As filed with the Securities and Exchange Commission on October 23, 1995
Registration No. 33-59383
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Green Mountain Power Corporation
(Exact name of registrant as specified in its charter)
Vermont 03-0127430
(State of incorporation) (I.R.S. Employer
Identification No.)
25 Green Mountain Drive
South Burlington, Vermont 05403
Telephone number: (802) 864-5731
(Address of principal executive offices)
Christopher L. Dutton Peter H. Zamore
Vice President, Chief Financial Officer General Counsel
and Treasurer Green Mountain Power Corporation
Green Mountain Power Corporation 25 Green Mountain Drive
25 Green Mountain Drive South Burlington, Vermont 05403
South Burlington, Vermont 05403 Telephone: (802) 864-5731
Telephone: (802) 864-5731
(Name, address, and telephone number, including area codes, of agents of
service)
SUBJECT TO COMPLETION, DATED , 1995
PROSPECTUS
GREEN MOUNTAIN POWER CORPORATION
First Mortgage Bonds
Unsecured Notes
Common Stock
Green Mountain Power Corporation (the Company) intends from time
to time to sell its First Mortgage Bonds (the New Bonds), Unsecured
Notes (the Notes) and/or Common Stock, $3.33 1/3 par value (the New
Common Stock) (the New Bonds and the Notes being collectively
referred to herein as the Debt Securities, and the Debt Securities
and the New Common Stock being collectively referred to herein as the
Securities) in any combination at an aggregate initial offering price
not to exceed $50,000,000. The Securities will be offered at prices
and on terms to be determined at the times of sale. For each issue
of the Debt Securities for which this Prospectus will be delivered,
there will be an accompanying Prospectus Supplement, together with
any accompanying Pricing Supplement, that will set forth, with
respect to the Debt Securities of such issue, (i) the series
designation and aggregate principal amount thereof, (ii) the initial
public offering price and other terms of their offering, (iii) the
date or dates on which they will mature, (iv) the rate or rates per
annum at which they will bear interest, (v) the times at which such
interest will be payable and the date from which it will accrue, (vi)
whether all or any portion thereof will be issued to a designated
depositary, (vii) any redemption or repayment provisions, and (viii)
other specific terms. For each issue of the New Common Stock for
which this Prospectus will be delivered, there will be an
accompanying Prospectus Supplement that will set forth the terms of
the offering. The Common Stock is traded on the New York Stock
Exchange. Its price and volume data are reported on the New York
Stock Exchange using the symbol "GMP". The sale of one of the
Securities will not be contingent upon the sale of any other.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Securities may be sold directly by the Company or through
agents designated from time to time or through underwriters or
dealers. If any agents of the Company or any underwriters are
involved in the sale of the Securities in respect of which this
Prospectus will be delivered, the names of such agents or
underwriters, and the initial price to the public, any applicable
commissions or discounts and the net proceeds to the Company, or the
means of determining the same, will be set forth in an accompanying
Prospectus Supplement or Supplements. The Company may indemnify
agents and underwriters against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. See "Plan
of Distribution".
The date of this Prospectus is , 1995.
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the Exchange Act) and, in
accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the Commission).
The Registration Statement and such exhibits and schedules may be
inspected without charge at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C., and at the
regional offices of the Commission located at Seven World Trade Center,
Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661, at prescribed rates. Copies of such
material may also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Company's Common Stock is listed on the New York Stock Exchange. Such
reports, proxy statements and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed with the Commission (File
No. 1-8291) pursuant to the Exchange Act, are hereby incorporated by
reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995.
All documents filed by the Company pursuant to Section 13(a) and (c),
14 or 15(d) of the Securities and Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded, for purposes of this
Prospectus, to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide, without charge, to each
person, including any beneficial owner, to whom a copy of this Prospectus
shall have been delivered, upon the written or oral request of any such
person, a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
into such documents. Written or telephone requests for such copies should
be directed to the Corporate Secretary, Green Mountain Power Corporation,
25 Green Mountain Drive, P. O. Box 850, South Burlington, Vermont 05402-
0850 (Telephone 802-864-5731).
THE COMPANY
The Company is a public utility operating company engaged in
supplying electrical energy in the State of Vermont in a territory with an
estimated population of 195,000. The Company has its principal executive
office at 25 Green Mountain Drive, P. O. Box 850, South Burlington,
Vermont 05402-0850 (Telephone 802-864-5731.) It serves approximately
80,500 customers.
RATIO OF EARNINGS TO FIXED CHARGES
As computed in accordance with Regulation S-K of the Commission, the
Company's ratios of earnings to fixed charges for each of the years 1990
through 1994, and for the twelve months ended June 30, 1995, are as
follows:
Ratio of
Earnings to
Year Ended Fixed Charges (1)
December 31, 1990 2.47
December 31, 1991 2.73
December 31, 1992 3.01
December 31, 1993 2.78
December 31, 1994 2.74
Twelve Months Ended June 30, 1995 2.76
______
(1) Earnings consist of pretax income plus fixed charges as defined in
Item 503 paragraph (d)(3). Fixed charges computed pursuant to paragraph
(d)(4) of Item 503 consist of interest on all indebtedness, amortization
of debt expense and discount or premium relating to any indebtedness,
and the estimated interest portion of rentals charged to income.
USE OF PROCEEDS AND FINANCING PROGRAM
The net proceeds to be received by the Company from the sale of the
Securities will be applied to the refunding of long-term debt, the
financing of capital projects and the repayment of short-term bank
borrowings incurred for such purposes and for other general corporate
purposes.
The Company expects its capital expenditures in 1995 to be
approximately $22 million. The Company expects such expenditures for the
five-year period, 1995-99, to aggregate approximately $93.5 million.
The Company anticipates that for the period 1995 - 1999, internally
generated funds will provide approximately 90 percent of total capital
expenditure requirements. The remaining amount, plus funds required to
meet sinking fund requirements and debt maturities totaling approximately
$34.9 million, will be funded through short-term borrowings, which will be
refinanced periodically through the sale of long-term debt and equity
securities, in such amounts and at such times as the Company's cash
requirements and market conditions shall determine.
DESCRIPTION OF THE NEW BONDS
The statements under this caption are intended to summarize the New
Bonds and the Mortgage; they do not purport to be complete and are
qualified in their entirety by reference to the New Bonds and the
Mortgage, copies of which have been filed as exhibits to the Registration
Statement of which this Prospectus is a part.
General. The New Bonds are to be issued under the Company's
Indenture of First Mortgage and Deed of Trust, dated as of February 1,
1955, to the United States Trust Company of New York [successor to the
Chase Manhattan Bank (National Association), successor to the Chase
National Bank of the City of New York], as trustee, as supplemented by 15
supplemental indentures and as to be further supplemented by one or more
additional supplemental indentures providing for one or more series of the
New Bonds, all of which are collectively referred to as the Mortgage.
Reference is made to the Prospectus Supplement or Supplements for
each issue of the New Bonds for the following terms, among others, of the
New Bonds offered thereby: (i) the series designation and aggregate
principal amount thereof, (ii) the initial public offering price and other
terms of their offering, (iii) the date or dates on which they will
mature, (iv) the rate or rates per annum at which they will bear interest,
(v) the times at which such interest will be payable and the date from
which it will accrue, (vi) whether all or any portion thereof will be
issued to a designated depositary, (vii) any redemption or repayment
provisions, and (viii) other specific terms.
Form, Exchange and Payment. Unless otherwise indicated in the
Prospectus Supplement for an issue of the New Bonds, the New Bonds offered
thereby will be issued only in the form of a fully registered global bond,
interests in which will be transferable by a book-entry system in
denominations of $1,000 and any multiple thereof. If definitive New Bonds
are exchanged for a global bond, they will be issued in denominations of
$1,000 and integral multiples of $1,000. See "Book-Entry System."
Security. The New Bonds together with all other bonds (Bonds) now or
hereafter issued under the Mortgage will be secured by the Mortgage,
which, in the opinion of Peter H. Zamore, Esq., General Counsel of the
Company, subject only to permitted encumbrances as defined in the
Mortgage, constitutes a valid, direct first mortgage lien upon the real
and personal property described or referred to in the Mortgage as owned by
the Company (other than classes of property expressly excepted in the
Mortgage and property heretofore released from the lien of the Mortgage in
accordance with the terms thereof), which include all of the physical
properties and franchises of the Company used or useful in its public
utility business; and all physical properties and franchises of the
Company used or useful in its public utility business (other than those of
the character not subject to the lien of the Mortgage as aforesaid)
acquired by the Company after the respective dates of the Original
Indenture and each Supplemental Indenture have become, or will upon such
acquisition become, subject to the lien thereof, subject, however, to
permitted encumbrances and to liens, if any, existing or placed thereon by
the Company at the time of the acquisition thereof by the Company and,
subject, in the case of after acquired properties located in
municipalities or counties in which the Mortgage has not been recorded at
or prior to the time of acquisition, to the rights of holders or liens
perfected on such properties prior to the recording of the Mortgage in
such municipalities or counties. There are excepted from the lien of the
Mortgage certain specifically excepted properties; all cash on hand and in
banks, contracts, shares of stock, bonds, notes, evidences of indebtedness
and other securities, bills, notes and accounts receivable and other
choses in action, conditional sales agreements and appliance rental or
lease agreements other than those expressly subjected to the Mortgage; all
equipment, materials and supplies not installed as part of the fixed
property of the Company and which are held for use or consumption in its
business; all goods, wares, merchandise, appliances and supplies,
purchased, acquired or held for the purpose of sale, lease or
distribution; and gas, oil, coal, fissionable material and other minerals
and other products, fuel and other personal property which are consumable
in their use in the operation of the plants or systems of the Company;
office furniture, equipment and supplies; aircraft, automobiles, trucks
and similar vehicles; and certain other properties of the Company set
forth in the Mortgage. (See Mortgage, Granting Clauses.)
The Mortgage contains provisions subjecting after-acquired property
(subject to pre-existing liens) to the lien thereof, subject to
limitations in the case of consolidation, merger or sale of substantially
all of the Company's assets. (See Mortgage, Granting Clauses and Article
Fourteen.)
The Mortgage provides that the trustees shall have a lien upon the
mortgaged property, prior to that of the Bonds, for the payment of their
reasonable compensation and expenses, and for indemnity against certain
liabilities. (See Mortgage, Section 15.10.)
Issuance of Additional Bonds. Additional Bonds of any series may be
issued in an aggregate principal amount equal to:
(1) 60 percent of unfunded net property additions (the cost or
fair value at the time of acquisition, whichever is less, of
utility property charged to plant accounts of the Company after
December 31, 1954, less the minimum provision for depreciation
from said date);
(2) the principal amount of unfunded Bond credits for the
retirement of Bonds of any series; and /or
(3) cash deposited with the Trustee;
subject to the filing of an earnings certificate (except in the case of
certain refundings) showing net earnings available for interest (as
defined), for a period of 12 consecutive months within the 15 calendar
months preceding the date of application, to be at least two times annual
interest requirements on bonded debt then to be outstanding.
Property additions generally include the utility property, tangible
or intangible, of the Company, located in the United States of America,
which (except as provided below) is used by or useful to the Company in
the business of generating, manufacturing, storing, transmitting,
distributing, utilizing, purchasing, furnishing, supplying and/or
disposing of electricity and/or gas, for heat, light, power, or
refrigeration or other uses, or in any business which is incidental
thereto, including, without limiting the generality of the foregoing, all
properties necessary or appropriate for generating, manufacturing,
storing, transmitting, distributing, utilizing, purchasing, furnishing,
supplying and/or disposing of electricity and/or gas, together with
betterments, improvements, additions, replacements, or alterations of,
upon or to such property of the Company acquired after December 31, 1954.
Utility property shall not be deemed to include any property excepted
from the lien of the Mortgage. As of December 31, 1994, approximately
$17,000,000 of property additions and $15,100,000 of unfunded Bond Credits
were available for use as the basis for the issuance of Bonds.
The Mortgage contains certain restrictions upon the issuance of Bonds
against property subject to liens. The New Bonds will be issued against
property additions and/or unfunded Bond Credits for the retirement of
Bonds. (See Mortgage, Articles Two, Seven, Nine and Fourteen.)
The Mortgage provides that the Company and/or the Trustee may release
property from the lien of the Mortgage, so long as no default exists: (1)
in the ordinary course of the Company's business, with respect to property
which has become old or worn out, provided such property is replaced by
the Company, and in connection with a release, surrender, abandonment or
termination of any rights of the Company which is necessary, desirable or
advisable in connection with the conduct of the utility business of the
Company; (2) upon written request of the Company to the Trustee in
connection with the sale of any such property, provided that the Company
shall receive fair consideration therefor and provided that the release
will not impair the security of the Mortgage; (3) in connection with a
condemnation by any government entity of property of the Company, provided
the Company receives fair value therefor; (4) without any consent or
release by the Trustee, in connection with a sale of property by the
Company of property no longer used or useful in the conduct of the
Company's business, provided that the aggregate value of any such property
so disposed of in any one calendar year shall not exceed the greater of
$50,000 or 3/4 of 1% of the outstanding Bonds; or (5) in connection with
the taking, sale or release of all or substantially all of the Company's
property, upon the deposit of Government or purchase money securities with
the Trustee. (See Mortgage, Article Seven.)
Defaults and Notice Thereof. The Mortgage defines the following
events as "defaults":
(1) failure to pay principal of, or premium (if any) on, any Bond
when due;
(2) failure to pay interest on any Bond when due and continuance
of such failure for a period of 30 days;
(3) failure to discharge or satisfy any improvement, maintenance,
or depreciation fund obligation and continuance of such failure
for a period of 60 days;
(4) failure to discharge or satisfy any sinking fund obligation
and continuance of such failure for a period of 20 Business
Days;
(5) failure to perform or observe any of the other covenants,
agreements or conditions in the Mortgage and continuance of such
failure for a period of 90 days following written notice by the
Trustee or by holders of at least 15 percent in principal amount
of the Bonds;
(6) the entry of an order for reorganization or appointment of a
trustee or receiver of all or a substantial part of the
mortgaged property and continuance of such order or appointment
unstayed for a period of 90 days;
(7) certain adjudications, petitions or consents in bankruptcy,
insolvency or reorganization proceedings or an admission of
insolvency or an assignment for the benefit of creditors by the
Company; or
(8) the rendering of a judgment against the Company for the
payment of moneys in excess of the Judgment Amount (as herein
defined) and continuance of such judgment unsatisfied and
without stay of execution for a period of 90 days after (i) the
entry of such judgment or (ii) the termination of any stay of
execution entered during the initial 90-day grace period; but
only, in either case, if such judgment shall have been continued
unstayed or unsatisfied for a period of 10 days after the giving
of written notice of default to the Company by the Trustee or to
the Company and the Trustee by the holders of at least
15 percent in principal amount of the Bonds outstanding. As
used herein, "Judgment Amount" shall mean (a) $50,000 until the
earlier to occur of (i) all Bonds of any series established
prior to the execution of the Company's Tenth Supplemental
Indenture having ceased to be outstanding, whether at their
respective stated maturities or through a provision for
redemption prior to their stated maturities, or (ii) the
execution of a supplemental indenture with the written consent
of the holders of not less than 66 2/3 percent in principal
amount of all Bonds of any series heretofore created and issued
(and, if more than one such series of Bonds shall at the time be
outstanding, not less than 66 2/3 percent in principal amount
of the Bonds of each such series), and (b) thereafter
$1,000,000.
So long as one or more of such defaults shall continue to exist and
provided that the principal of all the Bonds shall not have already become
due and payable, either the Trustee (by notice in writing to the Company)
or the holders of not less than 25 percent in principal amount of the
Bonds outstanding (by notice in writing to the Company and the Trustee)
may declare the principal of and accrued interest on all Bonds then
outstanding to be immediately due and payable notwithstanding the
Company's right, following such declaration but prior to any sale of all
or a substantial part of the mortgaged property, to cure all defaults to
the satisfaction of the Trustee in accordance with the terms of the
Indenture.
(See Mortgage, Article Twelve.)
The Mortgage does not require the Company to give the Trustee or any
holders of any Bonds periodic reports as to the Company's compliance with
the provisions of the Mortgage. The Company and the Trustee are required
to provide the notices and reports to the holders of the Bonds required by
the Trust Indenture Act of 1939, as amended, and copies of the reports and
information required under the Securities Exchange Act of 1934, as
amended. (See Mortgage, Article Eleven.)
Evidence to be Furnished to the Trustee. Compliance with Mortgage
provisions is evidenced by written statements of the Company's officers or
persons selected by the Company. In certain major matters the accounting,
engineer, appraiser or other expert must be independent. Various
certificates and other papers, including a certificate with respect to
compliance with the terms of the Mortgage and the absence of defaults, are
required to be filed annually and upon the occurrence of certain events.
(See Mortgage, Sections 9.06, 9.07, 9.08.)
Modification of the Mortgage. The Mortgage may be amended and/or any
past default thereunder (except a default in the payment of the principal
of, premium, if any, or interest on any of the Bonds) and its consequences
may be waived with the consent of the holders of at least 66 2/3 percent
in principal amount of Bonds then outstanding, and of each series of Bonds
then outstanding and affected by the proposed modification or waiver.
Upon the earlier to occur of (i) all Bonds of any series established prior
to the execution of the Company's Tenth Supplemental Indenture having
ceased to be outstanding, whether at their respective stated maturities or
through a provision for redemption prior to their stated maturities, and
(ii) the execution of a supplemental indenture with the written consent of
the holders of all Bonds of any series created and issued prior to the
date of the Tenth Supplemental Indenture, the Mortgage may be amended
and/or any past default thereunder (except a default in the payment of the
principal of, premium, if any, or interest on any of the Bonds) and its
consequences may be waived with the consent of the holders, acting
together as a single class, of at least 66 2/3 percent in principal
amount then outstanding of all Bonds issued pursuant to the Indenture and
affected by the proposed modification or waiver. In no instance shall any
modification regarding the terms of payment of principal of, premium, if
any, and interest on the New Bonds or a waiver of any past default with
respect to payment of such principal, premium or interest or its
consequences be effected without the consent of the holders of the New
Bonds, nor may any modification affecting the lien of the Mortgage or
reducing the percentage in principal amount of Bonds required for
modification, be effected without the consent of the holders of all
outstanding Bonds. (See Mortgage, Article Eighteen and Tenth Supplemental
Indenture.)
Concerning the Trustee. United States Trust Company of New York,
successor to the Chase Manhattan Bank (National Association), successor to
the Chase National Bank of the City of New York, is the trustee under the
Mortgage.
DESCRIPTION OF THE NOTES
The statements under this caption are intended to summarize the Notes
and the Indenture; they do not purport to be complete and are qualified in
their entirety by reference to the Notes and Indenture, copies of which
have been filed as exhibits to the Registration Statement of which this
Prospectus is a part.
General. The Notes are to be issued under an Indenture, (Indenture)
between the Company and The Bank of New York, as trustee (Unsecured
Trustee).
The Indenture provides that debt securities (including the Notes and
including both interest bearing and original issue discount securities)
may be issued thereunder, without limitation as to aggregate principal
amount. (See Indenture, Sec. 301.) All debt securities issued under the
Indenture (including the Notes) are collectively referred to as the
"Indenture Securities". The Indenture does not limit the amount of other
debt, secured or unsecured, which may be issued by the Company. The Notes
will rank pari passu with all other unsecured indebtedness of the Company.
Substantially all of the materially important physical properties of the
Company are subject to the lien of the Mortgage securing the Bonds. (See
"Description of the New Bonds".)
Reference is made to the Prospectus Supplement or Supplements for
each issue of the Notes for the following terms, among others, of the
Notes offered thereby: (i) the series designation and aggregate principal
amount thereof, (ii) the initial public offering price and other terms of
their offering, (iii) the date or dates on which they will mature, (iv)
the rate or rates per annum at which they will bear interest, (v) the
times at which such interest will be payable and the date from which it
will accrue, (vi) whether all or any portion thereof will be issued to a
designated depositary, (vii) any redemption or repayment provisions, and
(viii) other specific terms.
Form, Exchange and Payment. Unless otherwise indicated in the
Prospectus Supplement for an issue of the Notes, the Notes offered thereby
will be issued only in the form of a fully registered global note,
interests in which will be transferable by a book-entry system in
denominations of $1,000 and any multiple thereof. If definitive Notes are
exchanged for a global note, they will be issued in denominations of
$1,000 and integral multiples of $1,000. See "Book-Entry System."
Events of Default and Notice Thereof. The Indenture defines the
following events as "defaults":
(1) failure to pay any installment of interest on any Note within 30
days after its stated maturity;
(2) failure to pay the principal of, or premium, if any, on any Note
within three business days after its maturity;
(3) failure to perform or breach of any covenant of the Company in the
Indenture (other than a covenant, a default in the performance of
which is elsewhere specifically dealt with or which has been included
in the Indenture solely for the benefit of one or more series of
Notes other than such series) for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Unsecured Trustee, or to the Company and the Unsecured Trustee by the
holders of at least 33% in principal amount of the outstanding Notes
of such series a written notice specifying such default and requiring
it to be remedied and stating that such notice is a "Notice of
Default";
(4) either (a) the entry of an order approving a petition seeking
reorganization of the Company upon the basis of insolvency or
inability to pay debts as they mature under the Federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any State thereof; or (b) the appointment in any judicial
proceeding upon the application of any creditor or creditors of a
trustee or a receiver of all or a substantial part of the trust
estate; and the continuance of such order or appointment unstayed and
in effect for a period of 90 days;
(5) the adjudication of the Company as a bankrupt by any court of
competent jurisdiction or the filing by the Company of a voluntary
petition in bankruptcy or the making by the Company of an assignment
for the benefit of creditors or the admission by the Company in
writing of its inability to pay its debts as they become due; the
consent by the Company to the appointment in any judicial proceeding
upon the application of any creditor or creditors of a receiver or
trustee of all or a substantial part of its properties; the filing by
the Company of a petition or answer seeking reorganization or
readjustment on the basis of insolvency or inability to pay debts as
they mature under the Federal bankruptcy laws or any other applicable
law or statute of the United States of America or of any State
thereof; or the filing by the Company of a petition to take advantage
of any insolvency act;
(6) any other Event of Default specified with respect to Notes of such
series;
(7) default by the Company in the payment of principal of, or interest
on, securities issued under the Mortgage in an aggregate amount
exceeding $5,000,000, and the continuation thereof for 90 days after
written notice to the Company by the Unsecured Trustee, or to the
Company and the Unsecured Trustee by the holders of at least 33% in
principal amount of the outstanding Notes of such series a written
notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default".
No Event of Default with respect to a series of Indenture Securities
necessarily constitutes an Event of Default with respect to the Indenture
Securities of any other series. The Unsecured Trustee may withhold notice
of default (except in payment of principal, interest or any funds for the
retirement of Indenture Securities) if it, in good faith, determines that
withholding of such notice is in the interest of the Holders of the
Indenture Securities. (See Indenture, Secs. 801 and 903.)
Either the Unsecured Trustee or the Holders of not less than 33% in
principal amount (or such lesser amount as may be provided in the case of
discount Indenture Securities) of the outstanding Indenture Securities of
all defaulted series, considered as one class, may declare the principal
and interest on such series due on default, but the Company may annul such
default by effecting its cure and paying overdue interest and principal.
No Holder of Indenture Securities may enforce the Indenture without having
given the Unsecured Trustee written notice of default, and unless the
Holders of a majority of the Indenture Securities of all defaulted series,
considered as one class, shall have requested the Unsecured Trustee to act
and offered reasonable indemnity, and for 60 days the Unsecured Trustee
shall have failed to act, but each Holder has an absolute right to receive
payment of principal and interest when due and to institute suit for the
enforcement of such payment. The Unsecured Trustee is not required to
risk its funds or incur any financial liability if it shall have
reasonable grounds for believing that repayment is not reasonably assured.
The Holders of a majority of the Indenture Securities of all defaulted
series, considered as one class, may direct the time, method and place of
conducting any proceedings for any remedy available to the Unsecured
Trustee, or exercising any trust or power conferred on the Unsecured
Trustee, with respect to the Indenture Securities of such series, but the
Unsecured Trustee is not required to follow such direction if not
sufficiently indemnified and the Unsecured Trustee may take any other
action it deems proper which is not inconsistent with such direction.
(See Indenture, Secs. 802, 807, 808, 812 and 902.)
Evidence to be Furnished to the Unsecured Trustee. Compliance with
Indenture provisions will be evidenced by written statements of the
Company's officers. An annual certificate with reference to compliance
with the covenants and conditions of the Indenture and the absence of
defaults is required to be filed with the Unsecured Trustee. (See
Indenture, Sec. 1004.)
Modification of the Indenture. The rights of the Holders of the
Indenture Securities may be modified with the consent of the Holders of a
majority of the Indenture Securities of all series or Tranches, as defined
below, affected, considered as one class. However, certain specified
rights of the Holders of Indenture Securities may be modified without the
consent of the Holders if such modification would not be deemed to affect
their interests adversely in any material respect. In general, no
modification of the terms of payment of principal and interest, no
reduction of the percentage in principal amount of the Indenture
Securities outstanding under such series required to consent to any
supplemental indenture or waiver under the Indenture, no reduction of such
percentage necessary for quorum and voting, and no modification of certain
of the provisions in the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults is effective
against any Holder of Indenture Securities without his consent. "Tranche"
means a group of Indenture Securities which are of the same series and
have identical terms except as to principal amount and/or date of
issuance. (See Indenture, Art. Twelve.)
Concerning the Indenture Trustee. The Bank of New York, New York,
New York is the trustee under the Indenture.
BOOK-ENTRY SYSTEM
For each issue of Debt Securities subject to the book-entry system
hereinafter described, a global security representing all of such issue
will be issued to the Depository Trust Company, New York, New York (DTC)
or such other depository as may be subsequently designated (Depository),
and registered in the name of CEDE & Co. (DTC's partnership nominee), or
such other Depository or its nominee as may be subsequently designated.
So long as the Depository, or its nominee, is the registered owner of
an issue of the Debt Securities, such Depository or such nominee, as the
case may be, will be considered the owner of such Debt Securities for all
purposes under the Mortgage or the Indenture, as the case may be,
including notices and voting. Payments of principal of, and premium, if
any, and interest on, such Debt Securities will be made to the Depository
or its nominee, as the case may be, as the registered owner of such Debt
Securities. Except as set forth below, owners of beneficial interests in
such Debt Securities will not be entitled to have any such Debt Securities
registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities and will not be considered the
owners of such Debt Securities under the Mortgage or the Indenture.
Accordingly, each person holding a beneficial interest in such Debt
Security must rely on the procedures of the Depository and, if such person
is not a Direct Participant (as hereinafter defined), on procedures of the
Direct Participant through which such person holds its interest, to
exercise any of the rights of the registered owner of such Debt Security.
The following nine paragraphs are based solely on information
furnished by DTC:
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
(Participants) deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfer and
pledges, in deposited securities through electronic computerized book-
entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks,
trust companies, clearing corporations, and certain other organizations
(Direct Participants). DTC is owned by a number of its Direct
Participants and by The New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such as securities
brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either
directly or indirectly (Indirect Participants). The rules applicable to
DTC and its Participants are on file with the Commission.
Purchases of the Debt Securities under the DTC system must be made by
or through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security (Beneficial Owner) is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written confirmation
providing details of the transaction, as well as periodic statements of
their holdings, from the Direct and Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Debt Securities are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their
ownership interests in the Debt Securities, except in the event that use
of the book-entry system for the Debt Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities deposited by
Participants with DTC are registered in the name of CEDE & Co. The
deposit of Debt Securities with DTC and their registration in the name of
CEDE & Co. effect no change in beneficial ownership. DTC has no knowledge
of the actual Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts
such Debt Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of
their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
If the Debt Securities of any issue are redeemable prior to the
maturity date, redemption notices shall be sent to CEDE & Co. If less
than all of the Debt Securities of any issue are being redeemed, DTC's
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor CEDE & Co. will consent or vote with respect to the
Debt Securities. Under its usual procedures, DTC mails an Omnibus Proxy
to the Company as soon as possible after the record date. The Omnibus
Proxy assigns CEDE & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Debt Securities will be made
to DTC. DTC's practice is to credit Direct Participants' accounts on the
date on which interest is payable in accordance with their respective
holdings shown on DTC's records, unless DTC has reason to believe that it
will not receive payment on such payment date. Payments by Participants
to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts
of customers in bearer form or registered in "street name", and will be
the responsibility of such Participant and not of DTC, the Trustee or the
Unsecured Trustee, as the case may be, or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and interest to DTC is the responsibility of
the Company and the Trustee or the Unsecured Trustee, as the case may be.
Disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing services as securities depository with
respect to the Debt Securities at any time by giving notice to the Company
and the Trustee or the Unsecured Trustee, as the case may be. Under such
circumstances, in the event that a successor securities depository is not
obtained, Debt Securities in certificated form are required to be printed
and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that
event, Debt Securities in certificated form will be printed and delivered.
None of the Company or the Trustee or the Unsecured Trustee will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial interests in the Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
DESCRIPTION OF NEW COMMON STOCK
The following is a summary of certain rights and privileges and
restrictions on the Common Stock. This summary does not purport to be
complete. Reference is made to the Restated Articles of Association and
the Bylaws of the Company and the Mortgage, filed as exhibits to the
Registration Statement, for complete statements. The following statements
are qualified in their entirety by such references.
General. The outstanding shares of Common Stock, $3.33 1/3 par
value, of the Company are fully paid and nonassessable. The shares of the
New Common Stock, upon payment of the purchase price, will be fully paid
and nonassessable.
Dividend Restrictions. No dividends may be paid on the Common Stock
nor may the Company purchase any Common Stock unless all cumulative
dividends on the Company's outstanding Preferred Stock have been paid or
provided for, all Preferred Stock purchase-fund requirements have been
satisfied, full dividends on any Preference Stock have been paid or
provided for and the other restrictions summarized below have been
complied with. In addition, so long as any shares of Preferred Stock are
outstanding, the Company shall not pay any dividends on any shares of
stock junior to the Preferred Stock or make any other distributions
thereon or any expenditures for the purchase, redemption or other
retirement for a consideration of such junior stock except from net income
of the Corporation available for dividends on such junior stock
accumulated subsequent to December 31, 1954 plus the sum of $150,000.
The Mortgage provides that the Company shall not declare or pay any
cash dividend on or make any other distribution in respect of its Common
Stock, or, with certain exceptions, repurchase any capital stock of the
Company if the aggregate amount so declared, paid, distributed or expended
after December 31, 1992 would exceed the aggregate amount of net income of
the Company available for dividends on its Common Stock accumulated after
December 31, 1992, plus $18,500,000. As of December 31, 1994, the amount
of retained earnings available for dividends on the Common Stock under
this provision was $19,900,000.
Voting Rights. The holders of the Common Stock have exclusive voting
rights except as referred to below and as otherwise provided by law.
Whenever dividends on any series of outstanding Preferred Stock shall
be in arrears in an amount equivalent to four or more quarterly dividends,
the holders of the Preferred Stock shall have the right, until no
dividends are in arrears and the current dividend is provided for, to
elect that number of directors, not exceeding the smallest number of
directors necessary to constitute a majority of the Board of Directors
equal to two times the number of full years that such arrearage shall
continue. Whenever an event of default occurs in payment of any purchase
or sinking-fund installment, the holders of Preferred Stock shall have the
right, until such default shall have been remedied, to elect two
directors. In addition, the votes or consent of the holders of specified
percentages of the Preferred Stock and any Preference Stock are required
as a condition to effecting various changes in the capital structure of
the Company and certain other transactions. The Company is prohibited,
without the consent of the holders of at least two-thirds of the aggregate
number of shares of all classes of Preferred Stock entitled to vote
thereon, from (x) creating or authorizing, or increasing the authorized
amount of, any shares of any class of stock ranking as to dividends or
assets prior to the Preferred Stock, or of any obligation or security
convertible into stock ranking as to dividends or assets prior to the
Preferred Stock; or (y) amending, changing or repealing any of the express
terms of the Preferred Stock outstanding in any manner adverse to the
holders thereof; or (z) issuing shares of Preferred Stock unless certain
income and asset tests are satisfied. The Company is prohibited, without
the consent of the holders of a majority of the aggregate number of shares
of Preferred Stock, from (x) issuing, creating, guaranteeing or permitting
to exist any unsecured securities evidencing indebtedness maturing more
than one year from the date of issuance, except for the purpose of
refunding or retiring the outstanding Preferred Stock if the principal
amount of such unsecured securities would exceed twenty percent (20%) of
(a) the total principal amount of all secured indebtedness then
outstanding and (b) the total of the capital and surplus; (y) merging or
consolidating with or into any other corporation, provided that such vote
is not required if such other corporation is a public utility principally
engaged in the distribution of gas or electricity in the State of Vermont
and if after such merger or consolidation certain financial tests with
respect to the Preferred Stock are satisfied; or (z) selling, leasing or
otherwise disposing of all or substantially all of its property.
Liquidation Rights. After satisfaction of the preferential
liquidation rights of the Preferred Stock and any Preference Stock, the
holders of Common Stock are entitled to share, ratably, in the
distribution of all remaining assets of the Company. Holders of the
Preferred Stock are entitled to receive $100 per share and accrued
dividends on involuntary liquidation.
Holders of any Preference Stock will be entitled to receive such
amounts as determined by the Board of Directors at the time of issuance of
such Stock.
Preemptive Rights. The holders of the Common Stock have no
preemptive rights.
Anti-Greenmail, Fair Price and Business Judgment Provisions. Section
7.05 of the Company's Restated Articles of Association is intended to
prevent so-called "greenmail". That Section prohibits the Company, in the
absence of a special shareholder approval, from purchasing any of its
outstanding shares of Common Stock at a price in excess of the fair market
value of such shares from a beneficial owner of more than five percent of
the Company's Common Stock (a "Related Person," as such term is more
specifically defined in Section 7.06 of the Restated Articles of
Association) who has owned such shares for less than two years, subject to
certain limited exceptions. The special shareholder approval required by
Section 7.05 is the greater of eighty percent of the voting power of the
Company, or the sum of the number of shares owned by the Related Person
plus a majority of the voting power of the Company not beneficially owned
by the Related Person.
Section 7.06 of the Company's Restated Articles of Association is a
fair-price provision that is designed to provide reasonable assurance that
any attempt to acquire the Company will be made only on terms that are
fair to all shareholders. That Section requires that mergers and certain
other Business Combinations (as defined below) involving the Company and a
Related Person, unless approved by a majority of the Directors who are
unaffiliated with such Related Person, must be approved by at least eighty
percent of the voting power of the Company, as compared to the two-thirds
vote required by Vermont law, and satisfy certain minimum-price, form-of-
consideration and procedural requirements.
Section 7.07 of the Company's Restated Articles of Association is a
business judgment provision that requires that the Board of Directors, in
evaluating any proposal for a merger or Business Combination involving the
Company, take into consideration certain relevant factors, including the
impact of any such transaction on the Company's suppliers, customers and
employees, that might not otherwise be considered. For the purposes of
Sections 7.06 and 7.07, a "Business Combination," in general, includes the
following transactions: (1) a merger or consolidation of the Company or
any subsidiary with a Related Person or certain affiliates or associates
of the Related Person; (2) the sale or other disposition by the Company or
a subsidiary of assets having an aggregate fair market value of $5,000,000
or more, or the use thereof in certain financial arrangements, if a
Related Person is a party to the transaction; (3) the issuance or transfer
(other than on a pro rata basis to all shareholders) of stock or other
securities of the Company or of a subsidiary to a Related Person or
affiliates or associates of the Related Person; (4) the adoption of any
plan or proposal for the liquidation or dissolution of the Company
proposed by or on behalf of or voted for or consented to by any Related
Person or any affiliates or associates thereof; (5) any reclassification
of securities, recapitalization, merger or consolidation with a subsidiary
or other transaction that has the effect, directly or indirectly, of
increasing the percentage of the outstanding stock of any class of the
Company or a subsidiary owned by a Related Person or any affiliate or
associate thereof; or (6) any similar transaction of similar purpose or
effect or any agreement, contract or other arrangement providing for any
one or more of the foregoing actions. The Restated Articles of
Association provide that any amendment to Sections 7.06 and 7.07 must be
approved by at least eighty percent of the voting power of the Company,
unless such amendment has been recommended by a majority of the members of
the Board of Directors who are not Related Persons, and who are
unaffiliated with a Related Person and became Directors of the Company
prior to the time that a Related Person became such.
Staggered Board of Directors. The Company's By-laws provide that the
members of the Company's Board of Directors are elected for three year
terms, with one-third of the members of the Board of Directors elected
each year.
Transfer Agent and Registrar. The Transfer Agent and Registrar is
Chemical Bank, New York, New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters; (ii)
through dealers; (iii) directly to one or more institutional purchasers;
or (iv) through agents. Securities may be sold outside the United States.
An accompanying Prospectus Supplement or Supplements will set forth the
terms of each offering of the Securities including the name or names of
any underwriters, dealers, purchasers or agents, the purchase price of
such Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' or
agents' compensation, any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which such Securities may be listed. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time. Only firms named in the
Prospectus Supplement are deemed to be underwriters, dealers or agents in
connection with the Securities offered thereby.
If underwriters are used in the sale, Securities will be acquired by
the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all such Securities if any are purchased.
Securities may be sold directly by the Company or through any firm
designated by the Company from time to time, acting as principal or as
agent. The Prospectus Supplement will set forth the name of any dealer or
agent involved in the offer or sale of the Securities in respect of which
the Prospectus Supplement is delivered and the price payable to the
Company by such dealer or any commissions payable by the Company to such
agent. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a reasonable efforts basis for the period of its
appointment.
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act
of 1933, or to contribution with respect to payments for such liabilities
which underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with or
perform services for the Company in the ordinary course of business.
The anticipated date of delivery of Securities will be as set forth
in the Prospectus Supplement or Supplements relating to such offering.
LEGAL OPINIONS AND EXPERTS
The legality of the Securities offered hereby is being passed upon
for the Company by Hunton & Williams, 200 Park Avenue, 43rd Floor, New
York, New York 10166, special counsel for the Company, and by Peter H.
Zamore, Esq., General Counsel of the Company, and for the underwriters,
dealers or agents by Reid & Priest LLP, 40 West 57th Street, New York, New
York 10019. Hunton & Williams and Reid & Priest LLP will rely on the
opinion of Peter H. Zamore, Esq. as to matters of Vermont law.
The audited consolidated financial statements and schedules of the
Company for the period ended December 31, 1994, included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, which are
incorporated in this Prospectus by reference, have been examined by Arthur
Andersen LLP, independent certified public accountants, as set forth in
their report dated January 31, 1995, with respect thereto, and are
included in this Prospectus, through incorporation by reference, in
reliance upon the report of such firm and their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Filing fee Securities and Exchange Commission . . . . . . $ 17,241
Rating agencies' fees* . . . . . . . . . . . . . . . . . 28,000
Trustees' fees* . . . . . . . . . . . . . . . . . . . . . 20,000
Legal Fees and expenses* . . . . . . . . . . . . . . . . 125,000
Accounting fees and expenses* . . . . . . . . . . . . . . 35,000
Printing and engraving* . . . . . . . . . . . . . . . . . 35,000
Miscellaneous expenses* . . . . . . . . . . . . . . . . . 34,759
Total expenses* . . . . . . . . . . . . . . . . . . 295,000
*Estimated
Item 15. Indemnification of Directors and Officers
The Vermont Business Corporation Act (11A Section 8.51, Section 8.52,
Section 8.54, Section 8.55 and Section 8.56) provides, in pertinent part,
as follows:
(8.51) (a) Except as provided in subsection (d) of this section, a
corporation may indemnify an individual made a party to a preceding
because the individual is or was a director against liability incurred
in the proceeding if: (1) the director conducted himself or herself in
good faith; and (2) the director reasonably believed: (A) in the case
of conduct in the director's official capacity with the corporation,
that the director's conduct was in its best interests; and (B) in all
other cases, that the director's conduct was at least not opposed to its
best interests; and (3) in the case of any proceeding brought by a
governmental entity, the director had no reasonable cause to believe his
or her conduct was unlawful, and the director is not finally found to
have engaged in a reckless or intentional unlawful act.
(b) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirements of subdivision (a)(2)(B) of this section.
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or (2) in connection with any other proceeding charging
improper personal benefit to the director, whether or not involving
action in the director's official capacity, in which the director was
adjudged liable on the basis that personal benefit was improperly
received by the director.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
(8.52) Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the director was a
party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with
the proceeding.
(8.54) A director of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or
to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers
necessary may order indemnification if it determines: (1) the director
is entitled to mandatory indemnification under section 8.52 or this
title, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or (2) the director is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances, whether or
not the director met the standard of conduct set forth in section 8.51,
of this title or was adjudged liable as described in 8.51(d), but if the
director was adjudged so liable the director's indemnification is
limited to reasonable expenses incurred.
(8.55) (a) Except as provided in section 8.53 of this title, a
corporation may not indemnify a director under section 8.51 of this
title prior to the final resolution of a proceeding, whether by
judgment, order, settlement, conviction, plea, or otherwise, and unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in
section 8.51. (b) The determination required by subsection (a) of this
section, in accordance with the terms of section 8.51 of this title,
shall be made: (1) by the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding; (2) if a quorum cannot be obtained under subdivision (1) of
this subsection, by majority vote of a committee duly designated by the
board of directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the time
parties to the proceedings; (3) by written opinion of special legal
counsel: (A) selected by the board of directors or its committee in the
manner prescribed in subdivision (1) or (2) of this subsection; or (B)
if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in which
selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted
on the determination. (c) Authorization of indemnification and
evaluation as to reasonableness of expenses shall be made in the same
manner as the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under subdivision (b)(3) of
this section to select counsel.
(8.56) Unless a corporation's articles of incorporation limit
indemnification of an officer, employee, or agent of the corporation:
(1) an officer of the corporation who is not a director is entitled to
mandatory indemnification under section 8.52 of this title, and is
entitled to apply for court-ordered indemnification under section 8.54
of this title, in each case to the same extent as a director; (2) the
corporation may indemnify and advance expenses under this subchapter to
an officer, employee, or agent of the corporation who is not a director
to the same extent as a director.
Section 9 of Article IV of the Company's By-Laws, as amended, reads
as follows:
"Section 9. Indemnification. This Corporation shall indemnify any
persons threatened with or made a party to any action, suit or
proceeding, civil or criminal, by reason of the fact that he, his
testator or intestate, is or was a director or officer of this
Corporation or of any corporation which he served as such at the request
of this Corporation, against judgments, fines or penalties and the
reasonable cost and expenses, including but not restricted to attorney's
fees, actually and reasonably incurred by him in connection with the
defense of such action, suit or proceeding or in connection with any
appeal therein, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director or
officer is liable for gross negligence or misconduct in the performance
of duty to the Corporation; provided, however, that as to any matter
disposed of by compromise by such person, pursuant to a consent decree
or otherwise, no indemnification either for a compromise payment or for
any other expenses shall be provided unless such compromise shall be
approved as in the best interests of the Corporation after notice that
it involves such indemnification: (a) by a disinterested majority of
the directors then in office; or (b) by a majority of the disinterested
directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that such
person, his testator or intestate, as the case may be, appears not to be
liable for gross negligence or misconduct in the performance of duty to
the Corporation; or (c) by the holders of a majority of the outstanding
stock at the time entitled to vote for directors, voting as a single
class, exclusive of any stock owned by any interested director or
officer. Expenses reasonably incurred by any such person in connection
with the defense or disposition of any such action, suit or other
proceeding shall be paid from time to time by this Corporation in
advance of the final determination thereof upon receipt of a written
undertaking from such person to repay the amounts so paid by the
Corporation if it is ultimately determined that indemnification for such
expenses is not required under this section. The foregoing right to
indemnity shall not be deemed exclusive of any other rights to which
such director or officer may be entitled apart from the provisions of
this paragraph."
Subject to certain exceptions, the directors, all corporate officers
and any employee of the Company acting in the capacity of a director or
officer with the express authorization of a director or officer and the
heirs, assigns and estates of such directors, officers and employees of
the Corporation are insured to the extent of 100% of the loss, with an
overall limit of $35,000,000 (over certain underlying limits) because of
any claim or claims made against them, including claims arising under the
Securities Act of 1933, and caused by any negligent act, any error, any
omission or any breach of duty while acting in their capacities as such
directors or officers, and the Corporation is insured to the extent that
it shall have indemnified the directors and officers for such loss. The
premiums for such insurance are paid by the Corporation.
Item 16. Exhibits
EXHIBIT INDEX
Certain of the following exhibits are filed herewith. Certain other
of the following exhibits have heretofore been filed with the Securities
and Exchange Commission and are incorporated herein by reference.
Exhibit
<TABLE>
<CAPTION>
Number
<S> <C>
*1(a) -- Form of Distribution Agreement relating to the New Bonds.
*1(b) -- Form of Underwriting Agreement relating to the New Common Stock.
*1(c) -- Form of Distribution Agreement relating to the Notes.
3-a -- Articles of Association as restated (Exhibit 3-a, Form 10-K, 1993, File No. 1-8291).
3-a-1 -- Amendment to 3-a above, dated as of May 20, 1993 (Exhibit 3-a-1, Form 10-K 1993, File No. 1-
8291).
3-b -- By-laws, as amended (Exhibit 3-b, Form 10-K, 1993, File No. 1-8291).
4-a-1 -- Indenture of First Mortgage and Deed of Trust dated as of February 1, 1955 (Exhibit 4-b,
Registration No. 2-27300).
4-a-2 -- First Supplemental Indenture dated as of April 1, 1961 (Exhibit 4-b-2, Registration No. 2-
75293).
4-a-3 -- Second Supplemental Indenture dated as of January 1, 1966 (Exhibit 4-b-3, Registration No. 2-
75293).
4-a-4 -- Third Supplemental Indenture dated as of July 1, 1968 (Exhibit 4-b-4, Registration No. 2-
75293).
4-a-5 -- Fourth Supplemental Indenture dated as of October 1, 1969 (Exhibit 4-b-5, Registration No. 2-
75293).
4-a-6 -- Fifth Supplemental Indenture dated as of December 1, 1973 (Exhibit 4-b-6, Registration No. 2-
75293).
4-a-7 -- Seventh Supplemental Indenture dated as of August 1, 1976 (Exhibit 4-a-7, Registration No. 2-
99643).
4-a-8 -- Eighth Supplemental Indenture dated as of December 1, 1979 (Exhibit 4-a-8, Registration No.
2-99643).
4-a-9 -- Ninth Supplemental Indenture dated as of July 15, 1985 (Exhibit 4-a-9, Registration No. 2-
99643).
4-a-10 -- Tenth Supplemental Indenture dated as of June 15, 1989 (Exhibit 4-b-10, Form 10-K, 1989, File
No. 1-8291).
4-a-11 -- Eleventh Supplemental Indenture dated as of September 1, 1990 (Exhibit 4-b-11, Form 10-Q,
September 1990, File No. 1-8291).
4-a-12 -- Twelfth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-12, Form 10-K, 1991,
File No. 1-8291).
4-a-13 -- Thirteenth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-13, Form 10-K, 1991,
File No. 1-8291).
4-a-14 -- Fourteenth Supplement Indenture dated as of November 1, 1993 (Exhibit 4-b-14, Form 10-K 1993,
File No. 1-8291)
4-a-15 -- Fifteenth Supplemental Indenture dated as of November 1, 1993 (Exhibit 4-b-15, Form 10-K
1993, File No. 1-8291).
*4-a-16 -- Form of Sixteenth Supplemental Indenture .
*4-a-17 -- Form of Indenture.
*5-a-1 -- Opinion of Hunton & Williams.
*5-a-2 -- Opinion of Peter H. Zamore, Esq.
+12 -- Computation of Ratio of Earnings to Fixed Charges.
*23-a -- Consent of Hunton & Williams (included in their opinion filed as Exhibit 5-a-1).
*23-b -- Consent of Peter H. Zamore, Esq. (included in his opinion filed as Exhibit 5-a-2).
*23-d -- Consent of Arthur Andersen LLP (contained on Page 18 of this Registration Statement).
*24-a -- Power of Attorney (Contained on Page 16 of this Registration Statement).
*25 -- Statement of Eligibility of the Corporate Mortgage Trustee on Form T-1.
*25-b -- Statement of Eligibility of the Indenture Trustee on Form T-1.
*Previously filed as a part of this registration statement.
+Filed herewith.
</TABLE>
Item 17. Undertakings
A. The undersigned registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-
effective amendment to this registration statement; (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933,
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that clauses (1)(i) and (1)(ii)
do not apply if the registration statement is on Form S-3, Form S-8, or
Form F-3 and the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 of the registration statement, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Amendment No. 2 to this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of South
Burlington, and State of Vermont on the 23th day of October, 1995.
GREEN MOUNTAIN POWER CORPORATION
(Registrant)
By: /s/Christopher L. Dutton
Christopher L. Dutton, Vice President,
Chief Financial Officer & Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
President and Director October 23, 1995
/s/Douglas G. Hyde (Principal Executive Officer)
Douglas G. Hyde
Vice President, Chief Financial October 23, 1995
/s/Christopher L. Dutton Office & Treasurer
Christopher L. Dutton (Principal Financial Officer)
/s/Glenn J. Purcell Controller October 23, 1995
Glenn J. Purcell (Principal Accounting Officer)
Thomas P. Salmon Chairman of the Board
Robert E. Boardman }
Nordahl L. Brue }
William H. Bruett }
Merrill O. Burns }
Lorraine E. Chickering }
Directors
John V. Cleary }
Richard I. Fricke }
Euclid A. Irving }
Martin L. Johnson }
Ruth W. Page }
By: /s/C. L. Dutton October 23, 1995
C. L. Dutton
(Attorney - in - Fact)
Exhibit 12
<TABLE>
<CAPTION>
Green Mountain Power Corporation
Computation of Ratio of Earnings to Fixed Charges
Year Ended December 31,
Three Months Ended Twelve Months Ended ---------------------------------------------
June 30, 1995 June 30, 1995 1994 1993 1992 1991 1990
-------------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net earnings 2,143 11,123 11,052 10,764 12,296 10,260 9,090
Income taxes 1,264 6,378 5,917 5,922 6,451 5,795 4,691
Fixed charges 2,520 9,922 9,777 9,370 9,332 9,303 9,373
-------------------------------------- ---------------------------------------------
Total earnings 5,927 27,423 26,746 26,056 28,079 25,358 23,154
====================================== =============================================
Fixed Charges:
Interest 2,092 8,200 8,043 7,590 7,518 7,517 7,600
Amortization of debt premium and discount 35 147 138 102 85 48 44
Interest portion of rental payments 393 1,575 1,596 1,678 1,729 1,738 1,729
-------------------------------------- ---------------------------------------------
Total fixed charges 2,520 9,922 9,777 9,370 9,332 9,303 9,373
====================================== =============================================
Ratio of earnings to fixed charges 2.35 2.76 2.74 2.78 3.01 2.73 2.47
====================================== =============================================
</TABLE>
