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Massachusetts
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4911
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04-2147929
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(State or Other Jurisdiction of
Incorporation or Organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification Number) |
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Copies to:
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Marko S. Zatylny
Ropes & Gray LLP 800 Boylston Street Boston, Massachusetts 02199 (617) 951-7000 |
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J.J. Cranmore
Cranmore, FitzGerald & Meaney 1010 Wethersfield Avenue, Suite 206 Hartford, CT 06114 (860) 522-9100 |
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| ☒ Large accelerated filer | | | ☐ Accelerated filer | |
| ☐ Non-accelerated filer | | | ☐ Smaller reporting company | |
| ☐ Emerging growth company | | |
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Title of each class of securities to be registered
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Amount to be
registered(1) |
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Proposed maximum
Offering price per share |
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Proposed maximum
aggregate offering price(2) |
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Amount of
registration fee(3)(4) |
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Common shares, $5.00 par value per share
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462,575
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| | | | | N/A | | | | | | $ | 34,100,518.75 | | | | | |
$
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3,720.37
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| | | | | A-1 | | |
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As of and for the
Three Months Ended March 31, 2021 |
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As of and for the
Year Ended December 31, 2020 |
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Eversource historical data: | | | | | | | | | | | | | |
Net income attributable to common shareholders per basic share
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| | | $ | 1.07 | | | | | $ | 3.56 | | |
Net income attributable to common shareholders per diluted share
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| | | $ | 1.06 | | | | | $ | 3.55 | | |
Book value per common share (end of year)
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| | | $ | 41.44 | | | | | $ | 41.01 | | |
NESC historical data: | | | | | | | | | | | | | |
Net (loss)/income per basic share (per weighted average shares)
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| | | $ | (0.07) | | | | | $ | 1.03 | | |
Book value per share (per weighted average shares) (end of year)
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| | | $ | 18.40 | | | | | $ | 18.60 | | |
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Eversource Common
Shares |
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NESC
Common Stock |
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High
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Low
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High
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Low
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Calendar quarters: | | | | | | | | | | | | | | | | | | | | | | | | | |
2019 | | | | | | | | | | | | | | | | | | | | | | | | | |
First quarter
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| | | $ | 72.26 | | | | | $ | 63.10 | | | | | $ | 23.00 | | | | | $ | 20.50 | | |
Second quarter
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| | | $ | 77.87 | | | | | $ | 68.38 | | | | | $ | 22.50 | | | | | $ | 17.00 | | |
Third quarter
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| | | $ | 85.62 | | | | | $ | 74.77 | | | | | $ | 24.00 | | | | | $ | 21.18 | | |
Fourth quarter
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| | | $ | 86.55 | | | | | $ | 78.58 | | | | | $ | 24.00 | | | | | $ | 22.25 | | |
2020 | | | | | | | | | | | | | | | | | | | | | | | | | |
First quarter
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| | | $ | 99.42 | | | | | $ | 60.69 | | | | | $ | 24.05 | | | | | $ | 23.31 | | |
Second quarter
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| | | $ | 93.50 | | | | | $ | 73.61 | | | | | $ | 23.75 | | | | | $ | 23.10 | | |
Third quarter
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| | | $ | 91.96 | | | | | $ | 77.00 | | | | | $ | 23.00 | | | | | $ | 21.81 | | |
Fourth quarter
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| | | $ | 96.66 | | | | | $ | 82.17 | | | | | $ | 22.50 | | | | | $ | 21.80 | | |
2021 | | | | | | | | | | | | | | | | | | | | | | | | | |
First quarter
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| | | $ | 92.21 | | | | | $ | 76.64 | | | | | $ | 23.00 | | | | | $ | 21.5 | | |
April 1, 2021 to June 16, 2021
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| | | $ | 91.20 | | | | | $ | 79.79 | | | | | $ | 42.50 | | | | | $ | 23.00 | | |
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Company Guideline Companies
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EV/
Customers |
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EV/
Revenue |
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Price/
EBITDA |
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Price/
Earnings |
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Price/
Book |
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Minimum
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| | | $ | 4,170 | | | | | | 4.42x | | | | | | 12.54x | | | | | | 22.21x | | | | | | 1.98x | | |
Median
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| | | $ | 7,239 | | | | | | 5.31x | | | | | | 13.87x | | | | | | 28.63x | | | | | | 2.41x | | |
Maximum
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| | | $ | 9,596 | | | | | | 6.34x | | | | | | 17.79x | | | | | | 30.66x | | | | | | 3.29x | | |
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Range of Implied
Equity Values Per Share |
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Range of Implied
Equity Values Per Share |
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Low
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High
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Low
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High
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EV/Customers
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| | | $ | 35.72 | | | | | $ | 94.47 | | | | Price/Earnings | | | | $ | 27.52 | | | | | $ | 37.98 | | |
EV/Revenue
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| | | $ | 29.36 | | | | | $ | 46.15 | | | | Price/Book | | | | $ | 37.09 | | | | | $ | 61.77 | | |
EV/EBITDA
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| | | $ | 29.12 | | | | | $ | 45.23 | | | | | | | | | | | | | | | | | |
| Dominion Energy, Inc. | | |
Consolidated Edison, Inc.
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| | CMS Energy Corporation | |
| American Electric Power Company, Inc. | | | PG&E Corporation | | | Alliant Energy Corporation | |
| Sempra Energy | | | Edison International | | | CenterPoint Energy, Inc. | |
| Xcel Energy Inc. | | | PPL Corporation | | | NiSource Inc. | |
| Public Service Enterprise Group Incorporated | | | FirstEnergy Corp. | | | Pinnacle West Capital Corporation | |
| WEC Energy Group, Inc. | | | Ameren Corporation | | | | |
| DTE Energy Company | | | Entergy Corporation | | | | |
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Eversource Guideline Companies
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EV/
Revenue |
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EV/
EBITDA |
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Price/
Earnings |
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Price/
‘21 Earnings |
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Price/
Book |
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1st Quartile
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| | | | 4.02x | | | | | | 11.26x | | | | | | 18.42x | | | | | | 16.53x | | | | | | 1.77x | | |
Median
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| | | | 4.99x | | | | | | 12.79x | | | | | | 21.20x | | | | | | 17.81x | | | | | | 2.09x | | |
3rd Quartile
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| | | | 5.96x | | | | | | 13.62x | | | | | | 23.52x | | | | | | 20.42x | | | | | | 2.45x | | |
Acquirer Company
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Company Acquired
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Date Announced
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Essential Utilities | | | East Whiteland Twp | | |
1/13/2021
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American Water Works Co. | | | Brentwood Borough Wastewater | | |
12/8/2020
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Liberty Utilities Co. | | |
Bolviar, MO Water and Sewer Systems
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8/20/2020
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American Water | | | Jerseyville, IL | | |
12/19/2019
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American Water | | | Valley Township | | |
12/18/2019
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American Water Works Co. | | | Hillview Water Company | | |
8/5/2019
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Essential Utilities | | | City of Campbell Water System | | |
8/5/2019
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Essential Utilities | | | East Norriton Township | | |
11/5/2018
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Essential Utilities | | | Cheltenham Township WW System | | |
7/2/2018
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American Water Works Co. | | | Exeter Township WW System | | |
5/30/2018
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Suez North America | | | Township of Mahoning System | | |
10/16/2017
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American Water Works Co. | | | Fruitridge Vista Water Company | | |
4/27/2017
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Connecticut Water Services | | | The Avon Water Company | | |
4/12/2017
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American Water Works Co. | | | Shorelands Water Co. Inc. | | |
8/3/2016
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Guideline Transactions
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EV/Customers
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EV/Revenue
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EV/EBITDA
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1st Quartile
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| | | $ | 4,263 | | | | | | 5.28x | | | | | | 12.47x | | |
Median
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| | | $ | 4,780 | | | | | | 5.87x | | | | | | 16.50x | | |
3rd Quartile
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| | | $ | 6,373 | | | | | | 7.85x | | | | | | 19.88x | | |
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Range of Implied
Equity Values Per Share |
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Low
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High
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EV/Customers
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$36.73
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| | | $ | 59.58 | | |
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Range of Implied
Equity Values Per Share |
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Low
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High
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EV/Revenue
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$36.82
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| | | $ | 59.35 | | |
EV/EBITDA
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$28.88
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| | | $ | 51.66 | | |
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Company
Stock Price |
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Equity Values Per Share
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Low
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High
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All Deals One Day Prior
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| | | $ | 23.00 | | | | | $ | 28.16 | | | | | $ | 38.27 | | |
All Utilities One Day Prior
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| | | $ | 23.00 | | | | | $ | 25.29 | | | | | $ | 34.60 | | |
Water Utilities One Day Prior
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| | | $ | 23.00 | | | | | $ | 27.34 | | | | | $ | 35.79 | | |
All Deals One Month Prior
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| | | $ | 23.00 | | | | | $ | 29.07 | | | | | $ | 38.88 | | |
All Utilities One Month Prior
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| | | $ | 23.00 | | | | | $ | 28.99 | | | | | $ | 37.65 | | |
Water Utilities One Month Prior
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| | | $ | 23.00 | | | | | $ | 28.03 | | | | | $ | 41.75 | | |
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Year Ended December 31,
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2021
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2022
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2023
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2024
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2025
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Earnings per share
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| | | $ | 1.34 | | | | | $ | 1.46 | | | | | $ | 1.58 | | | | | $ | 1.72 | | | | | $ | 1.86 | | |
Dividends per share
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| | | $ | 0.76 | | | | | $ | 0.78 | | | | | $ | 0.80 | | | | | $ | 0.82 | | | | | $ | 0.84 | | |
Name of Beneficial Owner
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Amount and
Nature of Beneficial Ownership |
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Percentage
of Shares Outstanding(1) |
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Donald Vaughan(2)
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| | | | 189,989 | | | | | | 21.03% | | |
Name of Beneficial Owner
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Amount and
Nature of Beneficial Ownership |
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Percent of
Class (%)(1) |
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Pauline Ahern
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| | | | 640 | | | | | | * | | |
Stephen Densberger
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| | | | 1,830 | | | | | | * | | |
William Galske, III
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| | | | 1,475 | | | | | | * | | |
Bonalyn Hartley
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| | | | 322 | | | | | | * | | |
Nicholas LaChance(2)
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| | | | 3,993 | | | | | | * | | |
Donald Vaughan
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| | | | 189,989 | | | | | | 21.03% | | |
Judith Wotton
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| | | | 505 | | | | | | * | | |
Robert Gallo
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| | | | 315 | | | | | | * | | |
Sheryl Fairchild
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| | | | 1,112 | | | | | | * | | |
Ryan Caouette
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| | | | 37 | | | | | | * | | |
All Directors, and Executive Officers as a group
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| | | | 200,218 | | | | | | 22.16% | | |
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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Authorized Capital Stock; Authority to Issue Capital Stock
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| | The authorized capital stock of NESC consists of 3,000,000 shares of common stock, no par value per share. As of the record date, there were 903,354 shares of NESC common stock outstanding. | | |
The authorized capital stock of Eversource consists of 380,000,000 common shares, $5.00 par value. As of April 30, 2021, there were 343,466,162 Eversource common shares outstanding.
The trustees are authorized to issue common shares pursuant to an affirmative vote of at least a majority in interest of all shares previously issued and then outstanding of such class or classes that have general voting power. The trustees may issue preferred shares only when authorized by the affirmative vote of at least two-thirds shares having general voting power and also by such vote or consent of each class of preferred shares previously issued and then outstanding as may be required by the rights each of such class as determined by the issue of such shares.
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Voting Generally; Number of Trustees and Size of Board; Terms of Trustees
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Each share of NESC common stock is entitled to one vote in the election of directors and other matters. Stockholders are not entitled to cumulative voting rights.
The number of directors will not
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Each common share is entitled to one vote in the election of trustees and other matters. Common shareholders are not entitled to cumulative voting rights.
The number of trustees for each
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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be less than three or more than nine, and directors are elected by a plurality of the votes cast at a meeting at which there is a quorum of not less than a majority of shares outstanding and entitled to vote. Directors are elected to serve for staggered three-year terms.
The NESC board of directors currently consists of seven directors.
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ensuing year is determined by a vote of at least a majority of the number of shares outstanding that have voting powers. If no number of trustees is determined at any annual meeting, the number is the same as for the preceding year. Members of the board of trustees serve one-year terms and are elected annually.
The number of trustees is set at fourteen. Eversource’s board currently consists of twelve trustees.
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Vacancies
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| | Vacancies on the board of directors other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directorships may be filled by majority vote of the remaining directors for the unexpired term of the vacancy which is being filled. | | | Under the Declaration of Trust, vacancies are filled by the affirmative vote of trustees present and voting at any meeting for which there is a quorum of a majority of the full board of trustees. | |
Votes on Mergers, Consolidations, Sales or Leases of Trust Assets and Certain Other Transactions
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| | Pursuant to Connecticut law, the merger must be approved by a majority vote of the board of directors and by the affirmative vote of holders of not less than two-thirds of all of the shares of company common stock outstanding and entitled to vote. | | |
The trust may be terminated at any time by the affirmative vote of at least two-thirds of the trustees and the approval by either the affirmative vote or consent in writing of holders of at least two-thirds of all shares previously issued and then outstanding of such class or classes as then have the general voting power.
No mortgage, pledge or charge of the whole or substantially whole trust estate will be created unless authorized by a vote of at least two-thirds of all the shares then outstanding of such class or classes as then have general voting power, provided, however, that no such authorization will be required to secure bonds or obligations issued to refund any secured bonds or obligations.
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Amendments to Declarations of Trust
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| | The certificate of incorporation of NESC may be amended by the affirmative vote of a majority of | | | The Declaration of Trust may be altered, amended, added to or rescinded at any time by the | |
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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| | | the board of directors and by the affirmative vote of a majority of all of the shares of NESC common stock outstanding and entitled to vote. | | |
affirmative vote of at least two-thirds of the members of the board of trustees and will become effective upon the approval of at least two-thirds affirmative vote of all shares issued and then outstanding and having general voting power.
No alteration, amendment, addition or rescission adversely affecting the preferences or priorities of any preferred shares will be effective without the affirmative vote or written consent of the holders of at least two-thirds of the affected preferred shares.
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Indemnification of Trustees and Officers
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| | The certificate of incorporation and bylaws of NESC provide that in addition to the indemnification required by law, NESC will indemnify its current and former officers and directors to the fullest extent permitted by law. | | |
The Declaration of Trust provides that Eversource will indemnify each of its present and former trustees and officers against any loss, liability or expense incurred in proceedings in which such person may be involved by reason of being or having been a trustee or officer, except with respect to any matter as to which such person will have been finally adjudicated in such proceeding not to have acted in good faith in the reasonable belief that such person’s action was in Eversource’s best interests.
If any such proceeding is disposed of by a compromise payment by any such trustee or officer, no indemnification payment will be provided unless a determination is made that such trustee or officer acted in good faith in the reasonable belief that such person’s action was in Eversource’s best interests. Such determination must be made by either the board of trustees by majority vote of the quorum consisting of trustees who were not parties to such proceeding, by Eversource’s independent legal counsel in a written opinion, or by the shareholders.
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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Limitation on Personal Liability of Trustees
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| | NESC’s certificate of incorporation provides for the limitation of directors’ personal liability to the fullest extent permissible under Connecticut law for monetary damages for breach of fiduciary duty as a director provided such breach did not: (i) involve a knowing and culpable violation of law by the director; (ii) enable the director or an associate to receive an improper personal economic gain; (iii) show a lack of good faith and a conscious disregard for the duty of the director to the corporation under circumstances in which the director was aware that his or her conduct or omission created an unjustifiable risk of serious injury to the corporation; (iv) constitute a sustained and unexcused pattern of inattention that amounted to an abdication of the director’s duty to the corporation; or (v) create liability for unlawful distributions. | | | The Declaration of Trust provides that no member of the board of trustees will be liable to Eversource or Eversource shareholders for monetary damages due to any breach of fiduciary duty, except for: (i) breaches of such person’s duty of loyalty to Eversource or Eversource shareholders; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) any transaction from which such person derived an improper personal benefit. | |
Preemptive Rights
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| | NESC stockholders do not have preemptive rights. Accordingly, no stockholder will be entitled as a matter of right to subscribe for, purchase or receive any shares of stock of NESC or any obligation convertible into or warrant or other instrument entitling the holder to purchase any stock of NESC which NESC may issue or sell. | | |
Upon the offering or sale by the trustees for cash of any common shares or convertible securities each holder of common shares has the right to purchase such shares or convertible securities in proportion to the number of common shares held by him or her, within the time and on the terms fixed by the trustees. Such preemptive rights do not apply with respect to:
(i) the issue of common shares, or the grant of rights or options on such shares, to trustees, directors, officers, or employees of Eversource or its subsidiaries, if such issue or grant is approved by the holders of common shares at a meeting duly held for the purpose or is authorized by and consistent with a plan approved by shareholders;
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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(ii) common shares and convertible securities issued in satisfaction of their preemptive rights and not for purchase;
(iii) common shares and convertible securities issued pursuant to a plan adjusting any rights to fractional shares or fractional interests in order to prevent the issue of such fractional shares or fractional interests in such shares;
(iv) common shares and convertible securities issued in connection with a merger or consolidation, or pursuant to an order of a court of competent jurisdiction, unless such order otherwise provides;
(v) common shares and convertible securities issued in a public offering or to or through underwriters who will have agreed to make a public offering of such common shares or convertible securities;
(vi) common shares and convertible securities released from such preemptive rights by the affirmative vote of at least two-thirds of the common shares then outstanding; or
(vii) common shares or convertible securities held in Eversource’s treasury.
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Calling Special Meetings of Shareholders
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| | The bylaws of NESC provide that special meeting of stockholders may be called at any time by the chairman of the board, the president or by vote of a majority of the board of directors or by stockholders owning at least 10% of the stock entitled to vote (or 35% of the stock entitled to vote, if the corporation then has a class of securities registered pursuant to the Exchange Act). NESC does not have a class of securities registered pursuant to the Exchange Act. | | | Eversource’s Declaration of Trust provides that special meetings of Eversource’s shareholders may be ordered by the chairman of the board, the president, or a majority of the board of trustees, or may requested by the holders of one-tenth interest of all the shares outstanding of any class or classes having the right to vote. | |
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Rights of NESC Stockholders
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Rights of Eversource Shareholders
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Notice of Shareholder Meetings
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| | A notice of any stockholder’s meetings should state the purpose for which the meeting is called and will be served personally or by mail not less than seven or more than 50 days before the date set for such meeting. | | |
Notice of each meeting, whether annual or special, specifying the time, place and purposes of the meeting, will be given to all shareholders entitled to vote at least seven days in advance of the meeting.
Notice may be delivered by mail, fax, e-mail, post on a message board accompanied by an email notice of the posting or by any other form of electronic transmission directed to the shareholder in a manner specified by the shareholder.
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Business Combinations with Interested Parties
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| | A Connecticut corporation, such as NESC, that does not have a class of securities registered pursuant to the Exchange Act, is exempt from the provision of the Connecticut General Statutes Section 33-844 that would otherwise preclude business combinations between an interested stockholder and the corporation for five years following the date such stockholder became a 10% stockholder of the corporation absent approval by a majority of both the whole board and a majority of non-employee directors and uninterested stockholders. | | |
Chapter 110F of the Massachusetts General Laws prohibits any business combination with an interested shareholder, generally a person who owns or has recently owned at least 5% of the company’s outstanding voting shares, for three years after the person becomes an interested shareholder unless (i) prior to the 5% purchase, the board of trustees approves either the 5% purchase or the proposed business combination; (ii) the interested shareholder owned approximately 90% of the company’s voting shares (excluding shares held by certain affiliates of the company) after making the 5% purchase which rendered him or her an interested shareholder; or (iii) the board of trustees and holders of two-thirds of the non-interested shares approve the business combination after the acquiror has become an interested shareholder.
The Eversource Declaration of Trust does not address anti-takeover regulations or protections.
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|
Control Share Acquisitions
|
| | A Connecticut corporation, such as NESC, that does not have a class of securities registered | | | Chapter 110D of the Massachusetts General Laws regulates the acquisition of | |
| | |
Rights of NESC Stockholders
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| |
Rights of Eversource Shareholders
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|
| | | pursuant to the Exchange Act, is exempt from the provision of the Connecticut General Statutes Section 33-844 that would otherwise preclude business combinations between an interested stockholder and the corporation for five years following the date such stockholder became a 10% stockholder of the corporation absent approval by a majority of both the whole board and a majority of non-employee directors and uninterested stockholders. | | |
control shares. A control share acquisition occurs when an individual aggregates a number of shares which, when added to shares already owned, would allow the acquiring person to vote at least 20% of the company’s shares. Under Chapter 110D, shares acquired in this type of a transaction would have no voting rights unless a majority of non-interested shareholders specifically voted to grant the acquiring person voting rights for these shares. In general, the acquiring person as well as Eversource’s officers and employee-trustees are not permitted to vote on whether these voting rights should be granted.
The Eversource Declaration of Trust does not address anti-takeover regulations or protections.
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|
Stockholder Proposals and Nominations of Candidates for Election to the Board of Directors
|
| | Stockholders of NESC may submit proposals and nominate candidates for election to the board of directors so long as stockholders follow advance notice procedures described in the proxy statement related to that particular meeting. | | |
Eversource shareholders may submit shareholder proposals and nominate candidates for the board of trustees if the shareholders follow advance notice procedures described in the Eversource annual proxy statement.
Eversource’s Declaration of Trust also provides for proxy access.
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|
Stockholder Action by Written Consent
|
| | Connecticut General Statutes Section 33-698 provides that action to be taken at a stockholders’ meeting may be taken without a meeting if the action is taken by all stockholders entitle to vote on the action. The action must be evidenced by one or more written consents bearing the date of signature and describing the action taken, signed by all the stockholders entitled to vote on the action and delivered to the corporation for inclusion in the minutes or filing with the corporate records. | | | The Eversource Declaration of Trust does not provide for shareholder action by unanimous written consent. | |
| | |
Rights of NESC Stockholders
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| |
Rights of Eversource Shareholders
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|
Dividend Policy
|
| | Subject to the provisions of law and the certificate of incorporation, the board of directors have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends will be declared in dividends and paid to the stockholders of NESC. The board of directors may fix a sum which may be set aside or reserved over and above the paid-in capital of NESC for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary such fund in the Board’s absolute judgement and discretion. In no case will the dividends paid exceed the net income earned of the same fiscal year. | | | Common shareholders may receive dividends if and when declared by the board of trustees. No shareholders of any class are entitled to receive or be paid any dividends from the trust except as determined by the trustees. Dividends may be paid in cash, shares or other form. | |
Forum Selection
|
| | NESC’s certificate of incorporation does not contain a forum selection provision. | | | Eversource’s Declaration of Trust does not contain a forum selection provision. | |
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EXHIBITS | | | |||||
Exhibit A – Form of Certificate of Incorporation of the Surviving Corporation | | | |||||
Exhibit B – Form of Bylaws of the Surviving Corporation | | | |||||
Exhibit C – Form of Voting Agreement | | | |||||
SCHEDULES | | | |||||
Company Disclosure Schedules
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| |
| AQUARION COMPANY | | | | | |||
| By: | | |
/s/ Donald J. Morrissey
|
| | | |
| Name: | | | Donald J. Morrissey | | | | |
| Title: | | | President | | | | |
| NEW ENGLAND SERVICE COMPANY | | | | | |||
| By: | | |
/s/ Nicholas LaChance
|
| | | |
| Name: | | | Nicholas LaChance | | | | |
| Title: | | | President | | | | |
| AQUARION MERGER COMPANY, LLC | | | | | |||
| By: | | |
/s/ Donald J. Morrissey
|
| | ||
| Name: | | | Donald J. Morrissey | | | ||
| Title: | | | President | | | | |
| | | | | A-58 | | | |
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| | | | | A-59 | | | |
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| AQUARION COMPANY | | | ||
|
By:
|
| | | |
|
Name:
|
| | | |
|
Title:
|
| | | |
| STOCKHOLDER | | | | |
|
By:
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| Name: | | |
By: |
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Title: |
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By: |
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Name: |
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By: |
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Exhibit
Number |
| |
Description
|
|
|
2.1*
|
| | | |
|
5.1*
|
| | | |
|
8.1
|
| | | |
|
8.2
|
| | | |
|
23.1*
|
| | | |
|
23.2*
|
| | | |
|
24.1*
|
| | | |
|
99.1*
|
| | | |
|
99.2
|
| | |
| EVERSOURCE ENERGY | | |||
| By: | | |
/s/ Philip J. Lembo
|
|
| | | |
Name:
Philip J. Lembo
|
|
| | | |
Title:
Executive Vice President and Chief Financial Officer
|
|
|
Signature
|
| |
Title
|
| |
Date
|
|
|
*
Joseph R. Nolan, Jr
|
| | President and Chief Executive Officer and a Trustee (Principal Executive Officer) | | | June 16, 2021 | |
|
/s/ Philip J. Lembo
Philip J. Lembo
|
| | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | | | June 16, 2021 | |
|
/s/ Jay S. Buth
Jay S. Buth
|
| | Vice President, Controller and Chief Accounting Officer | | | June 16, 2021 | |
|
*
James J. Judge
|
| | Executive Chairman of the Board and Trustee | | | June 16, 2021 | |
|
*
Cotton M. Cleveland
|
| | Trustee | | | June 16, 2021 | |
|
*
James S. DiStasio
|
| | Trustee | | | June 16, 2021 | |
|
*
Francis A. Doyle
|
| | Trustee | | | June 16, 2021 | |
|
*
Linda Dorcena Forry
|
| | Trustee | | | June 16, 2021 | |
|
*
Gregory M. Jones
|
| | Trustee | | | June 16, 2021 | |
|
*
John Y. Kim
|
| | Trustee | | | June 16, 2021 | |
|
Signature
|
| |
Title
|
| |
Date
|
|
|
*
Kenneth R. Leibler
|
| | Trustee | | | June 16, 2021 | |
|
*
David H. Long
|
| | Trustee | | | June 16, 2021 | |
|
*
William C. Van Faasen
|
| | Trustee | | | June 16, 2021 | |
|
*
Frederica M. Williams
|
| | Trustee | | | June 16, 2021 | |
|
*By
/s/ Jay S. Buth
Jay S. Buth
As Attorney-in-fact |
| | | | | | |
Exhibit 8.1
![]() |
ROPES & GRAY LLP PRUDENTIAL TOWER 800 BOYLSTON STREET BOSTON, MA 02199-3600 WWW.ROPESGRAY.COM |
June 16, 2021 |
Eversource Energy
300 Cadwell Drive
Springfield, Massachusetts 01104
Ladies and Gentlemen:
We have acted as counsel to Eversource Energy, a Massachusetts voluntary association (“Eversource”) and Aquarion Company, a Connecticut corporation and direct wholly owned subsidiary of Eversource (“Aquarion”), in connection with the Merger, as defined in the Agreement and Plan of Merger (the “Agreement”), dated as of April 7, 2021, by and among Aquarion, New England Service Company, a Connecticut corporation (the “Company”), and Aquarion Merger Company, LLC, a Connecticut limited liability company and direct wholly owned subsidiary of Aquarion (“Merger Sub”). Unless otherwise indicated, capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Agreement.
In rendering our opinion set forth below, we have examined and relied upon the accuracy and completeness of the facts, information, representations, covenants and agreements contained in originals or copies, certified or otherwise identified to our satisfaction, of the Agreement, Registration Statement No. 333-256783, filed with the Securities and Exchange Commission on Form S-4, as amended through the date hereof (the “Registration Statement”), which includes the proxy statement of the Company and the prospectus of Eversource, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below. In addition, we have relied upon the accuracy and completeness of certain statements, representations, covenants and agreements made by Company, Eversource, Aquarion, and Merger Sub, including factual statements and representations set forth in letters dated the date hereof from officers of Company, Eversource and Aquarion (the “Representation Letters”). We have assumed that all statements in such Representation Letters made “to the best of the knowledge of” or “to the knowledge of” any person or entity, or otherwise qualified, are true, correct and complete as if made without such qualification. Our opinion assumes and is expressly conditioned on, among other things, the initial and continuing accuracy and completeness of the facts, information, representations, covenants and agreements set forth in the documents referred to above and the statements, representations, covenants and agreements made by Company, Eversource and Aquarion, including those set forth in the Representation Letters and that there will be no change in facts or circumstances prior to the Effective Time and that the representations set forth in the Representation Letters will be true and accurate as of the Effective Time.
Eversource Energy |
||
- 2 - |
June 16, 2021 |
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such documents. We also have assumed that the Merger will be consummated in accordance with the Agreement and as described in the Registration Statement, and that none of the terms or conditions contained therein will have been waived or modified in any respect prior to the Effective Time. We have not, however, undertaken any independent investigation of any factual matter set forth in any of the foregoing.
In rendering our opinion, we have considered applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury regulations promulgated thereunder (the “Regulations”), pertinent judicial decisions, administrative interpretations, and such other authorities as we have considered relevant, in each case, in effect on the date hereof. It should be noted that the Code, the Regulations, such judicial decisions, such administrative interpretations, and such other authorities are subject to change at any time and, in some circumstances, with retroactive effect. A change in any of the authorities upon which our opinion is based, or any variation or difference in any fact from those set forth or assumed herein or in the Registration Statement, the Agreement or the Representation Letters, could affect our conclusions herein. Moreover, there can be no assurance that our opinion will be accepted by the Internal Revenue Service or, if challenged, by a court.
Based solely on the information, and subject to the assumptions, qualifications and limitations, stated herein and in the Registration Statement, the statements under the caption “Material U.S. Federal Income Tax Consequences” in the Registration Statement constitute our opinion as to the material United States federal income tax consequences of the Merger.
No opinion is expressed as to any matter not specifically addressed above, including the tax consequences of any of the transactions under any other federal, state, local, or foreign tax law or the tax consequences of any other transaction contemplated or entered into by Company, Eversource, Aquarion, or Merger Sub. We do not undertake to advise you as to any changes in federal income tax law after the date hereof that may affect our opinion.
Eversource Energy |
||
- 3 - |
June 16, 2021 |
We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement and to the use of our name in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours, | |
/s/ Ropes & Gray LLP | |
Ropes & Gray LLP |
Exhibit 8.2
June 16, 2021
New England Service Company
37 Northwest Drive
Plainville, CT 06062
Re: Tax Opinion/Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-4, as amended (No. 333-256783) (the “Registration Statement”) filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”) by Eversource Energy (“Eversource”). The said Registration Statement relates to the Agreement and Plan of Merger, dated as of April 7, 2021 (the “Merger Agreement”) by and among Aquarion Merger Company, LLC (“Aquarion MergerCo”), a Connecticut limited liability company and a direct wholly-owned subsidiary of Aquarion Company (“Aquarion”), a Connecticut corporation and direct wholly-owned subsidiary of Eversource, and New England Service Company, a Connecticut corporation (“NESC”). Pursuant to the Merger Agreement, Aquarion MergerCo will merge with and into NESC, with NESC being the surviving company and a wholly-owned subsidiary of Aquarion (the “Merger”). We have acted as counsel to NESC in connection with the Merger, and at your request, and in connection with the filing of the Registration Statement, we are rendering our opinion concerning certain federal income tax consequences of the Merger.
Subject to the qualifications and limitations set forth herein, and in reliance upon the representations and assumptions described herein, we are of the opinion that the Merger will be treated for United States federal income tax purposes as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and that the United States federal income tax consequences to the holders of NESC common stock will be as described in the Registration Statement under the heading, “Material U.S. Federal Income Tax Consequences”.
For purposes of rendering this opinion, we have examined and relied upon the accuracy and completeness of the facts, information, representations, covenants and agreements contained in originals or copies, certified or otherwise identified to our satisfaction, of the Agreement, Registration Statement No. 333-256783, filed with the Securities and Exchange Commission on Form S-4, as amended through the date hereof (the “Registration Statement”), which includes the proxy statement of NESC and the prospectus of Eversource, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below. In addition, we have relied upon the accuracy and completeness of certain statements, representations, covenants and agreements made by NESC, Eversource, Aquarion, and Aquarion MergerCo, including factual statements and representations set forth in letters dated the date hereof from officers of NESC, Eversource and Aquarion (the “Representation Letters”). We have assumed that all statements in such Representation Letters made “to the best of the knowledge of” or “to the knowledge of” any person or entity, or otherwise qualified, are true, correct and complete as if made without such qualification. Our opinion assumes and is expressly conditioned on, among other things, the initial and continuing accuracy and completeness of the facts, information, representations, covenants and agreements set forth in the documents referred to above and the statements, representations, covenants and agreements made by NESC, Eversource and Aquarion, including those set forth in the Representation Letters, and that there will be no change in facts or circumstances prior to the Effective Time and that the representations set forth in the Representation Letters will be true and accurate as of the Effective Time.
New England Service Company
June 16, 2021
Page 2
We have assumed that all parties to the Merger Agreement (and to any other documents relied upon by us) have acted in accordance with and have complied with, and, where applicable, will act in accordance with and will comply with the terms and covenants set forth in such documents. We have assumed that the Merger will be consummated at the Effective Time (as defined in the Merger Agreement) pursuant to the terms and conditions set forth in the Merger Agreement, without the waiver or modification of any such terms and conditions. We have assumed that all representations contained in the Merger Agreement and the Representation Letters are true, correct and complete and will be true, correct and complete in all material respects at all times up to and as of the Effective Time and thereafter, were relevant, and that any representation made in any of such documents “to the best of the knowledge and belief” of any party (or similar qualification) are correct without such qualification. We have also assumed that as to all matters for which a person or entity has represented that such person or entity is not a party to, does not have, or is not aware of, any plan, intention, understanding, or agreement, there is no such plan, intention, understanding, or agreement.
We have not attempted to verify independently any factual matter or representation made by NESC, Aquarion, Aquarion MergerCo or Eversource, but in the course of our representation of NESC, nothing has come to our attention that would cause us to question the accuracy thereof.
In rendering this opinion, we have assumed that Ropes & Gray, LLP has delivered to Eversource, and has not withdrawn, an opinion that is substantially similar to this one.
The conclusions expressed herein represent our best judgment as to the proper treatment of certain aspects of the Merger under the income tax laws of the United States based upon the Code, Treasury Regulations, case law, and the rulings, interpretations and guidance published by the Internal Revenue Service (“IRS”), as we consider relevant, in each case as in effect on the date of this opinion. No assurances can be given that such laws, rulings, interpretations and guidance will not be amended or otherwise changed after the date hereof, or that such changes will not affect the conclusions expressed herein. We undertake no responsibility to advise you of any developments after the date hereof in the application or interpretation of the income tax laws of the United States.
New England Service Company
June 16, 2021
Page 3
Our opinion represents our judgment as to how a court would decide the issues addressed herein, but our opinion is not binding upon either the IRS or any court. Thus, no assurance can be given that a position taken in reliance on our opinion will not be challenged by the IRS, or rejected by a court.
This opinion addresses only the specific United States federal income tax consequences of the Merger set forth above. This opinion does not address the effect of the Merger as to any non-income tax (such as estate, gift, transfer, sales and use taxes), nor does this opinion address the income tax consequences of the Merger as to any jurisdiction other than the United States (such as state, local and foreign income taxes). This opinion does not address any transaction other than the Merger. We express no opinion regarding the tax consequences of the Merger to those shareholders of NESC that are subject to special tax rules or who exercise their statutory rights of appraisal pursuant to Connecticut law.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the use of our name in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours, |
/s/ Cranmore, FitzGerald & Meaney |
CRANMORE, FITZGERALD & MEANEY |
Exhibit 99.2
NEW ENGLAND SERVICE COMPANY [TBD] VOTE BY INTERNET - www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D56240-S25801 KEEP THIS PORTION FOR YOUR RECORDS THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. DETACH AND RETURN THIS PORTION ONLY NEW ENGLAND SERVICE COMPANY THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSALS 1 AND 2. For Against Abstain 1. To adopt the Merger Agreement, by and among Aquarion Company (Aquarion), New England Service Company (NESC) and Aquarion Merger Company, LLC (Merger Sub), and approve the transactions contemplated thereby, including the merger, pursuant to which Aquarion will acquire NESC through a merger of Merger Sub with and into NESC and, following the merger, NESC will be a wholly-owned subsidiary of Aquarion. 2. To approve one or more adjournments, postponements or continuations of the Special Meeting, if necessary, to permit further solicitation of proxies in favor of adopting the Merger Agreement and approving the merger. Please sign exactly as your name(s) appears on your stock certificate. If held in joint tenancy, all persons should sign. Trustees, administrators, etc., should include title and authority. Corporations should provide full name of corporation and title of authorized officer signing the proxy. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date |
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting: The proxy material is available at www.proxyvote.com. D56241-S25801 Special Meeting of Stockholders New England Service Company to be held on August 3, 2021 for Holders as of June 15, 2021 This Proxy is Being Solicited on Behalf of the Board of Directors The undersigned stockholder(s) of New England Service Company ("NESC"), hereby appoint(s) Pauline Ahern and William Galske, III, and each of them, proxies and attorneys-in-fact, with full power of substitution, and authorize(s) each of them, to vote all the shares of Common Stock of NESC that the undersigned is/are entitled to vote at the Special Meeting of Stockholders of NESC and any adjournment, postponement or continuation thereof, upon the matters specified and confers authority upon such true and lawful attorneys to vote in their discretion on such other matters as may properly come before the Special Meeting or any adjournment, postponement or continuation thereof. This proxy revokes any proxy heretofore given with respect to the Special Meeting. THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO DIRECTION IS GIVEN, SHARES WILL BE VOTED FOR PROPOSALS 1 AND 2. (Continued and to be signed on reverse side) |
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