<PAGE>
File No. 70-8803
CERTIFICATE OF NOTIFICATION
(Rule 24)
SECURITIES AND EXCHANGE COMMISSION
BY
NEES Energy, Inc.
In accordance with the order of the Securities and Exchange Commission
dated May 23, 1996, the following is a report for the second quarter of 1996:
1. NEES Energy, Inc. (NEES Energy), a Massachusetts Corporation was
formed on June 14, 1996. The corporation was capitalized on
August 9, 1996 when one thousand shares of NEES Energy common
stock were issued and sold to New England Electric System (NEES).
The by-laws were adopted on July 29, 1996.
2. As of June 30, 1996 NEES had not purchased any shares of NEES
Energy common stock.
3. As of June 30, 1996 NEES Energy had no employees assigned.
4. As of June 30, 1996 NEES Energy had no kilowatt hours sold or
marketed.
5. Attached in Exhibits 3(i) and 3(ii) are the articles of
organization and the by-laws, respectively.
6. NEES Energy had no balance sheet, income statement or statement of
cash flow for the quarter ended June 30, 1996.
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned company has duly caused this certificate of
notification (Commission's File No. 70-8803) to be signed on its behalf by
the undersigned officer thereunto duly authorized.
By: s/Marcy L. Reed
___________________________
Marcy L. Reed
Vice President
Date: August 28, 1996
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
3(i) Certificate of Incorporation of Filed
Granite State Energy, Inc. herewith
3(ii) By-laws of Granite State Energy, Inc. Filed
herewith
<PAGE>
Exhibit 3(i)
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02103
ARTICLES OF ORGANIZATION
(Under G.L. Ch. 156B)
ARTICLE I
The name of the corporation is:
NEES Energy, Inc.
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
The principal purpose for which the corporation is organized is
to sell energy and provide a range of energy related services,
including but not limited to, marketing, brokering and sales of
energy, audits, fuel supply, repair, maintenance, construction,
operation, design, engineering and consulting.
To have as additional purposes all powers granted to corporations
by the laws of the Commonwealth of Massachusetts, provided that
no such purpose shall include any activity inconsistent with the
law.
The corporation will not engage in activities that subject it to
regulation under G.L. c. 164 as an electric company or gas
company as defined in G.L. c. 164 s.l.
Note: If the space provided under any article or items on this form is
insufficient, additions shall be set forth on separate 8-1/2 x 11 sheets of
paper leaving a left hand margin of at lest 1 inch. Additions to more than
one article may be continued on a single sheet so long as each article
requiring each such addition is clearly indicated.
<PAGE>
ARTICLE III
The type and classes of stock and the initial number of shares
and par value, if any, of each type and class of stock which the
corporation is authorized to issue is as follows:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------- ----------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ------- ---------------- ------ ---------------- ---------
COMMON: COMMON: 1,000 $1.00
PREFERRED: PREFERRED:
ARTICLE IV
If more than one type, class or series is authorized, a
description of each with, if any, the preferences, voting powers,
qualifications, special or relative rights or privileges as to
each type and class thereof and any series now established;
None.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization
upon the transfer of shares of stock of any class as follows:
None.
ARTICLE VI
Other lawful provisions, if any, for the conduct and regulation
of business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers
of the corporation, or of its directors or stockholders, or of
any class of stockholders: (If there are no provisions state
"None.")
See attached.
Note: The preceding six (6) articles are considered to be permanent and may
ONLY be changed by filing appropriate Articles of Amendment.
<PAGE>
OTHER PROVISIONS
ARTICLE VI
----------
A. Meetings of the stockholders of the corporation may be held
anywhere in the United States.
B. The corporation may carry out any or all of the purposes
referred to in Article II in whole or in part through one or
more subsidiaries.
C. The corporation may carry out any actions referred to in
Article II to the same extent as might an individual, whether
as principal, agent, contractor, or otherwise, and either
alone or in conjunction or as a joint venture or other
arrangement with any corporation, association, trust, firm,
or individual.
D. The corporation may participate with others, as a general or
limited partner, in any business enterprise for any of the
purposes which the corporation would have the power to
conduct by itself.
E. No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director notwithstanding any
provision of law imposing such liability, except with respect
to any matter as to which such liability shall have been
imposed (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section
sixty-one or sixty-two of chapter one hundred and fifty-six B
of the General Laws of Massachusetts, or (iv) for any
transaction from which the director derived an improper
personal benefit.
The corporation shall indemnify each of its directors and
officers against any loss, liability or expense, including
amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and counsel fees, imposed upon or
reasonably incurred by him in connection with the defense or
disposition of any action, suit or other proceeding, whether
civil or criminal, including but not limited to derivative
suits (to the extent permitted by law), in which he may be
involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been a
director or officer, except with respect to any matter, as to
which he shall have been adjudicated in such action, suit or
proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interests of the
corporation or, to the extent that such matter relates to
<PAGE>
service with respect to any employee benefit plan, as in the
best interests of the participants or beneficiaries of such
plan. As to any matter disposed of by a compromise payment
by a director or officer, pursuant to a consent decree or
otherwise, no indemnification either for said 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, if no change in control has occurred (a) by
a disinterested majority of the directors then in office, (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 affect that such director
or officer appears to have acted in good faith in the
reasonable belief that his action was in the best interests
of the corporation, or (c) by the vote, at a meeting duly
called and held of the holders of a majority of the shares
outstanding and entitled to vote thereon, exclusive of any
shares owned by any interested director or officer or, if a
change in control shall have occurred, by an opinion in
writing of independent legal counsel to the affect that such
director or officer appears to have acted in good faith in
the reasonable belief that his action was in the best
interests of the corporation.
In discharging his duties any such director or officer, when
acting in good faith, shall be fully protected in relying
upon the books of account of the corporation or of another
organization in which he serves as contemplated by this
Article, reports made to the corporation or to such other
organization, by any of its officers or employees or by
counsel, accountants, appraisers or other experts or
consultants selected with reasonable care by the board of
directors of the corporation or similar governing body of
such other organization, or upon other records of the
corporation or of such other organization.
No director or officer shall be liable for any act, omission,
step or conduct taken or had in good faith, which (whether by
condition or otherwise) is required, authorized or approved
by any order or orders issued pursuant to the Public Utility
Holding Company Act of 1935 or any other Federal statute or
any state statute regulating the corporation or a subsidiary,
if any, by reason of their being subsidiaries of public
utility companies or public utility holding companies or by
reason of their activities as such, or any amendments to any
thereof. In any action, suit or proceeding based on any act,
omission, step or conduct, as in this paragraph described,
the provisions hereof shall be brought to the attention of
the court. In the event that the forgoing provisions of this
paragraph are found by the court not to constitute a valid
defense on the grounds of not being applicable to the
particular class of plaintiff, each such director and officer
<PAGE>
shall be reimbursed for, or indemnified against, all loss,
liability and expense incurred by him or imposed on him, in
connection with, or arising out of, any such action, suit or
proceeding based on any act, omission, step or conduct taken
or had in good faith as in this Section described; provided,
however, that as to any matter disposed of by a compromise
payment by such director or officer, pursuant to a consent
decree or otherwise, no indemnification either for said
payment or for any other expenses shall be provided unless
such compromise shall be approved as in the boat interest of
the corporation as heretofore provided in this Article. Such
loss, liability and expense shall include, but shall not be
limited to, judgments, court costs and attorneys' fees.
Expenses incurred with respect to the defense or disposition
of any action, suit or proceeding heretofore referred to in
this Article shall be advanced by the corporation prior to
the final disposition of such action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the
recipient to repay such amount if it is ultimately determined
that he is not entitled to indemnification, which undertaking
shall be accepted without reference to the financial ability
of the recipient to make such repayment. If in an action,
suit or proceeding brought by or in right of the corporation,
a director is held not liable, whether because relieved of
liability under the first paragraph of this Article or
otherwise, he shall be deemed to have been entitled to
indemnification for expenses incurred in defense of said
action, suit or proceeding.
As used in this Article:
(i) The term "officer" includes (a) persons who serve at
the written request of the corporation as directors,
officers, or trustees of another organization and (b)
employees of the corporation and its affiliates who serve in
any capacity with respect to benefit plans for the
corporation's employees.
(ii) An "interested" director or officer is one against whom
in such capacity the proceeding in question or another
proceeding on the same or similar grounds is then pending.
(iii) A "change in control" occurs when: (a) any individual,
corporation, association, partnership, joint venture, trust
or other entity or association thereof acting in concert
(excluding any employee benefit plan, dividend reinvestment
plan or similar plan of the corporation, or any trustee
thereof acting in such capacity) acquires more than 20% of
the corporation's outstanding stock having general voting
rights or more than 20% of the common shares of any entity
owning more than 50% of the corporation's outstanding stock
<PAGE>
having general voting rights, whether in whole or in part, by
means of an offer made publicly to the holders of all or
substantially all of such outstanding stock or shares to
acquire stock or shares for cash, other property, or a
combination thereof or by any other means, unless the
transaction is consented to by vote of a majority of the
continuing directors; or (b) continuing directors cease to
constitute a majority of the board.
(iv) The term "continuing director" shall mean any director
of the corporation who (a) was a member of the initial board
of directors of the corporation as voted by the incorporators
of the corporation, or (b) was recommended for his initial
term of office by a majority of continuing directors in
office at the time of such recommendation.
Nothing contained in this Article shall (i) limit the power
of the corporation to indemnify employees and agents of the
corporation or its subsidiaries other than directors and
officers on any terms it deems appropriate not prohibited by
law, (ii) limit the power of the corporation to indemnify
directors and officers for expenses incurred in suits,
actions, or other proceedings initiated by such director or
officer or (iii) affect any rights to indemnification to
which corporation personnel other than directors and officers
may be entitled by contract or otherwise. The rights
provided in this Article shall not be exclusive of or affect
any other right to which any director or officer may be
entitled and such rights shall inure to the benefit of its or
his successors, heirs, executors, administrators and other
legal representatives. Such other rights shall include all
powers, immunities and rights of reimbursement allowable
under the laws of The Commonwealth of Massachusetts.
No amendment to or repeal of this Article shall apply to or
have any effect upon the liability, exoneration or
indemnification of any director or officer for or with
respect to any acts or omissions of the director or officer
occurring prior to such amendment or repeal.
<PAGE>
Initial Directors
Article VIII (b)
Name Residence Post Office Address
---- ---------- -------------------
Joan T. Bok 53 Pickney Street 25 Research Drive
Boston, MA 02114 Westborough, MA 01582
John H. Dickson 17 Dunster Street 25 Research Drive
Needham, MA 02191 Westborough, MA 01582
Alfred D. Houston 19 Tanglewood Road 25 Research Drive
Wellesley, MA 02181 Westborough, MA 01582
Cheryl A. LaFleur 2 Lilac Circle 25 Research Drive
Wellesley, MA 02181 Westborough, MA 01582
John W. Rowe 929 Salem End Road 25 Research Drive
Framingham, MA 01701 Westborough, MA 01582
Jeffrey D. Tranen 12 Whitridge Road 25 Research Drive
So. Natick, MA 01760 Westborough, MA 01582
<PAGE>
ARTICLE VII
The effective date of organization of the corporation shall be the date
approved and filed by the Secretary of the Commonwealth. If a later effective
date is desired, specify such date which shall not be more than thirty days
after the date of filing.
The information contained in ARTICLE VIII is NOT a PERMANENT part of the
Articles of Organization and may be changed ONLY by filing the appropriate
form provided therefor.
ARTICLE VIII
a. The post office address of the corporation IN MASSACHUSETTS is:
25 Research Drive, Westborough, MA 01582
b. The name, residence and post office address (if different) of
the directors and officers of the corporation are as follows:
<TABLE>
<CAPTION>
NAME RESIDENCE POST OFFICE ADDRESS
---- ---------- -------------------
<S> <C> <C> <C>
President John H. Dickson 17 Dunster Street 25 Research Drive
Needham, MA 02191 Westborough, MA 01582
Treasurer Howard W. McDowell 10 Hawthorne Street 25 Research Drive
Franklin, MA 02038 Westborough, MA 01582
Clerk Gregory A. Hale 39 Old Village Road 25 Research Drive
Sturbridge, MA 01566 Westborough, MA 01582
Directors See attached.
</TABLE>
c. The fiscal year (i.e., tax year) of the corporation shall end on
the last day of the month of: December
d. The name and BUSINESS address of the RESIDENT AGENT of the
corporation, if any, is: None
ARTICLE IX
By-laws of the corporation have been duly adopted and the president,
treasurer, clerk and directors whose names are set forth above, have been duly
elected.
IN WITNESS WHEREOF and under the pains and penalties of perjury, I/WE, whose
signature(s) appear below as incorporator(s) and whose names and business or
residential address(es) ARE CLEARLY TYPED OR PRINTED beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws Chapter 156B and do hereby sign these Articles of
Organization as incorporator(s) this 12th day of June 1996.
s/Kirk Ramsauer s/Gregory A. Hale
Kirk L. Ramsauer Gregory A. Hale
25 Research Drive 25 Research Drive
Westborough, MA 01582 Westborough, MA 01582
NOTE:
If an already-existing corporation is acting as incorporator, type in the
exact name of the corporation, the state or other jurisdiction where it
was incorporated, the name of the person signing on behalf of said
corporation and the title he/she holds or other authority by which such
action is taken.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER l56B, SECTION 12
==================================================
I hereby certify that, upon an examination of
these articles of organization, duly submitted to
me, it appears that the provisions of the General
Laws relative to the organization of corporations
have been complied with, and I hereby approve said
articles; and the filing fee in the amount of $200
having been paid, said articles are deemed to have
been filed with me this 14th day of June, 1996.
Effective date
s/William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
FILING FEE: 1/10 of 1% of the total amount of the
authorized capital stock, but not less than
$200.00. For the purpose of filing, shares of
stock with a par value less than one dollar or no
par stock shall be deemed to have a par value of
one dollar per share.
PHOTOCOPY OF ARTICLES OF ORGANIZATION OT BE SENT
Attorney Gregory A. Hale
New England Power Service Company
25 Research Drive
Westborough, MA 01582
Telephone: (508) 389-2729
<PAGE>
Exhibit 3(ii)
B Y - L A W S
OF
NEES ENERGY, INC.
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the
stockholders shall be held at the principal office of the
corporation or at such other place in Massachusetts as the
President or a majority of the Directors may designate at two
o'clock in the afternoon of the fourth Friday in March in each
year, if it be not a legal holiday, and if it be a legal holiday,
then at the same hour on the next succeeding day not a legal
holiday. Purposes for which the annual meeting is to be held
additional to those prescribed by law, by the articles of
organization, and by these by-laws may be specified by the board
of directors or by writing signed by the president or by a
majority of the directors or by three or more stockholders who
are entitled to vote and who hold at least one-tenth part in
interest of the capital stock.
If such annual meeting is omitted on the day herein provided
therefor, a special meeting may be held in place thereof, and any
business transacted or elections held at such meeting shall have
the same effect as if transacted or held at the annual meeting.
Section 2. Special Meetings of Stockholders. Special
meetings of the stockholders may be called to be held anywhere in
Massachusetts by the president or by a majority of the directors,
and shall be called by the clerk or, in case of the death,
absence, incapacity or refusal of the clerk, by any other officer
of the corporation, upon written application of one or more
stockholders who are entitled to vote and who hold at least
one-tenth part in interest of the capital stock entitled to vote
at the meeting, stating the time, place and purpose of the
meeting. No business shall be transacted at a special meeting
except as is included within the notice of said meeting.
Section 3. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the stockholders may be
taken without a meeting if all the stockholders consent to the
action in writing and the written consents are filed with the
records of the meetings of stockholders. Such consents shall be
treated for all purposes as a vote at a meeting.
Section 4. Notice of Meetings of Stockholders. A written or
printed notice of each meeting of stockholders, stating the
place, day and hour thereof and the purpose for which the meeting
is called, shall be given by the clerk, at least seven days
<PAGE>
before such meeting, to each stockholder, by leaving such notice
with him or at his residence or usual place of business, or by
mailing it, postage prepaid and addressed to such stockholder at
his address as it appears upon the books of the corporation. In
the absence or disability of the clerk, such notice may be given
by a person designated either by the clerk or by the person or
persons calling the meeting or by the board of directors. No
notice of the time, place or purpose of any regular or special
meeting of the stockholders shall be required if every
stockholder entitled to notice thereof is present in person or is
represented at the meeting by proxy or if every such stockholder,
or his attorney thereunto authorized, by a writing which is filed
with the records of the meeting, waives such notice.
Section 5. Quorum of Stockholders. At any meeting of the
stockholders, a majority of all stock issued and outstanding and
entitled to vote upon a question to be considered at the meeting
shall constitute a quorum for the consideration of such question,
but a less interest may adjourn any meeting from time to time,
and the meeting may be held as adjourned without further notice.
When a quorum is present at any meeting, a majority of the stock
represented thereat and entitled to vote shall, except where a
larger vote is required by law, by the articles of organization,
or by these by-laws, decide any question brought before such
meeting.
Section 6. Proxies and Voting. Stockholders who are
entitled to vote shall have one vote for each share of stock
owned by them. Stockholders may vote either in person or by
proxy in writing dated not more than six months before the
meeting named therein, which shall be filed with the clerk of the
meeting before being voted. Such proxies shall entitle the
holders thereof to vote at any adjournment of such meeting but
shall not be valid after the final adjournment of such meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Powers of Directors. The board of directors
shall have, and may exercise all the powers of the corporation,
except such as are conferred upon the stockholders by law, by the
agreement of association, and by these by-laws.
Section 2. Election of Directors. A board of not less than
three directors shall be chosen by ballot at the annual meeting
of the stockholders or at the special meeting held in place
thereof. The number of directors for each corporate year shall
be fixed by vote at the meeting at which they are elected but the
stockholders may, at any special meeting held for the purpose
during any such year, increase or decrease (within the limit
above specified) the number of directors as thus fixed, and elect
new directors to complete the number so fixed, or remove
directors to reduce the number of directors to the number so
<PAGE>
fixed. No director need be a stockholder. Subject to law, to
the agreement of association and to the other provisions of these
by-laws, each director shall hold office until the next annual
meeting and until his successor is chosen and qualified.
Section 3. Regular Meetings of the Board of Directors.
Regular meetings of the board of directors may be held at such
places and at such times as the board may by vote from time to
time determine, and if so determined, no notice thereof need be
given.
Section 4. Special Meetings of the Board of Directors.
Special meetings of the board of directors may be held at any
time and at any place when called by the president, treasurer, or
two or more directors, reasonable notice thereof being given to
each director, or at any time without call or formal notice,
provided all the directors are present or waive notice thereof by
a writing which is filed with the records of the meeting. In any
case it shall be deemed sufficient notice to a director to send
notice by mail or telegram at least forty-eight hours before the
meeting addressed to him at his usual or last known business or
residence address.
Section 5. Consent in Lieu of Director's Meetings. Any
action required or permitted to be taken at any meeting of the
board of directors may be taken without a meeting if all of the
directors consent to the action in writing and the written
consents are filed with the records of the meetings of directors.
Such consents shall be treated for all purposes as a vote at a
meeting.
Section 6. Telephonic or Similar Director's Meetings.
Members of the board of directors may participate in any regular
or special meeting of the board of directors or any committee
thereof by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other at the same
time, and participation in a meeting in such a manner shall
constitute presence in person at such a meeting.
Section 7. Quorum of the Board of Directors. A majority of
the board of directors shall constitute a quorum for the
transaction of business, but a less number may adjourn any
meeting from time to time, and the meeting may be held as
adjourned without further notice. When a quorum is present at
any meeting, a majority of the members in attendance thereat
shall decide any question brought before such meeting.
Section 8. Committees. Standing or temporary committees may
be appointed from its own number by the board of directors from
time to time, with such duties and powers as may be prescribed by
vote of the board of directors.
Section 9. Vacancies in Board of Directors. If the office
of any director is vacant for any reason, including an increase
<PAGE>
in the number of directors, the remaining directors, though less
than a quorum, may elect a successor or successors who shall hold
office for the unexpired term. If, for any reason, the remaining
directors do not elect such successor or successors, the
stockholders may elect such successor or successors.
ARTICLE III
LIABILITY AND INDEMNIFICATION
No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director notwithstanding any
provision of law imposing such liability, except with respect to
any matter as to which such liability shall have been imposed (i)
for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section sixty-one or
sixty-two of chapter one hundred and fifty-six B of the General
Laws of Massachusetts, or (iv) for any transaction from which the
director derived an improper personal benefit.
The corporation shall indemnify each of its directors and
officers against any loss, liability or expense, including
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees, imposed upon or reasonably
incurred by him in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal,
including but not limited to derivative suits (to the extent
permitted by law), in which he may be involved or with which he
may be threatened, while in office or thereafter, by reason of
his being or having been a director or officer, except with
respect to any matter as to which he shall have been adjudicated
in such action, suit or proceeding not to have acted in good
faith in the reasonable belief that his action was in the best
interests of the corporation, or, to the extent that such matter
relates to service with respect to any employee benefit plan, as
in the best interests of the participants or beneficiaries of
such plan. As to any matter disposed of by a compromise payment
by a director or officer, pursuant to a consent decree or
otherwise, no indemnification either for said 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, if no change in
control has occurred (a) by a disinterested majority of the
directors then in office, (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 director or officer appears to have acted in good faith
in the reasonable belief that his action was in the best
interests of the corporation, or (c) by the vote, at a meeting
duly called and held, of the holders of a majority of the shares
outstanding and entitled to vote thereon, exclusive of any shares
<PAGE>
owned by any interested director or officer or, if a change in
control shall have occurred, by an opinion in writing of
independent legal counsel to the effect that such director or
officer appears to have acted in good faith in the reasonable
belief that his action was in the best interests of the
corporation.
Expenses incurred with respect to the defense or disposition
of any action, suit or proceeding heretofore referred to in this
Article shall be advanced by the corporation prior to the final
disposition of such action, suit or proceeding, upon receipt of
an undertaking by or on behalf of the recipient to repay such
amount if it is ultimately determined that he is not entitled to
indemnification, which undertaking shall be accepted without
reference to the financial ability of the recipient to make such
repayment. If in an action, suit or proceeding brought by or in
right of the corporation, a director is held not liable, whether
because relieved of liability under the first paragraph of this
Article or otherwise, he shall be deemed to have been entitled to
indemnification for expenses incurred in defense of said action,
suit or proceeding.
As used in this Article:
(i) The term "officer" includes (a) persons who serve at the
written request of the corporation as directors, officers, or
trustees of another organization and (b) employees of the
corporation and its affiliates who serve in any capacity with
respect to benefit plans for the corporation's employees.
(ii) An "interested" director or officer is one against whom
in such capacity the proceeding in question or another proceeding
on the same or similar grounds is then pending.
(iii) A "change in control" occurs when: (a) any individual,
corporation, association, partnership, joint venture, trust or
other entity or association thereof acting in concert (excluding
any employee benefit plan, dividend reinvestment plan or similar
plan of the corporation, or any trustee thereof acting in such
capacity) acquires more than 20% of the corporation's outstanding
stock having general voting rights or more than 20% of the common
shares of any entity owning more than 50% of the corporation's
outstanding stock having general voting rights, whether in whole
or in part, by means of an offer made publicly to the holders of
all or substantially all of such outstanding stock or shares to
acquire stock or shares for cash, other property, or a
combination thereof or by any other means, unless the transaction
is consented to by vote of a majority of the continuing
directors; or (b) continuing directors cease to constitute a
majority of the board.
(iv) The term "continuing director" shall mean any director
of the corporation who (a) was a member of the board of directors
of the corporation on the later of March 1, 1988, or the date the
director or officer seeking indemnification first became such, or
<PAGE>
(b) was recommended for his initial term of office by a majority
of continuing directors in office at the time of such
recommendation.
Nothing contained in this Article shall (i) limit the power
of the corporation to indemnify employees and agents of the
corporation or its subsidiaries other than directors and officers
on any terms it deems appropriate not prohibited by law, (ii)
limit the power of the corporation to indemnify directors and
officers for expenses incurred in suits, actions, or other
proceedings initiated by such director or officer or (iii) affect
any rights to indemnification to which corporation personnel
other than directors and officers may be entitled by contract or
otherwise. The rights provided in this Article shall not be
exclusive of or affect any other right to which any director or
officer may be entitled and such rights shall inure to the
benefit of its or his successors, heirs, executors,
administrators and other legal representatives. Such other
rights shall include all powers, immunities and rights of
reimbursement allowable under the laws of The Commonwealth of
Massachusetts.
No amendment to or repeal of this Article shall apply to or
have any effect upon the liability, exoneration or
indemnification of any director or officer for or with respect to
any acts or omissions of the director or officer occurring prior
to such amendment or repeal.
ARTICLE IV
OFFICERS AND AGENTS
Section 1. Election and Appointment. The officers shall be
a president, a clerk, a treasurer and such other officers and
agents as the board of directors may in their discretion appoint.
The treasurer and the clerk shall be chosen by ballot at the
annual meeting of the stockholders. The president shall be
elected annually by the board of directors after its election by
the stockholders. The president shall be a director. So far as
is permitted by law, any two or more offices may be filled by the
same person. Subject to law, to the articles of organization,
and to the other provisions of these by-laws, the treasurer and
clerk shall each hold office until the next annual meeting of
stockholders and until his successor is chosen and qualified, the
president shall hold office until the first meeting of directors
after the next annual meeting of stockholders and until his
successor is chosen and qualified and the other officers and
agents shall hold office during the pleasure of the board of
directors or for such term as the board of directors or executive
committee shall prescribe. Each officer shall, subject to these
by-laws, have in addition to the duties and powers herein set
forth such duties and powers as are commonly incident to his
office, and such duties and powers as the board of directors or
executive committee shall from time to time designate.
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Section 2. President and Vice President. Except as
otherwise determined by the board of directors the president
shall be the chief executive officer of the corporation and shall
preside at all meetings of the stockholders and of the board of
directors at which he is present. The president shall have
custody of the treasurer's bond.
Any vice-president shall have such powers as the board of
directors or executive committee shall from time to time
designate.
Section 3. Clerk. The clerk shall keep an accurate record
of the proceedings of all meetings of the stockholders and of the
board of directors in books provided for the purpose, which books
shall be kept at the principal office of the corporation and
shall be open at all reasonable times to the inspection of any
stockholder. In the absence of the clerk at any such meeting the
proceedings of such meeting shall be recorded by an assistant
clerk, or if there be none, or if he is absent, by a temporary
clerk chosen of the meeting in the aforesaid books. The clerk
and any assistant clerk shall be sworn.
Section 4. Treasurer and Assistant Treasurer. The treasurer
shall, subject to the direction and under the supervision of the
board of directors, have general charge of the financial concerns
of the corporation and the care and custody of the funds and
valuable papers of the corporation, except his own bond, and he
shall have power to endorse for deposit or collection all notes,
checks, drafts, etc., payable to the corporation or its order,
and to accept drafts on behalf of the corporation. He shall
keep, or cause to be kept accurate books of account, which shall
be the property of the corporation. If required by the board of
directors he shall give bond for the faithful performance of his
duty in such form, in such sum, and with such sureties as the
board of directors or executive committee shall require.
Any assistant treasurer shall have such powers as the board
of directors or executive committee shall from time to time
designate.
Section 5. Removals of Directors, Officers, and Agents. The
stockholders may, at any special meeting called for the purpose,
by vote of a majority of the capital stock issued and outstanding
and entitled to vote, remove from office the treasurer, clerk or
any director, and elect his successor. The board of directors
may likewise, by vote of a majority of their entire number, as
fixed by the stockholders, remove from office any officer or
agent of the corporation; provided, however, that the board of
directors may remove the treasurer or clerk for cause only.
Section 6. Vacancies. If the office of any officer or
agent, one or more, becomes vacant by reason of death,
resignation, removal, disqualification or otherwise, the
directors may unless such vacancy, if in the office of the
treasurer, clerk, or director, shall have been filled by the
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stockholders, choose by a majority vote of their entire number, a
successor or successors, who shall hold office for the unexpired
term, subject to the provisions of Section 6 of this Article IV.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. Each stockholder shall be entitled
to a certificate of the capital stock of the corporation owned by
him in such form as shall in conformity to law, be prescribed
from time to time by the board of directors or executive
committee. Such certificate shall be signed by the president or
a vice-president and by the treasurer or an assistant treasurer,
and shall bear the seal of the corporation.
Section 2. Transfer Books. The treasurer or such agent or
agents as may be employed by the treasurer with the approval of
the board of directors or executive committee shall keep the
stock and transfer books of the corporation and a record of all
certificates of stock issued and of all transfers of stock and a
register of all the stockholders, their addresses and the number
of shares held by each in books provided and approved by the
board of directors or executive committee for that purpose. The
transfer books of the capital stock of the corporation may be
closed for such period from time to time in anticipation of
stockholders' meetings or the declaration or payment of
dividends, as the board of directors or executive committee may
determine.
Section 3. Transfer of Shares. Subject to the restrictions,
if any, imposed by the articles of incorporation, title to a
certificate of stock and to the shares represented thereby shall
be transferred only by delivery of the certificate properly
endorsed, or by delivery of the certificate accompanied by a
written assignment of the same, or a written power of attorney to
sell, assign, or transfer the same or the shares represented
thereby, properly executed; but the person registered on the
books of the corporation as the owner of shares shall have the
exclusive right to receive dividends thereon and to vote thereon
as such owner, shall be held liable for such calls and
assessments, if any, as may lawfully be made thereon, and except
only as may be required by law, may in all respects be treated by
the corporation as the exclusive owner thereof.
It shall be the duty of each stockholder to notify the
corporation of his post office address.
Section 4. Loss of Certificates. In case of the alleged
loss or destruction, or the mutilation of a certificate of stock,
a duplicate certificate may be issued in place thereof, upon such
reasonable terms as the board of directors may prescribe.
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ARTICLE VII
SEAL
The seal of the corporation shall, subject to alteration by
the board of directors or executive committee, consist of a
flat-faced circular die with the words "NEES ENERGY, INC.
INCORPORATED MASSACHUSETTS 1996" cut or engraved thereon.
ARTICLE VIII
EXECUTION OF PAPERS
Except as the board of directors or executive committee may
generally or in particular cases authorize the execution thereof
in some other manner, all deeds, leases, transfers, contracts,
bonds, notes, checks, drafts and other obligations made, accepted
or endorsed by the corporation, shall be signed by the chairman,
any vice chairman, the president, any vice president, the
treasurer, or any assistant treasurer.
ARTICLE IX
FISCAL YEAR
Except as from time to time otherwise provided by the board
of directors, the fiscal year of the corporaton shall be the
calendar year.
ARTICLE X
AMENDMENTS
These by-laws may be amended, altered or repealed at any
meeting of the stockholders, provided notice of the proposed
amendment, alteration or repeal is given in the notice of said
meeting.
