<PAGE>
As filed with the Securities and
Exchange Commission on February 9, 1996
Registration No. 33-75580
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENERGYNORTH, INC.
(Exact name of issuer as specified in its charter)
New Hampshire 02-0363755
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
1260 Elm St, P.O. Box 329
Manchester, New Hampshire 03105-0329
(Address of Principal Executive Offices Including Zip Code)
ENERGYNORTH, INC. KEY EMPLOYEE PERFORMANCE AND EQUITY INCENTIVE PLAN
(Full title of plan)
ROBERT R. GIORDANO
President and Chief Executive Officer
EnergyNorth, Inc.
P.O. Box 329
Manchester, New Hampshire 03105-0329
(603)625-4000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to: RICHARD A. SAMUELS, ESQUIRE
McLane, Graf, Raulerson & Middleton
Professional Association
900 Elm Street, P.O. Box 326
Manchester, New Hampshire 03105-0326
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Approximate date of proposed sales pursuant to the Plan:
From time to time after the effective date of this Registration
Statement
<PAGE>
ENERGYNORTH, INC.
Cross-Reference Sheet
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Form S-8
Item in Part I of Form S-8 Location in the Prospectus
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1. Plan Information
(a) General Plan Outside front cover page of
Information prospectus; The Plan: General;
Purpose of the Plan; Effective
Date and Expiration of the Plan
(b) Securities to The Plan: Stock Subject to
be Offered Plan
(c) Employees Who May The Plan: Eligibility and
Participate in the Plan Selection
(d) Purchase of Securities The Plan: Stock Subject to the
Pursuant to the Plan Plan; Terms and Conditions
and Payment for of the Plan
Securities Offered
(e) Resale Restrictions The Plan: Forfeiture and
Restrictions on Transfer;
Restrictions on Resale
(f) Tax Effects of Plan Summary of Certain Federal
Participation Income Tax Consequences
(g) Investment of Funds Not applicable
(h) Withdrawal from the The Plan: Forfeiture and
Plan; Assignment of Restrictions on Transfer
Interest
(i) Forfeitures and Penalties The Plan: Forfeiture and
Restrictions on Transfer
(j) Charges and Deductions The Plan: Forfeiture and
and Liens Therefor Restrictions on Transfer
2. Registrant Information Certain Other Information
and Employee Plan
Annual Information
<PAGE>
TABLE OF CONTENTS
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Page
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AVAILABLE INFORMATION....................................... 1
THE PLAN.................................................... 1
General................................................. 1
Purpose of Plan......................................... 1
Effective Date and Expiration of the Plan............... 1
Stock Subject to the Plan............................... 1
Administration.......................................... 1
Eligibility and Selection............................... 2
Terms and Conditions of Plan............................ 2
Award Agreement......................................... 3
Forfeiture and Restrictions on Transfer................. 3
Voting Rights and Dividends............................. 3
Amendment, Suspension, and Termination of the Plan...... 3
Employment.............................................. 3
Indemnification of Committee............................ 3
Restrictions on Resale.................................. 4
SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES.......... 4
PERIODIC REPORTS TO STOCKHOLDERS............................ 6
CERTAIN OTHER INFORMATION................................... 6
<PAGE> 1
AVAILABLE INFORMATION
EnergyNorth, Inc. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at
the public reference facilities of the Commission at Room 1024,
450 Fifth Street N.W., Washington, D.C. 20549; and at the
Regional Offices of the Commission at Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
75 Park Place, Room 1400, New York, NY 10007. Copies of such
materials can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates.
The Company will provide without charge to any person, including
any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request, a copy of its most recent annual report
to stockholders and any and all documents incorporated herein by
reference (other than certain exhibits to such documents). See
"Certain Other Information." Written requests should be directed
to the Sr. Vice President and Chief Financial Officer, Energy-
North Inc., P.O. Box 329, Manchester, New Hampshire 03105-0329.
Telephone requests may be directed to (603)625-4000.
THE PLAN
General
The following description of the EnergyNorth, Inc. Key Employee
Performance and Equity Incentive Plan (the "Plan") is intended to
assist you in becoming familiar with the Plan, but does not
purport to be complete and is qualified in its entirety by
reference to the complete text of the Plan, which may be examined
at the Company's Human Resources Department. In the case of any
conflict or apparent conflict between the following description
and the full text of the Plan, the full text will control.
Additional information about the Plan and the Plan administrators
may be obtained from the Company's Human Resources Department at
the above address and telephone number.
Purpose of Plan
The Plan is intended to compensate certain officers and employees
of the Company ("Key Employees") chosen by the Compensation
Committee of the Company's Board of Directors ("Committee") based
upon performance standards and objectives and to reward
performance with share ownership in the Company. The Plan is
intended to provide for competitive, market-based total
compensation, in conjunction with base salary. Share ownership
is intended to attract and retain Key Employees and align their
interests with the interests of shareholders and ratepayers.
The Plan is not subject to the provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA").
Effective Date and Expiration of the Plan
The Plan became effective on November 18, 1992 and will expire on
November 17, 2002 ("Expiration Date").
Stock Subject to the Plan
A total of 200,000 shares of the Company's $1.00 par value Common
Stock ("Shares") may be awarded under the Plan, which may be
issued from authorized and unissued shares or purchased by the
Company from Shares that are issued and outstanding.
Administration
The Plan is administered by the Committee, whose members may not
participate in the Plan. The Committee determines the Key
Employees to whom awards of cash and Shares pursuant to the Plan
("Incentive Awards") are granted, the performance criteria upon
<PAGE> 2
which Incentive Awards are based, and the terms and provisions of
the written agreements between the Company and a Key Employee
setting forth the terms and conditions of Incentive Awards
("Award Agreement"). The Committee has full power to construe
and interpret the Plan and establish rules for its
administration. However, no Incentive Award may be made by the
Committee without the prior approval of a majority of the members
of the Board of Directors who are ineligible to participate in
the Plan. Members of the Committee are elected by the Board of
Directors at each annual meeting of the Board of Directors for
terms of one year and until their successors are duly elected.
Committee members may be removed from the Committee by the Board
of Directors at any time. There are no material relationships
between the members of the Committee and the employees, the
Company, or affiliates of the Company, other than their capacity
as directors of the Company.
Eligibility and Selection
The Committee has full discretion to determine those officers and
employees of the Company whose performance and retention, in the
judgment of the Committee, is of distinct importance to the
operation and financial results of the Company. All officers and
employees of the Company and its subsidiaries are eligible to be
designated a Key Employee by the Committee and selected as a
participant in the Plan ("Participant").
Terms and Conditions of Plan
The Plan provides Participants with the opportunity to earn a
portion of annual compensation, in the form of Incentive Awards,
based upon performance criteria that are established annually by
the Committee. Prior to or early in each fiscal year during the
term of the Plan ("Plan Year"), the Committee establishes the
maximum amount of Incentive Awards to be awarded for the ensuing
Plan Year, which is expressed as a percentage of each
Participant's midpoint between the minimum and maximum base
salary established from time to time by the Board of Directors
for each employee. Prior to the beginning of each Plan Year, the
Committee also establishes the performance criteria upon which
Incentive Awards for the ensuing Plan Year will be based, falling
generally into criteria directed at promoting efficiency of
operations, controlling cost of service, improving costs measured
against inflation, and other operational criteria ("Ratepayer
Interests") and criteria directed at achieving income objectives,
profitability, shareholder return, and other financial
performance criteria ("Shareholder Interests"). In addition to
the performance criteria represented by Ratepayer and Shareholder
Interests, a discretionary assessment of a Participant's
contribution to Ratepayer and Shareholder Interests will be made
by the Committee. The Committee establishes performance
standards in each of the performance areas in each Plan Year,
expressing the relative weight given to each performance area as
a percentage, which is set forth in writing for each Plan Year as
an Appendix of Annual Performance Criteria. The Committee also
sets earnings thresholds for each Plan Year based on a comparison
on actual earnings of the Company for a Plan Year to (i) the
Company's forecasted earnings for that Plan Year and (ii) the
amount of dividends paid by the Company during the Plan Year.
Earnings thresholds are also set forth in the Appendix of Annual
Performance Criteria. No Incentive Awards will be made if Company
earnings, adjusted for items of income or expense that are
determined by the Committee to be unusual or extraordinary and
inappropriate to affect incentive compensation in a Plan Year,
are below the earnings threshold with respect to earnings and
dividends established for that Plan Year.
The Committee will determine the amount of Incentive Awards in
accordance with the provisions of the Plan within a reasonable
time after all necessary information is available to the
Committee following the end of each Plan Year. Twenty-five
percent of each Incentive Award is awarded in the form of Shares,
and the balance is awarded in cash. The cash portion of the
Incentive Award is paid as soon as practicable following the
close of the Plan Year. The portion of each Incentive Award in
the form of Shares is paid as compensation and without additional
consideration, but such Shares are subject to certain transfer
<PAGE> 3
restrictions and forfeiture as described below. The number of
Shares awarded as a portion of each Incentive Award is determined
by dividing an amount equal to 25% of a Participant's total
Incentive Award by the average of the closing prices of the
Company's common stock, as reported on the New York Stock
Exchange, during the last ten trading days of the Plan Year to
which the Incentive Award applies.
Award Agreement
At the time that Shares are awarded pursuant to an Incentive
Award, each Participant must execute an agreement ("Award
Agreement") that provides, among other things, for escrow of
Shares, forfeiture upon the occurrence of certain events,
nontransferability, and payment of federal withholding taxes.
The Award Agreement provides that federal withholding taxes with
respect to Shares awarded pursuant to an Incentive Award must be
paid by a participant at such time as the withholding is due and
that if such payment is not made, the Company may deduct and pay
such withholding from any other payments due to the participant
or may, in its discretion, sell or retain Shares to satisfy the
withholding payment obligation. See "Summary of Certain Federal
Income Tax Consequences."
Forfeiture and Restrictions on Transfer
Shares awarded pursuant to Incentive Awards will be forfeited to
the Company if a Participant's employment is terminated within
three years from the date on which the Shares are first granted
to the Participant, except that forfeiture will not occur by
reason of death of the Participant, total disability as that term
is defined in Section 72(n)(7) of the Internal Revenue Code of
1986, or Early, Normal, or Deferred Retirement, as those terms
are defined in the EnergyNorth, Inc. Retirement Plan for Salaried
Employees dated January 4, 1984, as amended or replaced. The
Plan also provides that for a period of three years from the date
on which Shares are first granted to a Participant pursuant to an
Incentive Award, a Participant may not sell, assign, convey,
pledge, or otherwise transfer such Shares, except by will or by
the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined in the Internal Revenue Code
of 1986 or by ERISA. Further, Shares may not be reached by, or
be subject to any legal, equitable, or other process, including
bankruptcy, and are not subject to control by creditors of a
Participant, including execution, attachment or similar process,
except with the consent of the Company. The three-year
forfeiture and non-transferability periods will terminate in the
event of death, total disability, the later of Normal or Deferred
Retirement (as defined above), or a Change in Control of the
Company as that term is defined in the Plan. Thus, a Participant
who elects Early Retirement during the three-year forfeiture
period will not forfeit the Shares held less than three years,
but the non-transferability period that applies to those Shares
may not terminate until the three-year period elapses.
Voting Rights and Dividends
Participants have all rights of a shareholder with respect to
Shares that are awarded upon the grant of the Shares, including
during the period during which Shares are subject to forfeiture
and restrictions on transferability, including the right to vote
the Shares and to receive dividends and other distributions with
respect to the Shares.
Amendment, Suspension, and Termination of the Plan
The Board of Directors may in its sole discretion, at any time
suspend or terminate the Plan. Unless earlier terminated, the
Plan terminates on the Expiration Date. The Board of Directors
may also amend the Plan in its sole discretion, except that
amendments must first be approved by the affirmative vote of the
majority of the shareholders of the Company if such amendment
materially increases the number of Shares subject to the Plan,
materially increases the benefits accruing to Participants under
the Plan, removes the administration of the Plan from the
Committee, or materially modifies eligibility requirements for
participation in the Plan. Additionally, no termination or
amendment can be made that adversely affects Shares issued to a
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Participant, and the Plan may not be terminated nor benefits
reduced as to Participants as of the date of any Change in
Control, as that term is defined in the Plan.
Employment
Nothing in the Plan confers upon any employee the right to
continue in the employ of the Company.
Indemnification of Committee
In addition to other rights of indemnification as directors or
otherwise, the members of the Committee will at all times be
indemnified by the Company against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred in
connection with the assertion of any claim, action, suit or
proceeding, or in connection with any appeal thereof, to which
they, or any of them, may be a party by reason of any action
taken or failure to act in connection with the Plan, and against
all amounts paid by them in settlement thereof approved by
independent legal counsel selected by the Company, or paid by
them in satisfaction of a judgment in any such action, suit or
proceeding, provided that within sixty (60) days after
institution of such action, suit or proceeding, the Committee
member shall make a written offer to the Company to handle and
defend the same at its own expense.
Restrictions on Resale
In general, there are no restrictions on the resale of Shares
awarded pursuant to an Incentive Award, except for the
restrictions on transferability described above and except where
a Participant may be deemed a "control person" of the Company.
In the latter case, shares may only be sold by a control person
under an effective registration statement or pursuant to an
exemption from registration under the Securities Act of 1933.
SUMMARY OF CERTAIN
FEDERAL INCOME TAX CONSEQUENCES
Different federal income tax rules apply to the cash and stock
portions of the Incentive Awards. The cash portion of Incentive
Awards granted under the Plan will generally be governed by the
income recognition rules of Sections 61 and 451 of the Internal
Revenue Code of 1986, as amended (the "Code"). The stock portion
of Incentive Awards granted under the Plan will generally be
governed by Section 83 of the Code. The following discussion
summarizes certain federal income tax aspects of the cash and
stock portions of Incentive Awards granted under the Plan.
CASH INCENTIVE AWARDS
Introduction
The following discussion is based on the existing statutory
provisions and the final and proposed regulations as currently
applied by the Internal Revenue Service and is subject to changes
that may be made to any applicable proposed regulations before
they become final.
In General
The cash portion of Incentive Awards will be included in taxable
income of a Participant in the calendar year in which the cash
Incentive Award is paid to the Participant.
STOCK INCENTIVE AWARDS
Introduction
The following discussion is based on the existing statutory
provisions and the final and proposed regulations as currently
applied by the Internal Revenue Service and is subject to changes
that may be made to any applicable proposed regulations before
<PAGE> 5
they become final. For purposes of applying the following rules
of federal income taxation to the stock portion of the Incentive
Award, the fair market value of a Share shall be determined
without regard to any restrictions other than restrictions which
by their terms will never lapse.
In General
Because the forfeiture and transferability restriction conditions
imposed by the Plan will constitute a substantial risk of
forfeiture and restriction on transferability, unless an election
is made to recognize income earlier, a Participant will not
recognize income upon the receipt of Shares until lapse of the
forfeiture and transfer restriction periods applicable to such
stock portion of an Incentive Award. Accordingly, under the
Plan, Participants will generally not recognize any income on the
stock portion of Incentive Awards until the calendar year during
which the three-year forfeiture and transfer restriction periods
lapse, which is three years from the date on which the Shares are
granted to Participants, provided that the Participant remains
employed by the Company. Such income will be taxable as
compensation income and will be subject to withholding.
If the forfeiture and transfer restriction conditions
automatically terminate due to the death, disability, Retirement,
whether Normal or Deferred, of a Participant or in the event of a
Change in Control of the Company, then the Participant will
recognize income in the year of the Participant's death,
disability, Normal Retirement, Deferred Retirement or a Change in
Control of the Company. If the forfeiture restriction conditions
lapse due to the early retirement of a Participant, then the
Participant will recognize income in the year of the
Participant's Early Retirement even though the transfer
restriction condition will still be applicable.
Unless an election is made to recognize income at an earlier
time, the amount of the income recognized by a Participant will
equal the fair market value of the Shares on the date the
forfeiture and/or the transfer restriction conditions lapse. A
Participant's basis in such Shares will be equal to the amount of
income recognized by the Participant upon the first to lapse of
the forfeiture restriction conditions or the transfer restriction
conditions. The holding period of the Shares for the purpose of
measuring short term or long term capital gain or loss begins
when the Shares are no longer subject to substantial risks of
forfeiture or when the stock becomes transferable.
Election By Participant to Accelerate Income
A Participant has the option to elect pursuant to Code Section
83(b) to include in taxable income the value of the Shares on the
date that they are received by the Participant instead of at the
lapse of the earlier of the forfeiture restriction conditions or
the transfer restriction conditions. Generally, the date of
receipt by the Participant will be the date on which certificates
for the Shares are issued to the Participant, even though the
Company will retain possession of the certificates in escrow.
The Participant must file an election with the Internal Revenue
Service within 30 days of the date on which the certificates are
issued. The Participant must also notify the Company of its
election. If such an election is made, the Participant will
recognize income equal to the value of the stock on the date of
receipt regardless of the forfeiture and transferability
restriction conditions in place at the time. The value may be
different from the value used to calculate the number of Shares
that would comprise the stock portion of the Incentive Award.
If such an election is made, the Participant's basis of the
Shares received will be equal to the amount of income recognized
by the Participant upon making the election. The Participant's
holding period with respect to such Shares for the purpose of
measuring short term or long term capital gain or loss will begin
just after the date such Shares are received by the Participant,
without regard to the retention of the Shares in escrow. Any
appreciation or depreciation in the value of the Shares after
such an election is made will be treated as capital in nature.
<PAGE>6
If a Participant forfeits the Shares as to which such an election
has been made as a result of a termination of employment (see
"The Plan": "Forfeiture and Restrictions on Transfer"), the
Participant will recognize a loss equal to the amount actually
paid, if any, by the Participant for the Shares. Any such loss
would be capital in nature rather than ordinary. However, for
tax purposes, Participants will be considered to have paid no
consideration for the Shares. Further, because the election
cannot be revoked by the Participant, any taxes paid as a result
of making the election will not be deductible as either an
ordinary or capital loss in the event that the Shares are
forfeited, nor can the Participant file an amended return to
recover any such taxes paid.
Dividend Treatment
Unless an election pursuant to Code Section 83(b) is made, any
dividends paid to a Participant with respect to Shares held in
escrow and registered in the name of the Participant will be
treated as compensation and thus taxable as wages and subject to
withholding in the year paid to the Participant. Upon lapse of
the three-year forfeiture and transfer restriction period,
dividends paid with respect to the Shares will be treated as
dividend income. If the Participant has made an election to
recognize income earlier pursuant to Section 83(b), then any
dividends paid on the Shares awarded to the Participant will be
treated as dividend income to the Participant making such an
election.
Parachute Payments
In the event the forfeiture and transfer restriction conditions
automatically terminate due to a Change in Control of the
Company, the present value of the acceleration of the stock
portion of the Incentive Award will constitute a parachute
payment that will be added to any other parachute payments made
under other agreements between the Company and a Participant in
order to calculate the amount of excess parachute payments
subject to the excise tax imposed under Code Section 280G.
Generally, excess parachute payments are those payments triggered
by a change in control in excess of 300% of an employee's
annualized includible compensation (the employee's average annual
compensation for the most recent five year period ending before
the date of the change of control).
STATE AND LOCAL TAX CONSEQUENCES
The consequences, under applicable state and local income tax
laws, upon the grant of cash and stock paid as Incentive Awards
may not be the same as under the federal income tax laws.
Generally, any dividends paid on the Shares awarded to a
Participant prior to the Participant's recognition of income on
account of those Shares will not be subject to the New Hampshire
Interest and Dividends Tax because the dividends will be treated
as compensation. Dividends paid on the Shares awarded to a
Participant after the Participant has recognized income on
account of those Shares will be subject to the New Hampshire
Interest and Dividends Tax.
The Plan is not subject to Section 401(a) of the Code which
applies only to pension benefit plans.
GENERAL
The rules governing the tax treatment of cash and Shares paid as
Incentive Awards pursuant to the Plan are quite technical, so
that the above description of federal income tax consequences is
necessarily general in nature and does not purport to be
complete. Moreover, statutory provisions are subject to change,
as are their interpretation, and their application may vary in
individual circumstances. PARTICIPANTS ARE URGED TO CONSULT WITH
THEIR TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES OF THE
PLAN TO THEM.
<PAGE> 7
PERIODIC REPORTS TO STOCKHOLDERS
The Company furnishes its stockholders with audited financial
statements for each fiscal year and with unaudited financial
statements for the first three quarters of each fiscal year.
Copies of these documents, and any other communications sent to
the Company's stockholders generally, will also be furnished to
all participants in the Plan.
CERTAIN OTHER INFORMATION
The Company has filed with the Commission a Registration
Statement on Form S-8 under the Securities Act of 1993 with
respect to the Common Stock offered under the Plan. This
Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been
omitted pursuant to the rules and regulations of the Commission.
For further information with respect to the Company and the Plan,
you are referred to the Registration Statement, including the
exhibits thereto, and the documents incorporated therein by
reference. All of these documents may be inspected and copied at
the public reference facilities maintained by the Commission at
the addresses set forth on page 1 of this Prospectus. In
addition, the Registration Statement, the documents incorporated
by reference in Item 3 of Part II of the Registration Statement,
and any other documents required to be delivered to Participants
are available, without charge, upon oral or written request to
the Sr. Vice President and Chief Financial Officer, EnergyNorth
Inc., 1260 Elm Street, Box 329, Manchester, New Hampshire 03105-
0329 and telephone number (603) 625-4000.
<PAGE> II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission
are incorporated herein by reference:
(a) Annual Report on Form 10-K for the Fiscal Year
Ended September 30, 1995.
(b) Quarterly Report on Form 10-Q for the Quarterly
Period ended December 31, 1995.
(c) The description of the Common Stock which is
contained in the Company's Registration Statement filed
pursuant to Section 12 of the Exchange Act, and any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have
been sold or which deregisters such securities then remaining
unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Item 6. Indemnification of Directors and Officers
New Hampshire Revised Statutes Annotated ("RSA") 293-A, Sections
8.51 through 8.58, empower a corporation, subject to certain
limitations, to indemnify its directors and officers against
expenses (including attorneys' fees, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by them in
connection with any civil or criminal suit or proceeding (other
than a derivative action) to which they are parties or threatened
to be made parties by reason of being directors or officers, if
they acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation
(and with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful). The
power to indemnify in connection with an action or suit by or in
the right of the corporation (a derivative action) is more
limited. Indemnification against expenses actually and
reasonably incurred is required if a director or officer is
wholly successful in defense of an action, suit or proceeding of
the type where indemnity is permitted by the statute. Unless
ordered by a court, indemnification under the statute, other than
mandatory indemnification against expenses, may be made only if a
determination that indemnification is proper has been made by a
prescribed vote of the board of directors, special legal counsel
in certain cases, by the shareholders or by the prescribed vote
of a committee duly designated by the board of directors, in
certain cases. Indemnification provided for by RSA 293-A:8.50-
8.58 is not exclusive and a corporation is empowered to maintain
insurance on behalf of its directors and officers against any
liability asserted against them in that capacity, whether or not
the corporation would have the power under that section to
indemnify them.
<PAGE> II-2
The by-laws of the Registrant provide that it shall indemnify any
director or officer pursuant to the provisions of RSA 293-A:8.50-
8.58.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing or any existing arrangement or otherwise, the
Registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is
against public policy and is, therefore, unenforceable.
The by-laws of the Company provide that it shall indemnify any
director or officer to the fullest extent allowed by law. The
Company currently maintains insurance on behalf of its directors
and officers against liability asserted against them in that
capacity.
Reference is made to Section 16 of the Registrant's Key Employee
Performance and Equity Incentive Plan, a copy of which is filed
herewith.
Item 8. Exhibits
The exhibits listed on the Exhibit Index on page II-6 of this
Registration Statement are filed herewith.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to the
Registration Statement
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933
("Act");
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
Registration Statement; and
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in the Registration Statement
or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
<PAGE> II-3
(b) The Registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1933 that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the provisions set forth in Item 6, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE> II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has duly caused this Post-
Effective Amendment No. 1 to Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Manchester, and State of New Hampshire, on February
9, 1996.
ENERGYNORTH, INC.
By: Robert R. Giordano
--------------------
Robert R. Giordano, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Robert R.
Giordano and Michael J. Mancini, Jr., and each of them, his true
and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his 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 all 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
connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 to Registration Statement has
been signed below by the following persons in the capacities
indicated on the 9th day of February, 1996.
Signature Title
Robert R. Giordano President, Chief Executive Officer
- ------------------------- and Director (Principal Executive
Robert R. Giordano Officer)
Michael J. Mancini, Jr. Sr. Vice President and Chief
- ------------------------- Financial Officer (Principal
Michael J. Mancini, Jr. Financial Officer)
David A. Skrzysowski Vice President and Controller
- ------------------------- (Principal Accounting Officer)
David A. Skrzysowski
Sylvio L. Dupuis Director
- -------------------------
Sylvio L. Dupuis
<PAGE> II-5
Richard B. Couser Director
- -------------------------
Richard B. Couser
Edward T. Borer Director
- -------------------------
Edward T. Borer
N. George Mattaini Director
- -------------------------
N. George Mattaini
Davis P. Thurber Director
- -------------------------
Davis P. Thurber
Roger C. Avery Director
- -------------------------
Roger C. Avery
Richard J. Censits Director
- -------------------------
Richard J. Censits
Joan B. Cudhea Director
- -------------------------
Joan B. Cudhea
Constance B. Girard-diCarlo Director
- ---------------------------
Constance B. Girard-diCarlo
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plan) have duly caused this Post-Effective Amendment No.
1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Manchester, State of New Hampshire, on February 9, 1996.
ENERGYNORTH, INC.
(Plan Administrator)
By: Sylvio L. Dupuis
--------------------------------
Sylvio L. Dupuis
Director (Chairman, Compensation
Committee)
<PAGE> II-6
INDEX OF EXHIBITS
Exhibit Description of Exhibits
Number -----------------------
- -------
24 Consent of Arthur Andersen LLP is filed herewith.
99 EnergyNorth Key Employee Performance and
Equity Incentive Plan, adopted on November 18,
1992, as amended as of October 1, 1995, is filed
herewith.
EXHIBIT 24
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-8 of our reports dated November 9, 1995, included in Form 10-K
filed by EnergyNorth, Inc. for the year ended September 30, 1995,
and to all references to our firm included in this Registration
Statement.
Arthur Andersen LLP
Boston, Massachusetts
February 9, 1996
<PAGE> 1
ENERGYNORTH, INC.
KEY EMPLOYEE PERFORMANCE AND
EQUITY INCENTIVE PLAN
This Key Employee Performance and Equity Incentive Plan was
adopted on November 18, 1992 and amended as of October 1, 1995 by
the Board of Directors of EnergyNorth, Inc. for the benefit of
its key employees.
1. DEFINITIONS.
The following terms shall have the following meanings:
1.1 "Award Agreement" shall mean the written agreement between
the Company and a Key Employee setting forth the terms and
conditions under which an Incentive Award is made.
1.2 "Change of Control" shall mean:
1.2.1 The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from
the Company (excluding an acquisition by virtue of the exercise
of a conversion privilege), (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (i), (ii) and
(iii) of subparagraph 1.2.3 of this subsection are satisfied; or
<PAGE> 2
1.2.2 Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date of adoption
of this Plan whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
1.2.3 Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, (i) more
than 60% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding the Company, any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such reorganization, merger or
consolidation and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly
or indirectly, 20% or more of the Outstanding Company Common
<PAGE> 3
stock or Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of
the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
1.2.4 Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with respect
to which following such sale or other disposition, (A) more than
60% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no
Person (excluding the Company and any employee benefit plan (or
related trust) of the Company or Such corporation and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 20% or more of the
Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or
indirectly 20% or more of, respectively, the then outstanding
shares of common stock of such corporation and the combined
<PAGE> 4
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board
of directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or
action of the Board providing for such sale or other disposition
of assets of the Company.
1.3 "Committee" shall mean the Compensation Committee of the
Board of Directors of the Company.
1.4 "Company" shall mean EnergyNorth, Inc.
1.5 "Deferred Retirement" shall have the same meaning as in the
EnergyNorth, Inc. Retirement Plan for Salaried Employees dated
January 4, 1984, as amended, restated, or replaced from time to
time.
1.6 "Early Retirement" shall have the same meaning as in the
EnergyNorth, Inc. Retirement Plan for Salaried Employees dated
January 4, 1984, as amended, restated or replaced from time to
time.
1.7 "Effective Date" shall mean November 18, 1992.
1.8 "Extraordinary Items" shall mean those items of income or
expense that are determined to be unusual or extraordinary and of
a nature that would be inappropriate to affect incentive
compensation in the Committee's sole judgment.
1.9 "Forfeiture Period" shall have the meaning set forth in
section 9.1 of the Plan.
1.10 "Incentive Award" shall mean awards of cash and shares
granted to Participants pursuant to the terms of the Plan.
1.11 "Key Employees" shall mean those officers and employees of
the Company whose performance and retention, in the judgment of
the Committee, is of distinct importance to the operation and
financial results of the Company.
1.12 "Normal Retirement" shall have the same meaning as in the
EnergyNorth, Inc.'s Retirement Plan for Salaried Employees dated
January 1, 1984, as amended, restated, or replaced from time to
time.
<PAGE> 5
1.13 "Participant" shall have the meaning set forth in Section 6
of the Plan.
1.14 "Plan" shall mean the EnergyNorth, Inc. Key Employee
Performance and Equity Incentive Plan.
1.15 "Plan Year" shall mean the Company's fiscal year during each
year of the term of the Plan, beginning with the fiscal year
ending September 30, 1993.
1.16 "Ratepayer Interests" shall have the meaning set forth
subsection 7.2.1 of the Plan.
1.17 "Salary Midpoint of the Market Interval" shall mean the
midpoint between the minimum and maximum base salary within the
salary range for a Key Employee, as such salary range may be
established from time to time by the Board of Directors.
1.18 "Shareholder Interests" shall have the meaning set forth in
subsection 7.2.2 of the Plan.
1.19 "Shares" shall mean shares of the Company's common stock,
$1.00 par value, granted pursuant to Incentive Awards.
1.20 "Share Award Date" shall have the meaning set forth in
subsection 8.3 of the Plan.
2. PURPOSE.
The Plan is intended to compensate Key Employees based upon
performance standards and objectives and to reward performance
with share ownership in the Company so that Key Employees have a
greater proprietary interest in the Company. The Plan is
intended to provide for competitive, market-based total
compensation for Key Employees comprised of base salary plus
incentive salary that is at risk. By encouraging share
ownership, the Company seeks to attract, retain and motivate
highly qualified Key Employees, and to align the interests of Key
Employees with the interests of shareholders and ratepayers.
3. TERM.
The Plan was approved by the Company's Board of Directors on
November 18, 1992 (the "Effective Date"), subject to approval by
the Company's shareholders at the Company's February 3, 1993
annual meeting. The Plan shall expire ten years from the
Effective Date on November 17, 2002.
<PAGE> 6
4. SHARES SUBJECT TO PLAN.
The number of shares of the Company's $1.00 par value common
stock that may be awarded under the Plan is 200,000.
5. PLAN ADMINISTRATION.
The Plan shall be administered by the Compensation Committee
of the Company's Board of Directors. Members of the Committee
shall not participate in the Plan. The Committee shall
determine, subject to the express provisions of the Plan, the Key
Employees to whom Incentive Awards will be granted, the
performance criteria upon which Incentive Awards will be based in
a Plan Year, and the terms and provisions (including amendments
thereto) of the respective Award Agreements (which need not be
identical), including such terms and provisions (and amendments)
as shall be required in the judgment of the Committee to conform
to any change in any applicable law or regulation. The Committee
shall have full power to construe and interpret the Plan and to
establish rules and regulations for its administration. The
Committee's determination on the foregoing matters shall be by a
majority of the Committee, and its determinations and decisions
shall be final and binding upon all persons. Notwithstanding the
foregoing or any other provision of the Plan, no Incentive Award
shall be made by the Committee without the prior approval of a
majority of the members of the Board of Directors of the Company
who at the time are ineligible to participate in the Plan.
6. ELIGIBLE EMPLOYEES.
Incentive Awards may be granted to such Key Employees of the
Company or its subsidiaries (including members of the Board of
Directors who are also employees) as may be selected by the
Committee (a "Participant").
Unless otherwise determined by the Committee, in its sole
discretion, participants whose employment with the Company
terminates, voluntarily or involuntarily, prior to the last day
of a Plan Year shall not be entitled to receive any Incentive
Award with respect to that Plan Year unless such termination
occurred as a result of death, total disability (as defined in
Section 9.1.2), or Early, Normal or Deferred Retirement from
employment (in any of which events the award shall be prorated
for the portion of the Plan Year during which the Key Employee
was employed by the Company). Unless otherwise determined by the
Committee, in its sole discretion, participants whose employment
with the Company or participation in the Plan commences after the
first day of a Plan Year shall not be entitled to receive an
Incentive Award, if any, with respect to that Plan Year.
<PAGE> 7
7. INCENTIVE AWARDS.
The Plan allows Participants to earn a portion of their
compensation based upon performance criteria established annually
by the Committee.
7.1 Percentage of Salary. Prior to or early in each Plan Year,
the Committee shall establish the maximum amount of Incentive
Awards to be awarded for the ensuing Plan Year, expressed as a
percentage of each Participant's Salary Midpoint of the Market
Interval.
7.2 Performance Criteria. Prior to the beginning of each Plan
Year, the Committee shall establish the performance criteria upon
which Incentive Awards for the ensuing Plan year will be based.
The specific performance criteria selected by the Committee shall
encompass the following general areas:
7.2.1 Criteria directed at promoting efficiency of
operations, controlling cost of service, cost measured against
inflation, and other operational criteria ("Ratepayer
Interests");
7.2.2 criteria directed at achieving income objectives, pro-
fitability, shareholder return and other financial performance
criteria ("Shareholder Interests"); and
7.3 Discretion. In addition to the performance criteria
described above, a discretionary assessment of a Participant's
individual contribution to Ratepayer Interests and Shareholder
Interests shall be made. Such discretionary assessment shall be
made by the Committee.
7.4 Annual Establishment of Standards. The Committee shall
establish performance standards in each general performance area
and the relative weight, expressed as a percentage, given to each
general performance area for each Plan Year. The specific
performance criteria and the relative weight given to Ratepayer
Interests, Shareholder Interests and the discretionary assessment
shall be set forth in writing for each Plan Year and shall be
attached as an Appendix of Annual Performance Criteria.
7.5 Earnings Threshold. The Committee shall annually set
earnings thresholds based upon a comparison of actual earnings of
the Company for a Plan Year to (i) its forecasted earnings for
that Plan Year and (ii) the amount of dividends paid during the
Plan Year. No Incentive Awards shall be made by the Committee if
<PAGE> 8
Company earnings (adjusted for Extraordinary Items) in a Plan
Year are below the threshold levels established for that year.
The earnings thresholds for each Plan Year shall be set forth in
the Appendix of Annual Performance Criteria.
8. PAYMENT OF INCENTIVE AWARDS.
Within a reasonable time after all necessary information is
available to the Committee following each Plan Year, the
Committee shall determine the amount of Incentive Award grants
for the previous Plan Year in accordance with the provisions of
the Plan and subject to the prior approval of a majority of the
members of the Board of Directors of the Company who at the time
are ineligible to participate in the Plan. Twenty-five percent
of any Incentive Award will be awarded in the form of Shares, and
the balance awarded in cash, subject to the terms and conditions
set forth below.
8.1 Payment of Cash Awards. That portion of a Participant's
Incentive Award payable in cash shall be paid as soon as
practicable following the close of the Plan Year.
8.2 Grant of Shares. Shares granted pursuant to an Incentive
Award for a Plan Year shall be issued as follows:
8.2.1 Shares shall be issued as compensation for employment,
without payment of additional consideration;
8.2.2 The number of Shares issued shall be determined by dividing
an amount equal to twenty-five percent of a Participant's
total Incentive Award by the average of the closing prices
of the Company's common stock, as reported on the New York
Stock Exchange, during the last ten trading days of the Plan
Year to which the incentive Award applies; and
8.2.3 the Shares shall be subject to certain transfer restrictions
and risk of forfeiture in accordance with the terms
of Section 9 of the Plan.
8.3 Award Agreement. At the time that Shares are granted
pursuant to an Incentive Award ("Share Award Date"), each
Participant shall be required to execute an Award Agreement which
shall provide, among other things, for escrow of Shares
consistent with Section 10 hereof, forfeiture and
<PAGE> 9
nontransferability consistent with Section 9 hereof, such
representations of the Participant as are appropriate in the
Committee's discretion, and such other terms and provisions as
are appropriate in the sole judgment of the Committee.
9. RESTRICTIONS ON TRANSFER; FORFEITURE.
Shares awarded pursuant to Incentive Awards shall be subject
to forfeiture to the Company and shall not be transferred by a
Participant for a period of three years from the Share Award
Date.
9.1 Forfeiture. Shares shall be forfeited to the Company by a
Participant if his or her employment is terminated within three
years from the Share Award Date (the "Forfeiture Period"),
provided, however, that a Participant's Shares shall not be
forfeited for a termination of employment by reason of:
9.1.1 the death of a Participant;
9.1.2 the total disability of a Participant, as that term is
defined in Section 72(m)(7) of the Internal Revenue Code of
1986, as amended; and
9.1.3 Early, Normal or Deferred Retirement from employment of
a Participant.
9.2 Nontransferability. For a period of three years from the
Share Award Date, a Participant shall not sell, assign, convey,
pledge or otherwise transfer any shares, except by will or the
laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code
of 1986, as amended, or by Title I of the Employee Retirement
Income Security Act ("ERISA") or the rules thereunder. No shares
shall be reached by, or be subject to, any legal, equitable or
other process, including any bankruptcy proceeding, or be subject
to the interference or control of creditors of a Participant, or
in any other way or manner including execution, attachment or
similar process except with the consent of the Company.
9.3 Termination of Restrictions. The Forfeiture Period and the
restrictions on transfer set forth in Sections 9.1 and 9.2 shall
automatically terminate in the event of the death, disability (as
defined in Section 9.1.2) or the later of Normal Retirement or
Deferred Retirement of a Participant, or in the event of a Change
of Control.
<PAGE> 10
10. ESCROW OF SHARES - RIGHTS AS SHAREHOLDER.
10.1 Escrow. During the Forfeiture Period, the Shares shall be
held in escrow by the Company or its agent pursuant to the terms
of the underlying Award Agreement with a Participant.
Certificates representing the Shares, together with executed
stock powers to be used by the Company in the event of forfeiture
or use of the Shares for payment of federal withholding tax,
shall be deposited with the Company. The Company shall release
the Shares held in escrow to a Participant (or a Participant's
estate) upon the termination of the Forfeiture Period, subject to
the terms of the Plan and the underlying Award Agreement.
10.2 Participant Rights. Participants shall have all of the
rights of a shareholder of the Company with respect to Shares
registered in his or her name, during the Forfeiture Period,
including the right to vote the Shares and receive dividends and
other distributions paid with respect to the Shares.
11. CORPORATE CHANGES.
The Company's Board of Directors shall adjust the number of
Shares subject to the Plan to give effect to any stock dividends,
stock splits, stock combinations, recapitalizations, or other
such changes in the Company's capital structure. The terms and
conditions of the Plan shall apply to any other capital Shares of
the Company and any other securities that may be acquired by a
Participant as a result of a stock dividend, stock split, stock
combination or exchange for other Company securities resulting
from any recapitalization, reorganization or other transaction
affecting Shares.
12. TAX WITHHOLDING.
Incentive Awards are subject to federal income tax
withholding. In the case of the cash component of an Incentive
Award, the Company shall withhold at the time of payment that
amount of the cash award required to be withheld under the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder. In the case of the Shares component of an Incentive
Award, the Company shall withhold the applicable amount at the
time that the Forfeiture Period terminates or at such earlier
time as may be required by law, in the sole judgment of the
Committee. If the Participant elects under Section 83 of the
Internal Revenue Code of 1986, as amended, to accelerate the
recognition of income attributable to the receipt of Shares, the
Participant shall furnish the Company with a copy of such
election form concurrently with filing with the Internal Revenue
<PAGE> 11
Service. The Participant shall, in the first instance, be
required to pay the applicable amount to be withheld to the
Company before the Shares are released from escrow. In the event
that the Participant does not pay such withholding amount to the
Company, the Company shall be entitled to offset any obligation
that it may have to Participant, including salary or wage
obligations, in any amount equal to such withholdings, or, at the
option of the Company, the Company shall be entitled to pay such
withholding by using that number of the Shares it will hold in
escrow pursuant to Section 10 of this Plan sufficient to generate
cash proceeds to it necessary to pay such withholding. The
Participant's agreement to allow Company use of Shares for
withholding shall be set forth in the underlying Award Agreement.
13. TERMINATION OR AMENDMENT.
Except as provided in Section 13.3 below, the Board of
Directors may at any time suspend, reinstate, or terminate the
Plan or make such changes in or additions to the Plan as it deems
advisable without further action on the part of the shareholders
of the Company, except:
13.1 that no such termination or amendment shall adversely affect
or impair any then issued and outstanding Shares without the
consent of the Participant holding such Shares;
13.2 that no such amendment which (a) materially increase the
maximum number of Shares subject to this Plan; (b) materially
increase the benefits accruing to Participants under the Plan;
(c) remove the administration of the Plan from the Committee; or
(d) materially modify the requirements as to eligibility for
participation in the Plan may be made without first obtaining
shareholder approval; and
13.3 that in the event of a Change in Control, the Company may
neither terminate the Plan nor reduce benefits under the Plan
with respect to those individuals who are Participants as of the
date of the Change in Control.
14. EMPLOYMENT.
Nothing in the Plan shall confer upon any employee the right
to continue in the employ of the Company, and it is understood
and agreed that all Key Employees are employees at will, except
as may be provided in specific employment agreements.
<PAGE> 12
15. OTHER PLANS.
The adoption of the Plan shall not affect any other
compensation plan in effect for the Company, nor shall the Plan
preclude the Company from establishing any other forms of
incentive or other compensation for employees of the Company.
16. INDEMNIFICATION.
In addition to other rights of indemnification as directors
or otherwise, the members of the Committee shall at all times be
indemnified by the Company against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred in
connection with the assertion of any claim, action, suit or
proceeding, or in connection with any appeal thereof, to which
they, or any of them, may be a party by reason of any action
taken or failure to act in connection with the Plan and against
all amounts paid by them in settlement thereof approved by
independent legal counsel selected by the Company, or paid by
them in satisfaction of a judgment in any such action, suit or
proceeding, provided that within sixty (60) days after
institution of such action, suit or proceeding, the member shall
make written offer to the Company to handle and defend the same
at its own expense.
17. SECTION 16 COMPLIANCE
With respect to persons subject to Section 16 of the
Securities Exchange Act of 1934 ("1934 Act"), transactions under
the Plan are intended to comply with all applicable conditions of
Rule 16b-3 or its successors under the 1934 Act. To the extent
any provisions of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted
by law and deemed advisable by the Committee.
