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