As
filed with the Securities and Exchange Commission on November 2, 2005
Registration
No. 333-128811
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Amendment
No. 1
to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
NORTHEAST
UTILITIES
(Exact
Name of Registrant as Specified in its Charter)
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Massachusetts
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04-2147929
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(State
or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S.
Employer Identification
No.)
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One
Federal Street, Building 111-4
Springfield,
Massachusetts 01105
413-785-5871
(Address,
Including Zip Code, and Telephone Number, Including
Area
Code, of Registrant’s Principal Executive Offices)
Gregory
B. Butler, Esq.
Senior
Vice President, Secretary and General Counsel
Northeast
Utilities Service Company
107
Selden Street
Berlin,
Connecticut 06037
(860)
665-5000
Butlegb@nu.com
(Name,
Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Agent For Service)
With
Copies To:
Jeffrey
C. Miller, Esq.
Assistant
General Counsel
Northeast
Utilities Service Company
107
Selden Street
Berlin,
CT 06037
(860)
665-3532
millejc@nu.com
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
dividend 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. ¨
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. ¨
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. ¨
CALCULATION
OF REGISTRATION FEE
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Title
Of Each Class Of
Securities
To Be Registered
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Amount
To Be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Unit(2)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
Of
Registration
Fee
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Senior
Notes
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Common
Shares, $5.00 par value per share
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Preferred
Shares
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Warrants
(3)
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Share
Purchase Contracts (4)(5)
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Share
Purchase Units (4)(5)
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TOTAL
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$
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750,000,000
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$
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750,000,000
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$
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88,275(6)
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(1)
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Includes
an indeterminate number or principal amount of senior notes, common
shares, preferred shares, warrants, share purchase contracts and
share
purchase units as may from time to time be issued at indeterminate
prices
provided that in no event will the aggregate initial offering price
of all
senior notes, common shares, preferred shares, warrants, share
purchase
contracts and share purchase units sold under this registration
statement
exceed $750,000,000. If any such securities are issued at an original
issue discount, then the aggregate initial offering price as so
discounted
shall not exceed $750,000,000, notwithstanding that the stated
principal
amount of such securities may exceed such amount. Pursuant to Rule
457(o)
under the Securities Act of 1933, and General Instruction II.D
of Form
S-3, which permits the registration fee to be calculated on the
basis of
the aggregate offering price of all securities listed, the table
does not
specify by each class information as to the amount to be registered,
proposed maximum offering price per unit or proposed maximum aggregate
offering price.
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(2)
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Estimated
in accordance with Rule 457 solely for the purpose of calculating
the
registration fee.
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(3)
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Includes
an indeterminate number of Common Shares, Preferred Shares, or
a
combination thereof to be issued by Northeast Utilities upon exercise
of
the Warrants.
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(4)
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Includes
an indeterminate number of Common Shares to be issued by Northeast
Utilities upon settlement of the Share Purchase Contracts or Share
Purchase Units.
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(5)
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Each
Share Purchase Unit consists of (a) a Share Purchase Contract,
under which
the holder, upon settlement, will purchase an indeterminate number
of
shares of Common Shares of Northeast Utilities and (b) either
a beneficial
interest in Senior Notes, Preferred Shares or debt obligations
of third
parties, including U.S. Treasury securities, purchased with the
proceeds
from the sale of the Share Purchase Units. Each beneficial interest
will
be pledged to secure the obligation of such holder to purchase
such Common
Shares. No separate consideration will be received for the Share
Purchase
Contracts or the related beneficial interests.
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| (6) |
Registration
fee previously paid with the filing of the Registration Statement
on Form
S-3 on October 4, 2005. |
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.
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 November 2, 2005
PROSPECTUS
NORTHEAST
UTILITIES
$750,000,000
Senior
Notes
Common
Shares
Preferred
Shares
Warrants
Share
Purchase Contracts
Share
Purchase Units
Northeast
Utilities intends to offer from time to time, in one or more series, up to
$750,000,000 in the aggregate of its senior unsecured debt securities (the
“Senior Notes”), Common Shares, $5 par value per share (“Common Shares”),
Preferred Shares, Warrants, Share Purchase Contracts or Share Purchase Units.
This Prospectus provides you with a general description of these securities.
Our
common stock is listed on the New York Stock Exchange, or NYSE, and trades
under
the symbol "NU."
When
a
particular type of securities is offered, we will prepare and issue a supplement
to this Prospectus setting forth the particular terms of such offering (each
such supplement, a “Prospectus Supplement”). You should read this Prospectus and
any Prospectus Supplement carefully before you make any decision to invest
in
any of the securities. This Prospectus may not be used to sell any of the
securities unless accompanied by a Prospectus Supplement.
See
"Risk Factors" beginning on page 5 of this prospectus to read about certain
factors that you should consider before making an investment in our securities.
You should also review the documents incorporated by reference in this
prospectus for updated and additional factors you should
consider.
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.
The
date
of this Prospectus is
,
2005.
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. Statements in the Prospectus concerning the provisions of
any
document filed as an exhibit to the Registration Statement are not necessarily
complete and are qualified in their entirety by reference to such exhibit.
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 Room at its principal offices at 100 F Street, NE,
Room 1580, Washington, D.C. 20549. You may obtain information on the operation
of the Commission’s Public Reference Room 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 find additional information about us, including
our
Annual Report on Form 10-K for the year ended December 31, 2004, on our website
at http://www.nu.com. The information on this website is not a part of this
Prospectus.
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.
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
(other than current reports on Form 8-K filed under Items 2.02 or 7.01 of
Form
8-K) 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 securities.
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Annual
Report on Form 10-K for the year ended December 31, 2004;
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-
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Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2005 and
June 30,
2005; and
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-
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Current
Reports on Form 8-K dated October 13, 2005, April
29, 2005,
April 6, 2005, March 9, 2005, March 7, 2005, February 4, 2005,
January 26,
2005 and January 5, 2005 and Amendments to Current Report on Form
8-K/A
dated April 6, 2005 and January 3,
2005.
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All
of our filings pursuant to the Exchange Act after the date of filing
of
the initial registration statement and prior to the effectiveness
of such
registration statement.
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We
will
provide to each person 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:
Patricia
C. Cosgel
Assistant
Treasurer - Finance
Northeast
Utilities Service Company
107
Selden Street
Berlin,
Connecticut 06037
(860)
665-5058
FORWARD-LOOKING
STATEMENTS
We
make
statements in this Prospectus and in the documents we incorporate by reference
that are statements concerning our expectations, plans, objectives, future
financial performance and other statements that are not historical facts.
These
statements are "forward looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. In some cases the reader can identify
these forward looking statements by words such as "estimate," "expect,"
"anticipate," "intend," "plan," "believe," "forecast," "should," "could,"
and
similar expressions. Forward looking statements involve risks and uncertainties
that may cause actual results or outcomes to differ materially from those
included in the forward looking statements.
Factors
that may cause actual results to differ materially from those included in
the
forward looking statements include, but are not limited to, actions by state
and
federal regulatory bodies, competition and industry restructuring, changes
in
economic conditions, changes in weather patterns, changes in laws, regulations
or regulatory policy, expiration or initiation of significant energy supply
contracts, changes in levels of capital expenditures, developments in legal
or
public policy doctrines, technological developments, volatility in electric
and
natural gas commodity markets, effectiveness of our risk management policies
and
procedures, changes in accounting standards and financial reporting regulations,
fluctuations in the value of electricity positions, obtaining new contracts
at
anticipated volumes and margins, terrorist attacks on domestic energy facilities
and other presently unknown or unforeseen factors. Other risk factors are
detailed from time to time in our reports to the Commission. All such factors
are difficult to predict, contain uncertainties which may materially affect
actual results and are beyond our control.
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.
ABOUT
THIS PROSPECTUS
This
Prospectus is part of a registration statement that we have filed with the
Commission utilizing a “shelf” registration, or continuous offering, process.
Under this shelf registration process, we may issue and sell either separately
or in units any combination of the securities described in this Prospectus
in
one or more offerings with a maximum aggregate offering price of up to
$750,000,000.
This
Prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a Prospectus Supplement
that will contain specific information about the terms of the offering. Any
Prospectus Supplement may also add, update or change information contained
in
this Prospectus. If there is any inconsistency between the information in
this
Prospectus and the Prospectus Supplement, you should rely on the information
in
the Prospectus Supplement. You should read both this Prospectus and any
prospectus supplement together with additional information described under
the
heading “WHERE YOU CAN FIND MORE INFORMATION”.
NORTHEAST
UTILITIES
Northeast
Utilities (“we” or the “Company”) is the parent company of the Northeast
Utilities system (the NU system). The NU system furnishes franchised
retail electric service to approximately 1.9 million customers in 419 cities
and
towns in Connecticut, New Hampshire and western Massachusetts through three
of
our wholly-owned subsidiaries: The Connecticut Light and Power Company
(“CL&P”), Public Service Company of New Hampshire (“PSNH”) and Western
Massachusetts Electric Company (“WMECO”).
The
NU
system also furnishes franchised retail natural gas service in a large part
of
Connecticut through Yankee Gas Services Company (“Yankee Gas”), a subsidiary of
Yankee Energy System, Inc., the largest natural gas distribution company
in
Connecticut. Yankee Gas serves approximately 194,000 residential,
commercial and industrial customers in 71 cities and towns in Connecticut,
including large portions of the central and southwest sections of the state.
Through
our wholly-owned subsidiary, NU Enterprises, Inc. (“NUEI”), we own a number of
competitive energy and related businesses. These subsidiaries include
Select Energy Services, Inc., a provider of energy management, demand-side
management and related consulting services for commercial, industrial and
institutional customers and electric utility companies; Northeast Generation
Company (“NGC”), which holds certain of NU’s competitive hydroelectric and
pumped storage generation facilities; Northeast Generation Services Company,
a
corporation that maintains and services fossil and hydroelectric facilities
and
provides high-voltage electrical contracting services, and Select Energy,
Inc.
(“Select Energy”), a corporation engaged in the marketing, transportation,
storage and sale of energy commodities, at wholesale and retail, in designated
geographical areas.
NGC
is
our competitive generating subsidiary and a major provider of pumped storage
and
conventional hydroelectric power in the northeastern United States. NGC
sells all its generation output to Select Energy, which in turn markets it
to
customers. Select Energy also buys and manages the entire generation
output of another of our subsidiaries, Holyoke Water Power Company, which
consists of approximately 147 megawatts of coal-fired generation at the Mt.
Tom
station in Holyoke, Massachusetts, under an evergreen contract. NGC's
assets and Mt. Tom perform functions that are critical to NUEI's wholesale
and
retail businesses by providing Select Energy with access to electric generation
within New England and thus reducing its exposure to energy price fluctuations.
On
March
9, 2005, we announced that we had completed a comprehensive review of our
competitive energy businesses and that we had decided that NUEI would exit
the
wholesale marketing business, which it conducts through its subsidiary Select
Energy, and would explore ways to divest its competitive energy services
businesses. We concluded that the wholesale merchant energy sector
in the
power pools between Maine and Maryland was becoming increasingly competitive
and
that NUEI’s wholesale marketing business would be unable to attain the profit
margins necessary to generate acceptable returns and cash flows. As
a
result, NUEI has been exploring a number of alternatives for exiting the
wholesale marketing business, including selling the wholesale marketing
franchise, selling existing contracts, restructuring longer term contracts,
and
allowing shorter term contracts to expire without being renewed. In
addition to retaining Select Energy’s retail business, we will retain our 1,443
megawatts of competitive generating assets because we expect that their value
could increase significantly in the coming years. We will also retain
NGS,
which principally operates these plants.
The
NU
system is regulated in virtually all aspects of its business by various federal
and state agencies, including the Securities and Exchange Commission, the
Federal Energy Regulatory Commission, the Nuclear Regulatory Commission and
various state and/or local regulatory authorities with jurisdiction over
the
industry and the service areas in which each company operates.
Our
principal executive offices are located at One Federal Street, Building 111-4,
Springfield, Massachusetts 01105, telephone number (413) 785-5871. Our general
business offices are located at 107 Selden Street, Berlin, Connecticut 06037,
telephone number (860) 665-5000.
RISK
FACTORS
We
are
subject to a variety of significant risks in addition to the matters set
forth
under “Safe Harbor Statement Under the Private Securities Litigation Reform Act
of 1995” above. Our susceptibility to certain risks, including those
discussed in detail below, could exacerbate other risks. These risk
factors should be considered carefully in evaluating our risk
profile.
Risks
Related to Disposition of Wholesale Competitive and Services Businesses:
In
March
2005, we announced the decision to exit NUEI’s wholesale marketing business and
divest the energy services businesses. NUEI is exploring a number of
alternatives for exiting these businesses. To date, however, it has
disposed of a portion of the wholesale marketing business and none of the
energy
services businesses.
While
the
energy services businesses present a lower level of volatility and risk,
the
wholesale marketing business, until fully disposed of, will continue to present
financial risk to the Company from a variety of perspectives. These
include earnings volatility around Select Energy’s portfolio of electric supply
contracts, which will be accounted for on a mark-to-market basis until disposed
of or restructured. In the second quarter of 2005, the Company recorded
losses associated with this portfolio of $44.3 million after taxes during
the
second quarter. The combined first and second quarter earnings charge
of
$164.3 million associated with this portfolio in the aggregate may not be
adequate to absorb future negative price movements which may occur or if
further
charges are taken if the portfolio is divested.
NUEI
is
in the process of exiting the wholesale marketing business. Select
Energy’s ability to function will continue to be dependent upon the financial
reliability of its counterparties and its ability to manage its wholesale
marketing portfolio of contracts and assets within acceptable risk parameters
until these contracts are divested.
Risks
Related to NUEI’s Retail Marketing and Merchant Generation Businesses:
In
March
2005, we announced that NUEI intended to stay in the retail competitive energy
and generation businesses. Select Energy generally acquires retail
customer load in small increments, which while requiring careful sourcing,
allows energy assets to be acquired with lower risk. While retail
customers have a generally high retention rate, they normally contract for
periods of one to two years, making long-term load servicing difficult to
evaluate. In addition, fluctuations in prices, fuel costs, competitive
conditions, regulations, weather, transmission costs, lack of market liquidity,
plant outages and other factors can all impact the retail business adversely
from time to time.
A
significant portion of Select Energy's merchant energy marketing activities
has
been providing electricity to full requirements customers, which are primarily
regulated local distribution companies (“LDC”) and commercial and industrial
retail customers. Under the terms of full requirements contracts,
Select
Energy is required to provide a percentage of the LDC's electricity requirements
at all times. The volumes sold under these contracts vary based on
the
usage of the LDC's retail electric customers, and usage is dependent upon
factors outside of Select Energy's control, such as unanticipated migration
or
inflow of customers. The varying sales volumes could be different
than the
supply volumes that Select Energy expected to utilize, either from its limited
generation or from electricity purchase contracts, to serve the full
requirements contracts. Differences between actual sales volumes
and
supply volumes can require Select Energy to purchase additional electricity
or
sell excess electricity, both of which are subject to market conditions such
as
weather, plant availability, transmission congestion, and potentially volatile
price fluctuations that can impact prices and, in turn, Select Energy's margins.
The
competitive generation business is also subject to these risks. In
addition, although the market price of near and long-term capacity has
increased, the future value of Locational Installed Capacity (LICAP) credits
have not been determined and are subject to regulatory decision-making over
which we have no control. LICAP is an administratively determined
electric
generation capacity pricing mechanism intended to provide a revenue stream
sufficient to maintain existing generation assets, and encourage the
construction of new generation assets at levels sufficient to serve peak
load,
plus a fixed reserve margin and a statistically-determined contingency. In
June 2004, the FERC ordered the creation of five LICAP zones, including two
in
Connecticut.
Risks
Associated With The Transmission Operations Of Our Utility Subsidiaries:
The
Company, primarily through its subsidiary CL&P, has undertaken a substantial
transmission capital investment program over the past several years and expects
to invest more than $1.5 billion in regulated electric transmission
infrastructure from 2005 through 2009. Included in this amount is
approximately $1.4 billion for costs associated with construction of two
345 kV
transmission lines from Middletown, Connecticut to Norwalk, Connecticut and
from
Bethel, Connecticut to Norwalk; replacement of an undersea electric transmission
line between Norwalk and Northport, New York; and two 115 kV underground
transmission lines between Norwalk and Stamford, Connecticut. The
regulatory approval process for these transmission projects has encompassed
an
extensive permitting, design and technical approval process. Various
factors have resulted in increased cost estimates and delayed construction.
The
projects are expected to help alleviate reliability issues in southwest
Connecticut and to help reduce customers’ costs in all of Connecticut.
However, if, due to further regulatory or other delays, the projected
in-service date for one or more of these projects is delayed, there may be
increased risk of failures in the existing electricity transmission system
in
southwestern Connecticut and supply interruptions or blackouts may occur.
The
successful implementation of our transmission construction plans is also
subject
to the risk that new legislation, regulations or judicial or regulatory
interpretations of applicable law or regulations could impact our ability
to
meet our construction schedule and/or require us to incur additional expenses,
and may adversely affect our ability to achieve forecasted levels of
revenues.
Risks
Associated with the Distribution Operations of Our Utility Subsidiaries:
CL&P
and WMECO procure energy for a substantial portion of their customers via
requests for proposal on an annual, semi-annual or quarterly basis. There
is a risk that any given solicitation will not be fully subscribed or that
prices will be much higher than current prices. CL&P and WMECO receive
approvals of recovery of these contract prices from the Connecticut Department
of Public Utility Control and the Massachusetts Department of Telecommunications
and Energy, respectively. While both regulators have consistently
approved
solicitation processes, results and recovery of costs, management cannot
predict
the outcome of future solicitation efforts or the regulatory proceedings
related
thereto.
Litigation-Related
Risks: The
Company and its affiliates are engaged in litigation that could result in
the
imposition of large cash awards against them. This litigation includes
1)
civil lawsuits between Consolidated Edison, Inc. and the Company relating
to the
parties’ October 13, 1999 Agreement and Plan of Merger and 2) the
termination of a decommissioning contract between Connecticut Yankee Atomic
Power Company, the stock of which is 49 percent owned by subsidiaries of
the
Company, and Bechtel.
Further
information regarding these legal proceedings, as well as other matters,
is set
forth in Part I, Item 3, "Legal Proceedings," in our Form 10-K for the year
ended December 31, 2004 and in Part II, Item 1, "Legal Proceedings" of our
Form
10-Q for the quarter ended June 30, 2005.
We
may
also be subject to future litigation based on asserted or unasserted claims
and
cannot predict the outcome of any of these proceedings. Adverse outcomes
in existing or future litigation could result in the imposition of substantial
cash damage awards against us.
Risks
Associated With Environmental Regulation: Our
subsidiaries’ operations are subject to extensive federal, state and local
environmental statutes, rules and regulations which regulate, among other
things, air emissions, water discharges and the management of hazardous and
solid waste. Compliance with these requirements requires us to incur
significant costs relating to environmental monitoring, installation of
pollution control equipment, emission fees, maintenance and upgrading of
facilities, remediation and permitting. The costs of compliance with
these
legal requirements may increase in the future. An increase in such
costs,
unless promptly recovered, could have an adverse impact on our business and
results of operations, financial position and cash flows.
Our
failure to comply with environmental laws and regulations, even if due to
factors beyond our control or reinterpretations of existing requirements
could
also increase costs.
Existing
environmental laws and regulations may be revised or new laws and regulations
seeking to protect the environment may be adopted or become applicable to
us.
Revised or additional laws could result in significant additional
expense
and operating restrictions on our facilities or increased compliance costs
that
would negatively impact competitive generation margins or which may not be
fully
recoverable in distribution company rates for regulated generation. The
cost impact of any such legislation would be dependent upon the specific
requirements adopted and cannot be determined at this time.
RATIOS
OF EARNINGS TO FIXED CHARGES
Our
ratios of earnings to fixed charges for the six months ended June 30, 2005
and
for each of the years ended December 31, 2000 through 2004 are as follows:
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Year
Ended December 31,
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Six Months
Ended June
30, 2005
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2004
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2003
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2002
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2001
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2000
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Ratio
of Earnings to Fixed Charges(1)
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(0.60
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)
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1.57
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1.61
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1.73
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2.41
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2.03
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(1)
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For
purposes of computing the ratios: (i) earnings consists of pretax
income
from continuing operations, fixed charges on debt (including rate
reduction bonds), distributed income of equity investees and minority
interests; and (ii) fixed charges consist of interest on long-term
debt
(including rate reduction bonds), amortized premiums, discounts
and
capitalized expenses related to indebtedness, interest on short-term
debt,
interest component of rental expenses and other interest and preferred
dividend security requirements of consolidated
subsidiaries.
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USE
OF PROCEEDS
The
net
proceeds from the sale of the Securities will be used to (i) finance investments
in and capital expenditures by subsidiaries, (ii) finance working capital
needs
of subsidiaries, and (iii) other general corporate purposes, including the
acquisition,
retirement or redemption by the Company of any of its own securities.
DESCRIPTION
OF SECURITIES REGISTERED
COMMON
SHARES AND PREFERRED SHARES
As
of
June 30, 2005, our authorized capital stock was 225,000,000 shares, all of
which
were Common Shares. As of June 30, 2005, approximately 151.7 million Common
Shares were issued and approximately 129.7 Common Shares were outstanding.
Common
Shares.
Our
outstanding common shares are listed on the New York Stock Exchange (“NYSE”)
under the symbol “NU”. Any additional common shares we issue will also be listed
on the NYSE. Common shareholders may receive dividends if and when declared
by
our Board of Trustees. Dividends may be paid in cash, stock or other form.
All
outstanding common shares are fully paid and non-assessable. Any additional
common shares we issue will also be fully paid and non-assessable.
Each
common share is entitled to one vote in the election of Trustees and other
matters. Common shareholders are not entitled to cumulative voting rights.
Each
common shareholder received one common share purchase right per common share
owned under our Shareholder Rights Plan. This plan was adopted in 1999 and
will
terminate in 2009, unless earlier terminated or extended. This right permits
a
common shareholder to acquire additional common shares in the event certain
circumstances exist.
Common
shares, and securities convertible into common shares, which are issued in
a
public offering or to or through underwriters who have agreed to make a public
offering of such common shares, or convertible securities, are not subject
to
preemptive rights. Preemptive rights do not apply to the issue of common
shares,
or the grant of rights or options on such shares, to Trustees, officers or
employees, as such, of the Company or of a subsidiary of the Company, if
the
issue or grant is approved by the Company's shareholders or is authorized
by and
consistent with a plan approved by the Company's shareholders. Subject only
to
the foregoing exceptions and to certain other exceptions of minor significance,
holders of common shares have preemptive rights to subscribe to future issues
of
common shares issued for cash and to future issues for cash of securities
convertible into common shares.
We
will
notify common shareholders of any shareholders’ meetings according to applicable
law. If we liquidate, dissolve or wind up our business, either voluntarily
or
not, common shareholders will share equally in the assets remaining after
we pay
our creditors and preferred shareholders, if any.
The
Bank
of New York is our transfer agent and registrar. You may contact them
at
their Investors Relations Department, P.O. Box 11258, Church Street Station,
New
York, NY 10286-1258, Tel. (800)999-7269.
Preferred
Shares. We
do not
currently have preferred shares authorized although our Declaration of Trust
allows for the issuance of preferred shares subject to common shareholder
approval. Before we can issue preferred shares we will need to obtain the
authorization of our Board of Trustees and of our common shareholders. The
following description of the terms of the preferred shares sets forth certain
general terms and provisions. If we issue preferred shares, the specific
designations and rights will be described in the prospectus supplement and
a
description will be filed with the Commission.
Preferred
shares will have such par value, if any, such priority in liquidation, such
voting rights and such other rights, privileges, preferences, restrictions
and
limitations as may be established by our Board of Trustees and approved by
our
common shareholders. In some cases, the issuance of preferred shares could
delay
a change in control of the Company and make it harder to remove present
management. Under certain circumstances, preferred shares could also restrict
dividend payments to holders of our common shares.
The
preferred shares will, when authorized and issued, be fully paid and
non-assessable. Unless otherwise specified in the applicable prospectus
supplement, the preferred shares will rank on a parity in all respects with
any
outstanding preferred shares we may have at that time and will have priority
over our common shares as to dividends and distributions of assets. Therefore,
the rights of any preferred share may limit the rights of the holders of
our
common shares.
The
transfer agent, registrar, and dividend disbursement agent for a series of
preferred shares will be named in a prospectus supplement. The registrar
for
preferred shares will send notices to shareholders of any meetings at which
holders of the preferred shares have the right to elect Trustees or to vote
on
any other matter.
WARRANTS
We
may
issue warrants for the purchase of preferred shares, common shares, or any
combination thereof. Warrants may be issued independently or together with
other
securities and may be attached to or separate from any offered securities.
Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant agent. The
warrant agent will act solely as our agent in connection with the warrants
and
will not assume any obligation or relationship of agency or trust for us
with
any holders or beneficial owners of warrants.
This
summary of certain provisions of the warrants is not complete. For the complete
terms of the warrants and the warrant agreement, you should refer to the
provisions of the warrant agreement that we will file with the Commission
in
connection with the offering of such warrants.
The
applicable prospectus supplement will describe the following terms of any
warrants in respect of which this prospectus is being delivered:
•
the
title
of such warrants;
•
the
aggregate number of such warrants;
•
the
price
or prices at which such warrants will be issued;
•
the
currency or currencies, in which the price of such warrants will be
payable;
•
the
securities purchasable upon exercise of such warrants and the price at which
the
securities may be purchased;
•
the
date
on which the right to exercise such warrants shall commence and the date
on
which such right shall expire;
•
if
applicable, the minimum or maximum amount of such warrants which may be
exercised at any one time;
•
if
applicable, the designation and terms of the securities with which such warrants
are issued and the number of such warrants issued with each such
security;
•
if
applicable, the date on and after which such warrants and the related securities
will be separately transferable;
•
information
with respect to book-entry procedures, if any;
•
if
applicable, a discussion of any material United States Federal income tax
considerations; and
•
any
other
terms of such warrants, including terms, procedures and limitations relating
to
the exchange and exercise of such warrants.
We
and
the warrant agent may amend or supplement the warrant agreement for a series
of
warrants without the consent of the holders issued thereunder to effect changes
that are not inconsistent with the provisions of the warrants and that do
not
materially and adversely affect the interests of the holders of the
warrants.
SHARE
PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We
may
issue share purchase contracts, including contracts obligating holders to
purchase from us, and us to sell to the holders, a specified number of common
shares at a future date or dates. The price per common share and the number
of
common shares may be fixed at the time the share purchase contracts are issued
or may be determined by reference to a specific formula set forth in the
share
purchase contracts. The share purchase contracts may be issued separately
or as
part of units consisting of a share purchase contract and beneficial interests
in debt securities, preferred shares or debt obligations of third parties,
including U.S. treasury securities or obligations of our subsidiaries, securing
the holders’ obligations to purchase the common shares under the share purchase
contracts, which we refer to in this prospectus as share purchase units.
The
share purchase contracts may require us to make periodic payments to the
holders
of the share purchase units or vice versa, and these payments may be unsecured
or refunded on some basis. The share purchase contracts may require holders
to
secure their obligations under those contracts in a specified manner.
The
applicable prospectus supplement will describe the terms of the share purchase
contracts or share purchase units, including, if applicable, collateral or
depositary arrangements, relating to the share purchase contracts or share
purchase units.
MASSACHUSETTS
LAW AND OUR DECLARATION OF TRUST
General
The
Company is an unincorporated “voluntary association” formed under Massachusetts
law, a type of entity commonly referred to as a Massachusetts business trust.
For most purposes, except those explicitly set forth below, a Massachusetts
business trust is a common law entity governed solely by the company's
Declaration of Trust, which constitutes a contract among the Trustees and
shareholders or beneficiaries of the trust and is comparable to a certificate
of
incorporation and bylaws of a corporation.
Corporate
Governance The
rights of our shareholders are currently governed by Massachusetts law and
our
Declaration of Trust. Our Declaration of Trust provides that all matters
properly brought before a shareholder meeting at which a quorum is present
will
be decided by the majority vote of the shares present or represented by proxy
at
the meeting, except as otherwise set forth in the Declaration of Trust and
the
provisions of any class or classes of preferred shares that may be authorized.
The Declaration of Trust also provides that the Trustees may only be elected
with the affirmative vote of the holders of a majority of the outstanding
shares
with general voting power. A vote of two-thirds of all shares outstanding
and
having voting power may be required to take certain actions.
Amendments
To Governing Documents Our
Declaration of Trust provides that the trust may be altered, amended, added
to
or rescinded by the affirmative vote of at least two-thirds of the member
of our
board of Trustees, provided that any such alteration, amendment, addition
or
rescission must also be approved by the affirmative vote or the written consent
of the holders of at least two-thirds of all shares issued and outstanding
and
having general voting power. However, no alteration, amendment, addition
or
rescission adversely affecting the preferences or priorities of any preferred
shares will be effective without the affirmative vote or written consent
of the
holders of at least two-thirds of the affected preferred shares.
Preemptive
Rights Our
Declaration of Trust provides that the holders of common shares and convertible
securities will have preemptive rights with respect to offerings for cash
of
common shares or securities convertible into common shares, except with respect
to:
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common
shares, or the grant of rights or options on such shares, to Trustees,
directors, officers, or employees the Company or of a subsidiary
of the
Company, if the issue or grant is approved by the holders of common
shares
at a meeting duly held for such purpose or is authorized by and
consistent
with a plan previously so approved by the holders of common
shares;
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common
shares issued on the conversion of convertible securities, if the
convertible securities were offered or issued to holders of common
shares
in satisfaction of their preemptive rights or were not subject
to
preemptive rights;
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common
shares and convertible securities offered to shareholders in satisfaction
of their preemptive rights and not purchased by those
shareholders;
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common
shares or convertible securities issued pursuant to a plan adjusting
any
rights to fractional shares or fractional interests in order to
prevent
the issue of fractional shares or fractional interests in these
shares;
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common
shares or convertible securities issued in connection with a merger
or
consolidation or pursuant to an order of a court, unless such order
provides otherwise;
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common
shares or convertible securities issued in a public offering or
through an
underwriting;
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common
shares or convertible securities released from preemptive rights
through
the affirmative vote or written consent of the holders of at least
two-thirds of the common shares then outstanding; or
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common
shares or convertible securities held in our treasury.
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Board
of Trustees Members
of our Board of Trustees serve one-year terms and are elected annually.
Shareholder
Proposals and Trustee Nominations Our
shareholders can submit shareholder proposals and nominate candidates for
the
Board of Trustees if the shareholders follow advance notice procedures described
in our annual proxy statement.
Meetings
of Shareholders Under
our
Declaration of Trust, meetings of the shareholders may be called only by
the
chairman of the board, the president, or a majority of the Board of Trustees
or
may be requested by the holders of one-tenth (1/10) in interest of all shares
outstanding having a right to vote.
Indemnification
Of Trustees And Officers
Our
Declaration of Trust provides that the Company will indemnify each of its
present and former Trustees and officers against any loss, liability or expense
incurred in proceedings in which such person may be involved by reason of
being
or having been an officer or Trustee, except with respect to any matter as
to
which such person shall have been finally adjudicated in such proceeding
not to
have acted in good faith in the reasonable belief that such person's action
was
in the best interests of the Company. If any such proceeding is disposed
of by a
compromise payment by any such Trustee or officer, no indemnification payment
will be provided unless a determination is made that such officer or Trustee
acted in good faith in the reasonable belief that such person's action was
in
our best interests. Such determination must be made by either the Board of
Trustees by majority vote of the quorum consisting of Trustees who were not
parties to such proceeding, by independent legal counsel to the Company in
a
written opinion, or by the shareholders.
Limitation
On Trustee Liability
The
Declaration of Trust provides that no member of the Board of Trustees will
be
liable to the Company or its shareholders for monetary damages due to any
breach
of fiduciary duty, except for:
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breaches
of such person's duty of loyalty to the Company or its
shareholders;
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acts
or omissions not in good faith or which involve intentional misconduct
or
a knowing violation of law; or
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any
transaction from which such person derived an improper personal
benefit.
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Antitakeover
Statutes A
Massachusetts anti-takeover statute, Chapter 110F of the Massachusetts General
Laws, prohibits any business combination with an interested shareholder,
generally a person who owns or has recently owned at least 5% of the company's
outstanding voting shares, for three years after the person becomes an
interested shareholder unless:
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prior
to the 5% purchase, the Board of Trustees approves either the 5%
purchase
or the proposed business combination;
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the
interested shareholder owned approximately 90% of the company's
voting
shares after making the 5% purchase which rendered him or her an
interested shareholder; or
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the
Board of Trustees and holders of two-thirds of the non-interested
shares
approve the business combination after the acquiror has become
an
interested stockholder.
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Another
Massachusetts anti-takeover statute, Chapter 110D of the Massachusetts General
Laws, regulates the acquisition of control shares. A control share acquisition
occurs when an individual aggregates a number of shares which, when added
to
shares already owned, would allow the acquiring person to vote at least 20%
of
the company's shares. Under Chapter 110D, shares acquired in this type of
a
transaction would have no voting rights unless a majority of non-interested
shareholders specifically voted to grant the acquiring person voting rights
for
these shares. In general, the acquiring person as well as officers and
employee-Trustees of the Company are not permitted to vote on whether these
voting rights should be granted.
Our
Declaration of Trust does not address antitakeover regulations or
protections.
SENIOR
NOTES
General. The
following description sets forth certain general terms and provisions of
the
Senior Notes. 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
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.
As
of
June 30, 2005, we had issued and outstanding $263,000,000 of Senior Notes,
Series A Due 2012, and $150,000,000 of Senior Notes, Series B, Due 2008.
Additional Senior Notes will be issued under a supplemental indenture or
indentures to our indenture (the “Senior Note Indenture”), between us and
The Bank of New York Trust Company, N.A., as successor trustee (the “Senior Note
Trustee”) dated as of April 1, 2002, as amended and supplemented. You may
contact the Senior Note Trustee at their Corporate
Trust Administration Office at 470 Atlantic Avenue, Suite 4082, Boston, MA
02210, Tel. (617) 273-8368
The
Senior Notes will be our senior unsecured debt securities and will rate equally
with all of our other unsecured and unsubordinated debt. 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:
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the
designation and aggregate principal amount of such Senior Notes;
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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;
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•
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the
dates on which such interest will be payable or method by which
such dates
are to be determined;
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the
record dates for payments of interest;
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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;
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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
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other
specific terms applicable to such Senior Notes. (Section 301)
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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 (“1935 Act”)
from lending money to us, indemnifying our creditors or guaranteeing our
obligations. However, Congress has repealed the 1935 Act, effective February
8,
2006. 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
June
30, 2005, we and our subsidiaries had approximately $3.2 billion of outstanding
debt for borrowed money, which includes long-term debt (including $45 million
due within one year) and short-term debt but does not include trade debt,
capital leases or power purchase obligations, approximately $116.2 million
of
outstanding preferred stock and approximately $1.5 billion of rate reduction
bonds. 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)
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:
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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
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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.
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We
shall
also be required to deliver to the Senior Note Trustee certificates and opinions
stating that such consolidation, merger, conveyance, sale or transfer comply
with the Senior Note Indenture and all relevant conditions precedent 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 capital stock of any of
its subsidiaries, without effectively providing that the outstanding Senior
Notes of such series (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
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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;
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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;
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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);
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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
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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).
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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:
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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 of such series being
effectively
secured equally and ratably with (or prior to) that Debt; or
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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, 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:
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the
retirement of long-term indebtedness of the Company ranking prior
to or on
a parity with the Senior Notes of such series or
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the
investment in any property used in the ordinary course of business
by the
Company.
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“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. (Section
1012)
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:
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change
the date upon which the principal of or the interest on any Senior
Note is
due and payable;
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reduce
the principal amount thereof or the rate of interest thereon or
any
premium payable upon the redemption thereof;
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change
any place of payment where, or the currency in which, any Senior
Note or
any premium or the interest thereon is payable;
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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);
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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
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modify
certain provisions of the Senior Note Indenture. (Section 902)
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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
Person 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)
Events
of Default. An
Event of Default with respect to the Senior Notes is defined in the Senior
Note
Indenture as being:
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failure
to pay any interest on the Senior Notes and continuance of such
failure
for 30 days;
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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;
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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;
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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
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certain
events of bankruptcy, insolvency, reorganization, receivership
or
liquidation involving us. (Section 501)
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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, however, that if an Event of
Default
shall have occurred and be continuing with respect to less than all of the
series of Senior Notes, the Holders of a majority in aggregate principal
amount
of the Senior Notes of all such series, considered as one class, shall have
the
right to make such direction, and 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 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 (c) a combination thereof, in each case sufficient to pay and
discharge
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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
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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;
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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;
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we
deliver to the Senior Note Trustee an opinion of counsel to the
effect
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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;
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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
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that
the defeasance trust is not, or is registered as, an investment
company
under the Investment Company Act of 1940; and
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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)
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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:
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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;
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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
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the
rights, powers, trusts, duties, protections and immunities of the
Senior
Note Trustee under the Senior Note Indenture. (Section 101)
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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
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 Trustee, incorporator,
stockholder, officer or director, as such, past, present or future, of ours
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 and registrar and transfer agent of our
common
shares. In addition, an affiliate of the Senior Note Trustee is a lending
party
to two of our system revolving credit facilities with total commitment amounts
under each facility of approximately $39 million and $31 million.
Book-Entry
Only System. The
Depository Trust Company (“DTC”), New York, New York, will act as securities
depository for the Senior Notes. The Senior Notes will be issued as fully-
registered securities registered in the name of Cede & Co. (DTC’s
partnership nominee) or such other name as may be requested by an authorized
representative of DTC. One fully-registered Senior Note certificate (the
“Global
Notes”) will be issued for each series of Senior Notes, each in the aggregate
principal amount of such series, and will be deposited with DTC.
So
long
as DTC, or its nominee, is the registered owner of the Global Note, DTC 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, including for any notices and voting. Except in limited
circumstances, the 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 and will not
be
considered the Holders thereof under the Senior Note Indenture. Accordingly,
each person holding a beneficial interest in a Global Notes must rely on
the
procedures of DTC and, if such person is not a Direct Participant (as defined
below), on procedures of the Direct Participant through which such person
holds
its interest, to exercise any of the rights of a registered owner of the
Senior
Notes.
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)
DTC
has
advised us as follows: DTC, the world’s largest depository, 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 agency” 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. DTC holds and provides asset servicing
for
over 2.2 million issues of U.S. and non-U.S. equity, corporate and municipal
debt issues, and money market instruments from over 100 countries that DTC’s
participants (“Direct Participants”) deposit with DTC. DTC also facilitates the
post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities through electronic computerized book-entry
transfers and pledges between Direct Participants’ accounts. This eliminates the
need for physical movement of securities certificates. Direct Participants
include both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is
a
wholly-owned subsidiary of The Depository Trust & Clearing Corporation
(“DTCC”). DTCC, in turn, is owned by a number of Direct Participants of DTC and
Members of the National Securities Clearing Corporation, Fixed Income Clearing
Corporation, and Emerging Markets Clearing Corporation (NSCC, FICC, and EMCC,
also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc.,
the
American Stock Exchange, LLC and the National Association of Securities Dealers,
Inc. Access to the DTC system is also available to others such as both U.S.
and
non-U.S. securities brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial relationship with
a
Direct Participant, either directly or indirectly (“Indirect Participants”). DTC
has Standard & Poor’s highest rating: AAA. The DTC Rules applicable to its
Participants are on file with the Commission. More information about DTC
can be
found at www.dtcc.com and www.dtc.org.
Purchases
of Senior Notes under the DTC system must be made by or through Direct
Participants, which will receive a credit for such purchases of Senior Notes
on
DTC’s records. The ownership interest of each actual purchaser of each Senior
Note ("Beneficial Owner"), is in turn to be recorded on the Direct and Indirect
Participants’ records. Beneficial owners will not receive written confirmation
from DTC of their purchase. Beneficial owners are, however, expected to receive
written confirmation providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Senior Notes are to be accomplished by entries made on the
books of Direct or Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interest in the Senior Notes, except in the event that use of the book-entry
system for the Senior Notes is discontinued.
To
facilitate subsequent transfers, all Senior Notes deposited by Direct
Participants with DTC are registered in the name of DTC’s partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Senior Notes with DTC and their
registration in the name of Cede & Co. or such other nominee name do not
effect any change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Senior Notes; DTC’s records reflect only the identity
of the Direct Participants to whose account such Senior Notes are credited,
which may or may not be the Beneficial Owners. The Direct and Indirect
Participants will remain responsible for keeping account of their holdings
on
behalf of their customers.
Conveyance
of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among
them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Redemption
notices shall be sent to DTC. If less than all of the Senior Notes of a series
are being redeemed, DTC’s practice is to determine by lot the amount of the
interest of each Direct Participant in such issue to be redeemed.
Neither
DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with
respect to the Senior Notes unless authorized by a Direct Participant in
accordance with DTC’s Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to us as soon as possible after the record date. The Omnibus
Proxy
assigns Cede & Co.’s consenting or voting rights to those Direct
Participants to whose accounts the Senior Notes are credited on the record
date
(identified in a listing attached to the Omnibus Proxy).
Redemption
proceeds, distributions and dividend payments on the Senior Notes will be
made
to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC’s practice is to credit Direct Participants’ accounts
upon DTC’s receipt of funds and corresponding detail information from us or the
Senior Note Trustee on payable date in accordance with the respective holdings
shown on DTC’s records. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is 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 Participant and not of DTC,
nor its nominee, the Senior Note Trustee, or us, subject to any statutory
or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions and dividend payments to Cede & Co. (or
such other nominee as may be requested by an authorized representative of
DTC),
is the responsibility of the Senior Note Trustee and us. Disbursement of
such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of the Direct and Indirect Participants.
DTC
may
discontinue providing its services as securities depository with respect
to the
Senior Notes at anytime by giving reasonable notice to us or the Senior Note
Trustee. Under such circumstances, in the event that a successor securities
depository is not obtained, Senior Note certificates are required to be printed
and delivered.
We
may decide to discontinue use of book-entry-only
transfers through DTC (or a successor securities depository). In
that
event, Senior Note certificates will be printed and delivered
to
DTC.
The
information in this section concerning DTC and DTC’s book-entry system has been
obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
The
underwriters, dealers or agents of any of the securities may be Direct
Participants of DTC.
Neither
the Senior Note Trustee, us, nor any agent for payment on or registration
of
transfer or exchange of any Global Notes will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial interests in such Global Notes or for maintaining, supervising
or
reviewing any records relating to such beneficial interests.
LEGAL
OPINIONS
Legal
opinions relating to the validity of the Securities will be given by Jeffrey
C.
Miller, Assistant General Counsel of Northeast Utilities Service Company,
a
service company affiliate for the Company. Any underwriters will be advised
about other issues relating to any offering by their own legal
counsel.
EXPERTS
The
consolidated financial statements, the related consolidated financial statement
schedules and management's assessment regarding the effectiveness of internal
control over financial reporting incorporated in this prospectus by reference
from the Company's Annual Report on Form 10-K for the year ended December
31,
2004, have been audited by Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports which are incorporated
herein
by reference (which report on the consolidated financial statements and related
consolidated financial statement schedules expresses an unqualified opinion
and
includes explanatory paragraphs relating to the adoption of Financial Accounting
Standards Board Interpretation No. 46, Consolidation of Variable Interest
Entities, in 2003 and the restatement of the consolidated balance sheet as
of
December 31, 2003 and consolidated statement of cash flows for the year then
ended, and which report on management’s assessment and on the effectiveness of
internal control over financial reporting expresses an unqualified opinion
on
management's assessment regarding the effectiveness of internal control over
financial reporting, and expresses an adverse opinion on the effectiveness
of
the Company's internal control over financial reporting because of a material
weakness) and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and
auditing.
With
respect to the unaudited interim financial information for the periods ended
March 31, 2005 and 2004 and June 30, 2005 and 2004 which is incorporated
herein
by reference, Deloitte & Touche LLP, an independent registered public
accounting firm, have applied limited procedures in accordance with the
standards of the Public Company Accounting Oversight Board (United States)
for a
review of such information. However, as stated in their reports included
in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31,
2005
and June 30, 2005 and incorporated by reference herein, they did not audit
and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on such information
should
be restricted in light of the limited nature of the review procedures applied.
Deloitte & Touche LLP are not subject to the liability provisions of Section
11 of the Securities Act of 1933 for their reports on the unaudited interim
financial information because those reports are not “reports” or a “part” of the
registration statement prepared or certified by an accountant within the
meaning
of Sections 7 and 11 of the Act.
PLAN
OF DISTRIBUTION
We
may
sell the offered securities (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 securities 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 securities
being sold.
If
we use
any underwriters in the sale of securities, 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
securities 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. In the case of equity securities, we may grant the
underwriters an option permitting the purchase of additional securities at
the
same price then being offered. The price applicable to additional securities
sold in any such transaction will be based on several factors, including
the
current market price of the securities and prevailing capital market conditions.
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 securities offered in the Prospectus Supplement
if any are purchased.
If
any of
the securities 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 securities. 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.
Any
underwriters utilized may engage in stabilizing transactions and syndicate
covering transactions in accordance with Rule 104 of Regulation M under the
Securities Exchange Act of 1934. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed
a
specified maximum. Syndicate covering transactions involve purchases of the
particular offered securities in the open market after the distribution has
been
completed in order to cover syndicate short positions. These stabilizing
transactions and syndicate covering transactions may cause the price of the
securities being offered to be higher than it would otherwise be in the absence
of such transactions.
In
connection with the sale of the securities being offered, 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 securities 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
(including the extension of credit) 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.
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
|
|
$
|
88,275
|
* |
|
Printing
costs
|
|
|
40,000
|
|
|
Accounting
Fees
|
|
|
135,000
|
|
|
Fees
and expenses of Senior Note Trustee
|
|
|
10,000
|
|
|
Fees
of rating agencies
|
|
|
147,250
|
|
|
Reimbursement
of underwriters’ expenses and counsel fees in connection with
qualification or registration of the Senior Notes under state securities
or “blue sky” laws
|
|
|
10,000
|
|
|
Counsel
Fees
|
|
|
150,000
|
|
|
Miscellaneous
and incidental expenses, including travel, telephone, copying
|
|
|
5,000
|
|
|
Total
|
|
$
|
585,525
|
|
|
ITEM
15.
|
INDEMNIFICATION
OF TRUSTEES 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 them, 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 them 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 or her own
receipts and for his or her own willful acts, neglects and defaults constituting
a breach of trust knowingly and intentionally committed by him or her 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
such
Trustee’s own willful act, neglect or default constituting a breach of trust
knowingly and intentionally committed by him or her 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 or
her
reasonable expenses and outlays and to be put in funds and exonerated and
indemnified to their or his or her reasonable satisfaction from time to time,
against any and all loss, costs, expense and liability incurred or to be
incurred by them or him or her 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
or
her 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 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 of Trust (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
such person may be involved or with which such person may be threatened,
while
in office or thereafter, by reason of such person’s 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 or her 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 such person’s 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 their 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 or she 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 or she shall not be entitled to
indemnification.
The
rights of indemnification provided by the Declaration of Trust are not 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 such person’s 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. The Company also maintains
an insurance policy that insures its Trustees and officers against certain
liabilities.
|
EXHIBIT NO.
|
DESCRIPTION
|
| |
|
|
1
|
Form
of Underwriting Agreement.*
|
| |
|
|
4.1
|
Declaration
of Trust of Northeast Utilities, as amended through May 10, 2005
(incorporated by reference to Exhibit A.1, NU Form U-1 dated June
23,
2005, File No. 70-10315).
|
| |
|
|
4.2
|
Indenture
dated April 1, 2001 (incorporated herein by reference to Exhibit
A-3 to
Rule 24 Certificate (35-CERT) filed April 16, 2002, File
No.70-9535)
|
| |
|
|
4.3
|
Form
of Supplemental Indenture*
|
| |
|
|
5
|
Opinion
of Jeffrey C. Miller regarding the legality of the securities being
issued.**
|
| |
|
|
12
|
Statement
re: computation of Ratio of Earnings to Fixed
Charges.**
|
| |
|
|
15
|
Letter
of Deloitte & Touche LLP to Northeast Utilities re: unaudited interim
financial information.
|
| |
|
|
23.1
|
Consent
of Deloitte & Touche LLP
|
| |
|
|
23.2
|
Consent
of Jeffrey C. Miller, Esq. (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 Trust Company, N.A., as Trustee, under the Senior
Note
Indenture.
|
|
*
|
Northeast
Utilities will file as an exhibit to a Current Report on Form
8-K (i) any
underwriting, remarketing or agency agreement relating to securities
offered hereby, (ii) the instruments setting forth the terms
of any debt
securities or preferred stock, and (iii) any additional required
opinions
of counsel with respect to legality of the securities offered
hereby.
|
| ** |
Previously
filed with the Form S-3 filed October 4,
2005 |
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, 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.
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 November 2, 2005.
| |
NORTHEAST
UTILITIES
|
| |
(REGISTRANT)
|
| |
|
/s/
Gregory B. Butler
|
| |
By:
|
|
| |
|
Gregory
B. Butler
|
| |
|
Senior
Vice President, General Counsel and
Secretary
|
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 Gregory
B. Butler, David R. McHale, Randy A. Shoop, Patricia C. Cosgel and Jeffrey
C.
Miller, 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
|
| |
|
|
|
|
*
|
|
Chairman
of the Board, President and Chief Executive Officer and a
Trustee
|
November 2,
2005
|
|
Charles
W. Shivery
|
| |
|
|
|
|
*
|
|
Senior
Vice President and Chief Financial Officer
|
|
|
David
R. McHale
|
| |
|
|
|
|
*
|
|
Vice
President—Accounting and Controller
|
|
|
John
P. Stack
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
Richard
H. Booth
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
Cotton
M. Cleveland
|
|
SIGNATURE
|
|
TITLE
|
DATE
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
Sanford
Cloud, Jr.
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
James
F. Cordes
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
E.
Gail De Planque
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
John
G. Graham
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
Elizabeth
T. Kennan
|
| |
|
|
|
|
*
|
|
Trustee
|
|
|
Robert
E. Patricelli
|
| |
|
|
|
|
*
John
F. Swope
|
|
Trustee |
November
2, 2005
|
| |
|
|
|
| *
/s/ Gregory B. Butler |
|
Attorney-in-Fact |
November
2, 2005
|
|
|