File No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM U-1
APPLICATION/DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
NORTHEAST UTILITIES
174 Brush Hill Avenue
West Springfield, Massachusetts 01090-0010
(Name of companies filing this statement
and address of principal executive offices)
NORTHEAST UTILITIES
(Name of top registered holding company)
Cheryl W. Grise, Esq.
Senior Vice President, Secretary and General Counsel
Northeast Utilities Service Company
P.O. Box 270
Hartford, Connecticut 06141-0270
(Name of address of agent for service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
Jeffrey C. Miller, Esq.
Assistant General Counsel
Northeast Utilities Service Company
107 Selden Street
Berlin, CT 06037
David R. McHale
Vice President and Treasurer
Northeast Utilities Service Company
107 Selden Street
Berlin, CT 06037
Northeast Utilities (NU), a Massachusetts business trust and a
registered holding company under the Public Utility Holding Company Act of
1935, as amended (the Act), hereby files this Form U-1 Application/Declaration
(the Application) to (1) obtain approval to amend its Declaration of Trust
(Trust Agreement) and (2) to solicit the proxies of the holders of NU common
shares.
Item 1. Description of Proposed Transaction.
NU, Consolidated Edison, Inc. (CEI), a New York corporation and an
exempt holding company under the Act, CWB Holdings, Inc. (CWB), a Delaware
corporation and a wholly owned subsidiary of CEI, and N Acquisition LLC
(Merger LLC), a Massachusetts limited liability company, which is directly
and indirectly owned by CWB, have entered into an Agreement and Plan of
Merger dated as October 13, 1999 (the Merger Agreement). Under the Merger
Agreement, CEI will merge with CWB and NU will merge with Merger LLC. Prior
to the effective date of the Merger Agreement, CWB expects to change its name
to CEI. On October 13, 1999, NU and CEI jointly issued a press release, a
copy of which is attached hereto as Exhibit B-2 and incorporated herein by
reference, announcing the proposed merger and related information. This
proposed merger will require Commission approval under the Act; a separate
filing for such approval is expected to be made in the fourth quarter of
1999.
Under the terms of the Merger Agreement, NU and CEI each have agreed to
convene a meeting of their shareholders for the purpose of obtaining required
shareholder approvals relating to the merger. The Trust Agreement authorizes
the NU board of trustees to sell, lease or otherwise dispose of any part or
parts of the properties of NU to the extent permitted by law. Under
Massachusetts law, however, for a Massachusetts business trust to merge with
another entity, its declaration of trust must explicitly authorize such a
transaction. The Trust Agreement currently does not authorize NU to merge
with another entity. Accordingly, NU will be seeking shareholder approval to
amend the Trust Agreement to permit NU to merge with a limited liability
company like Merger LLC. NU will also be seeking to amend the Trust
Agreement to permit the number of trustees of NU to be fixed by the Merger
Agreement. The amendments require a two-thirds vote of NU shareholders. The
merger is subject to a number of conditions, including the approval of the
Commission and other regulatory approvals.
NU proposes to hold a special meeting of its shareholders to vote on the
amendments in early 2000. It is NU's intention to mail definitive proxy
materials to its shareholders at least 30 days prior to the meeting and to
send all related proxy materials to print toward the end of the fourth
quarter 1999. CEI intends to follow a comparable schedule for its proxy
solicitation. In order for NU to provide its shareholders with the proxy
materials in a timely manner, NU respectfully requests that the Commission
grant the solicitation authority sought herein as soon as practicable and in
any event no later than the end of November 1999. A copy of NU and CEI's
preliminary proxy materials, including the solicitation letters to their
shareholders, will be filed by amendment to this Application as Exhibit D.
Item 2. Fees, Commissions and Expenses
The estimated fees and expenses in connection with the proposed
transaction include incidental services in connection with the transactions
to be performed by Northeast Utilities Service Company (a wholly owned
subsidiary of NU) (the Service Company) at the actual cost thereof. The
Service Company is an affiliated service company operating pursuant to
Section 13 of the Act and the Commission's rules thereunder. The cost of such
services is estimated to be approximately $50,000.
The estimate of the approximate amount of fees and expenses payable to
others in connection with the proposed solicitation is as follows:
Counsel fees $ *
Proxy solicitation firm *
Printing expenses *
Miscellaneous and incidental expenses *
TOTAL $ * (Estimates to
be filed by
amendment)
Item 3. Applicable Statutory Provisions
Section 6(a)(2) and 7 of the Act are applicable to the proposed
amendments to the Trust Agreement.
Section 12(e) of the Act and Rules 62 and 65 are applicable the
solicitation of proxies.
Item 4. Regulatory Approval.
No state regulatory authority and no federal regulatory authority, other
than the Commission, has jurisdiction over the proposed solicitation.
Item 5. Procedure
It is requested that the Commission (i) take action with respect to this
Declaration without a hearing, (ii) approve the proposed proxy solicitation
in its notice of this filing not later than November 30, 1999, and (iii)
enter an appropriate order approving the proposed amendments to the NU
declaration of trust.
No recommended decision by a hearing officer or other responsible
officer of the Commission is necessary or required in this matter. The
Division of Investment Management of the Commission may assist in the
preparation of the Commission's decision in this matter. There should be no
thirty-day waiting period between the issuance and the effective date of any
order issued by the Commission in this matter, and it is respectfully
requested that any such order be made effective immediately upon the entry
thereof.
Item 6. Exhibits and Financial Statements
(a) Exhibits
A-1 Declaration of Trust of NU, as amended through May 24, 1988, filed
as Exhibit 3.1.1 to the NU Annual Report on Form 10-K for the year
ended December 31, 1997, File No. 1-5324, incorporated herein by
reference.
A-2 Proposed Amendment to Trust Agreement
*B-1 Preliminary Proxy Statement
B-2 Press Release, filed as Exhibit 99 in NU's Current Report on Form
8-K dated October 13, 1999 and incorporated herein by reference.
B-3 Agreement and Plan of Merger, dated as of October 13, 1999 , filed
as Exhibit 2 in NU's Current Report on Form 8-K dated October 13,
1999 and incorporated herein by reference.
*F Opinion of Counsel
H Proposed Form of Notice
* To be filed by amendment.
(b) Financial Statements
The pro-forma effect on NU's financial statements of the proposed
solicitation is not material and therefore no new financial statements are
filed. The pro-forma effect of the merger will be filed in a separate
application with the Commission.
7. Environmental Effects
The proposed solicitation and amendments to the Trust Agreement do not
involve major Federal action having a significant effect on the human
environment. No Federal agency has prepared or is preparing an environmental
impact statement with respect to the proposed solicitation.
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, as amended, the undersigned has duly caused this Amendment to be
signed on behalf of it by the undersigned thereunto duly authorized.
Date: October 19, 1999
NORTHEAST UTILITIES
By: /s/ Cheryl W. Grise
_________________
Cheryl W. Grise
Senior Vice President, Secretary and
General Counsel
EXHIBIT A-2
DECLARATION OF TRUST (TRUST AGREEMENT) AMENDMENTS
The following amendments to the Trust Agreement have been approved by
the affirmative vote of two-thirds of the Trustees of NU and will become
effective in accordance with Articles (39) and (40) of the Trust Agreement
when the Trust Agreement Amendments have been approved by the affirmative
vote of the holders of two-thirds of the NU common shares outstanding as of
the date of the proposed NU shareholders meeting:
1. Article (2) of the Trust Agreement is amended in its entirety to
read:
"(2). The number of the Trustees hereunder for each ensuing year
shall be such as may be fixed at each annual meeting of the shareholders
by a vote of at least a majority of the number of shares then
outstanding hereunder of such class or classes as then have general
voting power, except that if at any annual meeting no such number shall
be so fixed then the number for the ensuing year shall be the same as
for the year preceding. Notwithstanding the foregoing sentence, if a
merger of the association has been approved pursuant to Article (11A)
hereof, the number of Trustees from and after the effective time of such
merger may be fixed by the agreement providing for such merger (in which
case such number shall not be required to be fixed for any ensuing year
at any annual meeting of the shareholders), including, without
limitation, pursuant to that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of October 13, 1999 among Consolidated
Edison, Inc., a New York corporation, the association, CWB Holdings,
Inc., a Delaware corporation and N Acquisition LLC, a Massachusetts
limited liability company."
2. The following new Article (11A) is added to the Trust Agreement:
"(11A). The Trustees are authorized to take or cause to be taken
all actions which they deem necessary or appropriate to implement and to
effectuate a merger of the association with or into one or more domestic
limited liability companies in accordance with Chapter 182 (Voluntary
Associations and Certain Trusts) of the Massachusetts General Laws, if
the same has been authorized by the affirmative vote, at a meeting
(which meeting may have preceded the effectiveness of this Article 11A)
duly called for such purpose, of two-thirds of all shares previously
issued and outstanding as of the date of such meeting of such class or
classes as have general voting power, including, without limitation, the
series of transactions provided for in the Merger Agreement."
EXHIBIT H
FORM OF PROPOSED NOTICE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Release No. 35- / , 1999
Filings Under the Public Utility Holding Company Act of 1935 ("Act")
Notice is hereby given that the following filing(s) has/have been made with
the Commission pursuant to provisions of the Act and rules promulgated
thereunder. All interested persons are referred to the application(s) and/or
declaration(s) for complete statements of the proposed transaction(s)
summarized below. The application(s) and/or declaration(s) and any
amendment(s) thereto is/are available for public inspection through the
Commission's Office of Public Reference.
Interested persons wishing to comment or request a hearing on the
application(s) and/or declaration(s) should submit their views in writing by
, 1999 to the Secretary, Securities and Exchange Commission, Washington, D.C.
20549, and serve a copy on the relevant applicant(s) and/or declarant(s) at
the address(es) specified below. Proof of service (by affidavit or, in case
of an attorney at law, by certificate) should be filed with the request. Any
request for hearing shall identify specifically the issues of fact or law
that are disputed. A person who so requests will be notified of any hearing,
if ordered, and will receive a copy of any notice or order issued in the
matter. After said date, the application(s) and/or declaration(s), as filed,
or as amended, may be granted and/or permitted to become effective.
Northeast Utilities (70- )
Northeast Utilities ("NU"), a registered holding company, located at 174
Brush Hill Avenue, West Springfield, MA 01090-0010 has filed an
Application/Declaration pursuant to Sections 6(a)(2), 7, and 12(e) of the
Public Utility Holding Company Act of 1935 (Act), and Rules 62 and 65 under
the Act.
NU, Consolidated Edison, Inc. (CEI), a New York corporation, CWB Holdings,
Inc. (CWB), a Delaware corporation and a wholly owned subsidiary of CEI, and
N Acquisition LLC (Merger LLC), a Massachusetts limited liability company,
which is directly and indirectly owned by CWB, have entered into an Agreement
and Plan of Merger dated as October 13, 1999 (the Merger Agreement). Under
the Merger Agreement, CEI will merge with CWB and NU will merge with Merger
LLC. Upon the effective date of the Merger Agreement, CWB will change its
name to CEI. Under the Merger Agreement, among other things, NU agreed to
hold a meeting of its shareholders to obtain the shareholder approvals
required to effect the Merger.
NU proposes to solicit proxies from its common shareholders to approve
various matters in connection with the Merger at a special meeting, which is
expected to be held in early 2000. The NU's shareholders will also be asked
to consider and approve certain amendments (Amendment) to NU's Declaration of
Trust (the Trust Agreement), to provide for the merger of a Massachusetts
limited liability company with and into NU and to fix the number of trustees
of NU in accordance with the Merger Agreement. The proposed Amendment will be
effected if approved by an affirmative vote of a two-thirds of the
outstanding shares. The NU Board of Trustees have already approved the
Amendment by a two-thirds vote. The proposed Amendment will be effected if so
approved, regardless of whether the merger is consummated. Accordingly, NU
requests that an order authorizing the solicitation of proxies to be issued
as soon as practicable under Rule 62(d).
At a later date, NU and CEI plan to file an application-declaration with this
Commission requesting authority to consummate the merger.
For the Commission, by the Division of Investment Management, pursuant to
delegated authority
Jonathan G. Katz
Secretary
