-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, rXE0tXybtuzfIh+Lwko9OTbqcZ5KjIoybkEFqAnhwVAtwhTIJ/0pXv2+kKkQs1o/ ccn0Ie9aXWqirOicMO+ibw== 0000071297-94-000057.txt : 19941220 0000071297-94-000057.hdr.sgml : 19941220 ACCESSION NUMBER: 0000071297-94-000057 CONFORMED SUBMISSION TYPE: POS AMC PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19941219 SROS: BSE SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW ENGLAND ELECTRIC SYSTEM CENTRAL INDEX KEY: 0000071297 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 041663060 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AMC SEC ACT: 1935 Act SEC FILE NUMBER: 070-07753 FILM NUMBER: 94565303 BUSINESS ADDRESS: STREET 1: 25 RESEARCH DR CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5083669011 POS AMC 1 File No. 70-7753 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST-EFFECTIVE AMENDMENT NO. 2 TO FORM U-1 APPLICATION/DECLARATION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 NEW ENGLAND ELECTRIC SYSTEM (Name of company filing this statement) 25 Research Drive, Westborough, Massachusetts 01582 (Address of principal executive offices) NEW ENGLAND ELECTRIC SYSTEM (Name of top registered holding company parent in system) Michael E. Jesanis Robert King Wulff Treasurer Corporation Counsel 25 Research Drive 25 Research Drive Westborough, MA 01582 Westborough, MA 01582 (Names and addresses of agents for service) On October 12, 1994, New England Electric System (NEES or the Company) filed Post-Effective Amendment No. 1 to the Application/Declaration filed on May 17, 1990, HCAR No. 25128 (File No. 70-7753) whereby NEES proposed to extend the period for issuing 922,816 authorized but unissued common shares pursuant to the NEES Companies Incentive Thrift Plan II (the Plan) through December 31, 1997. In furtherance of that proposal, the Company's Application/Declaration in this file, as previously amended, is hereby further amended as follows: Item 6. Exhibits and Financial Statements: G-1 The Estimated Plan Expenses is amended to reflect the $2,000 filing fee associated with the Company's request for an extension to the period for issuing NEES common shares pursuant to the Plan. F By supplying an Opinion of Counsel regarding the proposed transaction (filed herewith). SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned Company has duly caused this Post-Effective Amendment No. 2 to be signed on its behalf, as indicated, by the undersigned officer thereunto duly authorized. NEW ENGLAND ELECTRIC SYSTEM s/Frederic E. Greenman Frederic E. Greenman Senior Vice President, Secretary and General Counsel Date: December 19, 1994 The name "New England Electric System" means the trustee or trustees for the time being (as trustee or trustees but not personally) under an agreement and declaration of trust dated January 2, 1926, as amended, which is hereby referred to, and a copy of which as amended has been filed with the Secretary of the Commonwealth of Massachusetts. Any agreement, obligation or liability made, entered into or incurred by or on behalf of New England Electric System binds only its trust estate, and no shareholder, director, trustee, officer or agent thereof assumes or shall be held to any liability therefor. EX-99 2 EXHIBIT INDEX Exhibit No. Description Page - ----------- ----------- ---- F Opinion of Counsel Filed herewith EX-5 3 Exhibit F 25 RESEARCH DRIVE, WESTBOROUGH, MASSACHUSETTS 01582 --------------------------------------------------- December 19, 1994 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: New England Electric System Issue and Sale of Common Shares Pursuant to New England Electric System Companies Incentive Thrift Plan II File No. 70-7753 ------------------------------------------------------- Dear Commissioners: The undersigned, Corporation Counsel and Assistant General Counsel for New England Electric System (the Company), have been of counsel for the Company in connection with its proposed issue of up to 922,816 common shares in accordance with and pursuant to the Company's Incentive Thrift Plan II (the Plan) through December 31, 1997. As such counsel, we have reviewed the various documents and proceedings relating to said issue, including, without limiting the foregoing, the prospectus and registration statement and the corporate and regulatory authority with reference to said issue. Accordingly, we are familiar with the proceedings taken in connection with such issue. The proposed transaction is subject to (1) compliance with the applicable provisions of the Public Utility Holding Company Act of 1935, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations under each, and (2) due issuance of the shares and receipt of full payment therefor. Subject to the foregoing, it is our opinion that in the event that the proposed transaction is consummated in accordance with the statement on Form U-1 as amended: 1. All state laws applicable to the proposed transaction will have been complied with. 2. The Company is a duly created and existing voluntary association in The Commonwealth of Massachusetts. The authorized shares of the Company consists of 150,000,000 shares of the par value of $1 each. -2- 3. When duly issued and paid for, the authorized common shares will be, validly issued, full-paid and nonassessable, and the holders thereof will be entitled to the rights and privileges appertaining thereto set forth in the Agreement and Declaration of Trust dated January 2, 1926, as amended (the Agreement). Article 9 of the Agreement provides in substance that no shareholder, director, officer, or agent shall be held to any liability in contract, tort or otherwise; that every person shall look only to the trust estate for payment or damages or otherwise, and that in every written agreement or obligation reference shall be made to the Agreement and to the substance of such part of the above provisions of Article 9 as are applicable, and that neither the Board of Directors nor the Trustee nor any officer, agent or representative shall have any power or authority to enter into any agreement or obligation on behalf of the Company except in accordance with the provisions of said Article 9. Article 10 of the Agreement provides that no trustee, director, officer, or agent of the Company shall be entitled to look to the shareholders personally for indemnity against liability incurred by them or to call upon the shareholders for the payment of any assessment except only in the case of shares which by their express terms are issued part-paid and assessable and then only as therein provided. In Article 27 of the Agreement it is further provided that all shares issued and to be issued shall be full-paid and nonassessable except to the extent otherwise specifically provided in the certificates representing such shares. The Agreement expressly declares in Article 39 that a trust and not a partnership is deemed to be created and that the shareholders shall be deemed to hold only the relationship of cestuis que trustent to the Trustee. Despite these provisions, the shareholders of a voluntary association such as the Company might, with respect to the liability of shareholders under Massachusetts law, be treated in legal contemplation as partners and as such under some circumstances might be held personally liable for certain obligations or liabilities of the Company. We consider the possibility of any such liability remote because, in our opinion, shareholders are protected under the laws of Massachusetts from personal liability on contract obligations arising from instruments containing the substance of such said provisions of Article 9 as are applicable (it being the practice of the Company to insert such in all contract obligations, including all debt securities), and because the Company is a holding company so that the possibility of substantial liabilities arising from torts or statutory liabilities or penalties, other than tax liabilities, is not as great as in the case of companies operating physical properties. Notwithstanding the fact that the Company is a holding company, in suits and claims against its subsidiaries, including environmental claims, courts and agencies might disregard corporate formalities and assign liability to the Company despite traditional principles of corporate law. Further, we understand -3- that unincorporated voluntary associations have been treated as general partnerships under the laws of a few states, including Texas in which the Company's oil and gas subsidiary has qualified to do business as a foreign corporation. Even so, for the reasons cited above and because of the substantial capitalization of the Company and its subsidiaries, we consider the possibility of personal liability of the shareholders of the Company to be remote. 4. Consummation of the proposed transaction will not violate the legal rights of the holders of any securities issued by the Company or any associate company thereof. This opinion does not relate to qualification or registration of shares under securities or "blue sky" laws of the several states, or to the Federal income tax consequences of participation in the Plan. We hereby give our consent to the use of this opinion as a part of the statement on Form U-1, as amended, filed by the Company with the Securities and Exchange Commission. Very truly yours, s/Kirk L. Ramsauer Kirk L. Ramsauer Assistant General Counsel s/Robert King wulff Robert King Wulff Corporation Counsel -----END PRIVACY-ENHANCED MESSAGE-----