As filed with the Securities and
Exchange Commission on April 2, 1999
Registration No. 33- __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________________
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. 1998 STOCK OPTION 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
________________________________
Approximate date of proposed sales pursuant to the Plan:
From time to time after the effective date of this Registration Statement
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Title of Proposed Maximum Proposed Maximum Amount of
Securities To Amount To Be Aggregate Offering Aggregate Registration
Be Registered Registered1 Price Per Share2 Offering Price2 Fee
________________________________________________________________________________
Common Stock 200,000 $27.59375 $5,518,750 $1,534.21
par value $1.00
1 This registration statement also covers an indeterminate number of
additional shares that may be offered or sold to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
2 Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (h) on the basis of the average high and low prices for the
Common Stock as reported on the New York Stock Exchange on April 1, 1999.
<PAGE>
Cross-Reference Sheet
Form S-8
Item in Part I of Form S-8 Location in the Prospectus
1. Plan Information
(a) General Plan Information Outside front cover page of prospectus;
The Plan: General; Purpose of the Plan;
Administration; Effective Date and
Duration of the Plan
(b) Securities to be Offered The Plan: Shares Available for
Stock Options
(c) Employees Who May The Plan: Eligible Employees
Participate in the Plan
(d) Purchase of Securities Pursuant The Plan: Shares Available for
to the Plan and Payment for Stock Options; Purchase Price; Payment
Securities Offered
(e) Resale Restrictions The Plan: Transfer; Restrictions
on Exercise; Retirement,
Termination, Disability, Death
(f) Tax Effects of Plan Summary of Certain Tax Consequences
(g) Investment of Funds Not applicable
(h) Withdrawal from the Plan; The Plan: Transfer; Restrictions
Assignment of Interest on Exercise; Retirement,
Termination, Disability, Death
(i) Forfeitures and Penalties The Plan: Transfer;
Restrictions on Exercise
(j) Charges and Deductions and The Plan: Transfer;
Liens Therefor Restrictions on Exercise
2. Registrant Information and Certain Other Information
Employee Plan Annual Information
<PAGE>
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION 4
THE PLAN 4
General 4
Adoption of the Plan 4
Purpose of the Plan 4
Administration 4
Eligible Employees 4
Shares Available for Stock Options 5
Purchase Price 5
Payment 5
Restrictions on Exercise 5
Transfer 5
Retirement, Termination, Disability, Death 5
Stock Option Agreement 6
Valuation 6
Adjustment and Acceleration of Shares 6
Effect of the Plan on the Rights of Directors or Employees 7
Amendment 7
Effective Date and Duration of Plan 7
SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES 7
PERIODIC REPORTS TO STOCKHOLDERS 9
CERTAIN OTHER INFORMATION 9
<PAGE>
PART 1
INTRODUCTION
This Registration Statement on Form S-8 relates to the
registration of 200,000 shares of EnergyNorth, Inc. (the
"Company") common stock, $1.00 par value per share, issuable upon
exercise of options granted under the EnergyNorth, Inc. 1998
Stock Option Plan (the "Plan").
AVAILABLE INFORMATION
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, New York 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 Registration
Statement 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 Senior Vice President
and Chief Financial Officer, EnergyNorth 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 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 is attached
hereto as Exhibit 99 or 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.
Adoption of the Plan. The Plan was adopted by the Directors of
the Company on November 19, 1998 and was approved by the
stockholders on February 3, 1999.
Purpose of the Plan. The Plan is intended to encourage eligible
officers, directors, and employees of the Company and its
subsidiaries to increase their efforts to make the Company and
each subsidiary more successful, to provide an additional
inducement for such individuals to remain with the Company or a
subsidiary, to reward such individuals by providing the
opportunity to acquire the Common Stock on favorable terms, and
to provide a means through which the Company may attract able
persons to enter the employ of the Company or its subsidiaries.
The Plan is not subject to the provisions of the Employee
Retirement Income Security Act of 1974.
Administration. The Plan is administered by the Compensation
Committee of the Board of Directors of the Company (the
"Compensation Committee"), so long as it is comprised of two or
more non-employee Directors, provided that no option may be
granted without the approval of the Board of Directors.
Eligible Employees. Officers and directors of the Company or any
subsidiary and those employees ("Key Employees") of the Company
or any subsidiary who share the primary responsibility for the
management, growth, or protection of the business of the Company
or any subsidiary are eligible to receive stock options as
described herein. Only Key Employees are eligible to receive
incentive stock options.
<PAGE>
Shares Available for Stock Options. The aggregate number of
shares of the Company's common stock which may be issued or
delivered under the Plan is 200,000 shares, subject to adjustment
as set forth below. If any stock option granted under the Plan
is canceled in full or expires before exercise, the shares
subject to such stock option shall again be available for the
purposes of the Plan.
Purchase Price. The purchase price at which each stock option
may be exercised (the "Option Price") will be such price (either
greater than, the same as, or less than the fair market value per
share of the Company's common stock on the date of grant) as the
Committee, in its discretion, will determine but (i) in the case
of incentive stock options, will not be less than one hundred
percent (100%) of the fair market value per share of the shares
of Common Stock covered by the stock option on the date of grant
and (ii) in the case of incentive stock options granted to a Key
Employee who together with the members of his immediate family
owns, or may be deemed to own, beneficially, more than 10% of the
outstanding voting securities of the Company (as the terms
"immediate family" and "beneficial ownership" are defined under
the Securities Exchange Act of 1934 (the "Exchange Act") and such
other terms and conditions as the Committee will deem advisable
(such a Key Employee is referred to as a "Principal
Shareholder"), will not be less than one hundred and ten percent
(110%) of the fair market value per share of the shares of the
Company's common stock covered by the stock option on the date of
grant. In exercising its discretion, the Committee will take
into account the nature and value to the Company of the
recipient's service, and such other factors as the Committee may
deem relevant. For purposes of the purchase price, fair market
value will be determined as set forth below in the section
"Valuation."
Payment. The Option Price is to be paid in full in cash upon the
exercise of a stock option; provided, however, that in lieu of
cash an individual may, if authorized by the Committee, exercise
a stock option by tendering to the Company's shares of the
Company's common stock owned by the individual and having a fair
market value on the date of exercise, as set forth below in the
section "Valuation", equal to the option price. No shares will
be issued or delivered upon exercise of a stock option until the
Option Price has been paid in full. When the Option Price has
been paid in full, the option holder will be considered for all
purposes to be the owner of the shares with respect to which
payment has been made.
Restrictions on Exercise. No incentive stock option or
nonstatutory stock option will be exercisable after the
expiration of ten years from the date of grant or, in the case of
an incentive stock option or nonstatutory stock option granted to
a Principal Shareholder, five years from the date of grant.
Except as otherwise provided in this section and the "Retirement,
Termination, Disability, Death" section, stock options may be
exercised at such times, in such amounts and subject to such
restrictions as will be determined by the Committee.
Transfer. No stock option will be transferable other than by
will by the laws of descent and distribution and each stock
option will be exercisable during the lifetime of the recipient
only by the recipient.
Retirement, Termination, Disability, Death. If a Key Employee
Retires (as defined below) or if the employment of a Key Employee
who is disabled within the meaning of Section 422(c)(6) of the
Code ("Disabled Option Holder") is voluntarily terminated with
the consent of the Company or a subsidiary, any then outstanding
stock option held by such Key Employee will become immediately
exercisable by such Key Employee at any time prior to the stock
option expiration date or within three years after the date of
termination of employment, whichever is the shorter period.
"Retires" shall mean retirement on or after date of Normal
Retirement, or on any earlier date such that the employee's
benefits are not reduced, under the Company's retirement plan.
Whether termination of employment is a voluntary termination with
consent and whether a Key Employee is disabled within the meaning
of Section 422(c)(6) of the Code shall be determined in each case
by the Committee, and any such determination by the Committee
shall be final and binding.
If the service of an option holder who is a director is
terminated because such option holder cannot at his or her age
stand for re-election to the Committee, any then outstanding
stock option held by such option holder will continue to be
exercisable and will expire in accordance with its terms.
Following the death of an option holder, any outstanding
stock option held by any such recipient at the time of death will
be exercisable in full (whether or not so exercisable on the date
of the recipient's death, but subject to such other restrictions
on the exercise of incentive stock options as are set forth in
the above Section "Restrictions on Transfer") by the person or
persons entitled to do so under the recipient's will, or, if the
recipient
<PAGE>
fails to make a testamentary disposition of such stock
option or dies intestate, by the recipient's legal
representative, in either case at any time prior to the
expiration date of such stock option or within one year after the
date of death, whichever is the shorter period.
In the event of termination of the employment of an employee
or the service of any other option holder for any reason other
than as set forth in this Section, the rights of such option
holder under any then outstanding stock option will terminate at
the date of such termination of employment except as otherwise
provided in the stock option agreement.
Stock Option Agreement. Each stock option will be confirmed by a
stock option agreement which will be executed by the Chairman of
the Committee or the President on behalf of the Company and by
the person to whom such stock option is granted.
Valuation. The fair market value of the Company's common stock
will be the average of the closing price of the Company's common
stock, as reported on the New York Stock Exchange, during the ten
trading days immediately preceding the date of grant.
Adjustment and Acceleration of Shares. If a dividend or other
distribution shall be declared upon the Company's common stock
payable in shares of the Company's common stock, the number of
shares of the Company's common stock then subject to any
outstanding stock option and the number of shares which may be
issued or delivered under the Plan but are not then subject to an
outstanding stock option will be adjusted by adding thereto the
number of shares which would have been distributable thereon if
such shares had been outstanding on the date fixed for
determining the shareholders entitled to receive such stock
dividend or distribution.
If the outstanding shares of the Company's common stock are
changed into or exchangeable for a different number or kind of
shares of stock or other securities of the Company or another
corporation, whether through reorganization, reclassification,
recapitalization, stock split-up, combination of shares, merger
or consolidation, then there will be substituted for each share
of the Company's common stock subject to any then outstanding
stock option and for each share of the Company's common stock
which may be issued or delivered under the Plan but are not then
subject to an outstanding stock option, the number and kind of
shares of stock or other securities into which each outstanding
share of the Common Stock will be so changed or for which each
such share will be exchangeable; or, alternatively, the
Committee, or the governing body of any successor entity, will
make an appropriate and equitable adjustment in the number and
kind of option shares as to which the option is then unexercised
in order that, after such event, the option shares as to which
the option is then unexercised will represent the same potential
ownership interest in the company (or that part of a successor
entity which consists of the company) immediately after such
event as they represent immediately before such event.
Each outstanding stock option will become immediately and
fully exercisable for a period of six months following the date
of the following occurrences: (i) if any person (including a
group as defined in Section 13(d)(3) of the Exchange Act) becomes
directly or indirectly the beneficial owner of 20% or more of the
Common Stock; (ii) as a result of or in connection with any cash
tender offer, exchange offer, merger or other business
combination, sale of assets or contested election, or combination
of the foregoing, the persons who were directors of the Company
just prior to such event cease to constitute a majority of the
Company's Board of Directors; or (iii) the stockholders of the
Company approve an agreement providing for a transaction in which
the Company will cease to be an independent publicly-owned
corporation or a sale or other disposition of all or
substantially all of the assets of the Company occurs.
In case of any adjustment or acceleration, the aggregate
Option Price for all shares subject to each then outstanding
stock option prior to such adjustment or acceleration will be the
aggregate option price for all shares of stock or other
securities (including any fraction) to which such shares will
have been adjusted or which will have been substituted for such
shares. Any new option price will be carried to at least three
decimal places with the last decimal place rounded upwards to the
nearest whole number.
All references in this Plan to shares will, where the
context so requires, be deemed to be references to such shares as
adjusted pursuant to this Section. If any such adjustment to the
number of shares subject to the grant of stock options requires
the approval of stockholders in order to enable the Company to
issue incentive stock options
<PAGE>
then no such adjustment will be made without the approval of
the stockholders. Notwithstanding the foregoing, in the case of
incentive stock options, if the effect of any adjustment or acceleration
is to cause the stock option to fail to continue to qualify as an
incentive stock option or to cause a modification, extension, or renewal
of such stock option within the meaning of Section 424(h) of the Code,
the Board of Directors may elect not to make such adjustment or
acceleration but rather will use reasonable efforts to effect
such other adjustment of each then outstanding stock option as
the Board of Directors in its sole discretion will deem equitable
and which will not result in any disqualification, modification,
extension, or renewal (within the meaning of Section 424(h) of
the Code) of such stock option.
Effect of the Plan on the Rights of Directors or Employees.
Neither the adoption of the Plan nor any action of the Committee
or the Board of Directors pursuant to the Plan will be deemed to
give any person any right to be granted a stock option under the
Plan, and nothing in the Plan or in any stock option granted
under the Plan or in any stock option agreement will confer upon
any person any right to continue to serve the Company or any
subsidiary as an employee, officer, director, consultant, or
otherwise, or interfere in any way with the rights of the Company
or any Subsidiary to terminate the service or employment of any
person at any time.
Amendment. The right to alter and amend the Plan at any time and
from time to time and the right to revoke or terminate the Plan
are hereby specifically reserved to the Board; provided always
that no such revocation or termination will terminate any
outstanding stock option theretofore granted under the Plan; and
provided further that no such alteration or amendment of the Plan
will, without prior shareholder approval, (i) increase the total
number of shares which may be issued or delivered under the Plan,
(ii) make any changes in the class of eligible officers,
directors, consultants or employees, or (iii) extend the periods
set forth in the Plan during which stock options may be granted.
No alteration, amendment, revocation or termination of the Plan
will, without the written consent of the holder of a stock option
theretofore granted under the Plan, adversely affect the rights
of such holder with respect to such stock option.
Effective Date and Duration of Plan. The date of adoption of the
Plan will be November 19, 1998. No stock option may be granted
under the Plan subsequent to November 18, 2008.
SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Incentive Stock Options
In General. An option holder will not recognize income on the
grant of an incentive stock option. Except as provided in this
paragraph, an option holder also will not recognize income on the
exercise of an incentive stock option. If, however, such
exercise occurs more than three months after the option holder
ceased to be an employee for reasons other than death or
permanent and total disability, or more than one year thereafter
if the option holder ceased to be an employee by reason of
permanent and total disability, the exercise will not be treated
as the exercise of an incentive stock option, and the federal
income tax consequences to the option holder and the option
holder's employer corporation will be the same as those for
nonstatutory stock options, discussed below under the caption
"Nonstatutory Stock Options." In certain circumstances,
alternative minimum tax liability may also result from the
exercise of an incentive stock option. See the discussion below
under the caption "Alternative Minimum Tax."
There is a limit on the options that can be granted to an
individual that will qualify for incentive stock option
treatment. That limit is determined by the value of option stock
for which incentive stock options can be exercised for the first
time in a calendar year. To the extent the aggregate fair market
value for which incentive stock options are exercisable by an
individual for the first time in a calendar year exceeds
$100,000, such options are not treated as incentive stock
options. The aggregate fair market value of an individual's
incentive stock option is determined at the time such options are
granted.
Any options granted to an individual who, at the time the
options are granted, is the beneficial owner of more than ten
percent (10%) of the total combined voting power of all classes
of stock of the Company, or of a parent or subsidiary of the
Company, will be treated as options which are not incentive stock
options and the option holder will be taxed upon exercise of such
options under the rules governing the exercise of nonstatutory
stock options described below, unless the option exercise price
is at least one hundred and ten percent (110%) of the fair market
value per share of the shares of Common Stock covered by the
stock option on the date of grant. In
<PAGE>
addition, if any options are granted with the express provision that
they are not incentive stock options, those options will be treated as
options which are not incentive stock options, and the option holder
will be taxed upon exercise of such options under the rules governing
the exercise of nonstatutory stock options described below.
Gain or loss from the sale or exchange of shares acquired
upon exercise of an incentive stock option will generally be
treated as capital gain or loss, provided that the shares are
held as capital assets at the time of sale or exchange and that
such sale or exchange does not occur before the later of (i) one
year from the date the shares are transferred to the option
holder pursuant to the exercise of the option or (ii) two years
from the date the option is granted.
If the option holder fails to meet the holding period
requirements stated in the paragraph above, then any increase in
the income of such individual or deduction from income of his
employer corporation for the taxable year in which such exercise
occurred attributable to such disposition, shall be treated as an
increase in ordinary income or a deduction from income in the
taxable year of such individual or of such employer corporation
in which such disposition occurred.
Generally, the Company will not be allowed a deduction in
connection with the grant or exercise of an incentive stock
option. However, if an option holder recognizes ordinary income
as a result of a disposition as described in the preceding
paragraph, the Company will be entitled to a deduction in the
same amount for the Company's taxable year in which such
disposition occurs.
Alternative Minimum Tax. The exercise of an incentive stock
option may result in alternative minimum tax ("AMT") liability.
Generally, an individual's AMT is the excess of his "tentative
minimum tax" (i.e., 26% for the first $175,000 alternative
minimum taxable income ("AMTI") which exceeds the applicable
statutory exemption amount, and 28% for the amount above the
first $175,000) over his regular income tax, and such excess is
added to the individual's regular income tax to determine his
total income tax liability for the year. A taxpayer's AMTI is
calculated by adding certain tax preference items, and by making
a number of adjustments, to a taxpayer's regular taxable income,
including an adjustment that treats incentive stock options as
nonstatutory stock options. (See the discussion below under the
caption "Nonstatutory Stock Options.") Accordingly, an option
holder who exercises an incentive stock option is required to
include in AMTI the amount that would be included in regular
income if the incentive stock option had been a nonstatutory
stock option, and, while the law is not entirely clear,
apparently such income is included in AMTI in the year in which
it would have been included in regular income. For AMT purposes,
an option holder's basis in stock acquired on exercise of an
incentive stock option also is determined by treating such stock
as if it were acquired on the exercise of a nonstatutory stock
option.
The AMT also provides for a minimum tax credit. Under this
provision, an individual is entitled to a credit against a
portion of his regular income tax liability, to the extent it
exceeds his tentative minimum tax for that year, in an amount
equal to a portion of the taxpayer's AMT for prior years after
1986. The portion of the AMT available as a credit is the excess
of the taxpayer's actual AMT over what the AMT would have been
had it been determined by reference only to specified adjustments
and preferences, which do not include the adjustment that treats
an incentive stock option as a nonstatutory stock option. The
specified adjustments and preferences generally are those that do
not involve simply deferrals, i.e., they include the adjustment
for itemized deductions and the preference items arising from
depletion, tax-exempt interest and charitable contributions of
appreciated property. Thus, for example, if an option holder is
subject in a year after 1986 to the AMT solely as a result of
exercising an incentive stock option in such year, the option
holder may claim a credit for such AMT against his regular income
tax liability in a later year, but only to the extent that the
taxpayer's regular income tax liability (reduced by certain
credits) exceeds his tentative minimum tax for that later year.
The minimum tax credit may be carried forward indefinitely until
fully used.
Nonstatutory Stock Options
Because nonstatutory stock options granted under the Plan
are not transferable and will not be actively traded on an
established market, an option holder will not recognize income on
the grant of a nonstatutory stock option. This also applies to
options that are treated as nonstatutory stock options because
they do not meet the definition of incentive stock options as
described above.
<PAGE>
An option holder will recognize ordinary income at the time
of the exercise of a nonstatutory stock option provided the
shares issued pursuant to such exercise are either transferable
or not subject to a substantial risk of forfeiture. The amount
of such ordinary income will be equal to the excess, if any, of
the fair market value of the shares at the time of exercise over
the exercise price.
When ordinary income is recognized by an option holder in
connection with the receipt of shares on the exercise of a
nonstatutory stock option, the Company will be entitled to a
deduction, in the amount of ordinary income so recognized by the
option holder, provided the Company satisfies certain federal
income tax withholding requirements.
Gain or loss from the sale or exchange of shares acquired on
the exercise of a nonstatutory stock option will generally be
treated as capital gain or loss provided the shares are held as
capital assets at the time of sale or exchange. If such shares
have been held for the requisite holding period, then the capital
gain or loss will generally be treated as long-term capital gain
or loss. Currently, the requisite holding period for long-term
capital gain treatment upon the sale or exchange of shares
acquired upon the exercise of a nonstatutory stock option is more
than one year.
Consultation With Tax Advisor
The rules governing the tax treatment of options and shares
acquired on the exercise thereof are quite technical, so that the
above description of tax consequences is necessarily general in
nature and does not purport to be complete. Moreover, statutory
provisions are, of course, subject to change, as are their
interpretations, and their application may vary in individual
circumstances. Option holders are urged to consult with their
tax advisers for information with respect to the results which
would pertain to their particular circumstances.
The consequences, under applicable state and local income
tax laws, of the grant or exercise of incentive stock options and
nonstatutory stock options, and the sale or exchange of shares
acquired on exercise, may not be the same as under the federal
income tax laws.
PERIODIC REPORTS TO STOCKHOLDERS
The Company furnishes its stockholders with audited
financial statements for each fiscal year and furnishes
stockholders of record with summary unaudited financial results
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 1933 with
respect to the Company's common stock offered under the Plan.
Documents incorporated by reference in Item 3 of Part II of this
Registration Statement, and any other documents required to be
delivered to employees pursuant to Rule 428(b) of the Securities
Act of 1933 are available, without charge, upon oral or written
request to the Senior Vice President and Chief Financial Officer,
EnergyNorth Inc., 1260 Elm Street, Box 329, Manchester, New
Hampshire 03105-0329 and telephone number (603) 625-4000. All of
the documents referred to in this Registration Statement and
additional information concerning the Company may be inspected
and copied at the public reference facilities maintained by the
Commission at the addresses set forth in the "Available
Information" section of this Registration Statement. In
addition, all documents incorporated by reference in Item 3 of
Part II of this Registration Statement are incorporated by
reference into the prospectus.
<PAGE>
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:
1. Annual Report on Form 10-K for the Fiscal Year Ended
September 30, 1998.
2. Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998.
3. 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 8.50 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
or any existing arrangement or otherwise, the Company has been
advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy and is,
therefore, unenforceable.
The bylaws 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.
<PAGE>
Item 8. Exhibits
The exhibits listed on the Exhibit Index on page 15 of this
Registration Statement are filed herewith or are incorporated
herein by reference to other filings.
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;
(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.
(b) The Company hereby undertakes that for the purpose of determining
any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act 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.
(e) The undersigned Company 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.
<PAGE>
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions set forth in Item 6,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company expenses
incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Manchester,
and State of New Hampshire, on April 2, 1999.
ENERGYNORTH, INC.
By:/s/ 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 Michelle L. Chicoine,
and each of them, his or her true and lawful attorney-in-fact and agent with
full power of substitution, 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 all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in
- -fact and agent full power 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 that said attorney-in-fact and agent or his or her
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 in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Dated
<C> <S> <S>
/s/ Robert R. Giordano President, Chief Executive Officer and April 2, 1999
Robert R. Giordano Director (Principal Executive Officer)
/s/ Michelle L. Chicoine Executive Vice President and Director April 2, 1999
Michelle L. Chicoine
/s/ Frank L. Childs Senior Vice President and Chief Financial April 2, 1999
Frank L. Childs Officer (Principal Financial Officer)
/s/ David A. Skrzysowski Vice President and Controller April 2, 1999
David A. Skrzysowski (Principal Accounting Officer)
/s/ Roger C. Avery Director April 2, 1999
Roger C. Avery
<PAGE>
/s/ Edward T. Borer Director April 2, 1999
Edward T. Borer
_________________ Director ________, 1999
Richard B. Couser
______________ Director ________, 1999
Joan P. Cudhea
/s/ Sylvio L. Dupuis Director April 2, 1999
Sylvio L. Dupuis
___________________________ Director ________, 1999
Constance B. Girard-diCarlo
/s/ Andrew E. Lietz Director April 2, 1999
Andrew E. Lietz
____________________ Director ________, 1999
N. George Mattaini
/s/ John E. Tulley II Director April 2, 1999
John E. Tulley II
</TABLE>
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 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Manchester, State of New Hampshire,
on April 2, 1999.
ENERGYNORTH, INC.
(Board of Directors)
By:/s/ Sylvio L. Dupuis
Sylvio L. Dupuis
Director (Chairman, Compensation Committee)
<PAGE>
INDEX OF EXHIBITS
Exhibit
Number Description of Exhibits
4.1 EnergyNorth, Inc. Articles of Incorporation are incorporated
by reference to Exhibit 3.1 of the Registrant's Quarterly
Report on Form 10-Q (file no. 1-11441) for the quarter ended
March 31, 1996.
4.2 Bylaws of EnergyNorth, Inc.
4.3 Rights Agreement, dated as of June 18, 1990, between the
Registrant and State Street Bank & Trust Company is
incorporated by reference to Exhibit 1-2 to the Registrant's
Registration Statement on Form 8-A, dated June 18, 1990.
5 Opinion of McLane, Graf, Raulerson & Middleton, Professional
Association re: Legality.
23.1 Consent of McLane, Graf, Raulerson & Middleton, Professional
Association is contained in Exhibit 5 filed herewith.
23.2 Consent of Arthur Andersen LLP.
99 EnergyNorth, Inc. 1998 Stock Option Plan.
BY-LAWS
OF
ENERGYNORTH, INC.
ARTICLE I
Offices
The principal office of the corporation in the State of New
Hampshire shall be located in the City of Manchester, County of
Hillsborough. The corporation may have such other offices,
either within or without the State of New Hampshire, as the board
of directors may designate or as the business of the corporation
may require from time to time.
ARTICLE II
Shareholders
Section 2.1 Annual Meeting. The annual meeting of the
shareholders shall be held on the first (1st) Wednesday in the
month of February in each year, beginning with the year 1986 at
the hour of 11:00 O'clock a.m. or at such other time on such
other day within such month as shall be fixed by the board of
directors, for the purpose of electing directors and for the
transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a
legal holiday in the State of New Hampshire, such meeting shall
be held on the next succeeding business day. If the election of
directors shall not be held on the day designated herein for any
annual meeting of the shareholders, or at any adjournment
thereof, the board of directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter
as conveniently may be.
Section 2.2 Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise
prescribed by statute, may be called by the president or by the
board of directors, and shall be called by the president at the
request of the holders of not less than one-tenth (1/10) of all
outstanding shares of the corporation entitled to vote at the
meeting.
Section 2.3 Place of Meeting. The board of directors may
designate any place, either within or without the State of New
Hampshire, as the place of meeting for any annual meeting or for
any special meeting called by the board of directors. A waiver
of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the
State of New Hampshire, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal
office of the corporation in the State of New Hampshire.
<PAGE>
Section 2.4 Notice of Meeting. Written notice stating the
place, day and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called,
shall, unless otherwise prescribed by statute, be delivered not
less than ten (10) nor more than fifty (50) days before the date
of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer or
other persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall
be deemed to be delivered when deposited in the United States
mail, addressed to the shareholder at his address as it appears
on the stock transfer books of the corporation, with postage
thereon prepaid.
Section 2.5 Closing of Transfer Books or Fixing of Record
Date. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive payment
of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors
of the corporation may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any
case, fifty (50) days. If the stock transfer books shall be
closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books
shall be closed for at least ten (10) days immediately preceding
such meeting. In lieu of closing the stock transfer books, the
board of directors may fix in advance a date as the record date
for any such determination of shareholders, such date in any case
to be not more than fifty (50) days and, in case of a meeting of
shareholders, not less than ten (10) days prior to the date on
which the particular action requiring such determination of
shareholders is to be taken. If the stock transfer books are not
closed and no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a
dividend, the date on which the notice of the meeting is mailed
or the date on which the resolution of the board of directors
declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
Section 2.6 Voting Record. The officer or agent having
charge of the stock transfer books for shares of the corporation
shall make a complete record of the shareholders entitled to vote
at each meeting of shareholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the
number of shares held by each. Such record shall be produced and
kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole
time of the meeting for the purposes thereof.
Section 2.7 Quorum. A majority of the outstanding shares
of the corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders.
If less than a majority of the shares are represented at a
meeting, a majority of the shares so represented may adjourn the
meeting from time to time without further notice. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The
shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
<PAGE>
Section 2.8 Proxies. At all meetings of shareholders, a
shareholder may vote in person or by proxy executed in writing by
the shareholder or by his duly authorized attorney-in-fact. Such
proxy shall be filed with the secretary of the corporation before
or at the time of the meeting. No proxy shall be valid after
eleven (11) months from the date of its execution, unless
otherwise provided in the proxy.
Section 2.9 Voting of Shares. Unless cumulative voting is
authorized in the articles of incorporation, each outstanding
share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Section 2.10 Voting of Shares by Certain Holders. Shares
standing in the name of another corporation may be voted by such
officer, agent or proxy as the ByLaws of such corporation may
prescribe or, in the absence of such provision, as the board of
directors of such other corporation may determine.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or
by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under control of a receiver
may be voted by such receiver without the transfer thereof into
his name if authority so to do be contained in an appropriate
order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled
to vote the shares so transferred.
Neither treasury shares of its own stock held by the
corporation, nor shares held by another corporation if a majority
of the shares entitled to vote for the election of directors of
such other corporation are held by the corporation, shall be
voted at any meeting or counted in determining the total number
of outstanding shares at any given time for purposes of any
meeting.
Section 2.11 Informal Action by Shareholders. Any action
required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by
all of the shareholders entitled to vote with respect to the
subject matter thereof.
ARTICLE III
Board of Directors
Section 3.1 General Powers. The business and affairs of
the corporation shall be managed by its board of directors.
<PAGE>
Section 3.2.1 Number, Tenure and Qualifications. The
number of directors of the corporation shall be eleven (11). The
directors shall be divided as nearly equally as possible into
three classes pursuant to the articles of incorporation. Except
as otherwise provided by the articles of incorporation, each
director shall hold office until the third successive annual
meeting of shareholders and until his successor shall have been
elected and qualified. Directors need not be residents of the
State of New Hampshire or shareholders of the corporation.
Section 3.2.2 No director may be reelected to a consecutive
term who has attained the age of 70 prior to the date of the
annual meeting at which his term expires.
Section 3.2.3 Any amendment of Section 3.2.1 increasing the
number of directors shall require a vote of 75% of the directors.
The number of directors shall not be increased except at a
meeting of directors expressly called for that purpose. This
paragraph may not be rescinded, repealed, altered or amended
except by a vote of 75% of the directors or a majority of the
shares.
Section 3.3 Regular Meetings. A regular meeting of the
board of directors shall be held without other notice than this
By-Law immediately after, and at the same place as, the annual
meeting of shareholders. The board of directors may provide, by
resolution, the time and place, either within or without the
State of New Hampshire, for the holding of additional regular
meetings without other notice than such resolution.
Section 3.4 Special Meetings. Special meetings of the
board of directors may be called by or at the request of the
president or any two directors. The person or persons authorized
to call special meetings of the board of directors may fix any
place, either within or without the State of New Hampshire, as
the place for holding any special meeting of the board of
directors called by them.
Section 3.5 Notice. Notice of any special meeting shall be
given at least two (2) days previously thereto by written notice
delivered personally or mailed to each director at his business
address, or by telegram. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, so
addressed, with postage thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegram company. Any director may
waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice
or waiver of notice of such meeting.
Section 3.6 Special Telephone Meeting. A special telephone
meeting of the board of directors may be called by or at the
request of the chairman, the president, or any two directors, by
means of a conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall
constitute presence at the meeting. Notice of a special
telephone meeting shall be given by telephone to or telegram
delivered to a responsible person at the director's residence or
business address not less than 12 hours prior to the telephone
meeting.
<PAGE>
Section 3.7 Quorum. A majority of the number of directors
fixed in the manner prescribed by Section 2 of this Article III
shall constitute a quorum for the transaction of business at any
meeting of the board of directors, but if less than such majority
is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 3.8 Manner of Acting. The act of the majority of
the directors present at a meeting at which a quorum is present
shall be the act of the board of directors.
Section 3.9 Action Without a Meeting. Any action required
or permitted to be taken by the board of directors at a meeting
may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the
directors.
Section 3.10 Vacancies. Any vacancy occurring in the board
of directors may be filled by the affirmative vote of a majority
of the remaining directors though less than a quorum of the board
of directors. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office. Any
directorship to be filled by reason of an increase in the number
of directors may be filled by election by the board of directors
for a term of office continuing only until the next election of
directors by the shareholders.
Section 3.11 Compensation. By resolution of the board of
directors, each director may be paid his expenses, if any, of
attendance at each meeting of the board of directors, and may be
paid a stated salary as director or a fixed sum for attendance at
each meeting of the board of directors or both. No such payment
shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 3.12 Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the secretary of
the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in
favor of such action.
ARTICLE IV
Officers
Section 4.1 Number. The officers of the corporation shall
be a chairman of the board, president, one or more vice-
presidents (the number thereof to be determined by the board of
directors), a secretary, and a treasurer, each of whom shall be
elected by the board of directors. Such other officers and
assistant officers as may be deemed necessary may be elected or
appointed by the board of directors. Any two or more offices may
be held by the same person, except the offices of president and
secretary.
Section 4.2 Election and Term of Office. The officers of
the corporation to be elected by the board of directors shall be
elected annually by the board of directors at the first meeting
of the board of directors held after each annual meeting of the
shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may
<PAGE>
be. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his
death or until he shall resign or shall have been removed in
the manner hereinafter provided.
Section 4.3 Removal. Any officer or agent may be removed
by the board of directors whenever, in its judgment, the best
interests of the corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an
officer or agent shall not of itself create contract rights.
Section 4.4 Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, may
be filled by the board of directors for the unexpired portion of
the term.
Section 4.5 Chairman of the Board. The chairman of the
board shall, when present, preside at all meetings of the board
of directors and shareholders and shall have such other duties as
the board of directors may prescribe.
Section 4.6 President. The president, subject to the
control of the board of directors, shall supervise and control
all of the business and affairs of the corporation. He shall,
when present, in the absence of the chairman and vice-chairman,
preside at all meetings of the shareholders and board of
directors. He may sign with the secretary or any other proper
officer of the corporation thereunto authorized by the board of
directors, any deeds, mortgages, bonds, contracts, or other
instruments which the board of directors has authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated by the board of directors or by
these By-Laws to some other officer or agent of the corporation,
or shall be required by law to be otherwise signed or executed;
and in general shall perform all duties incident to the function
of president and such other duties as may be prescribed by the
board of directors from time to time.
Section 4.7.1 Executive Vice-President. The executive vice-
president shall perform such duties as from time to time may be
assigned to him by the president or by the board of directors
and, in the absence of the president or in the event of his
death, inability, or refusal to act, the executive vice-president
shall perform the duties of the president, and when so acting,
shall have all of the powers of and be subject to all of the
restrictions upon the president.
Section 4.7.2 The Vice-Presidents In the absence of the
executive vice-president or in the event of his death, inability
or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order
designated at the time of their election, or in the absence of
any designation, then in the order of their election) shall
perform the duties of the executive vice-president, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the executive vice-president. Any vice-
president may sign, with the secretary or an assistant secretary,
certificates for shares of the corporation; and shall perform
such other duties as from time to time may be assigned to him by
the president or by the board of directors.
<PAGE>
Section 4.8 The Secretary. The secretary shall: (a) be the
resident agent of the corporation; (b) keep the minutes of the
proceedings of the shareholders and of the board of directors in
one or more books provided for that purpose; (c) see that all
notices are duly given in accordance with the provisions of these
By-Laws or as required by law; (d) be custodian of the corporate
records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly
authorized; (e) keep a register of the post office address of
each shareholder which shall be furnished to the secretary by
such shareholder; (f) sign with the president, or a vice-
president, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the
board of directors; (g) have general charge of the stock transfer
books of the corporation; and (h) in general perform all duties
incident to the office of secretary and such other duties as from
time to time may be assigned to him by the president or by the
board of directors.
Section 4.9 The Treasurer. The treasurer shall: (a) have
charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for
monies due and payable to the corporation from any source
whatsoever, and deposit all such monies in the name of the
corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of Article
V of these By-Laws; (c) sign with the president, or a vice-
president, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the
board of directors; and (d) in general perform all of the duties
incident to the office of treasurer and such other duties as from
time to time may be assigned to him by the president or by the
board of directors. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the board
of directors shall determine.
Section 4.10 Assistant Secretary and Assistant Treasurer.
The assistant secretaries or assistant treasurers, when
authorized by the board of directors, may sign with the president
or a vice-president certificates for shares of the corporation
the issuance of which shall have been authorized by a resolution
of the board of directors. The assistant treasurers shall
respectively, if required by the board of directors, give bonds
for the faithful discharge of their duties in such sums and with
such sureties as the board of directors shall determine. The
assistant secretaries and assistant treasurers, in general, shall
perform such duties as shall be assigned to them by the secretary
or the treasurer, respectively, or by the president or the board
of directors.
Section 4.11 Salaries. The salaries of the officers shall
be fixed from time to time by the board of directors and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the corporation.
ARTICLE V
Contracts, Loans, Checks and Deposits
Section 5.1 Contracts. The board of directors may
authorize any officer or officers, agent or agents, to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be
general or confined to specific instances.
<PAGE>
Section 5.2 Loans. No loans shall be contracted on behalf
of the corporation and no evidences of indebtedness shall be
issued in its name unless authorized by a resolution of the board
of directors. Such authority may be general or confined to
specific instances.
Section 5.3 Checks, Drafts, etc. All checks, drafts or
other orders for the payment of money, notes or other evidences
of indebtedness issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents, of the
corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
Section 5.4 Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the
credit of the corporation in such banks, trust companies or other
depositories as the board of directors may select.
ARTICLE VI
Certificates for Shares and Their Transfer
Section 6.1 Certificates for Shares. Certificates
representing shares of the corporation shall be in such form as
shall be determined by the board of directors. Such certificates
shall be signed by the chairman or vice chairman of the board of
directors or the president or a vice-president and by the
secretary or an assistant secretary or the treasurer or an
assistant treasurer of the corporation and sealed with the
corporate seal or a facsimile thereof. The signatures of such
officers upon a certificate may be facsimiles if the certificate
is manually signed on behalf of a transfer agent or a registrar,
other than the corporation itself or one of its employees. Each
certificate for shares shall be consecutively numbered or
otherwise identified.
The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and
date of issue, shall be entered on the stock transfer books of
the corporation. All certificates surrendered to the corporation
for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares
shall have been surrendered and cancelled, except that in case of
a lost, destroyed or mutilated certificate a new one may be
issued there for upon such terms and indemnity to the corporation
as the board of directors may prescribe.
Section 6.2 Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the
corporation, and on surrender for cancellation of the certificate
for such shares. The person in whose name shares stand on the
books of the corporation shall be deemed by the corporation to be
the owner thereof for all purposes.
<PAGE>
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first
(1st) day of October and end on the thirtieth (30th) day of
September in each year.
ARTICLE VIII
Dividends
The board of directors may, from time to time, declare and
the corporation may pay dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and
its articles of incorporation.
ARTICLE IX
Corporate Seal
The board of directors shall provide a corporate seal which
shall have inscribed thereon the words "EnergyNorth, Inc. 1982 -
New Hampshire".
ARTICLE X
Waiver of Notice
Whenever any notice is required to be given to any
shareholder or director of the corporation under the provisions
of these By-Laws or under the provisions of the articles of
incorporation or under the provisions of the New Hampshire
Business Corporation Act, a waiver thereof in writing signed by
the person or persons entitled to such notice, whether before or
after the time stated herein, shall be deemed equivalent to the
giving of such notice.
ARTICLE XI
Amendments
These By-Laws may be altered, amended or repealed and new By-
Laws may be adopted by the board of directors, subject to repeal
or change by action of the shareholders.
<PAGE>
ARTICLE XII
Executive Committee
Section 12.1 Appointment. The board of directors, by
resolution adopted by a majority of the full board, may designate
two or more of its members to constitute an executive committee.
The designation of such committee and the delegation thereto of
authority shall not operate to relieve the board of directors, or
any member thereof, of any responsibility imposed by law. The
board of directors, by resolution adopted by a majority of the
full board, may terminate the executive committee at any time.
Section 12.2 Authority. The executive committee, when the
board of directors is not in session, shall have and may exercise
all of the authority of the board of directors except to the
extent, if any, that such authority shall be limited by the
resolution appointing the executive committee and except also
that the executive committee shall not have the authority of the
board of directors in reference to amending the articles of
incorporation, adopting a plan of merger or consolidation,
recommending to the shareholders the sale, lease or other
disposition of all or substantially all of the property and
assets of the corporation otherwise than in the usual and regular
course of its business, recommending to the shareholders a
voluntary dissolution of the corporation or a revocation thereof,
or amending these By-Laws of the corporation.
Section 12.3 Tenure and Qualifications. Each member of the
executive committee shall hold office until the next regular
annual meeting of the board of directors following his
designation and until his successor is designated as a member of
the executive committee and is elected and qualified.
Section 12.4 Meetings. Regular meetings of the executive
committee may be held without notice at such times and places as
the executive committee may fix from time to time by resolution.
Special meetings of the executive committee may be called by any
member thereof upon not less than one (1) day's notice stating
the place, date and hour of the meeting, which notice may be
written or oral, and if mailed, shall be deemed to be delivered
when deposited in the United States mail addressed to the member
of the executive committee at his business address. Any member
of the executive committee may waive notice of any meeting and no
notice of any meeting need be given to any member thereof who
attends in person. The notice of a meeting of the executive
committee need not state the business proposed to be transacted
at the meeting.
Section 12.5 Special Telephone Meetings. A special
telephone meeting of the executive committee may be called by any
member thereof by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation shall constitute presence at the meeting. Notice
of a special telephone meeting shall be given by telephone or a
telegram delivered to a responsible person at the member's
residence or business address not less than 12 hours prior to the
telephone meeting.
Section 12.6 Quorum. A majority of the members of the
executive committee shall constitute a quorum for the transaction
of business at any meeting thereof and action of the executive
committee must be authorized by the affirmative vote of a
majority of the members present at a meeting at which a quorum is
present.
<PAGE>
Section 12.7 Action Without a Meeting. Any action required
or permitted to be taken by the executive committee at a meeting
may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the members
of the executive committee.
Section 12.8 Vacancies. Any vacancy in the executive
committee may be filled by a resolution adopted by a majority of
the full board of directors.
Section 12.9 Resignations and Removal. Any member of the
executive committee may be removed at any time with or without
cause by resolution adopted by a majority of the full board of
directors. Any member of the executive committee may resign from
the executive committee at any time by giving written notice to
the president or secretary of the corporation, and unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 12.10 Procedure. The executive committee shall
elect a presiding officer from its members and may fix its own
rules of procedure which shall not be inconsistent with these By-
Laws. It shall keep regular minutes of its proceedings and
report the same to the board of directors for its information at
the meeting thereof held next after the proceedings shall have
been taken.
ARTICLE XIII
Indemnification of Directors or Officers
The corporation shall indemnify any director or officer of
the corporation pursuant to the provisions of RSA 293-A:5.
ARTICLE XIV
Emergency By-Laws
The emergency By-Laws provided in this Article XIV shall be
operative during any emergency in the conduct of the business of
the corporation resulting from an attack on the United States or
any nuclear or atomic disaster, notwithstanding any different
provision in the preceding articles of the By-Laws or in the
articles of incorporation of the corporation or in the New
Hampshire Business Corporation Act. To the extent not
inconsistent with the provisions of this article, the By-Laws
provided in the preceding articles shall remain in effect during
such emergency and upon its termination the emergency By-Laws
shall cease to be operative.
During any such emergency:
(a) A meeting of the board of directors may be called
by any officer or director of the corporation. Notice of
the time and place of the meeting shall be given by the
person calling the meeting to such of the directors as it
may be feasible to reach by any available means of
communication. Such notice shall be given at such time in
advance of the meeting as circumstances permit in the
judgment of the person calling the meeting.
<PAGE>
(b) At any such meeting of the board of directors, a
quorum shall consist of three (3) members of the board.
(c) The board of directors, either before or during
any such emergency, may provide, and from time to time
modify, lines of succession in the event that during such an
emergency any or all officers or agents of the corporation
shall for any reason be rendered incapable of discharging
their duties.
(d) The board of directors, either before or during
any such emergency, may, effective in the emergency, change
the head office or designate several alternative head
offices or regional offices, or authorize the officers to do
so.
No officer, director or employee acting in accordance with
these emergency By-Laws shall be liable except for willful
misconduct.
These emergency By-Laws shall be subject to repeal or change
by further action of the board of directors or by action of the
shareholders, but no such repeal or change shall modify the
provisions of the next preceding paragraph with regard to action
taken prior to the time of such repeal or change. Any amendment
of these emergency By-Laws may make any further or different
provision that may be practical and necessary for the
circumstances of the emergency.
ADOPTED: July 22, 1982
AMENDED: November 2, 1983 November 28, 1990
January 25, 1984 February 3. 1993
February 6, 1985 October 7, 1993
November 6, 1985 November 17, 1994
February 5, 1986 July 18, 1996
August 6, 1986 February 3, 1999
February 4, 1987
November 29, 1989
March 25, 1999
EnergyNorth, Inc.
1260 Elm Street
Manchester, NH 03101
Ladies and Gentlemen:
You have requested our opinion as to certain matters
concerning shares of EnergyNorth, Inc.'s $1.00 par value common
stock with respect to which you are filing a registration
statement on Form S-8 with the Securities and Exchange Commission
(the "Registration Statement"). The aforesaid shares are to be
granted pursuant to the EnergyNorth, Inc. 1998 Stock Option Plan
(the "Plan"), which was adopted by a vote of the Board of
Directors on November 19, 1998 and a vote of the stockholders on
February 3, 1999. Such shares (the "Shares") will be issued upon
exercise of options granted under the Plan and will either be
issued by EnergyNorth, Inc. from authorized but unissued shares
or shares will be purchased by EnergyNorth, Inc. from issued and
outstanding shares and reissued to Plan participants. The Plan
is included as Exhibit 99 to the Registration Statement.
We have examined such corporate documents and made such
investigations of matters of fact and law as we deemed necessary
to the rendition of this opinion. We have assumed that there
will be no material changes in the documents examined and in the
matters investigated and that there will be authorized but
unissued shares available for issue in sufficient amounts at the
time that any Shares are issued. Based upon such examinations
and investigations, and upon those assumptions, we are of the
opinion that the Shares when issued in accordance with the Plan,
upon exercise of stock options duly granted pursuant to the Plan,
will be duly authorized, legally issued, fully paid and
nonassessable.
<PAGE>
We consent to the filing of this letter as an Exhibit to the
Registration Statement and to all references to us in the
Registration Statement.
McLane, Graf, Raulerson &
Middleton
Professional Association
By: /s/ Richard A. Samuels
Richard A. Samuels
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 4, 1998, included in
EnergyNorth's Form 10-K for the year ended September 30, 1998 and
to all references to our Firm included in this registration
statement.
/S/ Arthur Andersen LLP
Boston, Massachusetts
April 2, 1999
ENERGYNORTH, INC.
1998 STOCK OPTION PLAN
1. Purposes
The purposes of the 1998 Stock Option Plan (the "Plan") are
to encourage eligible officers, directors, and employees of
EnergyNorth, Inc. (the "Company") and its Subsidiaries to
increase their efforts to make the Company and each Subsidiary
more successful, to provide an additional inducement for such
individuals to remain with the Company or a Subsidiary, to reward
such individuals by providing the opportunity to acquire the
Common Stock, $1.00 par value, of the Company (the "Common
Stock") on favorable terms, and to provide a means through which
the Company may attract able persons to enter the employ of the
Company or its Subsidiaries.
2. Administration
The Plan shall be administered by the Compensation Committee
of the Board of Directors of the Company (the "Compensation
Committee"), so long as it is comprised of two or more non-
employee Directors, provided that no option shall be granted
without the approval of the Board of Directors.
The Committee shall interpret the Plan and prescribe such
rules, regulations, and procedures in connection with the Plan as
it shall deem to be necessary or advisable for the administration
of the Plan consistent with the purposes of the Plan. The
Committee shall keep records of actions taken at its meetings.
3. Eligibility
Officers, and directors, of the Company or any Subsidiary
and those employees ("Key Employees") of the Company or any
Subsidiary who share the primary responsibility for the
management, growth, or protection of the business of the Company
or any Subsidiary shall be eligible to receive stock options as
described herein. Only Key Employees shall be eligible to receive
incentive stock options.
Subject to the provisions of the Plan and the approval of
the Board of Directors, the Committee shall have authority to
grant stock options as described herein and, in its discretion,
to determine the individuals to whom stock options shall be
granted (an "Optionee") and the number of shares to be covered by
each stock option. In determining the eligibility of any
individual, as well as in determining the number of shares
covered by each stock option, the Committee shall consider the
position and the responsibilities of the individual being
considered, the nature and value to the Company or a Subsidiary
of his or her services, his or her present and/or potential
contribution to the success of the Company or a Subsidiary, and
such other factors as the Committee may deem relevant.
4. Shares Available for Stock Options
The aggregate number of shares of the Common Stock which may
be issued or delivered under the Plan is 200,000 shares, subject
to adjustment and acceleration as set forth in Section 7. If any
stock option granted under the Plan is canceled in full or
expires before exercise, the shares subject to such stock option
shall again be available for the purposes of the Plan.
5. Grant of Stock Options
The Committee shall have the authority, in its discretion,
to grant "incentive stock options" pursuant to Section 422 of the
Internal Revenue Code of 1986, as the same may from time to time be
<PAGE>
amended, (the "Code") and to grant "nonstatutory stock
options" (stock options which do not qualify under Section 422 of
the Code). The aggregate fair market value, determined as of the
date of grant and as set forth in Section 6.G., of all shares
issuable upon exercise of all incentive stock options which
become exercisable by a Key Employee for the first time during
any calendar year under all plans of the corporation employing
such Key Employee, any parent or subsidiary corporations of such
corporation and any predecessor corporation of any such
corporation, shall not exceed $100,000.
6. Terms and Conditions of Stock Options
Stock options granted under the Plan shall be subject to the
following terms and conditions and such other terms and
conditions as the Committee shall deem advisable:
A. Purchase Price. The purchase price at which each stock
option may be exercised (the "option price") shall be such price
(either greater than, the same as, or less than the fair market
value per share of the Common Stock on the date of grant) as the
Committee, in its discretion, shall determine but (i) in the case
of incentive stock options, shall not be less than one hundred
percent (100%) of the fair market value per share of the shares
of Common Stock covered by the stock option on the date of grant
and (ii) in the case of incentive stock options granted to a Key
Employee who together with the members of his immediate family
owns, or may be deemed to own, beneficially, more than 10% of the
outstanding voting securities of the Company (as the terms
"immediate family" and "beneficial ownership" are defined under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and such other terms and conditions as the Committee shall
deem advisable (such a Key Employee is referred to as a
"Principal Shareholder"), shall not be less than one hundred and
ten percent (110%) of the fair market value per share of the
shares of Common Stock covered by the stock option on the date of
grant. In exercising its discretion, the Committee shall take
into account the nature and value to the Company of the
recipient's service, and such other factors as the Committee may
deem relevant. For purposes of this Section 6.A., fair market
value shall be determined as set forth in Section 6.G.
B. Payment. The option price is to be paid in full in cash
upon the exercise of a stock option; provided, however, that in
lieu of cash an individual may, if authorized by the Committee,
exercise a stock option by tendering to the Company shares of
Common Stock owned by the individual and having a fair market
value on the date of exercise, determined as set forth in Section
6(G), equal to the option price. The provisions of this Section
6.B. shall not preclude the payment of the option price of a
stock option by any other legally permissible method specifically
approved by the Committee. No shares shall be issued or delivered
upon exercise of a stock option until payment of the option price
in full has been made. When payment of the option price in full
has been made, the Optionee shall be considered for all purposes
to be the owner of the shares with respect to which payment has
been made.
C. Restrictions on Exercise. No incentive stock option or
nonstatutory stock option shall be exercisable after the
expiration of ten years from the date of grant or, in the case of
an incentive stock option or nonstatutory stock option granted to
a Principal Shareholder, five years from the date of grant.
Except as provided in this Section 6.C. and in Section 6.E.,
stock options may be exercised at such times, in such amounts and
subject to such restrictions as shall be determined by the
Committee.
D. Transfer. No stock option shall be transferable other
than by will by the laws of descent and distribution, and each
stock option shall be exercisable during the lifetime of an
Optionee only by the Optionee.
E. Retirement, Termination, Disability, Death. If a Key
Employee Retires (as defined below) or if the employment of a
Key Employee who is disabled within the meaning of Section
422(c)(6) of the Code ("Disabled Optionee") is voluntarily
terminated with the consent of the Company or a Subsidiary, any
then outstanding stock option held by such Key Employee shall
become immediately exercisable by such Key Employee at any time
prior to the stock option expiration date or within three years
after the
<PAGE>
date of termination of employment, whichever is the
shorter period. "Retires" shall mean retirement on or after date
of Normal Retirement, or on any earlier date such that the
employee's benefits are not reduced, under the Company's
retirement plan. Whether termination of employment is a
voluntary termination with consent and whether a Key Employee is
disabled within the meaning of Section 422(c)(6) of the Code
shall be determined in each case by the Committee, and any such
determination by the Committee shall be final and binding.
If the service of an Optionee who is a director is
terminated because such Optionee cannot at his or her age stand
for re-election to the Committee, any then outstanding stock
option held by such Optionee shall continue to be exercisable and
shall expire in accordance with its terms.
Following the death of an Optionee, any outstanding stock
option held by any such recipient at the time of death shall be
exercisable in full (whether or not so exercisable on the date of
the recipient's death, but subject to such other restrictions on
the exercise of incentive stock options as are set forth in
Section 6(C)) by the person or persons entitled to do so under
the recipient's will, or, if the recipient shall fail to make
testamentary disposition of such stock option or shall die
intestate, by the recipient's legal representative, in either
case at any time prior to the expiration date of such stock
option or within one year after the date of death, whichever is
the shorter period.
In the event of termination of the employment of an employee
or the service of any other Optionee for any reason other than as
set forth in this Section 6.E., the rights of such Optionee under
any then outstanding stock option shall terminate at the date of
such termination of employment except as otherwise provided in
the stock option agreement entered in accordance with
Section 6.F.
F. Stock Option Agreement. Each stock option shall be
confirmed by a stock option agreement which shall be executed by
the Chairman of the Committee or the President on behalf of the
Company and by the person to whom such stock option is granted.
G. Valuation. The fair market value of the Common Stock
shall be the average of the closing price of the Common Stock, as
reported on the New York Stock Exchange, during the ten trading
days immediately preceding the date of grant.
7. Adjustment and Acceleration of Shares
If a dividend or other distribution shall be declared upon
the Common Stock payable in shares of the Common Stock, the
number of shares of the Common Stock then subject to any
outstanding stock option and the number of shares which may be
issued or delivered under the Plan but are not then subject to an
outstanding stock option shall be adjusted by adding thereto the
number of shares which would have been distributable thereon if
such shares had been outstanding on the date fixed for
determining the shareholders entitled to receive such stock
dividend or distribution.
If the outstanding shares of the Common Stock shall be
changed into or exchangeable for a different number or kind of
shares of stock or other securities of the Company or another
corporation, whether through reorganization, reclassification,
recapitalization, stock split-up, combination of shares, merger
or consolidation, then there shall be substituted for each share
of the Common Stock subject to any then outstanding stock option
and for each share of the Common Stock which may be issued or
delivered under the Plan but are not then subject to an
outstanding stock option, the number and kind of shares of stock
or other securities into which each outstanding share of the
Common Stock shall be so changed or for which each such share
shall be exchangeable; or, alternatively the Committee, or the
governing body of any successor entity, shall make an appropriate
and equitable adjustment in the number and kind of option shares
as to which the option is then unexercised in order that, after
such event, the option shares as to which the option is then
unexercised shall represent the same potential
<PAGE>
ownership interest in the company (or that part of a successor
entity which consists of the company) immediately after such event
as they represent immediately before such event.
Each outstanding stock option shall become immediately and
fully exercisable for a period of six months following the date
of the following occurrences: (i) if any person (including a
group as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934) becomes directly or indirectly the beneficial owner
of 20% or more of the Common Stock; (ii) as a result of or in
connection with any cash tender offer, exchange offer, merger or
other business combination, sale of assets or contested election,
or combination of the foregoing, the persons who were directors
of the Company just prior to such event cease to constitute a
majority of the Company's Committee of Directors; or (iii) the
stockholders of the Company approve an agreement providing for a
transaction in which the Company will cease to be an independent
publicly-owned corporation or a sale or other disposition of all
or substantially all of the assets of the Company occurs.
In case of any adjustment or acceleration as provided for in
this Section 7, the aggregate option price for all shares
subject to each then outstanding stock option prior to such
adjustment or acceleration shall be the aggregate option price
for all shares of stock or other securities (including any
fraction) to which such shares shall have been adjusted or which
shall have been substituted for such shares.
All references in this Plan to shares shall, where the
context so requires, be deemed to be references to such shares as
adjusted pursuant to this Section 7. If any such adjustment to
the number of shares subject to the grant of stock options
requires the approval of stockholders in order to enable the
Company to issue incentive stock options then no such adjustment
shall be made without the approval of the stockholders.
Notwithstanding the foregoing, in the case of incentive stock
options, if the effect of any adjustment or acceleration is to
cause the stock option to fail to continue to qualify as an
incentive stock option or to cause a modification, extension, or
renewal of such stock option within the meaning of Section 424(h)
of the Code, the Committee of Directors may elect not to make
such adjustment or acceleration but rather shall use reasonable
efforts to effect such other adjustment of each then outstanding
stock option as the Committee of Directors in its sole discretion
shall deem equitable and which will not result in any
disqualification, modification, extension, or renewal (within the
meaning of Section 424(h) of the Code) of such stock option.
8. Effect of the Plan on the Rights of Directors or Employees
Neither the adoption of the Plan nor any action of the
Committee or the Board of Directors pursuant to the Plan shall be
deemed to give any person any right to be granted a stock option
under the Plan, and nothing in the Plan or in any stock option
agreement shall confer upon any person any right to continue to
serve the Company or any Subsidiary as an employee, officer,
director, consultant, or otherwise, or interfere in any way with
the rights of the Company or any Subsidiary to terminate the
service or employment of any person at any time.
9. Amendment
The right to alter and amend the Plan at any time and from
time to time and the right to revoke or terminate the Plan are
hereby specifically reserved to the Board of Directors; provided
always that no such revocation or termination shall terminate any
outstanding stock option previously granted under the Plan; and
provided further that no such alteration or amendment of the Plan
shall, without prior shareholder approval, (i) increase the total
number of shares which may be issued or delivered under the Plan,
(ii) make any changes in the class of eligible officers,
directors, or employees, or (iii) extend the periods set forth in
the Plan during which stock options may be granted. No
alteration, amendment, revocation, or termination of the Plan
shall, without the written consent of the holder of a stock
option previously granted under the Plan, adversely affect the
rights of such holder with respect to such stock option.
<PAGE>
10. Effective Date and Duration of Plan
The date of adoption of the Plan shall be November 19, 1998
provided that the Plan is ratified and approved by shareholders
of the Company at a meeting of such holders held on or prior to
November 18, 1999. No stock option granted under the Plan may be
exercised until after such ratification and approval. No stock
option may be granted under the Plan subsequent to November 18,
2008.
