File No.: 70-8441
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
to
APPLICATION/DECLARATION
on
FORM U-1
APPLICATION/DECLARATION WITH RESPECT TO
THE ORGANIZATION AND FINANCING OF A
WHOLLY-OWNED SUBSIDIARY
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 (the "ACT")
EUA COGENEX CORPORATION
Boott Mills South, 100 Foot of John Street,
Lowell, Massachusetts 01852
(Name of company or companies filing this statement and
addresses of principal executive offices)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company parent
of each applicant or declarant)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333
Boston, Massachusetts 02107
(Name and address of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
ARTHUR I. ANDERSON, P.C.
McDermott Will & Emery
75 State Street
Boston, Massachusetts 02109
EUA Cogenex Corporation's Application-Declaration on Form U-1 is
hereby amended and restated in its entirety to read as follows:
Item 1. Description of Proposed Transactions.
I. Introduction
A. Background of Applicant. This application-declaration
is filed with the United States Securities and Exchange
Commission (the "Commission") by EUA Cogenex Corporation ("EUA
Cogenex"), a Massachusetts corporation and a wholly-owned
subsidiary of Eastern Utilities Associates ("EUA"), a
Massachusetts voluntary association and a registered holding
company under the Public Utility Holding Company Act of 1935, as
amended (the "Act"). The holding company system of EUA is
sometimes hereinafter referred to as the "EUA System" or the
"System".
B. Overview of Application. In this application/
declaration EUA Cogenex requests authorization to form, organize
and fund a new wholly owned corporate subsidiary ("EUA Cogenex-
Canada") to carry on EUA Cogenex's business activities in Canada.
Under order dated September 17, 1992 (Release No. 35-25636), EUA
Cogenex is authorized to conduct its business subject to a "50%
Restriction" which requires that less than 50% of EUA Cogenex's
revenues be attributable to customers located outside of the New
England/New York service area. For the purposes of determining
compliance with the 50% Restriction, all activities relating to
Qualifying Facilities ("QFs"), as defined in the Public Utility
Regulatory Policies Act of 1978, are excluded. Subject to
Commission authorization, as requested herein, all consulting
services (defined in paragraph C(4) below) rendered by EUA
Cogenex and its subsidiaries worldwide, would also be excluded
from the 50% Restriction calculation. EUA Cogenex believes that
there are significant opportunities for expansion of its business
in Canada, and that the formation of a separate subsidiary to
conduct such business is desirable.
C. Authorization of EUA Cogenex. By order dated December
19, 1986 (Release No. 35-24273), EUA was authorized to acquire
all of the issued and outstanding capital stock of the energy
management services company now known as EUA Cogenex. EUA
Cogenex designs, finances, installs and maintains energy
conservation and self-generation systems. EUA Cogenex is
currently authorized: (i) to provide energy management services/
shared savings ("EMS") to institutional, commercial/industrial
and governmental customers to reduce their energy costs and
consumption; (ii) to participate in utility-sponsored demand side
management ("DSM") programs to decrease base load and peak demand
on utilities' systems; (iii) subject to further Commission
authorization, to develop self-generation ("COGEN") projects; and
(iv) to render consulting services. Specifically, EUA Cogenex
operates within the four above-listed market segments as follows:
(1) EMS: EUA Cogenex employs energy efficiency technology
and equipment through building automation, lighting
modifications, boiler replacement and other heat recovery methods
to reduce electrical energy, fuel and other natural resource
consumption and related costs of its customers. The principal
equipment installed and maintained by EUA Cogenex for EMS
projects consists of lighting equipment including, among other
things, lamps, ballasts, reflectors, sensor switches and exit
sign retrofit kits; variable speed drives used in connection with
heating; ventilation and air conditioning systems; building
automation control and conservation equipment; high efficiency
motors; chillers and heat exchangers. EUA Cogenex is paid for
these services primarily through "shared savings" agreements in
which the customer, who owns or occupies a facility, pays EUA
Cogenex a portion of the energy savings that result from the
installation and maintenance of the energy efficient equipment in
the facility. EUA Cogenex also purchases benefits under existing
EMS contracts from other utilities and EMS providers. As part of
its EMS business, EUA Cogenex also engages in the retail sale and
concurrent installation of energy-conserving window film for
residential, commercial, industrial and institutional sites, and
sells reflectors wholesale to demand side management contractors.
(2) Utility-Sponsored DSM: In utility-sponsored DSM
programs, EUA Cogenex contracts with the utility and its
customers to provide energy management services to the utility's
customers to reduce demands on the utility's system. EUA Cogenex
is paid by the utility based on the reduction in the demand on
the utility's system and may also receive a portion of the
customer's savings.
(3) COGEN: EUA Cogenex develops COGEN projects in which an
electric and heat generating facility is installed for a
particular building or group of buildings. Typically,
electricity and heat can be generated by the COGEN facility at a
lower cost to the building owners or occupants than the retail
cost of heating fuel and electricity sold by the local utility.
When combined with other energy management services provided by
EUA Cogenex, COGEN projects can result in savings to the owners
or occupants, a portion of which is paid to EUA Cogenex. EUA
Cogenex's strategy has been to keep its COGEN projects below the
five megawatt (MW) level, sized to a minimum base load thermal
requirement for the particular facility to avoid competition from
larger independent power project developers. Almost all of the
COGEN projects that EUA Cogenex currently owns, operates or has
investments in are certified QFs, the revenues from which are
excludable from the determination of EUA Cogenex's compliance
with the 50% Restriction. EUA Cogenex will seek further
authorization from the Commission prior to undertaking any new QF
project.
(4) Consulting Services: EUA Cogenex performs and evaluates
feasibility studies and provides assistance with respect to the
design and implementation of energy savings programs tailored to
customers' needs. In designing a tailored program for a
customer, EUA Cogenex may develop and assess architectural,
structural and engineering aspects of energy and other resource
efficiencies, determine specifications for energy consuming
equipment, design and market processes, programs, software and
techniques to analyze energy conservation opportunities and
results, and render general technical advice regarding energy
management. These activities constitute consulting services in
cases where EUA Cogenex is not directly involved in the
performance of EMS, utility-sponsored DSM or COGEN projects.
D. Request for Revenues from Consulting Services to be
Excludable From 50% Restriction. EUA Cogenex hereby requests
that the revenues from its consulting services (defined in
Section I.C(4) above) be excludable from the determination of its
compliance with the 50% Restriction. To ensure that EUA
Cogenex's consulting revenues do not include any revenues from
EMS, utility-sponsored DSM or COGEN activities, EUA Cogenex
states that: (1) its revenues will only be categorized as
consulting revenues if EUA Cogenex is not at the same time also
providing EMS, utility-sponsored DSM and/or COGEN activities for
that customer; (2) if a consulting services client of EUA Cogenex
requests that EUA Cogenex also provide EMS, utility-sponsored DSM
or COGEN activities, all revenues received from that customer,
until the EMS, utility-sponsored DSM or COGEN activities are
completed, would be subject to the 50% Restriction; and (3) if a
customer for whom EUA Cogenex is providing EMS, utility-sponsored
DSM or COGEN activities requests that EUA Cogenex also provide a
consulting service or services, all revenues from that customer
would be subject to the 50% Restriction until all EMS, utility-
sponsored DSM or COGEN activities are completed.
E. Reasons for Expansion in the Canadian Market. EUA
Cogenex believes that in addition to providing valuable and
timely services to Canadian utilities and their customers, the
expansion of EUA Cogenex's activities in Canada will be
beneficial (i) for the New York/New England utility service area,
(ii) for the business and profitability of EUA Cogenex, and (iii)
for EUA Cogenex's competitive position generally.
(1) Benefits to the New York/New England Utility Service
Area: The New York/New England utility service area is presently
interconnected with northeastern Canada and the Maritimes region
(including New Brunswick and Nova Scotia), and the reliability
and efficiency of power delivery between these neighboring
systems is enhanced by the planning and coordination efforts of
the Northeast Power Coordinating Council ("NPCC"). The sharing
of reserves among New England/New York and eastern Canadian power
sources allows for a reduction in installed generating capacity
and the transfer of power for enhanced economic and reliability
purposes by: (i) reducing the chances of overloaded transmission
lines between New England and eastern Canada and minimizing the
frequency of occasions when New England must curtail power
imports from Canada under various firm energy contracts due to
Canadian power emergencies; (ii) making available more power in
eastern Canada to send to New England during New England's peak
demand and emergency periods; and (iii) freeing up low cost
energy generated by hydroelectric projects in eastern Canada.
The Applicant believes that the operation of a subsidiary of EUA
Cogenex in Canada would significantly further the purposes of the
NPCC and enhance the pooled benefits to be shared across power
systems in the Northeast. (For additional support, see Northeast
Utilities application-declaration on Form U-1, File No. 80-8086.)
(2) Benefits for the Business and Profitability of EUA
Cogenex: EUA Cogenex believes that it is well positioned using
its existing resources and technological know-how to provide
state of the art energy management and demand side management
services and, subject to further Commission authorization, to
develop COGEN projects in the rapidly developing Canadian market.
The profits generated by the Canadian business would either be
reinvested or paid to EUA Cogenex. These profits would also
indirectly benefit the EUA System by enhancing the attractiveness
of an investment in the common shares of EUA.
(3) Benefits with respect to the Competitiveness of EUA
Cogenex: The execution of the North American Free Trade
Agreement (NAFTA), recent economic and political developments in
Canada and this country's growing emphasis on global
environmental responsibility and international competitiveness
have created timely opportunities for EUA Cogenex to expand its
business in Canada. Additionally, EUA Cogenex believes that such
Canadian experience would enhance not only the management
capabilities of its employees but the competitiveness of EUA
Cogenex generally.
F. Subsidiary Structure Preferable for EUA Cogenex-Canada.
Upon authorization, EUA Cogenex proposes to conduct its Canadian
business through a new subsidiary for tax and administrative
reasons. Additional advantages of structuring Canadian
activities through a corporate subsidiary include:
(1) insulation of EUA Cogenex from legal liability for
obligations of the Canadian activities of EUA Cogenex, absent any
guarantee or contractual arrangement to the contrary;
(2) simplification of contracting and insulation of EUA
Cogenex: (i) from requirements under Canadian regulations; and
(ii) from specific contract provisions which might be burdensome
to otherwise avoid;
(3) establishment of a convenient operational mechanism for
accounting for appropriate EUA Cogenex and EUA Service
Corporation employee services performed for, and resources
rendered to, outside parties;
(4) maintenance of separate books and accounts enabling
direct and periodic measurement of the efficiency and
profitability of EUA Cogenex's Canadian activities; and
(5) establishment of a mechanism which would not unduly or
excessively complicate the capital structure of the EUA System
for the payment of dividends derived from such business directly
to EUA Cogenex.
II. Proposed Activities and/or Transactions
A. Formation of "EUA Cogenex-Canada". EUA Cogenex hereby
requests authorization to form, acquire the capital stock of and
finance a direct wholly-owned subsidiary to be incorporated on or
before December 31, 1996 under the laws of Canada ("EUA Cogenex-
Canada"). EUA Cogenex would initially subscribe to 100 shares of
the common stock of EUA Cogenex-Canada at a subscription price of
$1.00 per share. As the sole stockholder of EUA Cogenex-Canada,
EUA Cogenex would prepare and file a Stockholder's Declaration
pursuant to Section 146 of the Canada Business Corporations Act
to restrict in whole the powers of the directors of EUA Cogenex-
Canada, thereby retaining management and control of EUA Cogenex-
Canada in EUA Cogenex indefinitely.
B. Request for Authorization of Capitalization and
Financing for EUA Cogenex-Canada. EUA Cogenex hereby requests
authorization from time to time through December 31, 1995 to
subscribe for and purchase additional shares of EUA Cogenex-
Canada common stock, and to make capital contributions in cash or
in kind, open account advances and/or short-term loans to EUA
Cogenex-Canada (such contributions, advances, loans and purchases
of capital stock, collectively, the "Cogenex Investments"), up to
an aggregate of $20,000,000. All short-term loans and advances
by EUA Cogenex to EUA Cogenex-Canada would be made on the basis
of the terms and conditions authorized and available to EUA
Cogenex under the EUA System's lines of credit, as set forth in
EUA Release No. 35-25839 (June 29, 1993). The existing credit
line arrangements provide for borrowing at the prime rate or
money market rates together with a commitment fee equal to 1/4 of
1% multiplied by the line of credit. All such loans and advances
would have a maturity date of one year or less.
EUA Cogenex hereby also requests authorization for EUA
Cogenex-Canada from time to time through December 31, 1997 to
effect short term borrowings from lending institutions and for
EUA Cogenex to guarantee such borrowings as necessary, in an
aggregate amount together with the Cogenex Investments not to
exceed U.S. $20,000,000. The interest rate on such borrowings in
U.S. dollars shall not exceed the commercial base rate at The
First National Bank of Boston at the time any such loan is made
and in Canadian dollars shall not exceed the Canadian prime rate
as published in the Wall Street Journal at the time any such loan
is made. Any such borrowings shall have a maturity date of one
year or less.
C. Consolidated Revenues of EUA Cogenex-Canada Subject to
50% Restriction. As described in paragraphs B and C(3) of
Section I above, EUA Cogenex is currently restricted to earning
less than 50% of its revenues (other than revenues in connection
with the ownership, operation or investment in QFs) from outside
the New England and New York service area. Upon Commission
authorization, which is hereby requested, EUA Cogenex and, upon
its formation, EUA Cogenex-Canada, also would be authorized to
provide consulting services (as defined in paragraph C(4) of
Section I above) worldwide, with the revenues from such
consulting services to be excludable from calculation of the 50%
Restriction. The balance of the revenues of EUA Cogenex-Canada
will be consolidated with the other revenues of EUA Cogenex for
purposes of determining compliance with the 50% Restriction. The
criteria set forth in this paragraph II.C and in paragraph I.C(4)
above are the same in principle as those underlying the
Commission's previous grant of authorization to exclude from the
service area restriction all revenues attributable solely to the
worldwide consulting activities of HEC Inc., a wholly-owned non-
utility subsidiary of Northeast Utilities. (See Release No. 35-
25900 dated September 30, 1993.)
III. Intercompany Activities and/or Transactions.
A. Service Agreement Between EUA Cogenex-Canada and EUA
Service. EUA Cogenex anticipates that EUA Service Corporation
will provide management, financial, accounting and other services
to EUA Cogenex-Canada upon its formation pursuant to the terms
and conditions of a standard System Service Agreement in the form
attached hereto as Exhibit B-1.
B. Provision of Equipment and Services by EUA Cogenex to
EUA Cogenex-Canada. EUA Cogenex hereby requests Commission
authorization through December 31, 1997 to provide equipment and
services to EUA Cogenex-Canada on a cost basis as and when
required. None of the EUA System operating companies will render
services to EUA Cogenex-Canada without first seeking further
Commission authorization.
C. Licensing of Know-How. EUA Cogenex hereby requests
Commission authorization to license the use of appropriate know-
how, technologies, models and systems for conservation and load
management services to EUA Cogenex-Canada under a License
Agreement substantially in the form of License Agreement attached
hereto as Exhibit B-2. No EUA System company other than EUA
Cogenex will transfer or license its know-how and technology to
EUA Cogenex-Canada without first seeking further Commission
authorization.
Neither EUA Cogenex nor any subsidiary thereof has acquired
an ownership interest in any exempt wholesale generator ("EWG")
or a foreign utility company ("FUCO") as defined in Sections 32
and 33 of the Act, or now is or as a consequence of the
transactions proposed herein will become a party to or has or
will as a consequence of the transactions proposed herein have
any right under a service, sales or construction contract with an
EWG or FUCO, except in accordance with the provisions of the Act.
Item 2. Fees, Commissions and Expenses.
The fees, commissions and expenses of the Applicant expected
to be paid or incurred, directly or indirectly, in connection
with the transaction described above are estimated as follows:
Securities and Exchange Commission Fees $ 2,000
Other Filing Fees (Canadian) $ 1,000
Legal Fees - U.S. Counsel $25,000
Legal Fees - Canadian Counsel $ 3,000
Miscellaneous $ 3,000
TOTAL $34,000
Item 3. Applicable Statutory Provisions.
Transactions Applicable Sections
Issuance and sale by EUA Sections 6(a) and 7 and
Cogenex-Canada to EUA Cogenex Rule 43(a).
of the notes and common stock
of EUA Cogenex-Canada.
Purchase by EUA Cogenex Sections 9(a), 10 and
of the notes and shares 12(b); Rule 45(a).
of common stock of EUA
Cogenex-Canada.
Prepayment by EUA Cogenex- Section 12(c); exempt
Canada of its notes or other from Rule 42 by paragraph
obligations held by EUA Cogenex. (b)(2) thereof.
Open account advances, short- Section 12(b); Rule
term loans and guaranties by 45(a).
EUA Cogenex to, and receipt
thereof by, EUA Cogenex-Canada.
Capital contributions by Section 12(b);
EUA Cogenex to, and receipt Rule 45(a).
thereof by, EUA Cogenex-Canada.
Provision of services and goods Section 13(b); Rules 86,
by EUA Cogenex and EUA Service 87, 90, and 91
to EUA Cogenex-Canada. thereunder.
Licensing of know-how and Section 13(b); Rule
technology by EUA Cogenex to 90(a)(2).
EUA Cogenex-Canada.
Item 4. Regulatory Approval.
No consent or approval of any state commission or any
federal commission other than the Securities and Exchange
Commission is necessary for the transactions which are the
subject of this Application/Declaration.
Item 5. Procedure.
(a) In order to enable the Applicant to enter into the
proposed transactions promptly, the Applicant hereby requests
that this application/declaration be granted and made effective
at the earliest convenient date.
(b) It is not considered necessary that there be a
recommended decision by a hearing officer or by any other
responsible officer of the Commission. The Office of Public
Utility Regulation may assist in the preparation of the
Commission's decision and it is believed that a 30-day waiting
period between the issuance of the Commission's order and the
date on which the order is to become effective would not be
appropriate.
Item 6. Exhibits and Financial Statements.
(a) Exhibits. (* Filed herewith.)
(** Confidential treatment requested.)
A-1* Form of Articles of Incorporation of EUA Cogenex-
Canada.
A-2* Form of By-Law No.1 of EUA Cogenex-Canada.
A-3* Form of Shareholder Declaration of EUA Cogenex as EUA
Cogenex-Canada's Sole Stockholder.
B-1* Form of Service Contract between EUA Service and EUA
Cogenex-Canada.
B-2* Form of License Agreement between EUA Cogenex and EUA
Cogenex-Canada.
B-3** EUA Cogenex-Canada Business Plan for Demand Side
Management and Energy Management Services Investments.
C None.
D None.
E None.
F-1* Form of Opinion of U.S. Counsel.
F-2* Form of Opinion of Canadian Counsel.
G None.
H None.
(b) Financial Statements. (Confidential treatment
requested.)
Item 7. Information as to Environmental Effects.
The transactions described in Item 1 do not involve major
federal action significantly affecting the quality of the human
environment. No federal agency has prepared or is preparing an
environmental impact statement with respect to the proposed
transactions.
SIGNATURES
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
statement to be signed on its behalf by the undersigned thereunto
duly authorized.
EUA COGENEX CORPORATION
By: ________________________
Clifford J. Hebert, Jr.
Treasurer
DATED: September 30, 1994
\31579\040\10U1AAJG.02
FORM OF ARTICLES OF INCORPORATION
EXHIBIT A-1
Industry Canada
FORM 1
Canada Business ARTICLES OF INCORPORATION
Corporations Act (SECTION 6)
1. Name of Corporation
EUA Cogenex-Canada Corporation
2. The place in Canada where the registered office is to be
situated
Regional Municipality of Ottawa-Carleton, Ontario
3. The classes and any maximum number of shares that the
corporation is authorized to issue
The Corporation is authorized to issue an unlimited number
of shares of one class, designated as common shares.
4. Restrictions, if any, on share transfers
See Schedule "A".
5. Number (or minimum and maximum number) of directors
Minimum of one director, maximum of ten directors
6. Restrictions, if any, on business the corporation may carry
on
None
7. Other provisions, if any
See Schedule "B".
8. Incorporators
Name(s) Address (include postal code) Signature
J. Thomas Brett 288 Bayswater Avenue
Ottawa, Ontario K1Y 2H1
FOR DEPARTMENTAL USE ONLY Filed
Corporation No. __
Page 1 of 3
SCHEDULE "A"
The right to transfer shares of the Corporation is restricted and
no shares shall be transferred without either:
(a) the consent of the directors of the Corporation expressed by
a resolution passed by the directors; or
(b) the consent of the holders of the common shares for the time
being outstanding expressed by a resolution passed by such
shareholders.
Page 2 of 3
SCHEDULE" B"
1. The number of shareholders of the Corporation, exclusive of
persons who are in its employment and exclusive of persons
who, having been formerly in the employment of the
Corporation, were, while in that employment, and have
continued after termination of that employment to be,
shareholders of the Corporation, is limited to not more than
50, two or more persons who are the joint registered owners
of one or more shares being counted as one shareholder.
2. Any invitation to the public to subscribe for the securities
of the Corporation is prohibited.
3. The board of directors may from time to time, in such
amounts and on such terms as it deems expedient:
(a) borrow money on the credit of the Corporation;
(b) issue, reissue, sell or pledge debt obligations
(secured or unsecured) of the Corporation;
(c) give a guarantee on behalf of the Corporation to secure
performance of an obligation of any person or body
corporate; and
(d) charge, mortgage, hypothecate, pledge or cede and
transfer or otherwise create a security interest in all
or any of the currently owned or subsequently acquired
real or personal property of the Corporation, including
book debts, rights, powers, franchises and
undertakings, to secure any debt obligations or any
money borrowed, or other debt or liability of the
Corporation.
4. The board of directors may from time to time delegate to
such one or more of the directors or officers of the
Corporation as may be designated by the board all or any of
the powers conferred on the board pursuant to paragraph 3
above to such extent and in such manner as the board of
directors shall determine at the time of each such
delegation.
Page 3 of 3
31579\040\10FRMAJG.01
EXHIBIT A-2
FORM OF
BY-LAW NO. 1
A BY-LAW RELATING GENERALLY TO THE TRANSACTION
OF THE BUSINESS AND AFFAIRS OF
EUA COGENEX-CANADA CORPORATION
BE IT ENACTED as a by-law of the Corporation as follows :
ARTICLE 1. DEFINITIONS.
In this by-law and in all other by-laws of the
Corporation unless the context otherwise requires:
(a) "Act" means the Canada Business Corporations Act, R.S.C. 1985, C-
44 and any statute that may be substituted
therefor, as from time to time amended, and a reference to a particular
provision or part of the Act shall be deemed to be a reference to such provision
or part as the same may thereafter
from time to time be amended or supplemented;
(b) "Board" means the board of directors of the Corporation;
(c) "Corporation" means EUA Cogenex-Canada
Corporation;
(d) "Chairperson" means the Chairperson of the Board;
and
terms not otherwise defined in this Article 1 shall have the respective meaning
ascribed thereto in the Act.
ARTICLE 2. BOARD.
Subject to the Articles of Incorporation, the directors may by
resolution fix or change the number of directors on the Board.
ARTICLE 3. MEETINGS OF THE SHAREHOLDERS.
(a) PROCEDURE. The chairperson of any meeting of shareholders shall
be the first mentioned of such of the
following officers as have been appointed and who is present at
the meeting: Chairperson, President or a Vice-President. If no such officer be
present within fifteen minutes after the time
fixed for holding the meeting, the persons present and entitled
to vote thereat shall choose one of their number to be
chairperson. The Secretary of the Corporation shall be secretary
of any meeting of shareholders, but if the Secretary is not
present, the chairperson of the meeting shall appoint some person who need not
be a shareholder to act as secretary of the meeting. One or more scrutineers,
who need not be shareholders, may be appointed by the chairperson of the
meeting.
(b) QUORUM, VOTING AND ADJOURNMENTS. Two or more individuals
present, each of whom is entitled to vote at a
meeting of shareholders either personally or as the proxy of the shareholders or
as the individual authorized by a body corporate
or association that is a shareholder entitled to vote thereat,
and representing either in their own right or by proxy or as an individual so
authorized more than fifty percent in number of the outstanding registered
shares of the Corporation carrying voting rights at such meeting shall
constitute a quorum.
If at any such meeting a quorum is not present within thirty minutes
after the time appointed for the meeting, then the meeting shall be adjourned to
a date which is not less than seven days later. At such adjourned meeting, the
holders of shares carrying voting rights who are present or represented shall
constitute a quorum thereat and may transact the business for
which the meeting was originally called notwithstanding that such quorum is not
present throughout the meeting.
The chairperson of any meeting of the shareholders may with the
consent of the meeting adjourn the same from time to
time to a fixed time and place.
If the Corporation has only one shareholder, or only
one holder of any class or series of shares, the shareholder
present in person or by proxy constitutes a meeting.
(c) RIGHT TO VOTE. Upon a vote by a show of hands
every person who is present and entitled to vote shall have one vote. Whenever
a vote by show of hands shall have been taken
upon a question, unless a ballot thereon is required or demanded,
a declaration by the chairperson of the meeting that the vote
upon the question has been carried or carried by a particular majority or not
carried and an entry to that effect in the
minutes of the meeting shall be prima facie evidence of the fact without proof
of the number or proportion of the votes recorded
in favour of or against any resolution or other proceeding in respect of the
questions, and the result of the vote so taken
shall be the decision of the shareholders upon the question.
Any shareholder or proxyholder entitled to vote at the meeting may
demand a ballot which shall be taken in such manner
as the chairperson shall direct. A demand for a ballot may be withdrawn at any
time prior to the taking of the ballot. If a ballot is taken each person
present shall be entitled, in respect
of the shares which he is entitled to vote at the meeting upon
the question, to that number of votes provided by the Act or the Articles of
Incorporation, and the result of the ballot so taken shall be the decision of
the shareholders upon the question.
(d) ADDRESSES OF SHAREHOLDERS. Every shareholder
shall furnish to the Corporation an address to or at which all notices and
documents intended for the shareholder shall be sent. If no address appears in
the records of the Corporation, such
notice or document may be sent to such address as may be
considered by the Secretary of the Corporation to be the most
likely to result in the notice or document reaching the
shareholder.
(e) NOTICES. In addition to the methods of giving
notice permitted by the Act, notice of meetings of shareholders
may also be given to persons entitled thereto by facsimile. Any such notice
shall be deemed to be received by the person to whom
it is sent at the time it would be delivered in the ordinary
course unless there are reasonable grounds for believing that
such person did not receive the notice at that time or at all.
ARTICLE 4. MEETINGS OF DIRECTORS.
(a) PLACE, TIME AND NOTICE. Immediately after the
annual meeting of shareholders in each year, a meeting of such of the newly
elected director as is then present may be held,
without notice, for the transaction of such business as may come before the
meeting.
Subject to the foregoing and to the provisions of any resolution of
the Board, meetings of the Board may be called at
any time by the Chairperson, the President or any two directors
and notice of the time and place for holding any meeting of the Board shall be
given at least forty-eight hours prior to the time fixed for the meeting. Any
meeting so called may be held at the registered office of the Corporation or
such other place which
shall have been fixed by the Board.
In any case when it is considered by either the Chairperson or the
President in their discretion to be a matter
of urgency that a directors' meeting be convened, he or she may
give notice of a meeting of directors by facsimile or telephone
not less than twenty-four hours before such meeting is to be held and such
notice shall be adequate for the meeting so convened.
In addition to the methods of giving notice permitted
by the Act, notice may also be given to directors by facsimile.
Any such notice shall be deemed to be received by a director at
the time it would be delivered in the ordinary course unless
there are reasonable grounds for believing that the director did
not receive the notice at that time or at all.
(b) QUORUM. The quorum for the transaction of
business at any meeting of the Board shall consist of a majority
of directors of the Board.
(c) CHAIRPERSON. The chairperson of any meeting of
the Board shall be the first mentioned of such of the following officers as have
been appointed and who is a director and is
present at the meeting: Chairperson, President or a Vice-
President. If all such officers are absent or unable or refuse
or fail to act, the directors present may choose a chairperson
from among their number. The chairperson at any meeting may vote
as a director.
(d) VOTES TO GOVERN. At all meetings of the Board
every question shall be decided by a majority of the votes cast
on the question.
ARTICLE 5. PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
(a) LIMITATION OF LIABILITY. Every director and
officer of the Corporation in exercising his powers and
discharging his duties shall act honestly and in good faith with
a view to the best interests of the Corporation and exercise the care, diligence
and skill that a reasonably prudent person would exercise in comparable
circumstances. Subject to the foregoing,
no director or officer shall be liable for the acts, receipts, neglects or
defaults of any other director, officer or employee,
or for joining in any receipt or other act for conformity, or for any loss,
damage or expense happening to the Corporation through
the insufficiency or deficiency of title to any property acquired for or on
behalf of the Corporation, or for the insufficiency or deficiency of any
security in or on which any of the moneys of
the Corporation shall be invested, or for any loss or damage
arising from the bankruptcy, insolvency or tortious acts of any person with whom
any of the moneys, securities or effects of the Corporation shall be deposited,
or for any loss occasioned by any error of judgment or oversight on his part, or
for any other
loss, damage or misfortune which shall happen in the execution of the duties of
his office or in relation thereto; provided that nothing herein shall relieve
any director or officer from the
duty to act in accordance with the Act and the regulations thereunder or from
liability for any breach thereof.
(b) INDEMNITY. Subject to the Act, the Corporation
shall indemnify a director or officer, a former director or
officer, or a person who acts or acted at the Corporation's
request as a director or officer of a body corporate of which the Corporation is
or was a shareholder or creditor, and his heirs
and legal representatives, against all costs, charges and
expenses, including an amount paid to settle an action or satisfy
a judgment reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is
made a party by reason of being or having been a director or officer of the
Corporation of such body corporate, if
(i) he acted honestly and in good faith with a view to the best
interests of the Corporation; and
(ii) in the case of a criminal or administrative action
or proceeding that is enforced by a monetary penalty, he had reasonable grounds
for believing that his conduct was lawful.
The Corporation shall also indemnify such person in
such other circumstances as the Act permits or requires. Nothing
in this by-law shall limit the right of any person entitled to indemnity to
claim indemnity apart from the provisions of this by-law.
(c) INSURANCE. Subject to the Act, the Corporation
may purchase and maintain insurance for the benefit of any person referred to in
section 4(b) against any liability incurred by him
in his capacity as a director or officer of the Corporation or of another body
corporate where he acts or acted in that capacity at the Corporation's request.
RESOLVED THAT the foregoing is adopted as a by-law of
the Corporation.
The foregoing resolution is consented to by the sole director of the
Corporation pursuant to the Canada Business Corporations Act as evidenced by his
signature hereto.
Dated as of the ___ day of _____________, 1994.
___________________________________
J. Thomas Brett
Exhibit A-3
EUA COGENEX-CANADA CORPORATION
FORM OF
DECLARATION OF THE SOLE SHAREHOLDER
WHEREAS, the undersigned is the beneficial owner of all
the issued shares of EUA Cogenex-Canada Corporation (the
"Corporation").
The undersigned hereby declares, pursuant to Section
146 of the Canada Business Corporations Act, that the powers of
the directors of the Corporation to manage the business and
affairs of the Corporation are restricted in whole as evidenced
by the signature of the undersigned hereto.
Dated this ____ day of _______, 1994.
EUA COGENEX-CANADA CORPORATION
By: __________________________
Title: _______________________
Page 1 of 2
EUA COGENEX-CANADA CORPORATION
RESOLUTION OF THE SOLE SHAREHOLDER
WHEREAS, the sole shareholder of EUA Cogenex-Canada
Corporation (the "Corporation") restricted the power of the
directors of the Corporation to manage the business and affairs
of the Corporation in whole pursuant to Section 146 of the Canada
Business Corporations Act by Declaration dated ______, 1994.
BE IT RESOLVED THAT J. Thomas Brett is elected the sole
director of the Corporation to hold office until the next annual
meeting of shareholders or until his successor(s) are elected.
The foregoing resolution is consented to by the sole
shareholder of the Corporation pursuant to the Canada Business
Corporations Act as evidenced by the signature of the undersigned
hereto.
Dated this ____ day of _______, 1994.
EUA COGENEX-CANADA CORPORATION
By: __________________________
Title: _______________________
Page 2 of 2
\31579\040\10EXHAJG.02
EXHIBIT B-1
EUA SERVICE CORPORATION
One Liberty Square
Boston, MA 02110
FORM OF
SERVICE CONTRACT
To: EUA Cogenex - Canada
1 Liberty Square
Boston, MA 02109
EUA Service Corporation (hereinafter called Service Company) is a company
engaged primarily in the rendering of service to companies in the Eastern
Utilities Associates holding-company system. The organization, conduct of
business and method of cost allocation of the Service Company are designed to
meet the requirements of Section 13 under the Public Utility Holding Company Act
of 1935 and the rules and regulations promulgated thereunder to the end that
services performed by the Service Company for said associate companies will be
rendered by them at cost, fairly and equitably allocated. Services will be
rendered by Service Company only upon receipt from time to time of specific or
general requests therefore. Said requests may always be modified or cancelled
by you at your discretion. The parties hereto agree as follows:
1. Service Company agrees to furnish you upon the terms and conditions
herein set forth such of the services described in Schedule I hereto as you may
from time to time request. Service Company will also furnish, if available,
such services not described in Schedule I as you may request.
2. Service Company has and will maintain a staff trained and experienced
in the engineering, operation, maintenance and management of public utility
properties. In addition to the services of its own staff, Service Company will,
after consultation with you concerning services to be rendered pursuant to your
request, arrange for services of non-affiliated experts, consultants,
accountants and attorneys.
3. All of the services rendered under this agreement will be at actual
cost thereof. Direct charges will be made for services where a direct
allocation of cost is possible. The methods of determining such costs and the
allocation thereof are set forth in Schedules II and III respectively hereto.
These methods are reviewed annually and more frequently if appropriate. Such
methods may be modified or changed by Service Company without the necessity of
an amendment of this agreement provided that in each instance all services
rendered hereof will be at actual cost thereof, fairly and equitably allocated,
and all in accordance with the requirements of the Public Utility Holding
Company Act of 1935 and the rules and regulations and orders thereunder. You
will be advised from time to time of any material changes in such methods.
4. Bills will be rendered as soon as practicable after the close of each
month and will be payable within ten days after receipt. Services will be
performed hereunder for not more than one year, commencing ______________, and
continuing through _______________.
5. This agreement will be subject to termination or modification at any
time to the extent its performance may conflict with any federal or state law or
any rule, regulation or order of a federal or state regulatory body having
jurisdiction. The agreement shall be subject to approval of any federal or state
regulatory body whose approval is a legal prerequisite to its execution and
delivery or performance.
EUA SERVICE CORPORATION
Accepted:
EUA Cogenex - Canada
SCHEDULE I
SERVICES TO BE PERFORMED
Subject to the provisions of the Service Contract, Service Company will
keep itself and its personnel available and competent to render assistance,
guidance, advice, supervision, direction, administration, maintenance, plans and
studies, as may be required, in connection with the following functions and
activities:
GENERAL MANAGEMENT AND ADMINISTRATION
Executive_and_Administrative - Provide consultation and services in the
management and administration of all aspects of the electric utility
business including the formulation and effectuation of policies and
programs affecting or relating to the EUA System of companies.
Internal_Audit - Services concerned with examining and evaluating the
reliability of financial and operating information, system company
compliance with approved policies, procedures and plans and methods
used to safeguard assets.
Data Processing - Computer and other data processing activities including
assessment of needs, hardware and software acquisitions,
installations, enhancements and all other support necessary to meet
the data processing needs of all functions.
Consumer Services - Develop and administer consumer service policies and
procedures, coordinate, advise and assist residential, commercial,
industrial and municipal customers on all matters and plan, implement
and monitor related consumer programs.
CORPORATE
Corporate Affairs - Oversee policies and practices related to the
performance of corporate secretarial functions and activities
including the preparation and maintenance of minutes of directors'
and stockholders' meetings, related corporate records, reports and
correspondence.
Employee Relations - Coordinate management-union and all other employee
relation matters including recruitment, employee placement, training,
compensation, safety, health, welfare and all employee benefits.
Insurance and Pensions - Advise and assist with Insurance and Pension
matters including contracts with insurers, trustees and actuaries and
the placement of policies for all companies.
Purchasing - Oversee the purchasing of materials and supplies, fuel and
equipment including the coordination of all group purchasing, supply
expediting and material control services.
CORPORATE PLANNING
Power Supply and Management - Services relating to all aspects of EUA
Systems' short term power supply, sales and costs including forecasts,
contract sales and purchase administration, NEPOOL interaction,
generation cost studies, wholesale power billing and reporting.
Resource Planning - Services in the areas of capacity planning, load fore-
casting, construction and revenue forecasting including analysis of
generation transmission and distribution requirements based on
forecasted load.
Special Projects - Provide analyses and guidance for economic evaluation
of engineering and operations alternatives through on-going strategic
studies, as well as expertise concerning regulatory litigation and
related matters.
CORPORATE COMMUNICATIONS
Corporate Relations - Develop, implement and assist with all Communication
programs including those with customers, employees, security holders,
financial analysts, rating agencies and investment firms. Develop and
maintain liaisons between the System and Federal/State agencies, trade
associations and others.
Public Information - Provide services and information to and maintain and
coordinate relations with the public. Carry out public information
programs including those arising out of regulatory and legislative
matters.
Advertising - Assist in the development and implementation of System
advertising programs, print collateral and corporate identity program.
FINANCIAL
Finance and Treasury - Advise and assist in all financing matters including
short and long term financings, capital needs assessment, general
treasury responsibilities and other banking and financial matters.
Foster and maintain relations with commercial banks, investment
bankers, analysts, security holders, indenture trustees, transfer
agents and registrars.
Accounting - Services concerning the keeping of accounts and collateral
activities of a general accounting, customer accounting and plant
accounting nature. Prepare financial reports, develop accounting
procedures and enhance automated accounting systems. Appear before
and satisfy requirements of regulatory bodies with respect to
accounting matters.
Taxes - Advise and assist with all tax matters including preparation and
review of Federal and State income and other tax returns, tax
accruals, assessments, relations with Internal Revenue Service and
other taxing authorities including audits, claims and briefs where
necessary.
Financial Reporting, Budgeting and Forecasting - Assist, prepare and
analyze financial, operational and statistical reports, reports to
stockholders, regulatory commissions and others. Establish budgetary
controls, assist in the development, preparation and review of
operating and construction budgets and cash and other financial and
operational forecasts.
Revenue Requirements and Rates - Advise on and assist with matters relating
to cost of service and revenue requirements. Assist in the
preparation of petitions and applications required in connection with
rate changes. Design rate schedules and analyze effect on revenues,
review earnings trends and need for rate changes including wholesale
and retail rates.
ENGINEERING AND OPERATIONS
System Operations - Services in conjunction with continual monitoring of
all transmission and distribution systems including initiating and
directing corrective action to maintain continuity; dispatch internal
generation and function as an agent with REMVEC, NEPEX and others in
meeting system requirements; provide necessary data for inter and
intra company billing purposes.
Central Meter Testing - Provide for all testing and repairing of meters
and associated equipment.
Engineering - Provide general and specific engineering services required
in conjunction with the construction and maintenance of all
facilities. Services include and are not limited to preparation and
analysis of all electrical, mechanical and civil engineering
specifications, production, transmission and distribution facilities
studies and standards in design, procedures and methods. Assist in
the preparation and analysis of operating and construction budgets.
Substations and Communications - Provide required installation, operation
and maintenance service to facilities in 115 KV and 345 KV bulk power
substations and all communication equipment.
SCHEDULE II
DETERMINATION OF COST OF SERVICE
AND ALLOCATION THEREOF
Cost of service will be determined in accordance with the Public Utility
Holding Company Act of 1935 and the rules and regulations and orders thereunder,
and will include all costs of doing business incurred by the Service Company,
plus a reasonable return on the amount of equity capital reasonably required to
carry on such business.
Records will be maintained for each Department of the Service Company in
order to accumulate all costs of doing business and to determine the cost of
service. These costs will include wages and salaries of employees and related
expenses such as insurance, taxes, pensions and other employee benefits, and
interest on long-term debt, depreciation expense on the West Bridgewater Service
Center Building, rent, light, heat, telephone, supplies, and other housekeeping
costs. In addition, records will be maintained of general administrative
expenses, which will include the costs of operating the Service Company as a
corporate entity.
Charges for services will be determined from the time sheets of employees
and will be computed on the basis of each employee's hourly rate plus an
apportionment of related expenses and general administrative expenses. These
charges and related expenses and non-personnel expenses (e.g., use of automotive
equipment, etc.) plus a return on equity capital, will be billed directly to the
serviced companies, either individually or, when the services performed are for
a group of companies, by means of equitable allocation formula. Each formula
will have an appropriate basis such as customers, meters, employees, plant
investments, inventories or operating revenues. The basis used in allocating
each Service Company Department's cost will bear a direct causal relationship to
the service performed by such department. These bases will be reviewed annually
by a committee made up of financial officers of each company. This committee
will evaluate the equity of each allocation basis and review the factors derived
from basis component calculations. Out-of-pocket expenses which are incurred
for the serviced companies will be billed directly at cost.
The costs of operation of the Service Company will be audited annually and
the amounts paid to the Service Company by each of the serviced companies for
services rendered during the audited period will be adjusted to conform to the
audited figures, in the event of any discrepancy.
Exhibit B-2
FORM OF LICENSE AGREEMENT
LICENSE AGREEMENT (the "Agreement") made and entered into this ___ day of
___________, 1994 by and between EUA Cogenex Corporation, a Massachusetts
corporation having its principal place of business at Boott Mills South, 100
Foot of John Street, Lowell, Massachusetts 01852 , U.S.A. ("Cogenex"), and EUA
Cogenex-Canada Corporation, a business corporation formed under the federal
laws of Canada and having its principal place of business at 275 Slater Street,
Suite 1700, Ottawa, Ontario K1P 5H9, Canada ("Cogenex-Canada").
WITNESSETH:
WHEREAS, pursuant to authorization of the United States Securities and
Exchange Commission (the "Commission") under the Public Utility Holding Company
Act of 1935, as amended (the "Act"), Cogenex-Canada was formed as a wholly
owned subsidiary of Cogenex in order to carry on the business of Cogenex in
Canada; and
WHEREAS, Cogenex is the sole owner of certain trade secrets, know-how,
technologies, models and systems for energy conservation and load management
services (the "Know-How") which it wishes to license to Cogenex-Canada on the
terms and conditions set forth herein; and
WHEREAS, Cogenex-Canada wishes to license from Cogenex such Know-How on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Cogenex and Cogenex-Canada
hereby agree as follows:
1. Cogenex hereby grants to Cogenex-Canada a non-exclusive right and
license to use the Know-How in the conduct of its business. Cogenex shall from
time to time provide to Cogenex-Canada such technical assistance regarding the
Know-How as Cogenex-Canada shall reasonably request. This license may be
terminated by either party upon thirty (30) days prior written notice to the
other. Termination of this license shall not relieve Cogenex-Canada of its
confidentiality and secrecy obligations hereunder, which obligations shall
survive for ten (10) years following the termination of this Agreement.
2. In consideration for the license granted to Cogenex-Canada hereunder,
Cogenex-Canada shall pay to Cogenex the sum of $100.00. The parties hereto
agree that any services provided to Cogenex-Canada by Cogenex to effect the
intent and purposes of this Agreement shall be provided on a cost basis.
3. Cogenex-Canada hereby agrees to hold secret and confidential the
Know-How and any confidential information to which it has or gains access by
virtue of the license granted hereunder. Upon the termination of this
Agreement, Cogenex-Canada will promptly return to Cogenex all confidential
information of Cogenex in its possession or, at the request of Cogenex,
Cogenex-Canada will destroy such information.
4. This Agreement sets forth the entire agreement of the parties with
respect to the subject matter hereof, and supersedes all prior oral and written
agreements and understandings relating thereto. No representation, condition,
understanding, statement of intention or agreement of any kind, oral or
written, shall be binding upon the parties unless set forth or specifically
incorporated herein. No waiver, alteration, modification, or cancellation of
any of the provisions of this Agreement shall be binding unless made in writing
and signed by the parties. The failure of either party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce such provision.
5. Neither Cogenex nor Cogenex-Canada shall be liable for any delays in
the performance of any of its obligations hereunder due to causes beyond its
reasonable control, including, but not limited to, fire, strike, war, riots,
acts of any civil war or military authority, acts of God, judicial action,
unavailability or shortages of materials or equipment, failures or delays in
delivery of vendors, suppliers and service providers or delays in
transportation.
6. All written notices to be given in connection with this Agreement
shall be sufficient if sent by confirmed facsimile transmission or by certified
or registered mail, postage prepaid, addressed to the party entitled or
required to receive such notice at the addresses first above written.
7. In the event that one or more of the provisions contained in this
Agreement shall for any reason be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision contained in this Agreement and each such invalid, illegal or
unenforceable provision shall be automatically reformed so that it would be
valid, legal and enforceable to the maximum extent permitted in such case.
8. This Agreement shall be subject to and interpreted in accordance with
the substantive law of the Commonwealth of Massachusetts without regard to its
principles of conflict of laws.
9. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, assigns and legal representatives;
provided, however, that the rights, duties and privileges of Cogenex-Canada
hereunder may not be assigned, sublicensed or otherwise transferred by it, in
whole or in part, without the prior written consent of Cogenex, which consent
may be predicated upon further Commission authorization.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers by affixing their signatures
below.
EUA COGENEX CORPORATION
By: /s/
Its:
EUA COGENEX-CANADA CORPORATION
By: /s/
Its:
\31579\040\10EXHAJG.03
Exhibit B-3
[CONFIDENTIAL TREATMENT REQUESTED]
Exhibit F-1
September 30, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re:File No. 70-8441: EUA Cogenex Corporation--
Organization and Financing of a Wholly-Owned
Canadian Subsidiary
Ladies and Gentlemen:
As counsel for Eastern Utilities Associates ("EUA") and its
wholly-owned subsidiary, EUA Cogenex Corporation ("Cogenex"), we
are furnishing this opinion to be used in connection with the
application-declaration on Form U-1 (the "Application-
Declaration") dated September 2, 1994 under the Public Utility
Holding Company Act of 1935 filed on behalf of Cogenex with the
Securities and Exchange Commission (the "Commission"), File No.
70-8441, as amended, concerning the formation, organization and
financing by Cogenex of a new wholly owned corporate subsidiary
("EUA Cogenex-Canada") to carry on Cogenex's business activities
in Canada (the "Proposed EUA Cogenex-Canada Transaction"), all as
more fully described in the Application-Declaration.
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that in the
event that the Proposed EUA Cogenex-Canada Transaction is
consummated in accordance with the Application-Declaration:
(a) all State laws applicable to the Proposed EUA Cogenex-
Canada Transaction will have been complied with by Cogenex;
(b) Cogenex will legally acquire all of the issued and
outstanding stock of EUA Cogenex-Canada;
(c) Cogenex is validly organized and duly existing, and the
guarantees by Cogenex of the obligations of Cogenex-Canada when
made will be valid and binding obligations of Cogenex in
accordance with their terms; and
(d) the consummation of the Proposed EUA Cogenex-Canada
Transaction will not violate the legal rights of the holders of
any of the securities issued by Cogenex or by EUA, Eastern Edison
Company ("Eastern Edison"), Montaup Electric Company ("Montaup"),
EUA Service Corporation ("EUA Service"), EUA Energy Investment
Corporation ("EUA Energy"), Blackstone Valley Electric Company
("Blackstone"), Newport Electric Corporation ("Newport"),
Northeast Energy Management, Inc. ("NEM"), EUA Ocean State
Corporation ("EUA Ocean State"), Ocean State Power ("OSP I"),
Ocean State Power II ("OSP II"), EUA TransCapacity, Inc. ("EUA
TransCapacity"), and OSP Finance Company ("OSP"), all associate
companies of Cogenex.
This opinion in addition to being subject to the
consummation of the Proposed EUA Cogenex-Canada Transaction in
accordance with the Application-Declaration is also subject to
the following additional assumptions, exceptions and
qualifications:
(1) compliance with such order or orders as the Commission
may issue from time to time upon the Application-Declaration;
(2) compliance with all Canadian federal and provincial
laws applicable to the Proposed EUA Cogenex-Canada Transaction;
(3) the accuracy of information furnished to us as to the
due formation of EUA Cogenex-Canada and its corporate power and
due authorization to issue shares of its common stock;
(4) the accuracy of information furnished to us (a) as to
the outstanding securities of Cogenex, EUA, Eastern Edison,
Montaup, EUA Service, EUA Energy, Blackstone, Newport, NEM, EUA
Ocean State, OSP I, OSP II, EUA TransCapacity and OSP and (b)
that there is no provision or condition in any note or other
document in connection with outstanding short-term borrowings of
any of those companies limiting the transaction which is the
subject of the Application-Declaration; and
(5) that requirements of applicable Canadian federal and
provincial securities laws will have been complied with.
This opinion relates only to federal law and the laws of The
Commonwealth of Massachusetts and we express no opinion with
respect to any other jurisdiction. To the extent that certain
matters addressed may involve the laws of other states, we have
assumed that such laws are not materially different from the laws
of The Commonwealth of Massachusetts.
We consent to the use of this opinion in connection with the
Application-Declaration filed with the Commission.
Very truly yours,
/s/ McDermott, Will & Emery
McDERMOTT, WILL & EMERY
\31579\040\10OPNAJG.01A
Exhibit F-2
September 30, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re:File No. 70-8441: EUA Cogenex Corporation--
Organization and Financing of a Wholly-Owned
Canadian Subsidiary
Ladies and Gentlemen:
As special Canadian counsel to EUA Cogenex Corporation
("Cogenex"), we are furnishing this opinion to be used in
connection with the application-declaration on Form U-1 (the
"Application-Declaration") dated September 2, 1994 under the
Public Utility Holding Company Act of 1935 filed on behalf of
Cogenex with the Securities and Exchange Commission (the
"Commission"), File No. 70-8441, as amended, concerning the
formation, organization and financing by Cogenex of a new wholly
owned corporate subsidiary ("EUA Cogenex-Canada") to carry on
Cogenex's business activities in Canada (the "Proposed EUA
Cogenex-Canada Transaction"), all as more fully described in the
Application-Declaration.
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that, if the
Proposed EUA Cogenex-Canada Transaction is consummated in
accordance with the Application-Declaration:
(a) all laws of Ontario and laws of Canada applicable
therein which are relevant to the Proposed EUA Cogenex-Canada
Transaction will have been complied with by Cogenex;
(b) EUA Cogenex-Canada will have been incorporated, validly
organized and will be duly existing under the Canada Business
Corporations Act; the shares in the capital of EUA Cogenex-Canada
registered in the name of Cogenex will have been validly issued
as fully paid and non-assessable shares;
(c) according to the corporate records of EUA Cogenex-
Canada, Cogenex will be the only shareholder of EUA Cogenex-
Canada and will be the registered holder of shares in the capital
of EUA Cogenex-Canada. In this capacity, Cogenex will be
entitled to the rights and privileges, and be subject to the
restrictions and conditions, attached to such shares which are
set forth in the articles of incorporation of EUA Cogenex-Canada
and in the Canada Business Corporations Act; and
(d) EUA Cogenex-Canada will have the capacity to issue
valid and binding debt securities.
Materials reviewed:
In this capacity, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of:
(a) the proposed Articles of Incorporation of EUA Cogenex-
Canada;
(b) proposed By-Law 1 of EUA Cogenex-Canada; and
(c) Amendment No. 2 to Application/Declaration on Form U-1
under the Public Utility Holding Company Act of 1935.
This opinion in addition to being subject to the
consummation of the Proposed EUA Cogenex-Canada Transaction in
accordance with the Application-Declaration is also subject to
the following additional assumptions, exceptions and
qualifications:
(1) the accuracy of information furnished to us as to the
due authorization of Cogenex to acquire the common shares of EUA
Cogenex-Canada; and
(2) that the enforceability of the Proposed EUA Cogenex-
Canada Transaction may be subject to and affected by general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and the
exercise of equitable powers by a court of competent jurisdiction
(and no opinion is given herein as to specific performance or as
to the availability of other equitable remedies or equitable
relief of any kind). The validity and enforceability of
provisions inserted in any agreement or instrument that purport
to sever from the agreement or instrument any provision that is
prohibited or unenforceable under applicable law without
affecting the enforceability or validity of the remainder of the
agreement or instrument would be determined only in the
discretion of the court.
This opinion relates only to the federal laws of Canada and
the laws of the Province of Ontario and we express no opinion
with respect to any other jurisdiction.
Assumption and Fact Reliance:
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such public or corporate
records, certificates, instruments and other documents and have
considered such questions of law as we have deemed relevant and
necessary as a basis for the opinions herein expressed. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all
documents submitted to us as copies, whether facsimile,
photostatic, certified or otherwise.
*n*
We consent to the use of this opinion in connection with the
Application-Declaration filed with the Commission.
Yours truly,
/s/ Johnston & Buchan
JOHNSTON & BUCHAN
\31579\040\10OPNAJG.02B
