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As filed with the Securities and Exchange Commission on May 20, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FALL RIVER GAS COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MASSACHUSETTS 04-1298780
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
155 NORTH MAIN STREET 02722
FALL RIVER, MASSACHUSETTS (Zip Code)
(Address of principal executive office)
</TABLE>
(508) 675-7811
(Registrant's telephone number, including area code)
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ERIC J. KRATHWOHL, ESQ.
RICH, MAY, BILODEAU & FLAHERTY, P.C.
294 WASHINGTON STREET, BOSTON, MA 02108
(617) 482-1360
(Name, address and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. /X/.
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $0.83 1/3
par value 220,208 shares $17.775 $3,914,197.20 $1088.15
</TABLE>
(1) Used only for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(c), based upon the average high and low prices of such
securities as reported on the American Stock Exchange on May 17, 1999.
PURSUANT TO RULE 429 OF THE GENERAL RULES AND REGULATIONS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, THE PROSPECTUS WHICH IS A PART OF THIS
REGISTRATION STATEMENT IS A COMBINED PROSPECTUS RELATING ALSO TO REGISTRATION
STATEMENT FILE NO. 333-13995.
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PROSPECTUS
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220,208 SHARES
[LOGO]
FALL RIVER GAS COMPANY
COMMON STOCK
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All of the shares of common stock being offered are being sold by the
Company. Our common stock is listed and traded on the American Stock Exchange
under the symbol "FAL." The last reported sale price of the common stock on the
American Stock Exchange on May 17, 1999 was $17.875 per share.
All of the securities being offered will be sold through our Share Owner
Dividend Reinvestment and Stock Purchase Plan.
The price of these securities will be a percentage of the average of the
daily high and low sales prices for our common stock on the American Stock
Exchange for the five consecutive trading days up to and including the date of
the purchase if the shares are purchased directly from the Company, or a
percentage of the market price for our common stock if the shares are purchased
on the open market. (Please refer to Question 11 on page 6.)
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THIS PROSPECTUS IS DATED MAY 21, 1999
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<PAGE>
FALL RIVER GAS COMPANY
155 NORTH MAIN STREET
FALL RIVER, MASSACHUSETTS 02722
(508) 675-7811
SHARE OWNER DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
220,208 SHARES
COMMON STOCK, $0.83 1/3 PAR VALUE
The Share Owner Dividend Reinvestment and Stock Purchase Plan (the "Plan")
of Fall River Gas Company (the "Company") provides holders of record of common
stock of the Company a simple and convenient method of investing in additional
shares of common stock of the Company.
Participants in the Plan may:
- automatically reinvest cash dividends on all or a portion of their
shares; or
- make optional cash investments in the Company at any time, from a
minimum amount of $15.00 in any calendar month to a maximum amount of
$5,000.00 in any calendar quarter; or
- reinvest their cash dividends and make optional cash investments in the
Company.
The shares offered through the Plan are purchased directly from the Company
or are purchased on the open market through a Purchasing Representative chosen
by the Company. The price of the shares purchased by participants in the Plan
that are purchased directly from the Company shall be equal to 97% of the
average of the high and low sale prices of the Company's common stock (as quoted
in the American Stock Exchange) for the five trading days prior to and including
the date of purchase (the "Average Price"). The price of shares purchased by the
participants in the Plan that are purchased on the open market will be 97% of
the prevailing market price at which the Purchasing Representative acquires the
shares of common stock (the "Market Price"). If the price of shares to be
purchased under the Plan falls below the book value of such shares, the 3%
discount will be suspended until the discounted price exceeds the book value.
Shares purchased under the Plan that are purchased directly from the Company
during a period of price discount suspension will be priced at 100% of the
Average Price. Shares purchased under the Plan on the open market during a
period of price discount suspension will be priced at 100% of the Market Price.
Participants may not purchase shares of Common Stock through the Plan if the
price for such shares would be less than the par value of the shares, currently
$0.83 1/3.
The Company expects to pay approximately $3,000 in connection with the
operation of the Plan during the next year.
This Prospectus relates to all authorized and unissued shares of common
stock of the Company registered under the Plan. We advise that this Prospectus
be retained for future reference.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS MAY 21, 1999.
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED
ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN
OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission (the "SEC").
Our SEC filings are available to the public over the Internet at the SEC's web
site at http://www.sec.gov. You may also read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms.
Additional updating information with respect to the securities and the Plan
may be provided in the future to the Plan participants by means of amendments to
this Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information and be
incorporated. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the securities or
deregister all remaining unsold securities:
(a) The Company's Annual Report on Form 10-K for the year ended September
30, 1998 filed pursuant to the Securities Exchange Act of 1934 which
contains, either directly or by incorporation by reference, certified
financial statements for the Company's most recent fiscal year.
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended March
31, 1999 filed pursuant to the Securities Exchange Act of 1934.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Peter H. Thanas,
Sr. Vice President and Treasurer
Fall River Gas Company
155 North Main Street
Fall River, Massachusetts 02722
Telephone: (508) 675-7811 (ext. 1223).
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THE COMPANY
Fall River Gas Company is a public utility incorporated in Massachusetts in
1880. We are engaged primarily in the distribution and sale of natural gas for
residential, commercial and industrial use and transportation of natural gas for
industrial use. We also lease gas-burning equipment through our wholly owned
subsidiary Fall River Gas Appliance Company. We serve communities, including the
city of Fall River, the towns of Somerset, Swansea and Westport. Our service
territory is primarily urban in character, with residential, commercial and
industrial customers.
USE OF PROCEEDS
We cannot predict either the number of shares of common stock that will
ultimately be sold pursuant to the Plan or the prices at which such shares will
be sold. We intend to use the proceeds from any such sales to finance additions
to the Company's property, plant and equipment in the ordinary course of
business or to repay temporary indebtedness incurred to finance such additions.
Where we elect to forward the reinvested dividends and/or optional cash
payments to a Purchasing Representative who will purchase shares of common stock
of the Company on the open market, we will receive no proceeds.
DESCRIPTION OF THE PLAN
The following numbered questions and answers constitute a description of the
Plan. Shareholders presently enrolled in the Plan are not required to take any
action to continue to participate in the Plan.
PURPOSE
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide holders of record of common stock of
the Company a simple and convenient method of investing cash dividends and/or
optional cash payments in additional shares of common stock of the Company. In
addition, when these funds are used to purchase common stock directly from us,
we will receive funds needed for our corporate purposes (see "Use of Proceeds"
above).
ADVANTAGES
2. WHAT ARE THE ADVANTAGES OF THE PLAN?
Participants in the Plan may:
(i) have cash dividends on all of their common shares automatically
reinvested;
(ii) have cash dividends on a portion of their common shares automatically
reinvested;
(iii) invest by making optional cash payments at any time from a minimum
amount of $15.00 in any calendar month, to a maximum amount of
$5,000.00 in any calendar quarter, whether or not dividends are being
invested.
The shares of common stock purchased upon behalf of participants in the Plan
generally will be purchased at a discounted price, which price and the
restrictions thereon, are more fully explained in the answer to Question 11 of
this Prospectus.
Participants in the plan will not pay any brokerage commissions, service
charges, or other expenses in connection with purchases under the Plan. Since
fractional shares, as well as full shares, may be credited to participants'
accounts, participants' full investment of funds is possible. In addition,
dividends in respect of such fractional shares, as well as full shares, will be
credited to participants' accounts. Participants avoid
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the necessity for safekeeping of stock certificates for shares credited to their
accounts. Regular statements of account simplify record keeping.
PLAN ADMINISTRATION
3. WHO ADMINISTERS THE PLAN FOR PARTICIPANT?
The Plan is administered by the Share Owner Dividend Reinvestment and Stock
Purchase Plan Committee (the "Committee") appointed by our Board of Directors.
The Committee shall determine the rights of the participants in accordance with
the Plan and interpret the Plan as it deems necessary or desirable in connection
with its operation. The Committee will also perform other duties relating to the
Plan, including, when the Company elects to make open market purchases,
selecting the Purchasing Representative, who will act on behalf of participants
in buying common stock of the Company on the open market at prevailing market
prices. The Committee may also adopt such rules and regulations, as it deems
appropriate to promote the objectives of the Plan. All correspondence with
regard to the Plan, except communications otherwise specified herein to be
directed to the Agent referred to in Question 4, should be addressed to Fall
River Gas Company, Attn: Secretary of the Share Owner Dividend Reinvestment and
Stock Purchase Plan Committee, 155 North Main Street, Fall River, Massachusetts
02722.
4. WHO IS THE AGENT FOR THE PLAN PARTICIPANTS?
The designated agent under the Plan is State Street Bank and Trust Company
(the "Agent"). The Agent will be responsible for investing participants' funds
and keeping continuous records of participants' accounts. The Agent will send
participants statements of accounts at least quarterly and perform other duties
for Plan participants as needed. All authorization forms, optional cash
payments, notices of withdrawal and other communications with the Agent should
be sent to:
State Street Bank and Trust Company
P.O. Box 8209
Boston, Massachusetts 02101-8209
If State Street Bank and Trust Company ceases to act as Agent under the Plan,
another agent will be designated by the Company.
ELIGIBILITY AND PARTICIPATION
5. WHO IS ELIGIBLE TO PARTICIPATE?
All holders of record of ten or more shares of common stock of the Company,
and all of our employees who own of record one or more shares, are eligible to
participate in the Plan. In order to be eligible to participate, beneficial
owners of common stock of the Company whose shares are registered in names other
than their own (e.g., in the name of a broker or bank nominee) must become
shareholders of record by having their shares registered in their own names.
6. HOW MAY AN ELIGIBLE PERSON JOIN THE PLAN?
A shareholder may join the Plan at any time by signing an "Authorization
Form" and returning it to the Agent. Authorization Forms may be obtained upon
request from the Company at the address set forth in Question 3 or from the
Agent at the address set forth in Question 4.
A shareholder already enrolled in the Plan is not required to take any
action to continue to participate in the Plan.
7. WHAT DOES THE AUTHORIZATION FORM PROVIDE?
The Authorization Form directs: (a) us to pay to the Agent the cash
dividends on all or a specified portion of the shares of common stock in a
participant's name and on all shares credited such participant's
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plan account; and (b) the Agent to use these cash dividends, together with any
optional cash payments made by the participant, to purchase common stock of the
Company either directly from us or on the open market through the Purchasing
Representative, as determined by the Company.
The Authorization Form provides for the purchase of shares through the
following investment options:
(a) Reinvest dividends on all of the shares held by a participant;
(b) Reinvest dividends on less than all of the shares held by a participant
and continue to receive cash dividends on the other shares;
(c) Invest by making optional payments at any time in any amount from a
minimum of $15.00 in any calendar month to a maximum aggregate of
$5,000.00 in any calendar quarter, whether or not dividends are being
reinvested.
A participant may change the investment option at any time by signing a new
Authorization Form and returning it to the Agent.
Cash dividends on shares credited to the participant's account under the
Plan are automatically reinvested in additional common stock.
8. WHEN MAY A SHAREHOLDER JOIN THE PLAN?
A shareholder may enroll in the Plan at any time. The Authorization Form
must be received by the Agent by the last day of the month prior to the month in
which the next dividend is paid in order to reinvest that dividend. If the
Authorization Form is received after that date, the shareholder's participation
in the Plan will become effective on the following dividend payment date.
Dividends are normally paid on the fifteenth day of February, May, August and
November, but the Company reserves the right to change its dividend payment
dates at any time.
FOR EXAMPLE, IN ORDER TO INVEST A QUARTERLY DIVIDEND PAYABLE ON AUGUST 15,
1999, A SHAREHOLDER'S AUTHORIZATION FORM MUST BE RECEIVED BY THE AGENT NO LATER
THAN JULY 31, 1999. IF THE AUTHORIZATION FORM IS RECEIVED AFTER JULY 31, 1999,
THE DIVIDEND PAYABLE ON AUGUST 15, 1999 WILL BE PAID IN CASH AND THE
SHAREHOLDER'S PARTICIPATION IN THE PLAN WILL COMMENCE WITH THE NEXT DIVIDEND
PAYMENT DATE.
COST TO PARTICIPANTS
9. ARE THERE ANY COSTS TO THE PARTICIPANTS UNDER THE PLAN?
We will pay all of the administration fees incurred in connection with the
Plan. Plan participants will not have to pay any brokerage fees or transfer
taxes when shares of common stock are purchased directly from the Company.
However, commissions paid by the Company under the Plan in the event of open
market purchases by the Purchasing Representative will be taxable to Plan
participants. Participants will receive a tax form reporting any commissions
paid under the Plan for the previous year. In addition, participants will bear
certain expenses upon their withdrawal from the Plan or if we terminate the Plan
(see Question 19).
PURCHASES
10. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR PARTICIPANTS?
The number of shares to be purchased for a particular participant in the
Plan by the Agent or Purchasing Representative will depend upon the amount of
dividends to which the participant is entitled, any optional cash payments made,
and the purchase price of the common stock. For a given participant, the Agent
or Purchasing Representative will purchase that number of shares, including
fractional shares
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computed to four decimal places, equal to the total dollar amount to be invested
divided by the purchase price per share of the common stock.
11. WHAT WILL BE THE INVESTMENT DATE AND PRICE OF THE COMMON SHARES PURCHASED
UNDER THE PLAN?
The Investment Date will be the fifteenth of each month, whether or not that
is a business day.
The price of the shares of common stock purchased directly from the Company
by the Agent on behalf of Plan participants will be 97% of the average of the
high and low sale prices of the Company's common stock on the American Stock
Exchange for the five trading days ending on the day of purchase (or five
trading days immediately preceding the day of purchase, if securities markets
are closed on the day of purchase) (the "Average Price").
The price of the shares of common stock purchased on the open market will be
97% of the prevailing market price at which the Purchasing Representative
acquires the shares of common stock (the "Market Price").
In the event that the discounted price for the shares to be purchased under
the Plan falls below the book value of the Company's common stock, the discount
will be suspended until the discounted price exceeds the book value. During any
period of suspension of the discount, the price of the common shares purchased
directly from the Company will be 100% of the Average Price. During any period
of suspension of the discount, the price of common shares purchased on the open
market will be 100% of the Market Price. The Company will provide written
notification to Plan participants in the event we suspend the discount. No
shares will be available for purchase under the Plan at less than the par value
of such shares, currently $0.83 1/3.
OPTIONAL CASH PAYMENTS
12. HOW DOES THE OPTIONAL CASH PAYMENT WORK?
Optional cash payments may be made at any time, from a minimum amount of
$15.00 in any calendar month to a maximum amount of $5,000.00 in any calendar
quarter. Optional cash payments may be made in varying amounts and there is no
obligation to make regular optional cash payments. Checks or money orders for
optional cash payments must be payable to State Street Bank and Trust Company
and mailed to the Agent at the address set forth under Question 4.
Optional cash payment will be used to purchase common stock of the Company
in either of the following ways as determined by the Company:
a. Direct Issue Purchases:
On each Investment Date, the Agent will use any optional cash payment
received prior to such Investment Date to purchase shares of common stock
directly from the Company for the account of the participants.
b. Open Market Purchases:
On each Investment Date, the Agent will forward any optional cash payments
received to the Purchasing Representative. In addition, we will arrange for the
Agent to forward additional funds to the Purchasing Representative, as
necessary, to allow for the 3% discount in the purchase price of the shares. The
Purchasing Representative will then purchase common stock of the Company on the
open market at prevailing market prices as promptly as it deems advisable but no
later than the last day of the month, consistent with the Purchasing
Representative's fiduciary obligations, market conditions and the requirements
of federal securities laws. The optional cash payment will be 97% of the dollar
value of the total common stock of Company purchased for the participant by the
Purchasing Representative. All common stock purchased in this manner will be
allocated to the account of the participant, and will be deemed invested for
income tax purposes on the Investment Date.
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13. WHEN MUST OPTIONAL CASH PAYMENTS BE RECEIVED BY THE AGENT TO BE INVESTED?
Optional cash payments will be invested on the fifteenth of each month,
whether or not that is a business day. Optional cash payments must be received
by the Agent no later than the fifteenth day of any month in order to be
invested that month. Optional cash payments received by the Agent after the
fifteenth of the month will be held for investment in the following month.
YOU WILL NOT RECEIVE ANY INTEREST ON OPTIONAL CASH PAYMENTS
If you make any optional cash payment and then decide that you do not want
to make that investment, you must make a written request to the Agent to return
your optional cash payment, and the Agent must receive this request at least 48
hours prior to the date of investment. Otherwise, your optional cash payment
will be invested in common stock through the Plan.
REPORTS TO PARTICIPANTS
14. WHAT RECORD WILL A PARTICIPANT HAVE OF THEIR PURCHASES?
Each participant in the Plan will receive from the Agent a statement of
account at least quarterly showing amounts invested, purchase prices, shares
purchased and other information, for the preceding quarter and the year-to-date.
These statements are a participant's continuing record of the cost of such
participant's purchases and should be retained for income tax purposes.
15. WHAT OTHER REPORTS WILL BE RECEIVED BY PARTICIPANTS?
Plan participants will receive the same communications sent to every other
holder of the Company's common stock, including the our Annual Report to
Shareholders, a Notice of Annual Meeting of Shareholders and Proxy Statement, a
proxy, and income tax information forms reporting dividends paid.
CERTIFICATES FOR SHARES
16. WILL CERTIFICATES BE ISSUED TO PARTICIPANTS FOR SHARES PURCHASED UNDER THE
PLAN?
Normally, certificates for common stock purchased under the Plan will not be
issued to participants. The number of shares held in a participant's account
under the Plan will be shown on the quarterly statement of account. However,
within five business days of receipt by the Agent of a written request from a
participant, certificates for any number of whole shares credited to a
participant's account under the Plan will be issued to the participant. Any
remaining full shares and any fractional share will continue to be held in the
participant's account. CERTIFICATES FOR FRACTIONAL SHARES WILL NOT BE ISSUED
UNDER ANY CIRCUMSTANCES. The issuance of certificates will not terminate the
participant's continuation of the Plan. Any request for the issuance of
certificates to a participant should be mailed to the Agent at the address set
forth under Question 4.
Shares credited to the account of a participant in the Plan may not be
acceptable as collateral for loans. A participant who wishes to pledge such
shares should request that certificates for such shares be issued and delivered
to him or her.
17. IN WHOSE NAME WILL CERTIFICATES BE REGISTERED WHEN ISSUED TO A PARTICIPANT?
The certificates will be issued in the name under which the participant's
shares were registered upon enrolling in the Plan.
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WITHDRAWAL FROM THE PLAN
18. WHEN MAY A PARTICIPANT WITHDRAW FROM THE PLAN?
A participant may withdraw from the Plan at any time. If a notice of
withdrawal is received by the Agent at least ten days prior to the record date
for the next dividend such dividend and all subsequent dividends will be paid in
cash to the withdrawing participant. If such notice of withdrawal is received by
the Agent subsequent to the date specified, such dividends will be invested
under the Plan for the participant's account. All subsequent dividends will be
paid in cash to the withdrawing participant. Investment of any optional cash
payments will be cancelled upon receipt by the Agent of such notice of
withdrawal at least 48 hours prior to an investment date, and any optional cash
payments received prior to such withdrawal date will be returned to the
withdrawing participant.
Any shareholder who has withdrawn from the Plan may re-enroll at any time
upon submission of an Authorization Form, as provided under Question 6. Until
such time, dividends will be paid to such shareholder in cash.
19. HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN?
In order to withdraw from the Plan, a participant must write to State Street
Bank and Trust Company, P.O. Box 8209, Boston, Massachusetts 02101 giving notice
that the participant wishes to withdraw from Fall River Gas Company's Share
Owner Dividend Reinvestment and Stock Purchase Plan. The notice must also state
the participant's account number. To facilitate the withdrawal, the participant
may forward the top portion of the most recent quarterly account statement.
When a participant withdraws from the Plan, or upon termination of the Plan
by the Company, the Agent will cause a certificate or certificates for the full
shares credited to the participant's account to be issued and delivered to the
participant. In every case of withdrawal, the participant's interest in any
fractional share will be converted to cash at a price equal to the average of
the high and low sale prices for the Company's common stock for the five trading
days ending on and including such date of withdrawal. Upon withdrawal from the
Plan, the participant may also request in writing that some or all of the
shares, both whole and fractional, held in such participant's Plan account be
sold. If the participant so requests, the Agent will sell such shares and
deliver to the participant the proceeds, less a handling charge of 5% of the
proceeds received from such sale or $5.00 (whichever is less), and broker's
commissions.
Shares will be sold for the participant only upon the receipt by the Agent
of clear written instructions to sell at the prevailing market price and the
proper documents to effect the sale. These documents will include a stock power,
signed by the registered owner exactly as such owner's name appears on the
Agent's records with signature guaranteed according to the Uniform Commercial
Code by a commercial bank which is a member of the Federal Deposit Insurance
Corporation or by a member firm of the New York, American, Boston, Midwest or
Pacific Stock Exchange. If the shares are held of record in the name of a
corporation, partnership, trust or other fiduciary or if a record owner has
died, the Agent may require certified and current evidence of authority before
accepting a request to sell shares of a participant.
VOTING RIGHTS
20. HOW ARE PARTICIPANT'S SHARES VOTED?
All shares owned by the participant, whether they are held by the
shareholder directly or by the Agent, will be combined for voting purposes. Each
participant in the Plan will receive a proxy indicating the total number of
shares of common stock held by the participant, including shares registered in
such participant's name and shares credited to such participant's account under
the Plan.
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Instruction forms for the purpose of voting will be forwarded to the
participant. Alternatively, a participant may vote the shares registered in such
participant's name and shares credited to such participant's Plan account in
person at meetings of the Company's shareholders.
INCOME TAX INFORMATION
21. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN?
a. General:
In general, participants in the Plan have the same Federal income tax
obligations with respect to reinvested dividends as with dividends not
reinvested under the Plan. Participants are treated for Federal income tax
purposes as having received, on the dividend payment date, a dividend equal to
the full amount of the cash dividend payable on such date with respect to (1)
the common stock credited to the participant's account under the Plan, and (2)
the shares of common stock owned directly by the participant (the dividends from
which may or may not be reinvested under the Plan). This is required even though
the reinvested dividends are not actually received but are applied to the
purchase of additional shares.
To the extent that Plan participants purchase shares through the Plan at a
discount, such participant will be deemed to have received income as of the date
of the purchase, for Federal income tax purposes, equal to the value of the
additional shares, or fraction thereof, purchased as a result of the discount.
The tax basis of shares purchased through the Plan is the purchase price,
before the discount if any, per share of the stock on the Investment Date (see
Question 11). The holding period for shares purchased with dividends or option
cash payments begins on the day after the applicable date of investment.
A participant will not realize any taxable income upon receiving
certificates for whole shares, either upon request for certificates for those
shares or upon withdrawal from or termination of the Plan. However, a
participant may realize ordinary income or a capital gain or loss on any cash
payment that is made in settlement of a fractional share upon withdrawal from or
termination of the Plan. Ordinary income or capital gain or loss may also be
realized upon withdrawal from the Plan, when any or all whole shares are sold by
the participant. The amount of income, capital gain or loss will be the
difference between the amount received and the tax basis for both the fractional
and whole shares which are sold.
b. Reinvested Dividends:
A participant will generally be treated, for Federal income tax purposes, as
having received on the Investment Date a dividend in an amount equal to the cash
dividend paid even though that amount is not actually received by the
participant in cash, but, instead, is applied to the purchase of shares for the
participant's account.
c. Tax Information Forms:
Following each tax year, the Company sends each participant a U.S.
Information Return (Form 1099 Div. B) reporting the taxable dividends for that
tax year. This form contains the information necessary for each participant to
complete the dividend income information on his or her Federal income tax
return. Generally, the amount in the box labeled "Total Dividends For The
Calendar Year" should be included on a participant's Federal income tax return
as taxable income.
FOR ADDITIONAL INFORMATION AND ANY QUESTIONS REGARDING TAX CONSEQUENCES OF
PARTICIPATION IN THE PLAN, PARTICIPANTS SHOULD CONSULT THEIR OWN TAX ADVISORS.
22. WHAT PROVISION IS MADE FOR FOREIGN SHAREHOLDERS WHOSE DIVIDENDS ARE SUBJECT
TO U. S. INCOME TAX WITHHOLDINGS?
In the case of those foreign shareholders whose dividends are subject to
United States income tax withholding, the Agent will apply the net amount of the
dividend of such participants, after the deduction of taxes, to the purchase of
common stock. If such foreign participants desire to invest the full amount of
9
<PAGE>
their dividends, they may tender cash payments to the Agent equal to the amount
of tax withheld. The minimum optional cash payment requirement of $15.00 will be
waived to accommodate all payments, regardless of size, made by foreign
shareholders for this express purpose. Such payments will be invested for the
foreign shareholders for this express purpose. Such payments will be invested
for the foreign participants on the regular Investment Date for all participants
if received by the Agent prior to that date. In addition, foreign shareholders
may, of course, make optional cash payments.
MISCELLANEOUS
23. WHAT ARE THE RESPONSIBILITIES OF THE AGENT AND THE COMPANY UNDER THE PLAN?
Neither we nor the Agent, in administering the Plan, will be liable for any
act done in good faith or for any good faith omission to act, including, without
limitation, any claim of liability arising out of failure to terminate a
participant's account upon such participant's death prior to receipt of notice
in writing of such death.
Participants should recognize that neither we nor the Agent can assure a
profit or protect the participant against a loss on the shares purchased by the
participant under the Plan.
Adoption of the Plan does not constitute any assurance that dividends will
be paid in the future or that they will be paid on the same dividend payment
dates as in the past.
24. MAY THE PLAN BE CHANGED OR DISCONTINUED?
Although we hope that shareholder response will justify continuing the Plan
indefinitely, we reserve the right to modify, suspend or terminate the plan at
any time. Notice of any such action will be mailed to all participants at their
address of record. If we terminate the plan, we will issue certificates for
whole shares credited to each participant's account under the Plan, and we will
make a cash payment to each participant for the value of any fractional share
credited to their account.
25. WHAT HAPPENS IF A PARTICIPANT SELLS OR TRANSFERS ALL THE SHARES REGISTERED
TO THE PARTICIPANT?
If a participant sells or transfers all of the shares registered in the
participant's name, participation in the Plan will terminate automatically. We
will issue certificates for whole shares credited to the participant's account
under the Plan, and we will make a cash payment to the participant for the value
of any fractional share credit to their account.
10
<PAGE>
DIVIDENDS ON COMMON STOCK
The following table sets forth the cash dividends declared and paid on the
Company's common stock for the periods shown:
<TABLE>
<CAPTION>
DIVIDEND DIVIDEND
QUARTER ENDED PER SHARE QUARTER ENDED PER SHARE
- ------------------------------------------ ----------- ------------------------------------------ -----------
<S> <C> <C> <C>
June 30, 1997............................. $ 0.24 June 30, 1998............................. $ 0.24
September 30, 1997........................ $ 0.24 September 30, 1998........................ $ 0.24
December 31, 1997......................... $ 0.24 December 31, 1998......................... $ 0.24
March 31, 1998............................ $ 0.24 March 31, 1999............................ $ 0.24
</TABLE>
We intend to declare and pay dividends quarterly on our common stock, but we
can make no representations concerning the amount or frequency of future
dividends. The declaration of dividends must be determined by the Board of
Directors from time to time in the light of earnings, cash position and other
relevant factors then existing. Reference is made to "Description of Common
Stock" herein for information with respect to limitations on the payment of
dividends.
COMMON STOCK PRICE RANGE
Our common stock is traded on the American Stock Exchange. The table below
sets forth the high and low sale prices for shares of our common stock for the
periods indicated.
<TABLE>
<CAPTION>
QUARTER ENDED HIGH LOW
- ------------------------------------------------------------------------------------------------- --------- ---------
<S> <C> <C>
June 30, 1997(*)................................................................................. 16.00 13.00
September 30, 1997(*)............................................................................ 13.50 12.75
December 31, 1997................................................................................ 16.25 16.00
March 31, 1998................................................................................... 16.25 16.19
June 30, 1998.................................................................................... 14.75 14.50
September 30, 1998............................................................................... 15.50 15.45
December 31, 1998................................................................................ 16.94 16.86
March 31, 1999................................................................................... 17.63 17.63
</TABLE>
The high and low sale prices on May 17, 1999 were $17.675 and $17.875. These
quotations represent prices between dealers and do not include retail markup,
markdown or commission. They do not necessarily represent actual transactions.
- ------------------------
* Our common stock was traded over-the-counter prior to October 31, 1997.
These numbers represent the bid and asked prices for shares of our common
stock for the periods indicated.
DESCRIPTION OF COMMON STOCK
As of April 11, 1999 the authorized capital stock of the Company consisted
of 2,951,334 shares of common stock, $0.83 1/3 par value, of which 2,197,283
were issued and outstanding, and 4051 shares of common stock were held in the
Company's treasury.
The information set forth below is summarized from the Articles of
Organization, as amended, of the Company and the Indentures referred to below,
filed as exhibits to the Registration Statement of which this Prospectus is
part. The statements and descriptions contained in this Prospectus do not
purport to be complete and are qualified in their entirety by reference to such
exhibits.
11
<PAGE>
DIVIDEND RIGHTS
The holders of common stock shall be entitled to receive such dividends as
may be declared by the Board of Directors.
LIMITATION ON PAYMENT OF DIVIDENDS ON COMMON STOCK
The provisions of the Company's indentures securing the Company's
outstanding First Mortgage Bonds impose certain restrictions on the payment of
cash dividends on, or repurchases of, common stock. Under the most restrictive
of these provisions, $4,168,445 of retained earnings was unrestricted at January
31, 1998.
VOTING RIGHTS
Except as provided by law or otherwise provided below, the holders of common
stock have the sole voting rights and are entitled to one vote for each share
held of record. In addition, holders of fractional shares are permitted a vote
equal to their fractional interest. The Company's Board of Directors is
classified into three classes of three directors and there are no cumulative
voting rights, which means that a majority of the common stock voting at any
election can elect the three directors of the class whose term then expires.
The Company's Charter and By-laws contain provisions specifying the vote
necessary to take certain actions. The approval of a business combination not
approved by two-thirds vote of the Board of Directors requires a 75% vote of
common stock holders. The approval of Charter amendments removing or altering
that provision and provisions concerning classification of directors, filling
vacancies in the Board of Directors and notice requirements for shareholder
meetings requires a 75% vote of common stock holders.
LIQUIDATION RIGHTS
The common stock is entitled to receive all net assets in liquidation after
repayment of the Company's indebtedness.
CHARTER PROVISIONS THAT MAY AFFECT ATTEMPTS TO CHANGE CONTROL OF THE COMPANY
The Company's Charter and By-laws contain provisions that may have the
effect of delaying or deterring a change in control of the Company by requiring
a vote of the holders of 75% of the Company's outstanding common shares for
approval of certain business combinations of the Company and another entity,
which the Company's Board of Directors has not approved by a two-thirds
majority. Other provisions concerning classification of the Board, filling
vacancies on the Board and notice requirements may have such an effect, but
those provisions operate regardless of whether or not extraordinary corporate
transactions are proposed.
MISCELLANEOUS
The common stock has no conversion rights and is not subject to redemption.
The outstanding shares of common stock are, and the shares to be issued under
the Plan will, when issued and paid for, be fully paid and non-assessable.
We distribute to our shareholders annual reports containing audited
financial statements, and, in addition, twelve-month condensed financial
statements in each quarter.
The transfer agent of the Company's common stock is State Street Bank and
Trust Company, Boston, Massachusetts.
12
<PAGE>
LEGAL OPINIONS
Legal matters in connection with this offering will be passed upon for the
Company by Rich, May, Bilodeau & Flaherty, P.C., The Old South Building, 294
Washington Street, Boston, Massachusetts 02108, general counsel for the Company.
EXPERTS
The financial statements and schedules of the Company, included in the
Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1998, incorporated by reference herein and elsewhere in the Registration
Statement have been incorporated herein and in the Registration Statement in
reliance upon the reports of Arthur Andersen, LLP independent certified public
accountants, included in such Form 10-K incorporated by reference herein, and
given upon the authority of said firm as experts in accounting and auditing.
INDEMNIFICATION
The Company's By-laws permit the Company's directors and officers (and
persons who occupy such positions in other companies at the request of the
Company) to be indemnified for liabilities arising in connection with any
action, suit or proceeding prosecuted to a final determination on the merits
(except any costs or expenses as to which such person shall be finally adjudged
to be liable), and any action, suit or proceeding which is settled with the
approval of the court having jurisdiction thereof, but only in such amount
(which shall not include any sum ordered to be paid by such indemnified person
to the Company) as such court shall determine to be fair and reasonable under
the circumstances. Indemnification payments properly authorized may include
reimbursement for the amount of the claim or judgment and expenses of defense,
including legal fees. Massachusetts law allows such indemnification, but limits
provision of indemnification where a person is adjudicated not to have acted in
good faith in the reasonable belief that such action was in the best interest of
the corporation. Indemnification is also available to officers and directors in
connection with certain actions taken by them in reliance upon governmental
regulations, rules, orders and determinations. Certain liabilities arising under
the Securities Act of 1933 may be covered by this indemnification provision,
although the By-laws provide that indemnification of liabilities arising under
such Act shall be available only to the extent that such rights of
indemnification may be determined to be valid by a court of competent
jurisdiction. Massachusetts law also allows a corporation to purchase and
maintain insurance on behalf of such persons against any liabilities incurred in
the capacity of director or officer and the Company has such insurance.
Pursuant to a vote by Common Stock holders at their 1987 Annual Meeting, the
Company's Articles of Organization were amended to provide that, to the fullest
extent that the General Laws of the Commonwealth of Massachusetts as they exist
on the date of such vote, or as they may thereafter be amended, permit the
limitation or elimination of the liability of directors, no director of the
Company shall be personally liable to the Company or its shareholders for
monetary damages for breach of fiduciary duty, notwithstanding any provision of
law imposing such liability. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director of the Company with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
13
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information................ 2
Incorporation of Certain Documents by
Reference.......................... 2
The Company.......................... 3
Use of Proceeds...................... 3
Description of the Plan.............. 3
Dividends on Common Stock............ 11
Common Stock Price Range............. 11
Description of Common Stock.......... 11
Legal Opinions....................... 13
Experts.............................. 13
Indemnification...................... 13
</TABLE>
[LOGO]
FALL RIVER GAS COMPANY
SHARE OWNER
DIVIDEND REINVESTMENT
AND
STOCK PURCHASE PLAN
COMMON STOCK
($0.83 1/3 PAR VALUE)
MAY 21, 1999
---------------------
PROSPECTUS
---------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the proposed issuance and
distribution of the common stock are set forth below:
<TABLE>
<S> <C>
SEC Registration Fee............................................... $ 0
Printing........................................................... $ 5,000
Accounting Fees.................................................... $ 3,000
Legal Fees......................................................... $ 18,000
Blue Sky Fees and Expenses......................................... $ 2,000
Miscellaneous Expenses............................................. $ 2,000
Total (estimated)............................................ $ 29,000
</TABLE>
Each amount set forth above, except for the SEC Registration Fee, is
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The general effect of the Company's Bylaws with respect to issuance for and
indemnification of directors and officers is set forth in Part I of this
Registration Statement under "INDEMNIFICATION" and is incorporated herein by
reference thereto.
ITEM 16. LIST OF EXHIBITS
See Exhibit Index at page II-5.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include in any prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(ii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That for the purpose of determining any liability under the Act each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof;
(3) That for the purpose of determining any liability under the Act each
filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
II-1
<PAGE>
(4) That all post-effective amendments will comply with the applicable
forms, rules and regulations of the Commission in effect at the time such
post-effective amendments are filed;
(5) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(6) To furnish the Division of Corporation Finance a letter informing
said Division when all of the securities registered have been sold.
The issuer hereby undertakes to transmit or cause to be transmitted to all
participants in the Plan (except those who, having the same address as a
shareholder of the registrant, have consented in writing that only one copy of
such material need be sent to such address), who do not otherwise receive such
material as shareholders of the issuer, at the time and in the manner such
material is sent to its shareholders generally, copies of all reports, proxy
statements and other communications distributed to its shareholders generally.
The issuer also undertakes to transmit to the Commission for its information
copies of all such material which is not otherwise furnished to or filed with
the Commission pursuant to any other requirement of the Commission. Copies of
such material transmitted to the Commission pursuant to this undertaking shall
not be deemed to be "filed" as a part of the registration statement.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Boston, Massachusetts, on
the 17th day of May, 1999.
FALL RIVER GAS COMPANY
BY: /S/ BRADFORD J. FAXON
-----------------------------------------
Bradford J. Faxon
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bradford J. Faxon and Peter H. Thanas, and each
of them, his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about said matters
as fully to all intents and purposes as he or she might or could do in person,
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons and in the
capacities indicated on May 17, 1999.
(i) Principal Executive
Officer:
/s/ BRADFORD J. FAXON President
-----------------------
Bradford J. Faxon
(ii) Principal Financial
Officer and
Principal Accounting
Officer:
/s/ PETER H. THANAS Senior Vice President and
- ------------------------------ Treasurer
Peter H. Thanas
(iii) Directors
/s/ CINDY L.J. AUDETTE
- ------------------------------
Cindy L.J. Audette
/s/ THOMAS K. BARRY
- ------------------------------
Thomas K. Barry
/s/ THOMAS H. BILODEAU
- ------------------------------
Thomas H. Bilodeau
/s/ BRADFORD J. FAXON
- ------------------------------
Bradford J. Faxon
II-3
<PAGE>
<TABLE>
<C> <S>
/s/ RAYMOND H. FAXON
- ------------------------------
Raymond H. Faxon
/s/ RONALD J. FERRIS
- ------------------------------
Ronald J. Ferris
/s/ JACK R. MCCORMICK
- ------------------------------
Jack R. McCormick
/s/ GILBERT C. OLIVEIRA, JR.
- ------------------------------
Gilbert C. Oliveira, Jr.
/s/ DONALD R. PATNODE
- ------------------------------
Donald R. Patnode
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Certain of the following exhibits are filed herewith. Certain other of the
following exhibits have heretofore been filed with the Commission and pursuant
to Rule 411 are incorporated herein by reference.
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBITS*** DESCRIPTION OF EXHIBIT PAGE NUMBER
- ----------- -------------------------------------------------------------------------------------- -------------------
<S> <C> <C>
4(a) Instruments defining the rights of security holders, including indentures. Filed as
Exhibit 4 to Report on Form 10-K for calendar year ended December 31, 1982.
**4(b) Eleventh Supplemental Indenture, dated as of December 15, 1989 between the Company and
First National Bank of Boston (Trustee).
**4(c) Twelfth Supplemental Indenture, dated as of December 20, 1989 between the Company and
First National Bank of Boston (Trustee).
**4(d) Thirteenth Supplemental Indenture dated as of September 19, 1996 between the Company
and State Street Bank and Trust Company (Trustee), as Successor in interest to First
National Bank of Boston.
*4(e) Fourteenth Supplemental Indenture dated as of December 1, 1997 between the Company and
State Street Bank and Trust Company (Trustee), as Successor in interest to First
National Bank of Boston.
*5 Opinion of Rich, May, Bilodeau & Flaherty, P.C.
*24(a) Consent of Arthur Andersen LLP, independent certified public accountants.
*24(b) Consent of Rich, May, Bilodeau & Flaherty, P.C. (included in opinion filed as Exhibit
5 to this Registration Statement).
*25(a) Power of Attorney (set forth on Page II-3 of this Registration Statement).
**99(a) A copy of the Order of the Massachusetts Department of Public Utilities relating to
the issue and the sale of common stock pursuant to the Plan.
</TABLE>
- ------------------------
* Filed herewith
** Filed as exhibits to Registration Statement on Form S-3, SEC File No.
333-13995
*** Exhibit numbers designated in Regulation S-K.
II-5
<PAGE>
Exhibit 4(e)
FALL RIVER GAS COMPANY
TO
STATE STREET BANK AND TRUST I COMPANY,
SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF BOSTON,
___________________________________________ Trustee
FOURTEENTH SUPPLEMENTAL INDENTURE
dated as of December 1, 1997
Supplementing the Indenture of First Mortgage
dated as of December 1, 1952,
the First Supplemental Indenture
dated as of January 1, 1955,
the Second Supplemental Indenture
dated as of September 1, 1957,
the Third Supplemental Indenture
dated as of December 1, 1957,
the Fourth Supplemental Indenture
dated as of February 1, 1958,
the Fifth Supplemental Indenture
dated as of May 1, 1959,
the Sixth Supplemental Indenture
dated as of May 1, 1961,
the Seventh Supplemental Indenture
dated as of November 1, 1961,
the Eighth Supplemental Indenture
dated as of November 1, 1966
the Ninth Supplemental Indenture
dated as of June 30, 1971
the Tenth Supplemental Indenture
dated as of June 1, 1981
the Eleventh Supplemental Indenture
dated as of December 15, 1989
the Twelfth Supplemental Indenture
dated as of December 20, 1989 and
the Thirteenth Supplemental Indenture
dated as of September 19, 1996
-------------------------------------------
This is a Mortgage of Personal Property as well as a
Mortgage upon Real Estate
<PAGE>
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of. December 1, 1997,
between FALL RIVER GAS COMPANY, formerly named Fall River Gas Works Company, a
corporation organized and existing under the laws of The Commonwealth of
Massachusetts and having its principal place of business in the City of Fall
River in said Commonwealth (hereinafter called the "Company") and STATE STREET
BANK AND TRUST COMPANY, a trust company organized and existing under the laws of
The Commonwealth of Massachusetts (successor in interest to The First National
Bank of Boston, successor by merger to Old Colony Trust Company), having its
principal place of business in the City of Boston in The Commonwealth of
Massachusetts (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to Old
Colony Trust Company, trustee (State Street Bank and Trust Company, successor
trustee, successor in interest to The First National Bank of Boston, successor
by merger to Old Colony Trust Company), an Indenture of First Mortgage dated as
of December 1, 1952 (hereinafter called the "Original Indenture"), a First
Supplemental Indenture dated as of January 1, 1955 (hereinafter called the
"First Supplemental Indenture"), a Second Supplemental Indenture dated as of
September 1, 1957 (hereinafter called the "Second Supplemental Indenture"), a
Third Supplemental Indenture dated as of December 1, 1957 (hereinafter called
the "Third Supplemental Indenture"), a Fourth Supplemental Indenture dated as of
February 1, 1958 (hereinafter called the "Fourth Supplemental Indenture"), a
Fifth Supplemental Indenture dated as of May 1, 1959 (hereinafter called the
"Fifth Supplemental Indenture"), a Sixth Supplemental Indenture dated as of May
1, 1961 (hereinafter called the "Sixth Supplemental Indenture"), a Seventh
Supplemental Indenture dated as of November 1, 1961 (hereinafter called the
"Seventh Supplemental Indenture"), an Eighth Supplemental Indenture dated as of
November 1, 1966 (hereinafter called the "Eighth Supplemental Indenture"), a
Ninth Supplemental Indenture dated as of June 30, 1971 (hereinafter called the
"Ninth Supplemental Indenture"), a Tenth Supplemental Indenture dated as of June
1, 1981 (hereinafter called the "Tenth Supplemental Indenture"), an Eleventh
Supplemental Indenture dated as of December 15, 1989 (hereinafter called the
"Eleventh Supplemental Indenture"), a Twelfth Supplemental Indenture dated as of
December 20, 1989 (hereinafter called the "Twelfth Supplemental Indenture") and
a Thirteenth Supplemental Indenture dated as of September 19, 1996 (hereinafter
called the "Thirteenth Supplemental Indenture") to secure, as provided therein,
its bonds (therein and herein called the "Bonds"), to be known generally as its
"First Mortgage Bonds", and to be issued in one or more series as provided in
the Original Indenture; and
WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000)
aggregate principal amount of First Mortgage Bonds, 4 1/4% Series due
1972, of the Company have been heretofore issued, all of which Bonds
were retired contemporaneously with the issue and sale of First
Mortgage Bonds, 3 3/4% Series due 1980, referred to below; and
WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000)
aggregate principal amount of First Mortgage Bonds, 3 3/4% Series due 1980 (in
the First Supplemental
1
<PAGE>
Indenture and herein called the "Bonds of the 1980 Series"), of the Company
have been heretofore issued, all of which Bonds have been retired; and
WHEREAS, One Million Dollars ($1,000,000) aggregate principal amount
of First Mortgage Bonds, 5 1/4% Series due 1980 (in the Second Supplemental
Indenture and herein called the "Bonds of the Second 1980 Series") of the
Company have been heretofore issued, all of which Bonds have been retired; and
WHEREAS, One Million Two Hundred Thousand Dollars ($1,200,000)
aggregate principal amount of First Mortgage Bonds, 5 1/4% Series due 1986 (in
the Sixth Supplemental Indenture and herein called the "Bonds of the 1986
Series") of the Company have been heretofore issued, all of which Bonds have
been retired; and
WHEREAS, Three Million Two Hundred Thousand Dollars ($3,200,000)
aggregate principal amount of First Mortgage Bonds, 8 3/4% Series due 1996 (in
the Ninth Supplemental Indenture and herein called the "Bonds of the 1996
Series") have heretofore been issued, all of which Bonds have been retired; and
WHEREAS, Three Million Four Hundred Thousand Dollars ($3,400,000)
aggregate principal amount of First Mortgage Bonds, 15% Series due 1993 (in the
Tenth Supplemental Indenture and herein called the "Bonds of the 1993 Series")
of the Company have been heretofore issued, all of which Bonds have been
retired; and
WHEREAS, Six Million Five Hundred Thousand Dollars ($6,500,000)
aggregate principal amount of First Mortgage Bonds, 9.44% Series due 2020 (in
the Twelfth Supplemental Indenture and herein called the "Bonds of the 2020
Series") have heretofore been issued of which Six Million Five Hundred Thousand
Dollars ($6,500,000) are presently outstanding; and
WHEREAS, Seven Million Dollars ($7,000,000) aggregate principal amount
of First Mortgage Bonds, 7.99% Series due 2026 (in the Thirteenth Supplemental
Indenture and herein called the "Bonds of the 2026 Series") have heretofore been
issued of which Seven Million Dollars ($7,000,000) are presently outstanding;
and
WHEREAS, the Board of Directors of the Company has established under
Section 3.02 of the Original Indenture a new series of Bonds to be designated
First Mortgage Bonds, 7.24% Series due 2027 (hereinafter referred to as "Bonds
of the 2027 Series") and has authorized the issue of said Bonds of the 2027
Series in the aggregate principal amount of Six Million Dollars ($6,000,000)
pursuant to the provisions of Article Two of this Fourteenth Supplemental
Indenture; and
WHEREAS, Section 18.01 of the Original Indenture provides, among other
things, that the Company, when authorized by a resolution of the Board of
Directors, and the Trustee, from time to time and at any time, subject to the
restrictions in the Original Indenture, as supplemented and modified, contained,
may, and when so required by the Original Indenture,
-2-
<PAGE>
shall, enter into indentures supplemental to the Original Indenture and which
thereafter shall form a part thereof, for the purposes, among others, of (a)
mortgaging, pledging, conveying, transferring or assigning to the Trustee, and
subjecting to the lien of the Original Indenture additional properties acquired
by the Company, (b) adding to the Original Indenture other covenants and
agreements to be thereafter observed by the Company, (c) providing for the
creation of any Series of Bonds, designating the series to be created and
specifying the form and provisions of the Bonds of such series, and (d)
changing, altering, modifying, varying , or eliminating any of the terms,
provisions, restrictions or conditions of the Original Indenture, subject as set
forth therein; and
WHEREAS, Section 18.02 of the Original Indenture provides, among other
things, that the Company, when authorized by a resolution of the Board of
Directors, and the Trustee, may, from time to time and at any time, and subject
as set forth in said Section 18.02, enter into an indenture or indentures
supplemental to the Original Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Original Indenture or of any supplemental indenture and modifying certain rights
and obligations of the Company and certain rights of the holders of any of the
Bonds and coupons; and
WHEREAS, the Board of Directors and the Stockholders of the Company by
resolutions duly adopted authorized to the extent required by law the execution
of this Fourteenth Supplemental Indenture for the purposes of (a) subjecting to
the lien of the Original Indenture the additional properties acquired by the
Company since the execution of the Thirteenth Supplemental Indenture, and (b)
creating the Bonds of the 2027 Series, designating the series created and
specifying the form and the provisions of the Bonds of such series, (the
Original Indenture, as supplemented and modified by the First through the
Thirteenth Supplemental Indentures, inclusive, and as supplemented by this
Fourteenth Supplemental Indenture being herein sometimes called the
"Indenture"); and
WHEREAS, all acts and proceedings required by law and by the
Certificate of Organization and Certificate of Incorporation and by-laws of the
Company necessary to secure the payment of the principal of and interest and
premium, if any, on the Bonds of the 2027 Series, to make the Bonds of the 2027
Series to be issued hereunder, when executed by the Company, authenticated and
delivered by the Trustee and duly issued, the valid, binding and legal
obligations of the Company, and to constitute the Indenture a valid and binding
mortgage for the security of the Bonds, in accordance with its and their terms,
have been done and taken; and the execution and delivery of this Fourteenth
Supplemental Indenture and the issue of the Bonds of the 2027 Series have been
in all respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and premium, if any, and interest on all Bonds at
any time issued and outstanding under the Indenture, according to their tenor,
purport and effect, to confirm the lien of the Indenture upon property
purchased, constructed or otherwise acquired by the Company since the date of
execution of the Thirteenth Supplemental Indenture and to secure the performance
and observance of all the covenants and conditions herein and in the Bonds
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and in the Indenture contained, and to declare the terms and conditions upon and
subject to which the Bonds of the 2027 Series are and are to be issued and
secured, and for and in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the Bonds of
the 2027 Series by the holders thereof, and of the sum of Ten Dollars ($10) duly
paid to the Company by the Trustee, at or before the ensealing and delivery.
hereof, and for other valuable considerations, the receipt whereof is hereby
acknowledged, the Company has executed and delivered this Fourteenth
Supplemental Indenture, and by these presents, does grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, pledge, set over and
confirm unto STATE STREET BANK AND TRUST COMPANY, Trustee, its successors in
trust and its and their successors and assigns, all property real, personal or
mixed described in the Original Indenture and the First through the Thirteenth
Supplemental Indentures and thereby conveyed or mortgaged or intended so to be,
including all such property acquired since the execution and delivery of the
Thirteenth Supplemental Indenture which by the terms of the Indenture is
subjected or is intended to be subjected to the lien thereof, including, without
limiting the generality of the foregoing, the following described property:
CLAUSE I.
All of the lands, gas plants and systems, gas works, buildings,
structures, garages, sheds, repair shops, storage houses, erections and
constructions now or hereafter placed on or under any of the real estate
described in Article Twenty of the Original Indenture or in the granting clauses
of the First through the Thirteenth Supplemental Indentures or on or under any
part hereof, or on or under any real estate thereafter acquired by the Company,
with their fixtures and appurtenances, including (but without in any way
limiting the generality of the foregoing) the properties and rights more
particularly described in said Article Twenty of the Original Indenture, in
Schedule A of the Second Supplemental Indenture or in the granting clauses of
the First through the Thirteenth Supplemental Indentures.
CLAUSE II.
Also all other real estate and all interests therein now owned or
hereafter acquired by the Company including (but without in any way limiting the
generality of the foregoing) the real estate and interests therein more
particularly described in Schedule A annexed hereto.
CLAUSE III.
All of the machinery, engines, boilers, furnaces, water wells, motors,
compressors, conduits, mains, gates, tubes, drains, switchboards, services,
pumps, pumping stations, gas holders, reservoirs, expansion tanks, gas mains and
pipes, tunnels, subways, bridges, service pipes, pipe lines, fittings, reducers,
regulators, drips, valves, connections, implements, meters, tools, gas,
mechanical and all other appliances, instruments, apparatus, appurtenances and
facilities now owned by the Company or hereafter acquired by it, and
constituting or to constitute parts of its gas storage plant or gas distributing
system or the equipment thereof or
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used or provided for use in or appurtenant to the manufacture, transportation,
storage, distribution and sale of manufactured gas, natural gas, propane gas,
butane gas or a mixture of any thereof(other than excepted property as
hereinafter defined), and there is included herein (but not to the exclusion of
any other property now owned or hereafter acquired by the Company), the gas
manufacturing plants, gas storage plants and gas distributing systems owned by
the Company, including (but without in any way limiting the generality of the
foregoing) the properties and rights more particularly described in said Article
Twenty of the Original Indenture, in Schedule A of the Second Supplemental
Indenture or in the granting clauses of the First through the Thirteenth
Supplemental Indentures.
CLAUSE IV.
All easements, leases, rights, powers, privileges, indeterminate
permits, water and riparian rights, and all interests therein, dams and dam
sites, franchises, licenses, rights of way, immunities and concessions of the
Company, whether granted or acquired by virtue of its Charter, or by virtue of
the acts, resolutions, concessions, ordinances, contracts, or other grants of
any municipality, county, or other political subdivision or of any private
person or body corporate or otherwise, howsoever conferred, now owned or
hereafter to be acquired by the Company, to lay, erect, construct, maintain and
repair any plants or other property including conduits, mains, pipes, pipe
lines, pumping, compressor, regulator and measuring stations, meters, and other
equipment to vend gas, within the limits of any incorporated village or city, or
elsewhere (other than excepted property as hereinafter defined), and there is
included herein (but not to the exclusion of any other property now owned or
hereafter acquired by the Company) any indeterminate permits, franchises,
permits, grants, rights of way and easements owned by the Company for the
transmission and distribution of manufactured gas, natural gas, propane gas,
butane gas or a mixture of any thereof, and the laying, erection, construction,
maintenance and repair of conduits, mains, pipes, pipe lines, pumping,
compressor, regulator and measuring stations, meters and other equipment for
that purpose, and wheresoever situated (but not herein specifically excepted),
including (but without in any way limiting the generality of the foregoing) the
properties and rights more particularly described in said Article Twenty of the
Original Indenture, in Schedule A of the Second Supplemental Indenture or in the
granting clauses of the First through the Thirteenth Supplemental Indentures.
CLAUSE V.
Also all property, real, personal and mixed (except as herein expressly
excepted), of every nature and description and wheresoever situated, whether or
not herein specifically described, and all interests therein, now owned or
hereafter acquired by or belonging to the Company or to which it now is, or may
at any time hereafter be, in any manner entitled at law or in equity.
CLAUSE VI.
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Also all renewals, replacements, accessions, additions, improvements,
betterments, developments, extensions, and enlargements, hereafter made,
constructed or acquired by the Company to, of or upon any or all such
properties, equipment, systems and/or plants and all property used thereby or
useful therefor or incidental thereto or connected therewith now or at any time
hereafter subject to the lien of the Indenture, or required so to be by any
provision herein contained, and also all franchises, permits and similar rights
acquired in connection therewith.
CLAUSE VII.
Also any and all property of every kind or description (including any
property which may be expressly excepted by Clause IX of these granting clauses)
which may at any time or from time to time after the date of this Fourteenth
Supplemental Indenture by delivery or by writing of any kind be conveyed,
mortgaged, pledged, assigned or transferred to the Trustee by the Company, or by
any person, firm, association or corporation with the consent of the Company, or
otherwise as expressly permitted by the terms of the Indenture, and accepted by
the Trustee, to be held as part of the mortgaged property; and the Trustee is
hereby authorized to accept and receive any such property and any such
conveyance, mortgage, pledge, assignment or transfer as and for additional
security hereunder, and to hold and apply any and all such property subject to
and in accordance with the terms and provisions upon which such delivery,
conveyance, mortgage, pledge, assignment or transfer shall be made, not
inconsistent with the terms of the Indenture.
CLAUSE VIII.
TOGETHER with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid properties
or any part thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income, product and profits thereof,
and all the estate, rights, title, interest and claim whatsoever, at law as well
as in equity, which the Company now has or may hereafter acquire in and to the
aforesaid properties and every part and parcel thereof.
SUBJECT, HOWEVER, to the following (none of which, in the opinion of
the Company, materially interferes with the conduct of its business): the
reservations, exceptions, conditions, limitations and restrictions contained in
the several deeds, franchises and contracts or other instruments through which
the Company acquired or claims title to or enjoys the use of the mortgaged
property; such servitudes, easements, rights and privileges in, over, on, under
or through said properties as have been granted by the Company to other persons;
statutory and municipal requirements relating to land and buildings; the rights
of the public and others in streets, roads and highways, open or unopen, or laid
out but unopened, crossing or bounding any of the said parcels; the rights of
The Commonwealth of Massachusetts and of the United States of America, in and to
any streams, rivers or bodies of water abutting any of the said parcels; the
rights of electric, gas, water, telephone and telegraph companies (other than
the Company) to maintain and operate pole lines, conduits, and gas and water
mains over or through any of the said parcels or on or in the streets, roads or
highways abutting thereon as
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the same may now or hereafter be located; any easements visible on the ground
but not evidenced by recorded agreements or grants; and permitted encumbrances
as defined in Section 1.40 of the Original Indenture; and, with respect to any
property which the Company may hereafter construct or acquire, to any liens then
in effect thereon or placed thereon for unpaid portions of the purchase money at
the time of such acquisition, to the extent permitted by Section 9. 10 of the
Original Indenture.
CLAUSE IX.
EXCEPTED PROPERTY
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from the Indenture and from
the lien and operation thereof:
(a) any and all property expressly excepted and excluded from the
Original Indenture and from the lien and operation thereof by paragraph A and
all property of the character expressly excepted and excluded by paragraph B
through I of Clause IX of the Granting Clauses of the Original Indenture;
(b) all property, if any, expressly excepted from the lien of the
Indenture in the descriptions of the property contained in Schedule A of the
Second Supplemental Indenture;
(c) any and all property expressly excepted from the lien of the
Indenture in the Granting Clauses of the First through the Thirteenth
Supplemental Indentures;
(d) any and all property expressly excepted in the Granting Clauses of
this Fourteenth Supplemental Indenture; and
(e) all property which prior to the execution and delivery of this
Fourteenth Supplemental Indenture has been released by the Trustee or otherwise
disposed of by the Company free from the lien of the Indenture in accordance
with the provisions thereof.
If upon the happening of any default as defined in Article Twelve of
the Original Indenture, the Trustee or a receiver or trustee shall enter upon
and take possession of the trust estate, the Trustee or such receiver or trustee
may, to the extent permitted by law, at the same time likewise take possession
of any and all of the property specifically excepted under the heading "Excepted
Property" of Granting Clause IX of the Original Indenture, other than paragraph
G thereof, together with any and all of the property specifically excepted in
the descriptions of the property contained in Schedule A of the Second
Supplemental Indenture, and any and all property expressly excepted in the
Granting Clauses of the First through the Thirteenth Supplemental Indentures and
in the Granting Clauses of this Fourteenth Supplemental Indenture, then on hand
and use and administer the same to the same extent as if such property were part
of the trust estate, unless and until such default shall be remedied or waived
and possession of the trust estate restored to the Company.
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TO HAVE AND TO HOLD all of the property, real, personal and mixed, and
all and singular the lands, properties, estates, rights, franchises, privileges
and appurtenances hereby granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed, or
intended so to be, unto the Trustee and its successors in trust and to its and
their assigns, forever.
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
Bonds and coupons, or any of them, authenticated and delivered under the
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one Bond or coupon over any other by reason or
priority in the time of issue, sale or negotiation thereof or otherwise, except
as provided in Section 12.28 of the Original Indenture, so that, subject to said
Section 12.28 each and all of said Bonds and coupons shall have the same right,
lien and privilege under the Indenture and shall be equally and proportionately
secured thereby (except as any sinking, depreciation or other analogous fund
established in accordance with the provisions of the Indenture may afford
additional security for the Bonds of any particular series), with the same
effect as if all of the Bonds and coupons had been issued, sold and negotiated
simultaneously on the date of the delivery of the Original Indenture.
THE COMPANY HEREBY DECLARES that it holds and will hold and apply all
property and rights, described in paragraph G of Clause IX of the Original
Indenture as specifically reserved and excepted, upon the trusts as set forth in
the Indenture, and as the Trustee (or any purchaser upon any sale of the
mortgaged property) shall for such purpose direct from time to time to the
fullest extent permitted by law or in equity and by any instruments creating the
same, as fully as if the same could be and had been hereby granted, conveyed,
mortgaged, pledged, transferred and assigned to and vested in the Trustee.
It is hereby covenanted, declared and agreed by and between the parties
hereto that all Bonds and coupons, if any, are to be authenticated, delivered
and issued and that all property subject or to become subject to the Indenture
is to be held, subject to the further covenants, conditions, uses and trusts set
forth in the Indenture, and the Company for itself and its successors or assigns
does hereby covenant and agree to and with the Trustee and its successor or
successors in such trust, for the benefit of those who shall hold said Bonds, or
coupons, or any of them, as follows:
ARTICLE ONE.
BONDS OF THE 2027 Series
AND CERTAIN PROVISIONS RELATING THERETO.
Section 1.01. A. TERMS OF BONDS OF THE 2027 SERIES. There shall be and
hereby is created a new series of Bonds, known as and entitled "First Mortgage
Bonds, 7.24% Series due 2027" (herein referred to as the "Bonds of the 2027
Series"). The principal amount of the Bonds of the 2027 Series shall be and
hereby is limited, except for duplicate Bonds
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authenticated and delivered pursuant to Section 3.12 of the Original Indenture,
to Six Million Dollars ($6,000,000) in aggregate principal amount.
The definitive Bonds of the 2027 Series shall be registered Bonds
without coupons of the denomination of $100,000 or any multiple thereof.
The Bonds of the 2027 Series will, notwithstanding the provisions of
Section 3.05 of the Original Indenture, be dated and bear interest from the date
of initial issue and payment to the Company by the purchaser or purchasers
thereof. All Bonds of the 2027 Series shall mature December 15, 2027, and will
bear interest at the rate of 7.24% per annum until the payment of the principal
7 thereof, such interest to be payable on June 15, 1998 and thereafter
semi-annually on June 15 and December 15 in each year. The principal of, the
premium, if any, and interest on, the Bonds of the 2027 Series will be paid in
any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts, at the
principal corporate trust office of the Trustee in Canton, Massachusetts. For
purposes of this Fourteenth Supplemental Indenture and the Bonds of the 2027
Series, the term "premium" shall include any "Make Whole Amount", as the latter
term is defined in such Bonds.
The definitive Bonds of the 2027 Series, notwithstanding the provisions
of Section 3.04 of the Original Indenture, may be printed, typed or otherwise
reproduced in any manner satisfactory to the Trustee without the use of
engraving or steel engraved borders.
As permitted by the provisions of Section 3.10 of the Original
Indenture and upon payment at the option of the Company of the charges provided
in Section 3.11 of the Original Indenture, Bonds of the 2027 Series may be
exchanged for a new Bond or Bonds of different authorized denominations of like
aggregate principal amount.
The Trustee hereunder shall, by virtue of its office as such Trustee,
be a paying agent of the Company for the purpose of the payment of the principal
of and premium, if any, and interest on the Bonds of the 2027 Series and the
registrar and transfer agent of the Company for the purpose of registering and
transferring Bonds of the 2027 Series.
B. FORM OF BONDS OF THE 2027 SERIES. The Bonds of the 2027 Series and
the Trustee's authentication certificate to be executed on all of the Bonds of
said series, shall be in substantially the following forms, respectively:
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[FORM OF BOND OF THE 2027 SERIES]
This Bond has not been registered under the Securities Act of 1933 and
may not be sold, assigned or transferred in the absence of such
registration or a written opinion of counsel reasonably satisfactory to
the Company to the effect that such sale, assignment or transfer is not
a transaction requiring registration of this Bond under the Securities
Act of 1933.
No. RH_________ $___________
FALL RIVER GAS COMPANY
FIRST MORTGAGE BOND, 7.24% SERIES DUE 2027
DUE DECEMBER 15, 2027
FALL RIVER GAS COMPANY, a Massachusetts corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
___________________, or registered assigns, ___________________ Dollars
($__________) on December 15, 2027, and to pay to said payee, or registered
assigns, interest hereon from the date hereof at the rate of 7.24% per annum,
semi-annually on the fifteenth day of June and December in each year until
payment of the principal hereof. To the extent permitted by law, interest shall
be payable on any overdue principal or interest at the rate of 9.24% per annum;
interest at the rate of 9.24% per annum shall accrue from the date such
principal or interest was due and payable, disregarding for this purpose any
period of grace used in determining the existence of a default under the
Indenture (as hereinafter defined).
The principal of and the premium, if any, and interest on this bond
will be paid in any coin or currency of the United States of America which at
the time of payment is legal tender for the payment of public and private debts,
at the principal corporate trust office of the Trustee, or its successor in
trust, in Boston, Massachusetts.
This bond is one of the bonds, of the above designated series, of an
authorized issue of bonds of the Company known as First Mortgage Bonds, all
issued or issuable in one or more series under and equally and proportionately
secured (except insofar as any sinking fund, depreciation fund or other fund
established in accordance with the provisions of the Indenture hereinafter
mentioned may afford additional security for the bonds of any specific series)
by an Indenture of First Mortgage dated as of December 1, 1952, as supplemented
and modified by a First Supplemental Indenture dated as of January 1, 1955, and
supplemented by a Second Supplemental Indenture dated as of September 1, 1957, a
Third Supplemental Indenture dated as of December 1, 1957, a Fourth Supplemental
Indenture dated as of February 1, 1958, a Fifth Supplemental Indenture dated as
of May 1, 1959, a Sixth Supplemental Indenture dated as of May 1, 1961, a
Seventh Supplemental Indenture dated as of November 1, 1961 and an Eighth
Supplemental Indenture dated, as of November 1, 1966, each executed and
delivered by the Company to Old Colony Trust Company, Boston, Massachusetts, as
Trustee, to which
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State Street Bank and Trust Company, Boston, Massachusetts, is successor
Trustee, as successor in interest to The First National Bank of Boston,
successor by merger to Old Colony Trust Company (herein said State Street Bank
and Trust Company, as said trustee, and its successors under said Indenture
sometimes called the "Trustee"), a Ninth Supplemental Indenture dated as of June
1, 1971, a Tenth Supplemental Indenture dated as of June 1, 1981, an Eleventh
Supplemental Indenture dated as of December 15, 1989, and a Twelfth Supplemental
Indenture dated as of December 20, 1989, each executed and delivered by the
Company to The First National Bank of Boston, Boston, Massachusetts, as Trustee,
to which State Street Bank and Trust Company, Boston, Massachusetts, is
successor Trustee, as successor in interest to The First National Bank of
Boston, and a Thirteenth Supplemental Indenture dated as of September 19, 1996
and a Fourteenth Supplemental Indenture dated as of December 1, 1997, each
executed and delivered by the Company to the Trustee, and all indentures
supplemental thereto (herein sometimes called the "Indenture") reference to
which is hereby made for a description of the property mortgaged and pledged as
security for said bonds, the nature and extent of the security, and the rights,
duties and immunities thereunder of the Trustee, the rights of the holders of
said bonds and of the Trustee and of the Company in respect of such security,
and the terms upon which said bonds may be issued thereunder; but neither the
foregoing reference to the Indenture nor any provision of this bond or of the
Indenture or of any indenture supplemental thereto shall affect or permit any
impairment of the obligation of the Company, which is absolute and
unconditional, to pay at the stated or accelerated times herein provided, the
principal of and the premium, if any, and the interest on this bond as herein
provided.
The bonds of this series are entitled to the benefits of a Guaranty and
Negative Pledge Agreement to which reference is made in the Bond Purchase
Agreement dated December 11, 1997 between the Company and the original holder of
the bonds of this series and the Endorsement endorsed hereon or attached hereto.
The bonds of this series are subject to redemption prior to maturity as
a whole or in part at the option of the Company at any time on or after December
15, 2017 and prior to maturity, upon payment of the principal amount of bonds to
be redeemed plus (i) accrued interest thereon and (ii) an amount equal to the
Make Whole Amount. Notwithstanding the provisions of Section 8.05 of the
Indenture, no trust moneys (as such term is defined in the Indenture) may be
applied by the Trustee at any time to the redemption prior to maturity of any
bonds of this series.
As used herein, the following terms shall have the following
respective meanings:
The term "Make Whole Amount" shall mean at any time with respect to any
redemption of the bonds of this series, to the extent that the Treasury Rate
plus 50 basis points at such time is lower than 7.24% per annum., the excess of
(a) the present value of the principal and interest payments on and in respect
of the bonds of this series being redeemed that would otherwise become due and
payable (without giving effect to such redemption), discounted at a rate which
is equal to the Treasury Rate plus .50 basis points over (b) the principal
amount of the bonds of this series being redeemed, at par. To the extent that
the
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Treasury Rate plus 50 basis points at the time of such redemption is equal to or
higher than 7.24% per annum, the Make Whole Amount is zero.
The term "premium" shall include any Make Whole Amount.
The term "Treasury Rate" at any time with respect to any bonds of this
series being redeemed, shall mean and shall be determined by reference to the
applicable display on Bloomberg Financial Markets Service as of 10:00 A.M., New
York time, on the second business day prior to the date fixed for redemption
(or, if such display is no longer available, any publicly available source of
similar market data), and shall be the yield on actively traded United States
Treasury securities adjusted to a maturity equal to the then remaining Weighted
Average Life to Maturity of the bonds of this series being redeemed (the
"Remaining Life"). If the Remaining Life is not equal to the maturity of a
United States Treasury security for which a yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of the two closest United States
Treasury securities for which such yields are given, except that if the
Remaining Life is less than one year, the average yield on actively traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used. The Treasury Rate shall be computed to the fifth decimal place
(one-thousandth of a percentage point) and then rounded to the fourth decimal
place (one-hundredth of a percentage point).
The term "Weighted Average Life to Maturity" shall mean, at any date,
the number of years obtained by dividing the then Remaining Dollar-years of the
bonds of this series being redeemed by the then outstanding principal amount of
such bonds. For purposes of this definition, the "Remaining Dollar-years" of any
bonds of this series being redeemed shall mean, at any date, the total of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment, including
payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.
If this bond or any portion thereof ($1,000 or any multiple thereof) is
duly designated for redemption, if payment of the principal hereof or of such
portion, together with accrued interest, and the Make Whole Amount is
irrevocably provided for and if notice of such redemption is duly given or
provided for, all as specified in the Indenture, this bond or such portion shall
cease to be entitled to the lien of the Indenture from and after the date such
payment and notice are irrevocably so provided for and shall cease to bear
interest from and after the date fixed for redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made at the
option of the registered owner, either (a) upon notation hereon by the holder of
this bond of such payment of the portion of the principal of this bond so called
for redemption, or (b) upon surrender of this bond in exchange for a bond or
bonds for the unredeemed balance of the principal amount of this bond.
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The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than sixty-six and
two-thirds percent in principal amount of the bonds at the time outstanding
(determined as provided in the Indenture) including, if more than one series of
bonds shall be at the time outstanding, not less than sixty-six and two-thirds
percent in principal amount of the bonds at the time outstanding of each series
affected, to effect, by an indenture or indentures supplemental to the
Indenture, modifications or alterations of the Indenture and of the rights and
obligations of the Company and of the holders of the bonds and coupons;
provided, however, that no such modification or alteration shall be made without
the consent of the registered owner hereof which will (a) extend the maturity of
this bond or reduce the rate or extend or otherwise change the time of payment
of interest hereon or reduce the amount of the principal hereof or reduce any
premium payable on the redemption hereof, or (b) permit the creation of any
lien, not otherwise permitted, prior to or on a parity with the lien of the
Indenture, or alter the equal and proportionate security afforded by the lien of
the Indenture for the bonds issued thereunder, or (c) reduce the number or
percentage of the principal amount of the bonds upon the consent of the holders
of which modifications or alterations may be made as aforesaid or defaults may
be waived.
This bond is transferable by the registered owner hereof in person or
by his duly authorized attorney, on books of the Company kept for the purpose,
at the principal corporate trust office of the Trustee upon surrender of this
bond for cancellation and upon payment, if the Company shall so require, of the
charges provided for in the Indenture, and thereupon a new bond of the same
series of like principal amount will be issued to the transferee in exchange
therefor.
The registered owner of this bond at his option may surrender the same
for cancellation at said office and receive in exchange therefor the same
aggregate principal amount of bonds of the same series but of other authorized
denominations upon payment, if the Company shall so require, of the charges
provided for in the Indenture and subject to the terms and conditions therein
set forth.
If a default as defined in the Indenture shall occur, the principal of
this bond may become or be declared due and payable before maturity in the
manner and with the effect provided in the Indenture. The holders, however, of
certain specified percentages of the bonds at the time outstanding, including in
certain cases specified percentages of bonds of particular series, may in the
cases, to the extent and under the conditions provided in the Indenture, waive
past defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
premium, if any, or the interest on this bond, or expenses related thereto or
for any claim based hereon, or otherwise in respect hereof or of the Indenture,
against any incorporator, stockholder, director or officer, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or such predecessor or successor
corporation, under any constitution or statute or rule of law, or by the
enforcement of any assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors
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and officers, as such, being waived and released by the holder and owner hereof
by the acceptance of this bond and as provided in the Indenture.
The Company and the Trustee, any paying agent and any bond registrar
may deem and treat the person in whose name this bond is registered, or his
registered assigns, as the absolute owner hereof, whether or not this bond shall
be overdue, for the purpose of receiving payment and for all other purposes and
neither the Company nor the trustee nor any paying agent nor any bond registrar
shall be affected by any notice to the contrary.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, FALL RIVER GAS COMPANY has caused these presents,
which are intended to take effect as a sealed instrument, to be executed in its
corporate name by its President or one of its Vice Presidents and its Treasurer
or one of its Assistant Treasurers, under its corporate seal or a facsimile
thereof, attested by its Clerk or one of its Assistant Clerks, all as of
___________ ___, ______.
FALL RIVER GAS COMPANY
By:
--------------------------------
President
(Corporate Seal)
By:
--------------------------------
Treasurer
Attest:
- ---------------------------
Assistant Clerk
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[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
This is one of the bonds of the series designated therein, described in
the within mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, As Trustee
By
-------------------------------
Authorized Signatory
[FORM OF ASSIGNMENT]
For value received, the undersigned hereby sells, assigns, and
transfers unto ___________________ (whose Taxpayer Identifying Number
is the within bond, and all rights thereunder, hereby irrevocably
constituting and appointing, attorney to transfer said bond on the
books of the Company, with full power of substitution in the premises.
Dated:
In the presence of:
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within bond in every particular, without
alteration or enlargement or any change whatever.
[FORM OF ENDORSEMENT OF GUARANTOR]
ENDORSEMENT OF GUARANTOR
This First Mortgage Bond, 7.24% Series due 2027 is entitled to the
benefits of the Guaranty and Negative Pledge Agreement dated December 11, 1997
by and among Fall River Gas Company, Fall River Gas Appliance Company, Inc. and
Allstate Life Insurance Company of New York.
Dated: FALL RIVER GAS APPLIANCE
-------------------- COMPANY, INC.
By:
---------------------------
President
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<PAGE>
Section 1.02. REDEMPTION PROVISIONS FOR BONDS OF THE 2027 Series. The
Bonds of the 2027 Series shall be subject to redemption prior to maturity as a
whole or in part at the option of the Company at any time on or after December
15, 2017 and prior to maturity as set forth in the form of the Bonds of the 2027
Series set forth in Section 1.01 hereof. Notwithstanding the provisions of
Section 8.05 of the Original Indenture, the Company and the Trustee agree that
no trust moneys (as such term is defined in the Original Indenture) may be
applied by the Trustee at any time to the redemption prior to maturity of any
Bonds of the 2027 Series.
Whenever less than all of the outstanding Bonds of the 2027 Series are
to be redeemed, the principal amount of such Bonds to be redeemed shall be
prorated in units of $1,000 each among the holders of the Bonds of the 2027
Series in the proportion that their respective holdings bear to the aggregate
principal amount of Bonds of the 2027 Series outstanding on the date of
selection.
Section 1.03. RESTRICTION ON PAYMENT OF DIVIDENDS ON COMMON Stock. The
Company shall not (a) declare or pay any dividend (other than dividends payable
in Common Stock of the Company) or make any other distribution on any shares of
Common Stock, (b) make any expenditures for the purchase, redemption or other
retirement for a consideration of any shares of capital stock of the Company
(other than in exchange for, or from the proceeds of, other and new shares of
capital stock of the Company and other than any class of preferred stock
required to be purchased, redeemed or otherwise retired for any sinking fund or
purchase fund for such class of stock), or (c) make any loans or advances to or
investments in any securities of any subsidiary of the Company (other than from
the proceeds of new shares of capital stock of the Company), if the aggregate
amount of all such dividends, distributions, expenditures, loans, advances and
investments made since September 30, 1996, would exceed the aggregate amount of
the net income of the Company accumulated after September 30, 1996, plus the sum
of $4,000,000.
Net income of the Company for the purpose of this Section shall mean
(a) the total operating revenues of the Company, less the total operating
expenses, taxes (including, without limitation, income, excess profits and other
taxes based on or measured by income or undistributed earnings or income),
interest charges and other appropriate items, including provision for
maintenance and provision for retirements, depreciation or obsolescence, which
shall be the amount actually charged by the Company on its books of account, but
in respect of depreciable gas utility property not subject to prior liens shall
not be less than the minimum provision for depreciation, as defined in
Section 1.33 of the Original Indenture, as amended to date, (b) other net
non-operating income and (c) other income (less any applicable expenses) of
the Company and after provision for all dividends accrued on any outstanding
stock of the Company having preference over the common stock as to dividends,
assets or otherwise, all of the foregoing determined in accordance with sound
accounting practice, PROVIDED, HOWEVER, that in determining the net income of
the Company for the purposes of this Section no deduction or adjustment shall
be made for or in respect of any charges or credits which under sound
accounting practice are not appropriate charges or credits in determining net
income and, without limiting the generality of the foregoing, no deduction or
adjustment shall be made for or in respect of (a) profits or losses from
sales, abandonment or other disposition of
-16-
<PAGE>
property or other capital assets or from the reacquisition of any securities of
the Company, or taxes on or in respect of any such profits; (b) any change in or
adjustment of the book value of any assets owned by the Company; (c) any earned
surplus adjustment (including tax adjustments) applicable to any period prior to
October 1, 1997; or (d) amortization, retirement or elimination of gas utility
plant adjustment accounts or intangibles.
A subsidiary of the Company for the purposes of this Section shall mean
any corporation a majority of the stock of which having ordinary voting power
not contingent upon a condition of default is owned by the Company or any other
subsidiary of the Company.
Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in
principal amount outstanding of the Bonds of the 2027 Series shall otherwise
generally or specifically as to a particular instance consent thereto in
writing:
(a) the Company shall not permit its aggregate indebtedness for
borrowed money at any time during any period specified below to exceed the
percentage specified below for such period of the Company's total
capitalization:
<TABLE>
<CAPTION>
PERIOD MAXIMUM PERMITTED PERCENTAGE
------ ----------------------------
<S> <C>
From and after December 1, 1997
through September 14, 2000 70%
From and after September 15, 2000
through September 14, 2002 68%
From and after September 15, 2002 65%; and
</TABLE>
(b) the Company shall not at any time incur or become liable for any
bonded indebtedness, including, but not limited to, the issuance of any Bonds,
unless the net income available for interest of the Company for a period of 12
consecutive calendar months within the 15 calendar months immediately preceding
the month in which the Company proposes to incur or become liable for such
indebtedness is at least two times the fixed annual interest charges on all
indebtedness for borrowed money of the Company, including such bonded
indebtedness.
As used herein, the following terms shall have the following respective
meanings:
The term "total capitalization" shall mean at any time the sum of (a)
the principal amount of all outstanding indebtedness of the Company for borrowed
money, (b) the aggregate amount of par or stated capital represented by all
issued and outstanding capital stock of all classes of the Company having
preference as to dividends or upon liquidation over its common stock, if any,
and (c) the common stock equity of the Company.
The term "common stock equity" shall be the sum of the amount of par or
stated capital represented by all issued and outstanding common stock (excluding
treasury stock), all
-17-
<PAGE>
premiums on capital stock of the Company of all classes, and the surplus
(including retained earnings and paid-in or capital surplus) of the Company,
less (a) any unamortized debt discount and expense, unamortized extraordinary
property losses and capital stock discount and expense set forth on the asset
side of the balance sheet, and (b) the excess, if any, of the aggregate amount
payable on involuntary dissolution, liquidation or winding up of the Company on
any outstanding shares of the Company having a preference as to dividends or
upon liquidation over the common stock, over the aggregate amount of par or
stated capital represented by any such outstanding shares; PROVIDED, HOWEVER,
that no deduction shall be made in the determination of common stock equity for
any of the amounts or items referred to in clauses (a) and (b) of this paragraph
which are, at the time of the determination of the common stock equity, being
amortized or provided for by reserve.
The term "indebtedness for borrowed money" shall include all
indebtedness of the Company for borrowed money (whether long or short term) of
every kind and nature and any guaranty of the indebtedness of another but shall
not include:
(1) Current liabilities of the Company (other than for money borrowed)
incurred in the ordinary course of its business;
(2) Indebtedness of the Company for taxes, assessments or governmental
charges or levies if the same shall not at the time be due and payable or can be
paid thereafter without penalty or shall concurrently be contested in good faith
by appropriate proceedings and if the Company shall have set aside on its books
reserves deemed by it adequate with respect thereto;
(3) Short term indebtedness for borrowed money incurred from time to
time for purposes of purchasing gas supplies, but only to the extent that the
Company's Cost of Gas Adjustment Clause then reflects an under-collection of
allowable costs equal to or greater than the outstanding balance of such
indebtedness; and provided further, however, that the exclusion within this
paragraph (3) shall not apply if such indebtedness, if otherwise included within
the definition of "indebtedness for borrowed money," would cause the Company's
aggregate indebtedness for borrowed money to exceed 70% of the Company's total
capitalization; or
(4) Judgments or awards in respect of which the Company shall in good
faith be prosecuting an appeal or proceedings for review and in respect of which
it shall have secured a subsisting stay of execution or sale pending such appeal
of proceedings.
The term "net income available for interest" of the Company shall mean
(a) the total operating revenues of the Company, less the total operating
expenses, taxes (excluding income, excess profits and other taxes based on or
measured by income or undistributed earnings or income), and other appropriate
items, including provision for maintenance and provision for retirements,
depreciation or obsolescence, which shall be the amount actually charged by the
Company on its books of account but in respect of depreciable gas utility
property not subject; to prior liens shall not be less than the minimum
provision for depreciation, as defined in Section 1.33 of the Original
Indenture, as amended to date, (b) other net non-operating income
-18-
<PAGE>
and (c) other income (less any applicable expenses), of the Company, all of the
foregoing determined in accordance with sound accounting practice; provided,
however, that in determining the net income of the Company for the purposes of
this Section no deduction or adjustment shall be made for or in respect of any
charges or credits which under sound accounting practice are not appropriate
charges or credits in determining net income and, without limiting the
generality of the foregoing, no deduction or adjustment shall be made for or in
respect of (a) profits or losses from sales, abandonment or other disposition of
property or other capital assets or from the reacquisition of any securities of
the Company, or taxes on or in respect of any such profits; (b) any change in or
adjustment of the book value of any assets owned by the Company; (c) any earned
surplus adjustment (including tax adjustments) applicable to any period prior to
October 1, 1997; or (d) amortization, retirement or elimination of gas utility
plant adjustment accounts or intangibles.
Section 1.05. DEPRECIATION. So long as any of the Bonds of the 2027
Series are outstanding (whether or not any Bonds of the 2020 Series or Bonds of
the 2026 Series are outstanding), the term "minimum provision for depreciation"
shall have the meaning defined in Section 1.33 of the Original Indenture as
modified by Clause (6) of Article Two of the First Supplemental Indenture as to
the period during which any Bonds of the 1980 Series were outstanding.
Section 1.06. DURATION OF EFFECTIVENESS OF ARTICLE ONE. This Article
shall be of force and effect only so long as any Bonds of the 2027 Series are
outstanding.
ARTICLE TWO
Principal Amount of Bonds of the 2027 Series
Presently to be Issued
Section 2.01. The total aggregate principal amount of Bonds of the 2027
Series presently to be issued and outstanding under the provisions of and
secured by the Indenture, will be Six Million Dollars ($6,000,000). Additional
Bonds, other than Bonds of the 2020 Series, Bonds of the 2026 Series and Bonds
of the 2027 Series or of any other series established after the execution and
delivery of this Fourteenth Supplemental Indenture may from time to time be
authenticated, delivered and issued pursuant to the terms of the Indenture,
except that no further Bonds shall be issued pursuant to the provisions of the
second paragraph of Section 5.01 of the Original Indenture inserted therein by
the provisions of Article Two, Clause (9) of the First Supplemental Indenture.
Section 2.02. Upon the execution and delivery of this Fourteenth
Supplemental Indenture, or from time to time thereafter, Six Million Dollars
($6,000,000) principal amount of Bonds of the 2027 Series may be executed by the
Company and delivered to the Trustee and shall thereupon be authenticated and
delivered by the Trustee to and upon the written order of the Company, upon
compliance by the Company with the provisions of Article Five of the Original
Indenture.
-19-
<PAGE>
ARTICLE THREE
Miscellaneous
Section 3.01. This Fourteenth Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Original Indenture as
supplemented and modified by the First Supplemental Indenture and supplemented
by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Twelfth and Thirteenth Supplemental Indentures, and shall form a part
thereof, and the Original Indenture and the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth
Supplemental Indentures are hereby confirmed. Except to the extent inconsistent
with the express terms hereof, all of the provisions, terms, covenants and
conditions of the Original Indenture as supplemented and modified by the First
Supplemental Indenture and supplemented by the Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth
Supplemental Indentures shall be applicable to the Bonds of the 2027 Series to
the same extent as if specifically set forth herein. All terms used in this
Fourteenth Supplemental Indenture shall be taken to have the same meaning as in
the Original Indenture as so supplemented and modified except in cases where the
context clearly indicates otherwise.
Section 3.02. All recitals in this Fourteenth Supplemental Indenture
are made by the Company only and not by the Trustee; and all of the provisions
contained in the Original Indenture as so supplemented and modified in respect
of the rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Section 3.03. The Company covenants that it is lawfully seized and
possessed at the date of execution of this Fourteenth Supplemental Indenture of
all the trust estate described in this Fourteenth Supplemental Indenture, except
as specifically otherwise stated in this Fourteenth Supplemental Indenture, and
that all the trust estate so described is free and clear of any lien other than
the lien of the Indenture and permitted encumbrances; that the Company will
warrant and forever defend all the trust estate so described to the Trustee
against the claims of all persons whomsoever except as in the Indenture
specifically otherwise stated, that it will maintain and preserve the lien of
the Indenture so long as any of the Bonds issued under the Indenture are
outstanding; and that it has good right and lawful authority to subject all the
trust estate so described to the lien of the Indenture as provided in and by the
terms of the Indenture.
Section 3.04. Notwithstanding any provisions of the Indenture or the
Bonds of the 2027 Series, so long as the original registered holder or any
subsequent registered holder of Bonds of the 2027 Series which is a bank,
insurance company or other institutional investor shall hold any of the Bonds of
the 2027 Series, all payments of interest on the Bonds of the 2027 Series, and.
all payments on account of principal or premium, if any, shall be made directly
to each such registered holder or its nominee at such address as may from time
to time be furnished by such holder in writing without surrender or presentation
of such Bonds of the 2027 Series to the Trustee (except that such holder shall
surrender a Bond within a reasonable period of time
-20-
<PAGE>
following receipt of payment, by redemption or otherwise, of such Bond of the
2027 Series in whole) and with respect to each such original holder such
payments shall be made in accordance with the provisions of any written
agreement between such original holder and the Company which shall have been
communicated and consented to by the Trustee.
The Trustee hereby consents to the method of payment described in
"Schedule I" to the Bond Purchase Agreement dated December 11, 1997 between the
Company and such original holder. The Trustee also consents to the provisions of
sections 9.1, 9.2 and 9.3 of said Bond Purchase Agreement and agrees that if a
mutilated, destroyed or lost Bond of the 2027 Series was held by the original
holder or any other institutional holder of recognized standing and sound
financial condition reasonably satisfactory to the Company or any nominee for
the original holder or such other institutional holder (a) an agreement of
indemnity reasonably satisfactory to the Company from such original holder or
such other institutional holder, as the case may be, shall constitute indemnity
satisfactory to it for the purposes of the Indenture and (b) the Trustee will
look only to the Company for reimbursement of its expenses incurred in
connection with such replacement.
Section 3.05. This Fourteenth Supplemental Indenture may be executed in
several counterparts and on separate counterparts, and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts,
or as many of them as the Company and the Trustee shall preserve undestroyed,
shall together constitute but one and the same instrument.
-21-
<PAGE>
IN WITNESS WHEREOF,; Fall River Gas Company has caused this Fourteenth
Supplemental Indenture to be signed in its corporate name and behalf by its
President or one of its Vice Presidents and by its Treasurer or one of its
Assistant Treasurers and its corporate seal to be hereunto affixed and
attested by its Clerk or one of its Assistant Clerks, and State Street Bank
and Trust Company in token of its acceptance of the trust hereby created has
caused this Fourth Supplemental Indenture to be signed in its name and behalf
by one of its__________, and its corporate seal to be hereunto affixed and
attested by one of its_________, all on the ___ day of December, 1997, but as
of the day and year first above written.
FALL RIVER GAS COMPANY
By:
-----------------------------
Bradford J. Faxon, President
and By:
-------------------------
Peter H. Thanas, Treasurer
Attest: (Corporate Seal)
- ----------------------------
Assistant Clerk
STATE STREET BANK AND TRUST
COMPANY, as successor in interest
to The First National Bank of Boston
By:
----------------------------------
[Title]
Attest: (Corporate Seal)
- ----------------------------
[Title]
Assistant Secretary
-22-
<PAGE>
SCHEDULE A
----------
1 Grantor: Well Built Homes, Inc. by easement dated May
1, 1996 a perpetual easement and right of way over
certain property in the City of Fall River,
Massachusetts, said easement being recorded in
Bristol County Registry of Deeds, Fall River District
in Book 3086, at Page 316.
2. Grantor: Well Built Homes, Inc. by easement dated May
1, 1996 a perpetual easement and right of way over
certain property in the City of Fall River,
Massachusetts, said easement being recorded in
Bristol County Registry of Deeds, Fall River District
in Book 3086, at Page 318.
<PAGE>
Exhibit 5
[LETTERHEAD OF RICH, MAY, BILODEAU & FLAHERTY, P.C.]
May 19, 1999
Fall River Gas Company
155 North Main Street
Fall River, MA 02722
Dear Sirs/Mesdames:
You are seeking to register, pursuant to the Securities Act of 1933, an
aggregate of 220,208 shares of Common Stock, $0.83 1/3 par value, of Fall River
Gas Company (the "Company"), under the Company's Share Owner Dividend
Reinvestment and Stock Purchase Plan. You have requested that we furnish to you
an opinion, which is to be filed as Exhibit 5 to the Registration Statement on
Form S-3 (the "Registration Statement") relating to such shares.
We have examined the Company's charter documents and the Company's
By-Laws, each as amended, copies of resolutions adopted by the Board of
Directors of the Company, the Registration Statement, and such other documents
as we have deemed pertinent. We participated in the filing with the
Massachusetts Department of Public Utilities ("MDPU") (now the Massachusetts
Department of Telecommunications and Energy) of the Company's application and
petition relating to authorization and approval of the issue and sale of such
shares and we have examined the order of the MDPU relating thereto. We have made
such examination of law as we have felt necessary in order to render this
opinion.
It is our further understanding that the purpose of the above described
offering is to provide the Company with funds to finance additions to the
Company's property, plant and equipment or to repay temporary indebtedness
incurred to finance such additions.
Based on the foregoing, we are of the opinion and advise you that,
under applicable rules and regulations of the Securities and Exchange
Commission, the Registration Statement will become effective upon the filing
thereof with the Securities and Exchange Commission; we are further of the
opinion that, with respect to the 220,208 shares of the stock being registered,
such shares will be legally issued, fully
<PAGE>
Fall River Gas Company
May 19, 1999
Page 2
paid and non-assessable when issued and delivered for the consideration
described in the Registration Statement.
This opinion does not pass on the application of the securities or
"Blue Sky" laws of the various states.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We further consent to the use of our name and to all
references to us included in or made a part of the Registration Statement.
Very truly yours,
/s/ RICH, MAY, BILODEAU & FLAHERTY, P.C.
RICH, MAY, BILODEAU & FLAHERTY, P.C.
<PAGE>
Exhibit 24a
[Letterhead of ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated November 17, 1998
incorporated by reference in Fall River Gas Company's Form 10-K for the year
ended September 30, 1998 and to all references to our Firm included in this
Registration Statement.
Boston Massachusetts
May 18, 1999
