File No. 70-8585
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
PARTICIPATION BY
EUA ENERGY INVESTMENT CORPORATION
IN A JOINT VENTURE TO DEVELOP AND COMMERCIALIZE
A HOME ENVIRONMENTAL AUDIT AND ENVIRONMENTAL REMEDIATION BUSINESS
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EUA ENERGY INVESTMENT CORPORATION
P.O. Box 2333, Boston, Massachusetts 02107
(Name of companies filing this statement
and address of principal executive office)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company
parent of 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
This Amendment No. 1 to the Application-Declaration on Form U-1 dated
March 8, 1995 hereby amends said Application-Declaration as follows:
1. The following new Paragraph E is hereby added to Part III of Item 1:
E. Environmental and Energy Audit Program. The Applicant believes
that the pilot program in environmental testing by Home & Family will serve
the interests of public policy while utilizing other technology and
expertise already developed and in use by the EUA System. The members of
EUA Service Corporation's environmental regulatory team have, in the course
of their work for the EUA System companies, gained significant experience
and skill in resolving a variety of environmental regulatory problems in
connection with toxic waste and underground storage tank clean-up, air
pollution and other environmental issues involving federal, state and local
environmental regulations and laws. The Applicant believes that the
proposed Home & Family activities would enhance the expertise already
developed by EUA Service Corporation's environmental regulatory team by
affording them the opportunity to keep abreast of new technologies,
applications and changes in the regulatory outlook.
The Applicant believes that the proposed energy audits by Home &
Family will coordinate with and complement (i) the MassSave and RISE energy
conservation programs in which the EUA System operating companies
participate in Massachusetts and Rhode Island, respectively. Further, the
Applicant anticipates that the proposed Home & Family's activities will
further public policy goals and enhance the value of the energy audit and
remediation services for residential housing stock which EUA Cogenex
Corporation and EUA Citizens Service Corporation are preparing to offer to
the United States Department of Housing and Urban Development and others.
The Applicant also anticipates that the proposed Home & Family activities
will enhance the EUA System's reputation as a "good corporate citizen"
which strives to better serve its customers and contribute to the
communities in which it operates.
2. Item 2 is hereby amended and restated in its entirety to read as
follows:
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
transaction described above are estimated as follows:
Securities and Exchange Commission Fees $ 2,000
Legal Fees $ 125,000
Miscellaneous $ 25,000
TOTAL $ 152,000
3. Item 6 is hereby amended and restated in its entirety to read as
follows:
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
(* Filed herewith)
(** Filed simultaneously herewith; confidential treatment
requested.)
(a) Exhibits.
* Exhibit A-1 Form of Articles of Organization of the
EEIC Subsidiary
* Exhibit A-2 Form of By-Laws of the EEIC Subsidiary
** Exhibit A-3 Form of Agreement of Limited
Partnership of Home & Family
Limited Partnership (filed pursuant
to confidential treatment request)
** Exhibit B-1 Research and Development Agreement dated
September 26, 1994, as amended by
Amendment No. 1 thereto dated February
22, 1995 (filed pursuant to confidential
treatment request)
** Exhibit B-2 Agreement to Form Joint Venture (filed
pursuant to confidential treatment
request)
** Exhibit B-3 Terms and Conditions of Royalty-Free
License (filed pursuant to confidential
treatment request)
** Exhibit B-4 Form of Service Agreement between Home &
Family Limited Partnership and EUA
Service Corporation (filed pursuant to
confidential treatment request)
* Exhibit F Opinion of Counsel
Exhibit G Correlation of Environmental and
Energy Audit Activities (previously
filed)
** Exhibit G-1 1995 Business Plan of Home & Family
Limited Partnership (a/k/a Home & Family
Laboratory Services) (filed pursuant to
confidential treatment request)
Exhibit H Proposed Form of Notice (previously
filed)
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
(b) Financial Statements
** b-1 Financial Forecast of Home & Family
Limited Partnership for the years 1995
through 1999 (filed pursuant to
confidential treatment request)
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned Applicant has duly caused this statement to be
signed on its behalf by the undersigned duly authorized individual.
EUA ENERGY INVESTMENT CORPORATION
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Treasurer
Dated: May 4, 1995
Exhibit A-1
FORM OF ARTICLES OF ORGANIZATION
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
ARTICLE I
The name of the corporation is:
EUA Home & Family, Inc.
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
To serve as General Partner of a to-be-formed limited
partnership which will engage in the development and
commercialization of a home environmental audit and environmental
remediation business; and
To engage in and carry on any other business or activity
which may lawfully be engaged in or carried on by a corporation
which is organized under Chapter 156B of the General Laws of the
Commonwealth of Massachusetts as presently in effect or as
amended from time to time, or any successor provisions adopted in
lieu thereof.
ARTICLE III
The type and classes of stock and the total number of shares and
par value, if any, of each type and class of stock which the
corporation is authorized to issue is as follows:
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
COMMON: COMMON: 200,000 .01
PREFERRED: PREFERRED:
ARTICLE IV
If more than one class of stock is authorized, state a
distinguishing designation for each class. Prior to the issuance
of any shares of a class, if shares of another class are
outstanding, the corporation must provide a description of the
preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other
class of which shares are outstanding and of each series then
established within any class.
Not applicable.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization
upon the transfer of shares of stock of any class are:
None.
ARTICLE VI
*Other lawful provisions, if any, for the conduct and regulation
of the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers
of the corporation, or of its directors or stockholders, or of
any class of stockholders:
ONE: The Board of Directors may make, amend or repeal the
By-Laws of the corporation in whole or in part, except with
respect to any provision thereof which by law or the By-Laws
requires action by the stockholders. Any by-law adopted by the
Board of Directors may be amended or repealed by the
stockholders.
TWO: Meetings of the stockholders may be held anywhere in
the United States.
THREE: The corporation may be a partner, either general or
limited, in any business enterprise it would have the power to
conduct by itself.
FOUR: No current or former director of the corporation shall
be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability;
provided, however, that this provision shall not eliminate the
liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61
or 62 or successor provisions of the Massachusetts Business
Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. This provision
shall not eliminate the liability of a director for any act or
omission occurring prior to the date upon which this provision
becomes effective. No amendment to or repeal of this provision
shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or
omissions of such director occurring prior to such amendment or
repeal.
FIVE: No contract or transaction between the corporation and
one or more of its directors or officers, or between the
corporation and any other organization of which one or more of
its directors or officers are directors, trustees or officers, or
in which any of them has any financial or other interest, shall
be void or voidable, or in any way affected, solely for this
reason, or solely because the director or officer is present at
or participates in the meeting of the board of directors or
committee thereof which authorizes, approves or ratifies the
contract or transaction, or solely because his/her or their votes
are counted for such purposes, if:
(i) The material facts as to his/her relationship or
interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee which
authorizes, approves or ratifies the contract or transaction, and
the board or committee in good faith authorizes, approves or
ratifies the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(ii) The material facts as to his/her relationship or
interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically authorized, approved or
ratified in good faith by vote of the stockholders; or
(iii) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified
by the Board of Directors, a committee thereof, or the
stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of
a committee thereof which authorizes, approves or ratifies the
contract or transaction. No director or officer of the
corporation shall be liable or accountable to the corporation or
to any of its stockholders or creditors or to any other person,
either for any loss to the corporation or to any other person or
for any gains or profits realized by such director or officer, by
reason of any contract or transaction as to which clauses (i),
(ii) or (iii) above are applicable.
*If there are no provisions state "None".
Note: The preceding six (6) articles are considered to be
permanent and may ONLY be changed by filing appropriate Articles
of Amendment.
ARTICLE VII
The effective date of organization of the corporation shall be
the date approved and filed by the Secretary of the Commonwealth.
If a later EFFECTIVE DATE is desired, specify such date which
shall not be more than thirty days after the date of filing.
Not applicable.
The information contained in ARTICLE VIII is NOT a PERMANENT part
of the Articles of Organization and may be changed ONLY by filing
the appropriate form provided therefor.
ARTICLE VIII
a. The street address of the principal office of the corporation
IN MASSACHUSETTS is: (post office boxes are not acceptable)
c/o EUA Service Corporation
750 West Center Street
West Bridgewater, MA 02379
Attention: President
b. The name, residence and post office address (if different) of
the directors and officers of the corporation are:
NAME RESIDENCE POST
OFFICE
ADDRESS
Chairman: Donald G. Pardus 238 Glezen Lane same
Wayland, MA 01778
President: John R. Stevens 41 Old Village Road same
Acton, MA 01720
Treasurer
& Clerk: Clifford J. Hebert, Jr. 3 Hammond Place same
Woburn, MA 01801
Directors:
Donald G. Pardus 238 Glezen Lane same
Wayland, MA 01778
Robert G. Powderly 42 Wayside Lane same
Ashland, MA 01721
John R. Stevens 41 Old Village Road same
Acton, MA 01720
Richard M. Burns 57 Hodge Road same
Arlington, MA 02174
John D. Carney 30 Round Tree Lane same
Scituate, MA 02066
c. The fiscal year (i.e., tax year) of the corporation shall end
on the last day of the month of: December
d. The name and BUSINESS address of the RESIDENT AGENT of the
corporation, if any, is: Not applicable.
ARTICLE IX
By-Laws of the corporation have been duly adopted and the
president, treasurer, clerk and directors whose names are set
forth above, have been duly elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY,
I/we whose signature(s) appear below as incorporator(s) and whose
name(s) and business or residential address(es) ARE CLEARLY TYPED
OR PRINTED beneath each signature do hereby associate with the
intention of forming this corporation under the provisions of
General Laws Chapter 156B and do hereby sign these Articles of
Organization as incorporator(s) this ____ day of _______, 1995.
Terence P. Mahoney, Incorporator
Note: If an existing corporation is acting as incorporator, type
in the exact name of the corporation, the state or other
jurisdiction where it was incorporated, the name of the person
signing on behalf of said corporation and the title he/she holds
or other authority by which such action is taken.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
____________________________________________
I hereby certify that, upon examination of these Articles of
Organization, duly submitted to me, it appears that the
provisions of the General Laws relative to the organization of
corporations have been complied with, and I hereby approve said
articles; and the filing fee in the amount of $ ______ having
been paid, said articles are deemed to have been filed with me
this ____ day of ___________, 19__.
Effective date:
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
FILING FEE: One tenth of one percent of the total authorized
capital stock, but not less than $200.00. For the purpose of
filing, shares of stock with a par value less than one dollar, or
no par stock, shall be deemed to have a par value of one dollar
per share.
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Amy J. Gould, Esq.
McDermott, Will & Emery
75 State Street
Boston, MA 02109
Telephone: (617) 345-5000
FORM OF
BY-LAWS
OF
EUA HOME & FAMILY, INC.
BY-LAWS OF
EUA HOME & FAMILY, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES 1
Section 1.1. Principal Office 1
Section 1.2. Change in Principal Office 1
ARTICLE II - STOCKHOLDERS 1
Section 2.1. Place of Meetings 1
Section 2.2. Annual Meetings 1
Section 2.3. Special Meetings 1
Section 2.4. Notice of Meetings 2
Section 2.5. Waiver of Notice 2
Section 2.6. Closing of Transfer Books and Fixing of
Record Date 2
Section 2.7. Quorum 3
Section 2.8. Manner of Acting 3
Section 2.9. Proxies 3
Section 2.10. Voting of Shares 3
Section 2.11. Informal Action by Stockholders 3
Section 2.12. Voting Agreements 4
Section 2.13. Action of Incorporators Prior to Issuance
of Stock 4
ARTICLE III - DIRECTORS 4
Section 3.1. General Powers 4
Section 3.2. Number, Election and Term of Office 4
Section 3.3. Regular Meetings 5
Section 3.4. Special Meetings 5
Section 3.5. Notice 5
Section 3.6. Quorum 5
Section 3.7. Meetings by Telecommunications 6
Section 3.8. Vacancies 6
Section 3.9. Compensation 6
Section 3.10. Presumption of Assent 6
Section 3.11. Committees of Directors 6
Section 3.12. Informal Action by Directors 7
Section 3.13. Resignation and Removal of Directors 7
ARTICLE IV - OFFICERS 8
Section 4.1. Number 8
Section 4.2. Election and Term of Office 8
Section 4.3. Resignation and Removal of Officers 8
Section 4.4. Vacancies 8
Section 4.5. Bonds 9
Section 4.7. President 9
Section 4.8. Vice Presidents 9
Section 4.9. Treasurer 9
Section 4.10. Clerk 10
Section 4.11. Assistant Treasurers and Assistant Clerks 10
Section 4.12. Salaries 10
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 11
Section 5.1. Contracts 11
Section 5.2. Loans 11
Section 5.3. Checks, Drafts, Etc. 11
Section 5.4. Deposits 11
ARTICLE VI - SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF
SHARES 11
Section 6.1. Issuance and Regulation 11
Section 6.2. Certificates for Shares 12
Section 6.3. Cancellation of Certificates 12
Section 6.4. Lost, Stolen or Destroyed Certificates 13
Section 6.5. Transfer of Shares 13
ARTICLE VII - FISCAL YEAR 13
ARTICLE VIII - DIVIDENDS 14
ARTICLE IX - STOCK IN OTHER CORPORATIONS 14
ARTICLE X - SEAL 14
ARTICLE XI - INDEMNIFICATION 15
ARTICLE XII - CORPORATE RECORDS 16
ARTICLE XIII - AMENDMENTS 16
BY-LAWS
OF
EUA HOME & FAMILY, INC.
ARTICLE I
OFFICES
Section 1.1 Principal Office. The initial principal
office of the Corporation shall be as indicated in the Articles
of Organization of the Corporation. The Corporation may have
such other offices, either within or without The Commonwealth of
Massachusetts, as it may require from time to time.
Section 1.2 Change in Principal Office. The Board of
Directors of the Corporation may at any time and from time to
time change the principal office of the Corporation in The
Commonwealth of Massachusetts, provided that no such change shall
be effective until a certificate of such change, specifying the
post-office address of its new principal office in The
Commonwealth of Massachusetts, signed under the penalties of
perjury by the Clerk or an Assistant Clerk of the Corporation,
has been filed with the state secretary.
ARTICLE II
STOCKHOLDERS
Section 2.1 Place of Meetings. All meetings of the
stockholders for the election of directors shall be held at the
offices of the Corporation or elsewhere in the United States as
the Board of Directors may designate. Meetings of stockholders
for any other purpose may be held at such place in the United
States as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2.2 Annual Meetings. An annual meeting of the
stockholders, commencing with the year 1995 shall be held on the
first Wednesday in June in each year, but if a legal holiday,
then on the next business day following, at 10:00 o'clock A.M.,
at which the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before
such meeting. In the event that an annual meeting has not been
held on the date fixed in these By-Laws, a special meeting in
lieu of the annual meeting may be held with all the force and
effect of an annual meeting.
Section 2.3 Special Meetings. Special meetings of the
stockholders may be called by the President or by the directors,
and shall be called by the Clerk, or in case of the death,
absence, incapacity or refusal of the Clerk, by any other
officer, upon written application of one or more stockholders who
hold at least one-tenth part in interest of the capital stock
entitled to vote thereat. In case none of the officers is able
and willing to call a special meeting, the Supreme Judicial or
Superior Court, upon application of one or more stockholders who
hold at least one-tenth part in interest of the capital stock
entitled to vote thereat, shall have jurisdiction in equity to
authorize one or more of such stockholders to call a meeting by
giving such notice as is required by law.
Section 2.4 Notice of Meetings. A written notice of
the place, date and hour of all meetings of stockholders stating
the purposes of the meeting shall be given by the Clerk or an
Assistant Clerk (or such other person as may be authorized by the
By-Laws or empowered pursuant to Section 2.3), at least seven
days before the meeting, to each stockholder entitled to vote
thereat and to each stockholder who, under the Articles of
Organization or under the By-Laws, is entitled to such notice, by
leaving such notice with him or at his residence or usual place
of business, or by mailing it, postage prepaid, and addressed to
such stockholder at his address as it appears in the records of
the Corporation.
Section 2.5 Waiver of Notice. Whenever notice of a
meeting is required to be given a stockholder under any provision
of the law or of the Articles of Organization or these By-Laws, a
written waiver thereof, executed before or after the meeting by
such stockholder or his attorney thereunto authorized and filed
with the records of meeting, shall be deemed equivalent to such
notice.
Section 2.6 Closing of Transfer Books and Fixing of
Record Date. The directors may fix in advance a time, which,
unless a shorter period is provided in the Articles of
Organization, shall be not more than sixty days before the date
of any meeting of stockholders or the date for the payment of any
dividend or the making of any distribution to stockholders or the
last day on which the consent or dissent of stockholders may be
effectively expressed for any purpose, as the record date for
determining the stockholders having the right to notice of and to
vote at such meeting and any adjournment thereof, or the right to
receive such dividend or distribution, or the right to give such
consent or dissent and, in such case, only stockholders of record
on such record date shall have such right, notwithstanding any
transfer of stock on the books of the Corporation after the
record date; or without fixing such record date the directors may
for any of such purposes close the transfer books for all or any
part of such period.
If no record date is fixed and the transfer books are
not closed:
(a) The record date for determining stockholders
having the right to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next
preceding the day on which notice is given, and such
determination shall also apply to any adjournment of such
meeting.
(b) The record date for determining stockholders for
any other purpose shall be at the close of business on the day on
which the Board of Directors acts with respect thereto.
Section 2.7 Quorum. A majority of the shares of the
Corporation issued, outstanding and entitled to vote at a meeting
represented in person or by proxy shall constitute a quorum at
any meeting of stockholders, provided that, if less than a
majority of the outstanding shares are represented at a meeting,
a majority of the shares so represented may adjourn the meeting
from time to time without further notice.
Section 2.8 Manner of Acting. If a quorum is present,
the affirmative vote of the majority of the shares represented at
the meeting shall be the act of the stockholders, unless the vote
of a greater number or voting by classes is required by law, the
Articles of Organization or these By-Laws.
Section 2.9 Proxies. Stockholders may vote in person
or by proxy. No proxy dated more than six months before the
meeting named therein shall be valid and no proxy shall be valid
after the final adjournment of such meeting. Notwithstanding the
provisions of the foregoing sentence, a proxy coupled with an
interest sufficient in law to support an irrevocable power,
including, without limitation, an interest in shares or in the
Corporation generally, may be made irrevocable if it so provides,
need not specify the meeting to which it relates, and shall be
valid and enforceable until the interest terminates, or for such
shorter period as may be specified in the proxy. Any proxy shall
be filed with the Clerk of the Corporation before or at the time
of the meeting. A proxy with respect to stock held in the name
of two or more persons shall be valid if executed by any one of
them unless at or prior to exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one
of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior
to its exercise and the burden of proving invalidity shall rest
on the challenger.
Section 2.10 Voting of Shares. Stockholders entitled
to vote shall have one vote for each share of stock owned by them
and a proportionate vote for a fractional share, unless otherwise
provided by the Articles of Organization.
Section 2.11 Informal Action by Stockholders. Any
action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders
entitled to vote on the matter consent to the action in writing
and the written consents are filed with the records of the
meetings of stockholders. Such consent shall be treated for all
purposes as a vote at a meeting.
Section 2.12 Voting Agreements. An agreement between
two or more stockholders or between one or more stockholders and
one or more other persons, if in writing and signed by the
parties thereto, whether or not such parties include all of the
stockholders of the Corporation, may provide that the shares held
by such stockholders shall be voted under procedures set forth in
said agreement.
Section 2.13 Action of Incorporators Prior to Issuance
of Stock. Prior to the initial issuance of stock by the
Corporation, the incorporators may exercise all rights of
stockholders and take any action required or permitted to be
taken by law, the Articles of Organization or these By-Laws.
ARTICLE III
DIRECTORS
Section 3.1 General Powers. The property, business
and affairs of the Corporation shall be managed by a Board of
Directors. In carrying out their responsibilities hereunder, the
directors shall have and may exercise all of the powers of the
Corporation except such as are conferred upon the stockholders by
law, the Articles of Organization or these By-Laws.
Section 3.2 Number, Election and Term of Office. The
Board of Directors shall consist of not less than three
directors, except that whenever there shall be only two
stockholders the number of directors shall be not less than two,
and whenever there shall be only one stockholder the number of
directors shall be not less than one. Prior to the issuance of
capital stock there shall be at least one director, and the
number and identity of the directors shall at such time be chosen
by the incorporators. The number of the directors shall be as
determined from time to time by the stockholders and may be
enlarged between meetings of the stockholders by the vote of a
majority of the stockholders or of the directors then in office.
In the absence of an affirmative determination by the
stockholders, the number of directors to be elected at any annual
meeting shall be the same as the number last determined by the
stockholders or directors. The directors shall be chosen at the
annual meeting of the stockholders or at any meeting held in
place thereof by such stockholders as have the right to vote
thereon, and each shall hold office until the next annual
election of directors and until his successor is chosen and
qualified or until he sooner dies, resigns, is removed or becomes
disqualified. No director need be a stockholder. Any election
of directors by stockholders shall be by ballot if so requested
by any stockholder entitled to vote thereon.
Section 3.3 Regular Meetings. A regular meeting of
the Board of Directors shall be held without other notice than
this By-Law, immediately after, and at the same place as, the
annual meeting of stockholders. The Board of Directors may
provide, by resolution, the time and place, either within or
without The Commonwealth of Massachusetts, for the holding of
additional regular meetings in which case no other notice need be
given.
Section 3.4 Special Meetings. Special meetings of the
Board of Directors may be called by or at the request of the
Chairman of the Board, President or any two (2) directors (or one
director if there shall be only one). The person or persons
authorized to call special meetings of the Board of Directors may
fix any place, either within or without The Commonwealth of
Massachusetts, as the place for holding any special meeting of
the Board of Directors.
Section 3.5 Notice. Written notice of any special
meeting of directors shall be given as follows:
By mail to each director at his business address at
least three days prior to the meeting; or
By personal delivery, telegram or facsimile
transmission to each director at his business address at least 24
hours prior to the meeting, or in the event such notice is given
on a Saturday, Sunday or holiday, to each director at his
residence address at least 24 hours prior to the meeting. If
mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage
thereon prepaid. If notice is given by telegram, such notice
shall be deemed to be delivered when the telegram is delivered to
the telegraph company. If notice is given by facsimile
transmission, such notice shall be deemed to be delivered at the
confirmed completion time of such transmission.
Notice of a meeting need not be given to any director,
if a written waiver of notice, executed by him before or after
the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto
or at its commencement the lack of notice to him. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
Section 3.6 Quorum. The number of directors required
to constitute a quorum shall be a majority of the directors then
in office. If a quorum is present, a majority of the directors
present may take any action on behalf of the board except to the
extent that a larger number is required by law, by the Articles
of Organization or by these By-Laws. If less than a quorum of
directors are present at any meeting of the Board of Directors, a
majority of the directors present may adjourn such meeting from
time to time without further notice.
Section 3.7 Meetings by Telecommunications. Unless
the Articles of Organization otherwise provide, members of the
Board of Directors or any committee designated thereby may
participate in a meeting of such board or committee by means of a
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other at the same time and participation by such means shall
constitute presence in person at a meeting.
Section 3.8 Vacancies. Any vacancy occurring in the
Board of Directors and any directorship to be filled by reason of
an increase in the number of directors may be filled by election
at a meeting of the stockholders entitled to vote at the election
of such director, or by vote of the Board of Directors; provided,
however, that the stockholders shall have the right to replace a
successor director elected by the directors. A director elected
to fill a vacancy shall be elected for the unexpired term of his
predecessor in office.
Section 3.9 Compensation. By resolution of the Board
of Directors, irrespective of any personal interest of any of the
members, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at meetings or a stated salary as
directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. In the event of the resignation or,
except where expressly provided otherwise in a duly authorized
written agreement with the Corporation, the removal of a director
in accordance with Section 3.13 below, such director shall have
no right to any compensation for any period following his
resignation or removal, or any right to damages on account of
such removal, whether his compensation be by the month, the year
or otherwise; unless in the case of a resignation, the directors,
or in the case of a removal, the body acting on the removal,
shall in their or its discretion provide for such compensation.
Section 3.10 Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be
conclusively presumed to have assented to the action taken unless
his dissent is entered in the minutes of the meeting or unless he
files his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment of the
meeting or forwards such dissent by registered mail to the Clerk
of the Corporation immediately after the adjournment of the
meeting. Such right to dissent does not apply to a director who
voted in favor of such action.
Section 3.11 Committees of Directors. The Corporation
may provide for an executive committee or other committees to be
elected from and by the Board of Directors, and the directors may
delegate to any such committee or committees some or all of their
powers, except, however, the power
(a) to change the principal office of the
Corporation;
(b) to amend By-Laws;
(c) to elect officers and to fill vacancies in
any such offices;
(d) to change the number of the Board of
Directors and to fill vacancies in the Board of Directors;
(e) to remove officers or directors from office;
(f) to authorize the payment of any dividend or
distribution to shareholders;
(g) to authorize the reacquisition for value of
stock of the Corporation; or
(h) to authorize a merger.
Except as otherwise provided in the Articles of
Organization, the directors may determine the manner of
conducting committee business, whether at a meeting or otherwise,
and the number of members required to take specified types of
action. The designation of any such committee and the delegation
of any authority thereto shall not operate to relieve the
directors from any responsibility imposed upon them by law.
Section 3.12 Informal Action by Directors. Any action
required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a
meeting, if all the directors entitled to vote consent to the
action in writing and the written consents are filed with the
records of the meetings. Such consents shall be treated for all
purposes as a vote at a meeting.
Section 3.13 Resignation and Removal of Directors.
Any director of the Corporation may resign from office by
delivering or causing to be delivered to any officer of the
Corporation, or to the Board of Directors, a written resignation,
which shall take effect upon being so delivered or at such other
time as may be therein specified. Any director may be removed
from his office with or without cause by vote of the holders of a
majority of the shares entitled to vote in the election of
directors, provided that the directors of a class elected by a
particular class of stockholders may be removed only by the vote
of the holders of a majority of the shares of the particular
class of stockholders entitled to vote for the election of such
directors. Any director may be removed from his office for cause
by vote of a majority of the directors then in office. A
director may be removed for cause only after reasonable notice
and opportunity to be heard before the body proposing to remove
him.
ARTICLE IV
OFFICERS
Section 4.1 Number. The principal officers of the
Corporation shall be a Chairman of the Board, a President, a
Treasurer and a Clerk, each of whom shall be elected by the Board
of Directors. The Clerk shall be a resident of The Commonwealth
of Massachusetts unless the Corporation has appointed a resident
agent to receive service of process on its behalf. The Board of
Directors may appoint such other officers as they deem necessary
who shall have such authority and shall perform such duties as
from time to time may be prescribed by the Board of Directors.
The Corporation may also have such agents, if any, as the
directors from time to time and in their discretion may appoint.
Any officer may be but none need be a director or stockholder.
Any person may simultaneously hold more than one office of the
Corporation.
Section 4.2 Election and Term of Office. The officers
of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held
after each annual meeting of stockholders. If the election of
officers is not held at that meeting, the election shall be held
as soon thereafter as practicable. Each officer shall hold
office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided.
Section 4.3 Resignation and Removal of Officers. Any
officer of the Corporation may resign from office by delivering
or causing to be delivered to any other officer of the
Corporation, or to the Board of Directors, a written resignation,
which shall take effect upon being so delivered or at such other
time as may be therein specified. The directors may remove any
officer or agent elected or appointed by them with or without
cause by vote of the majority of directors then in office, but
such removal shall be without prejudice to the contract rights,
if any, of the person so removed. An officer may be removed for
cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section 4.4 Vacancies. A vacancy in any office
because of death, resignation, removal, disqualification or
otherwise, may be filled by the Board of Directors for the
unexpired portion of the term. Vacancies or new offices may be
filled at any meeting of the Board of Directors.
Section 4.5 Bonds. If the Board of Directors by
resolution shall so require, any officer or agent of the
Corporation shall give bond to the Corporation in such amount and
with such surety as the Board of Directors may deem sufficient,
conditioned upon the faithful performance of such officer or
agent's respective duties and offices.
Section 4.6. Chairman of the Board of Directors. If a
Chairman of the Board of Directors is elected, he shall preside
at all meetings of the stockholders and directors, except as the
directors shall otherwise determine, and shall have such other
powers and duties as may be determined by the directors.
Section 4.7. President. Unless another officer is so
designated by the Board of Directors, the President shall be the
chief executive officer of the Corporation and shall in general
supervise and control all of the business and affairs of the
Corporation. He shall preside at all meetings of the
stockholders and of the Board of Directors at which the Chairman
is not present. He may sign, with the Treasurer or any other
proper officer of the Corporation thereunto authorized by the
Board of Directors, certificates for shares of the Corporation,
any deeds, mortgages, bonds, notes, checks, drafts, contracts or
other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or
by these By-Laws to some other officer or agent of the
Corporation or shall be required by law to be otherwise signed or
executed; and in general shall perform all duties incident to the
office of President and such other duties as may be prescribed by
the Board of Directors from time to time. The President need not
be a director.
Section 4.8. Vice Presidents. In the absence of the
President or in the event of his inability or refusal to act, the
Vice President (or, in the event there is more than one Vice
President, Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election)
shall perform the duties of the President. Any Vice President
may sign, with the Treasurer or an Assistant Treasurer,
certificates for shares of the Corporation, and shall perform
those other duties which from time to time may be assigned to him
by the Board of Directors or by the chief executive officer.
Section 4.9. Treasurer. The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any source
whatsoever and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of
Article V of these By-Laws; (b) sign with the President or Vice
President certificates for shares of the Corporation's stock, the
issuance of which shall have been authorized by resolution of the
Board of Directors; and (c) in general, perform all duties
incident to the office of Treasurer and all other duties as from
time to time may be assigned to him by the Board of Directors or
the chief executive officer. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in the sum and with a surety or sureties
as the Board of Directors shall determine.
Section 4.10. Clerk. The Clerk shall: (a) keep the
minutes of the stockholders' and of the Board of Directors'
meetings in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions
of these By-Laws or as required by law; (c) be custodian of the
corporate records and, if the Corporation has a corporate seal,
of the seal of the Corporation and see that the seal of the
Corporation is affixed to all certificates for shares prior to
the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these By-Laws; (d) keep a
register of the post office address of each stockholder which
shall be furnished to the Clerk by such stockholder; (e) have
general charge of the share transfer books of the Corporation;
and (f) in general, perform all duties incident to the office of
Clerk and all other duties as from time to time may be assigned
to him by the Board of Directors or the chief executive officer.
Section 4.11. Assistant Treasurers and Assistant
Clerks. An Assistant Treasurer as thereunto authorized by the
Board of Directors may sign with the President or a Vice
President certificates for shares of the Corporation's stock, the
issuance of which shall have been authorized by resolution of the
Board of Directors. The Assistant Treasurers and Assistant
Clerks, in general, shall perform such duties as shall be
assigned to them by the Treasurer or the Clerk, respectively, or
by the Board of Directors or the chief executive officer. The
Assistant Treasurers shall, if required by the Board of
Directors, give bonds for the faithful discharge of their duties
in sums and with sureties as the Board of Directors shall
determine.
Section 4.12. Salaries. The salaries of the officers
shall be fixed from time to time by the Board of Directors, and
no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the Corporation.
In the event of the resignation or, except where expressly
provided otherwise in a duly authorized written agreement with
the Corporation, the removal of an officer in accordance with
Section 4.5 above, such officer shall have no right to any
compensation for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by the month, the year or otherwise, unless the
directors shall in their discretion provide for such
compensation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.1 Contracts. The Board of Directors may
authorize any officer or officers, agent or agents to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
Section 5.2 Loans. No loans shall be contracted on
behalf of the Corporation and no evidences of indebtedness shall
be issued in its name unless authorized by a resolution of the
Board of Directors. Such authority may be general or confined to
specific instances. No loans shall be made by the Corporation
secured by its shares.
Section 5.3 Checks, Drafts, Etc. All checks, drafts
or other order for the payment of money, notes or other evidences
of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the
Corporation and in the manner which shall from time to time be
determined by resolution of the Board of Directors.
Section 5.4 Deposits. All funds of the Corporation
not otherwise employed shall be deposited from time to time to
the credit of the Corporation in banks, trust companies or other
depositories which the Board of Directors may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
Section 6.1 Issuance and Regulation. The Board of
Directors may make such rules and regulations as it may deem
expedient concerning the issuance, transfer and registration of
certificates for shares of the Corporation, including the
appointment of transfer agents and registrars. The Board of
Directors shall have the authority, without first offering the
same or any part of the same to any present or future
stockholders for subscription, to issue the whole or any part of
any unissued capital stock from time to time authorized under the
Articles of Organization of this Corporation to any persons,
firms, corporations or other organizations, in such manner and
amounts and for such consideration and upon such terms and
conditions as the directors from time to time in their discretion
shall determine, subject to any requirements of law.
Notwithstanding the foregoing, no stock shall be issued unless
the cash, so far as due, or the property, services or expenses
for which it was authorized to be issued, has been actually
received or incurred by, or conveyed or rendered to, the
Corporation, or is in its possession as surplus. The directors
shall determine the manner of allocating such consideration
between capital and surplus. No stockholder shall have any
preemptive rights to acquire capital stock of the Corporation.
Section 6.2 Certificates for Shares. Each stockholder
shall be entitled to a certificate stating the number and the
class and the designation of the series, if any, of the shares
held by him. Such certificate shall be signed by the President
or a Vice President and by the Treasurer or an Assistant
Treasurer. Such signatures may be facsimiles if the certificate
is signed by a transfer agent, or by a registrar, other than a
director, officer or employee of the Corporation. In case any
officer who has signed or whose facsimile signature has been
placed on such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at
the time of its issue. Every certificate issued for shares of
stock at a time when such shares are subject to any restriction
on transfer pursuant to the Articles of Organization, these
By-Laws or any agreement to which the Corporation is a party
shall have the restriction noted conspicuously on the certificate
and shall also set forth on the face or back of the certificate
either the full text of the restriction, or a statement of the
existence of such restriction and a statement that the
Corporation will furnish a copy thereof to the holder of such
certificate upon written request and without charge. Every stock
certificate issued at a time when the Corporation is authorized
to issue more than one class or series of stock shall set forth
upon the face or back of the certificate either the full text of
the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series, if any,
authorized to be issued, as set forth in the Articles of
Organization, or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement
that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Each certificate representing shares shall also state
the name of the Corporation, the date of issue, that the
Corporation is organized under the laws of The Commonwealth of
Massachusetts, the name of the person to whom it is issued, and
the par value of each share represented by the certificate or a
statement that the shares are without par value. Each
certificate shall be otherwise in such form as may be prescribed
by the Board of Directors and as shall conform to the rules of
any Stock Exchange on which the shares may be listed.
Section 6.3 Cancellation of Certificates. All
certificates surrendered to the Corporation for transfer shall be
cancelled and no new certificates shall be issued in lieu thereof
until the former certificate for a like number of shares shall
have been surrendered and cancelled, except as herein provided
with respect to lost, stolen or destroyed certificates, and
except that the President or a Vice President and the Treasurer
or an Assistant Treasurer, by executing and placing in the stock
and transfer records of the Corporation a certificate to such
effect, may cancel any certificate notwithstanding that such
certificate has not been surrendered to the Corporation or any of
its agents, if such shares have been redeemed or deemed to have
been redeemed by the Corporation pursuant to the Articles of
Organization, these By-Laws or an agreement with the Corporation.
Section 6.4 Lost, Stolen or Destroyed Certificates.
The Board of Directors shall determine the conditions upon which
a new certificate of stock may be issued in place of any
certificate alleged to have been lost, mutilated or destroyed.
The directors may, in their discretion, require the owner of a
lost, mutilated or destroyed certificate, or his legal
representative, to give a bond, sufficient in their opinion, with
or without surety, to indemnify the Corporation against any loss
or claim which may arise by reason of the issue of a certificate
in place of such lost, mutilated or destroyed stock certificate.
Section 6.5 Transfer of Shares. The Corporation may
from time to time enter into an agreement or agreements with one
or more of its stockholders restricting the transferability of
its shares in accordance with the general corporate purpose to
have its shares owned by persons actively engaged in the
corporate business. Subject to the terms of any such agreement,
shares of the Corporation shall be transferable on the books of
the Corporation by the holder thereof, in person or by his duly
authorized attorney, upon the surrender and cancellation of a
certificate or certificates for a like number of shares. Upon
presentation and surrender of a certificate for shares properly
endorsed and payment of all required taxes, if any, the
transferee shall be entitled to a new certificate or certificates
in lieu thereof. As against the Corporation, a transfer of
shares can be made only on the books of the Corporation and in
the manner hereinabove provided, and the Corporation shall be
entitled to treat the holder of record of any share as the owner
thereof for all purposes, including the payment of dividends and
the right to receive notice and to vote with respect thereto, and
shall not be bound to recognize any equitable or other claim to
or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof,
except as expressly provided by the statutes of The Commonwealth
of Massachusetts. It shall be the duty of each stockholder to
notify the Corporation of his post office address.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end on the
31st day of December in each calendar year.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare,
and the Corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law
and its Articles of Organization.
ARTICLE IX
STOCK IN OTHER CORPORATIONS
Any shares of stock in any other corporation which may
from time to time be held by this Corporation may be represented
and voted at any meeting of shareholders of such corporation by
the President or by any other person or persons thereunto
authorized by the Board of Directors, or by any proxy designated
by written instrument of appointment executed in the name of this
Corporation by its President. Shares of stock belonging to the
Corporation need not stand in the name of the Corporation, but
may be held for the benefit of the Corporation in the individual
name of the Treasurer or of any other nominee designated for the
purpose by the Board of Directors. Certificates for shares so
held for the benefit of the Corporation shall be endorsed in
blank or have proper stock powers attached so that said
certificates are at all times in due form for transfer, and shall
be held for safekeeping in such manner as shall be determined
from time to time by the Board of Directors.
ARTICLE X
SEAL
The Board of Directors may provide a corporate seal
which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate
Seal, Massachusetts," or shall be in such other form as the Board
of Directors may from time to time determine.
ARTICLE XI
INDEMNIFICATION
The Corporation shall, to the maximum extent legally
permissible, indemnify any person serving or who has served (a)
as a director or officer of the Corporation, or (b) at the
request of the Corporation as a director, officer, trustee,
employee or agent of another organization or (c) at the request
of the Corporation in any capacity with respect to any employee
benefit plan, and such person's heirs, executors, administrators
and other legal representatives, against all liabilities and
expenses which he has reasonably incurred by reason of, in
connection with, or arising out of any actual or threatened
action, suit or proceeding, whether civil or criminal, in which
he may be or become involved by reason of his being or having
been such a director, officer, employee or other agent; provided,
however, that no such indemnification shall be made with regard
to matters as to which such director, officer, employee or other
agent shall be finally adjudged in any such action, suit or
proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interests of the
Corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interests
of the participants or beneficiaries of such employee benefit
plan. Such expenses and liabilities may include, without
limitation, judgments, court costs, attorneys' fees and the costs
of reasonable settlements.
In the event that a settlement of any such action, suit
or proceeding is proposed or effected through a compromise or
settlement payment pursuant to a consent decree or otherwise,
indemnification will be made only if: (a) such indemnification
shall be ordered by a court; (b) such compromise shall be
approved as in the best interest of the Corporation or, to the
extent that such matter relates to service with respect to any
employee benefit plan, in the best interests of the participants
or beneficiaries of such employee benefit plan, (i) by a majority
of the directors then in office, exclusive of any interested
director or directors; or (ii) by the holders of a majority of
the outstanding shares of stock at the time having the right to
vote for directors, exclusive of any stock owned by an interested
director or officer; or (c) the Corporation shall have received a
written opinion of independent legal counsel to the effect that
the person seeking indemnity appears to have acted in good faith
in the reasonable belief that his action was in the best
interests of the Corporation or of the participants or
beneficiaries of such employee benefit plan, as applicable.
If in an action, suit or proceeding brought by or in
the right of the Corporation, a director of the Corporation is
held not liable for monetary damages, whether because that
director is relieved of personal liability under the provisions
of the Articles of Organization of the Corporation or otherwise,
that director shall be deemed to have met the standard of conduct
set forth above and to be entitled to indemnification for
expenses reasonably incurred in the defense of such action, suit
or proceeding.
The indemnification provided for herein shall include
payment by the Corporation of expenses incurred in defending a
civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an
undertaking by the person indemnified to repay such payment if he
shall not be entitled to indemnification under this Article,
which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such
indemnification shall be provided although the person to be
indemnified is no longer an officer, director, employee or agent
of the Corporation or of such other organization. The right of
indemnification hereby provided shall not be exclusive of or
affect any other rights to which any director or officer may be
entitled. Nothing contained in this Article shall affect any
rights to indemnification to which corporate personnel other than
directors and officers may be entitled by contract or otherwise
under law.
The Board of Directors shall have power to purchase and
maintain insurance on behalf of any person to whom it may provide
indemnification as set forth above, against any liability
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would actually
have the power to indemnify him against such liability under the
terms hereof.
ARTICLE XII
CORPORATE RECORDS
The original, or attested copies, of the Articles of
Organization, By-Laws, and records of all meetings of the
incorporators and stockholders, and the stock and transfer
records, which shall contain the names of all stockholders and
the record address and the amount of stock held by each, shall be
kept in The Commonwealth for inspection by the stockholders at
the Corporation's principal office or an office of the Clerk, or
of the transfer agent or the Resident Agent, if any. Said copies
and records need not all be kept in the same office.
ARTICLE XIII
AMENDMENTS
These By-Laws may be altered, amended or repealed and
new By-Laws may be adopted by a majority of the stockholders
present at any meeting of the stockholders of the Corporation at
which a quorum is present. These By-Laws may also be altered,
amended or repealed and new By-Laws may be adopted by a majority
of the directors present at any meeting of the Board of Directors
of the Corporation at which a quorum is present, except with
respect to any provision thereof which by law, the Articles of
Organization or these By-Laws requires action by the
stockholders. Not later than the time of giving notice of the
meeting of stockholders next following the making, amending or
repealing by the directors of any by-law, notice thereof stating
the substance of such changes shall be given to all stockholders
entitled to vote on amending the by-laws. Any by-law adopted by
the directors may be amended or repealed by the stockholders.
CERTIFICATE
The undersigned Clerk of EUA Home & Family, Inc. (the
"Company"), hereby certifies that attached hereto is a true and
accurate copy of the By-Laws of the Company duly adopted by the
Board of Directors of the Company.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as an instrument under seal as of this ___ day of
___________, 1995.
______________________________
Clifford J. Hebert, Jr., Clerk
EXHIBIT A-3, FORM OF AGREEMENT OF LIMITED PARTNERSHIP
FILED WITH CONFIDENTIAL TREATMENT
EXHIBIT B-1, RESEARCH AND DEVELOPMENT AGREEMENT
FILED WITH CONFIDENTIAL TREATMENT
EXHIBIT B-2, AGREEMENT TO FORM JOINT VENTURE
FILED WITH CONFIDENTIAL TREATMENT
EXHIBIT B-3, TERMS AND CONDITIONS OF ROYALTY-FREE LICENSE
FILED WITH CONFIDENTIAL TREATMENT
EXHIBIT B-4, FORM OF SERVICE AGREEMENT BETWEEN HOME & FAMILY &
EUA SERVICE CORP.
FILED WITH CONFIDENTIAL TREATMENT
Exhibit F
[FORM OF MCDERMOTT, WILL & EMERY OPINION]
__________ __, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington D.C. 20549
Re: File No. 70-8585 -- EUA Energy Investment Corporation
Application/Declaration with Respect to Participation
in a Joint Venture to Develop and Commercialize a Home
Environmental Audit and Remediation Business
Ladies and Gentlemen:
As counsel for EUA Energy Investment Corporation ("EEIC"),
we are furnishing this opinion to be used in connection with the
application-declaration on Form U-1 under the Public Utility
Holding Company Act of 1935 (the "Act") filed by EEIC with the
Securities and Exchange Commission (the "Commission") on March 8,
1995, File No. 70-8585, as amended, (the "Application-
Declaration"). In the Application-Declaration, EEIC requests
Commission authorization to participate in and to provide
financing to a to-be-formed joint venture limited partnership
("Home & Family") in order to develop and commercialize a home
environmental audit and remediation business, and to form a new
wholly owned subsidiary (the "EEIC Subsidiary") to participate as
the general partner thereof. EEIC requests authorization to
contribute to the EEIC Subsidiary certain proprietary materials
to be developed by and on behalf of EEIC in exchange for all of
the issued and outstanding capital stock of the EEIC Subsidiary.
In connection with the formation, development and
commercialization of Home & Family, EEIC and the EEIC Subsidiary
request authorization: (1) for the EEIC Subsidiary to contribute
the aforementioned proprietary materials to Home & Family in
exchange for a general partner interest therein; (2) to make cash
contributions in an aggregate total amount of up to $3,900,000 to
fund Home & Family's working capital needs through the period
ending December 31, 1997; and (3) to make loans and advances to
Home & Family through the period ending December 31, 1997 in an
aggregate amount not to exceed $3,000,000.
It is our opinion, subject to the assumptions hereinafter
stated, that in the event the transactions for which EEIC has
requested authorization as described above (the "Proposed
Transactions") are consummated in accordance with the
Application-Declaration as amended:
All Massachusetts state laws applicable to the
Proposed Transactions will have been complied with by EEIC.
Each of EEIC and the EEIC Subsidiary is or will be a
validly organized and duly existing corporation under the laws of
The Commonwealth of Massachusetts. Upon issuance, the capital
stock of the EEIC Subsidiary will be validly issued, fully paid
and nonassessable, EEIC will be entitled to the rights and
privileges appertaining thereto set forth in the Articles of
Organization of the EEIC Subsidiary, and EEIC will have legally
acquired the capital stock of the EEIC Subsidiary.
(c) Upon due execution and delivery of the Home & Family
Limited Partnership Agreement and each of the agreements
contemplated thereby or in connection therewith, the obligations
of the EEIC Subsidiary and, to the extent applicable, of EEIC,
thereunder will be the valid and binding obligations of the EEIC
Subsidiary and of EEIC, respectively, in accordance with the
respective terms of each such agreement, and the EEIC Subsidiary
will have legally acquired its general partner interest in Home &
Family.
(d) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the securities
issued by EEIC, the EEIC Subsidiary, or any of their associate
companies, Eastern Utilities Associates ("EUA"), Eastern Edison
Company ("Eastern Edison"), Blackstone Valley Electric Company
("Blackstone"), EUA Cogenex Corporation ("Cogenex"), EUA Cogenex-
Canada Inc. ("Cogenex-Canada"), EUA Service Corporation ("EUA
Service"), Montaup Electric Company ("Montaup"), Newport Electric
Corporation ("Newport"), Eastern Unicord Corporation ("Unicord"),
EUA Ocean State Corporation ("EUA Ocean State"), Ocean State
Power ("OSP I"), Ocean State Power II ("OSP II"), OSP Finance
Company ("OSP Finance"), EUA TransCapacity, Inc.
("TransCapacity"), Northeast Energy Management, Inc. ("NEM"), EUA
Citizens Conservation Services, Inc. ("CCS") and EUA Highland
Corporation ("Highland").
This opinion, in addition to being subject to the
consummation of the Proposed Transactions in accordance with the
Application-Declaration, is also subject to the following
additional assumptions:
compliance with such orders as the Commission may issue
from time to time upon the Application-Declaration, as amended;
and
the accuracy of information furnished to us as to
the outstanding securities of EEIC's associate companies, EUA,
Eastern Edison, Blackstone, Cogenex, Cogenex-Canada, EUA Service,
Montaup, Newport, Unicord, EUA Ocean State, OSP I, OSP II, OSP
Finance, TransCapacity, NEM, CCS and Highland, and that there
is no provision or condition in any note or other document in
connection with outstanding short-term notes of any of EEIC, the
EEIC Subsidiary and their aforementioned associate companies
limiting the Proposed Transactions.
This opinion relates only to federal law and 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,
McDermott, Will & Emery
EXHIBIT G1, 1995 BUSINESS PLAN OF HOME & FAMILY
FILED WITH CONFIDENTIAL TREATMENT
FINANCIAL STATEMENT b-1, FINANCIAL FORECAST OF HOME & FAMILY 1995-1999
