-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DZhDjh4+FW22zVtuTY03iVD5YvUavj/v0QQ0K8f4yl8yZFdU3SJ1ArEAhWfW1aUp l3c+xkrLHbLzRE20coK+6A== 0000031224-96-000011.txt : 19960314 0000031224-96-000011.hdr.sgml : 19960314 ACCESSION NUMBER: 0000031224-96-000011 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960313 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: EASTERN UTILITIES ASSOCIATES CENTRAL INDEX KEY: 0000031224 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 041271872 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1/A SEC ACT: 1935 Act SEC FILE NUMBER: 070-08769 FILM NUMBER: 96534434 BUSINESS ADDRESS: STREET 1: ONE LIBERTY SQ STREET 2: P O BOX 2333 CITY: BOSTON STATE: MA ZIP: 02109 BUSINESS PHONE: 6173579590 U-1/A 1 U-1/A2 DUKE\LOUIS DREYFUS File No. 70-8769 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NUMBER TWO TO FORM U-1 APPLICATION-DECLARATION WITH RESPECT TO THE ACQUISITION OF A SUBSIDIARY IN CONNECTION WITH THE PROVISION OF POWER MARKETING AND OTHER SERVICES UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 EASTERN UTILITIES ASSOCIATES P.O. Box 2333, Boston, Massachusetts 02107 (Name of company filing this statement and address of principal executive office) EASTERN UTILITIES ASSOCIATES (Name of top registered holding company parent of applicant or declarant) CLIFFORD J. HEBERT, JR., TREASURER EASTERN UTILITIES ASSOCIATES P.O. Box 2333, BOSTON, MASSACHUSETTS 02107 (Name and address of agent for service) The Commission is requested to mail signed copies of all orders, notices and communications to: ARTHUR I. ANDERSON, P.C. McDermott, Will & Emery 75 State Street Boston, MA 02109 ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTION. The first and third paragraphs under the LLC under ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTIONS are amended to read as follows: First Paragraph: "The LLC was formed with Duke/Louis Dreyfus L.L.C., a Nevada limited liability company ("D/LD"), for the purpose of providing energy services to customers in the New England states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont (the "Territory"), including buying and selling electric power and brokering purchases and sales of electric power ("Power Marketing"); buying and selling fuel (including gas and oil) and brokering purchase and sales of fuel ("Fuels Marketing"); and engineering, consulting and maintenance services for customers with respect to equipment for the production of electricity or steam, efficiency services and processes, and equipment retrofit (the "LLC Business"). The LLC may provide financing to customers with respect to services furnished or the equipment being furnished or retrofitted and alternatively may lease such equipment to customers. The types of leases which the LLC may enter into with customers may include true as well as finance leases. As the market for electricity becomes increasingly deregulated, EUA believes (i) that consumers of electricity will have increasing opportunities to switch among energy sources based on, among other things, pricing considerations and (ii) that electric generators will find it increasingly to their advantage not to pass through fuel cost to their customers and will, therefore, have to develop effective hedging mechanisms including hedging with respect to fuel supply. The LLC plans to provide Power Marketing and Fuels Marketing services to both producers and consumers of electricity, in the case of energy consumers, to lower their overall energy costs and, in the case of electric generators, to ensure that they are able effectively to match production costs with sales revenues. Accordingly, many of the LLC's customers will be offered Fuels Marketing services in conjunction with Power Marketing services. EUA requests that the Commission reserve jurisdiction over the provision of Fuels Marketing services by the LLC where such services are not furnished to electric power producers. The LLC in appropriate circumstances will use options, swaps, futures and other similar transactions ("derivative transactions") to offset the price risk of a purchase or sale of energy products by taking an opposite position to that purchase or sale. The LLC will establish operations, policies and procedures to limit the risk associated with such transactions. The establishment of operations policies and procedures with respect to risk management requires the affirmative vote of at least one member of the Executive Committee of the LLC appointed by Energy Services. EUA represents that the risk management policies and procedures to be established will result in the LLC's total volume of derivatives transactions at any time being limited to no more than the total volume of the LLC's fixed price purchase and fixed price sale commitments that are subject to market price fluctuation. Therefore, the LLC's use of derivatives will not be speculative in nature. As part of its business, the LLC may determine to acquire, lease or operate generating facilities in the future if doing so would not subject the LLC to regulation as an electric utility subsidiary of EUA under the Act. Any such activities by the LLC with respect to generating capacity will be effected only pursuant to an available exemption or pursuant to a Commission order in separate proceedings." Third Paragraph: "The LLC will initially conduct its Power Marketing activities in the wholesale energy markets in the Territory. The LLC will sell energy to wholesale customers to the extent permitted without becoming an "electric utility company" or a "gas utility company" within the meaning of the definitions of such terms in Sections 2(a)(3) and 2(a)(4) of the Act. EUA requests that the Commission reserve jurisdiction over possible retail sales of electricity and fuel by the LLC. Regulatory and legislative initiatives are moving rapidly in the Territory and the LLC may be in a position to pursue retail opportunities in the Territory in the near future. A retail wheeling pilot program in New Hampshire is scheduled to commence as of May 1, 1996. In Massachusetts, the Department of Public Utilities (MDPU) issued an order on August 16, 1995 that requires, among other things, investor-owned electric utilities to unbundle their rates and provide customer choice with respect to generation services. Four investor-owned electric utilities, including Eastern Edison Company, have already filed plans with the MDPU. On February 7, 1997, a bill was introduced in the Rhode Island legislature that, if enacted, would allow customer choice of electricity supplier commencing January 1, 1998 for large industrial customers and phasing in all customers by January 1, 2001." The following paragraph is added as the last paragraph under ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTIONS: "As required by rule 54, all applicable conditions contained in rule 53(a) are, and assuming the consummation of the proposed transactions, will be, satisfied and none of the conditions contained in rule 53(b) exist or will exist as a result of the proposed transactions, making rule 53(c) inapplicable." ITEM 2. FEES, COMMISSIONS, AND EXPENSES. The fees, Commissions and expenses of the Applicant expected to be paid or incurred, directly or indirectly, in connection with the transactions described are as follows: Securities and Exchange Commission Filing Fee $2,000 Fees and Expenses of Company Counsel $130,000 Fees and Expenses of EUA Service Corporation $20,000 Total $152,000 ITEM 4. REGULATORY APPROVALS. Item 4. is amended to read as follows: No state Commission and no Federal Commission, other than the Commission, has jurisdiction over the transactions for which authorization is hereby requested. Item 5. PROCEDURE. Item 5. is amended to read as follows: "(a) In order to be in a position to carry out the proposed transactions at the most advantageous time, the Applicant requests that the Commission issue its order hereon on the earliest practical date. (b) It is not considered necessary that there be a recommended decision by a hearing officer or by any other responsible officer of the Commission. The Office of Public Utilities Regulation may assist in the preparation of the decision of the Commission, and it is believed that a thirty (30) day waiting period between the issuance of the order of the Commission and the day on which the order is to become effective would not be appropriate. (c) Energy Services will file certificates with the Commission pursuant to Rule 24 within 45 days after the end of each calendar quarter to report transactions authorized under the Act by this order, and setting forth: (1) a balance sheet as of the end of such quarter, and a statement of income and expense for such quarter and the twelve-months concluding as of the end of such quarter, for the LLC; (2) a statement for such quarter of the amount of revenues attributable to (i) buying, selling and brokering electric power, (ii) buying, selling and brokering fuel, and (iii) engineering, consulting, leasing and maintenance services (each stated separately); (3) a statement as to whether the LLC has engaged in any derivative transactions during the quarter; and (4) a description of the types and dollar amounts of services provided by EUA affiliates to Energy Services or the LLC during the period, identifying the type of service good or construction contract, the parties involved, and, if such transactions are not in compliance with Rules 90 and 91 under the Act, the basis for the pricing of such transactions." ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (* Filed herewith) (** Confidential treatment requested pursuant to Rule 104(b)) (***Incorporated by reference pursuant to Rule 22) (a) Exhibits. Exhibit A-1* Articles of Organization of Energy Services. Exhibit A-2* By-Laws of Energy Services. Exhibit B-1** Operating Agreement. Exhibit F* Opinion of counsel Exhibit G*** EUA System Lines of Credit (Exhibit G, File No. 70-8713) Exhibit H Proposed Form of Notice. (b) Financial Statements. None. SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned Applicants have duly caused this statement to be signed on their behalf by the undersigned duly authorized individual. EASTERN UTILITIES ASSOCIATES By: /s/ Clifford J. Hebert, Jr. Clifford J. Hebert, Jr. Treasurer Dated March 13, 1996 EX-3 2 EX A-1 ART OF ORGANIZATION Exhibit A-1 FORM OF ARTICLES OF ORGANIZATION THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 ARTICLES OF ORGANIZATION (General Laws, Chapter 156B) ARTICLE I The exact name of the corporation is: EUA Energy Services, Inc. ARTICLE II The purpose of the corporation is to engage in the following business activities: To engage in and carry on businesses providing energy- related products and services to residential and commercial purchasers; and To engage in and carry on any other business or activity which may lawfully be engaged in or carried on by a corporation which is organized under Chapter 156B of the General Laws of the Commonwealth of Massachusetts as presently in effect or as amended from time to time, or any successor provisions adopted in lieu thereof. ARTICLE III The type and classes of stock and the total number of shares and par value, if any, of each type and class of stock which the corporation is authorized to issue. WITHOUT PAR VALUE WITH PAR VALUE TYPE: NO. OF SHARES TYPE: NO. OF SHARES PAR VALUE COMMON: COMMON: 200,000 .01 PREFERRED: PREFERRED: ARTICLE IV If more than one class of stock is authorized, state a distinguishing designation for each class. Prior to the issuance of any shares of a class, if shares of another class are outstanding, the corporation must provide a description of the preferences, voting powers, qualifications, and special or relative rights or privileges of that class and of each other class of which shares are outstanding and of each series then established within any class. N/A ARTICLE V The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are: N/A ARTICLE VI *Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: (a) The Board of Directors may make, amend or repeal the By-Laws of the corporation in whole or in part, except with respect to any provision thereof which by law or the By-Laws requires action by the stockholders. Any by-law adopted by the Board of Directors may be amended or repealed by the stockholders. (b) Meetings of the stockholders may be held anywhere in the United States. (c) The corporation may be a partner, either general or limited, in any business enterprise it would have the power to conduct by itself. (d) No current or former director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability; provided, however, that this provision shall not eliminate the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 61 or 62 or successor provisions of the Massachusetts Business Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. This provision shall not eliminate the liability of a director for any act or omission occurring prior to the date upon which this provision becomes effective. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. (e) No contract or transaction between the corporation and one or more of its directors or officers, or between the corporation and any other organization of which one or more of its directors or officers are directors, trustees or officers, or in which any of them has any financial or other interest, shall be void or voidable, or in any way affected, solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board of directors or committee thereof which authorizes, approves or ratifies the contract or transaction, or solely because his/her or their votes are counted for such purposes, if: (i) The material facts as to his/her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee which authorizes, approves or ratifies the contract or transaction, and the board or committee in good faith authorizes, approves or ratifies the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) The material facts as to his/her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically authorized, approved or ratified in good faith by vote of the stockholders; or (iii) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee thereof which authorizes, approves or ratifies the contract or transaction. No director or officer of the corporation shall be liable or accountable to the corporation or to any of its stockholders or creditors or to any other person, either for any loss to the corporation or to any other person or for any gains or profits realized by such director or officer, by reason of any contract or transaction as to which clauses (i), (ii) or (iii) above are applicable. *If there are no provisions state "None". Note: The preceding six (6) articles are considered to be permanent and may ONLY be changed by filing appropriate Articles of Amendment. ARTICLE VII The effective date of organization of the corporation shall be the date approved and filed by the Secretary of the Commonwealth. If a LATER effective date is desired, specify such date which shall not be more than thirty days after the date of filing. ARTICLE VIII The information contained in Article VIII is NOT a PERMANENT part of the Articles of Organization. a. The street address of the principal office of the corporation IN MASSACHUSETTS is: (post office boxes are not acceptable) c/o Eastern Utilities Associates One Liberty Square Boston, MA 02107 Attention: President b. The name, residential address and post office address of the directors and officers of the corporation are as follows: DIRECTORS Post Office Name Residence Address John D. Carney 99 Mt. Prospect Street Same Bridgewater, MA 02324 Kevin A. Kirby 61 Monument Neck Road Same Bourne, MA 02532 Donald G. Pardus 238 Glezen Lane Same Wayland, MA 01778 Robert G. Powderly 42 Wayside Lane Same Ashland, MA 01721 John R. Stevens 41 Old Village Road Same Acton, MA 01720 OFFICERS Post Office Title Name Residence Address Chairman Donald G. Pardus 238 Glezen Lane Same Wayland, MA 01778 President John R. Stevens 41 Old Village Road Same Acton, MA 01720 Vice President Kevin A. Kirby 61 Monument Neck Road Same Bourne, MA 02532 Clerk Clifford J. 3 Hammond Place Same Hebert, Jr. Woburn, MA 01801 Treasurer Clifford J. 3 Hammond Place Same Hebert, Jr. Woburn, MA 01801 c. The fiscal year (i.e., tax year) of the corporation shall end on the last day of the month of: December d. The name and BUSINESS address of the RESIDENT AGENT of the corporation, if any, is: ARTICLE IX By-laws of the corporation have been duly adopted and the president, treasurer, clerk and directors whose names are set forth above, have been duly elected. IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we whose signature(s) appear below as incorporator(s) and whose name(s) and business or residential address(es) ARE CLEARLY TYPED OR PRINTED beneath each signature do hereby associate with the intention of forming this corporation under the provisions of General Laws Chapter 156B and do hereby sign these Articles of Organization as incorporator(s) this 5th day of December, 1995. Aaron R. Muirhead, Incorporator McDermott, Will & Emery 75 State Street Boston, Massachusetts 02109 Note: If an existing corporation is acting as incorporator, type in the exact name of the corporation, the state or other jurisdiction where it was incorporated, the name of the person signing on behalf of said corporation and the title he/she holds or other authority by which such action is taken. THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION (General Laws, Chapter 156B) ____________________________________________ I hereby certify that, upon examination of these Articles of Organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $200.00 having been paid, said articles are deemed to have been filed with me this 5th day of December, 1995. Effective date: WILLIAM FRANCIS GALVIN Secretary of the Commonwealth FILING FEE: One tenth of one percent of the total authorized capital stock, but not less than $200.00. For the purpose of filing, shares of stock with a par value less than $1.00, or no par stock, shall be deemed to have a par value of $1.00 per share. TO BE FILLED IN BY CORPORATION Photocopy of document to be sent to: Walter A. Foskett, P.C. McDermott, Will & Emery 75 State Street Boston, MA 02109 Telephone: (617) 345-5022 EX-3 3 EX A-2 BYLAWS Exhibit A-2 BY-LAWS OF EUA ENERGY SERVICES, INC. BY-LAWS OF EUA ENERGY SERVICES, INC. ARTICLE I OFFICES Section 1.1. Principal Office. The initial principal office of the Corporation shall be as indicated in the Articles of Organization of the Corporation. The Corporation may have such other offices, either within or without the Commonwealth of Massachusetts, as it may require from time to time. Section l.2. Change in Principal Office. The Board of Directors of the Corporation may at any time and from time to time, change the principal office of the Corporation in the Commonwealth, provided that no such change shall be effective until a certificate of such change, specifying the post-office address of its new principal office in the Commonwealth, signed under the penalties of perjury by the clerk or an assistant clerk of the Corporation, has been filed with the state secretary. ARTICLE II STOCKHOLDERS Section 2.1. Place of Meetings. All meetings of the stockholders for the election of directors shall be held at the offices of the Corporation or elsewhere in the United States as the Board of Directors may designate. Section 2.2. Annual Meetings. An annual meeting of the stockholders, commencing with the year 1996 shall be held on the second Tuesday in April in each year, but if a legal holiday, then on the next business day following, at 10:00 o'clock A.M., at which the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before such meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called by the President or by the directors, and shall be called by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more stockholders who hold at least one-tenth part in interest of the capital stock entitled to vote thereat. In case none of the officers is able and willing to call a special meeting, the Supreme Judicial or Superior Court, upon application of one or more stockholders who hold at least one-tenth part in interest of the capital stock entitled to vote thereat, shall have jurisdiction in equity to authorize one or more of such stockholders to call a meeting by giving such notice as is required by law. Section 2.4. Notice of Meetings. A written notice of the place, date and hour of all meetings of stockholders stating the purposes of the meeting shall be given by the Clerk or an assistant Clerk (or other person authorized by the By-Laws or empowered pursuant to Section 2.3) at least seven days before the meeting to each stockholder entitled to vote thereat and to each stockholder who, under the Articles of Organization or under the By-Laws, is entitled to such notice, by leaving such notice with him or at his residence or usual place of business, or by mailing it, postage prepaid, and addressed to such stockholder at his address as it appears in the records of the Corporation. Section 2.5. Waiver of Notice. Whenever notice of a meeting is required to be given a stockholder under any provision of the law or of the Articles of Organization or these By-Laws, a written waiver thereof, executed before or after the meeting by such stockholder or his attorney thereunto authorized and filed with the records of meeting, shall be deemed equivalent to such notice. Section 2.6. Closing of Transfer Books and Fixing of Record Date. The directors may fix in advance a time, which, unless a shorter period is provided in the Articles of Organization, shall be not more than sixty days before the date of any meeting of stockholders or the date for the payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof or the right to receive such dividend or distribution or the right to give such consent or dissent, and in such case only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the Corporation after the record date; or without fixing such record date the directors may for any of such purposes close the transfer books for all or any part of such period. If no record date is fixed and the transfer books are not closed: The record date for determining stockholders having the right to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect thereto. Section 2.7. Quorum. A majority of the shares of the Corporation issued, outstanding and entitled to vote at a meeting represented in person or by proxy shall constitute a quorum at any meeting of stockholders. Section 2.8. Manner of Acting. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting shall be the act of the stockholders, unless the vote of a greater number or voting by classes is required by the Business Corporation Law of the Commonwealth of Massachusetts or the Articles of Organization or these By-Laws. Section 2.9. Proxies. Stockholders may vote in person or by proxy. No proxy dated more than six months before the meeting named therein shall be valid and no proxy shall be valid after the final adjournment of such meeting. Notwithstanding the provisions of the foregoing sentence, a proxy coupled with an interest sufficient in law to support an irrevocable power, including, without limitation, an interest in shares or in the corporation generally, may be made irrevocable if it so provides, need not specify the meeting to which it relates, and shall be valid and enforceable until the interest terminates, or for such shorter period as may be specified in the proxy. Any proxy shall be filed with the Clerk of the Corporation before or at the time of the meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by any one of them unless at or prior to exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger. Section 2.10. Voting of Shares. Stockholders entitled to vote shall have one vote for each share of stock owned by them and a proportionate vote for a fractional share, unless otherwise provided by the Articles of Organization. Section 2.11. Informal Action by Stockholders. Any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of stockholders. Such consent shall be treated for all purposes as a vote at a meeting. Section 2.12. Voting Agreements. An agreement between two or more stockholders or between one or more stockholders and one or more other persons, if in writing and signed by the parties thereto, may provide that the shares held by such stockholders shall be voted under procedures set forth in said agreement. ARTICLE III DIRECTORS Section 3.1. General Powers. The business and affairs of the Corporation shall be managed by a Board of Directors. Section 3.2. Number, Election and Term of Office. The Board of Directors shall consist of not less than three directors, except that whenever there shall be only two stockholders the number of directors shall be not less than two, and whenever there shall be only one stockholder the number of directors shall be not less than one. The number of the directors shall be as determined from time to time by the stockholders and may be enlarged between meetings of the stockholders by the vote of a majority of the directors then in office. The directors shall be chosen at the annual meeting of the stockholders by such stockholders as have the right to vote thereon, and each shall hold office until the next annual election of directors and until his successor is chosen and qualified or until he sooner dies, resigns, is removed or becomes disqualified. No director need be a stockholder. Any election of directors by stockholders shall be by ballot if so requested by any stockholder entitled to vote thereon. 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 stockholders. The Board of Directors may provide, by resolution, the time and place, either within or without the Commonwealth of Massachusetts, for the holding of additional regular meetings in which case no other notice need be given. 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 (2) directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the Commonwealth of Massachusetts, as the place for holding any special meeting of the Board of Directors. Section 3.5. Notice. Written notice of any special meeting of directors shall be given as follows: By mail to each director at his business address at least three days prior to the meeting; or By personal delivery or telegram to each director at his business address at least 24 hours prior to the meeting, or in the event such notice is given on a Saturday, Sunday or holiday, to each director at his residence address at least 24 hours prior to the meeting. 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 is given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Notice of a meeting need not be given to any director, if a written waiver of notice, executed by him before or after the meeting, is filed with the records of the meeting, or to any director who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him. 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. Quorum. The number of directors required to constitute a quorum shall be a majority of the directors then in office. If a quorum is present, a majority of the directors present may take any action on behalf of the board except to the extent that a larger number is required by law or the Articles of Organization or these By-Laws. Section 3.7. Meetings by Telecommunications. Unless the Articles of Organization otherwise provide, members of the Board of Directors or any committee designated thereby may participate in a meeting of such board or committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. Section 3.8. Vacancies. Any vacancy occurring in the Board of Directors and any directorship to be filled by reason of an increase in the number of directors may be filled by election at a meeting of the stockholders or of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Section 3.9. Compensation. By resolution of the Board of Directors, irrespective of any personal interest of any of the members, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at meetings or a stated salary as directors. These payments shall not preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 3.10. 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 conclusively presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as the secretary of the meeting before the adjournment of the meeting or forwards such dissent by registered mail to the Clerk of the Corporation immediately after the adjournment of the meeting. Such right to dissent does not apply to a director who voted in favor of such action. Section 3.11. Committees of Directors. The Corporation may provide for an executive committee or other committees to be elected from and by the Board of Directors, and the directors may delegate to any such committee or committees some or all of their powers, except, however, the power (a) to change the principal office of the Corporation; (b) to amend By-Laws; (c) to elect officers and to fill vacancies in any such offices; (d) to change the number of the Board of Directors and to fill vacancies in the Board of Directors; (e) to remove officers or directors from office; (f) to authorize the payment of any dividend or distribution to shareholders; (g) to authorize the reacquisition for value of stock of the Corporation; or (h) to authorize a merger. Except as otherwise provided in the Articles of Organization, the directors may determine the manner of conducting committee business, whether at a meeting or otherwise, and the number of members required to take specified types of action. The designation of any such committee and the delegation of any authority thereto shall not operate to relieve the directors from any responsibility imposed upon them by law. Section 3.12. Informal Action by Directors. Any action required or permitted to be taken at any meeting of the Board of Directors or the Executive Committee, if any, may be taken without a meeting, if all the directors entitled to vote consent to the action in writing and the written consents are filed with the records of the meetings. Such consents shall be treated for all purposes as a vote at a meeting. Section 3.13. Removal of Directors. Any director may be removed from his office with or without cause by vote of the holders of a majority of the shares entitled to vote in the election of directors, provided that the directors of a class elected by a particular class of stockholders may be removed only by the vote of the holders of a majority of the shares of the particular class of stockholders entitled to vote for the election of such directors. Any director may be removed from his office for cause by vote of a majority of the directors then in office. A director may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him. ARTICLE IV OFFICERS Section 4.1. Number. The officers of the Corporation shall be a President, a Treasurer and a Clerk, each of whom shall be elected by the Board of Directors. The Board of Directors may appoint such other officers as they deem necessary who shall have such authority and shall perform such duties as from time to time may be prescribed by the Board of Directors. Any person may simultaneously hold more than one office of the Corporation. Section 4.2. Election and Term of Office. The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of stockholders. If the election of officers is not held at that meeting, the election shall be held as soon thereafter as practicable. 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 of the Corporation may be removed with or without cause by the Board of Directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 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. Vacancies may be filled or new offices filled at any meeting of the Board of Directors. Section 4.5. Bonds. If the Board of Directors by resolution shall so require, any officer or agent of the Corporation shall give bond to the Corporation in such amount and with such surety as the Board of Directors may deem sufficient, conditioned upon the faithful performance of their respective duties and offices. Section 4.6. President. The President shall be the chief executive officer of the Corporation and shall in general supervise and control all of the business and affairs of the Corporation. He shall preside at all meetings of the stockholders and of the Board of Directors. He may sign, with the Clerk or any other proper officer of the Corporation thereunto authorized by the Board of Directors, certificates for shares of the Corporation, 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 office of President and such other duties as may be prescribed by the Board of Directors from time to time. The President need not be a director. Section 4.7. Vice Presidents. In the absence of the President or in the event of his inability or refusal to act, the Vice President (or, in the event there is more than one Vice President, Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President. Any Vice President may sign, with the Treasurer or an Assistant Treasurer, certificates for shares of the Corporation, and shall perform those other duties which from time to time may be assigned to him by the Board of Directors or by the chief executive officer. Section 4.8. Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any source whatsoever and deposit all such moneys 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; (b) sign with the President or Vice President certificates for shares of the Corporation's stock; and (c) in general, perform all duties incident to the office of Treasurer and all other duties as from time to time may be assigned to him by the Board of Directors or the chief executive officer. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in the sum and with a surety or sureties as the Board of Directors shall determine. Section 4.9. Clerk. The Clerk shall: (a) keep the minutes of the stockholders' and of the Board of Directors' meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and, if the Corporation has a corporate seal, of the seal of the Corporation and see that the seal of the Corporation is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws; (d) keep a register of the post office address of each stockholder which shall be furnished to the Clerk by such stockholder; (e) have general charge of the share transfer books of the Corporation; and (f) in general, perform all duties incident to the office of Clerk and all other duties as from time to time may be assigned to him by the Board of Directors or the chief executive officer. Section 4.10. Assistant Treasurers and Assistant Clerks. The Assistant Treasurer as thereunto authorized by the Board of Directors may sign with the President or a Vice President certificates for shares of the Corporation's stock, the issue of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers and Assistant Clerks, in general, shall perform such duties as shall be assigned to them by the Treasurer or the Clerk, respectively, or by the Board of Directors or the chief executive officer. The Assistant Treasurers shall, if required by the Board of Directors, give bonds for the faithful discharge of their duties in sums and with sureties as the Board of Directors shall determine. 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. 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. No loans shall be made by the Corporation secured by its shares. Section 5.3. Checks, Drafts, Etc. All checks, drafts or other order 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 the manner which 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 banks, trust companies or other depositories which the Board of Directors may select. ARTICLE VI SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES Section 6.1. Regulation. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issuance, transfer and registration of certificates for shares of the Corporation, including the appointment of transfer agents and registrars. Any unissued capital stock from time to time authorized under the Articles of Organization may be issued by vote of the stockholders or by vote of the directors. No stock shall be issued unless the cash, so far as due, or the property, services or expenses for which it was authorized to be issued, has been actually received or incurred by, or conveyed or rendered to, the Corporation, or is in its possession as surplus. Section 6.2. Certificates for Shares. Each stockholder shall be entitled to a certificate stating the number and the class and the designation of the series, if any, of the shares held by him. Such certificate shall be signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer. Such signatures may be facsimiles if the certificate is signed by a transfer agent, or by a registrar, other than a director, officer or employee of the Corporation. In case any officer who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the time of its issue. Every certificate issued for shares of stock at a time when such shares are subject to any restriction on transfer pursuant to the Articles of Organization, these By-Laws or any agreement to which the Corporation is a party shall have the restriction noted conspicuously on the certificate and shall also set forth on the face or back of the certificate either the full text of the restriction, or a statement of the existence of such restriction and a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Every stock certificate issued at a time when the Corporation is authorized to issue more than one class or series of stock shall set forth upon the face or back of the certificate either the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series, if any, authorized to be issued, as set forth in the Articles of Organization, or a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Each certificate representing shares shall also state the name of the Corporation, the date of issue, that the Corporation is organized under the laws of the Commonwealth of Massachusetts, the name of the person to whom it is issued, and the par value of each share represented by the certificate or a statement that the shares are without par value. Each certificate shall be otherwise in such form as may be prescribed by the Board of Directors and as shall conform to the rules of any Stock Exchange on which the shares may be listed. Section 6.3. Cancellation of Certificates. All certificates surrendered to the Corporation for transfer shall be canceled and no new certificates shall be issued in lieu thereof until the former certificate for a like number of shares shall have been surrendered and canceled, except as herein provided with respect to lost, stolen or destroyed certificates. Section 6.4. Lost, Stolen or Destroyed Certificates. Subject to Section 8-405 of the Massachusetts Uniform Commercial Code, as amended from time to time, the Board of Directors shall determine the conditions upon which a new certificate of stock may be issued in place of any certificate alleged to have been lost, mutilated or destroyed. They may, in their discretion, require the owner of a lost, mutilated or destroyed certificate, or his legal representative, to give a bond, sufficient in their opinion, with or without surety, to indemnify the Corporation against any loss or claim which may arise by reason of the issue of a certificate in place of such lost, mutilated or destroyed stock certificate. Section 6.5. Transfer of Shares. The Corporation may from time to time enter into an agreement or agreements with one or more of its stockholders restricting the transferability of its shares in accordance with the general corporate purpose to have its shares owned by persons actively engaged in the corporate business. Subject to the terms of any such agreement, shares of the Corporation shall be transferable on the books of the Corporation by the holder thereof, in person or by his duly authorized attorney, upon the surrender and cancellation of a certificate or certificates for a like number of shares. Upon presentation and surrender of a certificate for shares properly endorsed and payment of all required taxes, if any, the transferee shall be entitled to a new certificate or certificates in lieu thereof. As against the Corporation, a transfer of shares can be made only on the books of the Corporation and in the manner hereinabove provided, and the Corporation shall be entitled to treat the holder of record of any share as the owner thereof and shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, except as expressly provided by the statutes of the Commonwealth of Massachusetts. ARTICLE VII FISCAL YEAR The fiscal year of the Corporation shall end on the 31st day of December in each calendar 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 Organization. ARTICLE IX SEAL The Board of Directors may provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Massachusetts," or shall be in such other form as the Board of Directors may from time to time determine. ARTICLE X INDEMNIFICATION The Corporation shall, to the maximum extent legally permissible, indemnify all directors, officers, employees and other agents of the Corporation, and persons who serve at its request as directors, officers, employees or other agents of another organization, or who serve at its request in any capacity with respect to any employee benefit plan, against all liability and expenses, including counsel fees, reasonably incurred by or imposed upon such person in connection with any proceeding in which he may become involved by reason of his serving or having served in such capacity (other than a proceeding voluntarily initiated by such person unless he is successful on the merits, the proceeding was authorized by a majority of the Board of Directors or the proceeding seeks a declaratory judgment regarding his own conduct). Such indemnification shall include payment by the Corporation of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under this Article which undertaking may be accepted without reference to the financial ability of such person to make repayment. Any such indemnification shall be provided although the person to be indemnified is no longer an officer, director, employee or agent of the Corporation or of such other organization or no longer serves with respect to any such employee benefit plan. No indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the Corporation 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 employee benefit plan. The Board of Directors shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or other agent of another organization or with respect to any employee benefit plan, against any liability incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability. ARTICLE XI CONFLICT OF INTEREST No contract or transaction between the corporation and one or more of its directors or officers, or between the corporation and any other organization of which one or more of its directors or officers are directors, trustees or officers, or in which any of them has any financial or other interest, shall be void or voidable, or in any way affected, solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board of directors or committee thereof which authorizes, approves or ratifies the contract or transaction, or solely because his or their votes are counted for such purposes, if: (i) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee which authorizes, approves or ratifies the contract or transaction, and the board or committee in good faith authorizes, approves or ratifies the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically authorized, approved or ratified in good faith by vote of the stockholders; or (iii) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee thereof which authorizes, approves or ratifies the contract or transaction. No director or officer of the corporation shall be liable or accountable to the corporation or to any of its stockholders or creditors or to any other person, either for any loss to the corporation or to any other person or for any gains or profits realized by such director or officer, by reason of any contract or transaction as to which clauses (i), (ii) or (iii) above are applicable. ARTICLE XII CORPORATE RECORDS The original, or attested copies, of the Articles of Organization, By-Laws, and records of all meetings of the incorporators and stockholders, and the stock and transfer records, which shall contain the names of all stockholders and the record address and the amount of stock held by each, shall be kept in the Commonwealth for inspection by the stockholders at the Corporation's principal office or an office of the Clerk, or of the transfer agent or the Resident Agent, if any. Said copies and records need not all be kept in the same office. ARTICLE XIII AMENDMENTS These By-Laws may be altered, amended or repealed and new By-Laws may be adopted by a majority of the stockholders present at any meeting of the stockholders of the Corporation at which a quorum is present. These By-Laws may also be altered, amended or repealed and new By-Laws may be adopted by a majority of the directors present at any meeting of the Board of Directors of the Corporation at which a quorum is present, except with respect to any provision thereof which by law, the Articles of Organization or these By-Laws requires action by the stockholders. Not later than the time of giving notice of the meeting of stockholders next following the making, amending or repealing by the directors of any by-law, notice thereof stating the substance of such changes shall be given to all stockholders entitled to vote on amending the by-laws. Any by-law adopted by the directors may be amended or repealed by the stockholders. EX-99 4 EX B-1, OPERATING AGREEMENT *CONFIDENTIAL TREATMENT* EXHIBIT B-1, OPERATING AGREEMENT **FILED WITH CONFIDENTIAL TREATMENT REQUEST** EX-5 5 EX F OPINION OF COUNSEL Exhibit F March 13, 1996 Securities and Exchange Commission Washington, D.C. 20549 Re:File No. 70-8769: Eastern Utilities Associates -- Acquisition of a Subsidiary in Connection with the Provision of Power Marketing and Other Services Ladies and Gentlemen: As counsel for Eastern Utilities Associates ("EUA"), we are furnishing this opinion letter to be used in connection with that certain application-declaration on Form U-1 dated December 21, 1995, as amended by Amendment No. 1 dated January 26, 1996 and Amendment No. 2 dated March 13, 1996, filed by EUA with the Securities and Exchange Commission (the "Commission") under the Public Utility Holding Company Act of 1935, File No. 70-8769 (the "Application-Declaration"), with respect to the acquisition of a subsidiary in connection with the provision of power marketing and other services (the "Proposed Transactions"), as more fully described in the Application-Declaration. It is our opinion, subject to the additional assumptions, exceptions and qualifications hereinafter stated, that in the event the Proposed Transactions are consummated in accordance with the terms and conditions of the Application-Declaration: (a) all State laws applicable to the Proposed Transactions will have been complied with by EUA; (b) EUA is a validly organized and duly existing voluntary association under the laws of The Commonwealth of Massachusetts; and (c) The consummation of the Proposed Transactions will not violate the legal rights of the holders of any of the securities of EUA or any of EUA Cogenex Corporation ("Cogenex"), EUA Energy Investment Corporation ("EUA Energy"), EUA Service Corporation ("Service"), Eastern Edison Company ("Eastern"), Montaup Electric Company ("Montaup"), Blackstone Valley Electric Company ("Blackstone"), Newport Electric Corporation ("Newport"), EUA Ocean State Corporation ("Ocean State"), OSP Finance Company ("OSP"), Northeast Energy Management, Inc. ("NEM"), EUA Citizens Conservation Services, Inc. ("CCS"), EUA Highland Corporation ("Highland"), EUA Cogenex-Canada Inc. ("Cogenex-Canada") (each of NEM, CCS, Highland and Cogenex-Canada being an associate or subsidiary company of Cogenex), EUA TransCapacity, Inc. ("TransCapacity"), EUA BIOTEN, Inc. ("BIOTEN") (TransCapacity and BIOTEN being associate companies of EUA Energy), Ocean State Power ("OSP I") or Ocean State Power II ("OSP II") (OSP I and OSP II being Rhode Island general partnerships). In addition to being subject to the consummation of the Proposed Transactions in accordance with the provisions of the Application-Declaration, the opinions expressed in this letter are also subject to the following additional assumptions, exceptions and qualifications: (1) compliance with such order or orders as the Commission may issue from time to time upon the Application-Declaration; (2) the accuracy of information furnished to us as to the outstanding securities of EUA, Cogenex, EUA Energy, Service, Eastern, Montaup, Blackstone, Newport, Ocean State, OSP, NEM, CCS, Highland, Cogenex-Canada, TransCapacity, BIOTEN, OSP I and OSP II; (3) that all requirements of applicable state securities or "blue sky" laws will have been complied with; (4) that the enforceability of the Proposed Transactions may be subject to and affected by applicable bankruptcy, receivership, insolvency, reorganization, moratorium, fraudulent conveyance or other laws affecting the enforcement of the rights and remedies of creditors generally (including, without limitation, such as may deny giving effect to waivers of rights to debtors or guarantors); and such duties and standards as are or may be imposed on creditors, including, without limitation, good faith, reasonableness and fair dealing under any applicable statute, rule, regulation or judicial decision; and (5) that the enforceability of the Proposed Transactions may be subject to and affected by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and the exercise of equitable powers by a court of competent jurisdiction (and no opinion is given herein as to specific performance or as to the availability of other equitable remedies or equitable relief of any kind). The opinions expressed in this letter relate only to federal law and the laws of The Commonwealth of Massachusetts and we express no opinion with respect to any other jurisdiction. To the extent that certain matters addressed may involve the laws of other states, we have assumed that such laws are not materially different from the laws of The Commonwealth of Massachusetts. We consent to the use of this opinion letter in connection with the Application-Declaration filed with the Commission. Very truly yours, /s/ McDermott, Will & Emery McDERMOTT, WILL & EMERY EX-99 6 EX G-INCORP BY REFERENCE EUA SYSTEM LINES OF CREDIT (EXHIBIT G, FILE 70-8713) (INCORPORATED BY REFERENCE) -----END PRIVACY-ENHANCED MESSAGE-----