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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 7, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NORTHEAST UTILITIES
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-214792
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
174 BRUSH HILL AVENUE
WEST SPRINGFIELD, MASSACHUSETTS 01089
413-785-5871
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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CHERYL W. GRISE
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
NORTHEAST UTILITIES SERVICE COMPANY
107 SELDEN STREET
BERLIN, CONNECTICUT 06037
(860) 665-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
MARTIN L. BUDD, ESQ RICHARD L. HARDEN, ESQ.
DAY, BERRY & HOWARD LLP PILLSBURY WINTHROP LLP
ONE CANTERBURY GREEN ONE BATTERY PARK PLAZA
STAMFORD, CT 06901-2047 NEW YORK, NY 10004-1490
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement and from time
to time thereafter.
If the only securities being registered on this Form are being offered
pursuant to divided or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED* PER UNIT PRICE* REGISTRATION FEE
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Senior Notes........................ $600,000,000 100% $600,000,000 $150,000
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* Estimated solely for purposes of calculating the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED FEBRUARY 7, 2001
PROSPECTUS
NORTHEAST UTILITIES
$600,000,000
SENIOR NOTES
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Northeast Utilities intends to offer from time to time in one or more
series up to $600,000,000 of debentures, notes or other types of senior
unsecured debt securities (the "Senior Notes").
When a particular series of Senior Notes is offered, we will prepare and
issue a supplement to this Prospectus setting forth the particular terms of the
offered Senior Notes (each such supplement, a "Prospectus Supplement"). You
should read this Prospectus and any Prospectus Supplement carefully before you
make any decision to invest in the Senior Notes.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS ANY OF THESE
ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We may offer the Senior Notes directly or through underwriters, agents or
dealers. Each Prospectus Supplement will provide the terms of the plan of
distribution relating to the respective series of Senior Notes. "Plan of
Distribution" below also provides more information on this topic.
The date of this Prospectus is , 2001.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the securities offered in this Prospectus. We have not included certain portions
of the Registration Statement in this Prospectus as permitted by the
Commission's rules and regulations. For further information, you should refer to
the Registration Statement and its exhibits.
We are subject to the informational requirements of the Securities Act of
l934, as amended (the "Exchange Act"), and therefore we file annual, quarterly
and current reports, proxy statements and other information with the Commission.
You may read and copy the Registration Statement (with exhibits), as well as the
reports and other information filed by the Company with the Commission, at the
Commission's public reference facilities at its principal offices at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and its
regional offices at Northwest Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, Suite 1300, New
York, New York 10048. You may obtain information on the operation of the
Commission's public reference facilities by calling 1-800-SEC-0330. Information
filed by us is also available at the Commission's Internet site at
HTTP://WWW.SEC.GOV. You can also obtain these materials at set rates from the
Public Reference Section of the Commission at its principal office at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
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You should rely only on the information incorporated by reference or
provided in this Prospectus and its supplement(s). We have not authorized anyone
to provide you with different information. You should not assume that the
information in this Prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents. This Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy the
securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
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DOCUMENTS INCORPORATED BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. Information incorporated by reference is
considered to be part of this Prospectus. Later information that we file with
the Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
until we sell all the Senior Notes:
- Annual Report on Form 10-K for the year ended December 31, 1999;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000,
June 30, 2000 and September 30, 2000; and
- Current Report on Form 8-K dated January 23, 2001.
We will provide to each person, including any beneficial owner of Senior
Notes, to whom a copy of this Prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference in this Prospectus but
not delivered with this Prospectus. We will deliver this information upon
written or oral request and provide this information at no cost to the
requester. You should direct your requests to:
Randy A. Shoop
Northeast Utilities Service Company
107 Selden Street
Berlin, Connecticut 06037
(860) 665-3258
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FORWARD-LOOKING STATEMENTS
We make statements in this Prospectus and the documents we incorporate by
reference that are considered forward-looking statements within the meaning of
the Securities Act and the Exchange Act. Sometimes these statements will contain
words such as "believes," "expects," "intends," "plans" and other similar words.
These statements are not guarantees of our future performance and are subject to
risks, uncertainties and other important factors that could cause our actual
performance or achievements to be materially different from those we project.
These risks, uncertainties and factors include:
- general economic, business and regulatory conditions;
- the impact of our proposed merger with Consolidated Edison, Inc.,
including any regulatory conditions imposed on the merger;
- energy supply and demand;
- competition;
- federal and state regulatory developments and changes in law;
- availability, terms and use of capital;
- nuclear and environmental issues;
- weather; and
- industry restructuring and cost recovery (including the potential effect
of stranded costs).
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Please see the documents we incorporate by reference
for more information on these factors. These forward-looking statements
represent our estimates and assumptions only as of the date of this Prospectus.
Except to the extent required by the securities laws, we undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result
of new information, future events or otherwise. New factors emerge from time to
time and it is not possible for us to predict all of such factors, nor can we
assess the impact of each such factor on our business or the extent to which any
factor or combination of factors may cause actual results to differ materially
from those contained in any forward-looking statements.
NORTHEAST UTILITIES
Northeast Utilities (the "Company") is a holding company for a number of
companies comprising the Northeast Utilities system and is not itself an
operating company. Through The Connecticut Light and Power Company, Public
Service Company of New Hampshire, Western Massachusetts Electric Company and
Yankee Gas Services Company (each a direct or indirect wholly owned subsidiary
of ours), we provide retail electric service to approximately 1.77 million
customers in Connecticut, New Hampshire and western Massachusetts and natural
gas to approximately 185,000 customers in Connecticut. We also have a number of
unregulated subsidiaries which provide telecommunications, energy management and
marketing and other energy related services, and we are one of the largest
competitive energy suppliers in New England.
Our principal executive offices are located at 174 Brush Hill Avenue, West
Springfield, Massachusetts 01089, telephone number (413) 785-5871. Our general
business offices are located at 107 Selden Street, Berlin, Connecticut 06037,
telephone number (860) 665-5000.
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RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for the twelve months ended
September 30, 2000 and for each of the years ended December 31, 1995 through
1999 are as follows:
TWELVE MONTHS YEAR ENDED DECEMBER 31,
ENDED ------------------------------------
SEPTEMBER 30, 2000 1999 1998 1997 1996 1995
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(UNAUDITED)
Ratio of Earnings to Fixed
Charges(1)........................... 1.97 1.50 0.55(2) 0.58(2) 1.46 2.71
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(1) For purposes of computing the ratios: (i) earnings consists of pretax income
from continuing operations, adjusted for income taxes, fixed charges,
distributed income of equity investees and minority interests; and (ii)
fixed charges consist of interest on long-term debt, amortized premiums,
discounts and capitalized expenses related to indebtedness, interest on
short-term debt, interest component of rental expenses, and other interest.
(2) There is less than a one-to-one ratio in these years. The amount of the
deficiency in years 1997 and 1998 is $123,367 and $132,970, respectively.
USE OF PROCEEDS
The net proceeds from the sale of the Senior Notes will be used to repay a
portion of our long-term debt, all or a portion of our short-term borrowings and
for other general corporate purposes, subject to applicable regulatory
requirements. If we do not use the net proceeds immediately, we may temporarily
invest them in short-term, interest-bearing obligations.
DESCRIPTION OF THE SENIOR NOTES
General. The following description sets forth certain general terms and
provisions of the Senior Notes to which any Prospectus Supplement may relate.
The description does not purport to be complete and is subject to, and qualified
in its entirety by, all of the provisions of the Senior Note Indenture (as
defined below), which is incorporated herein by reference and the form of which
is an exhibit to the Registration Statement of which this Prospectus is a part.
The particular terms of the Senior Notes offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Senior
Notes so offered will be described therein. References to section numbers under
this caption are references to the section numbers of the Senior Note Indenture.
Capitalized terms not defined herein have the meanings given to them in the
Senior Note Indenture.
The Senior Notes will be issued under an indenture (the "Senior Note
Indenture"), the form of which is an exhibit to the Registration Statement,
between us and The Bank of New York, a New York banking corporation, as trustee
(the "Senior Note Trustee").
There is no requirement under the Senior Note Indenture that future issues
of our debt securities be issued under the Senior Note Indenture, and we will be
free to use other indentures or documentation, containing provisions different
from those included in the Senior Note Indenture or applicable to one or more
issues of Senior Notes, in connection with future issues of such other debt
securities.
The Senior Note Indenture does not limit the aggregate principal amount of
the Senior Notes that may be issued thereunder. The Senior Note Indenture
provides that the Senior Notes will be issued in one or more series as notes or
debentures. The Senior Notes may be issued at various times and may have
differing maturity dates and may bear interest at differing rates. The
Prospectus Supplement applicable to each issue of Senior Notes will specify:
- the designation and aggregate principal amount of such Senior Notes;
- the date or dates on which such Senior Notes will mature;
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- the interest rate or rates, or method of calculation of such rate or
rates, on such Senior Notes, and the date from which such interest shall
accrue;
- the dates on which such interest will be payable or method by which such
dates are to be determined;
- the record dates for payments of interest;
- any redemption terms;
- the period or periods within which, the price or prices at which, and the
terms and conditions upon which, such Senior Notes may be repaid, in
whole or in part, at our option;
- the place or places, if any, in addition to or in the place of our office
or the office of the Senior Note Trustee, where the principal of (and
premium, if any) and interest, if any, on such Senior Notes shall be
payable and where notices to the Company shall be sent; and
- other specific terms applicable to such Senior Notes. (Section 301)
Unless otherwise indicated in the applicable Prospectus Supplement, the Senior
Notes will be denominated in United States currency in minimum denominations of
$1,000 and integral multiples thereof. (Section 301)
Unless otherwise indicated in the applicable Prospectus Supplement or as
below described under "Limitation on Liens" and "Sale and Leaseback
Transactions", there are no provisions in the Senior Note Indenture or the
Senior Notes that require us to redeem, or permit the Holders of the Senior
Notes to cause a redemption of, the Senior Notes or that otherwise protect the
Holders of the Senior Notes in the event that we incur substantial additional
indebtedness, whether or not in connection with a change in control of us.
Because we are a holding company that conducts all of our operations
through our subsidiaries, our ability to meet our obligations under the Senior
Notes is dependent on the earnings and cash flows of those subsidiaries and the
ability of those subsidiaries to pay dividends to us, repurchase shares of their
common stock from us or repay loans or advances made by us to them. Our
subsidiaries are prohibited by the Public Utility Holding Company Act of 1935
from lending money to us, indemnifying our creditors or guaranteeing our
obligations. Holders of the Senior Notes will generally have a junior position
to claims of any holders of preferred stock and creditors of our subsidiaries,
including trade creditors, debtholders, secured creditors, taxing authorities
and guarantee holders. In addition to trade debt, our subsidiaries have ongoing
corporate debt programs used to finance their business activities. As of
September 30, 2000, our subsidiaries had approximately $3.13 billion of
outstanding debt for borrowed money, which includes long-term debt and short-
term debt but does not include trade debt, capital leases or power purchase
obligations, and approximately $151 million of outstanding preferred stock.
Unless otherwise specified in a Prospectus Supplement, the Supplemental
Indentures will not limit the amount of indebtedness or preferred stock issuable
by our subsidiaries.
Registration, Transfer, Exchange and Form. Senior Notes of any series may
be exchanged for other Senior Notes of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. (Section 305)
Unless otherwise indicated in the applicable Prospectus Supplement, Senior
Notes may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer) at the office or
agency maintained for such purpose with respect to any series of Senior Notes
and referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in the
Senior Note Indenture. (Section 305)
In the event of any redemption of Senior Notes of any series, we will not
be required to exchange, or register the transfer of, any Senior Notes of such
series selected, called or being called for redemption except, in the case of
any Senior Note to be redeemed in part, the portion thereof not to be so
redeemed. (Section 305)
Book-Entry Only System. Each series of Senior Notes may be issued in the
form of one or more global notes (the "Global Notes") representing all or part
of such series of Senior Notes and which will be deposited
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with or on behalf of The Depository Trust Company as Depositary under the Senior
Note Indenture (the "Depositary") and registered in the name of the Depositary
or nominee of the Depositary. Certificated Senior Notes will not be exchangeable
for Global Notes and, except under the circumstances described below, the Global
Notes will not be exchangeable for certificated Senior Notes.
The Depositary has advised us as follows: the Depositary is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. The Depositary
holds securities that its participants ("Participants") deposit with the
Depositary. The Depositary also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. The Depositary is owned
by a number of its Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange Inc. and the National Association of Securities Dealers,
Inc. Access to The Depository Trust Company system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly. The Rules applicable to the Depositary and its Participants are
on file with the Commission.
Upon the issuance of the Global Notes in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Senior Notes represented by the Global Notes to the
accounts of Participants. The accounts to be credited shall be designated by the
underwriters or other purchasers of the Global Notes. Ownership of beneficial
interests in the Global Notes will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial interests by
Participants in the Global Notes will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee. Ownership of beneficial interests in the Global Notes
by persons that hold through Participants will be shown on, and the transfer of
that ownership interest within such Participant will be effected only through,
records maintained by such Participant. Owners of beneficial interests in the
Global Notes will not receive written confirmation from the Depositary of their
purchases, but they are expected to receive written confirmation providing
details of the transactions, as well as periodic statements of their holdings,
from the Participants through which they purchased beneficial interests in the
Global Notes. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Notes.
So long as the Depositary, or its nominee, is the registered owner of the
Global Notes, the Depositary or its nominee, as the case may be, will be
considered the sole owner or Holder of the Senior Notes represented by the
Global Notes for all purposes under the Senior Note Indenture. Except as set
forth below, owners of beneficial interests in the Global Notes will not be
entitled to have Senior Notes registered in their names, will not receive or be
entitled to receive physical delivery of the Senior Notes in definitive form and
will not be considered the owner or Holders thereof under the Senior Note
Indenture.
Payment of principal of, premium, if any, and any interest on the Senior
Notes will be made to the Depositary or its nominee, as the case may be, as the
registered owner or the Holder of the Global Notes representing the Senior
Notes. None of the Company, the Senior Note Trustee, any paying agent or the
registrar for the Senior Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
We have been advised by the Depositary that, upon receipt of any payment of
principal, premium or interest in respect of the Global Notes, the Depositary
will credit immediately Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of the Global Notes as shown on the records of the Depositary. We also expect
that payments by Participants to
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owners of beneficial interests in the Global Notes held through such
Participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name" and will be the responsibility of such
Participants.
The Global Notes may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor of the Depositary or a nominee of such successor. If (1)
the Depositary is at any time unwilling or unable to continue as Depositary and
a successor Depositary is not appointed by us within ninety days or (2) there
shall have occurred and be continuing after any applicable grace periods an
Event of Default, we will issue certificated notes in definitive registered form
in exchange for the Global Notes representing the Senior Notes. In addition, we
may at any time and in our sole discretion determine not to have any Senior
Notes in registered form represented by one or more global notes and, in such
event, will issue certificated notes in definitive form in exchange for the
Global Notes representing the Senior Notes. In any such instance, an owner of a
beneficial interest in the Global Notes will be entitled to physical delivery in
definitive form of certificated Senior Notes represented by the Global Notes
equal in principal amount to such beneficial interest and to have such
certificated notes registered in its name. (Section 311)
Paying Agents. We will maintain an office or agency where Senior Notes may
be presented or surrendered for payment. We will give prompt written notice to
the Senior Note Trustee of the location, and any change in the location, of such
office or agency. If at any time we shall fail to maintain any such required
office or agency or shall fail to furnish the Senior Note Trustee with the
address thereof, such presentations and surrenders may be made or served at the
corporate trust office of the Senior Note Trustee, and, in such event, the
Senior Note Trustee shall act as our agent to receive all such presentations and
surrenders. (Section 1002)
All monies paid by us to a paying agent for the payment of principal of,
interest or premium, if any, on any Senior Note which remains unclaimed at the
end of two years after any such principal, interest or premium shall have become
due and payable will be repaid to us at our request and the Holder of such
Senior Note will thereafter look only to us for payment thereof as an unsecured
general creditor. (Section 1003)
Consolidation, Merger, Conveyance, Sale or Transfer. Nothing contained in
the Senior Note Indenture prevents us from consolidating with or merging into
another corporation or conveying, selling or otherwise transferring our
properties and assets substantially as an entirety to any Person, provided that:
- the corporation formed by such consolidation or into which we are merged
or the Person which acquires by conveyance, sale or transfer our
properties and assets substantially as an entirety is a corporation
organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and expressly assumes by an
indenture supplemental thereto, executed and delivered to the Senior Note
Trustee, in form satisfactory to the Senior Note Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Senior Notes and the performance of every covenant of
the Senior Note Indenture on our part to be performed or observed; and
- immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing.
We shall also be required to deliver certificates and opinions stating that such
consolidation, merger, conveyance, sale or transfer comply with the Senior Note
Indenture and all relevant conditions precedant have been satisfied. (Section
801)
Limitation on Liens. Nothing contained in the Senior Note Indenture or in
the Senior Notes in any way restricts or prevents the Company or any of its
subsidiaries from incurring any indebtedness; provided that if this covenant is
made applicable to the Senior Notes of any particular series, the Company will
not issue, assume or guarantee (including any contingent obligation to purchase)
or permit to exist any notes, bonds, debentures or other evidences of
indebtedness for money borrowed ("Debt") secured by a mortgage, lien, pledge,
security interest or other encumbrance ("Lien") upon any property of the
Company, including the
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capital stock of any of its subsidiaries, without effectively providing that the
outstanding Senior Notes (together with, if the Company so determines, any other
indebtedness or obligation then existing or thereafter created ranking equally
with the Senior Notes) shall be secured equally and ratably with (or prior to)
such Debt so long as such Debt shall be so secured (provided that for purposes
of providing such equal and ratable security, the principal amount of
outstanding Senior Notes of any series will be such portion of the principal
amount as may be specified in the terms of such series). This restriction will
not, however, apply to
- Liens in existence on the date of the original issue of the Senior Notes
to which this restriction is made applicable, including, without
limitation, "stock forward" transactions.
- Liens created solely for the purpose of securing Debt incurred to
finance, refinance or refund the purchase price or cost (including the
cost of construction) of property acquired after the date hereof (by
purchase, construction or otherwise), or Liens in favor of guarantors of
obligations or Debt representing, or incurred to finance, refinance or
refund, such purchase price or cost, provided that no such Lien shall
extend to or cover any property other than the property so acquired and
improvements thereon and provided further that such Liens are created no
later than 24 months after the purchase or construction;
- Liens on any property or assets acquired from a corporation which is
merged with or into the Company, which Liens are not created as a result
of or in connection with or in anticipation of any such merger (unless
such Liens were created to secure or provide for the payment of any part
of the purchase price of such corporation);
- any Lien on any property or assets existing at the time of acquisition
thereof and which is not created as a result of or in connection with or
in anticipation of such acquisition (unless such Lien was created to
secure or provide for the payment of any part of the purchase price of
such property or assets); or
- any extension, renewal or replacement of any Lien referred to in the
foregoing clauses, provided that the principal amount of Debt so secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement Lien shall be limited to all or part of
substantially the same property which secured the Lien extended, renewed
or replaced (plus improvements on such property).
Notwithstanding the foregoing, the Company may issue or assume Debt secured by
Liens on cash of the Company which would otherwise be subject to the foregoing
restrictions in an aggregate principal amount which does not at the time of
issuance or assumption exceed $100 million. The following types of transactions
shall not be deemed to create Debt secured by Liens: Liens required by any
contract or statute in order to permit the Company to perform any contract or
subcontract made by it with or at the request of a governmental entity or any
department, agency or instrumentality thereof, or to secure partial, progress,
advance or any other payments to the Company by such governmental unit pursuant
to the provisions of any contract or statute; and share forwards with respect to
shares of the Company accounted for as equity transactions under applicable FASB
guidelines wherein the shares collateralize the forward repayment obligation.
(Section 1007)
Sale and Leaseback Transactions. If this covenant is made applicable to
the Senior Notes of any series, the Company will not enter into any Sale and
Leaseback Transaction unless either:
- the Company would be entitled pursuant to the "Limitation on Liens"
covenant above to create Debt secured by a Lien on the property to be
leased back in an amount equal to the Attributable Value of such Sale and
Leaseback Transaction without the Senior Notes being effectively secured
equally and ratably with (or prior to) that Debt; or
- the Company, within 270 days after the sale or transfer of the relevant
assets shall have been made, applies, in the case of a sale or transfer
for cash, an amount equal to the net proceeds from the sale or,
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in the case of a sale or transfer otherwise than for cash, an amount
equal to the fair market value of the property so leased (as determined
by any two trustees of the Company) to:
- the retirement of long-term indebtedness of the Company ranking prior
to or on a parity with the Senior Notes or
- the investment in any property used in the ordinary course of business
by the Company.
"Attributable Value" means, as to any particular lease under which the
Company is at any time liable as lessee and at any date as of which the amount
thereof is to be determined, the amount equal to the greater of (i) the net
proceeds from the sale or transfer of the property leased pursuant to the Sale
and Leaseback Transaction or (ii) the net book value of the property, as
determined by the Company in accordance with generally accepted accounting
principles at the time of entering into the Sale and Leaseback Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of the Sale and
Leaseback Transaction remaining at the time of determination and the denominator
of which shall be equal to the number of full years of the term, without regard,
in any case, to any renewal or extension options contained in the lease.
"Sale and Leaseback Transaction" means any transaction or series of related
transactions relating to property now owned or hereafter acquired by the Company
whereby the Company transfers the property to a person and the Company leases it
from that person for a period, including renewals, in excess of 36 months.
Modification of the Senior Note Indenture. The Senior Note Indenture
contains provisions permitting us and the Senior Note Trustee, with the consent
of the Holders of a majority in principal amount of the outstanding Senior
Notes, of all series affected by the modification (voting as one class), to
modify the Senior Note Indenture or any supplemental indenture or the rights of
the Holders of the Senior Notes of such series; provided that no such
modification shall without the consent of the Holders of each outstanding Senior
Note affected thereby:
- change the date upon which the principal of or the interest on any Senior
Note is due and payable;
- reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof;
- change any place of payment where, or the currency in which, any Senior
Note or any premium or the interest thereon is payable;
- impair the right to institute suit for the enforcement of any payment on
or after the date such payment is due (or, in the case of redemption, on
or after the date fixed for such redemption);
- reduce the aforesaid percentage of Senior Notes, the consent of the
Holders of which is required for any modification of the applicable
supplemental indenture or for waiver by the Holders of certain of their
rights; or
- modify certain provisions of the Senior Note Indenture. (Section 902)
The Senior Note Indenture also contains provisions permitting us and the
Senior Note Trustee to amend the Senior Note Indenture in certain circumstances
without the consent of the Holders of any Senior Notes to evidence the
succession of another corporation to us, the replacement of the Senior Note
Trustee and for certain other purposes, including to cure any ambiguity or
defect, or correct any inconsistency, in the Senior Note Indenture, or to add or
change any other provisions with respect to matters or questions arising under
the Senior Note Indenture or the Senior Notes, provided such changes or
additions shall not adversely affect the interests of the Holders of any series
of the Senior Notes in any material respect, or involve a change requiring the
consent of the Holders of the Senior Notes described in the preceding paragraph.
(Section 901)
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Events of Default. An Event of Default with respect to the Senior Notes is
defined in the Senior Note Indenture as being:
- failure to pay any interest on the Senior Notes and continuance of such
failure for 30 days;
- failure to pay the principal (or premium, if any), including the payment
of principal (or premium, if any) when due pursuant to any redemption
provision of the Senior Notes and continuance of such failure for three
days;
- failure to pay any sinking fund installment, if any, pursuant to the
terms of the Senior Notes, and continuance of such failure for a period
of three days;
- default in the performance, or breach, of any covenant or warranty of
ours in the Senior Note Indenture (other than certain covenants or
warranties a default in whose performance or whose breach is specifically
dealt with elsewhere in the Senior Note Indenture or which has been
expressly included in the Senior Note Indenture solely for the benefit of
any series of Senior Notes other than that series) and continuance of
such default or breach for a period of 90 days after written notice is
given to us by the Senior Note Trustee or to us and the Senior Note
Trustee by the Holders of 33% or more in aggregate principal amount of
the outstanding Senior Notes; and
- certain events of bankruptcy, insolvency, reorganization, receivership or
liquidation involving us. (Section 501)
We will be required to file with the Senior Note Trustee annually an officers'
certificate as to the existence or absence of default in performance of certain
covenants in the Senior Note Indenture. (Section 1008) The Senior Note Indenture
provides that the Senior Note Trustee may withhold notice to the Holders of the
Senior Notes of any default (except in payment of principal of (or premium, if
any), or interest, if any, on, the Senior Notes or in the payment of any sinking
fund installment with respect to the Senior Notes) if the Senior Note Trustee in
good faith determines that it is in the interest of the Holders of the Senior
Notes to do so. (Section 602) The Senior Note Indenture provides that, if an
Event of Default due to the default in payment of principal of (or premium, if
any) or interest on the Senior Notes or in the payment of any sinking fund
installment with respect to the Senior Notes, or due to the default in the
performance or breach of any covenant or warranty in the Senior Note Indenture
by us shall have happened and be continuing, either the Senior Note Trustee or
the Holders of 33% or more in aggregate principal amount of the outstanding
Senior Notes may declare the principal amount of all the Senior Notes to be due
and payable immediately, but if we shall cure all defaults and certain other
conditions are met, such declaration may be annulled and past defaults may be
waived by the Holders of a majority in aggregate principal amount of the Senior
Notes. If an Event of Default due to certain events of bankruptcy, insolvency or
reorganization has occurred and is continuing, the principal amount of all the
Senior Notes shall be immediately due and payable, without any act of either the
Senior Note Trustee or the Holders. (Sections 502 and 513)
Subject to the provisions of the Senior Note Indenture relating to the
duties of the Senior Note Trustee, the Senior Note Trustee will be under no
obligation to exercise any of its rights or powers under the Senior Note
Indenture at the request or direction of any of the Holders of the Senior Notes,
unless such Holders shall have offered to the Senior Note Trustee reasonable
indemnity. (Section 603)
Subject to such provision for indemnification, the Holders of a majority in
principal amount of the Senior Notes will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Senior Note Trustee, or exercising any trust or power conferred on the Senior
Note Trustee with respect to the Senior Notes, provided that the Senior Note
Trustee shall have the right to decline to follow any such direction if the
Senior Note Trustee shall determine that the action so directed conflicts with
any law or the provisions of the Senior Note Indenture or if the Senior Note
Trustee shall determine that such action would subject the Senior Note Trustee
to personal liability or expense for which reasonable indemnity has not been
provided. (Section 512)
Defeasance. We, at our option, (a) will be Discharged from any and all
obligations in respect of the Senior Notes (except for certain obligations to
register the transfer or exchange of Senior Notes, replace
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destroyed, stolen, lost or mutilated Senior Notes, maintain paying agencies and
hold moneys for payment in trust) or (b) need not comply with certain covenants
of the Senior Note Indenture described under "-- Consolidation, Merger,
Conveyance, Sale or Transfer" and "-- Limitation of Liens" or to certain
covenants relating to corporate existence and maintenance of properties and
insurance, in each case, if:
- We irrevocably deposit with the Senior Note Trustee, in trust, (a) money
or (b) in certain cases,
- U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
money; or
- a combination thereof, in each case sufficient to pay and discharge
- the principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest, if any, on the
outstanding Senior Notes on the dates such payments are due, in
accordance with the terms of the Senior Notes, or to and including the
redemption date irrevocably designated by us and
- any mandatory sinking fund payments applicable to the Senior Notes on
the day on which payments are due and payable in accordance with the
terms of the Senior Note Indenture and of the Senior Notes;
- no Event of Default or event which with notice or lapse of time would
become an Event of Default shall have occurred and be continuing on the
date of such deposit;
- we deliver to the Senior Note Trustee an opinion of counsel to the effect
- that the Holders of the Senior Notes will not recognize income, gain,
loss or expense for Federal income tax purposes as a result of such
deposit and defeasance of certain obligations;
- that such provision would not cause any outstanding Senior Notes then
listed on any national securities exchange to be delisted as a result
thereof; and
- that the defeasance trust is not, or is registered as, an investment
company under the Investment Company Act of 1940; and
- we have delivered to the Senior Note Trustee an officers' certificate and
an opinion of counsel, each stating that all conditions precedent
provided for in the Senior Note Indenture relating to the satisfaction
and discharge of the Senior Notes have been complied with. (Sections 403
and 1009)
Discharged means, with respect to the Senior Notes of any series, the discharge
of the entire indebtedness represented by, and obligations of ours under, the
Senior Notes of such series and in the satisfaction of all the obligations of
ours under the Senior Note Indenture relating to the Senior Notes of such
series, except:
- the rights of Holders of the Senior Notes of such series to receive, from
the trust fund established pursuant to the Senior Note Indenture, payment
of the principal of and interest and premium, if any, on the Senior Notes
of such series when such payments are due;
- our obligations with respect to the Senior Notes of such series with
respect to registration, transfer, exchange and maintenance of a place of
payment; and
- the rights, powers, trusts, duties, protections and immunities of the
Senior Note Trustee under the Senior Note Indenture. (Section 101)
U.S. Government Obligations means direct obligations of the United States for
the payment of which its full faith and credit is pledged, or obligations of a
person controlled or supervised by and acting as an agency or instrumentality of
the United States and the payment of which is unconditionally guaranteed by the
United States, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of a holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
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U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt. (Section
101)
Resignation or Removal of Senior Note Trustee. The Senior Note Trustee may
resign at any time upon written notice to us, and such resignation will take
effect immediately upon the appointment of a successor Senior Note Trustee.
(Sections 610 and 611)
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing delivered to the Senior Note Trustee and us
and signed by the Holders, or their attorneys-in-fact, of at least a majority in
principal amount of the then outstanding Senior Notes. In addition, under
certain circumstances, we may remove the Senior Note Trustee upon notice to the
Holder of each Senior Note outstanding and the Senior Note Trustee, and
appointment of a successor Senior Note Trustee. (Section 610)
No Recourse Against Others. The Senior Note Indenture provides that no
recourse for the payment of the principal of or any premium or interest on any
Senior Note, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of ours,
contained in the Senior Note Indenture or in any supplemental indenture, or in
any Senior Note, or because of the creation of any indebtedness represented
thereby, will be had against any incorporator, stockholder, officer or director,
as such, past, present or future, of us or any successor corporation, either
directly or through us or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
expressly waived and released as a condition of, and in consideration for, the
execution of the Senior Note Indenture and the issuance of the Senior Notes.
(Section 114) Such waiver may not be effective to waive liabilities under the
Federal securities laws and we understand that it is the view of the Commission
that such a waiver is against public policy.
Concerning the Senior Note Trustee. The Senior Note Trustee under the
Senior Note Indenture, and affiliates of the Senior Note Trustee, are also
trustees under other indentures and trust agreements of affiliates of ours.
LEGAL OPINIONS
Legal opinions relating to the validity of the Senior Notes will be given
by Day, Berry & Howard LLP, CityPlace I, Hartford, Connecticut 06103-3499,
counsel for the Company, and Pillsbury Winthrop LLP, New York, New York
10004-1490, counsel for any underwriters, agents or dealers.
EXPERTS
The consolidated balance sheets and consolidated statements of
capitalization as of December 31, 1999 and 1998, and the consolidated statements
of income, comprehensive income, shareholders' equity, cash flows and income
taxes for each of the three years in the period ended December 31, 1999,
incorporated by reference in this Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in accounting and auditing in giving said reports.
With respect to the unaudited interim financial information for the
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 incorporated
by reference in this Prospectus, Arthur Andersen LLP has applied limited
procedures in accordance with professional standards for a review of that
information. However, their separate report thereon states that they did not
audit and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on that information should
be restricted in light of the limited nature of the review procedures applied.
In addition, the accountants are not subject to the liability provisions of
Section 11 of the Securities Act for their report on the unaudited interim
financial information because that report is not a "report" or a "part" of the
registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
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PLAN OF DISTRIBUTION
We may sell the Senior Notes offered hereby (i) through negotiation with
one or more underwriters; (ii) through one or more agents or dealers designated
from time to time; (iii) directly to purchasers; or (iv) through any combination
of the above. The distribution of the Senior Notes may be effected from time to
time in one or more transactions at a fixed price or prices which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. A Prospectus Supplement
or a supplement thereto will describe the method of distribution of the Senior
Notes of any series.
If we use any underwriters in the sale of Senior Notes, we will enter into
an underwriting agreement, distribution agreement or similar agreement with such
underwriters prior to the time of sale, and the names of the underwriters used
in the transaction will be set forth in the Prospectus Supplement or a
supplement thereto relating to such sale. If an underwriting agreement is
executed, the Senior Notes will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. Unless otherwise indicated in
the Prospectus Supplement, the underwriting or purchase agreement will provide
that the underwriter or underwriters are obligated to purchase all of the Senior
Notes offered in the Prospectus Supplement if any are purchased.
If any of the Senior Notes are sold through agents designated by us from
time to time, the Prospectus Supplement or a supplement thereto will name any
such agent, set forth any commissions payable by us to any such agent and the
obligations of such agent with respect to the Senior Notes. Unless otherwise
indicated in the Prospectus Supplement or a supplement thereto, any such agent
will be acting on a best efforts basis for the period of its appointment.
Certain persons participating in an offering of the Senior Notes may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Senior Notes. Specifically, the underwriters, if any, may overallot in
connection with the offering, and may bid for, and purchase, the Senior Notes in
the open market.
The Senior Notes of any series, when first issued, will have no established
trading market. Any underwriters or agents to or through whom Senior Notes are
sold by us for public offering and sale may make a market in such Senior Notes,
but underwriters and agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to
the liquidity of the trading market for any Senior Notes.
In connection with the sale of the Senior Notes, any purchasers,
underwriters or agents may receive compensation from us or from purchasers in
the form of concessions or commissions. The underwriters will be, and any agents
and any dealers participating in the distribution of the Senior Notes may be,
deemed to be underwriters within the meaning of the Securities Act. The
agreement between us and any purchasers, underwriters or agents will contain
reciprocal covenants of indemnity, and will provide for contribution by us in
respect of our indemnity obligations, between us and the purchasers,
underwriters or agents against certain liabilities, including liabilities under
the Securities Act.
Certain of the underwriters or agents and their associates may engage in
transactions with, or perform services for, us and our affiliates in the
ordinary course of business.
Our Declaration of Trust provides that none of our shareholders shall be
held to any liability whatever for the payment of any sum of money, or for
damages or otherwise, under any contract, obligation or undertaking made,
entered into or issued by our trustees or by any officer, agent or
representative elected or appointed by our trustees and no such contract,
obligation or undertaking shall be enforceable against our trustees or any of
them in their or his individual capacities or capacity and all such contracts,
obligations and undertakings shall be enforceable only against our trustees as
such, and every person, firm, association, trust and corporation having any
claim or demand arising out of any such contract, obligation or undertaking
shall look only to the trust estate for the payment or satisfaction thereof.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
Filing fee for Registration Statement....................... $150,000*
Printing costs.............................................. 10,000
Fees and expenses of Senior Note Trustee.................... 35,000
Fees of rating agencies..................................... 100,000
Reimbursement of underwriters' expenses and counsel fees in
connection with qualification or registration of the
Senior Notes under state securities of "blue sky" laws.... 5,000
Counsel Fees................................................ 75,000
Miscellaneous and incidental expenses, including travel,
telephone, copying, postage............................... 5,000
--------
Total....................................................... $380,000
---------------
* Actual Amount
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 34 of the Declaration of Trust of the Company provides that the
Trustees, officers, agents or any other representative elected or appointed
pursuant to any provision thereof shall not be liable for any act or default on
the part of any co-Trustee, or other officer or agent, or for having permitted
any co-Trustee or other officer or agent to receive or retain any money or
property receivable by the Trustees under the Declaration of Trust, or for
errors of judgment in exercising or failing to exercise any of the powers or
discretions conferred upon or resting upon him, or for any loss arising out of
any investment, or for failure to sue for or to collect any moneys or property
belonging to the trust estate, or for any act or omission to act, performed or
omitted by him in good faith in the execution of the trusts created under the
Declaration of Trust. Each Trustee and every such officer, agent or
representative shall be answerable and accountable only for his own receipts and
for his own willful acts, neglects and defaults constituting a breach of trust
knowingly and intentionally committed by him in bad faith, and not for those of
any other, or of any bank, trust company, broker, attorney, auctioneer or other
person with whom or into whose hands any property forming part of the trust
estate may be deposited or come, or by whom any action relating to the trusts
created under the Declaration of Trust may be taken or omitted to be taken; nor
shall any Trustee or any such officer, agent or representative be liable or
accountable for any defect in title, or for failing to transfer to or vest in
the Trustees title to any property or effects for the time being subject to any
of the trusts of these presents, or intended or believed to be so subject, or
for failing to take out or maintain any or sufficient insurance or for liens or
encumbrances upon any such property or effects, or for lack of genuineness or
for invalidity of the shares, bonds or other obligations or instruments forming
part of or relating to the trust estate, or for any loss, or otherwise, unless
the same shall happen through his own willful act, neglect or default
constituting a breach of trust knowingly and intentionally committed by him in
bad faith; and the Trustees and each of them and each such officer, agent or
representative shall be entitled out of the trust estate to reimbursement for
their or his reasonable expenses and outlays and to be put in funds and
exonerated and indemnified to their or his reasonable satisfaction from time to
time, against any and all loss, costs, expense and liability incurred or to be
incurred by them or him in the execution of the trusts created under the
Declaration of Trust; and no Trustee, however appointed, shall be obliged to
give any bond or surety or other security for the performance of any of his
duties in the said trusts.
In addition, and without limiting the protection afforded to them, no
Trustee, officer, agent or representative shall be liable for monetary damages
for breach of fiduciary duty as a Trustee, officer, agent or representative,
notwithstanding any provision of law imposing such liability; provided, however,
that the
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provisions of this paragraph shall not be deemed to eliminate or limit any
liability which such Trustee, officer, agent or representative would otherwise
have under the provisions of the declaration (1) for any breach of such person's
duty of loyalty to the association or its shareholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, or (3) for any transaction from which such person derived an
improper personal benefit.
Article 34 of the Declaration of Trust of the Company also provides that
the Company shall indemnify each of its Trustees and officers against all
losses, liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees, imposed
upon or reasonably incurred by such person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee or officer,
except with respect to any matters as to which such person shall have been
finally adjudicated not to have acted in good faith in the reasonable belief
that his acting was in the best interests of the Company. The Declaration of
Trust provides, however, that as to any matter disposed of by a compromise
payment by such Trustee or officer, pursuant to a consent decree or otherwise,
no indemnification either for said payment or for any other expenses shall be
provided unless a determination is made that indemnification of the Trustee or
officer is proper under the circumstances because such Trustee or officer acted
in good faith in the reasonable belief that his acting was in the best interest
of the association. Such determination shall be made (1) by the Board of
Trustees by a majority vote of a quorum consisting of Trustees who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable, such a quorum so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders.
In performing his duties, any such Trustee or officer who acts in good
faith shall be fully protected in relying upon the books of account of the
association or of another organization in which he serves as contemplated by the
Declaration of Trust, reports, opinions and advice to the association or to such
other organization by any of its officers or employees or by counsel,
accountants, appraisers or other experts or consultants selected with reasonable
care or upon other records of the association or of such other organization.
Expenses incurred by any Trustee or officer with respect to any action,
suit or proceeding as described above may be paid or advanced by the association
prior to the final disposition of such action, suit or proceeding, upon receipt
of an undertaking by or on behalf of the Trustee or officer to repay such amount
if upon final disposition thereof he shall not be entitled to indemnification.
The rights of indemnification hereby provided shall not be exclusive of or
affect any other right to which any Trustee or officer may be entitled and all
such rights shall inure to the benefit of his heirs, executors, administrators
and other legal representatives. Such other rights shall include the powers,
immunities and rights of reimbursement which would be allowable under the laws
of the Commonwealth of Massachusetts were the association of business
corporation organized under such laws.
The Company also maintains an insurance policy that insures its Trustees
and officers against certain liabilities.
ITEM 16. EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
1 Form of Underwriting Agreement for the Senior Notes.
4.1 Declaration of Trust of Northeast Utilities, as amended
through May 24, 1988 (incorporated herein by reference to
Exhibit 3.1.1 to the Northeast Utilities Annual Report on
Form 10-K for the year ended December 31, 1988).
4.2 Form of Senior Note Indenture.
5 Opinion of Day, Berry & Howard LLP regarding the legality of
the securities being issued.
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EXHIBIT
NO. DESCRIPTION
------- -----------
12 Statement re: computation of Ratio of Earnings to Fixed
Charges.
15 Letter of Arthur Andersen LLP to Northeast Utilities re:
unaudited interim financial information.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Day, Berry & Howard LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
25 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Senior Note Trustee,
under the Senior Note Indenture.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b); if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise,
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the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the town of Berlin, State of Connecticut, on February 7, 2001.
NORTHEAST UTILITIES
(REGISTRANT)
By: /s/ MICHAEL G. MORRIS
------------------------------------
Michael G. Morris
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby constitutes Cheryl W. Grise, John H. Forsgren, David R. McHale, Jeffrey
C. Miller and Jane P. Seidl, and each of them singly, their true and lawful
attorneys, with full power to each such attorney to sign for them in their
names, in the capacities indicated below, any and all amendments to this
registration statement, hereby ratifying and confirming such person's signature
as it may be signed by said attorneys to any and all amendments to said
registration statement.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MICHAEL G. MORRIS Chairman of the Board, President February 7, 2001
--------------------------------------------------- and Chief Executive Officer
Michael G. Morris and a Trustee
/s/ JOHN H. FORSGREN Executive Vice President and February 7, 2001
--------------------------------------------------- Chief Financial Officer and
John H. Forsgren a Trustee
/s/ JOHN J. ROMAN Vice President and Controller February 7, 2001
---------------------------------------------------
John J. Roman
/s/ COTTON M. CLEVELAND Trustee February 7, 2001
---------------------------------------------------
Cotton M. Cleveland
/s/ SANFORD CLOUD, JR. Trustee February 7, 2001
---------------------------------------------------
Sanford Cloud, Jr.
/s/ WILLIAM F. CONWAY Trustee February 7, 2001
---------------------------------------------------
William F. Conway
/s/ E. GAIL DE PLANQUE Trustee February 7, 2001
---------------------------------------------------
E. Gail de Planque
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ RAYMOND L. GOLDEN Trustee February 7, 2001
---------------------------------------------------
Raymond L. Golden
/s/ ELIZABETH T. KENNAN Trustee February 7, 2001
---------------------------------------------------
Elizabeth T. Kennan
/s/ EMERY G. OLCOTT Trustee February 7, 2001
---------------------------------------------------
Emery G. Olcott
/s/ WILLIAM J. PAPE II Trustee February 7, 2001
---------------------------------------------------
William J. Pape II
/s/ ROBERT E. PATRICELLI Trustee February 7, 2001
---------------------------------------------------
Robert E. Patricelli
/s/ JOHN F. SWOPE Trustee February 7, 2001
---------------------------------------------------
John F. Swope
/s/ JOHN F. TURNER Trustee February 7, 2001
---------------------------------------------------
John F. Turner
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