File No. 70-8879
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
THE FORMATION OF A JOINT VENTURE
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EUA COGENEX CORPORATION
EUA COGENEX-CANADA, INC.
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
(Name of companies filing this statement
and address of principal executive offices)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company parents of
applicants or declarants)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
(Name and address of agents 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, MA 02109
ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTION.
Item 1 is hereby amended and restated in its entirety as follows:
I. Overview of Application/Declaration. EUA Cogenex
Corporation ("Cogenex"), a Massachusetts corporation and a
wholly-owned subsidiary of Eastern Utilities Associates ("EUA"),
a Massachusetts business trust and a registered holding company
under the Public Utility Holding Company Act of 1935 (the "Act")
and Cogenex's direct subsidiary, EUA Cogenex Canada, Inc.
("Cogenex-Canada," Cogenex and Cogenex-Canada are referred to
together hereinafter as the "Applicants") are filing this joint
application-declaration (the "Application") with the Securities
and Exchange Commission (the "Commission"). The Application
seeks approval to the extent required under the Act: (i) for
Cogenex-Canada to form and fund a wholly-owned subsidiary
tentatively to be called EUA Cogenex-Canada Energy Services, Inc.
("Newco"), which will enter into a joint venture with a
subsidiary of Monenco Agra, Inc., a Canadian business corporation
("MA") for the purpose of providing energy conservation services;
(ii) for Newco to form and fund a joint venture (the "JV ESCO")
with an MA subsidiary (the "MA Sub"); and (iii) for the
Applicants to guarantee third-party obligations of the JV ESCO.
Cogenex-Canada and MA intend to enter into a long-term
relationship to provide energy conservation services through the
JV ESCO principally for industrial sector customers in Canada
(the "Territory"). Cogenex and MA entered into a Letter
Agreement filed herewith as Exhibit B-1 in which they agreed to
perform initial marketing, sales, auditing, bidding, job
procurement and performance activities in preparation of forming
the JV ESCO and to develop a long-term business plan for the JV
ESCO. The term of the Letter Agreement is for one year (the
"Interim Period"), unless sooner terminated (i) by the formation
of the JV ESCO; (ii) by the decision of one or both of Cogenex-
Canada and MA; (iii) by the bankruptcy or insolvency of either
party; (iv) by failure to obtain the necessary corporate and
regulatory approvals, including but not limited to, the
Commission's authorization.
II. Description of MA's and Cogenex-Canada's Businesses.
Cogenex-Canada is engaged in the business of investing in
energy conservation-related business activities: (i) employing
energy efficiency technology and equipment primarily through
shared savings agreements; and (ii) contracting to assist
electric utilities in demand-side management activities including
but not limited to shared-savings energy conservation projects
and demand-side utility programs. (HCAR 35-26135, September 30,
1994).
MA's business activities include engineering, construction,
technology development and systems planning in electric
generation and transmission; food, beverage and mineral
processing; pharmaceuticals and biotechnology; transportation
systems and facilities; telecommunications; and systems
technology.
III. Formation of the JV ESCO. The Applicants and MA
expect that the formation of the JV ESCO will create a more
attractive provider of energy conservation services to customers
within the Territory, thereby allowing Cogenex-Canada and MA to
expand their customer bases and will provide synergies which will
enable Cogenex-Canada and MA to provide their services in a more
cost-effective and efficient manner, enhancing their
profitability. Upon receipt of the Commission's authorization,
Cogenex-Canada will form Newco and Newco will form a joint
venture in Canada with the MA Sub. Their relationship will be
governed by a joint venture agreement, a copy of which is filed
as Exhibit B-2 hereto. Generally, each of Newco and MA will be a
50% partner in the JV ESCO, sharing equally in the capital
contributions, allocation of profits and losses and distributions
of the JV ESCO. The JV ESCO will be governed by a management
committee comprised of one representative of each partner.
Cogenex-Canada and MA will assign all contracts and business
opportunities obtained during the Interim Period within the
Territory at cost to the JV ESCO. The Applicants and MA will
also be reimbursed by the JV ESCO for their expenses incurred
during the Interim Period but not previously reimbursed and
except for products and services provided by affiliates of the
Applicants and MA which will be reimbursed at standard market
rates. Newco and the MA Sub will make capital contributions in
an amount initially expected to be approximately $1,000 each
which will be used by the JV ESCO for working capital purposes.
The Applicants and MA will subcontract personnel to the JV ESCO
at cost as needed until such time, if any, as the JV ESCO employs
its own personnel.
IV. Activity During the Interim Period. During the Interim
Period, Cogenex-Canada and MA are performing initial marketing,
sales, auditing, bidding, job procurement and performance
activities for energy conservation services in the Territory.
All business opportunities and contracts derived from such
activity, except for those independent, pre-existing
relationships of Cogenex-Canada and its affiliates and MA and its
affiliates, shall be subject to assignment to the JV ESCO.
The Applicants and MA have each committed to providing
employees and other resources as set forth in the Interim
Business Plan which is attached to the Letter Agreement. During
the Interim Period, the Applicants and MA will share the cost of
their employees and support provided as set forth in the Letter
Agreement.
V. The Applicants hereby requests authorization to the extent
required under the Act (i) for Cogenex-Canada to form Newco as a
new wholly-owned Canadian subsidiary; (ii) for Cogenex-Canada to
purchase stock from, and make capital contributions, loans and
open account advances to, Newco ("Investments"); (iii) if it
becomes necessary in order to obtain third-party loans or to
obtain more favorable terms from third parties, for the
Applicants to guarantee the obligations of Newco or the JV
ESCO (Note 1); and (iv) for Newco to enter into the joint venture
agreement that will govern the JV ESCO and for Newco thereafter
to make Investments in the JV ESCO upon such terms as it deems
commercially reasonable. The aggregate amount of any Investments
in the JV ESCO together with the obligations guaranteed for the
benefit of the JV ESCO will not exceed $15,000,000. The capital
contributions by Cogenex-Canada and Newco will be exempt from the
requirement of Commission authorization pursuant to Rule
45(b)(4), and any amount borrowed by the JV ESCO from third party
lenders will be through loans exempt from the requirement of
Commission authorization by Rule 52(b). The Applicants request
that any goods or services furnished by Cogenex's divisions, EUA
Nova and EUA Day to the JV ESCO be furnished at market prices to
the extent such goods and services originate from the Applicants,
pursuant to an exception from the requirements of 13(b) and Rules
90 and 91 thereunder as permitted by Rule 83(a), because the JV
ESCO derives its income from sources outside of the United States
(namely Canada). The principally types of goods and services
which EUA Nova and EUA Day would provide to the JV ESCO would
include engineering services and products used in energy
conservation projects, and they would be provided on a
competitive basis that neither favors nor discriminates against
the JV ESCO, but in no event would they be furnished at less than
cost. To the extent that the JV ESCO could obtain such goods
and/or services on a more favorable basis from a nonaffiliated
vendor, it would do so. Goods and/or services provided directly
or indirectly to the JV ESCO by other affiliated entities of the
Applicants would be provided at cost. The JV ESCO will not be
providing goods or services to the Applicants or their affiliated
companies.
Note 1:
Any guarantees made by Applicants which have recourse to EUA will
count towards EUA's limitations under the Declaration with
Respect to Authorization of a Revolving Credit Facility for
Eastern Utilities Associates and Certain of Its Subsidiaries
(File No. 70-8955).
ITEM 2. FEES, COMMISSIONS, AND EXPENSES.
The fees, commissions and expenses of the Applicants
expected to be paid or incurred, directly or indirectly, in
connection with the transactions described are as follows:
Legal Fees $45,000
Miscellaneous $ 1,000
Total $46,000
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (* filed herewith)
(**confidential treatment requested)
(a) Exhibits.
* Exhibit A-1 Form of Articles of Incorporation
of Newco.
* Exhibit A-2 Form of By-Law No. 1 of Newco.
Exhibit B-1 Letter Agreement between EUA
Cogenex Corporation and Monenco
Agra, Inc. dated as of January 11,
1996.
** Exhibit B-2 Form of joint venture agreement.
* Exhibit F-1 Opinion of McDermott, Will & Emery
* Exhibit F-2 Opinion of Johnston & Buchan
Exhibit H Proposed Form of Notice
(b) Financial Statements.
None
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned Applicants have duly
caused this statement to be signed on their behalf by the
undersigned duly authorized individuals.
EUA COGENEX CORPORATION
EUA COGENEX-CANADA, INC.
By: /s/ Edward T. Liston
Edward T. Liston
Their President
Dated: July 8, 1997
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
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 ENERGY SERVICES, INC.
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 Energy
Services, Inc.;
(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.
ARTICLE 6. FINANCIAL YEAR
The financial year of the Corporation shall end on
December 31st of each year.
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 _____________, 1997.
___________________________________
J. Thomas Brett
EXHIBIT B-2
** FILED UNDER CONFIDENTIAL TREATMENT REQUEST **
Exhibit F-1
July 8, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Re: File No. 70-8879: EUA Cogenex Corporation and
EUA Cogenex-Canada, Inc.--Formation of a Joint
Venture Energy Conservation Services Company
Ladies and Gentlemen:
As counsel for EUA Cogenex Corporation ("Cogenex"), we are
furnishing this opinion letter to be used in connection with that
certain application-declaration on Form U-1 dated June 26, 1996,
as amended by Amendment No. 1 dated August 21, 1996 and Amendment
No. 2 dated July 8, 1997, filed jointly by Cogenex and EUA
Cogenex-Canada, Inc. with the Securities and Exchange Commission
(the "Commission") under the Public Utility Holding Company Act
of 1935, File No. 70-8879 (the "Application-Declaration"), with
respect to the formation of an energy conservation services joint
venture through the organization and financing by Cogenex-Canada
of a new wholly-owned Canadian subsidiary ("Newco"), as more
fully described in the Application-Declaration (the "Proposed
Transaction").
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that in the
event the Proposed Transactions are consummated in accordance
with the terms and conditions of the Application-Declaration:
(a) all State laws applicable to the Proposed Transactions
will have been complied with by Cogenex;
(b) Cogenex is a validly organized and duly existing
corporation under the laws of The Commonwealth of Massachusetts;
and
(c) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the securities
of Cogenex or any of Eastern Utilities Associates ("EUA"), EUA
Energy Investment Corporation ("EUA Energy"), EUA Service
Corporation ("Service"), Eastern Edison Company ("Eastern"),
Montaup Electric Company ("Montaup"), Blackstone Valley Electric
Company ("Blackstone"), Newport Electric Corporation ("Newport"),
EUA Ocean State Corporation ("Ocean State"), OSP Finance Company
("OSP"), Northeast Energy Management, Inc. ("NEM"), EUA Citizens
Conservation Services, Inc. ("CCS"), EUA Highland Corporation
("Highland"), Cogenex-Canada (each of NEM, CCS, Highland and
Cogenex-Canada being an associate or subsidiary company of
Cogenex), EUA TransCapacity, Inc. ("TransCapacity"), EUA BIOTEN,
Inc. ("BIOTEN") (TransCapacity and BIOTEN being associate
companies of EUA Energy), Ocean State Power ("OSP I") or Ocean
State Power II ("OSP II") (OSP I and OSP II being Rhode Island
general partnerships).
In addition to being subject to the consummation of the
Proposed Transactions in accordance with the provisions of the
Application-Declaration, the opinions expressed in this letter
are 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) the accuracy of information furnished to us as to the
outstanding securities of EUA, Cogenex, EUA Energy, Service,
Eastern, Montaup, Blackstone, Newport, Ocean State, OSP, NEM,
CCS, Highland, Cogenex-Canada, TransCapacity, BIOTEN, OSP I and
OSP II;
(3) that all requirements of applicable state securities or
"blue sky" laws will have been complied with;
(4) that the enforceability of the Proposed Transactions
may be subject to and affected by applicable bankruptcy,
receivership, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of the rights
and remedies of creditors generally (including, without
limitation, such as may deny giving effect to waivers of rights
to debtors or guarantors); and such duties and standards as are
or may be imposed on creditors, including, without limitation,
good faith, reasonableness and fair dealing under any applicable
statute, rule, regulation or judicial decision; and
(5) that the enforceability of the Proposed Transactions
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 opinions expressed in this letter relate 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 letter in connection
with the Application-Declaration filed with the Commission.
Very truly yours,
/s/ MCDERMOTT, WILL & EMERY
Mc DERMOTT, WILL & EMERY
Exhibit F-2
July 8, 1997
To: Securities and Exchange Commission
Washington, D.C. 20549
Re: File No. 70-8879: EUA Cogenex Corporation and EUA Cogenex-
Canada Inc.-Formation of a Joint Venture Energy Conservation
Services Company
Ladies and Gentlemen:
As special Canadian counsel to EUA Cogenex Corporation
("Cogenex") and EUA Cogenex-Canada Inc.("Cogenex-Canada"), we are
furnishing this opinion letter to be used in connection with the
application-declaration on Form U-1 (the "Application-
Declaration") dated June 26, 1996 and Amendment No. 2 dated July
8, 1997, filed jointly by Cogenex and Cogenex-Canada with the
Securities and Exchange Commission (the "Commission") under the
Public Utility Holding Company Act of 1935, File No. 8879 (the
"Application-Declaration") with respect to the execution and
delivery of a joint venture agreement between Monenco Agra, Inc.
and a new wholly-owned Canadian subsidiary ("Newco") of Cogenex-
Canada to provide energy conservation services, as more fully
described in the Application-Declaration (the "Proposed
Transaction").
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that, if the
Proposed 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 Transaction
will have been complied with by Cogenex-Canada;
(b) Newco will have been incorporated, validly organized
and will be duly existing under the Canada Business
Corporations Act, the shares in the capital of Newco
registered in the name of Cogenex-Canada will have been
validly issued as fully paid and non-assessable shares;
(c) according to the corporate records of Newco, Cogenex-
Canada will be the only shareholder of Newco and will
be the registered holder of shares in the capital of
Newco. In this capacity, Cogenex-Canada 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 Newco and in the Canada Business
Corporations Act;
(d) Cogenex-Canada is a validly organized and duly existing
corporation under the Canada Business Corporations Act;
and
(e) Newco 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 Newco;
(b) proposed By-Law 1 of Newco; and
(c) the Application-Declaration.
This opinion in addition to being subject to the
consummation of the Proposed 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-Canada to acquire the common shares
of Newco;
2. that the enforceability of the Proposed 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 hereinafter 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.
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
