-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, CLY7weXzWOHgVnPtTo9JfwKfznv1704dlUVP3jzBcFwCU3wbUX8qKxxXyfjjGdim EIsVIfwokNkoCRg0qz+XVg== 0000311259-95-000010.txt : 19950428 0000311259-95-000010.hdr.sgml : 19950428 ACCESSION NUMBER: 0000311259-95-000010 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950427 EFFECTIVENESS DATE: 19950516 SROS: BSE SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: EASTERN ENTERPRISES CENTRAL INDEX KEY: 0000311259 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 041270730 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58873 FILM NUMBER: 95532041 BUSINESS ADDRESS: STREET 1: 9 RIVERSIDE RD CITY: WESTON STATE: MA ZIP: 02193 BUSINESS PHONE: 6176472300 FORMER COMPANY: FORMER CONFORMED NAME: EASTERN GAS & FUEL ASSOCIATES DATE OF NAME CHANGE: 19890511 S-8 1 EASTERN ENTERPRISES FORM S-8 Registration No. ----------------- SECURITIES AND EXCHANGE COMMISSION FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EASTERN ENTERPRISES (Exact name of registrant as specified in its charter) Massachusetts 04-1270730 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 9 Riverside Road, Weston, Massachusetts 02193 (Address of principal executive offices) (zip code) EASTERN ENTERPRISES 1995 STOCK OPTION PLAN (Full title of the Plan) WALTER J. FLAHERTY L. WILLIAM LAW, JR., ESQ. Senior Vice President and Senior Vice President, General Chief Financial Officer Counsel and Secretary Eastern Enterprises Eastern Enterprises 9 Riverside Road 9 Riverside Road Weston, Massachusetts 02193 Weston, Massachusetts 02193 (Name and address of agents for service) (617) 647-2300 (Telephone number, including area code, of agents for service) CALCULATION OF REGISTRATION FEE - -----------------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of to be registered registered offering price per share aggregate offering price registration fee - ----------------------------------------------------------------------------------------------------------------------------------- Common Stock (Par Value $1.00 Per Share) with 1,000,000 $29.5625 $29,562,500 $10,194 related Common Stock Purchase Rights - ----------------------------------------------------------------------------------------------------------------------------------- Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(h) and based on the average of the high and low prices of the Common Stock on April 21, 1995, as reported in The Wall Street Journal report of New York Stock Exchange Composite Transactions.
April 27, 1995 Exhibit Index on Page 8 Total Number of Pages: 12 Part II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents and information filed with the Commission are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, filed pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "1934 Act"). (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year covered by such Annual Report. (c) The description of the Registrant's Common Stock contained in the Amendment on Form 8, dated May 22, 1991, to the Registrant's Registration Statement on Form 8-A, File No. 1-2297, dated November 6, 1950, and the description of the Registrant's Common Stock Purchase Rights contained in the Registrant's Registration Statement on Form 8-A, dated March 1, 1990, both filed pursuant to Section 12(b) of the 1934 Act, including any amendment or report filed for the purpose of updating such descriptions. All reports and other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 6. Indemnification of Directors and Officers. Article 19 of the Declaration of Trust of the Registrant provides in relevant part as follows: "No Trustee, officer or agent of this trust shall be liable except for acts or failures to act which at the time would impose liability on him if this trust were a Massachusetts business corporation and he were a director, officer or agent thereof respectively. This trust shall indemnify each of its Trustees and officers against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel 2 fees, reasonably incurred by him in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, including but not limited to derivative suits (to the extent permitted by law), in which he may be involved or with which he may be threatened, while in office or thereafter, except with respect to any matter as to which he shall have been adjudicated to have acted in bad faith or not to have acted in good faith in the reasonable belief that his action was in the best interests of this trust or, to the extent that such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such plan, provided, however, that as to any matter disposed of by a compromise payment by such Trustee or officer pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interests of this trust, after notice that it involves such indemnification: (a) if no change of control has occurred, (i) by a disinterested majority of the Trustees then in office or (ii) by a majority of the disinterested Trustees then in office or by the Shareholders, provided that this trust shall have received a written opinion of independent legal counsel to the effect that such Trustee or officer appears to have acted in good faith in the reasonable belief that his action was in the best interests of this trust; or (b) if a change of control shall have occurred, by an opinion in writing of independent legal counsel to the effect that such Trustee or officer appears to have acted in good faith in the reasonable belief that his action was in the best interests of this trust. The rights accruing to any Trustee or officer under these provisions shall not exclude any other right to which he may be lawfully entitled; provided, however, that no Trustee or officer may satisfy any rights of indemnity or reimbursement granted herein or to which he may be otherwise entitled except out of the trust estate, and no Shareholder shall be personally liable to any person with respect to any claim for indemnity or reimbursement or otherwise. The Trustees may make advance payments in connection with indemnification under this Article 19, provided that any such indemnified Trustee or officer shall have given a written undertaking to reimburse this trust in the event that it is subsequently determined that he is not entitled to such indemnification, which undertaking shall be accepted without reference to the financial ability of the recipient to make such reimbursement. If in an action, suit or proceeding brought by or in right of this trust, a Trustee is not held liable, whether because relieved of liability under this Article 19 or otherwise, such Trustee shall be deemed to have been entitled to indemnification for expenses incurred in defense of said action, suit or proceeding. * * * As used in this Article 19: (i) The term "officer" includes (a) persons who serve at the request of this trust as directors, officers or trustees of another organization and (b) employees of this trust and its subsidiaries who serve in any capacity with respect to employee benefit plans. All directors, officers and trustees of wholly-owned subsidiaries of this trust shall be deemed to serve at the request of this trust. 3 (ii) An "interested" Trustee is one against whom in such capacity the proceeding in question or another proceeding on the same or similar grounds is then pending. (iii) A "change in control" occurs when: (a) any individual, corporation, association, partnership, joint venture, trust or other entity or association thereof acting in concert (excluding any employee benefit plan, dividend reinvestment plan or similar plan of this trust, or any trustee thereof acting in such capacity) acquires more than 20% of this trust's outstanding shares of Common Stock, whether in whole or in part, by means of an offer made publicly to the holders of all or substantially all of the outstanding shares of Common Stock to acquire shares of Common Stock for cash, other property, or a combination thereof or by any other means, unless the transaction is consented to by vote of a majority of the Continuing Trustees; or (b) Continuing Trustees cease to constitute a majority of the Trustees. (iv) The term "Continuing Trustee" shall mean any Trustee of this trust who (a) was a Trustee of this trust on the later of January 1, 1988 or the date the Trustee or officer seeking indemnification first became such or (b) was recommended for his initial term of office by a majority of Continuing Trustees in office at the time of such recommendation. Nothing contained in this Article 19 shall (i) limit the power of this trust to indemnify employees and agents of this trust or its subsidiaries other than Trustees and officers on any terms it deems appropriate not prohibited by law, (ii) limit the power of this trust to indemnify Trustees and officers for expenses incurred in suits, actions, or other proceedings initiated by such Trustee or officer of this trust, or (iii) affect any rights to indemnification to which personnel of this trust other than Trustees and officers may be entitled by contract or otherwise. The rights provided in this Article 19 shall not be exclusive of or affect any other right to which any Trustee, officer or agent of this trust may be entitled and such rights shall inure to the benefit of his successors, heirs, executors, administrators and other legal representatives. Such other rights shall include all powers, immunities and rights of reimbursement which would be allowable under the laws of The Commonwealth of Massachusetts were this trust a business corporation organized under such laws." Section 67 of Chapter 156B of the Massachusetts General Laws provides that, subject to certain limitations, indemnification of directors and officers of a Massachusetts business corporation may be provided to the extent specified or authorized by its articles of organization or by-laws. The Registrant maintains an insurance policy on behalf of itself and its subsidiaries, and on behalf of the respective trustees, directors and officers thereof, covering certain liabilities which may arise as a result of the actions or omissions of said trustees, directors and officers. 4 Item 8. Exhibits. The list of exhibits is as follows: Exhibit No. 4 The Eastern Enterprises 1995 Stock Option Plan (filed as Exhibit 10.9 to the Annual Report of the Registrant on Form 10-K, File No. 1-2297, for the fiscal year ended December 31, 1994 and incorporated herein by reference). 5 Opinion of L. William Law, Jr., Esq. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of L. William Law, Jr., Esq., to the filing of his opinion as an exhibit to this Registration Statement is included in Exhibit 5. 24 Power of Attorney. Item 9. Undertakings. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this 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 this registration statement or any material change to such information in this registration statement; provided, however, that clauses (i) and (ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein; (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 5 a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Reference is hereby made to the Declaration of Trust establishing Eastern Enterprises dated July 18, 1929, as amended, a copy of which is on file in the office of the Secretary of the Commonwealth of Massachusetts. The name "Eastern Enterprises" refers to the Trustees under said Declaration as Trustees and not personally; and no Trustee, shareholder, officer or agent of Eastern Enterprises shall be held to any personal liability in connection with the affairs of said Eastern Enterprises, but the trust estate only is liable. 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe 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 Town of Weston, Commonwealth of Massachusetts, on the 27th day of April, 1995. EASTERN ENTERPRISES By: /s/ Richard R. Clayton -------------------------------------- Richard R. Clayton, President and Chief Operating Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated on the 27th day of April, 1995. /s/ J. Atwood Ives Chairman and Chief Executive Officer; Trustee - -------------------------- J. Atwood Ives /s/ Walter J. Flaherty Senior Vice President and Chief Financial Officer - -------------------------- Walter J. Flaherty /s/ James J. Harper Vice President and Controller - -------------------------- (Principal Accounting Officer) James J. Harper /s/ Richard R. Clayton - --------------------------- Richard R. Clayton, Trustee /s/ Samuel Frankenheim /s/ Leonard R. Jaskol - ---------------------------- ---------------------------- Samuel Frankenheim, Trustee Leonard R. Jaskol, Trustee /s/ Dean W. Freed /s/ Thomas W. Jones - ----------------------------- ---------------------------- Dean W. Freed, Trustee Thomas W. Jones, Trustee /s/ Robert P. Henderson /s/ Rina K. Spence - ------------------------------ ---------------------------- Robert P. Henderson, Trustee Rina K. Spence, Trustee 7 EXHIBIT INDEX Page Number in Sequential Numbering Exhibit System 4 The Eastern Enterprises 1995 Stock Option Plan (incorporated by reference) 5 Opinion of L. William Law, Jr., Esq. 9 23.1 Consent of Arthur Andersen LLP. 11 23.2 Consent of L. William Law, Jr., Esq., to the filing of his opinion as an exhibit to this Registration Statement is included in Exhibit 5. 24 Power of Attorney. 12 8 EX-5 2 OPINION RE LEGALITY Exhibit 5 April 27, 1995 Eastern Enterprises 9 Riverside Road Weston, MA 02193 You have asked for my opinion concerning the legality of 1,000,000 shares of Common Stock, with a par value of $1.00 per share (the "Shares"), of Eastern Enterprises (the "Association") issuable upon the exercise of options which may be granted under the Eastern Enterprises 1995 Stock Option Plan (the "Plan"), and 1,000,000 common stock purchase rights (the "Rights") attached to the Shares pursuant to the provisions of a Common Stock Rights Agreement between Eastern and The Bank of New York dated as of February 22, 1990, as amended (the "Rights Agreement"). The Shares issuable pursuant to the Plan may be authorized but unissued shares or shares held from time to time in the Association's treasury. As Senior Vice President, General Counsel and Secretary of the Association, I have acted as counsel for the Association in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") with respect to the Plan, which is being filed with the Securities and Exchange Commission under the Securities Act of 1933 contemporaneously herewith, and I have examined: (a) the Declaration of Trust of the Association dated July 18, 1929, as amended; (b) the By-laws of the Association as from time to time in effect; (c) a copy of the Registration Statement; (d) the minutes of meetings to date of the shareholders and Board of Trustees of the Association; (e) The Rights Agreement; and (f) such other documents and records as I deem necessary for purposes of this opinion. 9 Eastern Enterprises April 27, 1995 Page 2 I have assumed that the Shares proposed to be issued upon the exercise of options under the Plan will be issued only upon payment therefor as provided in the Plan and that the price for such shares will be not less than $1.00 per share. I have also assumed that the issuance of any such Shares will not result in the issuance by the Association of more than its authorized shares of Common Stock. In addition, I have assumed that the Rights will be issued in accordance with the provisions of the Rights Agreement. Based upon the foregoing, I am of the opinion that: 1. The Association is duly organized and existing as an unincorporated voluntary association in conformity with the laws of The Commonwealth of Massachusetts. 2. The Shares, when issued and paid for as provided in the Plan, will be validly issued and will be fully paid and nonassessable except as set forth below in this opinion. 3. The Rights, when issued in accordance with the Rights Agreement, will be validly issued and will constitute binding obligations of the Association. The Association is a voluntary association of the type commonly known as a "Massachusetts business trust". Pursuant to certain decisions of the Supreme Judicial Court of Massachusetts, shareholders of such a trust may, under certain circumstances, be held personally liable as partners for the obligations of the trust. Even if the Association were held to be a partnership, however, the possibility of its shareholders incurring financial loss appears remote because (a) the Association's Declaration of Trust contains an express disclaimer of shareholder liability for the obligations of the Association and requires that such notice be given in each agreement, obligation or instrument entered into or executed by the Association, (b) management of the Association has advised that the association is adequately insured against tort liability, (c) most of the Association's operations are conducted by incorporated subsidiaries and (d) the Association's Declaration of Trust provides for indemnification out of the trust property for any shareholder held personally liable for the obligations of the Association. I understand that this opinion is to be used in connection with the Registration Statement. I consent to the filing of this opinion with and as a part of the Registration Statement and to use of my name therein. Very truly yours, /s/ L. William Law, Jr. -------------------------------- L. William Law, Jr. 10 EX-23.1 3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independant public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our report dated January 25, 1995 included in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1994 and to all references to our firm included in this Registration Statement. /s/ Arthur Andersen LLP ----------------------------------- Arthur Andersen LLP Boston, Massachusetts April 26, 1995 11 EX-24 4 POWER OF ATTORNEY EXHIBIT 24 POWER OF ATTORNEY We the undersigned officers and Trustees of Eastern Enterprises hereby generally constitute J. Atwood Ives, Richard R. Clayton, Walter J. Flaherty and L. William Law, Jr. and each of them singly our true and lawful attorneys with full power to them, and each of them singly, to sign for us in our names in the capacity or capacities indicated below any and all amendments to the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission relating to the issue and sale of shares of Common Stock of Eastern Enterprises, and generally to do all such things in our names in our capacities as officers and Trustees as will enable Eastern Enterprises to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission. Signature Title /s/ J. Atwood Ives Chairman and Chief Executive Officer; Trustee - -------------------------- J. Atwood Ives /s/ Richard R. Clayton President and Chief Operating Officer; Trustee - -------------------------- Richard R. Clayton /s/ Walter J. Flaherty Senior Vice President - -------------------------- and Chief Financial Officer Walter J. Flaherty /s/ James J. Harper Vice President and Controller - -------------------------- (Principal Accounting Officer) James J. Harper /s/ Samuel Frankenheim /s/ Leonard R. Jaskol - -------------------------- ----------------------------- Samuel Frankenheim, Trustee Leonard R. Jaskol, Trustee /s/ Dean W. Freed /s/ Thomas W. Jones - -------------------------- ----------------------------- Dean W. Freed, Trustee Thomas W. Jones, Trustee /s/ Robert P. Henderson /s/ Rina K. Spence - -------------------------- ----------------------------- Robert P. Henderson, Trustee Rina K. Spence, Trustee 12 -----END PRIVACY-ENHANCED MESSAGE-----