File No. 70-8837
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
EUA ENERGY INVESTMENT CORPORATION'S INVESTMENT IN
A SOLID AND LIQUID MATERIALS SEPARATION TECHNOLOGY COMPANY
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
1. Item 1 (Description of Proposed Transactions) is hereby amended as
follows:
(1) The penultimate sentence of Section I, Paragraph C is hereby
amended and restated to read as follows:
The Stock Purchase Agreement provides that, effective upon EEIC's
acquisition of the STI common stock, EEIC would have the right to appoint
one member to STI's eight-member Board of Directors, which EEIC-appointed
director would have certain negotiated approval rights.
(2) The following paragraph is hereby added to the end of Section I:
E. Background Information About STI and EEIC's Proposed Investments.
STI has been in business since 1989, and has completed construction of its
separation systems at New England Power's Salem Harbor and Brayton Point
power plants. By constructing and installing an STI system, a utility will
significantly reduce its disposal costs for fly ash and be in a position to
re-use and/or sell all of its fly ash, thereby eliminating the need for
disposal in landfills. Montaup Electric Company, a member company of the
EUA System, is currently considering acquiring an STI system.
The Brayton Point system, which is similar in size and design to the
systems proposed to be built by STI in 1996 and 1997, has yielded a strong
return on investment. EEIC's analysis of its proposed project financing,
based on data from the Brayton Point system, is being filed simultaneously
herewith as Exhibit G-1, under request for confidential treatment. With
respect to the financing of future projects, it is anticipated that no
project will be funded by EEIC without first ensuring that there are
contractual commitments (i) by the host utility to supply a minimum
quantity of fly ash for treatment and disposal for a fee, and (ii) by an
end user to receive a minimum quantity of treated ash for a fee. For these
reasons, EEIC believes that its proposed financing of future projects is
economically sound.
(3) Paragraph D of Section III is hereby amended and restated in its
entirety to read as follows:
D. No Ownership Interests in EWGs or FUCOs. With the exception, by
virtue of EUA BIOTEN, Inc.'s partnership interest in BIOTEN Partnership
(see, Release No. 35-26314 dated June 21, 1995, File No. 70-8617), of
EEIC's indirect ownership interest in a commercial prototype plant (which
will either be an EWG as defined in Section 32 of the Act or a Qualified
Facility within the meaning of the Public Utility Regulatory Policies Act
of 1978, as amended), no EUA System company has acquired an ownership
interest in any EWG or FUCO, or now is or as a consequence of the
transactions proposed herein will become a party to or has or will as a
consequence of the transactions proposed herein have any right under a
service, sales or construction contract with an EWG or FUCO, except in
accordance with the provisions of the Act. No EUA System company will
acquire any such interest or right without first obtaining any necessary
Commission authorization. As required by Rule 54, all applicable
conditions contained in Rule 53(a) are and, assuming the consummation of
the proposed transactions, will be, satisfied and none of the conditions
contained in Rule 53(b) exist or will exist as a result of the proposed
transactions, making Rule 53(c) inapplicable.
(4) The following paragraph is hereby added to the end of Section
III:
F. Quarterly Reports to be filed with the Commission. EEIC will
file quarterly reports with the Commission within sixty (60) days following
the end of each calendar quarter. These reports will include the following
information:
(1) A description of STI's activities; and
(2) Financial statements of EEIC and STI including balance sheets as
of the quarterly reporting date, income statements for the quarter
reporting, and statements of cash flow.
2. Item 2 (Fees, Commissions and Expenses) 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 Applicant expected to be
paid or incurred, directly or indirectly, in connection with the
transaction described above are estimated as follows:
Securities and Exchange Commission Fees $ 2,000
Legal Fees $55,000
Miscellaneous $ 5,000
TOTAL $62,000
3. The second item listed under Item 3 (Applicable Statutory Provisions)
is hereby amended and restated to read as follows:
The sections of the Act and rules or exemptions thereunder that the
applicants consider applicable to the transactions for the basis for
exemption therefrom are set forth below:
Provision of project finance Section 6(a), 7; Rules 45(a)
funding to customers of STI and 54.
4. Item 6 (Exhibits and Financial Statements) is hereby amended and
restated in its entirety to read as follows:
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
(* Filed herewith)
(+ Confidential treatment requested.)
(a) Exhibits.
* Exhibit A-1 Certificate of Incorporation of STI, as
amended
* Exhibit A-2 By-Laws of STI, as amended
*+ Exhibit B-1 Stock Purchase Agreement
* Exhibit F Opinion of Counsel
*+ Exhibit G-1 Analysis of Proposed Project Financing
* Exhibit H Proposed Form of Notice
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: June 6, 1996
EXHIBIT A-1
Exhibit A-1
CERTIFICATE OF INCORPORATION
OF
ALLIED ENERGY SYSTEMS, INC.
* * * * *
1. The name of the Corporation is ALLIED ENERGY SYSTEMS,
INC.
2. The address of its registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address
is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted
or promoted is:
To engage in any lawful act or activity for which
Corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of stock which the
Corporation shall have authority to issue is fifteen million
(15,000,000) shares, fourteen million (14,000,000) of which shall
be Common Stock, of the par value of One Cent ($.01) per share,
and one million (1,000,000) of which shall be Preferred Stock, of
the par value of One Cent ($.01) per share, amounting in the
aggregate to One Hundred Fifty Thousand and 00/100 Dollars
($150,000.00).
Additional designations and powers, preferences and rights
and qualifications, limitations or restrictions thereof of the
shares of stock shall be determined by the Board of Directors of
the Corporation from time to time.
5. The name and mailing address of the Corporation's
incorporator is Charles E. Parker, III, 111 Log Hill Road,
Carlisle, Massachusetts 01741.
6. The names and addresses of the individuals who are to
serve as the directors until the first annual meeting of the
stockholders or until their successors are elected and qualified
are Charles E. Parker, III, 111 Log Hill Road, Carlisle,
Massachusetts 01741; James P. Spellman, 6808 Hill Wood Lane,
Dallas, Texas 75248; and Thomas K. Hammond, 169 South Finley
Avenue, Basking Ridge, New Jersey 07920.
7. The Corporation is to have perpetual existence.
8. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
To make, alter or repeal the bylaws of the Corporation.
To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
By a majority of the whole board, to designate one or
more committees, each committee to consist of one or more of the
directors of the Corporation. The board may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. The bylaws may provide that in the absence or
disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to
act at the meeting in the place of any such agent or disqualified
member. Any such committee, to the extent provided in the
resolution of the board of directors, or in the bylaws of the
Corporation, shall have and may exercise all the powers and
authority of the board of directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or
authority in reference to amending the certificate of
incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the
bylaws of the Corporation; and, unless the resolution or bylaws
expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock.
When and as authorized by the stockholders in accordance
with statute, to sell, lease or exchange all or substantially all
of the property and assets of the Corporation, including its
goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole
or in part of money or property, including shares of stock in,
and/or other securities of, any other Corporation or Corporation,
as its board of directors shall deem expedient and for the best
interests of the Corporation.
9. To the maximum extent permitted by Section 102(b)(7) of
the General Corporation Law of Delaware, a director of this
Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived
an improper personal benefit.
10. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders or any class
of them, any court or equitable jurisdiction with the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement to any
reorganization of this Corporation as consequences of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders
or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
11. Meetings of the stockholders may be held within or
without the State of Delaware, as the bylaws may provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the
Board of Directors or in the bylaws of the Corporation.
Elections of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
12. The Corporation reserves the right to amend, alter,
change, or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereinafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation; except that any such
amendment shall be made by the holders of at least one-half of
the outstanding shares of Common Stock of the Corporation.
THE UNDERSIGNED, being the incorporator named hereinbefore,
for the purposes of forming a Corporation pursuant to the General
Corporation Law of the State of Delaware, does make this
certificate, hereby declaring and certifying that this is his act
and deed and the facts herein stated are true, and accordingly,
has hereunto set his hand this 24th day of March, 1989.
/s/ Charles E. Parker, III
Charles E. Parker, III
COMMONWEALTH OF MASSACHUSETTS )
) s.:
COUNTY OF MIDDLESEX )
BE IT REMEMBERED that on this 24th day of March, 1989,
personally came before me, a Notary Public for the Commonwealth
of Massachusetts, Charles E. Parker, III, the party to the
foregoing Certificate of Incorporation, known to me personally to
be such, and acknowledged the said certificate to be his act and
deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year
aforesaid.
/s/ Jane M. Davenport
Notary Public
My Commission Expires:
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
ALLIED ENERGY SYSTEMS, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is Allied Energy Systems, Inc.
2. The certificate of incorporation of the corporation is
hereby amended by striking out Article FIRST thereof and by
substituting in lieu of said Article the following new Article:
"1. Name. The name of the corporation is:
International Separations Systems, Inc."
3. The amendment of the certificate of incorporation
herein certified has been duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the
State of Delaware.
Signed and attested to on July 21, 1992.
/s/ Charles E. Parker, III
Charles E. Parker, III
President
Attest:
/s/ Lawrence A. Murray
Lawrence A. Murray
Secretary
CERTIFICATE OF RESTORATION AND REVIVAL OF
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL SEPARATIONS SYSTEMS, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is: International Separations Systems Inc.
2. The corporation was organized under the provisions of
the General Corporation Law of the State of Delaware. The date
of filing of its original certificate of incorporation with the
Secretary of State of the State of Delaware is March 28, 1989.
3. The address, including the street, city and county, of
the registered office of the corporation in the State of Delaware
and the name of the registered agent at such address are as
follows: The Prentice-Hall Corporation System, Inc., 32
Loockerman Square, Suite L-100, Dover, Delaware 19901, County of
Kent.
4. The corporation hereby procures a restoration and
revival of its certificate of incorporation, which became
inoperative by law on March 1, 1993 for failure to file annual
reports and non-payment of taxes payable to the State of
Delaware.
5. The certificate of incorporation of the corporation,
which provides for and will continue to provide for, perpetual
duration, shall, upon the filing of this Certificate of
Restoration and Revival of the Certificate of Incorporation in
the Department of State of the State of Delaware, be restored and
revived and shall become fully operative on February 28, 1993.
6. This Certificate of Restoration and Revival of the
Certificate of Incorporation is filed by authority of the duly
elected directors as prescribed by Section 312 of the General
Corporation Law of the State of Delaware.
Signed and attested to on May 14, 1993.
/s/ Charles E. Parker, III
Charles E. Parker, III
President
Attest:
/s/ Lawrence A. Murray
Lawrence A. Murray, Secretary
CERTIFICATE OF DESIGNATIONS, POWERS,
PREFERENCES AND RIGHTS OF
SERIES A 6% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
INTERNATIONAL SEPARATIONS SYSTEMS, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
INTERNATIONAL SEPARATIONS SYSTEMS, INC., organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), certifies that
pursuant to authority contained in Article Fourth of its
Certificate of Incorporation, and in accordance with the
provisions of Section 151 of the General Corporation Law of the
State of Delaware, its Board of Directors has adopted the
following resolution creating a series of its Preferred Stock,
$.01 par value per share, designated as "Series A 6% Cumulative
Convertible Preferred Stock":
RESOLVED: That a series of the class of authorized $.01 par
value Preferred Stock of the Corporation be hereby created, and
that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other
special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. Eight hundred fifty
thousand (850,000) shares (collectively, the "Shares" and
individually a "Share") of the Corporation's Preferred Stock, par
value $.01 per share, are hereby designated as Series A 6%
Cumulative Convertible Preferred Stock (the "Series A Preferred
Stock").
Section 2. Voting Rights. On all matters submitted to a
vote of holders of the Corporation's Common Stock generally, each
Share will have the right to exercise one vote and (except as
otherwise provided herein and as required by law) the Series A
Preferred Stock and Common Stock will vote as a single class.
Section 3. Dividends.
(a) General Obligation (Cumulative). Dividends shall
accrue on each Share cumulatively on a daily basis at the rate of
6% per annum of the purchase price per Share from the date of
issuance of such Share to and including the date on which such
Share is converted pursuant to Section 5 below, whether or not
such dividends have been declared and whether or not there are
profits, surplus or other funds of the Corporation then legally
available for the payment of dividends. If there are profits,
surplus or other funds of the Corporation then legally available
for the payment thereof, dividends accrued on Shares shall be
paid to the holders thereof as determined by the Board of
Directors.
(b) Distribution of Partial Dividend Payments. All
payments of dividends upon the Series A Preferred Stock will be
distributed among the holders thereof so that an equal amount is
paid with respect to each outstanding Share.
(c) Other Dividends and Distributions. No dividend or
other distribution will be paid, or declared and set apart for
payment, on the Shares of any class of stock of the Corporation
other than the Series A Preferred Stock, nor will any Shares of
any class of stock other than the Series A Preferred Stock be
purchased, redeemed or otherwise acquired for value by the
corporation or any Subsidiary of the Corporation, unless all
dividends payable on Shares of the Series A Preferred Stock shall
have been declared and paid.
Section 4. Liquidation.
(a) Liquidation Preference. Upon any liquidation,
dissolution or winding-up of the Corporation, the holders of
shares of Series A Preferred Stock will be entitled to be paid,
before any distribution or payment is made upon any other shares
of capital stock of the Corporation, an amount in cash equal to
the sum of the purchase price of the Shares then outstanding and
the aggregate amount of accrued dividends payable with respect to
such Shares (the "Liquidation Value"). All such payments,
whether or not they are sufficient to pay the full Liquidation
Value of each outstanding Share, will be distributed among such
holders so that an equal amount (rounded off to the nearest whole
cent) is paid with respect to each outstanding Share.
(b) Notice. The Corporation will mail written notice to
each such holder, at his address as shown on the stock transfer
records of the Corporation, of such liquidation, dissolution or
winding up, not less that 30 days prior to the payment date
stated therein.
(c) Major Change. The occurrence of any capital
reorganization, or reclassification, consolidation with, merger
with, or any sale of all or substantially all of the
Corporation's assets to another person or entity that is effected
in such a way that holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common
Stock, will be deemed to be a liquidation, dissolution or winding
up of the Corporation within the meaning of this Section 4 unless
the holders of not less than a majority of the Shares agree
otherwise.
Section 5. Conversion.
(a) Conversion Procedure.
(i) At any time or from time to time, the holder
of any Shares of Series A Preferred Stock may convert all or
any portion of the Shares held by such holder into the
number of shares of Common Stock computed by multiplying the
number of Shares to be converted by their purchase price per
share, adding the aggregate amount of accrued dividends
payable with respect to such Shares and dividing the result
by the Conversion Price (as defined in Subsection 5(b)
hereof) then in effect.
(ii) Each conversion of Shares will be deemed to
have been effected as of the close of business on the date
on which the certificate or certificates representing the
Shares to be converted have been duly surrendered at the
principal office of the Corporation. At such time as the
conversion of any Share has been effected, the rights of the
holder of such Share as such holder will cease and the
person or persons in whose name or names any certificate or
certificates for shares of Common Stock to be issued upon
such conversion will be deemed to have become the holder or
holders of record of the shares of Common Stock represented
thereby.
(iii) As soon as practicable after the conversion
has been effected, the Corporation will deliver to the
converting holder:
(a) a certificate or certificates representing
the number of whole shares of Common Stock issuable by
reason of such conversion, in such name or names and
such denomination or denominations as the converting
holder has specified;
(b) payment in cash in lieu of any fractional
share of the Common Stock to which the converting
holder would be entitled if such fractional share were
issuable, based upon the Market Price of a share of
Common Stock as of the date of such conversion; and
(c) a certificate representing any Shares
(including any fraction of a Share) which were
represented by the certificate or certificates
delivered to the Corporation in connection with such
conversion but which were not converted.
(iv) The Corporation will not close its books
against the transfer of Series A Preferred Stock, or of
Common Stock issued or issuable upon conversion of Series A
Preferred Stock, in any manner which interferes with the
timely conversion of the Series A Preferred Stock.
(b) Conversion Price. The Conversion Price will be the
initial purchase price per Share, subject to adjustment from time
to time as provided hereinafter.
(c) Subdivision or Combination of Common Stock. If the
Corporation at any time subdivides (by any stock split, stock
dividend or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the
Conversion Price in effect immediately prior to such subdivision
will be proportionately reduced, and if the Corporation at any
time combines (by reverse stock split or otherwise) one or more
classes of its outstanding shares of Common Stock into a smaller
number of shares, the Conversion Price in effect immediately
prior to such combination will be proportionately increased.
(d) Reservation of Common Stock. So long as any Shares
remain outstanding, the Corporation shall reserve and keep
available out of its authorized but unissued shares of Common
Stock, solely for effecting the conversion of Shares, the full
number of shares of Common Stock then deliverable upon the
conversion of all Shares.
(e) Certain Events. If any event occurs of the type
contemplated by the provisions of Subsection 5(c) but not
expressly provided for by such provisions, the Board of
Directors, in its sole discretion, may make an appropriate
adjustment in the Conversion Price so as to protect the rights of
the holders of Series A Preferred Stock.
6. Mandatory Conversion. All outstanding shares of
Preferred Stock shall automatically convert to shares of Common
Stock upon the closing of an underwritten public offering of
Common Stock on a "firm commitment" basis pursuant to a
registration statement on Form S-1 (or its then equivalent) filed
under the Securities Act of 1933, as amended, provided that (A)
the aggregate gross proceeds received by the Corporation from
such offering exceed $5,000,000 and (b) such Common Stock is
offered at a price per share of not less than $3.60
(appropriately adjusted to reflect any subdivision of the
outstanding shares of Common Stock into a greater number of
shares or any combination of the outstanding shares of Common
Stock into a lesser number of shares).
IN WITNESS WHEREOF, INTERNATIONAL SEPARATIONS SYSTEMS, INC.
has caused this Certificate of Designations, Preferences and
Rights of the Series A Cumulative Convertible Preferred Stock to
be signed by Charles E. Parker, III, its President, and attested
by Lawrence A. Murray, its Secretary, this 29th day of April,
1993.
INTERNATIONAL SEPARATIONS
SYSTEMS, INC.
(CORPORATE SEAL) By: /s/ Charles E. Parker, III
Its: President
Attest:
/s/ Lawrence A. Murray
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL SEPARATIONS SYSTEMS, INC.
International Separations Systems, Inc., a corporation
organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
FIRST: That a majority of the stockholders and all of the
Directors of the Corporation have duly executed an
Action by Written Consent amending the Certificate
of Incorporation of the Corporation by changing
the First Article thereof so that, as amended,
said Article shall be and read as follows:
"The name of the Corporation is Separation
Technologies, Inc."
SECOND: That said Amendment was duly adopted in accordance
with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed by its President and attested to by
its Secretary as of this 26th day of June, 1993.
/s/ Charles E. Parker, III
Charles E. Parker, III, President
ATTEST: /s/ Lawrence A. Murray
Lawrence A. Murray, Secretary
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
SEPARATION TECHNOLOGIES, INC.
Separation Technologies, Inc., a corporation organized and
existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify:
FIRST: That the Corporation was initially incorporated as
Allied Energy Systems, Inc. and its Certificate of Incorporation
was initially filed on March 28, 1989.
SECOND: That pursuant to the provisions of Sections 141,
151 and 228 of the General Corporation Law of the State of
Delaware, the Board of Directors and the holders of a majority of
each class of the capital stock of the Corporation, acting by
written consents in lieu of meetings, adopted a resolution
increasing the authorized capital stock of the Corporation, which
resolution is as follows:
VOTED: That it is hereby proposed and declared advisable
to amend the Certificate of Incorporation of the
Corporation by changing Article Fourth thereof so
that, as amended, the first paragraph of Article
Fourth shall read as follows:
"The total number of shares of stock which the
Corporation shall have authority to issue is
sixteen million (16,000,000) shares, fourteen
million (14,000,000) of which shall be Common
Stock, of the par value of one cent ($.01) per
share, and two million (2,000,000) of which shall
be preferred stock, of the par value of one cent
($.01) per share, amounting in the aggregate to a
par value of One Hundred Sixty Thousand and 00/100
Dollars ($160,000)."
THIRD: That pursuant to the provisions of Sections 141
and 151 of the General Corporation Law of Delaware, the Board of
Directors, acting by written consent in lieu of a meeting,
adopted a resolution increasing the number of shares of Preferred
Stock designated as Series A 6% Cumulative Convertible Preferred
Stock, which resolution is as follows:
VOTED: That it is hereby proposed and declared advisable
to amend the Certificate of Designations, Powers,
Preferences and Rights of Series A 6% Cumulative
Convertible Preferred Stock of the Corporation by
changing Section 1 thereof so that, as amended,
Section 1 shall read as follows:
"Section 1. Designation and Amount. One million
seven hundred thousand (1,700,000) shares
(collectively, the "Shares" and individually, a
"Share") of the Corporation's Preferred Stock, par
value $.01 per share, are hereby designated as
Series A 6% Cumulative Convertible Preferred Stock
(the "Series A Preferred Stock")."
FOURTH: That the holders of a majority of the outstanding
shares of the capital stock of the Corporation, and a majority of
the outstanding shares of each class of capital stock of the
Corporation entitled to vote thereon as a class, acting pursuant
to Sections 228 and 242 of the General Corporation Law of the
State of Delaware, acting by written consent in lieu of a
meeting, consented to the adoption of the resolution and
amendment set forth in Article SECOND hereof; and that written
notice of such resolution and amendment has been given to those
stockholders who have not consented in writing thereto.
FIFTH: That the aforementioned amendments were duly
adopted in accordance with the applicable provisions of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Separation Technologies, Inc.
has caused this Certificate to be duly executed by Charles E.
Parker, III, its President, and attested to by Lawrence E.
Murray, its Secretary, as of this 4 day of October, 1994.
SEPARATION TECHNOLOGIES, INC.
By: /s/ Charles E. Parker, III
President
ATTEST:
By: /s/ Lawrence A. Murray
Secretary
CERTIFICATE OF CORRECTION FILED TO CORRECT
AN ERROR IN THE CERTIFICATE OF DESIGNATIONS,
POWERS, PREFERENCES AND RIGHTS OF SERIES A
6% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF SEPARATION TECHNOLOGIES, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON MAY 19, 1993.
Separation Technologies, Inc., a corporation organized
and existing under and by virtue of the General Corporation Law
of the State of Delaware.
DOES HEREBY CERTIFY:
1. The name of the corporation is Separation Technologies,
Inc.
2. That a Certificate of Stock Designations was filed with
the Secretary of State of Delaware on May 19, 1993 and that said
certificate requires correction as permitted by subsection (f) of
section 103 of the General Corporation Law of the State of
Delaware.
3. The inaccuracies or defects of said certificate to be
corrected are as follows:
(a) In the tenth line of Section 6 of said
certificate, "$3.60" should instead read "$5.00".
4. Section 6 of the Certificate is corrected to read as
follows:
Section 6. Mandatory Conversion. All outstanding
shares of Preferred Stock shall automatically convert to
shares of Common Stock upon the closing of an underwritten
public offering of Common Stock on a "firm commitment" basis
pursuant to a registration statement on Form S-1 (or its
then equivalent) filed under the Securities Act of 1933, as
amended, provided that (A) the aggregate gross proceeds
received by the Corporation from such offering exceed
$5,000,000 and (B) such Common Stock is offered at a price
per share of not less than $5.00 (appropriately adjusted to
reflect any subdivision of the outstanding shares of Common
Stock into a greater number of shares or any combination of
the outstanding shares of Common Stock into a lesser number
of shares).
IN WITNESS WHEREOF, Separation Technologies, Inc. has
caused this certificate to be signed by Charles E. Parker, III,
its President and attested by Lawrence A. Murray, its Secretary,
this 30th day of December, 1994.
SEPARATION TECHNOLOGIES, INC.
By: /s/ Charles E. Parker, III
Charles E. Parker, III
President
ATTEST:
By: /s/ Lawrence A. Murray
Lawrence A. Murray
Secretary
AMENDED CERTIFICATE OF DESIGNATIONS OF
SEPARATION TECHNOLOGIES, INC.
Separation Technologies, Inc., a corporation organized
and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify:
FIRST: That the Corporation was initially incorporated as
Allied Energy Systems, Inc. and its Certificate of Incorporation
was initially filed on March 28, 1989.
SECOND: That pursuant to the provisions of Sections 141 and
151(g) of the General Corporation Law of Delaware, and the
authority vested in the Board of Directors by the Certificate of
Incorporation, the Board of Directors, acting by written consent
in lieu of a meeting, adopted a resolution increasing the number
of shares of Preferred Stock of the Corporation that are
designated as Series A 6% Cumulative Convertible Preferred Stock,
which resolution is as follows:
VOTED: That the Corporation amend the Certificate of
Designations, Powers, Preferences and Rights of
Series A 6% Cumulative Convertible Preferred Stock
of the Corporation by changing Section 1 thereof
so that, as amended, Section 1 shall read as
follows:
"Section 1. Designation and Amount. Two Million
(2,000,000) shares (collectively, the "Shares" and
individually, a "Share") of the Corporation's
Preferred Stock, par value $.01 per share, are
hereby designated as Series A 6% Cumulative
Convertible Preferred Stock (the "Series A
Preferred Stock")."
THIRD: That the aforementioned amendment was duly adopted
in accordance with the applicable provisions of the General
Corporation Law of the State of Delaware. No stock of the Series
has been issued.
IN WITNESS WHEREOF, said Separation Technologies, Inc.
has caused this Certificate to be duly executed by Charles E.
Parker, III, its President, as of this 9th day of June, 1995.
SEPARATION TECHNOLOGIES, INC.
By: /s Charles E. Parker, III
President
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
SEPARATION TECHNOLOGIES, INC.
Separation Technologies, Inc., a corporation organized and
existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify:
FIRST: That the Corporation was initially incorporated as
Allied Energy Systems, Inc. and its Certificate of Incorporation
was initially filed on March 28, 1989.
SECOND: That pursuant to the provisions of Sections 141,
151(g) and 228 of the General Corporation Law of Delaware, the
Board of Directors and the holders of a majority of each class of
the capital stock of the Corporation, acting by written consent
in lieu of meetings, adopted a resolution which (i) authorizes a
new class of non-voting common stock, (ii) reduces the number of
shares of voting common stock that the Corporation is authorized
to issue and (iii) restates certain existing provisions which
authorize the Board of Directors to create series of stock and
designate the powers, preferences, qualifications, rights and
privileges of each such series, which resolution is as follows:
VOTED: That the Corporation amend the Certificate of
Incorporation of the Corporation by changing
Article Fourth thereof so that, as amended,
Article Fourth shall read in its entirety as
follows:
"The total number of shares of stock which the
Corporation shall have authority to issue is
sixteen million (16,000,000) shares, eleven
million (11,000,000) of which shall be Voting
Common Stock, of the par value of One Cent ($.01)
per share, three million (3,000,000) of which
shall be Non-Voting Common Stock, of the par value
of One Cent ($.01) per share, and two million
(2,000,000) of which shall be Preferred Stock, of
the par value of One Cent ($.01) per share,
amounting in the aggregate to a par value of One
Hundred Sixty Thousand Dollars ($160,000).
The holders of Voting Common Stock shall be
entitled to one vote for each share held at all
meetings of stockholders (and written actions in
lieu of meetings). Except as specifically
required by law, shares of Non-Voting Common Stock
shall not entitle the holders thereof to any vote
whatsoever, and the holders of such shares shall
not be entitled to notice of, or participate in,
the meetings of the stockholders of the
Corporation. Subject to the foregoing and except
as otherwise determined by the Board of Directors
pursuant to the authorization described
hereinafter, shares of Voting Common Stock and
shares of Non-Voting Common Stock shall have same
preferences, qualifications, rights and
privileges.
The Board of Directors is authorized, subject to
limitations prescribed by law, to provide for the
issuance of the shares of the Corporation's stock
in series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to
establish from time to time the number of shares
to be included in each such series, and to fix the
designation, powers, preferences and rights of the
shares of each such series and the qualifications,
limitations or restrictions thereof. The
authority of the Board with respect to each series
shall include, but not be limited to,
determination of the following:
(a) the number of shares constituting the
series and the distinctive designation of that
series;
(b) the dividend rate on the shares of that
series, whether dividends shall be cumulative,
and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of
dividends on shares of that series;
(c) whether that series shall have voting
rights, in addition to the voting rights provided
by law, and, if so, the terms of such voting
rights;
(d) whether that series shall have
conversion privileges, and, if so, the terms and
conditions of such conversion, including provision
for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
(e) whether or not the shares of that series
shall be redeemable, and, if so, the terms and
conditions of such redemption, including the date
or date upon or after which they shall be
redeemable, and the amount per share payable in
case of redemption, which amount may vary under
different conditions and at different redemption
dates;
(f) whether that series shall have a sinking
fund for the redemption or purchase of shares of
that series, and, if so, the terms and amount of
such sinking fund;
(g) the rights of the shares of that series
in the event of voluntary or involuntary
liquidation, dissolution or winding up of the
corporation, and the relative rights of priority,
if any, of payment of shares of that series; and
(h) any other relative rights, preferences
and limitations of that series."
THIRD: That the holders of a majority of the outstanding
shares of the capital stock of the Corporation, and a majority of
the outstanding shares of each class of capital stock of the
Corporation entitled to vote thereon as a class, acting pursuant
to Sections 228 and 242 of the General Corporation Law of the
State of Delaware, acting by written consent in lieu of a
meeting, consented to the adoption of the resolution and
amendment set forth in Article SECOND hereof; and that written
notice of such resolution and amendment has been given to those
stockholders who have not consented in writing thereto.
FOURTH: That the aforementioned amendment was duly adopted
in accordance with the applicable provisions of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Separation Technologies, Inc. has
caused this Certificate to be duly executed by Charles E. Parker,
III, its President, as of this 30th day of April, 1996.
SEPARATION TECHNOLOGIES, INC.
By: /s/ Walter G. Thompson
Walter G. Thompson
Vice President & Treasurer
Exhibit A-2
BY-LAWS
OF
SEPARATION TECHNOLOGIES, INC.
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the
Corporation shall be at The Corporation Trust Company, 1209 Orange
Street, City of Wilmington, County of New Castle, State of Delaware
19801.
Section 2. Additional Offices. The Corporation may also have
offices at such other places, both within and without the State of
Delaware, as the Board of Directors may from time to time determine
or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Time and Place. A meeting of stockholders for any
purpose may be held at such time and place within or without the
State of Delaware as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. Annual meetings of stockholders,
commencing with the year 1991, shall be held on the third Monday in
March, if not a legal holiday, or, if a legal holiday, then on the
next secular day following, at 10:00 a.m., or at such other date
and time as shall, from time to time, be designated by the Board of
Directors and stated in the notice of the meeting. At such annual
meetings, the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before the
meetings.
Section 3. Notice of Annual Meeting. Written notice of the
annual meeting, stating the place, date, and time thereof, shall be
given to each stockholder entitled to vote at such meeting not less
than ten (unless a longer period is required by law) nor more than
sixty days prior to the meeting.
Section 4. Special Meetings. Special meetings of the
stockholders may be called for any purpose or purposes, unless
otherwise prescribed by statute or by the Certificate of
Incorporation, by the Chairman of the Board, if any, or the
President, and shall be called by the President or Secretary at the
request, in writing, of a majority of the Board of Directors or of
the stockholders owning a majority of the shares of capital stock
of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose of the proposed meeting.
Section 5. Notice of Special Meeting. Written notice of a
special meeting, stating the place, date, and time thereof and the
purpose or purposes for which the meeting is called, shall be given
to each stockholder entitled to vote at such meeting not less than
ten (unless a longer period is required by law) nor more than sixty
days prior to the meeting.
Section 6. List of Stockholders. The transfer agent or the
officer in charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall he open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, at a place within the city where the
meeting is to be held, which place, if other than the place of the
meeting, shall be specified in the notice of the meeting. The list
shall also be produced and kept at the place of the meeting during
the whole time thereof and may be inspected by any stockholder who
is present in person thereat.
Section 7. Presiding Officer and Order of Business.
(a) Meetings of stockholders shall be presided over by the
Chairman of the Board. If he is not present or there is none, they
shall be presided over by the President, or, if he is not present
or there is none, by a Vice President, or, if he is not present or
there is none, by a person chosen by the Board of Directors, or, if
no such person is present or has been chosen, by a chairman to be
chosen by the stockholders owning a majority of the shares of
capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if he
is not present, an Assistant Secretary, or, if he is not present,
a person chosen by the Board of Directors, shall act as Secretary
at meetings of stockholders; if no such person is present or has
been chosen, the stockholders owning a majority of the shares of
capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting who are present in person or
represented by proxy shall choose any person present to act as
secretary of the meeting.
(b) The following order of business, unless otherwise
determined at the meeting, shall be observed as far as practicable
and consistent with the purposes of the meeting:
(1) Call of the meeting to order.
(2) Presentation of proof of mailing of the notice of
the meeting and, if the meeting is a special
meeting, the call thereof.
(3) Presentation of proxies.
(4) Announcement that a quorum is present.
(5) Reading and approval of the minutes of the previous
meeting.
(6) Reports, if any, of officers.
(7) Election of directors, if the meeting is an annual
meeting or a meeting called for that purpose.
(8) Consideration of the specific purpose or purposes,
other than the election of directors, for which the
meeting has been called, if the meeting is a
special meeting.
(9) Transaction of such other business as may properly
come before the meeting.
(10) Adjournment.
Section 8. Quorum and Adjournments. The presence in person
or representation by proxy of the holders of a majority of the
shares of the capital stock of the Corporation issued and
outstanding and entitled to vote shall be necessary to, and shall
constitute a quorum for, the transaction of business at all
meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, a
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat who are
present in person or represented by proxy shall have the power to
adjourn the meeting from time to time until a quorum shall be
present or represented. If the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is
taken, no further notice of the adjourned meeting need be given.
Even if a quorum shall be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat who are
present in person or represented by proxy shall have the power to
adjourn the meeting from time to time for good cause to a date that
is not more than thirty days after the date of the original
meeting. Further notice of the adjourned meeting need not be given
if the time and place thereof are announced at the meeting at which
the adjournment is taken. At any adjourned meeting at which a
quorum is present in person or represented by proxy, any business
may be transacted that might have been transacted at the meeting as
originally called. If the adjournment is for more than thirty
days, or if, after the adjournment, a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote thereat.
Section 9. Voting.
(a) At any meeting of the stockholders, every stockholder
having the right to vote shall be entitled to vote in person or by
proxy. Except as otherwise provided by law or the Certificate of
Incorporation, each stockholder of record shall be entitled to one
vote for each share of capital stock registered in his name on the
books of the Corporation.
(b) All elections shall be determined by a plurality vote,
and, except as otherwise provided by law or the Certificate of
Incorporation, all other matters shall be determined by a vote of
a majority of the shares present in person or represented by proxy
and voting on such other matters.
Section 10. Action by Consent. Any action required or
permitted by law or the Certificate of Incorporation to be taken at
any meeting of stockholders may be taken without a meeting, without
prior notice if a written consent, setting forth the action so
taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present or represented by proxy and
voted. Such written consent shall be filed with the minutes of the
meetings of stockholders. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented
in writing thereto.
ARTICLE III
Directors
Section 1. General Powers, Number, and Tenure. The business
of the Corporation shall be managed by its Board of Directors,
which may exercise all powers of the Corporation and perform all
lawful acts that are not by law, the Certificate of Incorporation,
or these By-Laws directed or required to be exercised or performed
by the stockholders. The number of directors shall be determined
by the Board of Directors; if no such determination is made, the
number of directors shall be one. The directors shall be elected
at the annual meeting of the stockholders, except as provided in
Section 2 of this Article, and each director elected shall hold
office until the next annual meeting and until his successor is
elected and shall qualify. Directors need not be stockholders.
Section 2. Vacancies. If any vacancies occur in the Board of
Directors, or if any new directorships are created, they may be
filled by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director. Each director so
chosen shall hold office until the next annual meeting of
stockholders and until his successor is duly elected and shall
qualify. If there are no directors in office, any officer or
stockholder may call a special meeting of stockholders in
accordance with the provisions of the Certificate of Incorporation
or these By-Laws, at which meeting such vacancies shall be filled.
Section 3. Removal or Resignation.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
(b) Any director may resign at any time by giving written
notice to the Board of Directors, the Chairman of the Board, if
any, or the President or Secretary of the Corporation. Unless
otherwise specified in such written notice, a resignation shall
take effect on delivery thereof to the Board of Directors or the
designated officer. It shall not be necessary for a resignation to
be accepted before it becomes effective.
Section 4. Place of Meetings. The Board of Directors may
hold meetings, both regular and special, either within or without
the State of Delaware.
Section 5. Annual Meeting. The annual meeting of each newly
elected Board of Directors shall be held immediately following the
annual meeting of stockholders, and no notice of such meeting shall
be necessary to the newly elected directors in order to constitute
the meeting legally, provided a quorum shall be present.
Section 6. Regular Meetings. Additional regular meetings of
the Board of Directors may be held without notice of such time and
place as may be determined from time to time by the Board of
Directors.
Section 7. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board, the
President, or by two or more directors on at least two days' notice
to each director, if such notice is delivered personally or sent by
telegram, or on at least three days' notice if sent by mail.
Special meetings shall be called by the Chairman of the Board,
President, Secretary, or two or more directors in like manner and
on like notice on the written request of one-half or more of the
number of directors then in office. Any such notice need not state
the purpose or purposes of such meeting, except as provided in
Article XI.
Section 8. Quorum and Adjournment. At all meetings of the
Board of Directors, a majority of the directors then in office
shall constitute a quorum for the transaction of business, and the
act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any
meeting of the Board of Directors, the directors present may
adjourn the meeting from time to time, without notice other than
announcement at the meeting at which the adjournment is taken,
until a quorum shall be present.
Section 9. Compensation. Directors shall be entitled to such
compensation for their services as directors and to such
reimbursement for any reasonable expenses incurred in attending
directors' meetings as may from time to time be fixed by the Board
of Directors. The compensation of directors may be on such basis
as is determined by the Board of Directors. Any director may waive
compensation for any meeting. Any director receiving compensation
under these provisions shall not be barred from serving the
corporation in any other capacity and receiving compensation and
reimbursement for reasonable expenses for such other services.
Section 10. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting, and without prior notice, if a written
consent to such action is signed by all members of the Board of
Directors and such written consent is filed with the minutes of its
proceedings.
Section 11. Meetings by Telephone or Similar Communications
Equipment. The Board of Directors may participate in a meeting by
conference telephone or similar communications equipment by means
of which all directors participating in the meeting can hear each
other, and participation in such a meeting shall constitute
presence in person by any such director at such meeting.
ARTICLE IV
Committees
Section 1. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the whole Board, may appoint an
Executive Committee consisting of one or more directors, one of
whom shall be designated as chairman of the Executive Committee.
Each member of the Executive Committee shall continue as a member
thereof until the expiration of his term as a director or his
earlier resignation, unless sooner removed as a member or as a
director.
Section 2. Powers. The Executive Committee shall have and
may exercise those rights, powers, and authority of the Board of
Directors as may from time to time be granted to it by the Board
of Directors to the extent permitted by law, and may authorize the
seal of the Corporation to be affixed to all papers that may
require it.
Section 3. Procedure and Meetings. The Executive Committee
shall fix its own rules of procedure and shall meet at such times
and at such place or places as may be provided by such rules or as
the members of the Executive Committee shall fix. The Executive
Committee shall keep regular minutes of its meetings, which it
shall deliver to the Board of Directors from time to time. The
Chairman of the Executive Committee or, in his absence, a member of
the Executive Committee chosen by a majority of the members
present, shall preside at meetings of the Executive Committee; and
another member chosen by the Executive Committee shall act as
Secretary of the Executive Committee.
Section 4. Quorum. A majority of the Executive Committee
shall constitute a quorum for the transaction of business, and the
affirmative vote of a majority of the members present at any
meeting at which there is a quorum shall be required for any action
of the Executive Committee; provided, however, that when an
Executive Committee of one member is authorized under the
provisions of Section 1 of this Article, that one member shall
constitute a quorum.
Section 5. Other Committees. The Board of Directors, by
resolutions adopted by a majority of the whole Board, may appoint
such other committee or committees as it shall deem advisable and
with such rights, power, and authority as it shall prescribe. Each
such committee shall consist of one or more directors.
Section 6. Committee Changes. The Board of Directors shall
have the power at any time to fill vacancies in, to change the
membership of, and to discharge any committee.
Section 7. Compensation. Members of any committee shall be
entitled to such compensation for their services as members of the
committee and to such reimbursement for any reasonable expenses
incurred in attending committee meetings as may from time to time
be fixed by the Board of Directors. Any member may waive
compensation for any meeting. Any committee member receiving
compensation under these provisions shall not be barred from
serving the Corporation in any other capacity and from receiving
compensation and reimbursement of reasonable expenses for such
other services.
Section 8. Action by Consent. Any action required or
permitted to be taken at any meeting of any committee of the Board
of Directors may be taken without a meeting if a written consent to
such action is signed by all members of the committee and such
written consent is filed with the minutes of its proceedings.
Section 9. Meetings by Telephone or Similar Communications
Equipment. The members of any committee designated by the Board of
Directors may participate in a meeting of such committee by
conference telephone or similar communications equipment by means
of which all persons participating in such meeting can hear each
other, and participation in such a meeting shall constitute
presence in person by any such committee member at such meeting.
ARTICLE V
Notices
Section 1. Form and Delivery. Whenever a provision of any
law, the Certificate of Incorporation, or these By-Laws requires
that notice be given to any director or stockholder, it shall not
be construed to require personal notice unless so specifically
provided, but such notice may be given in writing, by mail
addressed to the address of the director or stockholder as it
appears on the records of the Corporation, with postage prepaid.
These notices shall be deemed to be given when they are deposited
in the United States mail. Notice to a director may also be given
personally or by telephone or by telegram sent to his address as it
appears on the records of the Corporation.
Section 2. Waiver. Whenever any notice is required to be
given under the provisions of any law, the Certificate of
Incorporation, or these By-Laws, a written waiver thereof signed by
the person entitled to said notice, whether before or after the
time stated therein, shall be deemed to be equivalent to such
notice. In addition, any stockholder who attends a meeting of
stockholders in person or is represented at such meeting by proxy;
without protesting at the commencement of the meeting the lack of
notice thereof to him, or any director who attends a meeting of the
Board of Directors without protesting at the commencement of the
meeting of the lack of notice, shall be conclusively deemed to have
waived notice of such meeting.
ARTICLE VI
Officers
Section 1. Designations. The officers of the Corporation
shall be chosen by the Board of Directors. The Board of Directors
may choose a Chairman of the Board, a President, a Vice President
or Vice Presidents, a Secretary, a Treasurer, one or more Assistant
Secretaries and/or Assistant Treasurers, and other officers and
agents that it shall deem necessary or appropriate. All officers
of the Corporation shall exercise the powers and perform the duties
that shall from time to time be determined by the Board of
Directors. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these By-Laws provide
otherwise.
Section 2. Term of, and Removal From, Office. At its first
regular meeting after each annual meeting of stockholders, the
Board of Directors shall choose a President, a Secretary, and a
Treasurer. It may also choose a Chairman of the Board, a Vice
President or Vice Presidents, one or more Assistant Secretaries
and/or Assistant Treasurers, and such other officers and agents as
it shall deem necessary or appropriate. Each officer of the
Corporation shall hold office until his successor is chosen and
shall qualify. Any officer elected or appointed by the Board of
Directors may be removed, with or without cause, at any time by the
affirmative vote of a majority of the directors then in office.
Removal from office, however, shall not prejudice the contract
rights, if any, of the person removed. Any vacancy occurring in
any office of the Corporation may be filled for the unexpired
portion of the term by the Board of Directors.
Section 3. Compensation. The salaries of all officers of the
Corporation shall be fixed from time to time by the Board of
Directors, and no officer shall be prevented from receiving a
salary because he is also a director of the Corporation.
Section 4. The Chairman of the Board. The Chairman of the
Board, if any, shall be an officer of the Corporation and, subject
to the direction of the Board of Directors, shall perform such
executive, supervisory, and management functions and duties as may
be assigned to him from time to time by the Board of Directors. He
shall, if present, preside at all meetings of stockholders and of
the Board of Directors.
Section 5. The President.
(a) The President shall be the chief executive officer of the
Corporation and, subject to the direction of the Board of
Directors, shall have general charge of the business, affairs, and
property of the Corporation and general supervision over its other
officers and agents. In general, he shall perform all duties
incident to the office of President and shall see that all orders
and resolutions of the Board of Directors are carried into effect.
(b) Unless otherwise prescribed by the Board of Directors,
the President shall have full power and authority to attend, act,
and vote on behalf of the Corporation at any meeting of the
security holders of other corporations in which the Corporation may
hold securities. At any such meeting, the President shall possess
and may exercise any and all rights and powers incident to the
ownership of such securities that the Corporation might have
possessed and exercised if it had been present. The Board of
Directors may from time to time confer like powers upon any other
person or persons.
Section 6. The Vice President. The Vice President, if any,
or in the event there be more than one, the Vice Presidents in the
order designated, or in the absence of any designation, in the
order of their election, shall, in the absence of the President or
in the event of his disability, perform the duties and exercise the
powers of the President and shall generally assist the President
and perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors.
Section 7. The Secretary. The Secretary shall attend all
meetings of the Board of Directors and the stockholders and record
all votes and the proceedings of the meetings in a book to be kept
for that purpose. He shall perform like duties for the Executive
Committee or other committees, if required. He shall give, or
cause to be given, notice of all meetings of stockholders and
special meetings of the Board of Directors, and shall perform such
other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, or the President, under whose
supervision he shall act. He shall have custody of the seal of the
Corporation, and he, or an Assistant Secretary, shall have
authority to affix it to any instrument requiring it, and, when so
affixed, the seal may be attested by his signature or by the
signature of the Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing thereof by his
signature.
Section 8. The Assistant Secretary. The Assistant Secretary,
if any, or in the event there be more than one, the Assistant
Secretaries in the order designated, or in the absence of any
designation, in the order of their election, shall, in the absence
of the Secretary or in the event of his disability, perform the
duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 9. The Treasurer. The Treasurer shall have custody
of the corporate funds and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to
the credit of the Corporation in such depositories as may from time
to time be designated by the Board of Directors. He shall disburse
the funds of the Corporation in accord with the orders of the Board
of Directors, taking proper vouchers for such disbursements, and
shall render to the Chairman of the Board, if any, the President,
and the Board of Directors, whenever they may require it or at
regular meetings of the Board, an account of all his transactions
as Treasurer and of the financial condition of the Corporation.
Section 10. The Assistant Treasurer. The Assistant
Treasurer, if any, or in the event there shall be more than one,
the Assistant Treasurers in the order designated, or in the absence
of any designation, in the order of their election, shall, in the
absence of the Treasurer or in the event of his disability, perform
such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
ARTICLE VII
Indemnification
Reference is made to Section 145 and any other relevant
provisions of the General Corporation Law of the State of Delaware.
Particular reference is made to the class of persons, hereinafter
called "Indemnitees", who may be indemnified by a Delaware
corporation pursuant to the provisions of such Section 145, namely,
any person, or the heirs, executors, or administrators of such
person, who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, by reason of the fact that such person is or was a
director, officer, employee, or agent of such corporation or is or
was serving at the request of such corporation as a director,
officer, employee, or agent of such corporation or is or was
serving at the request of such corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise. The Corporation shall, and is
hereby obligated to, indemnify the Indemnitees, and each of them,
in each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory
provisions. The Corporation shall indemnify the Indemnitees, and
each of them, in each and every situation where, under the
aforesaid statutory provisions, the Corporation is not obligated,
but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such
indemnification with respect to any situation covered under this
sentence, (i) the Corporation shall promptly make or cause to be
made, by any of the methods referred to in Subsection (d) of such
Section 145, a determination as to whether each Indemnitee acted in
good faith and in a manner he reasonably believed to be in, or not
opposed to the best interests of the Corporation, and, in the case
of any criminal action or proceeding, had no reasonable cause to
believe that his conduct was unlawful, and (ii) that no such
indemnification shall be made unless it is determined that such
Indemnitee acted in good faith and in a manner he reasonably
believed to be in, or not opposed to the best interests of the
Corporation, and, in the case of any criminal action or proceeding,
had no reasonable cause to believe that his conduct was unlawful.
ARTICLE VIII
Affiliated Transactions and Interested Directors
Section 1. Affiliated Transactions. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable
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 that authorizes the contract or
transaction or solely because his or their votes are counted for
such purpose if:
(a) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes 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
(b) The material facts as to his 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 approved in good faith by the vote of
the stockholders; or
(c) 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.
Section 2. Determining Quorum. 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 the contract or transaction.
ARTICLE IX
Stock Certificates
Section 1. Form and Signatures.
(a) Every holder of stock of the Corporation shall be
entitled to a certificate stating the number and class, and series,
if any, of shares owned by him, signed by the Chairman of the
Board, if any, or the President and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, and bearing the seal of the Corporation. The
signatures and the seal may be facsimiles. A certificate may be
signed, manually or by facsimile, by a transfer agent or registrar
other than the Corporation or its employee. In case any officer
who has signed, or whose facsimile signature was placed on, a
certificate shall have ceased to be such officer before the
certificate is issued, it may nevertheless be issued by the
Corporation with the same effect as if he were such officer at the
date of its issue.
(b) All stock certificates representing shares of capital
stock that are subject to restrictions on transfer or to other
restrictions may have imprinted thereon any notation to that effect
determined by the Board of Directors.
Section 2. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, the
Corporation or its transfer agent shall issue a new certificate to
the person entitled thereto, cancel the old certificate, and record
the transaction upon the books of the Corporation.
Section 3. Registered Stockholders.
(a) Except as otherwise provided by law, the Corporation
shall be entitled to recognize the exclusive right of a person who
is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions and to vote or
consent as such owner, and to hold liable for calls and assessments
any person who is registered on its books as the owner of shares of
its capital stock. The Corporation shall not be bound to recognize
any equitable or legal claim to, or interest in, such shares on the
part of any other person.
(b) If a stockholder desires that notices and/or dividends
shall be sent to a name or address other than the name or address
appearing an the stock ledger maintained by the Corporation, or its
transfer agent or registrar, if any, the stockholder shall have the
duty to notify the Corporation, or its transfer agent or registrar,
if any, in writing of his desire and specify the alternate name or
address to be used.
Section 4. Record Date. In order that the Corporation may
determine the stockholders of record who are entitled to receive
notice or to vote at, any meeting of stockholders or any
adjournment thereof or to express consent to corporate action in
writing without a meeting, to receive payment of any dividend or
other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion, or exchange of stock
or for the purpose of any lawful action, the Board of Directors
may, in advance, fix a date as the record date for any such
determination. Such date shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty
days prior to the date of any other action. A determination of
stockholders of record entitled to notice of, or to vote at, a
meeting of stockholders shall apply to any adjournment of the
meeting taken pursuant to Section 8 of Article 11; provided,
however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 5. Lost, Stolen, or Destroyed Certificates. The
Board of Directors may direct that a new certificate be issued to
replace any certificate theretofore issued by the Corporation that,
it is claimed, has been lost, stolen, or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate
to be lost, stolen, or destroyed. When authorizing the issue of a
new certificate, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner
of the lost, stolen, or destroyed certificate, or his legal
representative, to advertise the same in such manner as it shall
require, and/or to give the Corporation a bond in such sum, or
other security in such form, as it may direct as indemnity against
any claims that may be made against the Corporation with respect to
the certificate claimed to have been lost, stolen, or destroyed.
ARTICLE X
General Provisions
Section 1. Dividends. Subject to the provisions of law and
the Certificate of Incorporation, dividends upon the outstanding
capital stock of the Corporation may be declared by the Board of
Directors at any regular or special meeting, and may be paid in
cash, in property, or in shares of the Corporation's capital stock.
Section 2. Reserves. The Board of Directors shall have full
power, subject to the provisions of law and the Certificate of
Incorporation, to determine whether any, and, if so, what part, of
the funds legally available for the payment of dividends shall be
declared as dividends and paid to the stockholders of the
Corporation. The Board of Directors, in its sole discretion, may
fix a sum that may be set aside or reserved over and above the
paid-in capital of the Corporation as a reserve for any proper
purpose, and may, from time to time, increase, diminish, or vary
such amount.
Section 3. Fiscal Year. Except as from time to time
otherwise provided by the Board of Directors, the fiscal year of
the Corporation shall end on December 31 in each year.
Section 4. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its incorporation,
and the words "Corporate Seal" and "Delaware".
ARTICLE XI
Amendments
The Board of Directors shall have the power to alter and
repeal these By-Laws and to adopt new By-Laws by an affirmative
vote of a majority of the whole Board, provided that notice of the
proposal to alter or repeal these By-Laws or to adopt new By-Laws
must be included in the notice of the meeting of the Board of
Directors at which such action takes place.
EXHIBIT B-1
STOCK PURCHASE AGREEMENT
FILED UNDER CONFIDENTIAL TREATMENT REQUEST
Exhibit F
June 6, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Re:File No. 70-8837: EUA Energy Investment
Corporation -- Investment in a Solid and Liquid
Materials Separation Technologies Company
Ladies and Gentlemen:
As counsel for EUA Energy Investment Corporation ("EEIC"),
we are furnishing this opinion letter to be used in connection
with that certain application-declaration on Form U-1 dated
April 8, 1996, as amended by Amendment No. 1 dated May 6, 1996
and Amendment No. 2 dated June 6, 1996, and filed by EEIC with
the United States Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of
1935, File No. 70-8837 (the "Application-Declaration"), with
respect to EEIC's investment in a solid and liquid materials
separation technologies company, as more fully described in the
Application-Declaration (the "Proposed Transactions").
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 EEIC;
(b) EEIC 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 EEIC or of any of Eastern Utilities Associates, a
Massachusetts voluntary association ("EUA"), 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"), EUA Cogenex Corporation ("Cogenex"), Northeast Energy
Management, Inc. ("NEM"), EUA Citizens Conservation Services,
Inc. ("CCS"), EUA Highland Corporation ("Highland"), EUA Cogenex-
Canada Inc. ("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 EEIC), 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 EEIC, EUA, Cogenex, 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,
McDERMOTT, WILL & EMERY
EXHIBIT G-1
ANALYSIS OF PROPOSED PROJECT FINANCING
FILED UNDER FINANCIAL TREATMENT REQUEST
Exhibit H
(PROPOSED FORM OF NOTICE)
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35- , 70-8837)
EUA Energy Investment Corporation ("EEIC"), a wholly-owned
subsidiary of Eastern Utilities Associates, a registered holding
company, has filed a declaration with this Commission pursuant to
Sections 6(a), 7, 9(a) and 10 of the Public Utility Holding
Company Act of 1935 (the "Act") and Rules 45(a) and 54
promulgated thereunder.
EEIC has requested Commission approval to the extent
required under the Act for EEIC: (i) to acquire up to 9.9% of
the voting and approximtely 10.1% of the non-voting common stock
of Separation Technologies, Inc. ("STI"), a Delaware corporation
which is engaged in the research, development, design, sale,
installation, construction and servicing of solid and liquid
materials separation systems and facilities including, without
limitation, a system for economically separating unburned carbon
from coal (or fly) ash produced by utility generating plants; and
(ii) to make available up to an aggregate of $15 million as
project financing for the installation and construction of
certain fly ash separation projects designed, sold, constructed
and/or installed by STI during the eighteen month period
immediately following EEIC's acquisition of the STI common stock,
subject to EEIC's right of first negotiation with respect to such
financings.
The Commission has previously authorized a non-utility
subsidiary of a registered public utility holding company system
to acquire capital stock of STI and to enter into financing
arrangements of the types described in this application-
declaration in an aggregate amount of up to $10 million. (See,
New England Electric System, HCAR No. 26277, File No. 70-8475.)
NOTICE IS FURTHER GIVEN that any interested person may, not
later than _________, 1996, request in writing that a hearing be
held on such matter, stating the nature of his interest, the
reasons for such request, and the issues of fact or law raised by
said application/declaration which he desires to controvert; or
he may request that he be notified if the Commission should order
a hearing thereon. Any such request should be addressed:
Secretary, Securities and Exchange Commission, 450 5th Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. A copy of such
request should be served personally or by mail upon the
applicant/declarant at the above-stated address and proof of
service (by affidavit or, in case of an attorney at law, by
certificate) should be filed with the request. At any time after
said date the application/declaration, as filed or as it may be
amended, may be granted and permitted to become effective as
provided in Rule 23 of the General Rules and Regulations
promulgated under the Act, or the Commission may grant exemption
from such rules as provided in Rules 20(a) and 100 thereof or
take such other action as it may deem appropriate. Persons who
request a hearing or advice as to whether a hearing is ordered
will receive any notices and orders issued in this matter,
including the date of the hearing (if ordered) and any
postponements thereof.
For the Commission, by the Division of Corporate Regulation,
pursuant to delegated authority.
Secretary
