File No. 70-8617
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 5
to
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
PARTICIPATION BY
EUA ENERGY INVESTMENT CORPORATION AND ITS SUBSIDIARIES
IN A JOINT VENTURE TO DEVELOP AND COMMERCIALIZE
A BIOMASS-FIRED COMBUSTION TURBINE POWER GENERATION FACILITY
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EUA ENERGY INVESTMENT CORPORATION
P.O. Box 2333, Boston, Massachusetts 02107
EUA BIOTEN, INC.
750 West Center Street, West Bridgewater, MA 02379
(Names of companies filing this statement
and addresses of principal executive offices)
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 Post-Effective Amendment No. 5 ("Post-Effective Amendment #5") amends
and restates, in its entirety, Post-Effective Amendment No. 4 filed by EUA
Energy Investment Corporation ("EEIC") and EUA BIOTEN, Inc. ("EUA BIOTEN"),
dated November 24, 1997, and supplements and amends the Application-
Declaration on Form U-1 filed by EEIC on April 27, 1995, as subsequently
amended by Amendment No. 1 dated May 17, 1995, Amendment No. 2 dated June 19,
1995, Amendment No. 3 dated June 21, 1995, Post-Effective Amendment No. 1
dated October 4, 1996, Post-Effective Amendment No. 2 dated November 8, 1996
and Post-Effective Amendment No. 3 dated November 14, 1996 (the "Application-
Declaration"). EUA BIOTEN, a Massachusetts corporation and a wholly-owned
subsidiary of EEIC, hereby joins as an additional Applicant in this
Application-Declaration. EEIC and EUA BIOTEN are sometimes referred to
hereinafter each as an "Applicant" and collectively as the "Applicants".
ITEM 1. Description of Proposed Transactions.
I. Introduction.
A. Prior Authorizations. By order dated June 21, 1995 (Release
No. 35-26314), the Commission authorized (i) EEIC to form EUA BIOTEN, and
(ii) upon its formation, EUA BIOTEN to participate as one of two general
partners in BIOTEN Partner ship, a then to-be-formed partnership for the
development and commercialization of biomass-fired combustion turbine power
generation facilities and products and/or services offered in connection with
such facilities, including the manufacture, fabrication, marketing, sale and
delivery of such facilities (collectively, "Business Opportunities").
Additionally, the Commission authorized EEIC (a) to make up to $3.907 million
of capital contributions to BIOTEN Partnership upon its formation, $1.907
million of which would be disbursed in connection with the testing and
development of a commercial prototype plant, and (b) to provide BIOTEN
Partnership, from time to time through December 31, 1998, with (1) a working
capital line of credit of up to $3 million, at an annual interest rate equal
to the prime lending rate as announced by The First National Bank of Boston,
N.A. ("Prime") plus 6% before EEIC's receipt of payment in full of EEIC's
"Priority Return", and Prime plus 2% thereafter, but in no event to exceed
16% per annum, and (2) an additional contribution, at EEIC's sole discretion,
of $2 million. EEIC (on behalf of the then to-be-formed EUA BIOTEN)
committed to own at all times no more than a 9.9% voting interest in BIOTEN
Partnership. By order dated November 14, 1996 (Release No. 35-26604), the
Commission authorized EEIC to increase the working capital line of credit it
provides to BIOTEN Partnership from $3 million to $6 million.
B. Background. On June 26, 1995, pursuant to a 1995 Agreement
of General Partnership (the "Partnership Agreement"), EUA BIOTEN and BIOTEN
LLC, a Tennessee limited liability company ("BIOTEN LLC"), formed BIOTEN
Partnership, a Tennessee general partnership ("BIOTEN Partnership").
Pursuant to the terms of the Partnership Agreement and based upon additional
contributions made and increases in the working capital provided to BIOTEN
Partnership by the Applicants, all as authorized by t he Commission orders
described in Paragraph I.A above, EUA BIOTEN currently owns a 49.5% profits
interest and a 9.9% voting interest in BIOTEN Partnership.
II. Overview of Proposed Transactions.
A. Initial Business Opportunity in India. The Applicants
propose to develop a Business Opportunity in India by designing,
constructing, installing, operating and maintaining two biomass-fired
combustion turbine power generation facilities using the BIOTEN Technology,
each comprising a combustion turbine offset combustor, electric generator and
other associated equipment (each such facility, a "BIOTEN Unit"), as provided
in that certain draft Memorandum of Understanding dated January __, 1998 (the
"Memorandum of Understanding") by and between BIOTEN Partnership and a Co-
operative Society located in the State of Maharashtra, India and registered
with the Registrar of Co-operatives, Government of Maharashtra ("First
Customer"). The Memorandum of Understanding is filed under request for
confidential treatment as Exhibit B-4 hereto. Each BIOTEN Unit to be
purchased by First Customer in accordance with the terms of the Memorandum of
Understanding would be rated 6.0 MWe, would be fueled by First Customer's
available biomass in the form of bagasse (a sugar cane by-product), and would
be completely installed, tested, demonstrated and purchased on a turnkey,
fixed price basis for the price set forth in the Memorandum of Understanding,
such purchase price to be paid in installments based upon the completion of
agreed upon milestones and subject to upwards and downwards adjustments based
upon actual performance deviations from commercial performance guarantees,
all as provided in the Memorandum of Understanding. Except as described
below, First Customer will be responsible for obtaining financing for the
entire cost of each BIOTEN Unit.
The first BIOTEN Unit would serve as a demonstration facility (the
"Demo Unit") and the working capital required for its construction would be
financed by BIOTEN Partnership and secured by a promissory note from First
Customer in favor of BIOTEN Partnership, the value of which promissory note
would increase at specified milestones to simulate the making of progress
payments that are financed by the promissory note (the "First Customer
Promissory Note"). Title to the Demo Unit would be transferred to First
Customer upon completion of the Demo Unit. BIOTEN Partnership would operate
and maintain the Demo Unit on behalf of First Customer, pursuant to a
separate operation and maintenance agreement, during a demonstration period
of up t o twelve months following the completion of the Demo Unit and until
the Demo Unit satisfies agreed upon performance criteria. First Customer
shall reimburse BIOTEN Partnership for the costs of operating the Demo Unit
during such Demonstration Period . BIOTEN Partnership expects that
construction of the Demo Unit will be completed and acceptance testing
performed within twenty-four months following the execution and commencement
of funding under a definitive construction agreement. Subject to t he Demo
Unit meeting the minimum agreed upon performance criteria, work on the
remaining BIOTEN Unit would commence in May, 2000 and is expected to be
completed within twelve months. Title to the second BIOTEN Unit would be
transferred to First Customer upon full payment of the purchase price for
such unit. Upon First Customer's acceptance of the Demo Unit, First Customer
would assist BIOTEN Partnership's promotion of the BIOTEN Technology
worldwide by permitting site visits and participating i n other such
activities as appropriate. In the event the Demo Unit does not satisfy the
agreed upon minimum performance criteria, BIOTEN Partnership would be
obligated to remove the Demo Unit at its expense, First Customer would have
no obligation to purchase either BIOTEN Unit, and First Customer's
obligations under the First Customer Promissory Note would be cancelled.
BIOTEN Partnership would itself or through one or more to-be-formed
incorporated or unincorporated special purpose joint ventures (each, a "Joint
Venture") with nonassociate local stock corporations, co-operatives or other
entities or associations, contract with First Customer and other purchasers
of BIOTEN Units to provide engineering, procurement and construction
services, sales, installation and long term operation and maintenance
services, equipment and training support, and promotion and marketing
services in connection with the BIOTEN Units. BIOTEN Partnership and/or the
Joint Ventures would contract with local entities to manufacture equipment
(subject to appropriate licensing arrangements with respect to the BIOTEN
Technology) and to provide sales, construction, installation, operation and
maintenance and other services to First Customer and other purchasers of the
BIOTEN Units. For the reasons set forth in Section IV below and because the
purchasers of the BIOTEN Units would retain significant and principal
responsibility in connection with the operation of the BIOTEN Units, none of
the activities or services to be provided by BIOTEN Partnership and/or the
Joint Ventures would constitute ownership or operation o f an electric
utility company within the meaning of Section 2(a)(3) of the Act. First
Customer would remain responsible, among other things, for the following in
connection with the operation and maintenance of the BIOTEN Units purchased
by it: (i) obtaining and maintaining all necessary permits and approvals
required by cooperative sugar mills in Maharashtra State (including, without
limitation, Vasantdata Sugar Institute-Pune and National Federation of
Cooperative Sugar Mills approvals, "Tender Offer" approval by the Sugar
Commission of Cooperative Mills, appropriate licenses to generate power from
the Industry Ministry, No Objection Certificates with respect to compliance
with Maharashtra State emissions standards, water consumption an d land
use/zoning changes, and approval of foreign exchange transactions by the
Foreign Investment Promotion Board), (ii) providing bagasse or other fuel
sufficient to satisfy the agreed upon performance criteria, (iii) maintaining
a water supply sufficient for the operation of the First Customer BIOTEN
Units, (iv) disposing of ash by-product, (v) paying taxes, (vi) maintaining
and paying the premiums for insurance at agreed upon levels, (vii) scheduling
maintenance, (viii) scheduling load and output requirements, and (ix) selling
excess electricity to private third parties and/or exporting it to the
Maharashtra State Electricity Board grid. First Customer would also be
responsible for the preparation of bid documents and participation in bidding
processes in connection with the First Customer BIOTEN Units, and would be
required to obtain financing for the second BIOTEN Unit purchased by it.
B. Development of Additional Business Opportunities. Upon
satisfactory completion of the Demo Unit and without further Commission
authorization, the Applicants propose to develop additional Business
Opportunities in India as well as in other countries throughout the world, on
terms and conditions similar to those for the First Customer BIOTEN Units,
subject to the working capital and capital contribution authorizations
requested in Section III below. Such activities may include (i ) the
financing, construction and installation of one or more demonstration
facilities on substantially the terms and conditions set forth in Section
II.A above with respect to the Demo Unit, and (ii) the provision by BIOTEN
Partnership and/or the Joint Ventures of one or more of the following
services in furtherance of such Business Opportunities, all in accordance
with the Applicants' Financial Forecast (1998 - 2002) filed under a request
for confidential treatment as Financial Statement b-3 hereto: engineering,
procurement and construction services, sales, installation and long term
operation and maintenance services, equipment and training support, and
promotion and marketing services.
III. Requests for Authorizations.
A. Capital Contributions and Working Capital Lines of Credit.
To accomplish the transactions described in Sections II.A and B above, the
Applicants seek Commission authorization, through December 31, 2002, (i) to
increase the amount of the working capital line of credit which the
Applicants are currently authorized to provide to BIOTEN Partnership pursuant
to the Commission's Order dated November 14, 1996 from "up to $6 million" by
an additional $7 million (the "Additional Loans an d/or Advances"), (ii) to
charge interest rates on such working capital line of credit, including any
Additional Loans and/or Advances made thereunder, at rates of interest not to
exceed those previously authorized pursuant to the June 21, 1995 Order, which
rates exceed the Applicants' effective cost of capital, and (iii) to make
additional capital contributions to BIOTEN Partnership in an aggregate amount
of up to $5 million, as a result of which increased capital contributions EUA
BIOTEN would increase its voting interest and profits interest in BIOTEN
Partnership to seventy-nine and eight tenths percent (79.8%) each, EUA BIOTEN
would become entitled to a $4,000,000 Priority Return (as such term is
defined in the Partnership Agreement), an d BIOTEN Partnership would become a
subsidiary of EUA BIOTEN within the meaning of Section 2(a)(8) of the Act.
B. BIOTEN Partnership Requests for Authorization. The
Applicants seek Commission authorization, through December 31, 2002, for
BIOTEN Partnership, upon becoming a subsidiary of EUA BIOTEN, to (i) provide
financing for the construction o f the Demo Unit and for such other
demonstration facilities as are contemplated by the Financial Forecast set
forth in Financial Statement b-3, within the capitalization and financing
authorizations set forth in Section III.A above; and (ii) to enter into one
or more Joint Ventures in connection with the development of Business
Opportunities. Because the Joint Ventures will be special purpose entities
formed to provide specific services in connection with BIOTEN Units in
diverse geographic settings, the Applicants request the flexibility to
negotiate provisions appropriate to each such Joint Venture without further
Commission authorization, subject to the limitations of the financing
authorizations requested in this Post-Effective Amendment #5. The Applicants
also hereby request a determination pursuant to Section 13(b) of the Act that
transactions among BIOTEN Partnership and the Joint Ventures be exempt from
regulation under the Act for the reasons set forth below.
C. Provision of Services by Other System Companies. The
Applicants seek Commission authorization, through December 31, 2002, for each
of the Applicants and EUA Service Corporation (a non-utility company
subsidiary of Eastern Utilities Associates), to provide training and
supervisory support, marketing, administrative, financial, accounting and
other services to BIOTEN Partnership and the Joint Ventures in connection
with the Business Opportunities; provided, however, that such services as are
rendered by employees of the EUA System other than BIOTEN Partnership
employees shall be provided at cost in accordance with the provisions of
Rules 90 and 91.
IV. Analysis.
For the reasons set forth in paragraphs IV.A through IV.C below, the
Applicants believe that the transactions proposed in this Post-Effective
Amendment #5 should be authorized.
A. By orders dated June 21, 1995 (Release No. 35-26314) and
November 14, 1996 (Release No. 35-26604), EEIC was authorized, through its
nonutility subsidiary, EUA BIOTEN, and indirectly through BIOTEN Partnership,
to develop and commercialize technology relating to biomass-fired combustion
turbine power generation facilities and related products and services. The
November 14, 1996 order states BIOTEN Partnership's anticipation of
"significant market opportunities for small biomass plants within the United
States to provide an economic means to dispose sawdust, and overseas to
provide an inexpensive source of electricity where fossil fuels are expensive
or unavailable." The Applicants believe that the Business Opportunities are
consistent with, and in furtherance of, the purposes set forth in Section
1201 of Title XII ("Renewable Energy") of the Energy Policy Act of 1992.
B. Section 13(b) provides that the Commission may exempt,
conditionally or unconditionally, transactions pursuant to which a company
undertakes to perform services or construction work for, or sell goods to,
any associate company thereof which does not derive, directly or indirectly,
any material part of its income from sources within the United States and
which is not a public utility company operating within the United States.
Each of the proposed Joint Ventures will be formed with the specific purpose
of providing local services to one or more facilities developed by BIOTEN
Partnership in foreign countries and, as such, will derive of all its income
(except, possibly, de minimis interest income from bank accounts located
within the United States) from sources outside the United States.
Furthermore, by virtue of their foreign locations, none of the proposed
facilities will be public utility companies operating within the United
States.
C. Because the proposed activities and services of BIOTEN
Partnership and the Joint Ventures will not constitute ownership or operation
of an electric utility company, an exempt wholesale generator or a foreign
utility company and will b e functionally related within the meaning of the
Act, the proposed activities and services should not be regulated activity.
Section 2(a)(3) of the Act defines an "electric utility company" as "any
company which owns or operates facilities for the generation, transmission or
distribution of electric energy for sale, other than sale to tenants or
employees of the company operating such facilities for their own use and not
for resale." Although First Customer has expressed its desire to resell a
portion of the electric energy to be generated by the First Customer BIOTEN
Units, neither BIOTEN Partnership nor the to-be-formed Joint Ventures will
maintain an ownership interest in any BIOTEN Unit (other than BIOTEN
Partnership's initial ownership interest in the Demo Unit, which interest
shall be transferred to First Customer upon completion of the Demo Unit and
which transfer shall precede any resale of electricity to be generated by the
Demo Unit). Additionally, none of BIOTEN Partnership nor any Joint Venture
will have full operating responsibility for any foreign BIOTEN Unit (See the
third paragraph of Section II.A above for a list of the operation
responsibilities which are to be reserved to First Customer; similar
reservations will be made for future purchasers of BIOTEN Units). In
accordance with the reasoning set forth in the Commission's No Action letters
under Section 2(a)(3) of the Act (see, e.g., Kenetech Windpower, Inc., April
10, 1994; Ebasco Services, Inc., August 17, 1982; Colstrip Energy Limited
Partnership, December 7, 1989; and University Technical Services, Inc. and
JWP Maintenance and Services, Inc., November 22, 1994), because BIOTEN
Partnership and the Joint Ventures will not have full operational
responsibility for the foreign BIOTEN Units, their activities should not be
subject to regulation pursuant to Section 2(a)(3) of the Act.
V. Quarterly Reports to be filed with the Commission.
EEIC will file quarterly reports with the Commission within ninety
(90) days following the end of each calendar quarter. These reports will
include the following information:
(1) A description of BIOTEN Partnership's activities;
(2) A statement of the amount of funds invested and open account
advances made by EEIC in and to BIOTEN Partnership during the
quarter and cumulative to date;
(3) A description of the services provided by the Applicants and
EUA Service Corporation if any, during the quarter and the
type and number of personnel assigned by EUA Service to
achieve the reported activities;
(4) Financial statements including a balance sheet of BIOTEN
Partnership as of the quarterly reporting date, an income
statement for the quarter reporting, and a statement of cash
flows.
Additionally, the Applicants agree to cause each of BIOTEN
Partnership and the to-be-formed Joint Ventures, if any, to make their
respective books and records available for inspection in the United States by
the Commission.
VI. EWGs and FUCOs.
None of the Applicants, BIOTEN Partnership, nor any subsidiary
thereof 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. The Applicants, for
themselves and their subsidiaries, will not acquire any such interest or
right without first obtaining any necessary Commission authorization. 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.
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 this Post-Effective Amendment #5 are estimated as follows:
EUA System Expenses * $
Legal Fees * $
TOTAL * $
* To be filed by amendment.
ITEM 3. Applicable Statutory Provisions. The sections of the Act and rules
or exemptions thereunder that the Applicants consider applicable to the
proposed transactions are set forth below:
Capital contributions, and Section 12(b) and Rule
loans and open account advances 45(a).
at interest rates greater than
the Applicants' effective cost
of capital, by the Applicants
to BIOTEN Partnership.
Acquisition by EUA BIOTEN of Sections 9(a), 10 and
additional voting and profits 12(b); Rule 45(a).
interests in BIOTEN Partnership.
Acquisition by BIOTEN Partnership Sections 6(a) and 7 and
of initial ownership interest in Rule 43(a).
Demo Unit.
Formation of Joint Ventures Section 9(a) and 10.
by BIOTEN Partnership.
Performance of services by Section 13(b); Rules
the Applicants and EUA Service 87(b)(1), 90 and 91.
Corporation for the Joint Ventures.
ITEM 4. Regulatory Approvals.
No consent or approval of any state commission or any federal
commission other than the Commission is necessary for the transactions which
are the subject of this Post-Effective Amendment #5.
ITEM 5. Procedure.
(a) In order to enable the Applicant(s) to enter into the
proposed transactions promptly, the Applicants hereby request that this Post-
Effective Amendment #5 be granted and made effective at the earliest
convenient date.
(b) It is not considered necessary that there be a recommended
decision by a hearing officer or by any other responsible office of the
Commission. The Office of Public Utility Regulation may assist in the
preparation of the decision of t he Commission, and it is believed that a
thirty (30) day waiting period between the issuance of the order of the
Commission and the day on which the order is to become effective would not be
appropriate.
ITEM 6. Exhibits and Financial Statements.
(+ Confidential treatment requested.)
The following new exhibits are hereby added:
+ Exhibit B-4 Draft Memorandum of Understanding
dated January __, 1998 by and between
BIOTEN Partnership and First Customer
(filed under confidential treatment
request dated January 9, 1998)
Exhibit H-1 Proposed Form of Notice (filed
herewith)
Financial Statements
+ b-3 Financial Forecast of BIOTEN
Partnership (1998 - 2002) (filed
under confidential treatment request
dated January 9, 1998)
ITEM 7. Information as to Environmental Effects.
The transactions described in Item 1 do not involve major federal
actions significantly affecting the quality of the human environment. No
federal agency has prepared or is preparing an environmental impact statement
with respect to the proposed transaction.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company
Act of 1935, each of the undersigned Applicants has duly caused this
statement to be signed on its behalf by the undersigned duly authorized
individual.
EUA ENERGY INVESTMENT CORPORATION
EUA BIOTEN, INC.
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Their Treasurer
Dated: January 12, 1998
EXHIBIT B-4
** FILED UNDER CONFIDENTIAL TREATMENT REQUEST **
EXHIBIT H-1
(PROPOSED FORM OF NOTICE)
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35 - , 70 - 8617)
EUA Energy Investment Corporation ("EEIC"), a wholly-owned subsidiary
of Eastern Utilities Associates, a registered holding company, and EUA
BIOTEN, Inc. ("EUA BIOTEN"), a wholly-owned subsidiary of EEIC, filed a Post-
Effective Amendment No. 5 dated January 12, 1998 ("Post-Effective Amendment
#5") with this Commission, which supplements and amends EEIC's Application-
Declaration on Form U-1 dated April 27, 1995, as amended, pursuant to
Sections 6(a), 7, 9(a), 10, 12(b) and 13(b) of the Public Utility Holding
Company Act of 1935 (the "Act") and Rules 43(a), 45(a), 87(b)(1), 90 and 91
promulgated thereunder. EEIC and EUA BIOTEN are sometimes referred to
hereinafter as the "Applicants".
The Applicants have requested Commission approval to develop Business
Opportunities in foreign countries by designing, constructing, installing,
operating and maintaining biomass-fired combustion turbine power generation
facilities using the BIOTEN Technology (each such facility, a "BIOTEN Unit").
Each of the BIOTEN Units would be purchased on a turnkey, fixed price basis,
such purchase price to be paid in installments based upon the completion of
agreed upon milestones. The first BIOTEN Unit would serve as a demonstration
facility (the "Demo Unit") and its construction would be financed by BIOTEN
Partnership. Subject to the Demo Unit satisfying agreed upon minimum
performance criteria, work on one or more additional BIOTEN Units would
commence in May 2000.
BIOTEN Partnership would itself, or through one or more to-be-formed
incorporated or unincorporated special purpose joint ventures, contract with
purchasers of BIOTEN Units to provide engineering, procurement and
construction services, sales, installation and long term operation and
maintenance services, equipment and training support, and promotion and
marketing services in connection with the BIOTEN Units. BIOTEN Partnership
and/or the Joint Ventures would contract with local entities to manufacture
equipment and to provide sales, construction, installation, operation and
maintenance and other services to purchasers of the BIOTEN Units.
To accomplish the transactions described above, the Applicants seek
Commission authorization, through December 31, 2002, to: (i) increase the
amount of the working capital line of credit which the Applicants are
currently authorized to provide to BIOTEN Partnership pursuant to the
Commission's Order dated November 14, 1996 by an additional $7 million, and
to charge interest on such line of credit at rates not to exceed those
previously authorized pursuant to the Commission's Order dated June 21, 1995,
which rates exceed the Applicants' effective cost of capital; and (ii) make
additional capital contributions to BIOTEN Partnership in an aggregate amount
of up to $5 million. The Applicants also seek Commission authorization,
through December 31, 2002, for BIOTEN Partnership, upon becoming a subsidiary
of EUA BIOTEN, to: (1) provide financing for the construction of the Demo
Unit and for such other demonstration facilities; and (2) enter into one or
more Joint Ventures in connection with the development of Business
Opportunities, all within the capitalization and financing authorizations set
forth in Post-Effective Amendment #5. Because the Joint Ventures will be
special purpose entities formed to provide specific service s in connection
with BIOTEN Units in diverse geographic settings, the Applicants request the
flexibility to negotiate provisions appropriate to each such Joint Venture
without further Commission authorization, subject to the limitations of the
financing authorizations requested in Post-Effective Amendment #5. The
Applicants also request a determination pursuant to Section 13(b) of the Act
that transactions among BIOTEN Partnership and the Joint Ventures be exempt
from regulation under the Act. Finally, the Applicants seek Commission
authorization, through December 31, 2002, for each of the Applicants and EUA
Service Corporation, a non-utility company subsidiary of Eastern Utilities
Associates, to provide training and supervisory support, marketing,
administrative, financial, accounting and other services to BIOTEN
Partnership and the Joint Ventures in connection with the Business
Opportunities; provided, however, that such services as are rendered by
employees of the EUA System other than BIOTEN Partnership employees shall be
provided at cost in accordance with the provisions of Rules 90 and 91.
NOTICE IS FURTHER GIVEN that any interested person may, not later
than February __, 1998, 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 la w raised by Post-Effective Amendment #5 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 Applicants 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
EXHIBIT b-3
** FILED UNDER CONFIDENTIAL TREATMENT REQUEST **
