
of all or any part of its assets shall in and of itself be deemed to be a
liquidation, dissolution or winding up of the Company for the purposes of
this paragraph (c).
(d) No holder of shares of Cumulative Preferred Stock of any class
or series shall be entitled as such as a matter of right to subscribe for
or purchase any part of any new or additional issue of any stock of any
class, series or kind whatsoever, or securities convertible into stock of
any class, series or kind whatsoever, whether now or hereafter authorized,
and whether issued for cash, property, services, by way of dividends, or
otherwise.
(e) (A) At all meetings of the stockholders of the Company, the
holders of shares of Cumulative Preferred Stock of any class or series
shall have no right to vote and shall not be entitled to notice of any
meeting of the stockholders of the Company or to participate in any such
meeting except as herein otherwise expressly provided and except for those
purposes, if any, for which said rights cannot be denied or waived under
some mandatory provision of law which shall be controlling.
(B) If and when dividends payable on any shares of Cumulative
Preferred Stock of any class or series shall be in default in an amount
equivalent to or exceeding four (4) quarterly dividends (whether
consecutive or not), the holders of the shares of all classes of the
Cumulative Preferred Stock, voting separately as a class, shall be
entitled to elect the smallest number of directors necessary to constitute
a majority of the full Board of Directors, and the holders of the shares
of the Common Stock, voting separately as a class, shall be entitled to
elect the remaining directors of the Company, anything herein or in the
By-Laws to the contrary notwithstanding. The terms of office of all
persons who may be directors of the Company at the time shall terminate
upon the election of one or more directors by the holders of the shares of
the Cumulative Preferred Stock whether or not the holders of the shares of
the Common Stock shall then have elected the remaining directors of the
Company.
(C) If and when all dividends then in default on the shares of
the Cumulative Preferred Stock of all classes or series then outstanding
shall be paid (and such dividends shall be declared and paid out of any
funds legally available therefor as soon as reasonably practicable) and
the full dividends on each class or series of the Cumulative Preferred
Stock for the then current quarterly dividend period shall have been
declared or paid or set apart for payment, the holders of the shares of
all classes of Cumulative Preferred Stock shall be divested of all voting
rights with respect to the election of directors provided in sub-paragraph
(B) of this paragraph (e), and the voting power of the holders of the
shares of all classes of Cumulative Preferred Stock and the holders of the
shares of the Common Stock shall revert to the status existing before the
first dividend payment on which dividends on the shares of all classes or
series of Cumulative Preferred Stock were not paid in full; but always
subject to the same provisions vesting such voting rights in the holders
of the shares of all classes of Cumulative Preferred Stock in case of
further like default or defaults on dividends thereon, as provided in
subparagraph (B) of this paragraph (e). Upon the termination of any such
may have been elected directors of the Company by vote of the holders of
the shares of all classes of Cumulative Preferred Stock as a class,
pursuant to such voting rights, shall forthwith terminate and the
resulting vacancies shall be filled by the vote of a majority of the
remaining directors.
Any director who shall have been elected by the holders of all
classes of Cumulative Preferred Stock or by any directors so elected as
herein provided may be removed during such director's aforesaid term of
office, either for or without cause, by, and only by, the affirmative
votes of the holders of record of a majority of the outstanding shares of
all classes of Cumulative Preferred Stock given at a special meeting of
such stockholders called for the purpose, and any vacancy thereby created
may be filled by the holders of such stock represented at such meeting.
(D) In the case of any vacancy int he office of a director
occurring among the directors elected by the holders of the shares of all
classes of Cumulative Preferred Stock, as a class, pursuant to the
foregoing provisions of subparagraph (B) of this paragraph (e), the
remaining directors elected by the holders of the shares of all classes of
Cumulative Preferred Stock, by affirmative vote of a majority thereof, or
the remaining director so elected if there by but one, may, subject to the
provisions of subparagraph (c) of this paragraph (e), elect a successor or
successors to hold office for the unexpired terms of the director or
directors whose place or places shall be vacant. Likewise, in case of any
vacancy in the office of a director occurring among the directors elected
by the holders of the shares of the Common Stock pursuant to the foregoing
provisions of subparagraph (D) of this paragraph (e), the remaining
directors elected by the holders of the Common Stock, by affirmative vote
of majority thereof or the remaining director so elected if there be but
one, may elect a successor or successors to hold office for the unexpired
if there be but one, may elect a successor or successors to hold office
for the unexpired term of the director or directors whose place or places
shall be vacant.
(E) Whenever under the provisions of subparagraph (B) of this
paragraph (e), the right shall have accrued to the holders of the shares
of all classes of Cumulative Preferred Stock to elect directors, the Board
of Directors shall, within ten (10) days after the delivery to the company
at its principal office of a request to such effect by any holder of
shares of any class or series of Cumulative Preferred Stock entitled to
vote, call a special meeting of the stockholders, to be held on 20 days'
notice. If such meeting shall not be so called within such ten-day
period, the holders of record of at least 10% in amount of any class or
series of Cumulative Preferred Stock then outstanding, may designate in
writing one of their number to call such meeting and the same may be
called at the expense of the Company by such persons so designated, upon
20 days' notice. Any holder of any class or series of Cumulative
Preferred Stock so designated shall have access to the stock books of the
Company for the purpose of causing a meeting of stockholders to be called
pursuant to these provisions. At all meetings of stockholders held for
the purpose of electing directors during such time as the holders of the
shares of all classes of Cumulative Preferred Stock shall have the special
right, voting separately as a class, to elect directors pursuant to
subparagraph (B) of this paragraph (e), the presence, in person or by
proxy, of the holders of a majority of the outstanding shares of each
class of stock (i.e. Cumulative Preferred Stock and Common Stock) shall be
required to constitute a quorum of such class for the election of
directors; provided, however, that the absence of a quorum of the holders
of stock of either such class shall not prevent the election at any such
meeting or adjournment thereof of directors by the other such class if the
necessary quorum of the holders of such stock is present in person or by
proxy at such meeting; and provided further that in the event such a
quorum of the holders of the shares of the Common Stock is present but
such a quorum of the holders of the shares of all classes of Cumulative
Preferred Stock is not present then the election of the directors elected
by the holders of the shares of the Common Stock shall bot be effective
and the directors so elected by the holders of the shares of the Common
Stock shall not assume their offices and duties until the holders of the
shares of all classes of Cumulative Preferred Stock, with such a quorum
present, shall have elected the directors they shall be entitled to elect;
and provided further, however, that in the absence of a quorum of the
holders of stock of either such class, a majority of those holders of the
stock of such class who are present in person or by proxy shall have power
to adjourn the lection of the directors to be elected by such class from
time to time without notice other than announcement at the meeting until
the requisite amount of holders of such class shall be present in person
or by proxy, but such adjournment shall bot be made to a date beyond the
date for the mailing of notice for the next annual meeting of the Company
or a special meeting in lieu thereof. Notwithstanding the foregoing, to
the extent permitted by law the holders of the shares of all classes of
Cumulative Preferred Stock, by unanimous written consent, may elect such
number of directors as they shall be entitled to elect under the
provisions of subparagraph (B) of this paragraph (e), without the
necessity of a meeting or the observance of the aforesaid notice
provisions.
(F) Except as otherwise required by the laws applicable to the
Company and subject to the right of the Cumulative Preferred Stock of all
classes or series (i) to vote in certain events as hereinbefore set forth
in this paragraph (e) and (ii) not to have certain corporate action taken
without the consent of the holders thereof as set forth herein, the Common
Stock shall have the exclusive voting rights for the election of directors
and for all other purposes. The Company shall have no voting rights with
respect to shares of Cumulative Preferred Stock of all classes or series
held in the treasury of the Company.
Section II.
Provisions Applicable to All Shares of Class B
Cumulative Preferred Stock, Series 8.4%
(a) 80,000 shares of the Cumulative Preferred Stock shall be and
are designated as "Class B Cumulative Preferred Stock, Series 8.4%".
(b) The holders of shares of Class B Cumulative Preferred Stock,
Series 8.4% shall be entitled to receive cash dividends at the rate of
8.4% per annum of the par value of $100 per share, or $8.40 per share per
annum, payable quarterly on the 15th days of January, April, July, and
October in each year.
(c) The aforesaid dividends shall accrue from the date of original
issue and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate of $8.40 per annum shall not have
been paid upon or declared and set apart for the Class B Cumulative
Preferred Stock, Series 8.4%, the deficiency shall be fully paid or
declared and set apart before any dividend shall be paid upon or declared
or set apart for the Common Stock. Dividends on the Class B Cumulative
Preferred Stock, Series 8.4% shall be deemed to accrue from day to day.
(d) The Company, by action of its Board of Directors, may redeem
the whole or any part of the Class B Cumulative Preferred Stock, Series
8.4% at any time or from time to time on or after May 30, 2002, at the
following redemption prices:
$105.10 per share if redeemed on or after May 30, 2002 but prior to
May 30, 2003;
$104.76 per share if redeemed on or after May 30, 2003 but prior to
May 30, 2004;
$104.42 per share if redeemed on or after May 30, 2004 but prior to
May 30, 2005;
$104.08 per share if redeemed on or after May 30, 2005 but prior to
May 30, 2006;
$103.74 per share if redeemed on or after May 30, 2006 but prior to
May 30, 2007;
$103.40 per share if redeemed on or after May 30, 2007 but prior to
May 30, 2008;
$103.60 per share if redeemed on or after May 30, 2008 but prior to
May 30, 2009;
$102.72 per share if redeemed on or after May 30, 2009 but prior to
May 30, 2010;
$102.38 per share if redeemed on or after May 30, 2010 but prior to
May 30, 2011;
$102.04 per share if redeemed on or after May 30, 2011 but prior to
May 30, 2012;
$101.70 per share if redeemed on or after May 30, 2012 but prior to
May 30, 2013;
$101.36 per share if redeemed on or after May 30, 2013 but prior to
May 30, 2014;
$101.02 per share if redeemed on or after May 30, 2014 but prior to
May 30, 2015;
$100.68 per share if redeemed on or after May 30, 2015 but prior to
May 30, 2016;
$100.34 per share if redeemed on or after May 30, 2016 but prior to
May 30, 2017;
$100.00 per share if redeemed on or after May 30, 2017 and
thereafter;
together with, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, whether or not earned
or declared.
If fewer than all of the outstanding shares of the Class B
Cumulative Preferred Stock, Series 8.4% are to be redeemed, the aggregate
number of shares so to be redeemed shall be selected by the Board of
Directors on a pro rata basis, as fat as practicable, among all holders of
such stock. Notice of redemption shall be given as provided in paragraph
(f), below.
(e) (A) The Company covenants to prepay, on May 30th in each
calendar year connecting in the year 2003 (each such May 30th being a
"Mandatory Prepayment Date") through and including the year 2017, 5,334
shares (or such lesser number of shares as may then be outstanding) of
Class B Cumulative Preferred Stock, Series 8.4% at par value, plus all
accrued and unpaid dividends thereon to the Mandatory Prepayment Date(the
"Mandatory Prepayment Price"). In the event that there is more than one
holder of the Class B Cumulative Preferred Stock, Series 8.4% on the
Mandatory Prepayment Date in any given year, the shares to be prepaid
shall be selected by the Board of Directors on a pro rata basis, as fat as
practicable, among all holders of the Class B Cumulative Preferred Stock,
Series 8.4%. Notice of mandatory prepayment shall be given as provided in
paragraph (f), below. The foregoing annual obligation (the "Annual
Prepayment Obligation") shall be cumulative (but without interest), so
that if for any reason the Company shall bot have satisfied its full
Annual Prepayment Obligation in any calendar year, then any deficiency
shall be added to the Annual Prepayment Obligation for the next succeeding
calendar year. The holders of Class B Cumulative Preferred Stock, Series
8.4% shall not have the right to compel the Company to make any mandatory
prepayment in the event that the Company shall not have funds legally
available therefor; provided, however, that in such case the obligation to
make such mandatory prepayment shall be fulfilled by the Company as soon
as practicable after such funds become legally available. Until every
deficiency in the Annual Prepayment Obligation shall have been paid in
full, the holders of the Class B Cumulative Preferred Stock, Series 8.4%
shall share ratably with the holders of any other stock ranking on a
parity with the Class B Cumulative Preferred Stock, Series 8.4% as to
liquidation rights or dividends in the payment of funds in satisfaction of
any required redemption, prepayment or other obligation with respect to
such stock.
(B) Provided that the Company shall have satisfied the Annual
Prepayment Obligation for all past years and for the current year, the
Company may, at its option, on May 30th in each calendar year commencing
in the year 2003 (each such May 30th being an "Optional Prepayment Sate"),
prepay 1,200 shares (or such lesser number of shares as may then be
outstanding) of Class B Cumulative Preferred Stock, Series 8.4% at par
value, plus all accrued and unpaid dividends thereon to the Optional
Prepayment Date (the "Optional Prepayment Price"). In the event that
there is more than one holder of the Class B Cumulative Preferred Stock,
Series 8.4% on the Optional Prepayment Date in any given year, the shares
to be prepaid shall be selected by the Board of Directors on a pro rata
basis, as far as practicable, among all holders of the Class B Cumulative
Preferred Stock, Series 8.4%. Notice of optional prepayment shall be
given as provided in paragraph (f), below. Such Company, for any reason,
to redeem 1,200 shares of Class B Cumulative Preferred Stock, Series 8.4%
pursuant to this subparagraph (e)(B) in any year shall not increase the
number of shares redeemable pursuant to this subparagraph (e)(B) in any
subsequent year.
(f) Not more than 60 nor less than 30 days prior to the date fixed
for redemption or prepayment, notice thereof shall be mailed to the
holders of record of the shares to be redeemed or prepaid at such holders'
respective addresses as the same shall appear on the books of the Company.
The notice shall state the date fixed for redemption or prepayment,
the applicable redemption or prepayment price and amount of all accrued
dividends payable to the date of redemption or prepayment, and the number
of shares to be redeemed or prepaid. Such notice shall call upon each
stockholder to whom such notice is addressed to surrender to the Company
on the date fixed for redemption or prepayment, at the place designated in
such notice, such stockholder's certificates representing the shares to be
redeemed or prepaid.
Notwithstanding the foregoing provisions of this paragraph (f), the
Company may enter into a written agreement with any holder of shares of
Class B Cumulative Preferred Stock, Series 8.4% providing for (i) special
payment instructions regarding the payment by the Company to such holder
with respect to any such redemption or prepayment, including the wiring of
such payment as directed by such holder ,and (ii) the payment for shares
being partially redeemed or prepaid without requiring the surrender bu
such holder for cancellation of the certificate evidencing the shares
being redeemed or prepaid; provided, that such holder agrees that it will
not sell, transfer or otherwise dispose of any such certificate without
making notations on the certificate as to the shares evidenced thereby
which have been redeemed or prepaid, as the case may be. If the Company
shall enter into any such agreement, the aforesaid notice shall be
modified to reflect the provisions of such written agreement.
On or after the date fixed for redemption or prepayment, each holder
of shares of Class B Cumulative Preferred Stock, Series 8.4% so called for
redemption or prepayment shall present and surrender such holder's
certificate or certificates for such shares to the Company at the place
designated in the foregoing written notice and thereupon the redemption or
prepayment price of foregoing written notice and thereupon the redemption
or prepayment price of such shares together with the amount of accrued
dividends thereon payable on the date fixed for redemption or prepayment
shall be paid to or on the order of the person whose name appears on the
certificate or certificates as the owner thereof. In case fewer than all
of the shares represented by any such certificate are redeemed or prepaid,
a new certificate shall be issued representing the remaining shares. If
notice of redemption or prepayment shall have been duly given as
hereinbefore provided, and if on or before the dated fixed for redemption
or prepayment all funds necessary for such redemption or prepayment shall
have been set aside by the Company, separate and apart from its other
funds, in trust for the amount of the holders of the shares to be redeemed
or prepaid, so as to be and continue to be available therefor, then,
notwithstanding that any certificate for such shares so called for
redemption or prepayment shall not have been surrendered for cancellation,
from and after the date fixed for redemption or prepayment, the shares
represented thereby shall no longer be deemed to be outstanding, the right
to receive dividends thereon shall cease to accrue and all rights with
respect to such shares so called for redemption or prepayment shall cease
and terminate, except only the right of the holders thereof to receive,
out of the funds so set aside in trust, the amount payable upon redemption
or prepayment thereof, without interest.
(g) So long as any shares of the Class B Cumulative Preferred
Stock, Series 8.4% are outstanding, the Company shall not pay or declare
and set apart for payment any dividend (other than dividends payable in
stock junior to the Class B Cumulative Preferred Stock, Series 8.4% with
respect to liquidation rights and dividends), or make any other
distribution on, or purchase, redeem, prepay, retire, or otherwise acquire
for consideration, or set aside any funds for any such acquisition of, any
such shares of capital stock ranking junior to the Class B Cumulative
Preferred Stock, Series 8.4% unless and until: (A) full dividends on the
shares of the Class B Cumulative Preferred Stock, Series 8.4% at the time
outstanding for all past quarterly dividend periods and for the current
quarterly dividend period shall have been paid or declared and set apart
for payment, (B) the Company shall not be in default in respect of the
Annual Prepayment Obligation or any other obligation with respect to any
voluntary or optional redemption of the Class B Cumulative Preferred
Stock, Series 8.4% and (c) after such action the amount of the capital of
the Company represented by (i) the then outstanding capital stock of the
Company ranking junior to the Class B Cumulative Preferred Stock, Series
8.4% as to liquidation rights and dividends, (ii) the premium on the
Company's capital stock and (iii) the Company's surplus (including
retained earnings), would be equal to or greater than twice the aggregate
par value of all outstanding shares of Class B Cumulative Preferred Stock,
Series 8.4% and all shares of any stock ranking prior to or on a parity
with the Class B Cumulative Preferred Stock, Series 8.4% as to liquidation
rights or dividends. Unless otherwise indicated, the terms "capital",
"surplus" and "premium on capital stock", as used herein, shall have the
meanings ascribed to them in accordance with generally accepted accounting
principles. Subject to the foregoing, this paragraph (g) shall not
otherwise prevent the Company from declaring or paying out of funds
legally available therefor such dividends on the Common Stock as may be
determined by the Board of Directors.
(h) (A) So long as any shares of the Class B Cumulative Preferred
Stock, Series 8.4% are outstanding, the Company shall not without the
consent (given in person or by proxy at a meeting duly called and held for
that purpose) of the holders of at least two-thirds of the total number of
shares of Class B Cumulative Preferred Stock, Series 8.4% then
outstanding:
(a) amend, alter, change or repeal any of the rights,
privileges, powers, terms and conditions of the Class B Cumulative
Preferred Stock, Series 8.4% in any manner that would adversely
affect any of the rights of the holders thereof; or
(b) sell, lease, transfer or convey all or the greater part
of the Company's property or business (provided, however, that his
subparagraph (h)(A)(b) shall not be construed to require the consent
of the holders of the Class B Cumulative Preferred Stock, Series 8.4%
for the issuance of additional bonds under the Company's First
Mortgage Indenture and Deed of Trust, dated as of July 1, 1954, as
amended); or
(c) merge or consolidate with or into another corporation in
such manner that the Company does not survive as a continuing entity,
if thereby the rights, privileges, preferences, powers, terms or
conditions of the Class B Cumulative Preferred Stock, Series 8.4%
would be adversely affected; or
(d) create, authorize or increase the total authorized amount
of any class or series of stock ranking prior to the Class B
Cumulative Preferred Stock, Series 8.4% as to assets or dividends,
or create, authorize or increase the total authorized amount of any
security or right convertible into, or evidencing the right to
purchase, shares of any such stock.
(B) So long as any shares of the Class B Cumulative Preferred
Stock, Series 8.4% are outstanding, the Company shall not, without the
consent (given in person or by proxy at a meeting duly called and held for
that purpose) of the holders of a majority of the total number of shares
of Class B Cumulative Preferred Stock, Series 8.4% then outstanding:
(a) create or authorize any stock ranking on a parity with or
junior to (except for common stock) Class B Cumulative Preferred
Stock, Series 8.4%, as to assets or dividends, or create or authorize
any security or right convertible into, or evidencing the right to
purchase, shares of any such stock; or
(b) issue or sell any shares of any stock ranking on a parity
with or junior to (except for common stock) the Class B Cumulative
Preferred Stock, Series 8.4% as to assets or dividends, or any
security or right convertible into, or evidencing the right to
purchase, shares of any such stock;
unless, after giving effect to such proposed issue or sale, (i) the net
earnings of the Company available for interest and dividends, determined
in accordance with generally accepted accounting principles after all
taxes and after provision for depreciation and amortization at least equal
to the "minimum provisions for depreciation" as hereinafter defined, for
twelve (12) consecutive calendar months out of the eighteen (18) months
immediately preceding shall be at least one and one-quarter (1-1/4) times
the sum of (x) the aggregate annual interest requirements on all "long-
term indebtedness", as hereinafter defined, of the Company then
outstanding and (y) the aggregate annual dividend requirements on all
shares of Class B Cumulative Preferred Stock, Series 8.4% and all shares
of any stock ranking prior to or on a parity with the Class B Cumulative
Preferred Stock, Series 8.4%, to be outstanding; and (ii) the Company's
net earnings available for dividends, determined in accordance with
generally accepted accounting principles after all taxes and after
provision for depreciation and amortization at least equal to the "minimum
provision for depreciation", as hereinafter defined, for twelve (12)
consecutive calendar months out of the eighteen (18) months immediately
preceding shall be at least one and three-fourths (1-3/4) times the
aggregate annual dividend requirements on all shares of Class B Cumulative
Preferred Stock, Series 8.4% and all shares of any stock ranking prior to
or on a parity with the Class B Cumulative Preferred Stock, Series 8.4%,
to be outstanding; and (iii) the Company's capital represented by the then
outstanding shares of its stock ranking junior to the Class B Cumulative
Preferred Stock, Series 8.4%, plus the Company's surplus (including
retained earnings) and any amounts carried as premium on capital stock,
would be at least equal to the resulting aggregate par value of all shares
of Class B Cumulative Preferred Stock, Series 8.4%, and all shares of any
stock ranking prior to or on a parity with the Class B Cumulative
Preferred Stock, Series 8.4% , that would be outstanding after giving
effect to such proposed issue or sale.
The term "minimum provision for depreciation" as used herein shall
mean, for any twelve months' period, an amount equal to 2% of the average
gross depreciable plant property account of the Company during such
period. The term "long term indebtedness" as used herein shall mean all
indebtedness which by its terms matures more than one year from the date
as of which any calculation of long term indebtedness is made, and any
indebtedness maturing within one year from such date which is renewable or
extendible at the option of the obligor to a date beyond one year from
such date. The term "indebtedness" of the Company shall mean all
liability of the Company for the repayment of borrowed money as of the
date on which indebtedness is to be determined, including, without
limitation, (a) all indebtedness secured by any mortgage, pledge, lien,
security agreement, conditional sale or other title retention agreement or
other charge or encumbrance existing on any property or asset owned or
held by the Company subject thereto, whether or not the indebtedness
secured thereby shall have been assumed, and (b) all indebtedness of
others which the Company has directly guaranteed, endorsed (otherwise than
for collection or deposit in the ordinary course of business), discounted
with recourse or agreed (contingently or otherwise) to purchase or
repurchase or otherwise acquire, or in respect of which the Company has
agreed to supply or advance funds (whether by way of loan, stock,
purchase, capital contribution or otherwise) or otherwise to become
directly or indirectly liable.
(C) So long as dividends shall be in arrears on the Class B
Cumulative Preferred Stock, Series 8.4% outstanding, or the Company shall
be in default with respect to any mandatory prepayment or obligation
provided for in subparagraph (e)(A), above, the Company shall not, without
the consent (given in person or by proxy at a meeting duly called and held
for that purpose) of the holders of a majority of the total number or
shares of the Class B Cumulative Preferred Stock, Series 8.4% then
outstanding, purchase, offer to purchase, redeem, prepay, retire or
otherwise acquire for a consideration, or set aside any funds for any such
acquisition of, any shares of Class B Cumulative Preferred Stock, Series
8.4%; provided, however, that any funds deposited in trust for the
purchase or redemption in accordance with such terms, whether or not at
the time of such application such arrearage or default is continuing under
the provisions hereof.
(D) A consent of the character referred to in subparagraphs
(A), (B) or (C) Of this paragraph (h) shall also be deemed to be effective
upon the consent in writing, without a meeting, of all the then
outstanding shares of Class B Cumulative Preferred Stock, Series 8.4%.
(E) The foregoing provisions as to vote or consent shall not
apply if, in connection with any of the matters mentioned in subparagraphs
(A), (B) or (C) above, provision is to be made for the redemption,
prepayment or retirement of all of the outstanding Class B Cumulative
Preferred Stock, Series 8.4%.
(F) In the event of any voluntary liquidation, dissolution or
winding up of the Company, the redemption price of the Class B Cumulative
Preferred Stock, Series 8.4% shall be (i) if the liquidation, dissolution
or winding up occurs at any time on or after May 30, 2002, a price per
share equal to the redemption price set forth in Section II(d) for an
optional redemption at that time, or (ii) if the liquidation, dissolution
or winding up occurs on a date which is prior to May 30, 2003, a price per
share equal to the sum of (A) $105.10 plus (B) an amount equal to $0.34
multiplied by the number of full calendar years occurring during the
period beginning with such date and ending on and including May 30, 2003.
(G) For the purposes of paragraph (h), outstanding shares of
the Class B Cumulative Preferred Stock, Series 8.4% shall not include
shares held in the treasury of the Company.
(i) All or any shares of the Class B Cumulative Preferred Stock,
Series 8.4% at any time redeemed, prepaid, purchased or acquired by the
Company shall not under any circumstances be reissued or otherwise
disposed of by the Company and each surrendered certificate for shares so
redeemed shall be canceled.
(j) The rights and remedies herein granted to holders of the Class
B Cumulative Preferred Stock, Series 8.4% shall be in addition to all
other rights and remedies to which such holders may be otherwise entitled
by law.
398196
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 164, SECTION 8A
I hereby approve the within articles of amendment and, the filing
fee in the amount of $8,100 having been paid, said articles are deemed to
have been filed with me this 18th day of June, 1992.
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT
TO: Rich, May, Bilodeau & Flaherty, P.C.
Attn: Carol E. Kazmer, Esq.
294 Washington Street
Boston, Massachusetts 02108
Telephone: (617) 482-1360
Telephone:
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL J. CONNOLLY, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
GENERAL LAWS, CHAPTER 164, SECTION 8B No. 04-1731220
We, Scott S. Robinson, President, and Cheryl M. Clark, clerk of The
Berkshire Gas Company located at 115 Cheshire Road, Pittsfield,
Massachusetts, 01201 do hereby certify that these ARTICLES OF AMENDMENT
affecting Articles NUMBERED: 3
of the Articles of Organization were duly adopted at a meeting held on
November 10, 1993, by a vote of:
1,151,323 shares of Common Stock, out of 1,741,950 outstanding.
being at least a majority of each type, class or series outstanding and
entitled to vote.
To CHANGE the name of shares and the par value (if any) of any type,
class or series of stock which the corporation is authorized to issue, fill
in the following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS
TYPE NUMBER OF TYPE NUMBER OF PAR
SHARES SHARES VALUE
COMMON COMMON 2,100,000 $ 2.50
PREFERRED PREFERRED 15,000 4.8% $100.00
10,000 9.0% $100.00
CHANGE the total authorized to:
TYPE NUMBER OF TYPE NUMBER OF PAR
SHARES SHARES VALUE
COMMON COMMON 2,600,000 $ 2.50
PREFERRED PREFERRED 15,000 4.8% $100.00
10,000 9.0% $100.00
80,000 8.4% $100.00
VOTED: That the Charter Agreement of Association and Articles of
Organization of this Company be, and the same hereby are, amended
to increase the authorized capital stock of the Company by
creating an additional 500,000 shares of the Company's Common
Stock, $2.50 par value, thereby increasing the number of
authorized shares of said Common Stock from 2,100,000 to 2,600,000
shares, such shares to be issued as purposes, subject to the
requisite approval of the Massachusetts Department of Public
Utilities.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of the
General Laws.
IN WITNESS WHERE OF AND UNDER THE PENALTIES OF PERJURY, we have hereunto
signed our names of this day of in the year .
President
Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 164, SECTION 8B
I hereby approve the within articles of amendment and, the filing
fee in the amount of $ , having been paid, said articles are deemed
to have been filed with me this day of , 19 .
MICHAEL J. CONNOLLY
SECRETARY OF STATE
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT TO:
Rich, May, Bilodeau & Flaherty, P.C.
Attn: Eric J. Krathwohl, Esq.
294 Washington St.
Boston, MA 02108
Telephone (617) 482-1360
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF PUBLIC UTILITIES
August 20, 1996
D.P.U. 96-64
Application and Petition of The Berkshire Gas Company to the Department of
Public Utilities pursuant to Sections 8 and 14 of Chapter 164 of the General
Laws for approval and authorization to issue and sell on a negotiated basis
a Senior Note in an aggregate principal amount of up to $16,000,000; to
issue and sell not in excess of 200,000 shares of Common Stock, $2.50 par
value, pursuant to the Company's Share Owner Dividend Reinvestment and Stock
Purchase Plan; for an exemption from the advertising and competitive bid
requirements of Section 15 of Chapter 164 of the General Laws; and for such
other actions as may be deemed necessary or appropriate in connection with
the foregoing.
APPEARANCES: Eric J. Krathwohl, Esq.
Emmett E. Lyne, Esq.
Rich, May, Bilodeau & Flaherty, P.C.
294 Washington Street
Boston, Massachusetts 02108
FOR: THE BERKSHIRE GAS COMPANY
Petitioner
I. INTRODUCTION
On June 13, 1996, The Berkshire Gas Company ("Berkshire" or "Company")
filed a petition with the Department of Public Utilities ("Department")
pursuant to G.L. c. 164, para. 8, 14, and 15, for approval and authorization
of: (1) the issuance and sale of up to $16,000,000 in a Senior Note at 7.8
percent; (2) the issuance and sale of not more than 200,000 shares of common
stock, $2.50 par value, through a Share Owner Dividend Reinvestment and
Stock Purchase Plan ("Plan"); and (3) an exemption from the advertising and
competitive bidding requirements of G.L. c. 164, para. 15. The Company's
petition was docketed as D.P.U. 96-64.
Pursuant to notice duly issued, a public hearing was held at the
Department's offices on July 24, 1996. In support of its petition, the
Company presented the testimony of Michael J. Marrone, vice president,
treasurer and chief financial officer; and Shaun E. Sprague, manager of
general accounting. The evidentiary record includes five exhibits and two
record requests. There were no intervenors in the case.
II. DESCRIPTION OF THE PROPOSED FINANCING
A. Issuance of Up To $16,000,000 in a Senior Note
Berkshire Gas seeks authorization from the Department to issue and
sell, up to $16,000,000 in a Senior Note, with a maturity of 25 years, at a
fixed interest rate of 7.8 percent (Tr. at 5). The Company stated that the
proposed issuance and sale of up to $16,000,000 in a Senior Note is to be
used to finance the purchase of a portion of the Company's debt prior to its
maturity (Exh. BGC-1, at 5,7).*1 The Company stated that at the time of the
financing, interest rates for long term debt instruments were significantly
lower than some of the Company's outstanding debt (id. at 6). The Company
further stated that the issuance and sale of up to $16,000,000 in a Senior
Note at the rate of 7.8 percent resulted in savings on a pro forma annual
basis of approximately $288,000 per year (Tr. at 15). The Company stated
that it proposes to pay for the premium associated with the redemptions by
accumulating the unamortized debt issuance expense on the repurchased debt,
adding to that the premium paid to call the existing debt, and amortizing
the total over the life of the Senior Note (Exh. BGC-1,at 8)
*1 The Company stated that it evaluated the refinancing costs associated
with the following debt: Series K an M Bonds at 7.875 and 9.375
percent, respectively; an outstanding public debenture series at a
rate of 9.25 percent; and preferred stock at 8.4 percent (Tr. at 12-
13). The Company stated that there were savings, though minimal,
associated with the redemption of the Series K and M bonds which had
no premium associated with the purchase (id. at 12). The Company
stated that although there was a three percent premium associated with
calling the public debenture series, the Company concluded that this
redemption was also cost-justified (id.at 13). The Company stated that
it realized substantial savings via an income tax deduction of 40
percent for dividends on debt issuances by converting its 8.4 percent
preferred stock to debt(Exhs. BGC-1 at 7, BGC-3, Att. B at 2; Tr. at
13-14).
The Company stated it negotiated to sell the Senior Note to a single
purchaser, First Colony Life Insurance Company of Virginia ("First Colony"),
which is also the holder of Berkshire's 8.4 percent preferred stock (id. at
8). The Company stated that the 7.8 percent rate of the proposed financing
was arrived at after extensive negotiations between First Colony and First
Albany Corporation ("First Albany"), the Company's investment bank (id. at
8-9). The Company further stated that the 7.8 percent rate is competitive
with market rates (id. at 8).
B. Issuance of Common Shares Pursuant to the Plan
Berkshire Gas seeks authorization from the Department to issue and
sell, from time to time, not in excess of 200,000 shares of Common Stock,
$2.50 par value, through the continued operation of the Plan. The Company
is currently authorized to issue and sell up to 100,000 shares of common
stock through the Plan (Exh. BGC-5, at 2);*2 Berkshire Gas Company, D.P.U.
93-182 (1990).
*2 The Company noted that of the 100,000 shares authorized by the
Department in D.P.U. 93-182, 47,400 were outstanding on March 31,
1996 (Exh. BGC-5, at 2-3). The Company anticipates that during the
calendar year 1996, an additional 46,000 shares will be purchased
under the Plan which will be deplete the remaining supply of
authorized shares pursuant to D.P.U. 93-182 (id. at 3).
Under the Plan, participants have the option to reinvest cash dividends
automatically on all or a portion of their shares of common stock or to
purchase common stock at any time in any amount from a minimum of fifteen
dollars in any calendar month to a maximum of five thousand dollars in any
calendar month (Exh. BGC-4, at 1; Tr. at 21).*3 The Company stated that the
Plan will be administered by the Plan Committee appointed by the Company's
Board of Directors (Exh. BGC-4, at 4).
*3 All holders of record of ten or more common shares of the Company
who are not employed by the Company and all employees of the Company
owning of record one or more shares are eligible to participate in
the Plan (Exh. BGC-4, at 5).
The Company stated that the price for the stock under the Plan would be set
at 97 percent of the average of the bid and the asked price of the Company's
common shares in the over-the-counter market during the period of five days
preceding the purchase date (Exh. BGC-5, at 3) The Company stated that the
three percent discount may be suspended at any time, at the Company's
discretion, and would be required to be suspended by the terms of the Plan
in the event that the discounted price of the Company's shares falls below
the book value of the stock (id.). The Company stated that the Plan
provides significant benefits to the Company, its shareholders, and
customers as it provides funds for capital improvements at a very
inexpensive cost (Exh. BGC-2, at 5; Tr. at 21).
C. Use of Proceeds
The Company stated that the proceeds from the proposed issue and sale
of up to $16,000,000 in a Senior Note and up to 200,000 shares of common
stock pursuant to the Plan will be used to repay short term borrowings that
were used to call the higher interest rate bonds, debentures, and higher
cost preferred stock of the Company (Exhs. BGC-1, at 6; BGC-5, at 4-5). In
addition, the Company stated that proceeds will be used for financing
additions to the Company's property, plant and equipment and/or repayment of
short term dept incurred from time to time by the Company (Exh. BGC-2, at
5). The Company asserted that the issuance of shares and use of proceeds is
consistent with the Company's traditional method of financing capital
additions temporarily through short term borrowing or internally generated
funds and later permanently financing such additions by the issuance of
equity securities or long term indebtedness (id.). The Company stated that
the Company's Board of Directors authorized the sale and issuance of the
proposed financing on June 4, 1996 (Exh. BGC-3, Att. A).
D. Exemption from G.L. c. 164, & 15
In addition, the Company requests exemption from the advertising and
competitive bidding requirements of G.L. c. 164, par. 15. The Company
stated that a negotiated, private sale rather than a public sale is more
favorable as the size of the offering would not likely attract bids on the
open market, and the costs of bidding, advertising, and issuance associated
with a public sale are much greater (Exh. BGC-5, at 4). The Company stated
that it chose First Albany as its investment banker on the basis of cost-
effectiveness as well as its long-standing relationship with First Albany
and First Albany's unique relationship with First Colony (Exh. BGC-1, at 9;
Tr. at 23).*4
*4 The Company noted that First Albany acted as the Company's
investment banker for several other sales of dept and equity capital,
including the sale of the 8.4 percent preferred issuance to First
Colony (Tr. at 24).
III. CAPITAL STRUCTURE OF THE COMPANY
The Company provided financial statements and an analysis of its
capital structure as of March 31, 1996 (Exh. BGC-3, Schs. 2-6). The
Company's financial statements indicate that as of March 31, 1996, Berkshire
had: (1) $5,345,000 of common stock (2,137,963 shares at par value of
$2.50); (2) $8,406,000 of preferred stock ($406,000 preferred stock, 4.8
Percent Series plus $8,000,000 preferred stock, 8.4 Percent Series); and (3)
$16,147,000 premium on capital stock for a total of $29,898,000 of
shareholder equity (id., Sch 4).*5 The Company also has long-term debt of
$24,000,000 (id.). The Company indicated that total securities outstanding
equalled $53,898,000 (id.). The Company's utility plant in service of
$95,328,000, less accumulated depreciation of $25,057,000 equalled a net
utility plant of $70,271,000 (id.). The Company determined an excess of net
utility plant to total securities of $16,373,000, as of March 31,1996 (id.).
After making pro forma adjustments including the redemption of the
$8,000,000 preferred stock, the Company estimated that the excess of net
utility plant to total securities after issuance of up to $16,000,000 in a
Senior Note and the 200,000 shares of common stock pursuant to the Plan for
which it is petitioning for approval equals $5,273,000 (id.). At the time
of the hearing, the Company indicated that its financial statement had not
changed since March 31, 1996 (Tr. at 22).
*5 The Company determined total securities by adding common stock (at
par), premium on common stock, preferred stock, and long-term debt
excluding retained earnings (Exh. BGC-3, Sch. 4).
IV. STANDARD OF REVIEW
In order for the Department to approve the issuance of stocks, bonds,
coupon notes, or other types of long-term indebtedness*6 by an electric or
gas company, the Department must determine that the proposed issuance meets
two tests. First, the Department must assess whether the proposed issuance
is reasonably necessary to accomplish some legitimate purpose in meeting a
company's service obligations, pursuant to G.L. c. 164 para.14. Fitchburg
Gas & Electric Light Company v. Department of Public Utilities, 395 Mass.
836, 842 (1985) ("Fitchburg II"), citing Fitchburg Gas & Electric Light
Company v. Department of Public Utilities, 394 Mass. 671, 678 (1985)
("Fitchburg I"). Second, the Department must determine whether the Company
has met the net plant test.*7 Colonial Gas Company, D.P.U. 84-96 (1984).
*6Long-term refers to periods of more than one year after the date of
issuance. G.L. c. 164, para. 14.
*7 The net plant test is derived from G.L. c. 164 para. 16.
The Court has found that, for the purposes of G.L. c. 164, para. 14,
"reasonably necessary" means "reasonably necessary for the accomplishment of
some purpose having to do with the obligations of the company to the public
and its ability to carry out those obligations with the greatest possible
efficiency." Fitchburg II at 836, citing Lowell Gas Light Company v.
Department of Public Utilities, 319 Mass. 46, 52 (1946). In cases where no
issue exists about the reasonableness of management decisions regarding the
requested financing, the Department limits its Section 14 review to the
facial reasonableness of the purpose to which the proceeds of the proposed
issuance will be put. Canal Electric Company, et al., D.P.U. 84-152, at 20
(1984); see, e.g., Colonial Gas Company, D.P.U. 90-50. at 6 (1990).
The Fitchburg I and II and Lowell Gas cases also established that the
burden of proving that an issuance is reasonably necessary rests with the
company proposing the issuance, and that the Department's authority to
review a proposed issuance "is not limited to a 'perfunctory review.'"
Fitchburg I at 678; Fitchburg II at 842, citing Lowell Gas at 52. Regarding
the net plant test, a company is required to present evidence that its net
utility plant (original cost of capitalizable plant, less accumulated
depreciation) equals or exceeds its total capitalization (the sum of its
long-term debt and its preferred and common stock outstanding) and will
continue to do so following the proposed issuance. Colonial Gas Company,
D.P.U. 84-96, at 5 (1984).
Pursuant to G.L. c. 164, para. 15, an electric or gas company offering
long-term bonds or notes in excess of $1 million in face amount payable at
periods of more than five years after the date thereof must invite purchase
proposals through newspaper advertisements. The Department may grant an
exemption from this advertising requirement if the Department finds that an
exemption is in the public interest. G.L. c. 164 para. 15. The Department
has found it in the public interest to grant an exemption from the
advertising requirement where there has been a measure of competition in
private placement. See, e.g., Western Massachusetts Electric Company,
D.P.U. 88-32, at 5 (1988); Eastern Edison Company, D.P.U. 88-127, at 11-12
(1988); Berkshire Gas Company, D.P.U. 89-12, at 11 (1989). The Department
also has found that it is in the public interest to grant a company an
exemption from the advertising requirement when a measure of flexibility is
necessary in order for a company to enter the bond market in a timely
manner. See, e.g., Western Massachusetts Electric Company, D.P.U. 88-32, at
5 (1988). However, G.L. c. 164, para. 15 requires advertising as the
general rule; and waiver cannot be automatic but must be justified whenever
requested.
Where issues concerning the prudence of the Company's capital
financing have not been raised or adjudicated in a proceeding, the
Department's decision in such a case does not represent a determination that
any specific project is economically beneficial to a company or to its
customers. In such circumstances, the Department's determination in its
Order may not in any way be construed as ruling on the appropriate
ratemaking treatment to be accorded any costs associated with the proposed
financing. See, e.g., Boston Gas Company, D.P.U. 95-66, at 7 (1995).
V. ANALYSIS AND FINDINGS
Based on the foregoing, the Department finds that the proposed
issuance of up to $16,000,000 in a Senior Note with a term of twenty-five
years and bearing an interest rate of 7.8 percent per annum and the proposed
issuance and sale of up to 200,000 shares of common stock under the Plan is
reasonably necessary to repay short term borrowings that were used to call
the higher interest rate bonds, debentures, and higher cost preferred stock
of the Company as well as to finance additions to the Company's property,
plant and equipment and repay short term borrowings incurred from time to
time by the Company. As such, the Department finds that the proposed
issuance and sale of up to $16,000,000 in a Senior Note and up to 200,000
shares of common stock pursuant to the Plan is reasonably necessary to
accomplish some legitimate purpose in meeting the Company's service
obligations in accordance with G.L. c. 164, para. 14. The Department
further finds that the costs associated with the proposed financing,
including costs associated with the redemption of the preferred stock and
debt securities should be amortized over the life of the Senior Note.
In regard to the net plant test, the Department finds that the
Company's proposed financing meets the net plant test, since the Company's
net utility plant equals or exceeds its total capitalization and will
continue to do so following the proposed issuance. Regarding the Company's
request for an exemption from the requirements of G.L. c. 164, para. 15, we
find that it is appropriate to allow the Company the flexibility offered by
the private placement process in order to assist the Company in responding
to market conditions and to take advantage of prevailing interest rates.
The record in this case further demonstrates that the Company ensured a
competitive rate through the private placement process. Therefore, the
Department finds that it is in the public interest to exempt the Company
from the advertisement and bidding requirements of G.L. c. 164, para. 15.
VI. ORDER
Accordingly, after due notice, hearing, and consideration, the
Department
VOTES: That the issuance and sale by Berkshire Gas Company of a Senior
Note in the aggregate principal amount of up to $16,000,000 is reasonably
necessary for the purpose for which the Company has petitioned; and it
FURTHER VOTES: That the issuance and sale, from time to time, by
Berkshire Gas Company of not in excess of 200,000 shares common stock, $2.50
par value, pursuant to its Share Owner Dividend Reinvestment and Stock
Purchase Plan, is reasonably necessary for the purpose for which the Company
has petitioned; and it is
ORDERED: That the Department hereby approves and authorizes the issue
and sale of a Senior Note in the aggregate principal amount of up to
$16,000,000, to bear interest at a rate of 7.8 percent, due to mature not
later than 25 years from the date of issue; and it is
FURTHER ORDERED: That the Department hereby approves and authorizes
the issuance and sale from time to time of not in excess of an additional
200,000 shares of common stock, $2.50, par value, pursuant to its Share
Owner Dividend Reinvestment and Stock Purchase Plan; and it is
FURTHER ORDERED: That the costs associated with the proposed
financing, including costs associated with the redemption of the preferred
stock and debt securities, be amortized over the life of the Senior Note;
and it is
FURTHER ORDERED: That the issuance and sale by Berkshire Gas Company
of a Senior Note in the aggregate principal amount of up to $16,000,000,
without inviting proposals for the purchase thereof by publication in
certain designated newspapers, is in the public interest, and such issue
shall be exempt from the provisions of G.L. c. 164, par 15; and it is
FURTHER ORDERED: That the net proceeds from such sale of all such
securities shall be used for the purposes as set forth herein; and it is
FURTHER ORDERED: That the Secretary of the Department shall within
three days of the issuance of this Order cause a certified copy of it to be
filed with the Secretary of the Commonwealth.
By Order of the Department,
John B. Howe, Chairman
Mary Clark Webster, Commissioner
A true copy
Attest; Janet Gail Besser, Commissioner
Mary L. Cottrell
Secretary
D.P.U. 96-64
Appeal as to matters of law from any final decision, order or ruling of the
Commission may be taken to the Supreme Judicial Court by an aggrieved party
in interest by the filing of a written petition praying that the Order of
the Commission be modified or set aside in whole or in part.
Such petition for appeal shall be filed with the Secretary of the Commission
within twenty days after the date of service of the decision, order or
ruling of the Commission, or within such further time as the Commission may
allow upon request filed prior to the expiration of twenty days after the
date of service of said decision, order or ruling. Within ten days after
such petition has been filed, the appealing party shall enter the appeal in
the Supreme Judicial Court sitting in Suffolk County by filing a copy
thereof with the Clerk of said Court. (Sec. 5, Chapter 25, G.L. Ter. Ed.,
as most recently amended by Chapter 485 of the Acts of 1971).
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 164, Section 8B of The
General Laws unless these articles specify, in accordance with the vote
adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on
such later date. EFFECTIVE DATE:
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto
signed our names this 6th day of September, in the year 1996.
President
Clerk
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 164, Section 8B)
I hereby approve the within articles of amendment and, the filing fee in the
amount of $500 having been paid, said articles are deemed to have been filed
with me this 10th day of September, 1996.
William Francis Golvin
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
TO: Franklin M. Hundley, Esquire
Rich, May, Bilodeau & Flaherty
294 Washington Street
Boston, Massachusetts, 02108
Draft of Thursday, November 14, 1996
===============================================================================
THE BERKSHIRE GAS COMPANY
NOTE AGREEMENT
Dated as of November 1, 1996
Re: $16,000,000 7.80% Senior Notes
Due November 15, 2021
===============================================================================
TABLE OF CONTENTS
(Not a part of the Agreement)
<TABLE>
<CAPTION>
SECTION HEADING PAGE
<S> <C> <C>
Parties ........................................................................ 1
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT. .......................... 1
Section 1.1. Description of Notes .......................................... 1
Section 1.2. Commitment, Closing Date ...................................... 1
Section 1.3. Redemption of 8.4% Preferred Stock ............................ 2
SECTION 2. PREPAYMENT OF NOTES. .......................................... 2
Section 2.1. Required Prepayments .......................................... 2
Section 2.2. Optional Prepayment with Premium .............................. 2
Section 2.3. Notice of Optional Prepayments ................................ 3
Section 2.4. Application of Prepayments .................................... 3
Section 2.5. Direct Payment ................................................ 3
SECTION 3. REPRESENTATIONS. .............................................. 3
Section 3.1. Representations of the Company ................................ 3
Section 3.2. Representations of the Purchaser .............................. 4
SECTION 4. CLOSING CONDITIONS ............................................ 4
Section 4.1. Conditions .................................................... 4
Section 4.2. Waiver of Conditions .......................................... 5
SECTION 5. COMPANY COVENANTS ............................................. 5
Section 5.1. Corporate Existence, Etc ...................................... 5
Section 5.2. Insurance ..................................................... 5
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with Laws ... 5
Section 5.4. Maintenance, Etc .............................................. 6
Section 5.5. Nature of Business ............................................ 6
Section 5.7. Limitations on Restricted Subsidiary Debt ..................... 6
Section 5.8. Fixed Charges Coverage Ratio .................................. 7
Section 5.9. Limitation on Liens ........................................... 7
Section 5.10. Restricted Payments ........................................... 8
Section 5.11. Mergers, Consolidations and Sales of Assets ................... 9
Section 5.12. Guaranties .................................................... 11
Section 5.13. Repurchase of Notes ........................................... 11
Section 5.14. Transactions with Affiliates .................................. 11
Section 5.15. Termination of Pension Plans .................................. 12
Section 5.16. Designation of Restricted Subsidiaries ........................ 12
Section 5.17. Reports and Rights of Inspection .............................. 12
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR ....................... 15
Section 6.1. Events of Default ............................................. 15
Section 6.2. Notice to Holders ............................................. 16
Section 6.3. Acceleration of Maturities .................................... 16
Section 6.4. Rescission of Acceleration .................................... 17
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS .............................. 17
Section 7.1. Consent Required .............................................. 17
Section 7.2. Solicitation of Holders ....................................... 18
Section 7.3. Effect of Amendment or Waiver ................................. 18
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS ...................... 18
Section 8.1. Definitions ................................................... 18
Section 8.2. Accounting Principles ......................................... 27
Section 8.3. Directly or Indirectly ........................................ 27
SECTION 9. MISCELLANEOUS ................................................. 28
Section 9.1. Registered Notes .............................................. 28
Section 9.2. Exchange of Notes ............................................. 28
Section 9.3. Loss, Theft, Etc. of Notes .................................... 28
Section 9.4. Conversion of Notes to First Mortgage Bond .................... 28
Section 9.5. Expenses, Stamp Tax Indemnity ................................. 30
Section 9.6. Powers and Rights Not Waived; Remedies Cumulative ............. 30
Section 9.7. Notices ....................................................... 30
Section 9.8. Successors and Assigns ........................................ 31
Section 9.9. Survival of Covenants and Representations ..................... 31
Section 9.10. Severability .................................................. 31
Section 9.11. Governing Law ................................................. 31
Section 9.12. Captions ...................................................... 31
Signature Page ................................................................. 32
</TABLE>
ATTACHMENTS TO NOTE AGREEMENT:
Schedule I -- Name of Note Purchaser
Schedule II -- Liens Securing Debt (including Capitalized Leases) as of
the Closing Date
Exhibit A -- Form of 7.80% Senior Note due November 15, 2021
Exhibit B -- Representations and Warranties of the Company
Exhibit C -- Description of Special Counsel's Closing Opinion
Exhibit D -- Description of Closing Opinion of Counsel to the Company
THE BERKSHIRE GAS COMPANY
115 Cheshire Road
Pittsfield, Massachusetts 01201
NOTE AGREEMENT
Re: $16,000,000 7.80% Senior Notes
Due November 15, 2021
Dated as of
November 1, 1996
First Colony Life Insurance Company
700 Main Street, P.O. Box 1980
Lynchburg, Virginia 24505
The undersigned, THE BERKSHIRE GAS COMPANY, a Massachusetts
corporation (the "Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize the
issue and sale of $16,000,000 aggregate principal amount of its 7.80% Senior
Notes (the "Notes") to be dated the date of issue, to bear interest from
such date at the rate of 7.80% per annum, payable quarterly on the fifteenth
day of each February, May, August and November in each year commencing
February 15, 1997 and at maturity and to bear interest on overdue principal
(including any overdue required prepayment of principal or any overdue
optional prepayment of principal pursuant to [SECTION]2.2) and premium, if
any, and (to the extent legally enforceable) on any overdue installment of
interest at the rate of 8.80% per annum after the date due, whether by
acceleration or otherwise, until paid, to be expressed to mature on November
15, 2021, and to be substantially in the form attached hereto as Exhibit A.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months. The Notes are not subject to prepayment at the option
of the Company prior to their expressed maturity dates except on the terms
and conditions and in the amounts and with the premium, if any, set forth in
[SECTION]2 of this Agreement. The term "Notes" as used herein shall include
each Note delivered pursuant to this Agreement. You are sometimes
hereinafter referred to as the "Purchaser".
Section 1.2. Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to you and you
agree to purchase from the Company the entire issue of the Notes at a price
equal to the principal amount thereof on the Closing Date hereinafter
mentioned.
Delivery of the Notes will be made at the offices of Chapman and
Cutler, 111 West Monroe Street, Chicago, Illinois 60603, against payment
therefor in Federal Reserve or other funds current and immediately available
at the principal office of Fleet Bank of Massachusetts, National
Association, ABA Number 011000138, Malden, Massachusetts, to the account of
The Berkshire Gas Company, Account Number 00112144, in the amount of the
purchase price at 10:00 A.M. Chicago, Illinois time, on November 15, 1996 or
such later date (not later than November 30, 1996) as shall mutually be
agreed upon by the Company and the Purchaser (the "Closing Date"). The
Notes delivered to you on the Closing Date will be in the form of a single
registered Note in the form attached hereto as Exhibit A for the full amount
of your purchase (unless different denominations are specified by you),
registered in your name or in the name of your nominee, all as may be
specified in Schedule I attached hereto.
Section 1.3. Redemption of 8.4% Preferred Stock. Concurrently with
the issuance of the Notes by the Company on the Closing Date, the Company
will redeem 80,000 shares of its Class B Cumulative Preferred Stock, Series
8.4% (the "8.4% Preferred Stock") which are held by you at a price of
$117.00 per share plus the dividend accrued on such shares to the Closing
Date, to be paid to you in exchange for your delivery to the Company on the
Closing Date of the stock certificates representing such 8.4% Preferred
Stock.
SECTION 2. PREPAYMENT OF NOTES.
Section 2.1. Required Prepayments. The Company agrees that on
November 15 in each year, commencing November 15, 2011 and ending November
15, 2020, both inclusive, it will prepay and apply and there shall become
due and payable on the principal indebtedness evidenced by the Notes an
amount equal to the lesser of (i) $1,454,545.45 or (ii) the principal amount
of the Notes then outstanding. The entire remaining principal amount of the
Notes shall become due and payable on November 15, 2021. No premium shall
be payable in connection with any required prepayment made pursuant to this
[SECTION]2.1. For purposes of this [SECTION]2.1, any prepayment of less
than all of the outstanding Notes pursuant to [SECTION]2.2 shall be deemed
to be applied first, to the amount of principal scheduled to be paid on
November 15, 2021, and then to the remaining scheduled principal payments in
inverse chronological order.
In the event of any purchase or other acquisition by the Company of
less than all of the Notes, the amount of the payment required at maturity
and each prepayment required to be made pursuant to this [SECTION]2.1 shall
be reduced in the proportion that the principal amount of such purchase or
other acquisition bears to the unpaid principal amount of the Notes
immediately prior to such purchase or other acquisition (after giving effect
to any prepayment made pursuant to this [SECTION]2.1 on the date of such
purchase or other acquisition).
Section 2.2. Optional Prepayment with Premium. In addition to the
payments required by [SECTION]2.1, upon compliance with [SECTION]2.3 the
Company shall have the privilege, at any time and from time to time, of
prepaying the outstanding Notes, either in whole or in part (but if in part
then in a minimum principal amount of $100,000) by payment of the principal
amount of the Notes, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, together with a premium equal to the
Make-Whole Amount, determined as of five business days prior to the date of
such prepayment pursuant to this [SECTION]2.2.
Section 2.3. Notice of Optional Prepayments. The Company will give
notice of any prepayment of the Notes pursuant to [SECTION]2.2 to each
Holder thereof not less than 30 days nor more than 60 days before the date
fixed for such optional prepayment specifying (i) such date, (ii) the
principal amount of the Holder's Notes to be prepaid on such date, (iii)
that a premium may be payable, (iv) the date when such premium will be
calculated, (v) the estimated premium, and (vi) the accrued interest
applicable to the prepayment. Such notice of prepayment shall also certify
all facts, if any, which are conditions precedent to any such prepayment.
Notice of prepayment having been so given, the aggregate principal amount of
the Notes specified in such notice, together with accrued interest thereon
and the premium, if any, payable with respect thereto shall become due and
payable on the prepayment date specified in said notice. Not later than two
business days prior to the prepayment date specified in such notice, the
Company shall provide each Holder written notice of the premium, if any,
payable in connection with such prepayment and, whether or not any premium
is payable, a reasonably detailed computation of the Make-Whole Amount.
Section 2.4. Application of Prepayments. All partial prepayments
pursuant to [SECTION]2.1 or [SECTION]2.2 shall be applied on all outstanding
Notes ratably in accordance with the unpaid principal amounts thereof.
Section 2.5. Direct Payment. Notwithstanding anything to the
contrary contained in this Agreement or the Notes, in the case of any Note
owned by any Holder that is the Purchaser or any other Institutional Holder
which has given written notice to the Company requesting that the provisions
of this [SECTION]2.5 shall apply, the Company will punctually pay when due
the principal thereof, interest thereon and premium, if any, due with
respect to said principal, without any presentment thereof, directly to such
Holder at its address set forth in Schedule I hereto or such other address
as such Holder may from time to time designate in writing to the Company or,
if a bank account with a United States bank is so designated for such
Holder, the Company will make such payments in immediately available funds
to such bank account, marked for attention as indicated, or in such other
manner or to such other account in any United States bank as such Holder may
from time to time direct in writing.
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company represents
and warrants that all representations and warranties set forth in Exhibit B
are true and correct as of the date hereof and are incorporated herein by
reference with the same force and effect as though herein set forth in full.
Section 3.2. Representations of the Purchaser. The Purchaser
represents, and in entering into this Agreement the Company understands,
that the Purchaser is acquiring the Notes for the purpose of investment and
not with a view to the distribution thereof, and that the Purchaser has no
present intention of selling, negotiating or otherwise disposing of the
Notes; it being understood, however, that the disposition of the Purchaser's
property shall at all times be and remain within its control. The Purchaser
further represents that the source of funds to be used by it to purchase the
Notes is an "insurance company general account" within the meaning of
Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued
July 12, 1995) and the purchase of the notes by the Purchaser is eligible
for exemption under, and satisfies the requirements of, PTE 95-60.
SECTION 4. CLOSING CONDITIONS.
Section 4.1. Conditions. Your obligation to purchase the Notes on
the Closing Date and present the 8.4% Preferred Stock for redemption
pursuant to [SECTION]1.3 hereof shall be subject to the performance by the
Company of its agreements hereunder which by the terms hereof are to be
performed at or prior to the time of delivery of the Notes and to the
following further conditions precedent:
(a) Closing Certificate. You shall have received a certificate
dated the Closing Date, signed by the President or the Chief Financial
Officer of the Company, the truth and accuracy of which shall be a
condition to your obligation to purchase the Notes proposed to be sold
to you and to the effect that (i) the representations and warranties
of the Company set forth in Exhibit B hereto are true and correct on
and with respect to the Closing Date, (ii) the Company has performed
all of its obligations hereunder which are to be performed on or prior
to the Closing Date, and (iii) no Default or Event of Default has
occurred and is continuing.
(b) Legal Opinions. You shall have received from Chapman and
Cutler, who are acting as your special counsel in this transaction,
and from Rich, May, Bilodeau & Flaherty, P.C., counsel for the
Company, their respective opinions dated the Closing Date, in form and
substance satisfactory to you, and covering the matters set forth in
Exhibits C and D, respectively, hereto.
(c) Regulatory Approval. You shall have obtained an order
issued by the Massachusetts Department of Public Utilities (the "DPU")
authorizing the issue and sale of the Notes, which authorization shall
not contain any conditions burdensome to the Company and which
authorization shall be final and the statutory appeal period for which
shall have expired.
(d) Private Placement Number. A private placement number for
the Notes shall have been obtained from Standard and Poor's
Corporation.
(e) Rating of the Notes. You shall have received satisfactory
evidence that the Notes have been accorded a current rating of "2" or
better from the National Association of Insurance Commissioners.
(f) Payment of Fees and Disbursements of Special Counsel. The
Company shall have paid the reasonable fees and disbursements of
Chapman and Cutler, special counsel to the Purchaser.
(g) Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Agreement, and
all documents necessary to the consummation thereof, shall be
satisfactory in form and substance to you and your special counsel,
and you shall have received a copy (executed or certified as may be
appropriate) of all legal documents or proceedings taken in connection
with the consummation of said transactions.
Section 4.2. Waiver of Conditions. If on the Closing Date the
Company fails to tender to you the Notes to be issued to you on such date or
if the conditions specified in [SECTION]4.1 have not been fulfilled, you may
thereupon elect to be relieved of all further obligations under this
Agreement. Without limiting the foregoing, if the conditions specified in
[SECTION]4.1 have not been fulfilled, you may waive compliance by the
Company with any such condition to such extent as you may in your sole
discretion determine. Nothing in this [SECTION]4.2 shall operate to relieve
the Company of any of its obligations hereunder or to waive your rights
against the Company.
SECTION 5. COMPANY COVENANTS.
From and after the Closing Date and continuing so long as any amount
remains unpaid on any Note:
Section 5.1. Corporate Existence, Etc. The Company will preserve and
keep in full force and effect, and will cause each Restricted Subsidiary to
preserve and keep in full force and effect, its corporate existence and all
licenses and permits necessary to the proper conduct of its business;
provided, however, that the foregoing shall not prevent any transaction
permitted by [SECTION]5.11.
Section 5.2. Insurance. The Company will maintain, and will cause
each Restricted Subsidiary to maintain, insurance coverage by financially
sound and reputable insurers in such forms and amounts and against such
risks as are customary for corporations of established reputation engaged in
the same or a similar business and owning and operating similar properties.
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with
Laws. The Company will promptly pay and discharge, and will cause each
Restricted Subsidiary promptly to pay and discharge, all lawful taxes,
assessments and governmental charges or levies imposed upon the Company or
such Restricted Subsidiary, respectively, or upon or in respect of all or
any part of the property or business of the Company or such Restricted
Subsidiary, all trade accounts payable in accordance with usual and
customary business terms, and all claims for work, labor or materials, which
if unpaid might become a Lien upon any property of the Company or such
Restricted Subsidiary; provided, however, that the Company or such
Restricted Subsidiary shall not be required to pay any such tax, assessment,
charge, levy, account payable or claim if (i) the validity, applicability or
amount thereof is being contested in good faith by appropriate actions or
proceedings which will prevent the forfeiture or sale of any property of the
Company or such Restricted Subsidiary or any material interference with the
use thereof by the Company or such Restricted Subsidiary, and (ii) the
Company or such Restricted Subsidiary shall set aside on its books, reserves
deemed by it to be adequate with respect thereto. The Company will promptly
comply and will cause each Restricted Subsidiary to comply with all laws,
ordinances or governmental rules and regulations to which it is subject
including, without limitation, the Occupational Safety and Health Act of
1970, as amended, ERISA and all laws, ordinances, governmental rules and
regulations relating to environmental protection in all applicable
jurisdictions, the violation of which could materially and adversely affect
the properties, business, prospects, profits or condition of the Company and
its Restricted Subsidiaries or would result in any Lien not permitted under
[SECTION]5.9.
Section 5.4. Maintenance, Etc. The Company will maintain, preserve
and keep, and will cause each Restricted Subsidiary to maintain, preserve
and keep, its properties which are used or useful in the conduct of its
business (whether owned in fee or a leasehold interest) in good repair and
working order and from time to time will make all necessary repairs,
replacements, renewals and additions so that at all times the efficiency
thereof shall be maintained.
Section 5.5. Nature of Business. Neither the Company nor any
Restricted Subsidiary will engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis, which would
then be engaged in by the Company and its Restricted Subsidiaries would be
substantially changed from the general nature of the business engaged in by
the Company and its Restricted Subsidiaries on the Closing Date. For
purposes of the preceding sentence, the general nature of the business of
the Company and its Restricted Subsidiaries shall not be deemed to be
substantially changed from that engaged in on the Closing Date so long as
not less than 80% of the net sales of the Company and its Restricted
Subsidiaries for any fiscal year ending after the Closing Date shall be
derived from energy operations and related businesses of the Company and its
Restricted Subsidiaries.
Section 5.6. Limitations on Consolidated Funded Debt. The Company
will at all times maintain Consolidated Funded Debt in an aggregate amount
which does not exceed 65% of Consolidated Adjusted Capitalization.
Section 5.7. Limitations on Restricted Subsidiary Debt. (a) The
Company will not permit any Restricted Subsidiary to create, incur or assume
or in any manner become liable in any respect of any Debt, if at the time of
creation, incurrence or assumption thereof or becoming liable therefor and
after giving effect thereto and the application of the proceeds thereof the
aggregate amount of Debt of the Company's Restricted Subsidiaries would
exceed an amount equal to 15% of Consolidated Adjusted Total Capitalization.
(b) Any corporation which becomes a Restricted Subsidiary after the
date hereof shall for all purposes of this [SECTION]5.7 be deemed to have
created, assumed or incurred at the time it becomes a Restricted Subsidiary
all Debt of such corporation existing immediately after it becomes a
Restricted Subsidiary.
Section 5.8. Fixed Charges Coverage Ratio. The Company will keep and
maintain the ratio of Net Income Available for Fixed Charges to Fixed
Charges for each period of four consecutive fiscal quarters at not less than
1.50 to 1.00.
Section 5.9. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create or incur, or suffer to be
incurred or to exist, any Lien on its or their property or assets, whether
now owned or hereafter acquired, or upon any income or profits therefrom, or
transfer any property for the purpose of subjecting the same to the payment
of obligations in priority to the payment of its or their general creditors,
or acquire or agree to acquire, or permit any Restricted Subsidiary to
acquire, any property or assets upon conditional sales agreements or other
title retention devices, except:
(a) Liens for property taxes and assessments or governmental
charges or levies and Liens securing claims or demands of mechanics
and materialmen, provided payment thereof is not at the time required
by [SECTION]5.3;
(b) Liens of or resulting from any judgment or award, the time
for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Company or a Restricted Subsidiary
shall at any time in good faith be prosecuting an appeal or proceeding
for a review and in respect of which a stay of execution pending such
appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in connection with
worker's compensation, unemployment insurance and other like laws,
warehousemen's and attorneys' liens and statutory landlords' liens)
and Liens to secure the performance of bids, tenders or trade
contracts, or to secure statutory obligations, surety or appeal bonds
or other Liens of like general nature incurred in the ordinary course
of business and not in connection with the borrowing of money;
provided in each case, the obligation secured is not overdue or, if
overdue, is being contested in good faith by appropriate actions or
proceedings;
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Company and its Restricted Subsidiaries or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Company and its Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted Subsidiary to
the Company or to another Wholly-owned Restricted Subsidiary;
(f) Liens existing as of the Closing Date and reflected in
Schedule II hereto;
(g) Liens incurred after the Closing Date given to secure the
payment of the purchase price incurred in connection with the
acquisition of fixed assets useful and intended to be used in carrying
on the business of the Company or a Restricted Subsidiary, including
Liens existing on such fixed assets at the time of acquisition thereof
or at the time of acquisition by the Company or a Restricted
Subsidiary of any business entity then owning such fixed assets,
whether or not such existing Liens were given to secure the payment of
the purchase price of the fixed assets to which they attach so long as
they were not incurred, extended or renewed in contemplation of such
acquisition, provided that (i) the Lien shall attach solely to the
fixed assets acquired or purchased, (ii) at the time of acquisition of
such fixed assets, the aggregate amount remaining unpaid on all Debt
secured by Liens on such fixed assets whether or not assumed by the
Company or a Restricted Subsidiary shall not exceed an amount equal to
80% (or 100% in the case of Capitalized Leases) of the lesser of the
total purchase price or fair market value at the time of acquisition
of such fixed assets (as determined in good faith by the Board of
Directors of the Company), (iii) all such Debt shall have been
incurred within the applicable limitations provided in
[SECTION][SECTION]5.6 and 5.7 and (iv) the aggregate Debt secured by
such Liens does not exceed an amount equal to 10% of Consolidated
Adjusted Total Assets; and
(h) Liens other than those described in clauses (a) through (g)
of this [SECTION]5.9 created or incurred after the Closing Date given
to secure Debt of the Company or any Restricted Subsidiary, provided
that after giving effect to such Debt and to the application of the
proceeds thereof (1) all Debt of the Company and its Restricted
Subsidiaries secured by Liens (other than Debt secured by Liens
excepted or permitted by the foregoing clauses (a) through (g) of this
[SECTION]5.9) shall not exceed 10% of Consolidated Adjusted Total
Assets, and (2) all such Debt shall have been incurred within the
applicable limitations provided in [SECTION][SECTION]5.6 and 5.7;
provided, further that no Additional First Mortgage Bonds may be
issued pursuant to this [SECTION]5.9(h) unless on or prior to the
issuance of such Additional First Mortgage Bonds, all outstanding
Notes shall have been converted into First Mortgage Bonds in
compliance with [SECTION]9.4.
Section 5.10. Restricted Payments. The Company will not except as
hereinafter provided:
(a) Declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of capital stock of the
Company);
(b) Directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of its capital stock of any
class or any warrants, rights or options to purchase or acquire any
shares of its capital stock (other than in exchange for or out of the
net cash proceeds to the Company from the substantially concurrent
issue or sale of other shares of capital stock of the Company or
warrants, rights or options to purchase or acquire any shares of its
capital stock); or
(c) Make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital stock;
(such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options and all such
other payments or distributions being herein collectively called "Restricted
Payments"), if after giving effect thereto any Event of Default shall have
occurred and be continuing or Consolidated Adjusted Tangible Net Worth shall
be less than $23,000,000.
The Company will not declare any dividend which constitutes a
Restricted Payment payable more than 60 days after the date of declaration
thereof.
For the purposes of this [SECTION]5.10, the amount of any Restricted
Payment declared, paid or distributed in property shall be deemed to be the
greater of the book value or fair market value (as determined in good faith
by the Board of Directors of the Company) of such property at the time of
the making of the Restricted Payment in question.
Section 5.11. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any Restricted Subsidiary to, (i)
consolidate with or be a party to a merger with any other corporation or
(ii) sell, lease or otherwise dispose of all or any substantial part (as
defined in paragraph (d) of this [SECTION]5.11) of the assets of the Company
and its Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or
into the Company or any Wholly-owned Restricted Subsidiary so long as
in any merger or consolidation involving the Company, the Company
shall be the surviving or continuing corporation;
(2) the Company may consolidate or merge with any other
corporation so long as (i) if the Company shall be the surviving or
continuing corporation, (y) at the time of such consolidation or
merger and after giving effect thereto no Default or Event of Default
shall have occurred and be continuing, and (z) after giving effect to
such consolidation or merger a Restricted Subsidiary would be
permitted to incur at least $1.00 of additional Debt under the
provisions of [SECTION]5.7, and (ii) if the surviving or continuing
corporation is not the Company, (v) the corporation which results from
such merger or consolidation shall be incorporated under the laws of
the United States or any state thereof, have substantially all of its
assets and the assets of its Subsidiaries located within the United
States and be engaged principally in the ownership and operation of a
regulated public utility, (w) such resulting entity shall execute and
deliver to the registered Holders of the Notes an agreement
satisfactory in form and substance to such Holders ratifying and
confirming this Agreement and the Notes and expressly assuming the due
and punctual payment of the principal and premium, if any, and
interest on all of the Notes, according to their tenor, and the due
and punctual performance and observance of all of the covenants in the
Notes and this Agreement to be performed and observed by the Company,
(x) at the time of such consolidation or merger and after giving
effect thereto no Default or Event of Default shall have occurred and
be continuing, (y) after giving effect to such consolidation or merger
the subsidiaries of such surviving corporation would be permitted to
incur at least $1.00 of additional Debt pursuant to [SECTION]5.7, and
(z) the surviving corporation shall deliver to the registered Holders
of the Notes an opinion, satisfactory in form and substance to the
registered Holders of the Notes, of counsel satisfactory to the
registered Holders of the Notes, to the effect that all requirements
of this [SECTION]5.11(a)(2) have been satisfied; and
(3) any Restricted Subsidiary may sell, lease or otherwise
dispose of all or any substantial part of its assets to the Company or
any Wholly-owned Restricted Subsidiary.
(b) The Company will not permit any Restricted Subsidiary to issue or
sell any shares of stock of any class (including as "stock" for the purposes
of this [SECTION]5.11, any warrants, rights or options to purchase or
otherwise acquire stock or other Securities exchangeable for or convertible
into stock) of such Restricted Subsidiary to any Person other than the
Company or a Wholly-owned Restricted Subsidiary, except for the purpose of
qualifying directors, or except in satisfaction of the validly pre-existing
preemptive rights of minority shareholders in connection with the
simultaneous issuance of stock to the Company and/or a Restricted Subsidiary
whereby the Company and/or such Restricted Subsidiary maintain their same
proportionate interest in such Restricted Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any
shares of stock of any Restricted Subsidiary (except to qualify directors)
or any Indebtedness of any Restricted Subsidiary, and will not permit any
Restricted Subsidiary to sell, transfer or otherwise dispose of (except to
the Company or a Wholly-owned Restricted Subsidiary) any shares of stock or
any Indebtedness of any other Restricted Subsidiary, unless:
(1) simultaneously with such sale, transfer, or disposition,
all shares of stock and all Indebtedness of such Restricted Subsidiary
at the time owned by the Company and by every other Restricted
Subsidiary shall be sold, transferred or disposed of as an entirety;
(2) the Board of Directors of the Company shall have
determined, as evidenced by a resolution thereof, that the proposed
sale, transfer or disposition of said shares of stock and Indebtedness
is in the best interests of the Company;
(3) said shares of stock and Indebtedness are sold, transferred
or otherwise disposed of to a Person, for a cash consideration and on
terms reasonably deemed by the Board of Directors to be adequate and
satisfactory;
(4) the Restricted Subsidiary being disposed of shall not have
any continuing investment in the Company or any other Restricted
Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition does not involve a
substantial part (as hereinafter defined) of the assets of the Company
and its Restricted Subsidiaries.
(d) As used in this [SECTION]5.11, a sale, lease or other disposition
of assets shall be deemed to be a "substantial part" of the assets of the
Company and its Restricted Subsidiaries if the book value of such assets,
when added to the book value of all other assets sold, leased or otherwise
disposed of by the Company and its Restricted Subsidiaries (other than in
the ordinary course of business) during the 12-month period ending with the
date of such sale, lease or other disposition, exceeds 10% of Consolidated
Adjusted Total Assets, determined as of the end of the immediately preceding
fiscal year; provided, however, that assets shall not be deemed to be sold,
leased or otherwise disposed of for purposes of the computations required by
the preceding provisions of this paragraph to the extent that the net
proceeds therefrom remaining after satisfying any indebtedness secured by
such assets shall, within 180 days from the date of such sale, lease or
disposition thereof by the Company or its Restricted Subsidiary, as the case
may be, either (i) be used to purchase capital assets for the Company and/or
its Restricted Subsidiaries of a nature similar to and having a value at
least equal to, the assets sold to obtain such proceeds, or (ii) applied to
prepay the Notes or other Funded Debt of the Company or its Restricted
Subsidiaries which is not subordinated to the Notes in right of payment.
Section 5.12. Guaranties. The Company will not, and will not permit
any Restricted Subsidiary to, become or be liable in respect of any Guaranty
except Guaranties by the Company which are limited in amount to a stated
maximum dollar exposure or which constitute Guaranties of obligations
incurred by any Restricted Subsidiary in compliance with the provisions of
this Agreement.
Section 5.13. Repurchase of Notes. Neither the Company nor any
Restricted Subsidiary or Affiliate, directly or indirectly, may repurchase
or make any offer to repurchase any Notes unless an offer has been made to
repurchase Notes, pro rata, from all Holders at the same time and upon the
same terms. In case the Company repurchases or otherwise acquires any
Notes, such Notes shall immediately thereafter be canceled and no Notes
shall be issued in substitution therefor. Without limiting the foregoing,
upon the repurchase or other acquisition of any Notes by the Company, any
Restricted Subsidiary or any Affiliate (or upon the agreement of Company,
any Restricted Subsidiary or any Affiliate to purchase or otherwise acquire
any Notes), such Notes shall no longer be outstanding for purposes of any
section of this Agreement relating to the taking by the Holders of any
actions with respect hereto, including, without limitation, [SECTION]6.3,
[SECTION]6.4 and [SECTION]7.1.
Section 5.14. Transactions with Affiliates. The Company will not,
and will not permit any Restricted Subsidiary to, enter into or be a party
to any transaction or arrangement with any Affiliate (including, without
limitation, the purchase from, sale to or exchange of property with, or the
rendering of any service by or for, any Affiliate), except in the ordinary
course of and pursuant to the reasonable requirements of the Company's or
such Restricted Subsidiary's business and upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than would
obtain in a comparable arm's-length transaction with a Person other than an
Affiliate.
Section 5.15. Termination of Pension Plans. The Company will not and
will not permit any Subsidiary to withdraw from any Multiemployer Plan or
permit any employee benefit plan maintained by it to be terminated if such
withdrawal or termination could result in withdrawal liability (as described
in Part 1 of Subtitle E of Title IV of ERISA) or the imposition of a Lien on
any property of the Company or any Subsidiary pursuant to Section 4068 of
ERISA.
Section 5.16. Designation of Restricted Subsidiaries. The Company
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary by
giving written notice within 30 days after such designation to each Holder
that the Board of Directors of the Company has made such designation,
provided, however, that no Unrestricted Subsidiary may be designated a
Restricted Subsidiary unless, at the time of such action and after giving
effect thereto, (i) no Default or Event of Default shall have occurred and
be continuing, and (ii) the Restricted Subsidiaries would be permitted to
incur at least $1.00 of additional Debt under the provisions of
[SECTION]5.7(a). A Restricted Subsidiary may not be designated or otherwise
become an Unrestricted Subsidiary.
Section 5.17. Reports and Rights of Inspection. The Company will
keep, and will cause each Restricted Subsidiary to keep, proper books of
record and account in which full and correct entries will be made of all
dealings or transactions of, or in relation to, the business and affairs of
the Company or such Restricted Subsidiary, in accordance with GAAP
consistently applied (except for changes disclosed in the financial
statements furnished to the Holders pursuant to this [SECTION]5.17 and
concurred in by the independent public accountants referred to in
[SECTION]5.17(b) hereof), and will furnish to each Holder (in duplicate if
so specified below or otherwise requested):
(a) Quarterly Statements. As soon as available and in any
event within 45 days after the end of each quarterly fiscal period
(except the last) of each fiscal year, copies of:
(1) consolidated balance sheets of the Company and its
Restricted Subsidiaries as of the close of such quarterly fiscal
period, setting forth in comparative form the consolidated
figures for the fiscal year then most recently ended,
(2) consolidated statements of income of the Company and
its Restricted Subsidiaries for such quarterly fiscal period and
for the portion of the fiscal year ending with such quarterly
fiscal period, in each case setting forth in comparative form
the consolidated figures for the corresponding periods of the
preceding fiscal year, and
(3) consolidated statements of cash flows of the Company
and its Restricted Subsidiaries for the portion of the fiscal
year ending with such quarterly fiscal period, setting forth in
comparative form the consolidated figures for the corresponding
period of the preceding fiscal year,
all in reasonable detail and certified as complete and correct by an
authorized financial officer of the Company; provided, however, that so
long as the Company has no Unrestricted Subsidiaries and so long as such
delivery is made within the time requirement set forth above in this
paragraph (a), delivery pursuant to paragraph (d) below of copies of the
Quarterly Report on Form 10-Q of the Company for such quarterly period
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this paragraph (a);
(b) Annual Statements. As soon as available and in any event
within 90 days after the close of each fiscal year of the Company,
copies of:
(1) consolidated balance sheets of the Company and its
Restricted Subsidiaries as of the close of such fiscal year, and
(2) consolidated statements of income and retained
earnings and cash flows of the Company and its Restricted
Subsidiaries for such fiscal year,
in each case setting forth in comparative form the consolidated
figures for the preceding fiscal year, all in reasonable detail and
accompanied by a report thereon of Deloitte & Touche LLP or another
firm of independent public accountants of recognized national standing
selected by the Company to the effect that the consolidated financial
statements present fairly, in all material respects, the consolidated
financial position of the Company and its Restricted Subsidiaries as
of the end of the fiscal year being reported on and the consolidated
results of the operations and cash flows for said year in conformity
with GAAP and that the examination of such accountants in connection
with such financial statements has been conducted in accordance with
generally accepted auditing standards and included such tests of the
accounting records and such other auditing procedures as said
accountants deemed necessary in the circumstances; provided, however,
that so long as the Company has no Unrestricted Subsidiaries and so
long as such delivery is made within the time requirement set forth
above in this paragraph (b), delivery pursuant to paragraph (d) below
of copies of the Annual Report on Form 10-K of the Company for such
fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Securities Exchange Act) prepared in accordance with the requirements
therefor filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this paragraph (b);
(c) Audit Reports. Promptly upon receipt thereof, one copy of
each interim or special audit made by independent accountants of the
books of the Company or any Restricted Subsidiary and any management
letter received from such accountants in connection with such interim
or special audits;
(d) SEC and Other Reports. Promptly upon their becoming
available, one copy of each financial statement, report, notice or
proxy statement sent by the Company to stockholders generally and of
each regular or periodic report, and any registration statement or
prospectus filed by the Company or any Subsidiary with any securities
exchange or the Securities and Exchange Commission or any successor
agency, and copies of any orders in any proceedings to which the
Company or any of its Subsidiaries is a party, issued by any
governmental agency, Federal or state, having jurisdiction over the
Company or any of its Subsidiaries;
(e) ERISA Reports. Promptly upon the occurrence thereof,
written notice of (i) a Reportable Event with respect to any Plan;
(ii) the institution of any steps by the Company, any ERISA Affiliate,
the PBGC or any other person to terminate any Plan; (iii) the
institution of any steps by the Company or any ERISA Affiliate to
withdraw from any Plan; (iv) a non-exempt "prohibited transaction"
within the meaning of Section 406 of ERISA in connection with any
Plan; (v) any material increase in the contingent liability of the
Company or any Restricted Subsidiary with respect to any post-
retirement welfare liability; or (vi) the taking of any action by, or
the threatening of the taking of any action by, the Internal Revenue
Service, the Department of Labor or the PBGC with respect to any of
the foregoing;
(f) Officer's Certificates. Within the periods provided in
paragraphs (a) and (b) above, a certificate of an authorized financial
officer of the Company stating that such officer has reviewed the
provisions of this Agreement and setting forth: (i) the information
and computations (in sufficient detail) required in order to establish
whether the Company was in compliance with the requirements of
[SECTION]5.6 through [SECTION]5.15 at the end of the period covered by
the financial statements then being furnished, and (ii) whether there
existed as of the date of such financial statements and whether, to
the best of such officer's knowledge, there exists on the date of the
certificate or existed at any time during the period covered by such
financial statements any Default or Event of Default and, if any such
condition or event exists on the date of the certificate, specifying
the nature and period of existence thereof and the action the Company
is taking and proposes to take with respect thereto;
(g) Accountant's Certificates. Within the period provided in
paragraph (b) above, a certificate of the accountants who render an
opinion with respect to such financial statements, stating that they
have reviewed this Agreement and stating further whether, in making
their audit, such accountants have become aware of any Default or
Event of Default under any of the terms or provisions of this
Agreement insofar as any such terms or provisions pertain to or
involve accounting matters or determinations, and if any such
condition or event then exists, specifying the nature and period of
existence thereof;
(h) Unrestricted Subsidiaries. Within the respective periods
provided in paragraphs (a) and (b) above, financial statements of the
character and for the dates and periods as in said paragraphs (a) and
(b) provided covering each Unrestricted Subsidiary (or groups of
Unrestricted Subsidiaries on a consolidated basis); and
(i) Requested Information. With reasonable promptness, such
other data and information as such Institutional Holder may reasonably
request.
Without limiting the foregoing, the Company will permit each Institutional
Holder (or such Persons as such Institutional Holder may designate), to
visit and inspect, under the Company's guidance, any of the properties of
the Company or any Restricted Subsidiary, to examine all of their books of
account, records, reports and other papers, to make copies and extracts
therefrom and to discuss their respective affairs, finances and accounts
with their respective officers, employees, and independent public
accountants (and by this provision the Company authorizes said accountants
to discuss with any Institutional Holder the finances and affairs of the
Company and its Restricted Subsidiaries) all at such reasonable times and as
often as may be reasonably requested. The Company shall not be required to
pay or reimburse any Holder for expenses which such Holder may incur in
connection with any such visitation or inspection, except that if such
visitation or inspection is made during any period when a Default or an
Event of Default shall have occurred and be continuing, the Company agrees
to reimburse such Holder for all such expenses promptly upon demand.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the following
shall constitute an "Event of Default" as such term is used herein:
(a) Default shall occur in the payment of interest on any Note
when the same shall have become due and such default shall continue
for more than five days; or
(b) Default shall occur in the making of any required
prepayment on any of the Notes as provided in [SECTION]2.1; or
(c) Default shall occur in the making of any other payment of
the principal of any Note or premium, if any, thereon at the expressed
or any accelerated maturity date or at any date fixed for prepayment;
or
(d) Default shall be made in the payment when due (whether by
lapse of time, by declaration, by call for redemption or otherwise) of
the principal of or interest on any Debt (other than the Notes) of the
Company or any Restricted Subsidiary in an aggregate amount exceeding
$1,000,000 and such default shall continue beyond the period of grace,
if any, allowed with respect thereto; or
(e) Default or the happening of any event shall occur under any
indenture, agreement or other instrument under which any Debt of the
Company or any Restricted Subsidiary may be issued and such default or
event shall continue for a period of time sufficient to permit the
acceleration of the maturity of such Debt of the Company or any
Restricted Subsidiary outstanding thereunder in an aggregate amount
exceeding $1,000,000; or
(f) Default shall occur in the observance or performance of any
covenant or agreement contained in [SECTION]5.6 through [SECTION]5.11;
or
(g) Default shall occur in the observance or performance of any
other provision of this Agreement which is not remedied within 30 days
after the earlier of (i) the day on which the Company first obtains
knowledge of such default, or (ii) the day on which written notice
thereof is given to the Company by any Holder; or
(h) Any representation or warranty made by the Company herein,
or made by the Company in any statement or certificate furnished by
the Company in connection with the consummation of the issuance and
delivery of the Notes or furnished by the Company pursuant hereto, is
untrue in any material respect as of the date of the issuance or
making thereof; or
(i) Final judgment or judgments for the payment of money
aggregating in excess of $100,000 is or are outstanding against the
Company or any Restricted Subsidiary or against any property or assets
of either and any one of such judgments has remained unpaid,
unvacated, unbonded or unstayed by appeal or otherwise for a period of
30 days from the date of its entry; or
(j) A custodian, liquidator, trustee or receiver is appointed
for the Company or any Restricted Subsidiary or for the major part of
the property of either and is not discharged within 30 days after such
appointment; or
(k) The Company or any Restricted Subsidiary becomes insolvent
or bankrupt, is generally not paying its debts as they become due or
makes an assignment for the benefit of creditors, or the Company or
any Restricted Subsidiary applies for or consents to the appointment
of a custodian, liquidator, trustee or receiver for the Company or
such Restricted Subsidiary or for the major part of the property of
either; or
(l) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or
against the Company or any Restricted Subsidiary and, if instituted
against the Company or any Restricted Subsidiary, are consented to or
are not dismissed within 60 days after such institution.
Section 6.2. Notice to Holders. When any Event of Default described
in the foregoing [SECTION]6.1 has occurred, or if any Holder or the holder
of any other evidence of Funded Debt or Current Debt of the Company gives
any notice or takes any other action with respect to a claimed default, the
Company agrees to give notice within three business days of such event to
all Holders.
Section 6.3. Acceleration of Maturities. When any Event of Default
described in paragraph (a), (b) or (c) of [SECTION]6.1 has happened and is
continuing, any Holder may, and when any Event of Default described in
paragraphs (d) through (j), inclusive, of said [SECTION]6.1 has happened and
is continuing, any Holder or Holders holding 25% or more of the principal
amount of Notes at the time outstanding may, by notice to the Company,
declare the entire principal and all interest accrued on all Notes to be,
and all Notes shall thereupon become, forthwith due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived. When any Event of Default described in paragraph
(k) or (l) of [SECTION]6.1 has occurred, then all outstanding Notes shall
immediately become due and payable without presentment, demand or notice of
any kind. Upon the Notes becoming due and payable as a result of any Event
of Default as aforesaid, the Company will forthwith pay to the Holders, the
entire principal and interest accrued on the Notes and, to the extent not
prohibited by applicable law, an amount as liquidated damages for the loss
of the bargain evidenced hereby (and not as a penalty) equal to the Make-
Whole Amount, determined as of the date on which the Notes shall so become
due and payable. No course of dealing on the part of the Holder or Holders
nor any delay or failure on the part of any Holder to exercise any right
shall operate as a waiver of such right or otherwise prejudice such Holder's
rights, powers and remedies. The Company further agrees, to the extent
permitted by law, to pay to the Holder or Holders all reasonable costs and
expenses incurred by them in the collection of any Notes upon any default
hereunder or thereon, including reasonable compensation to such Holder's or
Holders' attorneys for all services rendered in connection therewith.
Section 6.4. Rescission of Acceleration. The provisions of
[SECTION]6.3 are subject to the condition that if the principal of and
accrued interest on all or any outstanding Notes have been declared
immediately due and payable by reason of the occurrence of any Event of
Default described in paragraphs (a) through (j), inclusive, of [SECTION]6.1,
the Holders holding 66-2/3% in aggregate principal amount of the Notes then
outstanding may, by written instrument filed with the Company, rescind and
annul such declaration and the consequences thereof, provided that at the
time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment of
any monies due pursuant to the Notes or this Agreement;
(b) all arrears of interest upon all the Notes and all other
sums payable under the Notes and under this Agreement (except any
principal, interest or premium on the Notes which has become due and
payable solely by reason of such declaration under [SECTION]6.3) shall
have been duly paid; and
(c) each and every other Default and Event of Default shall
have been made good, cured or waived pursuant to [SECTION]7.1;
and provided further, that no such rescission and annulment shall extend to
or affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.
Section 7.1. Consent Required. Any term, covenant, agreement or
condition of this Agreement may, with the consent of the Company, be amended
or compliance therewith may be waived (either generally or in a particular
instance and either retroactively or prospectively), if the Company shall
have obtained the consent in writing of the Holders holding at least 66-2/3%
in aggregate principal amount of outstanding Notes; provided, however, that
without the written consent of all of the Holders, no such amendment or
waiver shall be effective (i) which will change the time of payment
(including any prepayment required by [SECTION]2.1) of the principal of or
the interest on any Note or change the principal amount thereof or change
the rate of interest thereon, or (ii) which will change any of the
provisions with respect to optional prepayments, or (iii) which will change
the percentage of Holders required to consent to any such amendment or
waiver of any of the provisions of this [SECTION]7 or [SECTION]6.
Section 7.2. Solicitation of Holders. So long as there are any Notes
outstanding, the Company will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement or the Notes unless each Holder (irrespective of the amount of
Notes then owned by it) shall be informed thereof by the Company and shall
be afforded the opportunity of considering the same and shall be supplied by
the Company with sufficient information to enable it to make an informed
decision with respect thereto. The Company will not, directly or
indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any Holder as
consideration for or as an inducement to entering into by any Holder of any
waiver or amendment of any of the terms and provisions of this Agreement or
the Notes unless such remuneration is concurrently offered, on the same
terms, ratably to all Holders.
Section 7.3. Effect of Amendment or Waiver. Any such amendment or
waiver shall apply equally to all of the Holders and shall be binding upon
them, upon each future Holder and upon the Company, whether or not any Note
shall have been marked to indicate such amendment or waiver. No such
amendment or waiver shall extend to or affect any obligation not expressly
amended or waived or impair any right consequent thereon.
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS.
Section 8.1. Definitions. Unless the context otherwise requires, the
terms hereinafter set forth when used herein shall have the following
meanings and the following definitions shall be equally applicable to both
the singular and plural forms of any of the terms herein defined:
"Additional First Mortgage Bonds" shall mean First Mortgage Bonds
issued after the Closing Date other than (i) bonds issued in exchange for,
in connection with a transfer of the ownership of, or as a replacement for
lost, mutilated, stolen or destroyed, First Mortgage Bonds which are
outstanding on the Closing Date and (ii) First Mortgage Bonds issued to the
Holders of the Notes upon conversion of the Notes pursuant to [SECTION]9.4.
"Additional Funded Debt" shall mean the amount, if any, by which (i)
the lowest average of the highest balances of Consolidated Current Debt
outstanding on any three consecutive Current Debt Test Dates during the 12-
month period immediately preceding any date of determination exceeds (ii)
the Current Debt Basket Amount for such date.
"Affiliate" shall mean any Person (other than a Restricted Subsidiary)
(i) which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, the Company,
(ii) which beneficially owns or holds 5% or more of any class of the Voting
Stock of the Company or (iii) 5% or more of the Voting Stock (or in the case
of a Person which is not a corporation, 5% or more of the equity interest)
of which is beneficially owned or held by the Company or a Subsidiary. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agreement" shall mean this Note Agreement.
"Capitalized Lease" shall mean any lease the obligation for Rentals
with respect to which is required to be capitalized on a consolidated
balance sheet of the lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean The Berkshire Gas Company, a Massachusetts
corporation, and any Person who succeeds to all, or substantially all, of
the assets and business of The Berkshire Gas Company.
"Consolidated Adjusted Tangible Net Worth" shall mean Consolidated
Tangible Net Worth less Restricted Investments.
"Consolidated Adjusted Total Assets" shall mean (a) total assets of
the Company and its Restricted Subsidiaries determined on a consolidated
basis in accordance with GAAP, less (b) Restricted Investments.
"Consolidated Adjusted Capitalization" shall mean (a) the sum of (i)
Consolidated Tangible Net Worth plus (ii) Consolidated Funded Debt, less (b)
Restricted Investments.
"Consolidated Adjusted Total Capitalization" shall mean (a) the sum of
(i) Consolidated Tangible Net Worth plus (ii) Consolidated Total Debt, less
(b) Restricted Investments.
"Consolidated Current Debt" shall mean Current Debt of the Company and
its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Funded Debt" shall mean Funded Debt of the Company and
its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP plus Additional Funded Debt.
"Consolidated Net Income" for any period shall mean the gross revenues
of the Company and its Restricted Subsidiaries for such period less all
expenses and other proper charges (including taxes on income), determined on
a consolidated basis after eliminating earnings or losses attributable to
outstanding Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such excluded
gains and any tax deductions or credits on account of any such
excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Restricted Subsidiary
accrued prior to the date it became a Restricted Subsidiary;
(d) net earnings and losses of any corporation (other than a
Restricted Subsidiary), substantially all the assets of which have
been acquired in any manner by the Company or any Restricted
Subsidiary, realized by such corporation prior to the date of such
acquisition;
(e) net earnings and losses of any corporation (other than a
Restricted Subsidiary) with which the Company or a Restricted
Subsidiary shall have consolidated or which shall have merged into or
with the Company or a Restricted Subsidiary prior to the date of such
consolidation or merger;
(f) net earnings of any business entity (other than a
Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest unless such net earnings shall
have actually been received by the Company or such Restricted
Subsidiary in the form of cash distributions;
(g) any portion of the net earnings of any Restricted
Subsidiary which for any reason is unavailable for payment of
dividends to the Company or any other Restricted Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the
amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any Securities of
the Company or any Restricted Subsidiary; and
(k) any reversal of any contingency reserve, except to the
extent that provision for such contingency reserve shall have been
made from income arising during such period.
"Consolidated Tangible Net Worth" shall mean as of the date of any
determination thereof the total amount of all Tangible Assets of the Company
and its Restricted Subsidiaries after deducting therefrom all items which,
in accordance with GAAP, would be included on the liability and equity side
of a consolidated balance sheet except capital stock of any class, surplus
and retained earnings.
"Consolidated Total Debt" shall mean the sum of Consolidated Funded
Debt plus Consolidated Current Debt.
"Current Debt" of any Person shall mean as of the date of any
determination thereof (i) all Indebtedness of such Person for borrowed money
other than Funded Debt of such Person and (ii) Guaranties by such Person of
Current Debt of others.
"Current Debt Basket Amount" shall mean for any date the amount
specified as follows for the fiscal year in which such date shall occur:
(i) for the fiscal years ending on or before June 30, 1998, $5,000,000, (ii)
for the fiscal year ending June 30, 1999, $4,000,000, (iii) for the fiscal
year ending June 30, 2000, $3,000,000, (iv) for the fiscal year ending June
30, 2001, $2,000,000, (v) for the fiscal year ending June 30, 2002,
$1,000,000, and (vi) for the fiscal year ending June 30, 2003 and each
fiscal year occurring thereafter, $-0-.
"Current Debt Test Date" shall mean the first and fifteenth days of
each month, provided that, if any such day is not a business day, then the
Current Debt Test Date shall be the business day which shall first occur
thereafter.
"Debt" of any Person shall mean all Funded Debt and all Current Debt
of such Person.
"Default" shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute
an Event of Default.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with
the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to also refer to any
successor sections.
"ERISA Affiliate" shall mean any corporation, trade or business that
is, along with the Company, a member of a controlled group of corporations
or a controlled group of trades or businesses, as described in section
414(b) and 414(c), respectively, of the Code or Section 4001 of ERISA.
"Event of Default" shall have the meaning set forth in [SECTION]6.1.
"First Mortgage Bonds" shall mean any Bonds issued under the First
Mortgage Bond Indenture.
"First Mortgage Bond Indenture" shall mean that certain First Mortgage
Indenture and Deed of Trust dated as of July 1, 1954 between the Company
(f/k/a Pittsfield Coal Gas Company) and Chemical Bank & Trust Company, as
Trustee, as such First Mortgage Indenture and Deed of Trust has heretofore
been and may hereafter be amended, modified or supplemented.
"Fixed Charges" for any period shall mean on a consolidated basis the
sum of (i) all Rentals (other than Rentals on Capitalized Leases) payable
during such period by the Company and its Restricted Subsidiaries, and (ii)
all Interest Charges on all Debt (including the interest component of
Rentals on Capitalized Leases) of the Company and its Restricted
Subsidiaries.
"Funded Debt" of any Person shall mean (i) all Indebtedness of such
Person for borrowed money or which has been incurred in connection with the
acquisition of assets in each case having a final maturity of one or more
than one year from the date of origin thereof (or which is renewable or
extendible at the option of the obligor for a period or periods more than
one year from the date of origin), including all payments in respect thereof
that are required to be made within one year from the date of any
determination of Funded Debt, whether or not the obligation to make such
payments shall constitute a current liability of the obligor under GAAP,
(ii) all Capitalized Rentals of such Person, and (iii) all Guaranties by
such Person of Funded Debt of others.
"GAAP" shall mean generally accepted accounting principles at the time
in the United States.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing, or in effect
guaranteeing, any Indebtedness, dividend or other obligation of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to purchase such
Indebtedness or obligation or any property or assets constituting security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of
such Indebtedness or obligation, (y) to maintain working capital or other
balance sheet condition or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness or obligation, (iii) to lease
property or to purchase Securities or other property or services primarily
for the purpose of assuring the owner of such Indebtedness or obligation of
the ability of the primary obligor to make payment of the Indebtedness or
obligation, or (iv) otherwise to assure the owner of the Indebtedness or
obligation of the primary obligor against loss in respect thereof. For the
purposes of all computations made under this Agreement, a Guaranty in
respect of any Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such Indebtedness for borrowed
money which has been guaranteed, and a Guaranty in respect of any other
obligation or liability or any dividend shall be deemed to be Indebtedness
equal to the maximum aggregate amount of such obligation, liability or
dividend.
"Holder" shall mean any Person which is, at the time of reference, the
registered Holder of any Note.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all (i) obligations of such Person for borrowed money or which has
been incurred in connection with the acquisition of property or assets, (ii)
obligations secured by any Lien upon property or assets owned by such
Person, even though such Person has not assumed or become liable for the
payment of such obligations, (iii) obligations created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, notwithstanding the fact that the rights and
remedies of the seller, lender or lessor under such agreement in the event
of default are limited to repossession or sale of property, (iv) Capitalized
Rentals and (v) Guaranties of obligations of others of the character
referred to in this definition.
"Institutional Holder" shall mean any Holder which is the Purchaser or
an insurance company, bank, savings and loan association, trust company,
investment company, charitable foundation, employee benefit plan (as defined
in ERISA) or other institutional investor or financial institution and, for
purposes of the direct payment provisions of this Agreement, shall include
any nominee of any such Holder.
"Interest Charges" for any period shall mean all interest and all
amortization of debt discount and expense on any particular Indebtedness for
which such calculations are being made.
"Investments" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by acquisition
of shares of capital stock, indebtedness or other obligations or Securities
or by loan, advance, capital contribution or otherwise; provided, however,
that "Investments" shall not mean or include routine investments in property
to be used or consumed in the ordinary course of business.
"Lien" shall mean any interest in property securing an obligation owed
to, or a claim by, a Person other than the owner of the property, whether
such interest is based on the common law, statute or contract, and including
but not limited to the security interest lien arising from a mortgage,
encumbrance, pledge, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. The term "Lien" shall
include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances (including, with respect to stock, stockholder agreements,
voting trust agreements, buy-back agreements and all similar arrangements)
affecting property. For the purposes of this Agreement, the Company or a
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, Capitalized Lease
or other arrangement pursuant to which title to the property has been
retained by or vested in some other Person for security purposes and such
retention or vesting shall constitute a Lien.
"Make-Whole Amount" shall mean in connection with any prepayment or
acceleration of the Notes the excess, if any, of (i) the aggregate present
value as of the date of such prepayment of each dollar of principal being
prepaid (taking into account the application of such prepayment required by
[SECTION]2.1) and the amount of interest (exclusive of interest accrued to
the date of prepayment) that would have been payable in respect of such
dollar if such prepayment had not been made, determined by discounting such
amounts at the Reinvestment Rate from the respective dates on which they
would have been payable, over (ii) 100% of the principal amount of the
outstanding Notes being prepaid. If the Reinvestment Rate is equal to or
higher than 7.80%, the Make-Whole Amount shall be zero. For purposes of any
determination of the Make-Whole Amount:
"Reinvestment Rate" shall mean 0.50%, plus the arithmetic mean
of the yields for the two columns under the heading "Week Ending"
published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal being prepaid (taking into account the application of such
prepayment required by [SECTION]2.1). If no maturity exactly
corresponds to such Weighted Average Life to Maturity, yields for the
published maturity next longer than the Weighted Average Life to
Maturity and for the published maturity next shorter than the Weighted
Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated from such yields on a straight-line basis, rounding in
each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole
Amount shall be used. "Statistical Release" shall mean the then most
recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder,
then such other reasonably comparable index which shall be designated
by the Holders holding 66-2/3% in aggregate principal amount of the
outstanding Notes.
"Weighted Average Life to Maturity" of the principal amount of
the Notes being prepaid shall mean, as of the time of any
determination thereof, the number of years obtained by dividing the
then Remaining Dollar-Years of such principal by the aggregate amount
of such principal. The term "Remaining Dollar-Years" of such
principal shall mean the amount obtained by (i) multiplying (x) the
remainder of (1) the amount of principal that would have become due on
each scheduled payment date if such prepayment had not been made, less
(2) the amount of principal on the Notes scheduled to become due on
such date after giving effect to such prepayment and the application
thereof in accordance with the provisions of [SECTION]2.1, by (y) the
number of years (calculated to the nearest one-twelfth) which will
elapse between the date of determination and such scheduled payment
date, and (ii) totaling the products obtained in (i).
"Minority Interests" shall mean any shares of stock of any class of a
Restricted Subsidiary (other than directors' qualifying shares as required
by law) that are not owned by the Company and/or one or more of its
Restricted Subsidiaries. Minority Interests shall be valued by valuing
Minority Interests constituting preferred stock at the voluntary or
involuntary liquidating value of such preferred stock, whichever is greater,
and by valuing Minority Interests constituting common stock at the book
value of capital and surplus applicable thereto adjusted, if necessary, to
reflect any changes from the book value of such common stock required by the
foregoing method of valuing Minority Interests in preferred stock.
"Multiemployer Plan" shall have the same meaning as in ERISA.
"Net Income Available for Fixed Charges" for any period shall mean
the sum of (i) Consolidated Net Income during such period plus (to the
extent deducted in determining Consolidated Net Income), (ii) all provisions
for any Federal, state or other income taxes made by the Company and its
Restricted Subsidiaries during such period and (iii) Fixed Charges of the
Company and its Restricted Subsidiaries during such period.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political
subdivision thereof.
"Plan" means a "pension plan," as such term is defined in ERISA,
established or maintained by the Company or any ERISA Affiliate or as to
which the Company or any ERISA Affiliate contributed or is a member or
otherwise may have any liability.
"Purchaser" shall have the meaning set forth in [SECTION]1.1.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee
is obligated to make to the lessor on termination of the lease or surrender
of the property) payable by the Company or a Restricted Subsidiary, as
lessee or sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Company or a Restricted
Subsidiary (whether or not designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes and similar charges.
Fixed rents under any so-called "percentage leases" shall be computed solely
on the basis of the minimum rents, if any, required to be paid by the lessee
regardless of sales volume or gross revenues.
"Reportable Event" shall have the same meaning as in ERISA.
"Restricted Investments" shall mean all Investments existing on or
made after the Closing Date other than:
(a) Investments of the Company and its Restricted Subsidiaries
in and to Restricted Subsidiaries. including any Investment in any
Person which, after giving effect to such Investment, will become a
Restricted Subsidiary;
(b) Investments in commercial paper maturing in 270 days or
less from the date of issuance which, at the time of acquisition by
the Company or any Restricted Subsidiary, is accorded the highest
rating by Standard & Poor's Ratings Group, Moody's Investors Service,
Inc. or other nationally recognized credit rating agency of similar
standing;
(c) Investments in direct obligations of the United States of
America or any agency or instrumentality of the United States of
America, the payment or guarantee of which constitutes a full faith
and credit obligation of the United States of America, in either case,
maturing in twelve months or less from the date of acquisition
thereof;
(d) Investments in certificates of deposit maturing within one
year from the date of issuance thereof, issued by a bank or trust
company organized under the laws of the United States or any state
thereof, having capital, surplus and undivided profits aggregating at
least $100,000,000 and whose long-term certificates of deposit are, at
the time of acquisition thereof by the Company or a Restricted
Subsidiary, rated AA or better by Standard & Poor's Ratings Group or
Aa or better by Moody's Investors Service, Inc.;
(e) loans or advances in the usual and ordinary course of
business to officers, directors and employees for expenses (including
moving expenses related to a transfer) incidental to carrying on the
business of the Company or any Restricted Subsidiary;
(f) receivables arising from the sale of goods and services in
the ordinary course of business of the Company and its Restricted
Subsidiaries; and
(g) Investments in addition to those described in the foregoing
paragraphs (a) through (f) hereof, provided that the aggregate amount
of all Investments made pursuant to the provisions of this paragraph
(g) shall not exceed an amount equal to 5% of Common Shareholders'
Equity.
As used herein, "Common Shareholders' Equity" shall mean at any time
the sum of the common stock, surplus and retained earnings of the Company as
of the end of the most recent fiscal quarter as determined in accordance
with GAAP.
In valuing any Investments, such Investments shall be taken at the
original cost thereof, without allowance for any subsequent write-offs or
appreciation or depreciation therein, but less any amount repaid or
recovered on account of capital or principal.
"Restricted Subsidiary" shall mean any Subsidiary (a) which is
organized under the laws of the United States or any State thereof; (b)
which conducts substantially all of its business and has substantially all
of its assets within the United States; (c) of which more than 80% (by
number of votes) of the Voting Stock is beneficially owned, directly or
indirectly, by the Company; and (d) which has been designated by the Board
of Directors of the Company as a Restricted Subsidiary in accordance with
[SECTION]5.16.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
The term "subsidiary" shall mean as to any particular parent
corporation any corporation of which more than 50% (by number of votes) of
the Voting Stock shall be beneficially owned, directly or indirectly, by
such parent corporation. The term "Subsidiary" shall mean a subsidiary of
the Company.
"Tangible Assets" shall mean as of the date of any determination
thereof the total amount of all assets of the Company and its Restricted
Subsidiaries (less depreciation, depletion and other properly deductible
valuation reserves) after deducting good will, patents, trade names, trade
marks, copyrights, franchises, experimental expense, organization expense,
unamortized debt discount and expense, deferred assets other than prepaid
insurance and prepaid taxes, the excess of cost of shares acquired over book
value of related assets and such other assets as are properly classified as
"intangible assets" in accordance with GAAP.
"Unrestricted Subsidiary" shall mean any Subsidiary which is not a
Restricted Subsidiary.
"Voting Stock" shall mean Securities of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing
similar functions).
"Wholly-owned" when used in connection with any Subsidiary shall mean
a Subsidiary of which all of the issued and outstanding shares of stock
(except shares required as directors' qualifying shares) and all Funded Debt
and Current Debt shall be owned by the Company and/or one or more of its
Wholly-owned Subsidiaries.
Section 8.2. Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required
to be made for the purposes of this Agreement, the same shall be done in
accordance with GAAP, to the extent applicable, except where such principles
are inconsistent with the requirements of this Agreement.
Section 8.3. Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether the
action in question is taken directly or indirectly by such Person.
SECTION 9. MISCELLANEOUS.
Section 9.1. Registered Notes. The Company shall cause to be kept at
its principal office a register for the registration and transfer of the
Notes (hereinafter called the "Note Register"), and the Company will
register or transfer or cause to be registered or transferred as hereinafter
provided any Note issued pursuant to this Agreement.
At any time and from time to time any Holder of a Note which has been
duly registered as hereinabove provided may transfer such Note upon
surrender thereof at the principal office of the Company duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
or its attorney duly authorized in writing.
The Person in whose name any registered Note shall be registered shall
be deemed and treated as the owner and Holder thereof and a holder for all
purposes of this Agreement. Payment of or on account of the principal,
premium, if any, and interest on any registered Note shall be made to or
upon the written order of such Holder.
Section 9.2. Exchange of Notes. At any time and from time to time,
upon not less than ten days' notice to that effect given by the Holder of
any Note initially delivered or of any Note substituted therefor pursuant to
[SECTION]9.1, this [SECTION]9.2 or [SECTION]9.3, and, upon surrender of such
Note at its office, the Company will deliver in exchange therefor, without
expense to such Holder, except as set forth below, a Note for the same
aggregate principal amount as the then unpaid principal amount of the Note
so surrendered, or Notes in the denomination of $100,000 or any amount in
excess thereof as such Holder shall specify, dated as of the date to which
interest has been paid on the Note so surrendered or, if such surrender is
prior to the payment of any interest thereon, then dated as of the date of
issue, registered in the name of such Person or Persons as may be designated
by such Holder, and otherwise of the same form and tenor as the Notes so
surrendered for exchange. The Company may require the payment of a sum
sufficient to cover any stamp tax or governmental charge imposed upon such
exchange or transfer.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
any Note, and in the case of any such loss, theft or destruction upon
delivery of a bond of indemnity in such form and amount as shall be
reasonably satisfactory to the Company, or in the event of such mutilation
upon surrender and cancellation of the Note, the Company will make and
deliver without expense to the Holder thereof, a new Note, of like tenor, in
lieu of such lost, stolen, destroyed or mutilated Note. If an Institutional
Holder is the owner of any such lost, stolen or destroyed Note, then the
affidavit of an authorized officer of such owner, setting forth the fact of
loss, theft or destruction and of its ownership of such Note at the time of
such loss, theft or destruction shall be accepted as satisfactory evidence
thereof and no further indemnity shall be required as a condition to the
execution and delivery of a new Note other than the written agreement of
such owner to indemnify the Company.
Section 9.4. Conversion of Notes to First Mortgage Bonds. (a) The
Company may issue Additional First Mortgage Bonds provided that (i) the
Additional First Mortgage Bonds are issued in compliance with the following
provisions of this [SECTION]9.4, (ii) no Default or Event of Default shall
then exist and (iii) after giving effect thereto the Company shall be in
compliance with [SECTION]5.7(a).
(b) The Company may issue Additional First Mortgage Bonds provided
that concurrently with or prior to the issuance thereof the Company shall
convert all outstanding Notes by issuing First Mortgage Bonds to the Holders
of such Notes as herein provided. Not later than 60 days nor earlier than
30 days prior to the date of the issuance of any Additional First Mortgage
Bonds, the Company shall give written notice of such fact in the manner
provided in [SECTION]9.7 hereof to the Holders of the Notes which notice
shall (1) state the details of the proposed issuance of the Additional First
Mortgage Bonds and the effective date thereof (the "Effective Date"), (2)
state that pursuant to this [SECTION]9.4, the Company shall convert all
Notes to First Mortgage Bonds and (3) specify the date upon which the
conversion shall take place (the "Conversion Date"). On the Conversion
Date, the Company, as provided herein, shall convert to First Mortgage Bonds
all of the outstanding Notes.
(c) Any First Mortgage Bonds to be issued to the Holders of Notes
pursuant to the foregoing provisions (i) shall be issued in a separate
series of First Mortgage Bonds, (ii) shall be in a principal amount equal to
the aggregate unpaid principal amount of the Notes, (iii) shall bear
interest at the rate of 7.80% per annum from the date to which interest has
been paid on the Notes, (iv) shall be payable with respect to interest and
principal on the same respective payment dates of the Notes, (v) shall have
the same optional prepayment provisions and, to the extent permitted under
the First Mortgage Bond Indenture, the same events of default as such Notes
or, if not so permitted for any similar event of default, provisions which
result in a mandatory redemption upon the occurrence of such event, (vi)
shall, in the First Mortgage Bond Indenture, receive the benefit of terms
and provisions substantially the same as those contained in this Agreement,
including without limitation, the covenants of the Company contained in
[SECTION]5 (other than [SECTION]5.9) of this Agreement (allowing for
differences in form and with appropriate adjustments to reflect the changed
nature of the securities), and (vii) shall be issued pursuant to the First
Mortgage Bond Indenture in a manner satisfactory in form and substance to
such Holders and their counsel. The Holders of the Notes may be represented
by such special counsel as they shall select and the reasonable charges and
disbursements of such special counsel shall be paid by the Company.
(d) On or prior to the Conversion Date, and as a condition to the
effectiveness of such conversion, the supplemental indenture pursuant to
which such First Mortgage Bonds shall be issued shall be duly recorded, and
any necessary financing statements shall be duly filed in respect thereof,
to the extent required by law to perfect the lien of the First Mortgage Bond
Indenture on the mortgaged property thereunder, and the Company shall
deliver to the trustee under the First Mortgage Bond Indenture and to each
of the Holders of the outstanding Notes, an opinion of counsel (who shall be
satisfactory to each of such Holders) and such other evidence as such
Holders may request as to (A) the priority of the Lien created by the First
Mortgage Bond Indenture in favor of the First Mortgage Bonds issued to such
Holders, (B) the equal and ratable benefit and security provided by the
First Mortgage Bond Indenture to such First Mortgage Bonds in favor of such
Holders, (C) the due authorization, execution and delivery of such First
Mortgage Bonds and the legality, validity, binding effect and enforceability
thereof, (D) the due authentication and issuance thereof under the First
Mortgage Bond Indenture, (E) the absence of any default or event which with
the giving of notice or passage of time, or both, would constitute a default
or event of default under the First Mortgage Bond Indenture or any
Indebtedness secured thereby, (F) the due authorization, execution and
delivery of the First Mortgage Bond Indenture and the legality, validity,
binding effect and enforceability thereof, (G) the approval of such First
Mortgage Bonds and such supplemental indenture by any necessary governmental
agencies, and (H) the good title of the Company to its real properties
(which opinion with respect to such title may be based upon an examination
of title insurance policies and/or endorsements thereto, abstracts or
certificates of title or similar documents) and as to such other matters as
such Holders may request. Upon completion of the conversion of the Notes
into First Mortgage Bonds pursuant to the foregoing provisions of this
[SECTION]9.4, this Agreement shall terminate except for any obligations of
the Company arising under this Agreement prior to such termination which
have not been satisfied.
Section 9.5. Expenses, Stamp Tax Indemnity. Whether or not the
transactions herein contemplated shall be consummated, the Company agrees to
pay directly all of the Purchaser's reasonable out-of-pocket expenses in
connection with the preparation, execution and delivery of this Agreement
and the transactions contemplated hereby, including but not limited to the
reasonable charges and disbursements of Chapman and Cutler, special counsel
to the Purchaser, duplicating and printing costs and charges for shipping
the Notes, adequately insured to the Purchaser's home office or at such
other place as such Purchaser may designate, and all such expenses of the
Holders relating to any amendment, waivers or consents pursuant to the
provisions hereof, including, without limitation, any amendments, waivers,
or consents resulting from any work-out, renegotiation or restructuring
relating to the performance by the Company of its obligations under this
Agreement and the Notes. The Company also agrees that it will pay and save
the Purchaser harmless against any and all liability with respect to stamp
and other taxes, if any, which may be payable or which may be determined to
be payable in connection with the execution and delivery of this Agreement
or the Notes, whether or not any Notes are then outstanding. The Company
agrees to protect and indemnify the Purchaser against any liability for any
and all brokerage fees and commissions payable or claimed to be payable to
any Person in connection with the transactions contemplated by this
Agreement. The Purchaser represents that no placement agent, broker or
finder has been retained or engaged by the Purchaser in connection with its
purchase of the Notes.
Section 9.6. Powers and Rights Not Waived; Remedies Cumulative. No
delay or failure on the part of any Holder in the exercise of any power or
right shall operate as a waiver thereof; nor shall any single or partial
exercise of the same preclude any other or further exercise thereof, or the
exercise of any other power or right, and the rights and remedies of each
Holder are cumulative to, and are not exclusive of, any rights or remedies
any such Holder would otherwise have.
Section 9.7. Notices. All communications provided for hereunder
shall be in writing and, if to a Holder, delivered or mailed prepaid by
registered or certified mail or overnight air courier, or by facsimile
communication, in each case addressed to such Holder at its address
appearing on Schedule I to this Agreement or such other address as any
Holder may designate to the Company in writing, and if to the Company,
delivered or mailed by registered or certified mail or overnight air
courier, or by facsimile communication, to the Company at the address
beneath its signature at the foot of this Agreement or to such other address
as the Company may in writing designate to the Holders; provided, however,
that a notice to a Holder by overnight air courier shall only be effective
if delivered to such Holder at a street address designated for such purpose
in accordance with this [SECTION]9.7, and a notice to such Holder by
facsimile communication shall only be effective if made by confirmed
transmission to such Holder at a telephone number designated for such
purpose in accordance with this [SECTION]9.7 and promptly followed by the
delivery of such notice by registered or certified mail or overnight air
courier, as set forth above.
Section 9.8. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the
benefit of the Purchaser and its successor and assigns, including each
successive Holder.
Section 9.9. Survival of Covenants and Representations. All
covenants, representations and warranties made by the Company herein and in
any certificates delivered pursuant hereto, whether or not in connection
with the Closing Date, shall survive the closing and the delivery of this
Agreement and the Notes.
Section 9.10. Severability. Should any part of this Agreement for
any reason be declared invalid or unenforceable, such decision shall not
affect the validity or enforceability of any remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had
been executed with the invalid or unenforceable portion thereof eliminated
and it is hereby declared the intention of the parties hereto that they
would have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any reason,
be hereafter declared invalid or unenforceable.
Section 9.11. Governing Law. This Agreement and the Notes issued and
sold hereunder shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
Section 9.12. Captions. The descriptive headings of the various
Sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
The execution hereof by you shall constitute a contract between the
Company and you for the uses and purposes hereinabove set forth. This
Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
THE BERKSHIRE GAS COMPANY
By: /s/ Scott S. Robinson
---------------------------------
Its President
THE BERKSHIRE GAS COMPANY
115 Cheshire Road
Pittsfield, Massachusetts 01201
Attention: Michael J. Marrone
Telefacsimile: (413) 443-0546
Confirmation: (413) 445-0259
Accepted as of November 1, 1996:
FIRST COLONY LIFE INSURANCE COMPANY
By: /s/ George D. Vermilya, Jr.
---------------------------------
Its Associate Vice President
SCHEDULE I
(to Note Agreement)
PRINCIPAL AMOUNTS
NAME OF PURCHASER OF NOTES TO BE
PURCHASED
FIRST COLONY LIFE INSURANCE COMPANY $16,000,000
700 Main Street
Lynchburg, Virginia 24504
Attention: Mr. George D. Vermilya, Jr.
Telecopier Number: (804) 948-5484
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"The Berkshire Gas Company, 7.80% Senior Notes due November 15, 2021, PPN
084653 D@ 0 principal, premium or interest") to:
Crestar Bank (ABA #0510-0002-0)
Richmond, Virginia
Credit - 2111
Attention: Incoming Processing Unit Number 27955
for credit to: First Colony Life Insurance Company
Account Number 10765400
Notices
All notices and communications, including notices with respect to payments
and written confirmation of each such payment, to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 54-0596414
SCHEDULE II
(to Note Agreement)
LIENS SECURING DEBT
(INCLUDING CAPITALIZED LEASES)
AS OF THE CLOSING DATE
The Lien of the First Mortgage Bond Indenture.
EXHIBIT A
(to Note Agreement)
THE BERKSHIRE GAS COMPANY
7.80% Senior Note
Due November 15, 2021
PPN: 084653 D@ 0
No. __________________, 19____
$
The Berkshire Gas Company, a Massachusetts corporation (the
"Company"), for value received, hereby promises to pay to
or registered assigns
on the fifteenth day of November, 2021
the principal amount of
DOLLARS ($_______________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-
day months) on the principal amount from time to time remaining unpaid
hereon at the rate of 7.80% per annum from the date hereof until maturity,
payable quarterly on the fifteenth day of each February, May, August and
November in each year (commencing on the first of such dates after the date
hereof) and at maturity. The Company agrees to pay interest on overdue
principal (including any overdue required or optional prepayment of
principal) and premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest, at the rate of 8.80% per annum after
the due date, whether by acceleration or otherwise, until paid. Both the
principal hereof and interest hereon are payable at the principal office of
the Company in Pittsfield, Massachusetts in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This Note is one of the 7.80% Senior Notes due November 15, 2021 (the
"Notes") of the Company in the aggregate principal amount of $16,000,000
issued or to be issued under and pursuant to the terms and provisions of the
Note Agreement dated as of November 1, 1996 (the "Note Agreement"), entered
into by the Company with the original Purchaser therein referred to, and
this Note and the holder hereof are entitled equally and ratably with the
holders of all other Notes outstanding under the Note Agreement to all the
benefits provided for thereby or referred to therein. Reference is hereby
made to the Note Agreement for a statement of such rights and benefits.
This Note and the other Notes outstanding under the Note Agreement may be
declared due prior to their expressed maturity dates and certain prepayments
are required to be made thereon, all in the events, on the terms and in the
manner and amounts as provided in the Note Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreement.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the
Company duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of this Note or its attorney duly
authorized in writing. Payment of or on account of principal, premium, if
any, and interest on this Note shall be made only to or upon the order in
writing of the registered holder.
THE BERKSHIRE GAS COMPANY
By
--------------------------------
Its
EXHIBIT B
(to Note Agreement)
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Purchaser as follows:
1. Subsidiaries. The Company has no Subsidiaries.
2. Corporate Organization and Authority. The Company
(a) is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation;
(b) has all requisite power and authority and all material
licenses and permits to own and operate its properties and to carry on
its business as now conducted and as presently proposed to be
conducted; and
(c) is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction wherein the nature of the
business transacted by it or the nature of the property owned or
leased by it makes such licensing or qualification necessary.
3. Financial Statements. (a) The balance sheets of the Company as of
June 30 in each of the years 1992 to 1996, both inclusive, and the
statements of income and retained earnings and changes in financial position
or cash flows for the fiscal years ended on said dates, each accompanied by
a report thereon containing an opinion unqualified as to scope limitations
imposed by the Company and otherwise without qualification except as therein
noted, by Deloitte & Touche LLP, have been prepared in accordance with GAAP
consistently applied except as therein noted, are correct and complete and
present fairly the financial position of the Company as of such dates and
the results of its operations and changes in its financial position or cash
flows for such periods.
(b) Since June 30, 1996, there has been no change in the condition,
financial or otherwise, of the Company as shown on the balance sheet as of
such date except changes in the ordinary course of business, none of which
individually or in the aggregate has been materially adverse.
4. Indebtedness. Annex A attached hereto correctly describes all
Current Debt and Funded Debt of the Company outstanding on the Closing Date.
5. Full Disclosure. Neither the financial statements referred to in
paragraph 4 hereof nor any other written statement furnished by the Company
to the Purchaser in connection with the negotiation of the sale of the
Notes, contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or herein not
misleading. There is no fact peculiar to the Company which the Company has
not disclosed to the Purchaser in writing which materially affects adversely
nor, so far as the Company can now foresee, will materially affect adversely
the properties, business, prospects, profits or condition (financial or
otherwise) of the Company.
6. Pending Litigation. Except for the matters described in the
letter from the Company to the Purchaser dated November 1, 1996 (the
"Litigation Disclosure Letter"), there are no proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company in any
court or before any governmental authority or arbitration board or tribunal
which involve the possibility of materially and adversely affecting the
properties, business, prospects, profits or condition (financial or
otherwise) of the Company and its Subsidiaries.
7. Title to Properties. The Company has good and marketable title in
fee simple (or its equivalent under applicable law) to all material parcels
of real property and has good title to all the other material items of
property it purports to own, including that reflected in the most recent
balance sheet referred to in paragraph 3 hereof, except as sold or otherwise
disposed of in the ordinary course of business and except for Liens
permitted by the Agreement.
8. Patents and Trademarks. The Company owns or possesses all the
patents, trademarks, trade names, service marks, copyright, licenses and
rights with respect to the foregoing necessary for the present and planned
future conduct of its business, without any known conflict with the rights
of others.
9. Sale is Legal and Authorized. The sale of the Notes and
compliance by the Company with all of the provisions of the Agreement and
the Notes --
(a) are within the corporate powers of the Company;
(b) will not violate any provisions of any law or any order of
any court or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Articles of
Incorporation or By-laws of the Company or any indenture or other
agreement or instrument to which the Company is a party or by which it
may be bound or result in the imposition of any Liens or encumbrances
on any property of the Company; and
(c) have been duly authorized by proper corporate action on the
part of the Company (no action by the stockholders of the Company
being required by law, by the Articles of Incorporation or By-laws of
the Company or otherwise), executed and delivered by the Company and
the Agreement and the Notes constitute the legal, valid and binding
obligations, contracts and agreements of the Company enforceable in
accordance with their respective terms.
10. No Defaults. No Default or Event of Default has occurred and is
continuing. The Company is not in default in the payment of principal or
interest on any Funded Debt or Current Debt or is in default under any
instrument or instruments or agreements under and subject to which any
Funded Debt or Current Debt has been issued, and no event has occurred and
is continuing under the provisions of any such instrument or agreement which
with the lapse of time or the giving of notice, or both, would constitute an
event of default thereunder.
11. Governmental Consent. Except for the order of the Massachusetts
Department of Public Utilities approving the issuance and sale of the Notes,
which order has been obtained, is in full force and effect and is not
subject to any appeal, no approval, consent or withholding of objection on
the part of any regulatory body, state, Federal or local, is necessary in
connection with the execution and delivery by the Company of the Agreement
or the Notes or compliance by the Company with any of the provisions of the
Agreement or the Notes.
12. Taxes. All tax returns required to be filed by the Company in
any jurisdiction have, in fact, been filed, and all taxes, assessments, fees
and other governmental charges upon the Company or upon any of its
properties, income or franchises, which are shown to be due and payable in
such returns have been paid. For all taxable years ending on or before June
30, 1993, the Federal income tax liability of the Company has been satisfied
and either the period of limitations on assessment of additional Federal
income tax has expired or the Company has entered into an agreement with the
Internal Revenue Service closing conclusively the total tax liability for
the taxable year. The Company does not know of any proposed additional tax
assessment against it for which adequate provision has not been made on its
accounts, and no material controversy in respect of additional Federal or
state income taxes due since said date is pending or to the knowledge of the
Company threatened. The provisions for taxes on the books of the Company
are adequate for all open years, and for its current fiscal period.
13. Use of Proceeds. The net proceeds from the sale of the Notes
will be used to retire Company's short-term bank debt and the 8.40%
Preferred Stock. None of the transactions contemplated in the Agreement
(including, without limitation thereof, the use of proceeds from the
issuance of the Notes) will violate or result in a violation of Section 7 of
the Securities Exchange Act of 1934, as amended, or any regulation issued
pursuant thereto, including, without limitation, Regulations G, T and X of
the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.
Neither the Company nor any Subsidiary owns or intends to carry or purchase
any "margin stock" within the meaning of said Regulation G. None of the
proceeds from the sale of the Notes will be used to purchase, or refinance
any borrowing the proceeds of which were used to purchase, any "security"
within the meaning of the Securities Exchange Act of 1934, as amended.
14. Private Offering. Neither the Company, directly or indirectly,
nor any agent on its behalf has offered or will offer the Notes or any
similar Security or has solicited or will solicit an offer to acquire the
Notes or any similar Security from or has otherwise approached or negotiated
or will approach or negotiate in respect of the Notes or any similar
Security with any Person other than the Purchaser. Neither the Company,
directly or indirectly, nor any agent on its behalf has offered or will
offer the Notes or any similar Security or has solicited or will solicit an
offer to acquire the Notes or any similar Security from any Person so as to
bring the issuance and sale of the Notes within the provisions of Section 5
of the Securities Act of 1933, as amended.
15. ERISA. The consummation of the transactions provided for in the
Agreement and compliance by the Company with the provisions thereof and the
Notes issued thereunder will not involve any prohibited transaction within
the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986,
as amended. Each Plan complies in all material respects with all applicable
statutes and governmental rules and regulations, and (a) no Reportable Event
has occurred and is continuing with respect to any Plan, (b) neither the
Company nor any ERISA Affiliate has withdrawn from any Plan or Multiemployer
Plan or instituted steps to do so, and (c) no steps have been instituted to
terminate any Plan. No condition exists or event or transaction has
occurred in connection with any Plan which could result in the incurrence by
the Company or any ERISA Affiliate of any material liability, fine or
penalty. No Plan maintained by the Company or any ERISA Affiliate, nor any
trust created thereunder, has incurred any "accumulated funding deficiency"
as defined in Section 302 of ERISA nor does the present value of all
benefits vested under all Plans exceed, as of the last annual valuation
date, the value of the assets of the Plans allocable to such vested
benefits. Neither the Company nor any ERISA Affiliate has any contingent
liability with respect to any post-retirement "welfare benefit plan" (as
such term is defined in ERISA) except as has been disclosed to the
Purchaser.
16. Compliance with Law. The Company (a) is not in violation of any
law, ordinance, franchise, governmental rule or regulation to which it is
subject or (b) has not failed to obtain any license, permit, franchise or
other governmental authorization necessary to the ownership of its property
or to the conduct of its business, which violation or failure to obtain
would materially adversely affect the business, prospects, profits,
properties or condition (financial or otherwise) of the Company, or impair
the ability of the Company to perform its obligations contained in the
Agreement or the Notes. The Company is not in default with respect to any
order of any court or governmental authority or arbitration board or
tribunal.
17. Compliance with Environmental Laws. Except for matters described
in the Litigation Disclosure Letter, the Company is not in violation of any
applicable Federal, state, or local laws, statutes, rules, regulations or
ordinances relating to public health, safety or the environment which
violation could have a material adverse effect on the business, prospects,
profits, properties or condition (financial or otherwise) of the Company.
The Company does not know of any liability or class of liability of the
Company or any Subsidiary under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.), or the Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. Section 6901 et seq.).
18. Holding Company Act Status. The Company is not a "registered
holding company" or a "subsidiary company" of a "registered holding company"
or an "affiliate" of a "registered holding company" or a "subsidiary
company" of a "registered holding company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
ANNEX A
(to Exhibit B)
DESCRIPTION OF DEBT
1. Current Debt of the Company outstanding on the Closing Date is as
follows:
CREDITOR AMOUNT
Fleet Bank $ 6,800,000
State Street Bank 5,000,000
Bank of Boston 1,500,000
Core States Bank 2,000,000
Bay Bank 4,000,000
-----------
Total $19,000,000
2. Funded Debt (other than Capitalized Rentals) of the Company outstanding
on the Closing Date is as follows:
$10,000,000 Series P First Mortgage Bonds 10.06% due 2019,
$6,000,000 Senior Note 9.6% due 2020, and
$6,000,000 Medium Term Note (Variable Interest) due April, 1999.
3. Capitalized Leases of the Company outstanding on the Closing Date are as
follows:
None.
EXHIBIT C
(to Note Agreement)
DESCRIPTION OF SPECIAL COUNSEL'S CLOSING OPINION
The closing opinion of Chapman and Cutler, special counsel to the
Purchaser, called for by [SECTION]4.1 of the Note Agreement, shall be dated
the Closing Date and addressed to the Purchaser, shall be satisfactory in
form and substance to the Purchaser and shall be to the effect that:
1. The Company is a corporation, duly organized and validly
existing under the laws of the Commonwealth of Massachusetts and has
the corporate power and the corporate authority to execute and deliver
the Note Agreement and to issue the Notes.
2. The Note Agreement has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed
and delivered by the Company and constitutes the legal, valid and
binding contract of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, and the Notes being
delivered on the date hereof have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreement do not, under
existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of
Rich, May, Bilodeau & Flaherty, P.C. is satisfactory in scope and form to
Chapman and Cutler and that, in their opinion, the Purchaser is justified in
relying thereon.
It is understood that in giving the above opinion, Chapman and Cutler
may rely upon the opinion of Rich, May, Bilodeau & Flaherty, P.C. as to all
matters relating to the laws of the Commonwealth of Massachusetts.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Articles of Incorporation certified by, and a certificate
of good standing of the Company from, the Secretary of State of the
Commonwealth of Massachusetts, the By-laws of the Company and the general
business corporation law of the Commonwealth of Massachusetts. The opinion
of Chapman and Cutler is limited to the general business corporation law of
the Commonwealth of Massachusetts and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials
and officers of the Company and upon representations of the Company and the
Purchaser delivered in connection with the issuance and sale of the Notes.
EXHIBIT D
(to Note Agreement)
DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of Rich, May, Bilodeau & Flaherty, P.C., counsel
for the Company, which is called for by [SECTION]4.1 of the Note Agreement,
shall be dated the Closing Date and addressed to the Purchaser, shall be
satisfactory in scope and form to the Purchaser and shall be to the effect
that:
1. The Company is a corporation, duly organized and validly
existing under the laws of the Commonwealth of Massachusetts, has the
corporate power and the corporate authority to execute and perform the
Note Agreement and to issue the Notes and has the full corporate power
and the corporate authority to conduct the activities in which it is
now engaged and is duly licensed or qualified and is in good standing
as a foreign corporation in each jurisdiction in which the character
of the properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary.
2. The Note Agreement has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed
and delivered by the Company and constitutes the legal, valid and
binding contract of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed
and delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance
and similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The issue and sale of the Notes have, to the extent required
by law, been duly authorized by an order issued by the Massachusetts
Department of Public Utilities, which authorization is final and not
subject to any appeal which could affect the validity or terms of the
Notes and no other approval, consent or authorization on the part of,
or filing, registration or qualification with, any governmental body,
Federal or state, is necessary in connection with the execution and
delivery of the Note Agreement or the Notes.
5. The Company is not a "registered holding company" or a
"subsidiary company" of a "registered holding company" or an
"affiliate" of a "registered holding company" or a "subsidiary
company" of a "registered holding company," as such terms are defined
in the Public Utility Holding Company Act of 1935, as amended.
6. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Note Agreement do not
conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation or imposition of
any Lien upon any of the property of the Company pursuant to the
provisions of the Articles of Incorporation or By-laws of the Company
or any agreement or other instrument known to such counsel to which
the Company is a party or by which the Company may be bound.
7. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreement do not, under
existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Rich, May, Bilodeau & Flaherty, P.C., shall cover such
other matters relating to the sale of the Notes as the Purchaser may
reasonably request. With respect to matters of fact on which such opinion
is based, such counsel shall be entitled to rely on appropriate certificates
of public officials and officers of the Company.
<TABLE> <S> <C>
<ARTICLE> UT
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> DEC-31-1996
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 73,089
<OTHER-PROPERTY-AND-INVEST> 6,003
<TOTAL-CURRENT-ASSETS> 19,809
<TOTAL-DEFERRED-CHARGES> 5,416
<OTHER-ASSETS> 3,290
<TOTAL-ASSETS> 107,607
<COMMON> 5,443
<CAPITAL-SURPLUS-PAID-IN> 16,652
<RETAINED-EARNINGS> 6,823
<TOTAL-COMMON-STOCKHOLDERS-EQ> 28,918
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363
<LONG-TERM-DEBT-NET> 40,000
<SHORT-TERM-NOTES> 14,965
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0
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<INCOME-TAX-EXPENSE> 267
<OTHER-OPERATING-EXPENSES> 5,635
<TOTAL-OPERATING-EXPENSES> 6,974
<OPERATING-INCOME-LOSS> 1,970
<OTHER-INCOME-NET> 1,163
<INCOME-BEFORE-INTEREST-EXPEN> 3,133
<TOTAL-INTEREST-EXPENSE> 1,824
<NET-INCOME> 416
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<EARNINGS-AVAILABLE-FOR-COMM> 155
<COMMON-STOCK-DIVIDENDS> 1,215
<TOTAL-INTEREST-ON-BONDS> 0
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