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Registration No.
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
__________________
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________________
COMMONWEALTH ENERGY SYSTEM
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-1662010
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE MAIN STREET
CAMBRIDGE, MASSACHUSETTS 02142-9150
(Address of principal executive offices) (Zip Code)
617-225-4000
(Registrant's telephone number, including area code)
__________________
James D. Rappoli, Financial Vice President and Treasurer
One Main Street, Cambridge, Massachusetts, 02142-9150
(Name and address of agent for service)
__________________
Approximate Date of Commencement of Proposed Sale to Public:
As soon as practicable after the effective date of this Registration Statement.
__________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / X /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. / /
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Proposed
Proposed Maximum Amount
Amount Maximum Aggregate Of
Title Of Each Class Of To Be Price Offering Registration
Securities To Be Registered Registered Per Unit Price Fee
______________________________________________________________________________
Common Shares of Beneficial
interest, $4 Par Value 1,000,000 Shares $37.94* $37,940,000* $13,082.76
______________________________________________________________________________
*Estimated solely for the purpose of calculating the registration fee.
__________________
This Registration Statement relates to 1,000,000 Common Shares of
Commonwealth Energy System to be registered pursuant to this Registration
Statement and, in addition, pursuant to Rule 429(a), to the 79,079 unsold
Common Shares of the System registered under Registration Statement No. 33-
44161.
__________________
This Registration Statement shall become effective in accordance with
Section 8(a) of the Securities Act of 1933 and Rule 459 thereunder.
______________________________________________________________________________
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PROSPECTUS
Commonwealth Energy System
(A Massachusetts Trust)
DIVIDEND REINVESTMENT AND COMMON SHARE PURCHASE PLAN
Common Shares of Beneficial Interest
($4 Par Value)
__________________
The Dividend Reinvestment and Common Share Purchase Plan (the Plan) of
Commonwealth Energy System (the System) provides holders of its Common Shares
a method of purchasing additional Common Shares without payment of any
brokerage commission or service charge. Any holder of record of Common Shares
is eligible to join the Plan. A participant may withdraw from the Plan at any
time.
Participants in the Plan may:
-- have cash dividends on Common Shares automatically reinvested;
or
-- continue to receive cash dividends and make optional cash
payments which will be invested monthly; or
-- invest cash dividends and make optional cash payments.
The Common Shares offered through the Plan are issued by the System
directly or are purchased on the open market through a Purchasing
Representative chosen by the System. The purchase price for Common Shares
issued by the System directly will be the average of the high and low sale
prices of the System's Common Shares as reported on the New York Stock
Exchange composite transactions tape on the Investment Date, hereinafter
defined, or the next preceding day on which the System's Common Shares were
traded if there is no trade reported on the Investment Date. The purchase
price for Common Shares purchased on the open market will be based on the
prevailing market prices at which the Purchasing Representative acquires the
Common Shares.
This Prospectus relates to 1,000,000 Common Shares of the System
registered pursuant to the Registration Statement of which this Prospectus is
a part and, in addition, pursuant to Rule 429(a) under the Securities Act of
1933, to the 79,079 unsold Common Shares registered under Registration
Statement No. 33-44161. Outstanding Common Shares are, and the Common Shares
offered hereby will be, listed on the New York, Boston and Pacific Stock
Exchanges. The average of the high and low sale prices as listed on the New
York Stock Exchange on September 16, 1994 was $37.94. It is suggested that
this Prospectus be retained for future reference.
Expenses payable by the System in connection with the operation of the
Plan during the next year are estimated to be $25,000.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________________
The date of this Prospectus is September 23, 1994.
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No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus;
any information or representation not contained herein must not be relied upon
as having been authorized by the System. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, any securities other
than the securities covered by this Prospectus; nor does it constitute an
offer to sell, or a solicitation of an offer to buy, any of the securities
covered by this Prospectus by the System in any state or to any person to whom
it is unlawful for the System to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the System since the date hereof.
__________________
AVAILABLE INFORMATION
The System is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (SEC). Reports, proxy
statements and other information filed by the System can be inspected and
copied at the public reference facilities of the SEC, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the following
Regional Offices: 7 World Trade Center, Suite 1300, New York, New York, 10048;
and Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. The System's Common Shares are listed on the New York,
Boston and Pacific Stock Exchanges and the above material can also be
inspected at their offices. Copies can be obtained by mail at prescribed
rates. Requests should be directed to the SEC's Public Reference Section,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
Additional updating information with respect to the securities and the
Plan covered herein may be provided in the future to Plan participants by
means of appendices or supplements to the Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the
following documents heretofore filed with the Securities and Exchange
Commission:
1. the System's Annual Report on Form 10-K for the year ended
December 31, 1993;
2. the System's 1994 Proxy Statement and 1993 Financial
Information, dated April 1, 1994, in connection with its Annual
Meeting of Shareholders held on May 5, 1994; and
3. the System's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994 and June 30, 1994.
All documents filed by the System pursuant to Sections 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common Shares
offered under the registration statement of which this Prospectus is a part
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents.
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Any person receiving a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated in
this Prospectus by reference, other than exhibits to such documents. Requests
should be made by writing to Shareholder Services, Commonwealth Energy System,
P.O. Box 9150, Cambridge, Massachusetts 02142-9150 or by calling the
appropriate toll-free number listed below:
1-800-447-1183
(outside Massachusetts)
1-800-336-3773
(within Massachusetts)
THE SYSTEM
Commonwealth Energy System (the System), a Massachusetts trust with
offices at One Main Street, Cambridge, Massachusetts 02142-9150 (telephone
number 617-225-4000), is an unincorporated business organization with
transferable shares. The System is organized as a business trust under a
Declaration of Trust dated December 31, 1926, as amended, pursuant to the laws
of Massachusetts. The System is an exempt holding company under the
provisions of the Public Utility Holding Company Act of 1935, holding
investments in common stock of four operating public utility companies and a
steam distribution company: Cambridge Electric Light Company, Canal Electric
Company, Commonwealth Gas Company, Commonwealth Electric Company and
COM/Energy Steam Company. All of these subsidiaries are wholly-owned by the
System. The System also owns all of the capital stock of a services company,
an LNG service company and five real estate trusts.
USE OF PROCEEDS
The net proceeds received upon the direct issue of the System's Common
Shares will be advanced by the System to subsidiary companies. The subsidiary
companies will use the advances for the purpose of financing additions to
property, plant and equipment and for general working capital needs.
Where the System elects to forward the reinvested dividends and/or
optional cash payments to a Purchasing Representative who will purchase Common
Shares of the System on the open market at prevailing market prices, the
System will receive no proceeds to advance to subsidiary companies.
DESCRIPTION OF THE PLAN
The following thirty numbered questions and answers constitute the
provisions of the Plan. Shareholders presently enrolled in the Plan need take
no action to continue to participate in the Plan.
Purpose
1. What is the purpose of the Plan?
The purpose of the Plan is to provide holders of record of Common Shares
of the System with a simple and convenient method of either investing cash
dividends on those Common Shares or making optional cash payments, or both, to
purchase additional Common Shares of the System without payment of any
brokerage commissions, fees, service charges or other expenses. In the event
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that these funds are used to purchase Common Shares directly from the System,
the proceeds will be advanced to subsidiary companies for their continuing
construction programs and for general working capital needs. (See Question 26
for tax consequences of participation in the Plan.)
Advantages
2. What are the advantages of the Plan?
Participants in the Plan may (a) have cash dividends on Common Shares
automatically reinvested, or (b) continue to receive cash dividends on Common
Shares and make optional cash payments which will be invested monthly, or (c)
invest both cash dividends on Common Shares and optional cash payments.
No brokerage commissions, fees, service charges, or other expenses are
paid by participants in connection with purchases under the Plan. Commissions
paid by the Plan in the event of open market purchases by the Purchasing
Representative will be taxable to Plan participants. (See Question 26 for
additional information.)
Full investment of funds is possible under the Plan because the Plan
permits fractional shares, as well as whole shares, to be credited to
participants' accounts. In addition, dividends on whole and fractional shares
held in participants' Plan accounts will be reinvested in additional shares
and such shares will be credited to participants' accounts.
Participants avoid the necessity for safekeeping of certificates for
shares held in their accounts under the Plan. The Statements of Account
provide simplified recordkeeping.
Investment Date and Purchase Price
3. What will be the Investment Date and price of Common Shares purchased
under the Plan?
The Investment Date will be the first day of each month. Cash dividends
on Common Shares will be reinvested as of the first day of each month in which
a dividend is paid (dividends are normally paid on the first day of February,
May, August and November). Optional cash payments will be invested as of the
first day of each month following receipt by the System.
The price of Common Shares issued directly by the System will be the
average of the high and low sale prices as reported on the New York Stock
Exchange composite transactions tape on the Investment Date (or the next
preceding day on which the System's Common Shares were traded if there is no
trade reported on the composite transactions tape on the Investment Date).
The price of Common Shares purchased on the open market will be based on
the prevailing market prices at which the Purchasing Representative acquires
the Common Shares.
No interest will be paid on cash payments received by the System.
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Administration
4. Who administers the Plan for participants?
The System, as agent, administers the Plan for participating
shareholders. The System keeps a continuing record of participants' accounts,
prepares and sends Statements of Account to participants and performs other
duties relating to the Plan, including, when appropriate, the forwarding of
cash dividends on Common Shares and optional cash payments to the Purchasing
Representative. The Purchasing Representative acts on behalf of participants
in buying Common Shares of the System on the open market at prevailing market
prices.
Common Shares purchased under the Plan will be registered in the name of
a nominee of the System.
Participation
5. Who is eligible to participate?
All holders of record of Common Shares of the System are eligible to
participate in the Plan. In order to be eligible to participate, beneficial
owners of Common Shares of the System whose shares are registered in names
other than their own (e.g., in the name of a broker or bank nominee) must
become shareholders of record by having their shares registered in their
names.
6. How does an eligible shareholder participate?
Shareholders of record may join the Plan by signing an Authorization Form
and returning it to Commonwealth Energy System, Dividend Reinvestment Plan,
P.O. Box 9150, Cambridge, Massachusetts 02142-9150. An Authorization Form may
be obtained at any time by written request to the System or by telephoning
Shareholder Services at the appropriate toll-free number listed on page 4 of
this Prospectus.
Shareholders already enrolled in the Plan need take no action to continue
to participate in the Plan.
7. What does the Authorization Form provide?
The signed Authorization Form allows a shareholder to join the Plan and
select a form of participation.
A signed Authorization Form on which the "Dividend Reinvestment and
Optional Cash Payment" box is checked, indicating full participation, directs
the System to reinvest all of the participant's cash dividends on the Common
Shares then or subsequently registered in the shareholder's name and to
receive and invest any optional cash payments the participant chooses to make.
Reinvestment of a portion of a participant's cash dividends on Common Shares
may be accommodated upon request.
A signed Authorization Form on which the "Optional Cash Payment Only" box
is checked, indicating participation through optional cash payments only,
directs the System to continue to send cash dividends on Common Shares to the
shareholder of those Common Shares registered in the shareholder's name and to
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receive and invest only such optional cash payments as the participant chooses
to make.
Regardless of the form of participation elected, the Authorization Form
directs that all dividends paid on Common Shares credited to a participant's
account under the Plan will be reinvested for the participant.
8. When may a shareholder join the Plan?
A shareholder of record of Common Shares may join the Plan at any time.
In order to have cash dividends on Common Shares reinvested, the signed
Authorization Form must be received by the System by the fifteenth of the
month preceding a dividend payment date. Otherwise, the participant will
receive that particular dividend in cash; subsequent dividends, however, will
be reinvested (Common Share dividends are normally paid on the first day of
February, May, August and November).
Cash Dividends
9. How are cash dividends on Common Shares reinvested?
Cash dividends will be used to purchase Common Shares of the System in
either of the following ways as determined by the System:
a.) Open Market Purchases:
The System will forward the cash dividends on Common Shares of Plan
participants to the Purchasing Representative. The Purchasing Representative
will then purchase Common Shares on the open market at prevailing market
prices as promptly as it deems advisable, but no later than the last day of
the month in which a dividend is paid. The purchase will be consistent with
and subject to the Purchasing Representative's fiduciary obligations, market
conditions and the requirements of Federal securities laws. All Common Shares
purchased in this manner will be allocated to the accounts of participants,
and will be deemed invested for income tax purposes on the Investment Date.
b.) Direct Issue Purchases:
On each dividend payment date, the System will apply the dividends on
Common Shares held in a participant's Plan account to the direct issue of
additional Common Shares.
Optional Cash Payments
10. How does the optional cash payment work?
Optional cash payments may be made in varying amounts of at least $10 per
payment but not more than $5,000 per month. There is no obligation to make an
optional cash payment each month.
Optional cash payments will be used to purchase Common Shares of the
System in either of the following ways as determined by the System:
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a.) Open Market Purchases:
On each Investment Date, the System will forward any optional cash
payments received prior to such Investment Date to the Purchasing
Representative. The Purchasing Representative will then purchase Common
Shares of the System on the open market at prevailing market prices as
promptly as it deems advisable but no later than the last day of the month,
consistent with and subject to the Purchasing Representative's fiduciary
obligations, market conditions and the requirements of federal securities
laws. All Common Shares purchased in this manner will be allocated to the
accounts of participants, and will be deemed invested for income tax purposes
on the Investment Date.
If the "Optional Cash Payment Only" box on the Authorization Form is
checked, the System will continue in the usual manner to pay cash dividends on
those Common Shares registered in the participant's name, but the dividends on
Common Shares held in a participant's Plan account will be forwarded to the
Purchasing Representative for investment at prevailing market prices.
b.) Direct Issue Purchases:
On each Investment Date, the System will apply any optional cash payment
received prior to such Investment Date to the direct issue of additional
Common Shares of the System for the account of the participant.
If the "Optional Cash Payment Only" box on the Authorization Form is
checked, the System will continue to pay cash dividends on those Common Shares
registered in the participant's name, but the dividends on Common Shares held
in a participant's Plan account will be applied to the direct issue of Common
Shares from the System for the account of the participant.
11. How are optional cash payments made?
The option to make cash payments will be available to participants each
month. Optional cash payments by a participant must be at least $10 per
payment and may not exceed a total of $5,000 per month. The $10 minimum will
be waived for foreign participants (see Question 27).
Upon enrollment, a participant may make an initial optional cash payment
by enclosing a check with the Authorization Form. A cash payment
acknowledgement form and return envelope (for subsequent optional cash
payments) will be mailed to a participant after each optional cash payment.
Following the investment of the optional cash payment, the System will
also send a current Statement of Account to the participant. Subsequent
optional cash payments may also be made by removing the top portion of the
Statement of Account showing the participant's name, address and account
number and returning the completed form with a check to the System in the
return envelope provided. Checks for optional cash payments must be made
payable to CES-DRP, and mailed to Commonwealth Energy System, Dividend
Reinvestment Plan, P.O. Box 9150, Cambridge, Massachusetts 02142-9150. Please
do not send cash.
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If a participant's written request is received by the System prior to the
Investment Date, any optional cash payment which would otherwise be invested
will be returned to the participant.
12. What will be done with optional cash payments which are received
late?
Optional cash payments received by the System on or after the Investment
Date will be held until the next Investment Date unless the participant
requests that the payment be returned under both the open market or direct
issue methods. No interest will be paid on optional cash payments. In order
to assure that optional cash payments are received by the System prior to any
Investment Date, it is suggested that participants should allow sufficient
time for mail delivery.
Costs
13. Are there any expenses to participants in connection with purchases
under the Plan?
No. There are no brokerage commissions, fees, service charges or other
expenses when Common Shares are purchased through the Plan. All costs of
administration of the Plan are to be paid by the System. However, commissions
paid by the Plan in the event of open market purchases by the Purchasing
Representative will be taxable to Plan participants.
Purchases
14. How many Common Shares will be purchased for a participant?
The participant cannot specify the number of shares to be purchased
because the number of shares purchased depends on the amount of the
participant's dividend and/or optional cash payments, as well as the purchase
price of the Common Shares. Each participant's account will be credited with
that number of shares, including fractions computed to three decimal places,
equal to the total amount to be invested divided by the purchase price.
Reports to Participants
15. How will participants be advised of their purchase of Common Shares?
As soon as practicable after the Investment Date, the participant will
receive an acknowledgement form from the System. A Statement of Account will
be sent to the participant following activity in the Plan which may be
optional cash payments or the reinvestment of cash dividends on Common Shares.
These statements are the participant's continuing record of the cost of Common
Share purchases and should be retained for income tax purposes.
16. What other communications will participants receive?
Each participant will receive a copy of a current Prospectus. Following
each dividend payment date, a copy of the System's current Quarterly Report to
Shareholders will be mailed with a current Statement of Account. The mailing
will include any supplements or amendments to the current Prospectus. In
addition, the participant will receive the same communications as every other
shareholder, including the System's Annual Report to Shareholders, a Notice of
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Annual Meeting of Shareholders and Proxy Statement, a proxy card (see Question
25), and income tax information forms (see Question 26) reporting dividend
information.
Dividends
17. Will participants be credited with dividends on the fractional shares
held in the Plan?
Yes. It should be noted that the dividends are computed on the total
number of shares which are owned. It makes no difference whether the
participant holds the certificates for the shares or the shares are held in
the Plan.
Certificates for Shares
18. Will certificates be issued for Common Shares purchased?
Normally, certificates for Common Shares purchased under the Plan will
not be issued to participants. The number of shares held in a participant's
account under the Plan will be shown on the participant's Statement of
Account.
Certificates for any number of whole shares credited to a participant's
account under the Plan will be issued upon the written request of such
participant. A participant may use the reverse side of the top portion of the
Statement of Account for this purpose. The issuance of such certificates will
not terminate the participant's continuation in the Plan. Any request for the
issuance of certificates should be mailed to Commonwealth Energy System,
Dividend Reinvestment Plan, P.O. Box 9150, Cambridge, Massachusetts 02142-
9150. Any remaining whole shares and any fractional share will continue to be
held in the participant's account. Certificates for fractional shares will
not be issued under any circumstances.
Shares held in the account of a participant may not be readily
transferable until a certificate is issued and may not be acceptable as
collateral for loans. A participant who wishes to sell or pledge such shares
should request that certificates for such shares be issued in the
participant's name.
19. In whose name will certificates be registered when issued?
Accounts under the Plan are maintained in the names in which certificates
of the participants were registered at the time they entered the Plan.
Consequently, certificates for whole shares issued upon the request of a
participant will only be registered in the name of the participant. A
participant desiring to transfer shares held in the Plan must contact
Shareholder Services in writing and request that the shares be transferred to
the new account.
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Withdrawal
20. When may a participant withdraw from the Plan?
A participant may withdraw from the Plan at any time by giving written
notice to the System.
If a request to withdraw is received by Shareholder Services prior to the
Record Date for any dividend that would otherwise be reinvested for a
participant, the reinvestment feature will be terminated within a reasonable
time after receipt of the request so as to provide for the payment of a cash
dividend for the next quarter. If the request to withdraw is received by
Shareholder Services on or after the Record Date, the dividend paid on the
dividend payment date will be reinvested for the participant's account. The
request for termination will take effect prior to the next dividend payment.
Any optional cash payment which had been sent to Shareholder Services prior to
the receipt by the System of the request for termination will be returned to
the participant if it is practicable to do so.
Following withdrawal from the Plan, all subsequent dividends will be paid
to the shareholder in cash unless and until the shareholder elects to re-
enroll in the Plan (see Question 8).
21. How does a participant withdraw from the Plan?
In order to withdraw from the Plan, a participant must write to
Commonwealth Energy System, Dividend Reinvestment Plan, P.O. Box 9150,
Cambridge, Massachusetts 02142-9150, giving notice of the desire to withdraw
from the Plan and listing the account number. A participant may use the
reverse side of the top portion of the Statement of Account for this purpose.
When a participant withdraws from the Plan, or upon termination of the Plan by
the System, certificates for whole shares credited to the participant's
account under the Plan will be issued and a cash payment will be made for any
fractional share (see Question 22). The System will not repurchase or sell
for any participant any full shares credited to the participant's account in
the Plan.
22. What happens to a fractional share when a participant withdraws from
the Plan or the Plan is terminated?
When a participant withdraws from the Plan, a cash payment representing
the proceeds from the sale of any fractional share will be mailed directly to
the participant. This cash payment will be based on the most recent closing
price of the System's Common Shares on the New York Stock Exchange composite
transactions tape when the withdrawal request is received by the System.
Adjustments for fractional shares would also be made upon termination of the
Plan.
Other Information
23. How can a participant sell or transfer all of the shares registered
in the participant's name?
If a participant chooses to sell all of the shares registered in the
participant's name, the participant must first withdraw from the Plan (see
Questions 20 through 22). The System will not sell for any participant any
full shares credited to the participant's account in the Plan.
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If a participant wants to transfer all of the shares held in a joint
account in the Plan, the participant must notify the System in writing. Any
such written requests should be mailed to Commonwealth Energy System, Dividend
Reinvestment Plan, P.O. Box 9150, Cambridge, Massachusetts 02142-9150.
Until the System receives notification from the participant to do
otherwise, the System will continue to reinvest the dividends on the shares
credited to the account of the participant under the Plan.
24. What happens if the System issues a stock dividend, declares a stock
split or has a rights offering?
Stock dividends distributed on shares registered in the name of a
participant on the books of the System, as well as shares distributed on
account of any split of such shares, and warrants issued for rights applicable
to such shares in a rights offering, will be mailed directly to the
shareholder. Stock dividends on shares credited to a participant's account in
the Plan, or upon any split of such shares, will be credited to the
participant's account.
A participant's entitlement in a rights offering will be based upon the
participant's total holdings--those registered in the participant's name on
the books of the System and those credited to the participant's account under
the Plan. However, rights will be issued for the number of whole shares only
and rights based on a fractional share held in a participant's account will be
sold for the participant's account and the new proceeds will be applied as an
optional cash payment to purchase Common Shares under the Plan on the next
Investment Date.
25. How will a participant's shares be voted at shareholders' meetings?
A single proxy for all of the participant's shares--those registered in
the participant's name, if any, and those credited to the account of the
participant under the Plan--will be sent to each participant prior to each
shareholders' meeting. The participant may vote these shares in accordance
with this proxy or may vote in person at the shareholders' meeting.
26. What are the federal income tax consequences of participation in the
Plan?
a.) General:
A participant who did not elect or who was not eligible for the treatment
of reinvested dividends described in paragraph b, below, will be treated, for
federal income tax purposes, as having received on the Investment Date a
dividend equal to the full amount of the cash dividend paid even though that
amount is not actually received by the participant in cash but, instead, is
applied to the purchase of shares for the participant's account. Also, if
Common Shares are purchased on the open market, a participant's share of any
brokerage commissions paid by the System will be taxed as dividend income to
the participant.
A participant will not realize any taxable income upon receiving
certificates for whole shares, either upon the participant's request for
certificates for those shares or upon withdrawal from or termination of the
Plan. However, a participant may realize ordinary income or a capital gain or
<PAGE 13>
loss for a cash payment that is made in settlement of a fractional share upon
withdrawal from or termination of the Plan. Ordinary income or capital gain
or loss may also be realized upon withdrawal from the Plan, when any or all
whole shares are sold by the participant. The amount of income, capital gain
or loss will be the difference between the amount received and the tax basis
for both the fractional and whole shares which are sold.
b.) Individuals Who Elected to Defer Taxes on Reinvested Dividends:
The Economic Recovery Tax Act of 1981 provided that dividends reinvested
in newly issued shares of certain qualified reinvestment plans, such as the
System's, could be excluded from taxable income. The participant could elect
to exclude up to $750 per year ($1,500 on a joint return). This exclusion,
which began in 1982, expired after the 1985 tax year.
If a participant elected to defer the taxes on reinvested dividends
pursuant to this exclusion, Common Shares purchased with those dividends have
a zero tax basis.
c.) Tax Information Forms:
Following each tax year, the System sends each participant a U.S.
Information Return (Form 1099-DIV.) reporting the taxable dividends for that
tax year. This form contains the information necessary to complete the
dividend income information on the participants' federal income tax return.
Generally, the amount in the box labeled "Total Dividends For The Calendar
Year" should be included on a participant's federal income tax return as
taxable income.
For additional information and any questions regarding the tax
consequences of participation in the Plan, participants should consult their
own tax advisors.
27. What provision is made for foreign participants whose dividends are
subject to income tax withholding?
In the case of those foreign participants whose dividends are subject to
United States income tax withholding, the System will apply the net amount of
the dividend of such participants, after the deduction of taxes, to the
purchase of Common Shares. If such foreign participants desire to invest the
full amount of their dividends, they may tender cash payments in United States
dollars to the System equal to the amount of tax withheld. The minimum cash
payment requirement of $10 will be waived to accommodate all payments,
regardless of size, made by foreign shareholders for this express purpose.
Such payments will be invested for the foreign participants on the Investment
Date if received by the System prior to that date. In addition, foreign
participants may, of course, make optional cash payments in United States
dollars.
28. What are the responsibilities of the System under the Plan?
In administering the Plan, the System will not be liable for any act done
in good faith or for any good faith omission to act, including, without
limitation, any claim of liability arising out of failure to terminate a
participant's account upon the participant's death prior to receipt of notice
in writing of such death.
<PAGE 14>
The participant should recognize that the System cannot assure profit or
protect against a loss on the Common Shares purchased by the participant under
the Plan.
Adoption of the Plan does not constitute any assurance that dividends
will be paid in the future or that they will be paid on the same dividend
payment dates as in the past.
29. Who interprets and regulates the Plan?
The System reserves the right to interpret and regulate the Plan as
deemed desirable or necessary. Any such interpretation or regulation made in
good faith by the System will be binding upon all participants.
30. May the Plan be changed or discontinued?
Although the System hopes that shareholder response will justify
continuing the Plan indefinitely, the System reserves the right to suspend or
terminate the Plan at any time. The System may also make modifications to the
Plan. No such modifications may impair the rights of the participants with
respect to investments theretofore made under the Plan. Any such suspension,
termination or modification will be communicated to all shareholders, both
participants and non-participants.
DESCRIPTION OF COMMON SHARES
The following is a brief summary of certain provisions of the System's
Declaration of Trust affecting the Common Shares of Beneficial Interest, $4
par value.
Dividend Rights and Limitations on Payment of Dividends
Subject to the dividend and sinking fund requirements of the System's
Cumulative Preferred Shares (the Preferred Shares), the holders of the Common
Shares may receive out of funds legally available for the payment of dividends
such dividends as may from time to time be declared by the Trustees of the
System. Under the System's $40 Million Note Agreement (privately placed
Senior Notes), dated June 28, 1989, the System may pay or declare a dividend
if no event of default is existing or to the extent that the aggregate of all
dividend declarations, payments and distributions after December 31, 1988
shall not exceed the Company's aggregate Consolidated Net Income earned since
December 31, 1988 plus $60,000,000 (adjusted to remove the effect of any
losses, write-offs or write-downs relating to the investment of any
consolidated subsidiary in any generating station (not in commercial operation
as of the date of the Note Agreement) as recorded on the consolidated books of
account of the System as of December 31, 1988). The amount of the System's
retained earnings available for cash dividends at December 31, 1993 was
$85,187,000.
Under the terms of the System's Declaration of Trust relating to
Preferred Shares, dividends on Common Shares may not be paid nor may the
System purchase any Common Shares until after dividends accrued on all
outstanding Preferred Shares to the last preceding quarterly dividend payment
date have been paid in full; nor may dividends be paid on the Common Shares
when any required sinking fund redemption payment on the Preferred Shares is
<PAGE 15>
in arrears. No preferred dividends or required sinking fund redemption
payments are in arrears.
Voting Rights
With the exception of certain specified voting rights of the Preferred
Shares described herein, all voting rights of the System are vested in the
holders of Common Shares and each Common Share is entitled to one vote. The
holders of the Preferred Shares of all series, voting as a class, are entitled
to elect two Trustees if and so long as six full quarterly dividends on any
Preferred Shares shall have accrued and remain unpaid, the remaining seven
Trustees to be elected by the holders of the Common Shares. In addition, the
vote of the holders of at least two-thirds of the Preferred Shares of all
series (or any series specially affected) is required as a condition to (i)
altering the terms of the Preferred Shares in any manner substantially
prejudicial to the holders thereof, and (ii) creating any class ranking prior
to or on parity with the Preferred Shares in respect of either the payment of
dividends or the distribution of assets.
Without the vote of the holders of at least a majority of all Preferred
Shares outstanding, the System may not (a) merge or consolidate with any other
corporation or association unless the System is the successor, or otherwise
sell or transfer its assets as, or substantially as, an entirety, or (b) issue
any additional Preferred Shares or any class of shares ranking prior to or on
a parity with the Preferred Shares unless, after giving effect to such issue,
(i) consolidated net income of the System and its subsidiaries (after adding
back interest charges on funded debt of the System) for any twelve consecutive
months within the preceding fifteen months was one and one-half times the sum
of annual interest charges on funded debt of the System plus the annual
dividend requirements on Preferred Shares and on any class of shares ranking
prior to or on a parity with the Preferred Shares and (ii) capital and paid-in
premiums on outstanding Common Shares and any other shares ranking junior to
the Preferred Shares, plus consolidated retained earnings of the System and
its subsidiaries, are at least equal to capital and paid-in premiums
represented by Preferred Shares and all other shares ranking prior to or on a
parity with the Preferred Shares.
Liquidation Rights
On any liquidation of the System, the holders of Common Shares are
entitled to share pro rata all assets after payment of debts and the
liquidation preference plus accrued dividends of all series of Preferred
Shares.
Preemptive Rights
Common shareholders have no preemptive rights in cases where additional
Common Shares are issued otherwise than for cash, or offered for cash publicly
by competitive bidding, or sold for cash to or through underwriters or
investment bankers for public sale, or offered pursuant to a plan whereby
holders may purchase Common Shares by either investing cash dividends from
Common Shares or making optional cash payments, or to the issue of Common
Shares where such shares are offered to the Employees Savings Plan of
Commonwealth Energy System and Subsidiary Companies. If Common Shares are to
be issued or sold for cash in any other manner, they must first be offered pro
rata to the holders of the Common Shares at such price and on such terms and
<PAGE 16>
conditions and for such period as may be determined by the Trustees unless the
holders of two-thirds of the outstanding Common Shares (or if treasury shares
are to be resold for cash, a majority of the outstanding Common Shares)
consent to some other disposition.
Miscellaneous
There are no sinking fund provisions and no rights of conversion or
redemption applicable to the Common Shares.
The outstanding Common Shares are, and the Common Shares offered hereby
will be, when duly issued full-paid and nonassessable.
The System is an unincorporated business trust with transferable shares.
The System's Declaration of Trust provides that every person shall look only
to the trust estate for payment of damages or otherwise and that all written
agreements and obligations entered into by the System shall refer to this
provision. The Declaration of Trust also states that the shares shall be
full-paid and nonassessable, except as otherwise specifically provided in the
certificates. Notwithstanding such provisions, the Supreme Judicial Court of
Massachusetts has in some circumstances imposed personal partnership liability
upon shareholders of an unincorporated business trust where the trust provides
for ultimate control by shareholders. In the opinion of Michael P. Sullivan,
Vice President, Secretary and General Counsel for the System, while a
partnership may technically exist, the possibility of any such personal
liability of the System's shareholders is remote because shareholders are pro-
tected from personal liability on contract obligations containing the so-
called limited liability clause which the System customarily inserts in all
contract obligations, including debt securities, because the System is a
holding company and not an operating company and the possibility of tort
claims (which in any event except for fraud are adequately insured against) is
therefore minimized, and because it has been the System's experience that its
tax liabilities are adequately covered by its income.
The Transfer Agent and Registrar for the Common Shares is The First
National Bank of Boston, Boston, Massachusetts.
LEGAL OPINIONS
Legal matters in connection with this offering will be passed upon for
the System by one or both of Messrs. Michael P. Sullivan, Vice President,
Secretary and General Counsel and Richard J. Morrison, Assistant General
Counsel and Assistant Secretary for the System, One Main Street, P.O. Box
9150, Cambridge, MA 02142-9150. As of September 1, 1994, Mr. Sullivan is the
beneficial owner of 2,040 Common Shares of the System.
EXPERTS
The statements made as to matters of law and legal conclusions under the
caption "Description of Common Shares" have been reviewed by Mr. Sullivan and
are made on his authority as an expert.
The consolidated financial statements and schedules of the System and
subsidiaries included or incorporated by reference in the System's Annual
Report on Form 10-K and incorporated by reference in this registration
statement have been audited by Arthur Andersen LLP, independent public
<PAGE 17>
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
__________________
The name "Commonwealth Energy System" means the trustees for the time
being (as trustees but not individually) under a Declaration of Trust dated
December 31, 1926, as amended, which is hereby referred to, and a copy of
which 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 said System binds only the trust estate, and no shareholder,
director, trustee, officer or agent assumes, or shall be held to, any
liability by reason thereof.
<PAGE 18>
__________________________________________ ______________________________
COM/Energy
CONTENTS Commonwealth Energy System
Page
Available Information................ 3 DIVIDEND REINVESTMENT
Incorporation of Certain Documents by
Reference.......................... 3 and
The System........................... 4
Use of Proceeds...................... 4 COMMON SHARE PURCHASE PLAN
Description of the Plan.............. 4
Description of Common Shares......... 14
Legal Opinions....................... 16
Experts.............................. 16
Indemnification...................... 17
Common Shares of
Beneficial Interest
($4 Par Value)
September 23, 1994
PROSPECTUS
__________________________________________ ______________________________
<PAGE 19>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the proposed distribution of
existing Common Shares are set forth below:
Registration fee..................................... $ 13,083
Services of COM/Energy Services Company in connection
with the preparation of the Registration Statement,
Prospectus, exhibits and other documents........... 7,100
Printing............................................. 2,530
Postage.............................................. 4,300
Accounting fees...................................... 3,500
Legal fees........................................... 2,000
"Blue Sky" fees and expenses......................... 1,000
Stock exchange listing fees.......................... 9,000
Miscellaneous expenses............................... 3,000
Total estimated expenses............................. $ 45,513
Item 15. Indemnification of Directors and Officers
Each trustee, officer, agent or representative is entitled to
reimbursement or indemnification against any and all loss, costs, expense and
liability incurred or to be incurred by him in good faith in the execution of
his duties. Each present and future trustee, officer, agent or representative
is entitled to reimbursement or indemnification by the System for or against
all expenses reasonably incurred or imposed by him in connection with, or
arising out of, any action, suit or proceeding in which he may be involved by
reason of his being or having been a trustee, officer, agent or representative
of the System, where disposition of such action, suit or proceeding is made in
favor of such trustee, officer, agent or representative; provided that no
reimbursement shall be made until such time has elapsed that appeal can no
longer be taken and that, in the judgement of the trustees, such action, suit
or proceeding will not be recommended.
No trustee, officer, agent or representative of the System shall be
liable for any act, omission, step or conduct taken or had in good faith which
is required, authorized or approved by any order or orders issued pursuant to
the Public Utility Holding Company Act of 1935, the Federal Power Act or any
state statute regulating the System or its subsidiaries. The provisions
hereof shall be brought to the attention of any court and, if 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 trustee, officer, agent or
representative shall be reimbursed for, or indemnified against, all expenses
and liabilities 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, and such expenses and
liabilities shall include, but shall not be limited to, judgements, court
costs and attorneys' fees.
The foregoing rights shall not be exclusive of any other rights to which
any trustee, officer, agent or representative might otherwise be entitled.
<PAGE 20>
The above is a summary of certain provisions of the System's Declaration
of Trust, as amended, relating to indemnification of trustees and officers of
the System.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
Item 16. Exhibits
Exhibit 1. Underwriting agreement.
Not applicable.
Exhibit 2. Plan of acquisition, reorganization, arrangement, liquidation
or succession.
Not applicable.
Exhibit 4. Instruments defining the rights of security-holders, including
indentures.
Filed herewith as Exhibit 1:
Declaration of Trust of Commonwealth Energy System dated December 31,
1926, as amended by vote of the shareholders and trustees on May 5, 1994.
Filed herein by reference:
Copy of Note Agreement ($40 Million Privately Placed Senior Notes)
dated June 28, 1989 has been filed by the Registrant with the SEC as Exhibit 1
to the September 1989 Quarterly Report on Form 10-Q (File No. 1-7316) and is
incorporated herein by reference thereto.
Exhibit 5. Opinion regarding legality.
Filed herewith as Exhibit 2:
Opinion of Michael P. Sullivan, Vice President, Secretary and General
Counsel of the System.
Exhibit 8. Opinion regarding tax matters.
Not applicable.
Exhibit 12. Statements regarding computation of ratios.
Not applicable.
Exhibit 15. Letter regarding unaudited interim financial information.
Not applicable.
<PAGE 21>
Exhibit 23. Consents of experts and counsel.
Filed herewith:
- Consent of counsel is contained in Exhibit 2 to this Registration
Statement.
- Consent of Independent Public Accountants is filed as Exhibit 3 to
this Registration Statement.
Exhibit 24. Power of attorney.
Not applicable.
Exhibit 25. Statement of eligibility of trustee.
Not applicable.
Exhibit 26. Invitations for competitive bids.
Not applicable.
Exhibit 27. Financial Data Schedule.
Not applicable.
Exhibit 28. Information from reports furnished to state insurance
regulatory authorities.
Not applicable.
Exhibit 99. Additional exhibits.
Filed herewith:
- Authorization of Trustees for designated persons, as Attorney-in-
Fact, to execute any amendment or amendments to this Registration Statement is
filed as Exhibit 4 to this Registration Statement.
Filed herein by reference:
- Agreement between the System, as agent for the Dividend Reinvestment
and Common Share Purchase Plan of Commonwealth Energy System, and the
Purchasing Representative to acquire Common Shares of the System on the open
market for Plan participants has been filed by the Registrant with the
Commission as Exhibit 2 to Amendment No. 1 to Form S-3, Registration Statement
File No. 2-96768, and is incorporated herein by reference thereto.
<PAGE 22>
Item 17. Undertakings
A. The undersigned issuer 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;
(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 paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 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.
(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 Plan.
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 section 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.
<PAGE 23>
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 of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cambridge, Commonwealth of
Massachusetts, on the dates indicated.
COMMONWEALTH ENERGY SYSTEM
BY WILLIAM G. POIST
William G. Poist, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
(i) Principal Executive Officer:
WILLIAM G. POIST September 22, 1994
William G. Poist,
President and Chief Executive Officer
(ii) Principal Financial Officer:
JAMES D. RAPPOLI September 22, 1994
James D. Rappoli,
Financial Vice President and Treasurer
(iii) Principal Accounting Officer:
JOHN A. WHALEN September 22, 1994
John A. Whalen,
Comptroller
(iv) A Majority of the Board of Trustees:
SINCLAIR WEEKS, JR. September 22, 1994
Sinclair Weeks, Jr., Chairman of
the Board
SHELDON A. BUCKLER September 22, 1994
Sheldon A. Buckler, Trustee
HENRY DORMITZER September 22, 1994
Henry Dormitzer, Trustee
BETTY L. FRANCIS September 22, 1994
Betty L. Francis, Trustee
<PAGE 24>
SIGNATURES
(Continued)
FRANKLIN M. HUNDLEY September 22, 1994
Franklin M. Hundley, Trustee
WILLIAM J. O'BRIEN September 22, 1994
William J. O'Brien, Trustee
WILLIAM G. POIST September 22, 1994
William G. Poist, Trustee
G. L. WILSON September 22, 1994
Gerald L. Wilson, Trustee
<PAGE 25>
EXHIBIT INDEX
Reference in
Number Registration Statement
in SEC
Exhibit Exhibit
Table Description Number
4 Declaration of Trust as Amended May 5, 1994.... 1
5 Opinion of Counsel, including Consent.......... 2
23 Consent of Independent Public Accountants...... 3
99 Authorization for Attorney-in-Fact to execute
amendments to the Registration Statement..... 4
99 Agreement between the System and the Purchasing
Representative............................... *
4 Note Agreement ($40 Million Privately Placed
Senior Notes) dated June 28, 1989............ *
_________________
* Incorporated herein by reference at pages 20 or 21.
<PAGE 1>
EXHIBIT 1
COM/Energy
Commonwealth
Energy System
________________________________________
Amended
Declaration of Trust
Dated December 31, 1926, as Amended,
By Vote of the Shareholders and
Trustees May 5, 1994 and by Proper Filing.
__________________________________________
<PAGE 2>
INDEX
EDGAR
PAGE PAGE
Introductory 1 6
General Provisions
Section 1. Definitions 1 6
Massachusetts laws to govern 2 6
Name and Place of Business
Section 2. Trustees designated "Commonwealth Energy System" 2 7
Principal place of business-Cambridge,
Massachusetts 2 7
The Trust Property
Section 3. Trust Property vested in Trustees for benefit
of Shareholders 3 7
Real estate considered as personal property 3 7
Immunity of Shareholders and Others
Section 4. No Shareholder, officer or agent to be liable
for acts of Trustees 3 7
No Trustee to be liable unless expressly
stipulated and then only as Trustee 3 7
Trust Property only subject to debts or claims 3 7
Reference to Declaration of Trust shall be made
in every written agreement and obligation 3 7
No Trustee, officer or agent may look to
Shareholders for indemnification 4 7
Powers of Trustees
Section 5. (a) to acquire securities, including trust
securities 4 7
(b) to acquire real and personal property
and operate plants 4 8
(c) to acquire and carry on other business 4 8
(d) to manage such property and business 4 8
(e) to borrow money and issue securities to
carry out Alternate Plan of
Recapitalization and to secure payment by
pledge or otherwise 5 8
(f) to mortgage or pledge Trust Property
with consent of majority of Shareholders 5 8
(g) to execute indentures and sell trust
securities 5 8
(h) to lend money with or without security 6 9
(i) to exercise all rights belonging to
holders of securities forming part of
Trust Property 6 9
(j) to dispose of Trust Property, but no
disposition of substantially all of
property nor termination of trust nor
merger or consolidation shall be made
without consent of 3/4 of shares
entitled to vote 7 9
(k) to hold trust securities in name of
nominees 7 10
(l) to delegate all powers of Trustees except
those specified 8 10
<PAGE 3>
EDGAR
PAGE PAGE
(m) to collect sums due trust 8 10
(n) to invest and reinvest trust funds 8 10
(o) to deposit money and trust securities 9 11
(p) to pay taxes including taxes assessed to
holders of trust obligations or shares 9 11
(q) to determine surplus 9 11
(r) to let Trust Property 10 11
(s) to pay commissions to brokers 10 11
(t) to obtain or surrender permits, licenses,
etc 10 11
(u) to take out insurance 10 12
(v) to adopt and use common seal 11 12
(w) to deal with Trust Property as absolute
owners 11 12
The Trustees
Section 6. Two-Thirds of Trustees to be residents of
Massachusetts 11 12
Number of Trustees, their election and
compensation 11 12
Section 7. Vesting of property on resignation of Trustee 13 13
Section 8. Trustees to determine what constitutes capital
or income 13 13
Section 9. Declaration of dividends by Trustees 13 13
Section 10. Trustees to determine fiscal year and form
of accounts 14 14
Proceedings of the Trustees
Section 11. Regular, special and annual meetings 14 14
Majority of Trustees constitutes quorum 14 14
Section 12. May transact business without a meeting 15 14
Section 13. Records to be kept of Trustees' and
Shareholders' meetings, votes,
resolutions and consents 15 14
Officers: Depositaries and Other Agents
Section 14. Trustees to elect president, treasurer and
secretary annually and other officers when
occasion requires 16 15
Action of officers and agents binds Trust
Property 16 15
Duties of treasurer and secretary 16 15
Section 15. Trustees may appoint and remove Depositary 17 15
General Provisions Concerning the Trustees and Others
Section 16. Limitation of liability of Trustees, officers
and agents 17 16
Indemnification of Trustees, officers and
agents 18 16
Limitation of liability for actions required
by public authorities 19 16
Section 17. Trustees may consult experts 19 17
Section 18. Proof of Trustees' action by certificate 19 17
Section 19. Protection of persons dealing with Trustees,
officers or agents 20 17
Section 20. Corporations, etc. not affected by notice that
their securities are held by trust 21 18
<PAGE 4>
EDGAR
PAGE PAGE
Interested Trustees, Officers, Agents and Shareholders
Section 21. Trustees, officers and agents may deal with
and hold office in the trust or any company
in which trust is interested 21 18
Trustees, officers and agents to disclose
interest in advance of dealings with trust 21 18
No shareholder disqualified IPSO FACTO from
dealing with or holding office in trust or
any company in which trust is interested 22 19
Liability under Public Utility Holding
Company Act of 1935 not affected 23 19
Shares and Shareholders
Section 22. Common and Preferred Shares authorized 23 19
Common may be issued to provide funds for
specific purposes and in certain exchanges
without consent of Shareholders and
remainder with consent of majority 23 19
Preferences of Preferred Shares
(a) Designation and variances between series 24 20
(b) Preference as to dividends and
restrictions on Common dividends 25 21
(c) Redemption provisions 26 21
(d) Preference on liquidation 28 22
(e) Right to elect two Trustees in case of
default in payment of dividends 28 23
(f) Restrictions on change in terms of
Preferred Shares, creation of any new
class of Preferred Shares, and issue of
additional Preferred Shares 30 24
(g) Preferred Shares have no preemptive rights 33 25
(h) Consideration for issuance of Preferred
Shares 33 25
(i) Immunity of Shareholders, Trustees, etc 33 25
(j) Terms applicable to particular series 33 25
Authorization of additional Common Shares with
consent of majority of Common 33 26
Authorization of shares, in addition to
Preferred Shares, having preference over
Common with consent of 2/3 of Common 34 26
Preemptive right of Common Shareholders to
subscribe for additional Common 34 26
Section 23. Disposition of shares purchased by trust 35 27
Section 24. Register of Shareholders and right of
inspection 36 27
Section 25. Appointment of Transfer Agents and Registrars 36 27
Section 26. Share certificates authorized 36 28
Section 27. Replacement of certificates lost, mutilated
or destroyed 37 28
Section 28. Transfer of Shares by holders 37 28
Section 29. Issue of new certificates in case of death,
bankruptcy, etc. 38 28
Section 30. Shares deemed personal property 38 28
Section 31. Shares held jointly, effect of 38 29
Section 32. Limitation on responsibility of Trustees and
Shareholders for shares held in trust,
pledged, etc 38 29
<PAGE 5>
EDGAR
PAGE PAGE
Meetings of the Shareholders
Section 33. Annual meetings 39 29
Section 34. Right of Shareholders to elect Trustees 39 29
Section 35. Special meetings 39 29
Section 36. Business at special meeting limited 40 30
Section 37. Notice of annual and special meeting 40 30
Section 38. Method of giving notice of meetings 40 30
Section 39. Vote by joint owners or persons under
disability 41 30
Section 40. Closing transfer books to determine persons
entitled to vote 41 30
Section 41. Shareholders entitled to one vote for each
share unless other-wise restricted 41 30
Duration, Termination and Amendments
Section 42. Trust to terminate on January 2, 2050, or
20 years from the death of last survivor
of designated persons whichever shall
first occur 42 31
Section 43. Trust not terminated by death of a Trustee
or Shareholder 42 31
Section 44. Trust may be amended with consent of
designated percentage of shares 43 31
Section 45. Disposition of Trust Property on termination 43 32
Section 46. Execution in counterparts 44 32
Witness clause and signatures 44 32
Certificate of Secretary-Assistant Secretary 45 33
<PAGE 6>
COMMONWEALTH ENERGY SYSTEM
AMENDED DECLARATION OF TRUST
THIS DECLARATION OF TRUST made at Boston, Massachusetts, this 31st day of
December, 1926, by Daniel Starch of Cambridge, Massachusetts, Harding U.
Greene of Falmouth, Massachusetts, and W. A. Hill of Watertown, Massachusetts,
the original Trustees hereunder,
WITNESSETH THAT:
General Provisions.
Section 1.-Except where the context otherwise requires, the following
expressions wherever used in this declaration of trust shall have the
following meanings:
"Depositary" means the Depositary or one of the Depositaries for
the time being hereunder, whether original or successor, and includes
any national bank into which any state bank or trust company which may
be Depositary hereunder shall have been converted and any state bank or
trust company into which any national bank which may be Depositary
hereunder shall have been converted and any corporation with or into
which any corporation which may be Depositary hereunder shall have been
consolidated or merged.
"Hereby," "herein" and other like expressions refer to the
declaration of trust as a whole, as from time to time amended, and not
to the particular Section in which such expressions are found.
"Shareholder" means the person, firm, association, trust or
corporation, one or more, at the time registered as the holder or
holders of any Shares in this trust.
"Share" means a share of beneficial interest in this trust and
includes any subscription or subscription certificate or part-paid share
in this trust issued or accepted, except to the extent therein limited.
"This trust" means the trust or trusts created by this declaration
of trust as from time to time amended.
"Trustees" means the Trustees, if more than one, in their
collective capacity as Trustees hereunder, but not in their personal
capacity, or if only one, the Trustee in his capacity as Trustee
hereunder but not in his personal capacity, for the time being, whether
original, additional or successor.
"Trust Property" means all the property which for the purposes of
these presents shall be at any time acquired by or vested in or owned by
the Trustees, directly or indirectly, and the income and proceeds
thereof; but "Trust Property" shall not be construed to include property
owned by any corporation, trust or association in which the Trustees
have an interest.
Any expression in the conjunctive or the disjunctive shall include
both the conjunctive and the disjunctive and any expression in the
singular or the plural shall include both the singular and the plural.
The headings of the different parts of this declaration of trust
are inserted for convenience of reference and are not to be taken as any
part of the declaration or to control or affect the meaning,
construction or effect of the same.
This declaration of trust is executed by the Trustees and
delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the construction and
effect of every provision hereof shall be subject to and construed
according to the laws of said Commonwealth.
<PAGE 7>
Name and Place of Business.
Section 2.-The Trustees shall be designated, and, so far as may be
practicable, all things relating to this trust shall be done under the name
of, "Commonwealth Energy System," hereinafter referred to as "the System"
which shall be deemed to refer to the Trustees. The principal place of
business of this trust shall be in Cambridge, Massachusetts, or at such other
place in Massachusetts as the Trustees may from time to time designate.
The Trust Property.
Section 3.-The Trust Property shall be held in trust by the Trustees in
the manner and with and subject to the powers and provisions herein contained
concerning the same for the benefit of the Shareholders in accordance with
their respective rights, ratably according to the number and kind of Shares
held by each. The Trust Property shall except as otherwise provided in
Sections 5(k) and 5(m) be transferred to and vested in the Trustees.
Notwithstanding any other provisions hereof, all real estate at any time
forming part of the Trust Property shall be held upon trust for sale and
conversion into personal property at such time or times, in such manner and
upon such terms as the Trustees shall determine, but the Trustees shall have
power to postpone such conversion so long as they in their uncontrolled
discretion shall think fit, provided that they shall have no power to postpone
such conversion beyond the termination of this trust; but all such real estate
shall at all times during any postponement of the sale and conversion thereof
be considered as personal property. For the purpose of such sale and
conversion of real estate the Trustees shall have full power to sell or
exchange the same and to execute and deliver proper deeds and instruments of
conveyance thereof.
Immunity of Shareholders and Others.
Section 4.-No Shareholder, officer or agent of this trust shall be held
to any liability for the payment of any sum of money or for damages for the
non-performance of anything that shall have been agreed upon on behalf of this
trust by the Trustees or any officer or agent, or in tort or otherwise, and no
Trustee shall be held to any such liability unless expressly stipulated to
that effect and then only as Trustee hereunder and not individually; and every
person, firm, association, trust and corporation shall look only to the Trust
Property for such payment or damages or otherwise. In every written agreement
and obligation entered into by or on behalf of this trust reference shall be
made to this declaration of trust, and the substance of such parts of the
preceding sentence of this Section as are applicable may be set forth, or may
be stated in a written notice or document previously filed with the party or
parties to such agreement or obligation; and neither the Trustees nor any
officer or agent of this trust shall have any power or authority to enter into
any agreement or obligation on behalf of this trust except in accordance with
the provisions of this Section. No Trustee, officer or agent of this trust
shall be entitled to look to the Shareholders personally for indemnity against
any liability incurred by them in the execution of this trust or to call upon
the Shareholders for the payment of any sum of money or any assessment
whatever, except only in the case of Shares in this trust which are by their
express terms issued part-paid and assessable and then only as therein
provided.
Powers of the Trustees.
Section 5.-The Trustees shall have full power and discretion from time
to time:
(a) To purchase, subscribe for or otherwise acquire any of the
stocks, shares, bonds or other securities or obligations of any
corporation, wherever incorporated, or of any trust or association, or
of any nation, state, municipality or other governmental agency, and to
exercise all the rights and privileges of an owner thereof and, without
<PAGE 8>
limiting the generality of the foregoing, to acquire by exchange,
purchase or otherwise, shares and rights incident thereto in, and bonds
and other securities and obligations of this trust, provided such
exchange, purchase or other acquisition does not result in the
impairment of the capital of this trust.
(b) To acquire, by means of the Trust Property, hold, develop,
operate, lease and otherwise utilize lands, or any rights therein,
water-rights, water-powers, plants for the production of electricity,
gas or power in any form and systems for the distribution of water, gas,
electricity or other power, and to construct, lease or otherwise
acquire, maintain and operate any such plants or systems and plants of
any description operated in whole or in part by electricity, gas, coal,
oil, water-power or other, and generally to produce or acquire and to
sell, distribute and use, for operation of plants or otherwise,
electricity, gas or other power;
(c) By means of the Trust Property, to acquire, hold, utilize and
carry on any other business and any property, rights, franchises or
privileges which the Trustees may think suitable, convenient or
profitable for or in connection with any of the purposes of this trust;
(d) To conduct and manage under contract any plants, systems,
business or property of the kind above enumerated;
(e) To borrow money and issue bonds, debentures, notes or other
evidences of indebtedness to the extent necessary to comply with the
Alternate Plan of Recapitalization of the System approved by the
Securities and Exchange Commission on February 11, 1947 and by the
United States District Court for the District of Massachusetts on March
10, 1947 (hereinafter referred to as the "Plan") and to secure the
payment thereof if desired by mortgage, pledge or charge of or upon the
whole or any part of the Trust Property at the time owned or thereafter
acquired;
(f) To borrow from time to time money for the purposes of the
trust and to issue bonds, debentures, notes or other evidences of
indebtedness therefor in addition to the amount required under the
provisions of subsection (e) above, and to secure the payment thereof by
mortgage or pledge of the whole or any part of the Trust Property at the
time owned or which may thereafter be acquired, and which shall be a
lien thereon superior to any unsecured obligation or liability of the
trust then or thereafter created or incurred;
(g) To execute, acknowledge and deliver any indenture or
indentures necessary or desirable in the opinion of the Trustees for the
purpose of securing such bonds, debentures, notes or other evidences of
indebtedness (hereinafter in this subparagraph called "obligations") and
specifying the rights, obligations and limitations of the holders
thereof and of the Trustees of this trust and of the trustee under said
indenture and the terms, covenants, provisions and conditions on which
the obligations are to be issued, secured and held; which indenture or
indentures may provide for the delivery of possession of the trust
property, or any part thereof, to the holders of such obligations or the
trustee under such indenture, upon such conditions as may be specified
therein; and to sell and dispose of such obligations at such times, in
such amounts, to such purchasers and at such prices as the Trustees may
from time to time determine; and such obligations may be signed on
behalf of the Trustees by the president or a vice-president, under the
common seal of the Trustees attested by the secretary or an assistant
secretary, any of whose signatures on such obligations or in attestation
of the seal thereon may, if authorized by the Trustees, be made by
<PAGE 9>
engraving, lithographing, or printing thereon a facsimile of such
signatures in lieu of actual signature, in which case such facsimile
signature so engraved, lithographed, or printed thereon shall have the
same force and effect as if such officer had actually signed the same or
attested the seal thereon, and which obligations may have affixed
thereto the common seal of the Trustees (or, if authorized by the
Trustees, an engraved, lithographed or printed facsimile of such common
seal) and may carry interest coupons authenticated by the facsimile
signature of the treasurer;
(h) To advance or lend money, on such terms as the Trustees shall
think proper and with or without security, to, and otherwise aid by
endorsement, guaranty or otherwise, any corporation, trust or
association any of the stocks, shares, bonds, or other securities or
obligations of which shall have been acquired or subscribed for by or on
behalf of this trust or by or on behalf of any corporation, trust or
association in which this trust has a financial interest, and to
discharge and cancel without payment any indebtedness thus arising or to
convert the same into stocks, shares, bonds, or other obligations of
such corporation, trust or association, or any other with or into which
it may be consolidated or merged, or to which its property may be
transferred or leased;
(i) To exercise any and all powers and rights belonging to the
holder of any stocks, shares, bonds, securities or obligations forming
part of the Trust Property, whether by voting or by giving any consent,
request or notice, or otherwise, either in person or by proxy or
attorney, and to give proxies or powers of attorney therefor, with or
without power of substitution, which proxies and powers of attorney may
be for meetings or action generally or for any particular meeting,
meetings or action, and may include the exercise of any discretionary
powers; and, without limiting the generality of the foregoing, to vote
in favor of or to consent to the creation of any mortgage, lien or other
encumbrance upon all or part of the franchises and property, real and
personal, then owned or thereafter acquired, of any or all of the
corporations, trusts and associations, any of the stocks, shares, bonds,
securities or obligations of which may at the time be subject to this
trust, or to vote in favor of or to consent to the merger or
consolidation of any such corporation, trust or association with any
other corporation, trust or association, or the sale, lease, surrender
or abandonment of all or part of the franchises and property, real and
personal, of any such corporation, trust or association;
(j) To sell by public auction or private contract or otherwise use
and deal in and with the whole or any part of the Trust Property, and to
buy in or rescind or vary any contract of sale and to resell, without
being responsible for loss, and to convert, exchange or refund the whole
or any part of the Trust Property for or into any shares, bonds or other
securities or obligations, property or effects in which the Trustees
might, under the provisions hereof, invest any moneys forming part of
the Trust Property; and, without limiting the generality of the
foregoing, to sell the whole or any part of the Trust Property for any
shares, bonds, or other securities or obligations of the purchaser, as a
step in proceedings looking towards the termination of this trust or the
carrying out of any plans for the reorganization or rearrangement of the
business or properties conducted or held hereunder; provided, however,
that, except for purposes of terminating this trust at the expiration of
the term, as set forth in Section 42, no such sale, lease or other
disposition of the whole or substantially all of the Trust Property
(otherwise than by mortgage or by pledge) nor any termination of this
trust or merger or consolidation (to the extent permitted by law) of
<PAGE 10>
this trust with or into another entity shall be made without the consent
of the holders of at least three-quarters of the Shares then outstanding
and entitled to vote, given either in writing or at a meeting of
Shareholders called for that purpose. Notwithstanding the foregoing, the
aforesaid three-quarters Shareholder consent requirements shall not be
applicable to such a sale, lease, disposition, termination, merger or
consolidation which has been approved by the affirmative vote of not
less than two-thirds of the Trustees then in office, and in such case no
such sale, lease, disposition, termination, merger or consolidation (to
the extent permitted by law) shall be made without the consent of the
holders of two-thirds of the Shares then outstanding and entitled to
vote, given either in writing or at a meeting of Shareholders called for
that purpose;
(k) To cause any stocks, shares, bonds or other securities or
obligations subject to this trust to be transferred into the name of
Commonwealth Energy System or transferred into the names of or vested in
the Trustees, or any of them, whether or not jointly with the right of
survivorship, or as tenants in common or otherwise, or in any one of
them, or to allow any such stocks, shares, bonds, or other securities or
obligations to remain in the name of or to be transferred into the name
of, any nominees, pledges, persons, firm, association, trust or
corporation responsible to the Trustees; and to convey and transfer or
cause to be conveyed and transferred to any wholly owned subsidiary
corporation, trust or association all or any part of the Trust Property,
without consideration or for such consideration including stocks,
shares, bonds and other securities and obligations of said subsidiary
corporation, trust or association, as shall be determined by the
Trustees;
(l) To act through and to delegate any of the duties, powers,
authorities and discretions of the Trustees (except the declaration of
dividends, the establishment of surplus and the filling of vacancies in
the Trustees) and to permit any of such duties, powers, authorities and
discretions to be exercised by any of the officers, agents or
representatives of this trust or of the Trustees, including, without
limitation, the officers, agents and representatives referred to in
Section 14 and such others as the Trustees shall think proper, but the
authority of the officers, agents or representatives of this trust shall
always be subject to the provisions of Section 4 hereof;
(m) To collect, sue for, receive and receipt for all sums of money
coming due to this trust, to consent to the extension of the time for
payment or to the renewal, of any bonds or other securities or
obligations subject to this trust, and to compound, compromise, abandon
or adjust, by arbitration or otherwise, any actions, suits, proceedings,
disputes, claims, demands and things relating to the Trust Property, and
to transfer to and deposit with any corporation, committee or other
persons any stocks, shares, bonds or other securities or obligations
forming part of the Trust Property for the purposes of any arrangement
for enforcing or protecting the interest of this trust in such stocks,
shares, bonds or other securities or obligations, and to pay any
assessment levied in connection with such arrangement, and to give time,
with or without security, for the payment or delivery of any debts or
property and to execute and enter into releases, agreements and other
instruments and to pay or satisfy any debts or claims upon any evidence
that the Trustees shall think sufficient;
(n) To invest and reinvest the capital or other funds of this
trust from time to time in real or personal property of any kind or any
interest therein;
<PAGE 11>
(o) To deposit any moneys included in or derived from the Trust
Property in any bank or trust company or with any bankers, or in the
banking department of any bank or trust company that may at the time be
a Depositary hereunder, and to entrust to any Depositary or any other
bank or trust company or safe deposit company for safe-keeping, any of
the stock or share certificates, bonds or other securities or
obligations and any documents and papers comprised in or relating to the
Trust Property;
(p) To pay any and all taxes or liens of whatever nature or kind
imposed upon or against the Trustees individually or collectively in
connection with the Trust Property, or upon or against the Trust
Property or any part thereof, and, so far as permitted by law, to assume
and agree to pay, on behalf of any holders of bonds or other obligations
of this trust or of Shares in this trust of any or all classes or
series, or to reimburse any such holders for, all or any part of the
taxes assessed upon any such bonds or other obligations or Shares or in
respect of the income therefrom or upon such holders by reason of their
ownership thereof, and to pay the interest upon any such bonds or other
obligations and the dividends upon any such Shares without deduction for
all or a specified part of any tax which the Trustees may be required or
permitted to pay thereon or to retain therefrom under any present or
future law of the United States or of any state, municipality or other
political subdivision; and, whether or not all of the Shareholders are
residents of the Commonwealth of Massachusetts, to make with the said
Commonwealth or the Commissioner of Corporations and Taxation or other
representative thereof any agreement for the payment of taxes to said
Commonwealth, whether or not said taxes would otherwise be payable or
assessable by or against or in respect of the Trustees or the Trust
Property or the income therefrom, all as may be required or permitted by
any present or future law for the purpose of making partially or wholly
tax-exempt any or all of the Shares in this trust or the holders thereof
or all or any part of the dividends or income therefrom; and for any of
the foregoing purposes to make such returns and do all such other acts
and things as may be necessary or desirable;
(q) To determine surplus in accordance with sound accounting
principles and to use such surplus in accordance with the powers and
purposes of the trust herein established, except that cash dividends may
not be declared other than out of earned surplus accumulated subsequent
to the effective date of the Plan;
(r) To let to tenants at will or lease for any term or terms
beyond the possible termination of this trust, or for any lesser term,
upon such terms and conditions and with such stipulations and agreements
as they may deem advisable any part or parts of the Trust Property and
to make allowances to and arrangements with tenants and others to accept
surrenders of leases and tenancies and to make such agreements with
owners of adjoining property, including without limitation any municipal
authority, or in regard to easements of every sort and description,
boundary lines, party walls or other like subjects of agreements as they
may deem necessary or convenient for the purposes of this trust;
(s) To pay commissions to brokers or others in respect of the
purchase or sale of property or of any interest therein or for services
in procuring subscriptions for or underwriting Shares or bonds or other
obligations issued hereunder or in procuring tenants or insurance or
fidelity bonds or otherwise or to sell at a discount Shares or bonds or
other obligations issued hereunder;
(t) To apply for and obtain and renew or surrender any and all
permits, approvals, consents, orders, licenses and permissions from and
to fulfill all requirements of any and all public utilities commissions
or other public authorities, laws, ordinances or regulations and to pay
all fees or other costs and expenses connected therewith or relating
thereto;
<PAGE 12>
(u) To take out insurance upon the life or lives of any person or
persons upon whose life or lives, in the opinion of the Trustees, the
duration of this trust depends in such sums and upon such terms and for
such time as the Trustees shall determine and take out insurance upon
any of the Trust Property for the income or rents or rental value
thereof against loss or damage by fire, theft or other casualty or
against loss of rent and to take out insurance against liability for
injury or damage to persons and property or insurance against loss of
occupation of any of the Trust Property or premises in which this trust
has an interest or any other insurance which is customary or which seems
to the Trustees desirable, and to procure, if the Trustees so desire in
any case, fidelity bonds and other insurance covering any Trustees,
officers or employees of this trust, and to extend or renew any of the
foregoing, and to apply the proceeds of any such insurance policies or
bonds to make good the damage, loss or liability insured against;
(v) To use a common seal and to adopt a form for said seal, which
form may bear or contain the words "Commonwealth Energy System";
provided that, unless the law otherwise requires, the same shall consist
of a facsimile imprint thereof or be impressed upon the instrument to be
sealed or upon a wafer or other substance affixed to the instrument to
be sealed;
(w) Generally in all matters to deal with the Trust Property and
to manage and conduct the business of this trust as fully as if the
Trustees were the absolute owners of the Trust Property, and to exercise
full power of determination and decision in all matters of any kind
relating to the Trust Property and the business of this trust, and
without limiting the generality of the foregoing, to rent suitable
offices for the transaction of the business of this trust; and to
execute all such agreements, deeds, covenants and instruments and do all
such things as the Trustees may deem proper for any of the purposes of
this trust, and whether any of said purposes be of a class legal for
trustees or for the investment of trust funds or not, and to authorize
the execution of any such agreements, deeds, covenants or instruments in
the name of Commonwealth Energy System by any of the officers or agents
of this trust or by any other persons; provided, however, that the
provisions of Section 4 hereof shall be observed.
The Trustees.
Section 6.-At least two-thirds of the Trustees hereunder shall at all
times be residents of Massachusetts, and each of the remaining Trustees shall
at all times be a resident of one of the New England states. The number of
Trustees shall be nine (9). Subject to the provisions of Section 22 hereof,
the Trustees shall be elected by plurality vote of Shareholders entitled to
vote and the Board of Trustees shall be divided into three classes of three
Trustees each, with the term of office of one class expiring each year. At the
annual meeting of Shareholders in 1987, three Trustees of the first class
(Class A) shall be elected to hold office for a term expiring at the 1988
annual meeting of Shareholders and until their respective successors are
chosen and qualified, three Trustees of the second class (Class B) shall be
elected to hold office for a term expiring at the 1989 annual meeting of
Shareholders and until their respective successors are chosen and qualified,
and three Trustees of the third class (Class C) shall be elected to hold
office for a term expiring at the 1990 annual meeting of Shareholders and
until their respective successors are chosen and qualified. Commencing with
the annual meeting of Shareholders in 1988, each class of Trustees whose term
shall then expire shall be elected to hold office for a three year term and
until the election and qualification of their respective successors in office.
A Trustee may but need not be a Shareholder. Any vacancy or vacancies in the
number of Trustees may be filled by a majority of the remaining Trustees by
written instrument filed at the principal office of this trust, and any
<PAGE 13>
Trustee so chosen shall continue in office until the next succeeding annual
meeting of Shareholders at which the class for which such Trustee has been
chosen is subject to election; provided, however, that any vacancy or
vacancies in the number of Trustees elected by a class of voters under the
provisions of Section 22 shall be filled by the remaining Trustee or Trustees
elected by such class. Until any such vacancy is filled, the remaining
Trustees may exercise all the powers, authorities and discretions of the
Trustees hereunder by a majority of their number as hereinafter provided.
A Trustee may resign by delivering his resignation in writing at the
principal office of this trust, addressed to the remaining Trustees or by
delivering such resignation at a meeting of the Trustees or to the secretary
of this trust but such resignation shall take effect only upon its acceptance
by the remaining Trustees or upon the appointment of a new Trustee in his
place or upon the expiration of thirty (30) days after the delivery of the
said resignation, whichever event shall first occur, and after such
resignation, until it takes effect, the retiring Trustee may but shall not be
obliged to continue to act as one of the Trustees hereunder. Each Trustee
shall receive, for his services as such Trustee, such annual compensation,
plus such fees for each Trustees' meeting attended and additional services
rendered, as are fixed from time to time by the Trustees in their discretion.
Notwithstanding any other provisions of this Declaration of Trust (and
notwithstanding the fact that a lesser proportion or separate class vote may
be specified by law or this Declaration of Trust generally), the affirmative
vote or written consent of the holders of three-quarters of the then
outstanding Shares entitled to vote shall be required to amend or repeal, or
adopt any provisions inconsistent with this Section 6 including, without
limitation, provisions affecting the number, classes, term or incumbency of
Trustees.
Section 7.-Upon the resignation of any Trustee and upon the appointment
of a new Trustee such instruments shall be executed, acknowledged and
delivered as the Trustees or the new Trustee shall deem to be necessary or
convenient for vesting the Trust Property in the Trustees for the time being
or providing evidence of such vesting independently of such resignation or
appointment. But without the execution of any conveyance, the Trust Property
shall always (not restricting the same to the above enumerated cases) vest in
the Trustee or Trustees for the time being acting hereunder.
Section 8.-The Trustees shall have power to determine whether any moneys
or things are for the purposes of these presents to be considered as capital
or income, and what constitutes the income of this trust for any year or other
period, and in what manner any expenses or outgoings are to be borne as
between capital and income. In making any such determination, the Trustees
shall be guided by sound accounting principles but every such determination
made in good faith, whether express or implied in the acts or proceedings of
the Trustees, shall be conclusive and binding upon all persons interested.
Section 9.-Subject to the provisions contained in the rights,
preferences and limitations relating to any preferred shares in or any bonds
or other obligations of this trust, the Trustees may from time to time in
their discretion declare cash dividends out of earned surplus of the trust
accumulated subsequent to the effective date of the Plan; provided that
dividends in securities or rights or property or in shares of the System may
be declared as long as the payment of such dividend does not result in the
impairment of the capital of this trust, as represented by the aggregate of
the par value of its outstanding shares and any cash premium paid in on the
sale of such shares; but no Shareholder shall have any right to any dividends
except when and as the same are declared by the Trustees, and no Shareholder,
Trustee, officer or agent of this trust shall be liable therefor, and any
Shareholder entitled thereto shall look only to the Trust Property for the
payment of any such dividends. For the purpose of determining the Shareholders
<PAGE 14>
who are entitled to receive payment of any dividend, the register and transfer
books of this trust may be closed at the end of such day as the Trustees shall
direct, but not more than forty-five (45) days before the payment date for
such dividend, which register and transfer books, unless the Trustees
otherwise direct, shall remain closed until the close of business on said
dividend payment date, or without closing of said register and transfer books
the Trustees may fix a time not more than forty-five (45) days before any
dividend payment date as the time as of which the Shareholders entitled to
receive payment of such dividend shall be determined, and if such time is so
fixed only those Shareholders of record at such time shall be entitled to
receive payment of such dividend.
Section 10.-The Trustees may determine the fiscal year of this trust,
and the form in which the accounts of this trust shall be kept, and may from
time to time change the fiscal year or form of accounts, provided, however,
that such accounts shall be kept in accordance with sound accounting
principles. Until the Trustees shall change the same the fiscal year shall end
on the thirty-first day of December in each year.
Proceedings of the Trustees.
Section 11.-The Trustees, if more than one, may hold meetings for the
transaction of the business of this trust and the exercise of any of their
powers, authorities and discretions hereunder, and may prescribe regulations
for the conduct of such meetings, the times and places of regular meetings,
which may be held without call or further notice thereof, and the manner of
calling and giving and waiving of notice of special meetings. An annual
meeting of the Trustees shall be held in Cambridge, Massachusetts, as soon as
practicable after the annual meeting of the Shareholders, or any special
meeting held in lieu thereof, at which meeting action shall be taken on the
question that may be presented. No notice need be given of any meeting of the
Trustees provided that all the Trustees are present in person or waive notice
thereof in writing signed either before or after said meeting. A majority of
the Trustees shall constitute a quorum for the transaction of business, but a
lesser number may adjourn any meeting from time to time and the meeting may be
held as adjourned without further notice. Except as otherwise provided herein,
questions arising at any meeting of the Trustees at which a quorum is present
shall be decided by the vote or resolution of a majority present and such
majority shall have full power to exercise all or any of the duties, powers,
authorities and discretions at the time vested in their entire number.
Section 12.-The Trustees may, without a meeting, transact any business
of the trust and exercise any of their duties, powers, authorities and
discretions hereunder by vote or resolution signed by each of the Trustees and
any such written vote or resolution shall be as valid for all purposes as
action taken at a meeting.
Section 13.-The Trustees shall cause to be kept by the secretary or an
assistant or temporary secretary, in books provided for the purpose, minutes
of all meetings of the Trustees, specifying the names of the Trustees present,
and a record of all written votes and resolutions adopted by the Trustees, and
minutes of all meetings of the Shareholders, and a record of all written
consents of the Shareholders. Such minutes and records, if signed or certified
by the secretary or any assistant or temporary secretary, or in case of
Trustees' action by a majority of the Trustees who were present in person at
the meeting or who signed the written vote or resolution, shall be conclusive
evidence of the matters therein stated. A certificate signed by the president
or a vice-president or the treasurer or the secretary or an assistant or
temporary secretary shall be conclusive evidence, in favor of every person,
firm, association, trust and corporation acting in good faith in reliance
thereon, as to the contents of any such vote or resolution or written consent
and as to all matters in such certificate contained relating to a written vote
or resolution or written consent or relating to the meeting, if any, at which
such vote or resolution is therein certified to have been passed, including
<PAGE 15>
the regularity of the said meeting and the passage of any vote or resolution
thereat, and as to all other matters and things stated in such certificate,
and no person, firm, association, trust or corporation shall be obliged to
make any inquiry as to any of the said matters, or as to the election or
appointment of any person acting at any such meeting or signing such vote or
resolution, or as to the holding of any Shares by any person, firm,
association, trust or corporation, acting as a Shareholder at such meeting or
signing such written consent, or be affected by actual or implied notice of
any irregularity whatsoever therein.
Officers: Depositaries and Other Agents.
Section 14.-The Trustees shall at their annual meeting elect a
president, a treasurer and a secretary and may at that or any other meeting
elect any other officers which they may consider necessary or desirable and
may permit any officer to resign and may remove any officer with or without
cause and may fill any vacancy and may elect temporary officers to serve
during the absence or disability of regular officers or for a specified
purpose and may likewise from time to time appoint or employ or authorize the
appointment or employment of agents, employees, or representatives of this
trust, may fix the compensation, term of employment, duties and powers of all
officers, agents, employees or representatives of this trust or authorize the
same to be fixed, and may remove them or terminate their employment or
authorize the same to be done. Any action taken and any obligations entered
into by such officers or agents on behalf of this trust pursuant to authority
to them granted shall be binding upon the Trust Property. All of the said
officers shall, unless otherwise determined by the Trustees, continue in
office until the first annual meeting of the Trustees following the meeting at
which such officers were elected, and until their successors are elected.
Subject to the limitations contained in Section 4 and in this Section, the
several officers shall have such authority and perform such duties and receive
such compensation, if any, as may from time to time be fixed by the Trustees,
and unless the Trustees otherwise determine, but subject to the same
limitations, they shall have the authority and perform the duties usually
incident to their respective offices in the case of corporations. In addition
to all other duties, the treasurer, under the supervision of the Trustees,
shall keep or cause to be kept accurate books of account, which shall be the
property of this trust and shall constitute the books of account of the
Trustees, and the secretary shall attend and keep minutes of all meetings of
the Trustees and Shareholders, and shall keep records of all written consents
of the Shareholders presented to him for that purpose, which books of account,
minutes and records shall at all times be open to the inspection of any
Trustee and of any officer. The minutes of the meetings and records of the
written consents of the Shareholders shall be open during business hours to
the inspection of the Shareholders. In the absence of the secretary, an
assistant secretary or temporary secretary shall perform the duties of the
secretary. Any officer may but need not be a Shareholder, or Trustee, and any
two or more offices may be held by the same person, except that the offices of
president and treasurer may not be held by the same individual.
Section 15.-The Trustees may appoint as Depositary or Depositaries
hereunder such national banks, state banks or trust companies doing business
in Boston, Massachusetts, or elsewhere, as they shall from time to time
select. Until its appointment is terminated as hereinafter provided, State
Street Trust Company, Boston, Massachusetts, shall be the principal Depositary
hereunder. Each Depositary shall have the custody of at least one duplicate
original or certified copy of this declaration of trust and of each
certificate of amendment, alteration, addition or rescission all of which
shall be available for inspection by the Shareholders during business hours.
Any Depositary may serve as Trustee under any indenture of trust issued
pursuant to the provisions hereof, registrar, transfer agent or other agent of
this trust, and may be changed or removed from time to time by the Trustees.
Any Depositary so removed or resigning shall turn over on demand to its
successor Depositary, or if none be selected, to the Trustees, all documents
<PAGE 16>
and records in its possession or custody relating to this trust, or shall at
the request of the Trustees record any such document in any place of public
record selected by the Trustees; and thereupon its duty as to such documents
and records and its liability therefor hereunder shall cease. Any funds of
this trust in the hands of any Depositary as such may be deposited by it in
its banking department for its account as Depositary hereunder, and any
securities of this trust in the hands of any Depositary may be deposited by it
in its safekeeping or safe-deposit department. Copies of all documents and
records in the custody of any such Depositary duly certified by it and
certificates as to who are the Trustees, signed by any officer of such
Depositary, shall be conclusive upon all questions as to title or affecting
the rights of third persons, and in general shall have the effect of their
originals. The Depositary shall for all purposes hereof be deemed an agent of
this trust.
General Provisions Concerning the Trustees and Others.
Section 16.-Notwithstanding any other provisions of this instrument, no
Trustee (except to the extent that directors of a Massachusetts business
corporation are liable) and no officer, agent or other representative
appointed pursuant to any provision hereof shall be liable for any act or
default on the part of any co-Trustee, or any other officer, agent, attorney,
employee or representative, or for having permitted any co-Trustee, officer,
agent, attorney, employee or representative to receive or retain any money or
property receivable by the Trustees hereunder, or for errors of judgment made
in good faith in exercising or failing to exercise any of the duties, powers,
authorities or discretions conferred upon or resting upon him, or for any loss
arising out of any investment, or for failure to sue for or to collect any
moneys or property belonging to this trust or for any act or omission to act,
performed or omitted by him in good faith in the execution of this trust; but
each Trustee and each such officer, agent or representative shall be entitled
out of the Trust Property to reimbursement for his reasonable expenses and
outlays and to be put in funds and exonerated and indemnified to his
reasonable satisfaction from time to time against any and all loss, costs,
expense and liability incurred or to be incurred by him in good faith in the
execution of this trust. And no Trustee, however appointed, shall be obliged
to give any bond or surety or other security for the performance of any of his
duties as Trustee.
The System shall reimburse or indemnify each present and future Trustee,
officer, agent or representative (and his heirs, executors and administrators)
for or against all expenses reasonably incurred by him or imposed by him,
subsequent to the effective date of the Plan, in connection with, or arising
out of, any action, suit or proceeding in which he may be involved by reason
of his being or having been a Trustee, officer, agent or representative of the
System, where disposition of such action, suit or proceeding is made in favor
of such Trustee, officer, agent or representative; provided that no
reimbursement shall be made until such time has elapsed that appeal can no
longer be taken and that, in the judgment of the Trustees, such action, suit
or proceeding will not be recommended.
No Trustee, officer, agent or representative of the System (or its or
his successors, heirs, executors or administrators) 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, the
Federal Power Act or any state statute regulating the System or its
subsidiaries by reason of their being public utility companies or public
utility holding companies, or any amendments to any thereof. In any action,
<PAGE 17>
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 foregoing 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 Trustee,
officer, agent or representative (and its and his successors, heirs, executors
and administrators) shall be reimbursed for, or indemnified against, all
expenses and liabilities 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 paragraph
described. Such expenses and liabilities shall include, but shall not be
limited to, judgments, court costs and attorneys' fees.
The foregoing rights shall not be exclusive of other rights to which any
Trustee, officer, agent or representative may otherwise be entitled and shall
be available whether or not the Trustee, officer, agent or representative
continues to be such at the time of incurring such expenses and liabilities.
Such other rights shall include, as to transactions subsequent to the
effective date of the Plan which are not within the protection afforded by the
foregoing paragraphs, the immunities and rights of reimbursement which would
have been allowable under the laws of The Commonwealth of Massachusetts had
this trust been a business corporation organized under such laws. As to
transactions on or prior to the effective date of said Plan, the immunities
and rights of reimbursement of any Trustee, officer, agent or representative
of the System (and its or his successors, heirs, executors and administrators)
shall be determined under the provisions of this declaration of trust as in
force at the time of such transactions.
Section 17.-The Trustees may consult with any counsel, lawyer, valuer,
surveyor, engineer, broker, auctioneer, accountant or other expert, consultant
or person deemed by them competent, to be selected, employed, retained or
consulted by the Trustees at the expense of the Trust Property, whether
individuals, firms or corporations, and whether or not generally or specially
employed, retained or consulted, and any action taken by the Trustees in good
faith on the opinion or advice of, or information received from, any such
counsel, lawyer, valuer, surveyor, engineer, broker, auctioneer, accountant or
other expert, consultant or person deemed by them competent, shall be complete
and conclusive protection to the Trustees and each of them.
Section 18.-Whenever in the administration of this trust the Trustees
shall deem it necessary or advisable that any matter be proved or established,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed by them and by each of them to be conclusively
proved and established by a certificate or instrument purporting to be signed
by the president or a vice-president or the treasurer or the secretary or any
assistant or temporary secretary of this trust and delivered to the Trustees,
or any of them, and such certificate or instrument shall be full warrant to
the Trustees and to each of them for any action taken or suffered by them or
by any of them under the provisions of this declaration of trust on the faith
thereof; but in their discretion the Trustees or any of them may accept other
evidence of such matter or may require or obtain from the officers of this
trust or from any other sources such further or additional evidence as to them
may seem reasonable. The Trustees may receive a certificate purporting to be
signed by the secretary or any assistant or temporary secretary as conclusive
evidence of the due adoption of any vote or resolution by the Shareholders and
conclusive evidence of the matters therein stated.
Section 19.-The receipts of the Trustees or any of them for moneys or
things paid or delivered to them or him shall be effectual discharges to the
person, firm, association, trust or corporation paying or delivering the same
therefrom and from all liability to see to the application thereof. And no
purchaser or person, firm, association, trust or corporation dealing with the
Trustees, officers or agents of this trust shall be bound to ascertain or
<PAGE 18>
inquire whether any consent, resolution or other authorization of the Trustees
or Shareholders, as is herein required or provided for, has been obtained or
passed or as to the existence or occurrence of any event or purpose in or for
which a sale, lease, mortgage, pledge, or charge is herein authorized or
directed, or otherwise as to the purpose or regularity of any of the acts of
the Trustees, officers or agents of this trust purporting to be done in
pursuance of any of the trusts or powers herein contained, or as to the
regularity of the resignation or appointment of any Trustee, officer or agent;
and a transfer of the Trust Property, or any part thereof, executed by the
Trustee or Trustees in whom the same shall be vested at the time of any such
resignation or appointment (including any retiring Trustee who shall be
willing to act and shall act in executing such transfer but not otherwise
including any such retiring Trustee) for the purpose of vesting the same in
the Trustee or Trustees for the time being of these presents or providing
evidence of such vesting independently of such resignation or appointment,
shall, as to the property comprised in such transfer, be conclusive evidence
in favor of any such purchaser or other person, firm, association, trust or
corporation dealing with the Trustees of the validity of such transfer and of
the matters therein recited relating to such resignation or appointment or the
occasion thereof or the occasion of such transfer. And no purchaser or person,
firm, association, trust or corporation dealing with any Trustee purporting to
act during the absence or inability of any other Trustee shall be concerned to
ascertain to inquire whether an occasion exists upon which he is authorized so
to act.
Section 20.-No corporation, trust, association or body politic shall be
affected by notice that any of its shares or bonds or other securities or
obligations are subject to any of the trusts of these presents or be bound to
see to the execution of any such trusts or to ascertain or inquire whether any
transfer of any such shares, bonds or securities or obligations by the
Trustees, officers or agents of this trust is authorized, notwithstanding such
authority may be disputed by some other person, firm, association, trust or
corporation.
Interested Trustees, Officers, Agents and Shareholders.
Section 21.-No Trustee, officer or agent of this trust shall be
disqualified merely by the holding of such office from acquiring shares of
stock in or bonds and other obligations of or from holding any office or place
or profit under this trust or any company in which this trust or the Trustees
shall be interested as stockholder or otherwise, or from dealing or
contracting with this trust or with the Trustees, officers or agents hereof or
with any such company as vendor, purchaser or otherwise, nor shall any such
dealing or contract or any dealing, contract or arrangement entered into by or
in behalf of this trust or of the Trustees, officer or agents hereof or by or
in behalf of any such company, in which dealing, contract or arrangement any
such Trustee, officer or agent may be in any way interested be voided, nor
shall any Trustee, officer or agent so contracting or being so interested be
liable to account to this trust or to the Trustees, officers, agents or
Shareholders hereof, or otherwise, for any profit or benefit arising from any
such office or place of profit or realized through any such dealing, contract
or arrangement, merely by reason of such Trustee, officer or agent, holding
that office or of any fiduciary relation thereby established. Such Trustee,
and such officer or agent shall, however, disclose the nature and extent of
his interest in advance of any such dealings. No Trustee shall vote or act by
written vote or resolution as a Trustee in respect of any dealing, contract or
arrangement in which he is so interested, and if he does so vote or act his
vote or action shall not be counted but shall not operate to render the
dealing, contract or arrangement voidable; and any dealing, contract or
arrangement shall be valid if approved or ratified by vote or in writing by
the holders of a majority of the Shares of this trust notwithstanding that any
or all of the Trustees, officers or agents may be interested therein and shall
vote therefor. A general notice that a Trustee, officer or agent is a member,
<PAGE 19>
trustee, director, officer or stockholder of any specified company, and is to
be regarded as interested in all transactions with the company, shall be a
sufficient disclosure under this clause as regards such Trustee, officer or
agent, and under such general notice it shall not be necessary for such
Trustee, officer or agent, to give a special notice in regard to any
particular transaction with that company.
No Shareholder shall be disqualified by his holding such shares, however
great in amount, from holding any office or place of profit hereunder or under
any company in which this trust or the Trustee shall be interested as
stockholder or otherwise, or from dealing or contracting with this trust or
with the Trustees, officers or agents hereof or with any such company as
vendor, purchaser or otherwise, nor shall any such dealing or contract or any
dealing, contract or arrangement entered into by or on behalf of this trust by
the Trustees, officers or agents hereof in which dealing, contract or
arrangement any such Shareholder shall be in any way interested be voided, nor
shall any such Shareholder so contracting or being so interested be liable to
account to this trust or to the Trustees, officers, agents or Shareholders
hereof, or otherwise, for any profit or benefit arising from any such office
or place of profit or realized through any such dealing, contract or
arrangement, by reason of such Shareholder holding such shares to any amount,
nor shall any fiduciary relation be deemed to be established by such
shareholding or any obligation imposed on such Shareholder to disclose the
fact of his interest.
Unless the context otherwise requires, the word "company" and
the word "stockholder" as used in this Section shall refer to corporations,
trusts, partnerships and associations and stockholder, shareholder and member
thereof respectively.
It is not intended by this Section to affect the liabilities of the
Trustees under Section 17 of Public Utility Holding Company Act of 1935.
Shares and Shareholders.
Section 22.-The beneficial interest in this trust shall be and during
the continuance of this trust shall remain in the owners from time to time of
transferable shares of beneficial interest. The shares of beneficial interest
now authorized shall consist of eighteen million (18,000,000) Common Shares
having a par value of four dollars ($4) per share and a class of Cumulative
Preferred Shares having a par value of one hundred dollars ($100) per share
(hereinafter called "Preferred Shares").
Common Shares presently authorized but unissued may be issued by the
Trustees from time to time for such consideration and upon such terms and in
such manner as may be determined by vote at a meeting or by written consent of
the registered holders of a majority of the Common Shares at the time
outstanding, provided however that such presently authorized but unissued
Common Shares may be issued by the Trustees without such vote or written
consent upon such terms and in such manner as the Trustees may determine at
not less than the par value thereof, if issued:
(A) To Provide the System with Funds
(1) To acquire additional stock of any subsidiary of the
System which is authorized for its proper corporate purposes;
(2) To acquire common stock of any Massachusetts gas or
electric company if as a result of such transaction the System
will own 51% or more of such stock;
(3) To acquire debt securities maturing more than one year
from the date of issue thereof of any subsidiary of the System; or
(4) To retire temporary indebtedness of the System incurred
by it for the purchase of such stock or debt securities; or
(5) To make temporary advances to any subsidiary of the
System;. or
<PAGE 20>
(B) In Exchange
(1) For publicly held stock of any subsidiary of the System; or
(2) For stock of any Massachusetts gas or electric company
if as a result of such exchange the System will own 51% or more
of such stock; or
(C) To Provide Common Shares to Fund Long-Term Incentive Compensation
Plans That may be Adopted from Time to Time.
The shares of beneficial interest now issued shall be fully paid and
non-assessable and all additional shares of beneficial interest hereafter
issued, upon receipt by the System of the consideration specified in the vote
or written consent authorizing the issue thereof, shall be fully paid and
non-assessable except to the extent otherwise specifically provided in the
certificates representing such shares.
The conditions, preferences, voting powers, restrictions and
qualifications of the Preferred Shares and Common Shares shall be as follows:
(a) The Preferred Shares shall be of the par value of $100 each and may
be issued in one or more series designated "Series________ ________%
Cumulative Preferred Shares" (inserting in each case a letter designation and
the dividend rate for the particular series). All Preferred Shares,
irrespective of series, shall constitute one and the same class of shares of
beneficial interest, shall be of equal rank and shall be identical in all
respects except that the shares of different series may vary, as determined by
vote at a meeting or by written consent of the registered holders of at least
two-thirds (2/3) of the Common Shares at the time outstanding and entitled to
vote, in the following respects:
(1) the authorized number of shares of the particular series;
(2) the amount payable on the particular series upon any
liquidation, dissolution or winding up of the affairs of the
System or distribution of capital;
(3) the terms of any conversion, participation or other
special rights which may lawfully be provided for the particular
series; and the shares of different series may vary, as determined
by the Trustees, in the following respects:
(1) the number of authorized shares of the particular series
which shall be issued;
(2) the annual dividend rate for the particular series;
(3) the date from which dividends on shares of the particular
series shall be cumulative;
(4) the date for payment of the first dividend and each
succeeding quarterly dividend payment date for the particular series;
(5) the redemption price or prices for the particular series;
(6) the terms and amounts of any sinking fund or purchase fund
which may be provided for the redemption or purchase of shares of
the particular series.
Whenever a vote of the Preferred Shares may be required for any purpose,
the shares voting, if of different series, shall be counted irrespective of
series and not by different series, except as otherwise provided by law or by
this trust. All shares of the same series shall be identical (except as to the
date from which dividends on shares issued at different times will be
cumulative) in all respects and each certificate representing Preferred Shares
shall state the designation of the series in which the shares represented by
such certificate are issued.
<PAGE 21>
(b) Holders of the Preferred Shares shall be entitled to receive, when
and as declared by the Trustees out of funds legally available for the
declaration of dividends, cumulative dividends at the annual dividend rate per
share fixed for the particular series, and no more, payable in cash quarterly
in each year commencing on the date specified for the first dividend payment
as herein provided to shareholders of record on the respective record dates
fixed in advance for the purpose by the Trustees prior to the payment of each
such dividend, which record date for each dividend shall be the same for all
series, before any dividends on, or distribution of assets (by purchase of
shares or otherwise) to holders of, the Common Shares or any other shares
ranking junior to the Preferred Shares in respect of the payment of dividends
shall be declared or paid or set apart for payment. Dividends on Preferred
Shares shall be cumulative: (1) on shares of any series issued prior to the
first dividend payment date, from the date of issue of such shares or from
such other date as may be fixed by the Trustees prior to the issuance of such
shares; (2) on shares issued on or after such first dividend payment date,
from the quarterly dividend payment date next preceding the date of issue of
such shares or from the date of issue if that be a dividend payment date or
from such other date as may be fixed by the Trustees prior to the issuance of
such shares. No dividend shall be declared on any series of the Preferred
Shares or on any other class of Preferred Shares ranking on a parity with the
Preferred Shares in respect of the payment of dividends, for any quarterly
dividend period, unless there shall likewise be declared on all shares of all
series of the Preferred Shares and of any other such parity Preferred Shares
at the time outstanding, like proportionate dividends, ratably, in proportion
to the respective annual dividend rates fixed therefor, for the same quarterly
dividend period, to the extent that such shares are entitled to receive
dividends for such quarterly dividend period. Whenever dividends accrued on
all outstanding Preferred Shares to the last preceding quarterly dividend
payment date shall have been paid in full or declared and set apart for
payment, the Trustees may, without awaiting the expiration of the current
dividend period for the Preferred Shares, declare and pay dividends on the
Common Shares or any other shares ranking junior to the Preferred Shares in
respect of the payment of dividends.
The expression "dividends accrued," as used in this Section, shall mean
the sum of amounts in respect of Preferred Shares then outstanding which, as
to each share, shall be an amount computed at the dividend rate per annum
fixed for the particular share from the date from which dividends on such
share become cumulative to the date with reference to which the expression is
used, irrespective of whether such amount or any part thereof shall have been
declared as dividends or there shall have existed any funds legally available
for the payment thereof, less the aggregate of all dividends paid or declared
and set apart for payment on such share.
(c) The System shall have the right, at its option and by vote of the
Trustees, to redeem the Preferred Shares or any series thereof, as a whole at
any time, or in part from time to time, upon payment in cash of the redemption
price fixed for the shares of the particular series, together with dividends
accrued thereon to the redemption date. If less than all of any series of
Preferred Shares is to be redeemed at any time, the shares thereof to be
redeemed shall be selected by lot by the Trustees. If at any time the System
shall have failed to declare and pay or set apart for payment dividends in
full upon the Preferred Shares of all series for all past quarterly dividend
periods, thereafter and until all such dividends shall have been paid in full
or declared and set apart for payment, the System shall not redeem or
purchase, or permit any subsidiary to purchase, for any purpose, any Preferred
Shares of any series, unless all Preferred Shares of all series then
outstanding shall be redeemed. At its election, the System on or prior to the
<PAGE 22>
redemption date, may deposit an amount equal to the aggregate redemption price
of the shares so to be redeemed, together with dividends accrued thereon to
the redemption date, with a bank or trust company having a capital and surplus
of not less than $2,000,000 and its principal office in Boston, Massachusetts,
designated by the Trustees, in trust for the account of the holders of the
shares so to be redeemed.
Notice of any such redemption, and specifying the redemption date, shall
be mailed, postage prepaid, to each holder of record of the Preferred Shares
so to be redeemed, at his address as it appears on the books of the System,
not more than sixty (60) nor less than thirty (30) days prior to the
redemption date. Notice of redemption having been so given, the shares so to
be redeemed shall not be entitled to any dividends which may be declared after
the redemption date specified in such notice unless default be made in the
payment or deposit of the redemption price, together with dividends accrued
thereon to the redemption date, and on the redemption date, or on a date prior
thereto on which such deposit shall have been made, all rights of the
respective holders of such shares as shareholders of the System by reason of
the ownership of such shares shall cease, except the right to receive the
redemption price, together with dividends accrued thereon to the redemption
date, upon presentation and surrender of the certificates representing such
shares and such shares shall not be deemed to be outstanding after the
redemption date or the earlier date of such deposit. In case less than all the
shares represented by such certificates are to be redeemed, a new certificate
or certificates shall be issued representing the unredeemed shares. In case
the holders of Preferred Shares which shall have been redeemed shall not
within four (4) years after the redemption date claim any amount so deposited
in trust for the redemption of such shares, such bank or trust company shall,
upon demand, pay over to the System any such unclaimed amount so deposited
with it, and shall thereupon be relieved of all responsibility in respect
thereof, and thereafter the holders of such shares shall look only to the
System for payment of the redemption price thereof, together with dividends
accrued thereon to the redemption date, but without interest. All Preferred
Shares so redeemed shall be cancelled and retired and no shares shall be
issued in place thereof. Subject to the provisions of paragraphs (c) and (d)
of this Section, the System may also from time to time repurchase any
Preferred Shares at not exceeding the redemption price.
(d) In the event of any liquidation, dissolution or winding up (whether
voluntary or involuntary) of the affairs of the System or any distribution of
its capital, then the holders of each series of the Preferred Shares at the
time outstanding shall be entitled to be paid in cash the distributive amount
fixed for the particular series, together in each case with dividends accrued
thereon to the date fixed for payment of such distributive amounts, and no
more, before any distribution shall be made to the holders of Common Shares or
any other shares ranking junior to the Preferred Shares in respect of the
distribution of assets. No payments on account of such distributive amounts
shall be made to the holders of any series of the Preferred Shares or any
other Preferred Shares ranking on a parity with the Preferred Shares in
respect of the distribution of assets, unless there shall likewise be paid at
the same time to the holders of each other series of the Preferred Shares or
such parity shares like proportionate distributive amounts, ratably, in
proportion to the full distributive amounts to which they are respectively
entitled. After such payment to the holders of Preferred Shares or such parity
shares, the remaining assets and funds of the System shall be distributed
among the holders of the Common Shares. Consolidation or merger of the System
with or into any other corporation or corporations or association or
associations, or a sale or transfer of substantially all of the System's
assets as an entirety, shall not be deemed a liquidation, dissolution or
winding up of the affairs of the System within the meaning of this subsection
(d) if it does not effect any change in the preferences or rights of the
Preferred Shares as set forth herein which is substantially prejudicial to the
holders thereof.
<PAGE 23>
(e) Except as expressly provided in this Section 22, holders of the
Preferred Shares shall have no right to be represented at or to receive notice
of meetings of the Shareholders and shall have no right to vote for the
election of Trustees or for any other purpose or on any other subject.
However, whenever dividends accrued on any shares of any series of the
Preferred Shares at the time outstanding shall equal or exceed an amount
equivalent to six (6) full quarterly dividends thereon, holders of the
Preferred Shares shall have the right to be represented at and to receive
notice of any meeting of the Shareholders of the System held for the purpose
of electing Trustees and the exclusive right, voting separately as a class, to
elect two Trustees; and the remaining seven Trustees shall be elected by the
holders of the Common Shares.
If and when all dividends in default on the Preferred Shares shall have
been paid in full or declared and set apart for payment, the holders of the
Preferred Shares shall again be excluded from the right to be represented at
and to receive notice of meetings of the Shareholders and from the right to
vote, except as by law or in this trust provided.
Such dividends in default shall be declared and paid as soon as
reasonably practicable unless payment thereof is prevented by law or by the
provisions of any indenture or agreement to which the System is a party or
unless a majority of the Trustees elected otherwise than by holders of the
Preferred Shares shall determine that such payment is not in the best
interests of the System.
The term of office of all persons who may be Trustees of the System at
the time when the right to vote for two Trustees shall accrue to holders of
the Preferred Shares as herein provided shall terminate upon the election of
new Trustees at a meeting of Shareholders which, if not otherwise called,
shall be called by the secretary of the System upon request of, or may be
called by, the holders of record of at least 10% of all Preferred Shares then
outstanding. The new Trustees so elected shall serve until the next annual
meeting of Shareholders subject to the following provision and until their
successors shall be chosen and qualified.
When all dividends in default on the Preferred Shares shall have been
paid in full or declared and set apart for payment, each Trustee elected by
the holders of the Preferred Shares shall cease to hold office upon the
election of a successor or of a new Board of Trustees by the Shareholders
entitled to vote for Trustees at a meeting of Shareholders which, if not
otherwise called, shall be called by the secretary of the System upon request
of, or may be called by, one or more of the Trustees then in office.
If the event calling for any election of Trustees as provided for herein
shall occur not more than sixty (60) and not less than forty (40) days before
the date for an annual meeting of the Shareholders, the election of Trustees
shall be held at such annual meeting, otherwise at a special meeting of the
Shareholders to be called for the purpose.
Notice of every meeting of the Shareholders held for the election of
Trustees during a period when the holders of the Preferred Shares have the
right to vote for the election of two Trustees shall be given to the holders
of record of Preferred Shares and of Common Shares and shall state the purpose
of the meeting in respect of the election of Trustees representing the
different classes of shares.
<PAGE 24>
At each such meeting a majority of the outstanding Preferred Shares
shall be required to constitute a quorum for the election of two Trustees by
the Preferred Shares, which two Trustees shall be elected by plurality vote of
the Preferred Shares represented at the meeting; and a majority of the
outstanding Common Shares shall be required to constitute a quorum for the
election of the remaining Trustees by the Common Shares, which Trustees shall
be elected by plurality vote of the Common Shares represented at the meeting.
In case of any vacancy in the office of a Trustee elected by holders of the
Preferred Shares, the remaining Trustee elected by holders of the Preferred
Shares may fill the vacancy by the election of a successor to hold office for
the unexpired term of such Trustee. So long as any of the Preferred Shares of
any series are outstanding, no amendment of this trust shall authorize the
removal of any Trustee elected by holders of the Preferred Shares unless
consented to by vote of the holders thereof.
(f) (1) So long as any of the Preferred Shares of any series
are outstanding, the System shall not, without the vote at a
meeting called for that purpose of holders of at least
two-thirds of the total number of the Preferred Shares of all
series then outstanding:
(a) change any of the provisions of the Preferred Shares,
or of any series thereof, which would alter the preferences or
rights of the holders thereof in any manner substantially
pre-judicial to the holders thereof, except that if such change
is prejudicial to the holders of one or more, but not all of
such series, only the vote of the holders of two-thirds of the
total number of shares of all series so affected and then
outstanding shall be required; or
(b) create any class of shares ranking prior to or on a
parity with the Preferred Shares in respect of either the
payment of dividends or the distribution of assets.
(2) So long as any of the Preferred Shares of any series are
outstanding, the System shall not, without the vote at a meeting called for
that purpose of the holders of at least a majority of the total number of the
Preferred Shares of all series then outstanding:
(a) issue any Preferred Shares in addition to the shares of the
first series thereof or of any class of shares ranking prior to or on a
parity with the Preferred Shares in respect of either the payment of
dividends or the distribution of assets (except for the purpose of
retiring shares ranking prior to the Preferred Shares or for the purpose
of retiring Preferred Shares or shares ranking on a parity therewith if
the shares issued are only shares thereof or on a parity therewith,
provided the aggregate par or stated value of the shares to be retired)
unless, after giving effect thereto,
(i) consolidated net income of the System and its
subsidiaries for any period of twelve months within the next
preceding fifteen months (after adding back interest charges on
funded debt of the System deducted in the computation) shall have
been at least equal to one and one-half (1/2) times the sum of the
annual interest charges on funded debt of the System to be
outstanding at the date of such issue plus the annual dividend
requirements on the Preferred Shares and on any class of shares
ranking prior to or on a parity with the Preferred Shares in
respect of either the payment of dividends or the distribution of
assets which is to be outstanding at the date of such issue,
including the Shares to be issued but excluding any funded debt or
Shares of such prior or parity shares to be retired in connection
with such issue; and
<PAGE 25>
(ii) the aggregate amount of capital and paid-in premiums
represented by the Common Shares and any other Shares ranking
junior to the Preferred Shares in respect of either the payment of
dividends or the distribution of assets plus the consolidated
retained earnings of the System and its subsidiaries would be at
least equal to the capital and paid-in premiums represented by the
Preferred Shares and all other Shares ranking prior to or on a
parity with the Preferred Shares in respect of either the payment
of dividends or the distribution of assets to be outstanding after
giving effect to such issue but excluding any such shares to be
retired in connection therewith;
or
(b) merge into or consolidate with any other corporation or
association unless the System shall itself be the successor; or
otherwise sell or transfer its assets as, or substantially as, an
entirety. The term "sell or transfer", as used therein, includes a lease
or exchange, but does not include a mortgage or pledge.
The term "funded debt", as used in this subsection (f), shall mean all
indebtedness, other than indebtedness incurred in the ordinary course of
business, maturing by its terms more than twelve months from the date on which
it was incurred, except that there shall not be included in funded debt any
indebtedness for the payment or redemption of which at maturity or on a
redemption date sums sufficient have been deposited in trust.
The term "consolidated net income of the System and its subsidiaries" as
used in this subsection (f) shall mean for any particular period the net
income of the System and its subsidiaries on a consolidated basis for such
period determined in conformity with generally accepted accounting principles,
subject to any applicable requirements imposed by any regulatory body having
jurisdiction.
The term "subsidiary" shall mean any corporation or trust of which the
System (either alone or through a subsidiary or subsidiaries or together with
a subsidiary or subsidiaries) owns a majority of the shares outstanding and
having power to vote on the election of at least a majority of the directors
in the case of a corporation, or at least a majority of the trustees in the
case of a trust.
(g) Except as otherwise provided by law, no holder of Preferred
Shares shall be entitled as such as a matter of right to subscribe for
or purchase any part of any new or additional issue of Shares or
warrants carrying rights to Shares, or securities convertible into
Shares, of any class whatever, whether now or hereafter authorized, and
whether issued for cash, property, services or otherwise.
(h) Preferred Shares when duly authorized may be issued for such
consideration as may be fixed from time to time by the Trustees and upon
receipt by the System of the consideration so fixed such Shares shall be
deemed to have been fully paid and shall not be liable to any further
call or assessment.
(i) No Shareholder, Trustee, officer or agent of this trust shall
be held individually responsible for any action taken in good faith
though subsequently adjudged to be in violation of this Section.
(j) Terms applicable to particular series of the Preferred Shares:
<PAGE 26>
The first series of the Preferred Shares shall be designated "Series A
____% Cumulative Preferred Shares" (inserting the annual dividend rate for the
particular series); the number of Shares of the first series which may be
issued shall be limited to 60,000 shares; the annual dividend rate per share,
the date from which such dividends shall be cumulative, the first dividend
payment date and each succeeding quarterly dividend payment date, and the
redemption prices shall be determined by vote of the Trustees; the amount
payable upon any liquidation, dissolution or winding up of the affairs of the
System or distribution of capital, if involuntary, shall be $100 per Share
and, if voluntary, shall be equal to the applicable redemption price per
Share, plus in each case dividends accrue to the date of distribution.
Common Shares in addition to the 18,000,000 Shares herein authorized may
be authorized from time to time by vote at a meeting or by the written consent
of the registered holders of a majority of the Common Shares at the time
outstanding and entitled to vote and may be issued from time to time by the
Trustees at not less than par for such consideration and upon such terms and
in such manner as may be determined by such vote or written consent or, if
authorized by such vote or written consent, upon such terms and in such manner
and for such consideration as may be determined by the Trustees. Such
additional Common Shares shall rank pari passu with the Common Shares now
authorized. Subject to the provisions of paragraphs (a) and (f) of this
Section, Shares in addition to Preferred Shares with any preference as to
dividends or in liquidation or otherwise over the Common Shares may be
authorized from time to time by vote at a meeting or by written consent of the
registered holders of at least two-thirds (2/3) of the Common Shares at the
time outstanding and entitled to vote and such additional Shares shall,
subject to the provisions of this Section 22, have such par value or be
without par value as may be determined by such vote or written consent, may be
issued by the Trustees for such consideration and upon such terms and in such
manner as may be determined by such vote or written consent, or if authorized
by such vote or written consent, upon such terms and in such manner and for
such consideration as the Trustees may determine, and shall have such
preferences and other rights as may be determined by such vote or written
consent, except for the following matters which may be determined by the
Trustees:
(1) the annual dividend rate for such Shares;
(2) the date from which dividends on the Shares shall be
cumulative;
(3) the date for payment of the first dividend and each succeeding
dividend payment date for the Shares;
(4) the redemption price or prices for the Shares;
(5) the terms and amount of any sinking fund or purchase fund
which may be provided for the redemption or purchase of the Shares.
No Common Shares (other than initially issued pursuant to the Plan
referred to in Section 5 (e) of this trust) shall be issued or sold for cash
unless the same shall first be offered pro rata to the holders of the Common
Shares at such price and on such terms and conditions and for such period as
may be determined by the Trustees unless the holders of two-thirds (2/3) of
the outstanding Common Shares, by vote at a meeting or in writing, shall
consent to some other disposition thereof except as hereinafter provided. Any
such Shares or securities so offered for subscription and not subscribed for
within the period so determined may be issued and sold to such persons,
whether Shareholders or not, as may be determined by the Trustees but if so
offered other than at a public auction or pursuant to competitive bidding,
such unsubscribed Shares or securities shall not be issued at a price less
than the price at which such Shares or securities were so offered to the
Common Shareholders. Such preemptive rights shall not apply (1) to the issue
of Shares of any class or other securities issued otherwise than for cash or
<PAGE 27>
(2) unless the Trustees shall prescribe otherwise, to the issue of Shares of
any class or other securities where such Shares or other securities are
publicly offered by competitive bidding or are sold to or through underwriters
or investment bankers for public sale; (3) to the issue of Common Shares where
such Shares are offered to holders of Common Shares pursuant to a plan whereby
such holders may purchase Common Shares by either investing cash dividends
from Common Shares of the System or making optional cash payments or both; or
(4) to the issue of Common Shares where such Shares are offered to the
Employees Savings Plan of Commonwealth Energy System and Subsidiary Companies
or the Tax Reduction Act of 1975 Employees Stock Ownership Plan of
Commonwealth Energy System and Subsidiary Companies; and except as herein
specifically provided no holder of Shares of this trust of any class shall
have any preemptive or preferential right of subscription to any Shares or
other securities of this trust. At the time of any issue of additional Common
Shares for cash, the Trustees may, in cases where such preemptive rights
apply, specify that holders of outstanding Common Shares shall not be entitled
to receive subscription rights for fractions of a Share, provided that if the
Trustees so specify each such holder who would otherwise be entitled to
receive fractional interests shall be entitled to receive as determined by the
Trustees, either (a) cash equal to the value, if any, which said rights would
have had, as determined by the Trustees, or (b) sufficient subscription rights
to enable said holder to subscribe for one whole Share.
Section 23.-Shares in this trust acquired by this trust may be cancelled
and the number of Shares authorized be thereby reduced, or such Shares may be
held in the treasury or be reissued by the Trustees as the Trustees may from
time to time determine, provided, however, that before reissuing any Common
Shares, the same shall first be offered proportionally to holders of Common
Shares in the same manner as is provided in Section 22 hereof with respect to
additional Shares, unless the holders of a majority of the outstanding Common
Shares shall by vote at a meeting or in writing consent to some other
disposition; but such Shares while so held in the treasury shall not be
entitled to vote or give any consent hereunder or to receive any dividends and
shall not be deemed outstanding in computing proportions or percentages of
Shares or Shareholders hereunder or for any other purpose of this trust.
Section 24.-A register or registers shall be kept by or on behalf of
this trust under the direction of the Trustees, which shall contain the names
and addresses of the Shareholders and the number and kind of Shares held by
them respectively and a record of all transfers thereof, which register or
registers shall be open to inspection by the holders of Common Shares to the
same extent as the stock and transfer books of Massachusetts business
corporations are open to the inspection of their stockholders. No Shareholder
shall be entitled to receive payment of any dividend declared, nor to have any
notice given to him as herein provided, until he has given his address to the
transfer agent, or such other officer or agent of this trust as shall keep the
said register, for entry thereon.
Section 25.-The Trustees shall have power to employ in the city of
Boston and in any other cities the Trustees may designate a transfer agent or
transfer agents and a registrar or registrars and may employ as any such
transfer agent or registrar any corporation that is a Depositary hereunder.
The transfer agent or transfer agents shall keep the said registers and record
therein the transfers of any of the said Shares and countersign certificates
of Shares issued to the persons entitled to the same. The transfer agents and
registrars shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, except as modified by
the Trustees and the remuneration of such transfer agent or transfer agents
and such registrar or registrars shall be allowed as part of the expenses
incidental to the execution of this trust.
<PAGE 28>
Section 26.-Every Shareholder shall be entitled to receive a certificate
in such form as the Trustees shall from time to time approve, specifying the
number and kind of Shares held by him, with such description, if any, as may
be necessary to distinguish them from other Shares to which different rights
are attached. Such certificates shall, unless otherwise determined by the
Trustees, be signed by the president or a vice-president and the secretary or
treasurer or an assistant secretary or assistant treasurer of this trust and
countersigned by the transfer agent, if any, and registered by a registrar, if
any, and a notation of such registration shall be made thereon. The seal of
the System and the signature or signatures of the president, vice-president,
secretary, treasurer, assistant secretary and/or assistant treasurer upon any
such certificate, may be made by engraving, lithographing or printing thereon
a facsimile of such seal or of such signature or signatures, in lieu of such
seal or actual signature, and such facsimile seal or signature or signatures
so engraved, lithographed or printed thereon shall have the same force and
effect as if such seal had been affixed thereto and such officer or officers
had actually signed the same. In accordance with the usual custom of
corporations having a transfer agent, signed certificates for Shares in blank
may be deposited with any transfer agent of this trust, to be used by the
transfer agent in accordance with authority conferred upon it as occasion may
require, and in so doing the signers of such certificates shall not be
responsible for any loss resulting therefrom.
Section 27.-A new certificate may be issued by authority of the Trustees
to replace any certificate previously issued, on evidence satisfactory to the
Trustees that the said certificate previously issued has been worn out,
mutilated, lost or destroyed and on such terms, if any, as to indemnity and
otherwise, as the Trustees shall deem proper.
Section 28.-Every transfer of any Shares (otherwise than by operation of
law) shall be by assignment in writing by the transferor or of his agent
thereunto duly authorized in writing, and upon delivery thereof to the
transfer agent of this trust (and if there be no transfer agent then to the
principal office of this trust) accompanied by the existing certificate for
such Shares and such evidence of the genuineness of such assignment,
authorization and other matters as may reasonably be required, shall be
recorded in the register, and a new certificate therefor shall be issued to
the transferee, and in case of a transfer of only a part of the Shares
mentioned in any certificate a new certificate for the residue thereof shall
be issued to the transferor. Until the transfer shall be so delivered and
recorded, the transferor shall be deemed to be the holder of the Share or
Shares comprised therein for all purposes hereof, and neither the Trustees nor
any transfer agent or registrar nor any officer or agent of this trust shall
be affected by any notice of the transfer.
Section 29.-Any person becoming entitled to any Shares in consequence of
the death, bankruptcy or insolvency of any Shareholder, or otherwise, by
operation of law, shall be recorded in the register as the holder of the said
Shares, and receive a new certificate for the same, upon production of the
proper evidence thereof and delivery of the existing certificate to the
transfer agent of this trust and if there be no transfer agent then to the
principal office of the trust. But until such record is made the Shareholder
of record shall be deemed to be the holder of such Shares for all purposes
hereof, and neither the Trustees nor any transfer agent or registrar nor any
officer or agent of this trust shall be affected by any notice of such death,
bankruptcy or insolvency.
Section 30.-Shares shall be personal property entitling the holders only
to the rights and interest in the Trust Property set forth in these presents,
and it is expressly declared and agreed that a trust and not a partnership is
<PAGE 29>
intended to be created by this instrument and that the Shareholders shall be
deemed to hold only the relationship of cestuis que trustent to the Trustees,
with only such rights as are conferred upon them as such cestuis que trustent
hereunder.
Section 31.-Two or more persons holding any Share shall be joint tenants
of the entire interest therein, and no entry shall be made in the register or
in any certificate that any person is entitled to any future, limited or
contingent interest in any Share. But any person registered as a holder of any
Share may, subject to the provisions hereinafter contained, be described in
the register or in any certificate as a trustee of any kind, and any words may
be added to the description to identify the said trust.
Section 32.-The Trustees shall not, nor shall the Shareholders, transfer
agent or other agent of this trust or of the Trustees be bound to take notice
or be affected by notice of any trust, whether express, implied or
constructive, or of any charge, pledge or equity to which any of the said
Shares or the interest of any of the Shareholders in this trust may be
subject, or to ascertain or inquire whether any sale or transfer of any such
Shares or interest by any such Shareholder or his personal representatives is
authorized by such trust, charge or equity, or to recognize any person as
having any interest therein, except the persons registered as such
Shareholders. And the receipt of the person in whose name any Share is
registered, or, if such Share is registered in the names of more than one
person, the receipt of any one of such persons or of the duly authorized agent
of any such person, shall be a sufficient discharge for all dividends and
other money and for all shares, bonds, obligations and other property,
payable, issuable or deliverable in respect of such Share and from all
liability to see to the application thereof.
Meetings of the Shareholders.
Section 33.-An annual meeting of the Shareholders shall be held each
year at the principal office of the trust, in Cambridge, Massachusetts, or at
such other place either within or without the Commonwealth of Massachusetts as
shall be designated by the Trustees, on the first Tuesday of May of each such
year, or on such other date as the Trustees may fix (which date shall be not
more than 30 days before or after the first Tuesday of May), at which meeting
the Trustees shall submit to the Shareholders a financial report of the
affairs of the Trust for the past fiscal year and such other reports or
matters as the Trustees and officers of this trust may deem appropriate or
required. If such annual meeting is omitted on the day herein provided
therefor, a special meeting shall be held in lieu thereof and any business
transacted or election held at such special meeting shall have the same effect
as if transacted or held at the regular annual meeting.
Section 34.-Subject to the provisions of Section 6 and Section 22 hereof
the Shareholders entitled to vote shall, at each annual meeting or special
meeting held in lieu thereof, elect three (3) Trustees to serve for the
ensuing three years and take such other further action as may properly come
before the meeting.
Section 35.-The Trustees, president or treasurer of this trust may
whenever they think fit and the president or secretary of this trust, upon
written request of one-tenth (1/10) of all the Shares outstanding and entitled
to vote, shall call or direct any officer of this trust to call a special
meeting of the Shareholders to be held at the principal office of the trust or
at any place within or without the Commonwealth of Massachusetts as shall be
designated by the Trustees. Every such request shall express the purpose of
the meeting and shall be delivered at the principal office of the trust
<PAGE 30>
addressed to the president or secretary of the trust. In the event that the
president or secretary shall refuse or fail for fourteen (14) days after such
request has been delivered to call such special meeting, then the same may be
called by the person or persons signing such request. Notice of such special
meeting shall be given to all Shareholders entitled to vote thereat, not less
than thirty (30) days nor more than sixty (60) days (including Sundays and
holidays) prior to such meeting. The president, or in case of his absence or
unwillingness to preside, any vice-president shall be entitled to preside at
such meeting but in case neither the president nor any vice-president shall be
present or though present shall be unwilling to preside, a chairman shall be
chosen by the Shareholders represented at the meeting.
Section 36.-At any special meeting no business or vote or resolution
shall be considered or adopted except such as is included in the purposes
specified in the notice of the meeting.
Section 37.-A written or printed notice of each meeting of the
Shareholders, whether annual or special, specifying the time, place and
purposes thereof, shall be given as provided in Section 38 by the president or
secretary or any assistant secretary to each Shareholder entitled to vote
thereat not less than thirty (30) days nor more than sixty (60) days
(including Sundays and holidays) before such meeting.
Section 38.-Every notice to any Shareholder required or provided for in
these presents may be given to him personally or by sending it to him through
the post office in a prepaid letter addressed to him at his address specified
in the Share register, and shall be deemed to have been given at the time when
it is so posted. But in respect of any Share held jointly by several persons
notice so given to any one of them shall be sufficient notice to all of them.
And any notice so sent to the registered address of any Shareholder shall be
deemed to have been duly sent in respect of any such Share whether held by him
solely or jointly with others, notwithstanding he be then deceased or be
bankrupt or insolvent, and whether the Trustees or any person sending such
notice have knowledge or not of his death, bankruptcy or insolvency, until
some other person or persons shall be registered as holders. And the
certificate of the person or persons giving such notice shall be sufficient
evidence thereof, and shall protect all persons acting in good faith in
reliance on such certificate.
Section 39.-When any Share is held jointly by several persons any one of
them may vote at any meeting in person or by proxy in respect of such Share,
but if more than one of them shall be present at such meeting in person or by
proxy and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Share. If
the holder of any share is a minor or a person of unsound mind, or subject to
guardianship or to the legal control of any other person as regards the charge
or management of such Share, he may vote by his guardian or such other person
appointed or having such control, and such vote may be given in person or by
proxy.
Section 40.-For the purposes of determining the Shareholders who are
entitled to vote or act at any meeting or any adjourned session thereof, the
Trustees may from time to time close the register and transfer books for such
period, not exceeding sixty (60) days, as the Trustees may determine; or,
without closing the said register or transfer books, the Trustees may fix a
time as of which the Shareholders entitled to vote or act at any meeting or
adjourned meetings held within sixty (60) days after the time so fixed shall
be determined.
Section 41.-At all meetings every Shareholder shall, subject to the
provisions of Section 40, have one vote for every share held by him (except as
may be otherwise provided in case of shares issued with restricted or extended
voting rights) and may vote at any meeting or any adjournment or adjournments
<PAGE 31>
thereof in person or by proxy in writing; and, except as otherwise provided
herein or in the rights, preferences and limitations relating to any class or
series of shares, the holders of a majority of all the shares issued and
outstanding and carrying the right to vote upon a question to be considered at
the meeting shall constitute a quorum for the consideration of such question.
If, at the expiration of half an hour from the time appointed for a meeting, a
quorum is not present, the Shareholders present in person or by proxy shall
constitute a quorum for the purpose of adjourning the meeting, either to a
later date or sine die but not for the transaction of any other business, and
the meeting may be held as adjourned without further notice.
Duration, Termination and Amendments.
Section 42.-Unless sooner terminated as provided in Section 44, this
trust shall continue in such manner that the Trustees shall have all the
duties, powers, authorities and discretions expressed to be given to them by
these presents, and that no Shareholder shall be entitled to put an end to the
same or to require a division of the Trust Property or any part thereof until
January 2, 2050, or the expiration date of twenty (20) years from the death of
the last survivor of the following persons:
Katherine Bilodeau, Kerri Bilodeau and Thomas H. Bilodeau III, children
of Thomas H. Bilodeau, Jr. of Milton; Jill Heggie, daughter of James J.
Heggie III of Milton; Maura J. Donlan, daughter of Michael F. Donlan of
West Roxbury; Sarah M. Hundley and Laura S. Hundley, children of
Franklin M. Hundley of Belmont; William F. Griffin III and Amy C.
Griffin, children of William F. Griffin, Jr. of Melrose; Geoffrey May,
Daniel May, John May and Eleanor May, children of Gerald V. May of
Newton; Arthur M. Flaherty, Timothy E. Flaherty, Brian G. Flaherty,
Shaun F. Flaherty and Mark J. Flaherty, children of Arthur F. Flaherty
of North Scituate; Mary E. Landergan, Walter L. Landergan III and Thomas
J. Landergan, children of Walter L. Landergan, Jr. of Lynnfield, all in
the Commonwealth of Massachusetts, whichever of the said periods shall
first expire, and at the expiration of the time so limited the said
trust shall terminate.
Section 43.-The death of a Shareholder or a Trustee during the
continuance of this trust shall not operate to terminate this trust, nor the
appointment of any officer or agent, nor shall it entitle the legal
representatives of any such Shareholder or Trustee to an accounting or to take
any action in the courts or otherwise.
Section 44.-The Trustees may at any time alter, amend, add to or rescind
any of the terms, powers and provisions herein contained, if such alteration,
amendment, addition or rescission has been consented to by vote at a meeting
or by written consent obtained at a meeting or otherwise of the holders of a
majority of the outstanding Common Shares and of the holders of a majority (or
such greater or lesser proportion as the rights, preferences and limitations
relating to such class or series require or provide for) of the outstanding
Shares of each other class or series, if any, as shall, by the express terms
of the rights, preferences and privileges thereof, be entitled to vote thereon
or consent thereto. Such alteration, amendment, addition or rescission or any
termination of this trust shall, however, become effective only upon the
filing, at the principal office of the Depositary where this Declaration of
Trust is filed or at the principal office of this trust if there be no such
Depositary, of a certificate signed by a majority of the Trustees, setting
forth the said alteration, amendment, addition or rescission or termination
and that the Shareholders have consented thereto as required by this
<PAGE 32>
Declaration of Trust. The Trustees shall cause counterparts of said
certificate to be recorded in the various registries of deeds, if any, where
this Declaration of Trust is then recorded, and shall cause counterparts or
copies of said certificate to be recorded or filed in such other places as may
be required by law.
Notwithstanding the foregoing, no provision of this trust requiring the
vote of the registered holders of a specified proportion greater than a
majority of the Shares entitled to vote, may be altered, amended or rescinded
except by the affirmative vote or written consent of the holders of not less
than such specified proportion of such Shares.
Section 45.-Upon the termination of this trust by said limitation or
under the provisions herein contained the Trustees shall, upon such terms as
shall be determined by the Trustees, sell, and convert into money or into
shares, bonds and other securities or obligations, whether of the purchaser or
otherwise, the whole or any part of the Trust Property and, after paying or
otherwise providing for the payment of all of the obligations and liabilities
of the trust, shall apportion the net proceeds thereof and any property
forming part of the Trust Property excepted from such sale among all the
Shareholders in accordance with their respective rights ratably according to
the number and kind of Shares held by them respectively. And in making any
sale under these provisions the Trustees shall have power to sell by public
auction or private contract and to buy in or rescind or vary any contract of
sale and to resell, without being answerable for loss, and for the said
purposes to execute or cause to be executed all proper deeds and instruments
and to do all proper things. But the Trustees may, after the distribution of
the full amounts of money, if any, due upon liquidation or termination on the
preferred shares of any class or series which may be outstanding, divide the
whole or any part of the remaining Trust Property in its actual state of
investment among the Shareholders in accordance with their respective rights
ratably according to the number and kind of Shares held by them respectively,
and for such purposes the Trustees shall have power to determine the values of
the property comprising said remaining Trust Property.
Section 46.-This declaration of trust may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts taken together shall constitute but one and the same instrument.
In Witness Whereof the said original Trustees have hereunto set their
hands and seals the day and year first above written.
Daniel Starch (Seal) Harding U. Greene (Seal)
W. A. Hill (Seal)
<PAGE 33>
I, Michael P. Sullivan hereby certify that I am Secretary of Commonwealth
Energy System, a Massachusetts Trust, established under a Declaration of Trust
dated December 31, 1926, and that the foregoing is a true composite copy of
said Declaration of Trust reflecting all amendments thereto through the date
hereof.
Witness my hand and the seal of Commonwealth Energy System hereto affixed
this day of June, 1994.
__________________________________
Secretary
<PAGE 1>
Exhibit 2
ONE MAIN STREET P.O. BOX 9150 CAMBRIDGE, MASSACHUSETTS 02142
September 22, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
RE: Commonwealth Energy System Dividend
Reinvestment and Common Share Purchase Plan
Dear Commissioners:
Commonwealth Energy System (the "System") is seeking to register 1,000,000
Common Shares of Beneficial Interest, par value $4 each, under the Securities
Act of 1933, as amended, in accordance with and pursuant to the System's
Dividend Reinvestment and Common Share Purchase Plan (the "Plan"). The System
has requested that I furnish to you an opinion as to the legality of these
securities, which opinion is to be filed as Exhibit 2 to the System's
Registration Statement on Form S-3 relating to such securities.
I have acted as counsel for the System in connection with its proposed
issuance of the aforementioned Common Shares. I have examined the System's
Declaration of Trust dated December 31, 1926, as amended, copies of votes of
the Board of Trustees of the System, the Form S-3 Registration Statement (the
"Registration Statement") which the System proposes to file with the
Securities and Exchange Commission relative to the above-described offering,
and such other documents as I have deemed pertinent. I and members of my
staff have made such examination of law as I have felt necessary in order to
render this opinion.
I have reviewed the terms of the System's Declaration of Trust and am of the
opinion that the purpose of the above-described offering is among those
permitted under Section 22 of the System's Declaration of Trust.
I am of the opinion that the Common Shares being registered will be legally
issued, fully paid and non-assessable when issued and delivered for the
consideration described in the Registration Statement.
<PAGE 2>
Securities and Exchange Commission
September 22, 1994
Page 2
The System is an unincorporated business trust with transferable shares. The
Supreme Judicial Court of Massachusetts has in some circumstances imposed
personal liability upon shareholders of an unincorporated business where the
trust provides for ultimate control by shareholders. In my opinion, while a
partnership may technically exist among the System's common shareholders, the
possibility of any such personal liability of the System's shareholders is
remote because of the provisions of the System's Declaration of Trust, which
state that shareholders are protected from personal liability on contract
obligations containing the so-called limited liability clause which the System
customarily inserts in all contract obligations, including debt securities,
and because of certain other factors.
This opinion does not relate to qualifications or registrations of Common
Shares under the "Blue Sky" or securities laws of the various states or to the
federal income tax consequences of participation in the Plan.
I hereby consent that this opinion may be filed as an exhibit to the
Registration Statement to be filed by the System with the Securities and
Exchange Commission. I further consent to the use of my name and to all
references to me included in or made a part of the Registration Statement.
Very truly yours,
MICHAEL P. SULLIVAN
Michael P. Sullivan
Vice President, Secretary
and General Counsel
Exhibit 3
CONSENT
(a) The consent of Michael P. Sullivan, Vice President, Secretary and
General Counsel of the System is contained in his opinion, filed as
Exhibit 2.
(b) The consent of Arthur Andersen LLP is set forth below.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-3 Registration Statement of our reports dated
February 17, 1994 included or incorporated by reference in Commonwealth Energy
System's Annual Report on Form 10-K for the year ended December 31, 1993 and
to all references to our Firm in this registration statement.
ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Boston, Massachusetts,
September 22, 1994.
<PAGE 1>
Exhibit 4
TO THE SECURITIES AND EXCHANGE COMMISSION:
We, the undersigned officers and trustees of Commonwealth Energy System,
hereby authorize and direct James D. Rappoli and John A. Whalen, or either one
of them, as Attorney-in-Fact, to execute in the name and on behalf of each of
the undersigned persons and in the respective capacities indicated below, any
amendment or amendments to the registration statement on Form S-3 of
Commonwealth Energy System under the Securities Act of 1933 relating to a
proposed issue of additional Common Shares of Beneficial Interest of Common-
wealth Energy System under the Dividend Reinvestment and Common Share Purchase
Plan.
This authorization has been signed by the following persons in the
capacities and on the dates indicated.
(i) Principal Executive Officer:
WILLIAM G. POIST September 22, 1994
William G. Poist,
President and Chief Executive Officer
(ii) Principal Financial Officer:
JAMES D. RAPPOLI September 22, 1994
James D. Rappoli,
Financial Vice President and Treasurer
(iii) Principal Accounting Officer:
JOHN A. WHALEN September 22, 1994
John A. Whalen,
Comptroller
(iv) A Majority of the Board of Trustees:
SINCLAIR WEEKS, JR. September 22, 1994
Sinclair Weeks, Jr., Chairman of
the Board
SHELDON A. BUCKLER September 22, 1994
Sheldon A. Buckler, Trustee
HENRY DORMITZER September 22, 1994
Henry Dormitzer, Trustee
BETTY L. FRANCIS September 22, 1994
Betty L. Francis, Trustee
FRANKLIN M. HUNDLEY September 22, 1994
Franklin M. Hundley, Trustee
<PAGE 2>
Continued
WILLIAM J. O'BRIEN September 22, 1994
William J. O'Brien, Trustee
WILLIAM G. POIST September 22, 1994
William G. Poist, Trustee
G. L. WILSON September 22, 1994
Gerald L. Wilson, Trustee
