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As filed with the Securities and Exchange Commission on March 4, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITIL CORPORATION
(Exact name of registrant as specified in its charter)
New Hampshire 02-0381573
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6 Liberty Lane West, Hampton, New Hampshire
03842 (Address of principal executive office,
including zip code)
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UNITIL CORPORATION
1998 STOCK OPTION PLAN
(Full title of the plan)
Anthony J. Baratta, Jr.
Senior Vice President and
Chief Financial Officer
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842
(603) 772-0775
(Name, address, and telephone number, including area code,
of agent for service)
Copies to:
David S. Balabon, Esq.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
260 Franklin Street
Boston, Massachusetts 02110
(617) 439-9500
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CALCULATION OF REGISTRATION FEE
EXHIBIT 4.1
UNITIL CORPORATION
1998 STOCK OPTION PLAN
I. ESTABLISHMENT OF PLAN; DEFINITIONS
1. Purpose. The purpose of the Unitil Corporation 1998 Stock Option Plan is
to provide an incentive to key Employees and Directors of Unitil Corporation and
its Affiliates who are in a position to contribute materially to the long-term
success of the Corporation and/or its Affiliates, to increase their interest in
the welfare of the Corporation and its Affiliates and to aid in attracting and
retaining Employees and Directors of outstanding ability.
2. Definitions. Unless the context clearly indicates otherwise, the
following terms shall have the meanings set forth below:
a. "Affiliate" shall mean any parent or subsidiary of the Corporation
which meets the requirements of Section 425 of the Code.
b. "Board" shall mean the Board of Directors of the Corporation.
c. "Cause" shall mean conviction of a felony, or any fraudulent or
dishonest act which has resulted or is likely to result in material
economic damage to the Corporation or an Affiliate, as determined in good
faith by the Board at a Board meeting at which the Employee or Director, as
applicable, was provided with an opportunity to be heard by the Board.
d. "Change of Control" shall mean the satisfaction of any one or more
of the following conditions (and the "Change of Control" shall be deemed to
have occurred as of the first day that any one or more of the following
conditions shall have been satisfied):
(i) the Corporation receives a report on Schedule 13D filed with
the Securities and Exchange Commission pursuant to Section 13(d) of
the Exchange Act, disclosing that any person, group, corporation or
other entity is the beneficial owner, directly or indirectly, of 25%
or more of the outstanding Stock;
(ii) any "person" (as such term is defined in Section 13(d) of
the Exchange Act), group, corporation or other entity other than the
Corporation or a wholly-owned subsidiary of the
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Corporation, purchases shares pursuant to a tender offer or exchange
offer to acquire any Stock (or securities convertible into Stock) for
cash, securities or any other consideration, provided that after
consummation of the offer, the person, group, corporation or other
entity in question is the "beneficial owner" (as such term is defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of 25%
or more of the outstanding Stock (calculated as provided in paragraph
(d) of Rule 13d-3 under the Exchange Act in the case of rights to
acquire Stock);
(iii) the stockholders of the Corporation approve (A) any
consolidation or merger of the Corporation in which the Corporation is
not the continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or other
property (except where the Corporation's shareholders before such
transaction will be the owners of more than 75% of all classes of
voting stock of the surviving entity), or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the
Corporation; or
(iv) there shall have been a change in a majority of the members
of the Board within a 25- month period unless the election or
nomination for election by the Corporation's stockholders of each new
director was approved by the vote of two-thirds of the directors then
still in office who were in office at the beginning of the 25-month
period.
e. "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
f. "Committee" shall mean the Compensation Committee of the Board, or
such other committee appointed by the Board and consisting of not less than
2 non-Employee directors, which Committee shall administer the Plan as set
forth in Section 4 of this Article I.
g. "Corporation" shall mean Unitil Corporation, a New Hampshire
corporation.
h. "Director" shall mean a member of the Board or a member of the
board of directors of an Affiliate.
i. "Disability" shall mean a medically determinable physical or mental
condition which prevents an Employee from performing the material and
substantial duties
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of the Employee's regular occupation for a period of 180 consecutive days,
and (B) results in a 20% or greater loss to the Employee of the Employee's
indexed monthly earnings; provided, however, that a 180 consecutive-day
period shall not be treated as interrupted if the Employee's inability to
so perform should cease for a period of 30 days or less during the 180-day
period.
j. "Employee" shall mean any employee, including officers, of the
Corporation or any of its Affiliates.
k. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
l. "Fair Market Value" shall mean, on any date, the average of the
high and low trade prices of the Stock reported on the composite tape for
issues listed on the American Stock Exchange on such date, or, if no trades
shall have been reported for such date, on the next preceding date on which
there were trades reported.
m. "Grantee" shall mean an Employee or a Director who has been granted
a Stock Option under the Plan.
n. "Option Period" shall mean the term of a Stock Option as fixed by
the Committee.
o. "Plan" shall mean the Unitil Corporation 1998 Stock Option Plan as
set forth herein and as amended from time to time.
p. "Stock" shall mean shares of the Common Stock, no par value, of the
Corporation.
q. "Stock Option" shall mean a non-qualified option granted pursuant
to the Plan to purchase shares of Stock.
r. "Stock Option Agreement" shall mean the written instrument
evidencing the grant of one or more Stock Options under the Plan and which
shall contain the terms and conditions applicable to such grant.
3. Shares of Stock Subject to Plan. There are hereby reserved for issuance
under the Plan 350,000 shares of Stock. If a Stock Option shall expire and
terminate for any reason, in whole or in part, without being exercised, the
number of shares of Stock as to which such expired or terminated Stock Option
shall not have been exercised may again become available for the grant of new
Stock Options hereunder.
4. Administration of Plan. The Plan shall be administered by the Committee.
Subject to the express provisions
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of the Plan, the Committee shall have authority to determine the eligibility of
Employees and Directors to participate in the Plan, to grant Stock Options under
the Plan, to interpret the Plan, to prescribe, amend, and rescind rules and
regulations relating to the Plan, to determine the terms and provisions of Stock
Option Agreements and to make all other determinations necessary or advisable
for the administration of the Plan. Any controversy or claim arising out of or
related to the Plan shall be determined unilaterally by and in the sole
discretion of the Committee. Any determination, decision or action of the
Committee in connection with the construction, interpretation, administration,
implementation or maintenance of the Plan shall be final, conclusive and binding
upon all Grantees and all person(s) claiming under or through any Grantees.
Notwithstanding anything contained in this Section 4 to the contrary, no member
of the Committee shall have the authority to render any decision with respect to
his or her participation in or entitlement to benefits under the Plan.
5. Amendment or Termination. The Board may, at any time, alter, amend,
suspend, discontinue, or terminate the Plan; provided, however, that no such
action shall adversely affect the right of any Grantee under any Stock Option
previously granted thereto hereunder.
6. Effective Date of Plan. The Plan shall become effective on December 11,
1998.
II. GRANTS AND EXERCISE OF STOCK OPTIONS
1. Granting of Stock Options.
a. The Committee shall determine and shall designate from time to time
those Employees and Directors who are to be granted Stock Options and shall
specify the number of shares of Stock subject to each Stock Option;
provided, however, that Stock Options for not more than 5% of the
outstanding Stock may be issued in any one year to officers, Directors
and/or key employees of the Corporation.
b. The Committee may grant at any time new Stock Options to an
Employee or a Director who has previously received Stock Options, whether
such prior Stock Options are still outstanding, have previously been
exercised in whole or in part or are canceled in connection with the
issuance of new Stock Options.
c. When granting a Stock Option, the Committee shall determine the
purchase price of the Stock subject thereto and specify such price in the
applicable Stock Option Agreement.
d. The Committee, in its sole discretion, shall determine whether any
particular Stock Option shall become
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exercisable in one or more installments, specify the installment dates and,
within the limitations herein provided, determine the total period during
which the Stock Option is exercisable. Further, the Committee may make such
other provisions as may appear generally acceptable or desirable to the
Committee.
2. Exercise of Stock Options. The purchase price of Stock subject to a
Stock Option shall be payable upon exercise of the Option in cash or by check,
bank draft or postal or express money order, or pursuant to a "cashless
exercise" utilizing a brokerage firm. The Committee, in its discretion, may
permit a Grantee to make partial or full payment of the purchase price by the
surrender of Stock owned by the Grantee prior to the date of exercise. Shares of
Stock surrendered in payment of the purchase price as provided above shall be
valued at the Fair Market Value thereof on the date of exercise. Surrender of
such Stock shall be evidenced by delivery of the certificates(s) representing
such shares in such manner, and endorsed in such form, or accompanied by stock
powers endorsed in such form, as the Committee may determine or by attestation.
3. Termination of Employment or Director Status. Except as provided
otherwise in the applicable Stock Option Agreement (in which case the provisions
of the Stock Option Agreement shall control over the provisions of this Section
3):
a. Except as provided in paragraphs b and c below, if a Grantee's
employment or status as a Director with the Corporation or an Affiliate is
terminated voluntarily by the Grantee or by the Corporation or an Affiliate
other than for Cause, only those Stock Options held by the Grantee which
were immediately exercisable at the termination of the Grantee's employment
or status as a Director shall be exercisable by the Grantee following the
termination of the Grantee's employment or status as a Director. Such Stock
Options must be exercised within 3 months after such termination of
employment or status as a Director (but in no event after expiration of the
Option Period) or they shall be forfeited.
b. Notwithstanding anything to the contrary contained in paragraph a
above, if a Grantee's employment with the Corporation or an Affiliate or
status as a Director is terminated by the Corporation or an Affiliate for
Cause, all then outstanding Stock Options held by the Grantee shall expire
immediately and such Stock Options shall not be exercisable after the
termination of the Grantee's employment or status as a Director.
c. Notwithstanding anything to the contrary contained in paragraphs a
and b above, if a Grantee's employment with the Corporation or an Affiliate
or status as a Director is terminated on account of the Grantee's death or,
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if the Grantee is an Employee, on account of the Grantee's Disability, only
those Stock Options held by the Grantee which were immediately exercisable
at the date of the Grantee's death or Disability shall be exercisable by
the Grantee, the Grantee's guardian or legal representative, or, if the
Grantee is not then living, by the representative of the Grantee's estate
or beneficiaries thereof to whom the Stock Options have been transferred.
Such Stock Options must be exercised by the earlier of (i) 12 months from
the date of the Grantee's death or Disability, or (ii) the expiration of
the Option Period, or they shall be forfeited.
III. GENERAL PROVISIONS
1. Recapitalization Adjustments.
a. In the event of any change in capitalization affecting the Stock,
including, without limitation, a stock dividend or other distribution,
stock split, reverse stock split, recapitalization, consolidation,
subdivision, split-up, spin-off, split-off, combination or exchange of
shares or other form of reorganization or recapitalization, or any other
change affecting the Stock, the Committee shall authorize and make such
proportionate adjustments, if any, as the Committee shall deem appropriate
to reflect such change, including, without limitation, with respect to the
aggregate number of shares of Stock for which Stock Options in respect
thereof may be granted under the Plan, the number of shares of Stock
covered by each outstanding Stock Option, and the purchase price per share
of Stock in respect of outstanding Stock Options.
b. Any provision hereof to the contrary notwithstanding, in the event
the Corporation is a party to a merger or other reorganization, outstanding
Stock Options shall be subject to the agreement of merger or
reorganization. Such agreement may provide, without limitation, for the
assumption of outstanding Stock Options by the surviving corporation or its
parent, for their continuation by the Corporation (if the Corporation is a
surviving corporation) for accelerated vesting and accelerated expiration
or for settlement in cash.
2. General.
a. Each Stock Option shall be evidenced by a Stock Option Agreement.
b. The granting of a Stock Option in any year shall not give the
Grantee any right to similar grants in future years or any right to be
retained as an Employee or as a Director, and all Grantees shall remain
subject to discharge
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or removal to the same extent as if the Plan were not in effect.
c. No Grantee, and no beneficiary or other person claiming under or
through him or her, shall have any right, title or interest by reason of
any Stock Option to any particular assets of the Corporation, or any shares
of Stock allocated or reserved for the purposes of the Plan or subject to
any Stock Option except as set forth herein.
d. No Stock Option shall or may be sold, exchanged, assigned, pledged,
encumbered, or otherwise hypothecated or disposed of except (i) by will or
the laws of descent and distribution, or (ii) subject to Committee
approval, by gift to any member of the Grantee's immediate family, to a
trust for the benefit of such an immediate family member or to a
partnership in which such immediate family members are the sole partners. A
Stock Option may be exercisable during the Grantee's lifetime only by the
Grantee or by the Grantee's guardian or legal representative unless it has
been transferred by gift to a member of the Grantee's immediate family, to
a trust for the benefit of such an immediate family member or to a
partnership described in the immediately preceding sentence, in which case
it shall be exercisable solely by such transferee. For purposes of this
paragraph d, a Grantee's "immediate family" shall mean the Grantee's
spouse, children and grandchildren. Notwithstanding any such transfer, the
Grantee will continue to be subject to the income tax withholding
requirements of paragraph f of this Section 2.
e. Notwithstanding any other provision of the Plan or agreements made
pursuant hereto, the Corporation's obligation to issue or deliver any
certificate or certificates for shares of Stock under a Stock Option, and
the transferability of Stock acquired by exercise of a Stock Option, shall
be subject to all of the following conditions:
(i) Any registration or other qualification of such shares under
any state or federal law or regulation, or the maintaining in effect
of any such registration or other qualification which the Committee
shall, in its absolute discretion upon the advice of counsel, deem
necessary or advisable;
(ii) The obtaining of any other consent, approval, or permit from
any state or federal governmental agency which the Committee shall, in
its absolute discretion upon the advice of counsel, determine to be
necessary or advisable; and
(iii) Each stock certificate issued pursuant to a Stock Option
shall bear such legends which the
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Committee shall determine, in its absolute discretion, are necessary
or advisable, or which in the opinion of counsel to the Corporation
are required under applicable federal or state securities laws.
f. All payments to Grantees or to their legal representatives
shall be subject to any applicable tax, community property, or other
statutes or regulations of the United States or of any state having
jurisdiction thereof. The Grantee may be required to pay to the
Corporation or an Affiliate the amount of any withholding taxes which
the Committee, in its sole discretion, deems necessary to be withheld
in order to comply with any applicable statutes or regulations with
respect to a Stock Option or its exercise. In the event that such
payment is not made when due, the Corporation or Affiliate shall have
the right to deduct, to the extent permitted by law, from any payment
or settlement of any kind otherwise due to such person all or part of
the amount required to be withheld. The Grantee may use Stock to
satisfy the Grantee's income tax obligation with respect to a Stock
Option or its exercise. If Stock is to be used to satisfy any such tax
withholding, such Stock shall be valued based upon the Fair Market
Value of such Stock as of the date the tax withholding is required to
be made, such date to be determined by the Committee. The Corporation
shall not be required to issue Stock until such obligations are
satisfied.
g. A Grantee entitled to Stock as a result of the exercise of an
Option shall not be deemed for any purpose to be, or have rights as, a
shareholder of the Corporation by virtue of such exercise, except to
the extent a Stock certificate is issued therefor and then only from
the date such certificate is issued. No adjustments shall be made for
dividends or distributions or other rights for which the record date
is prior to the date such Stock certificate is issued, except as
otherwise provided herein. The Corporation shall issue any Stock
certificates required to be issued in connection with the exercise of
a Stock Option with reasonable promptness after such exercise.
h. The Plan and the grant or exercise of Stock Options granted
under the Plan shall be subject to, and shall in all respects comply
with, applicable New Hampshire law.
i. Upon the occurrence of a Change of Control, all outstanding
Stock Options shall automatically become 100% vested and fully
exercisable.
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EXHIBIT 4.4
BY-LAWS
OF
UNITIL CORPORATION
ARTICLE I * * * STOCKHOLDERS' MEETINGS
The annual meeting of the stockholders of UNITIL Corporation shall be held
on the third Thursday in April of each year; and special meetings of the
stockholders shall be held whenever the Chairman of the Board of Directors, the
President or a majority of the Board of Directors, in their discretion, shall
order the same, or whenever one or more stockholders, holding in the aggregate
not less than one-tenth (1/10) of the capital stock of the Corporation entitled
to vote at such meeting, shall so request the Secretary in writing, which
writing shall indicate the purposes for which said meeting is to be called.
All such meetings, both annual and special, may be held at such time and in
such place within or without The State of New Hampshire as the call therefor
shall specify, and notice of every such meeting shall be given to each
stockholder of record entitled to vote at the meeting by mailing a notice not
less than ten (10) nor more than fifty (50) days before the day named for the
meeting. Notices of all meetings of stockholders shall state the purposes for
which the meetings are called.
In the event of the annual meeting, by mistake or otherwise, not being
called and held as herein provided, a special meeting of the stockholders may be
called and held in lieu of and for the purposes of the annual meeting. Any such
special meeting may be called in the same manner as other special meetings or as
provided by statute, Any election had or business done at any special meeting
shall be as valid and effectual as of had or done at a meeting called as an
annual meeting and duly held on said date.
At any meeting, the holders of record of a majority of the shares entitled
to vote at the meeting, present in person or by proxy, shall constitute a quorum
but less than a quorum may adjourn the meeting, either sine die or to a date
certain.
At any meeting, each stockholder of the Corporation entitled to vote at
such meeting shall have one vote in person or by proxy for each share of stock
having voting rights registered in his name on the books of the Corporation. A
stockholder may vote through a proxy authorized by a written instrument signed
by the stockholder or by his duly authorized attorney-in-fact. No proxy shall be
valid after eleven (11) months from the date of its execution.
ARTICLE II * * * BOARD OF DIRECTORS
The property, business and affairs of the Corporation shall be managed by a
Board of Directors, and they are hereby vested in such management with all the
powers which the Corporation itself possess so far as such delegation of power
is not incompatible with the provisions of these By-Laws or the st atutes of The
State of New Hampshire. No Director need be a stockholder of the Corporation.
The Corporation shall have such number of Directors as shall be fixed by
the Board of Directors from time to time, provided, that such number shall be
not less than nine (9) nor more than fifteen (15). The Directors shall be
divided into three (3) classes, each class to be as nearly equal in number as
possible as determined by the Board of Directors, with their respective terms of
office arranged so that the term of office of one class expires in each year.
The Directors comprising each class shall be elected by ballot for a term of
three (3) years, or in the event that a Director is being elected to a class the
term of office of which expires in less than three (3) years, then for the
remaining term of such class, and until their successors are elected and
qualified.
Any vacancy occurring in the Board, whether due to the death, resignation
or other inability to serve of any Director previously elected, or due to an
increase in the number of Directors comprising the Board, may be filled by the
affirmative vote of a majority of the remaining Directors, though less than a
quorum of the Board. A Director elected to fill a vacancy shall be elected for
the unexpired term of his predecessor in office. In the event that the number of
Directors comprising the Board is increased by the Board and directorships
created thereby filled by the Board, then the Directors so elected by the Board
shall be assigned by the Board to each class in such manner so that the number
of Directors comprising each class is as nearly equal as possible, and each such
Director elected by the Board shall serve until the next meeting of shareholders
at which Directors are elect ed and until his successor is elected and
qualified.
The Directors may appoint and remove at pleasure such subordinate officers
and employees as may seem to them wise.
They shall have access to the books, vouchers and funds of the Corporation;
shall determine upon the forms of certificates of stock and of the corporate
seal; shall fix all salaries and fees; may fill all vacancies that may occur at
any time during the year in any office; and shall declare dividends from time to
time as they may deem best.
Meetings of the Board of Directors may be held at any time and place within
The State of New Hampshire or elsewhere within the United States on notice of
the Secretary, who may and on request of the Chairman of the Board of Directors,
the President or any two Directors shall call any such meeting, twenty-five
hours notice thereof being given. Any such meeting, however, and all business
transacted thereat, shall be legal and valid without notice if all the members
of the Board are present in person or participating therein, or if the members
who are absent waive notice by a signed written i nstrument filed with the
records of the meeting or assent in writing to the action taken or to be taken.
A majority of the Board of Directors shall constitute a quorum for the
transaction of business, but a lesser number may adjourn any meeting from time
to time, and the meeting may be held as adjourned without further notice. When a
quorum is present at or participating in any meeting, a majority of the members
in attendance thereat or participating therein shall decide any question brought
before such meeting, unless otherwise required by statute, the Articles of
Incorporation or these By-Laws.
Members of the Board of Directors shall be entitled to such reasonable
compensation for their services as Directors as shall be fixed from time to time
by vote of the Board of Directors and shall also be entitled to reimbursement
for any reasonable expenses incurred in connection with attendance at meetings
thereof. The compensation of Directors may be on such basis as shall be
determined in the vote of the Board relating thereto.
ARTICLE III * * * COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by vote or votes duly adopted, may appoint such
committees as said Board may deem appropriate. Each committee shall consist of
three (3) or more members of the Board of Directors and shall have and may
exercise such powers and authority as shall be conferred or authorized by the
vote(s) establishing it. The existence of any committee may be terminated, or
its powers and authority modified, at any time by vote of the Board of
Directors. Members of each committee shall be entitled to receive a fee for
attendance at meetings thereof as shall be provided or authorized by the vote(s)
establishing it, and all members of each committee shall be entitled to
reimbursement for expenses incurred in connection with attendance at meetings
thereof.
Each committee shall keep regular minutes of its proceedings and report the
same to the Board of Directors when required. Unless otherwise determined by the
Board of Directors, each committee may appoint a chairman and a secretary and
such other officers of the committee as it may deem r advisable and may
determine (a) the time and place of holding each meeting thereof, (b) the notice
of meetings to be given to members and (c) all other procedural questions which
may arise in connection with the work of such committee.
ARTICLE IV * * * OFFICERS
The officers of the Corporation shall be a Chairman of the Board of
Directors, a President, one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers, a Secretary and such other officers and agents as the
Directors may from time to time authorize. No officer need be a stockholder of
the Corporation.
All officers of the Corporation shall be elected, chosen or appointed by
the Board of Directors at its first meeting after the annual meeting of
stockholders, or special meeting held in lieu thereof. Each of said officers so
elected, chosen or appointed shall hold his office until the first meeting of
Directors after the next annual meeting of stockholders, or special meeting in
lieu thereof, and until his successor shall have been chosen and qualified, or
until his death, resignation or removal.
Any officer may be removed from office, with or without cause, at any time
by the affirmative vote of a majority of the Board of Directors.
ARTICLE V * * * CHAIRMAN OF THE BOARD OF DIRECTORS & PRESIDENT
The Chairman of the Board of Directors and the President shall be chosen
from among the members of the Board of Directors.
The Chairman of the Board of Directors shall be the chief executive officer
of the Corporation and, subject to its Board of Directors, shall exercise
general supervision of its affairs. He shall preside at all meetings of the
stockholders and of the Directors when present.
The President, subject to the Board of Directors and its Chairman, shall
have charge of the business of the Corporation relating to general operation and
shall perform all the duties of his office prescribed by law or by vote of the
Directors.
In the absence of the Chairman of the Board of Directors, the President
shall, with like authority, preside at meetings both of the stockholders and of
the Directors. In the absence of the Chairman of the Board of Directors and of
the President, any Vice President shall preside with like authority. In the
absence of the Chairman of the Board of Directors, the President and all the
Vice Presidents, a President pro tempore shall be chosen.
ARTICLE VI * * * VICE PRESIDENTS
Any Vice President shall have, in addition to any duties and powers set
forth in these By-Laws, such duties and powers as are usually incident to such
office and as the Directors shall from time to time designate.
ARTICLE VII * * * SECRETARY
The Secretary, who shall be sworn, shall be the Secretary of the
Corporation; and shall attend all meetings of the stockholders, keep accurate
records thereof and perform all other duties incident to such office.
In the absence of the Secretary from any of such meetings, a Secretary pro
tempore shall be chosen.
ARTICLE VIII * * * TREASURER
The Treasurer shall be responsible for the transfer of all of the capital
stock of the Corporation, shall have custody of the corporate seal and of all
the moneys, funds and valuable papers and documents of the Corporation. All
property of the Corporation in the custody of the Treasurer shall be subject at
all times to the inspection and control of the Board of Directors.
The Treasurer shall cause all the funds of the Corporation to be deposited
in such bank or banks as the Directors may authorize or designate to the credit
of the Corporation in its corporate name.
He shall have power to endorse for deposit or collection all checks,
drafts, notes or other obligations for the payment of money on behalf of the
Corporation or its order.
Except as the Directors may otherwise order or approve, all checks, drafts,
notes or other obligations for the payment of money on behalf of the
Corporations shall be signed by the Treasurer or, in case of his absence or
inability to act, by an Assistant Treasurer. When signed by an Assistant
Treasurer, however, they shall require as a condition precedent to their
validity countersignature by such officer or agent as the Directors may by vote
direct, except that dividend checks shall not require any countersignature.
The Treasurer shall cause accurate books of account of the Corporation's
transactions to be kept, which books shall be the property of the Corporation
and shall be subject at all times to the inspection and control of the Board of
Directors. He shall be responsible for the preparation and filing of necessary
statements and reports and shall perform such other duties as from time to time
may be assigned by the Board of Directors.
The Treasurer shall cause notes to be issued and drafts to be accepted on
behalf of the Corporation only when authorized thereto by the Directors.
ARTICLE IX * * * ASSISTANT TREASURERS
In case of the death, absence or inability to act of the Treasurer, any
Assistant Treasurer may exercise any or all of the powers of the Treasurer,
subject, however, to the limitation expressed in Article VII hereof and such
further limitations as the Board of Directors may impose.
ARTICLE X * * * INDEMNIFICATION
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the person's having served as, or by reason of the person's alleged
acts or omissions while serving as a director, officer, employee or agent of the
Corporation, or while serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorney's fees,
judgments, fines and amounts paid in settlement or otherwise actually and
reasonably incurred by him in connection with the action, suit or proceeding, if
the person acted in good faith and in a manner he reasonable 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 his
conduct was unlawful, said indemnification to be to the full extent permitted by
law under the circumstances, including, without limitation, by all applicable
provisions of the New Hampshire Business Corporation Act ("the Act").
Any indemnification under this Article shall be made by the Corporation
with respect to Directors or other persons after a determination that the person
to be indemnified has met the standards of conduct set forth in the Act, such
determination to be made by the Board of Directors, by majority vote of a
quorum, or by other persons authorized to make such a determination under the
Act.
The right of indemnification arising under this Article is adopted for the
purpose of inducing persons to serve and to continue to serve the Corporation
without concern that their service may expose them to personal financial harm.
It shall be broadly construed, applied and implemented in light of this purpose.
It shall not be exclusive of any other right to which any such person is
entitled under any agreement, vote of the stockholders or the Board of
Directors, statute, or as a matter of law, or otherwise, nor shall it be
construed to limit or confine in any respect the power of the Board of Directors
to grant indemnity pursuant to any applicable statutes or laws of The State of
New Hampshire. The provisions of this Article are separable, and, if any
provision or portion hereof shall for any reason be held inapplicable, illegal
or ineffective, this shall not affect any other right of indemnification
existing under this Article or otherwise. As used herein, the term "person:
includes heirs, executors, administrators or other legal representatives. As
used herein, the terms "Director" and "officer" include persons elected or
appointed as officers by the Board of Directors, persons elected as Directors by
the stockholders or by the Board of Directors, and persons who serve by vote or
at the request of the Corporation as directors, officers or trustees of another
organization in which the Corporation has any direct or indirect interest as a
shareholder, creditor or otherwise.
The Corporation may purchase and maintain insurance on behalf of any person
who was or is a Director, officer or employee of the Corporation or any of its
subsidiaries, or who was or is serving at the request of the Corporation as a
fiduciary of any employee benefit plan of the Corporation or any subsidiary,
against any liability asserted against, and incurred by, such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of the Act. The obligation to indemnify and reimburse such
person under this Article, if applicable, shall be reduced by the amount of any
such insurance proceeds paid to such person, or the representatives or
successors of such person.
ARTICLE XI * * * CERTIFICATES OF STOCK
Each stockholder shall be entitled to a certificate representing shares of
the capital stock of the Corporation owned by him, in such form as shall, in
conformity to law, be prescribed from time to time by the Board of Directors.
Certificates of stock shall be signed by the Chairman or Vice Chairman of the
Board of Directors or by the President or any Vice President and by the
Secretary or any Assistant Secretary or the Treasurer or an Assistant Treasurer
of the Corporation and may be sealed with the corporate seal. Such seal may be a
facsimile, engraved or printed. When any such certificate is manually signed by
a transfer agent and/or a registrar, the signatures of the duly authorized
officers of the Corporation upon such certificate may be facsimiles, engraved or
printed. In case any officer who has signed or whose facsimile signature has
been placed upon any certificate shall have ceased to be such before the
certificate is issued, it may be issued by the Corporation with the same effect
as if such officer had not ceased to be such at the time of its issue.
Shares of stock of the Corporation may be transferred on the books of the
Corporation by the registered owner thereof or by his duly authorized attorney
by assignment thereof in writing, accompanied by delivery of the certificate. No
such transfer of stock, however, shall affect the right of the Corporation to
pay any dividend thereon or to treat the holder of record as the holder in fact
until the transfer has been recorded upon the books of the Corporation or a new
certificate has been issued to the person to whom the stock has been
transferred.
In case of the loss of a certificate, a duplicate may be issued upon such
reasonable terms as the Board of Directors shall prescribe.
The Board of Directors may appoint one or more transfer agents and
registrars and may require all certificated representing shares of the
Corporation's stock to bear the signature or signatures of any of them.
ARTICLE XII * * * CLOSING OF TRANSFER BOOKS
The transfer books of the Corporation may be closed for not exceeding
fifteen (15) days next prior to any meeting of the stockholders, and at such
other times and for such reasonable periods as may be determined by the Board of
Directors. However, in the event dividends are declared, the stock transfer
books of the Corporation will not be closed but record dates will be fixed by
the Board of Directors, upon which the Corporation's transfer agent will take a
record of all stockholders entitled to the dividends so declared without
actually closing the books for transfers of stock of the Corporation.
ARTICLE XIII * * * FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of December in
each year.
ARTICLE XIV * * * AMENDMENTS
These By-Laws may, upon notice, be altered, amended or repealed at any
meeting of the stockholders by vote of the holders of a majority or more of the
stock entitled to vote at such meeting. Notwithstanding the foregoing, as
provided by statute, a majority of the Board of Directors may make, amend or
repeal these By-Laws in whole or in part, except with respect to any provision
thereof which by statute or by the Articles of Incorporation requires action by
the stockholders.
* * *
EXHIBIT NO. 5
LETTERHEAD OF LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
March 4, 1999
Unitil Corporation
6 Liberty Lane West
Hampton, NH 03842
Ladies and Gentlemen:
We have acted as counsel to Unitil Corporation, a New Hampshire corporation
(the "Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") executed and filed for the purpose of registering
under the Securities Act of 1933, as amended (the "1933 Act"), 350,000 shares of
the Company's Common Stock, no par value (the "Common Stock"), to be issued
pursuant to the Company's 1998 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such instruments,
certificates, records and documents, and have reviewed such questions of law, as
we have deemed necessary or appropriate for purposes of this opinion. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of the
originals of all such latter documents. As to any facts material to this
opinion, we have relied upon the aforesaid instruments, certificates, records
and documents and inquiries of Company representatives.
Based upon the foregoing examination, and subject to the limitations set
forth below, we are of the opinion that the Common Stock, when issued by the
Company upon exercise of the stock options pursuant to the Plan, will be validly
issued, fully paid and nonassessable when:
(a) the Registration Statement shall have become, and for so long as it
shall remain, effective for the purpose of the issuance of the Common Stock; and
(b) the consideration therefor provided for in the Plan has been received
by the Company.
Unitil Corporation
March 4, 1999
Page Two
This opinion is rendered under and limited to the New Hampshire Business
Corporation Act (without reference to "blue sky" matters) and the federal law of
the United States. We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and in any amendments thereto. In giving such consent, we
do not thereby concede that we are within the category of persons whose consent
is required under Section 7 of the 1933 Act, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 10, 1998 accompanying the
consolidated financial statements and schedule included in the Annual Report of
Unitil Corporation and subsidiaries on Form 10-K for the year ended December 31,
1997. We hereby consent to the incorporation by reference of said report in the
Registration Statement of Unitil Corporation on Form S-8, relating to the Unitil
Corporation 1998 Stock Option Plan.
/s/ Grant Thornton LLP
Grant Thornton LLP
Boston, Massachusetts
March 4, 1999