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As filed with the Securities and Exchange Commission on
August 29, 2003
File No. 70-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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APPLICATION-DECLARATION
ON FORM U-1
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of companies filing this statement and
address of principal executive offices)
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of top registered holding company parent)
Mark H. Collin
Senior Vice President, Chief Financial Officer & Treasurer
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name and address of agent for service)
The Commission is requested to mail copies of
all orders, notices and communications to:
Sheri E. Bloomberg, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS
Unitil Corporation, a New Hampshire corporation ("Unitil" or
"Applicant") and a registered holding company under the Public Utility Holding
Company Act of 1935, as amended (the "Act"), hereby submits this
application-declaration on Form U-1 (the "Application-Declaration") to the
Securities and Exchange Commission (the "Commission") for authorization and
approval under Sections 6(a) and 7 of the Act with respect to the issuance and
sale of up to 717,600 shares of common stock, no par value ("Additional Common
Stock"), of Unitil.
Unitil is authorized under its articles of incorporation to issue
8,000,000 shares of common stock, and as of June 30, 2003, 4,753,630 shares of
common stock were issued and outstanding. Unitil is currently proposing an
offering for cash of up to 717,600 shares of Additional Common Stock.
Concurrently with this Application-Declaration, Unitil is filing a registration
statement on Form S-3 (the "Registration Statement") with the Commission in
order to register this proposed offering under the Securities Act of 1933, as
amended (the "Securities Act"). Upon issuance, the Additional Common Stock will
be fully paid and non-assessable, and subject to the rights and preferences set
forth in Unitil's Articles of Incorporation and By-laws and pursuant to New
Hampshire law that are applicable to all shares of outstanding common stock of
Unitil.
Unitil expects to issue and sell the Additional Common Stock to the
public through underwriters, who will acquire such Additional Common Stock for
their own account and may resell the shares of the Additional Common Stock 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
sale. The Additional Common Stock may be offered to the public either through an
underwriting syndicate (which may be represented by a managing underwriter or
underwriters designated by Unitil) or directly by one or more underwriters
acting alone. The offering is expected to be effected pursuant to an
underwriting agreement of a type generally standard in the industry and Unitil
may grant the underwriters thereof a "green shoe" option to purchase additional
shares at the same price then offered solely for the purpose of covering
over-allotments (provided that the total number of shares offered initially,
together with the number of shares issued pursuant to any such option shall not
exceed the number of shares authorized for issuance by any order granted under
this Application-Declaration).\1 It is also possible that the Additional Common
Stock will be sold by Unitil through dealers, agents or directly to a limited
number of purchasers or a single purchaser. If dealers are utilized in the sale
of any of the Additional Common Stock, Unitil will sell such Additional Common
Stock to the dealers as principals. Any dealer may then resell such securities
to the public at varying prices to be determined by such dealer at the time of
resale.
The aggregate price of the Additional Common Stock being sold through
any underwriter or dealer shall be calculated based on either the specified
selling price to the public or the closing price of the common stock on the day
such offering is announced. Public distributions may be pursuant to private
___________________
/1 The aggregate amount of the Additional Common Stock for which authorization
is sought hereunder also takes into account the permitted increase in the size
of the offering that could occur pursuant to Rule 462(b) of the Securities Act
of 1933 through an automatically effective amendment to Unitil's registration
statement.
negotiation with underwriters, dealers or agents as discussed above or effected
through competitive bidding among underwriters. In addition, sales may be made
through private placements or other non-public offerings to one or more persons.
The sale of the shares of Additional Common Stock will be at prices and under
conditions negotiated or based upon, or otherwise determined by, competitive
capital markets. The underwriting fees, commissions or other similar
remuneration paid in connection with the issue, sale or distribution of the
Additional Common Stock pursuant to this Application-Declaration (not including
any original issue discount) will not exceed 7% of the aggregate principal or
total amount of the Additional Common Stock being issued.
Unitil intends to use the net proceeds (after deduction of fees,
commissions and expenses) of the offering (i) to make cash capital contributions
to its subsidiaries, including, without limitation, its public utility
subsidiaries, Fitchburg Gas and Electric Light Company ("Fitchburg") and Unitil
Energy Systems, Inc. ("Unitil Energy"), pursuant to Rule 45(a)(4) of the Act,
(ii) to repay its outstanding short-term indebtedness and (iii) for other
general corporate purposes consistent with the requirements of the Act,
including to meet working capital needs. Unitil Energy and Fitchburg are
expected, in turn, to use any such funds contributed by Unitil to repay
outstanding short-term indebtedness incurred for additions, extensions and
betterments to their respective property, plant and equipment and to finance
future expenditures for additions, extensions and betterments to property, plant
and equipment. Unitil represents that no proceeds from any offering authorized
hereunder will be used (a) to acquire any exempt wholesale generators ("EWG") or
foreign utility companies ("FUCO"), as those terms are defined in Sections 32
and 33 of the Act, respectively, or (b) to acquire or form a new subsidiary
unless such financing is consummated in accordance with an order of the
Commission or an available exemption under the Act.
At June 30, 2003, Unitil's consolidated capitalization ratio was
approximately as follows: (in $1,000)
Long-Term Debt $104,348 47%
Short-Term Debt 42,490 19
Preferred Stock 3,269 1
Common Stock 73,318 33
-------- ---
Total $223,425 100%
======== ====
The reported closing price of Unitil common stock on the American Stock
Exchange on August 27, 2003 was $25.84 per share. Assuming that all the
Additional Common Stock is sold at that price, at June 30, 2003 and application
of the proceeds as set forth above, Unitil's consolidated capitalization ratios
would have been approximately as follows: (in $1,000)
Long-Term Debt $104,348 47%
Short-Term Debt 25,109 11
Preferred Stock 3,269 1
Common Stock 90,699 41
--------- ---
Total $223,425 100%
======== ====
2
Unitil also notes that the capital contributions it intends to make to
its public utility subsidiaries will facilitate the compliance by these
subsidiary companies with the terms set forth in the Commission's order dated
June 30, 2003 (Holding Co. Act Release No. 27691) relating to the short-term
debt authority of the Unitil system that Unitil, Unitil Energy and Fitchburg
maintain a common equity level (as reflected in Unitil's most recent Forms 10-K
or 10-Q filed with the Commission under the Securities and Exchange Act of 1934,
as amended, adjusted to reflect changes in capitalization since the balance
sheet date therein) of at least 30% of its consolidated capitalization (composed
of common equity, preferred stock, short-term debt and long-term debt) during
the period of such short-term debt authorization. Indeed, assuming use of the
proceeds as set forth above, Unitil Energy's common equity level at June 30,
2003 would have increased to 37% from 31%, and Fitchburg's common equity level
would have increased to 37% from 32%.
In order to facilitate maximizing the net proceeds to Unitil from any
offering of Additional Common Stock, which is subject to changing market
conditions, Unitil requests a waiver of Rule 24(c)(1) to permit the consummation
of any offering subject to this Application-Declaration to occur at any time
prior to January 31, 2004. Unitil will file the certificate required under Rule
24(a) within 10 days after the consummation of any such offering.
The Additional Common Stock will not be issued pursuant to the
authorization requested hereunder unless all outstanding debt securities of
Unitil that are rated are rated investment grade. For purposes of this
condition, a debt security will be considered rated investment grade if it is
rated investment grade by at least one nationally recognized statistical rating
organization, as that term is used in paragraphs (c)(2)(vi)(E), (F) and (H) of
Rule 15c3-1 under the 1934 Act.\2
The proposed transactions may be subject to Rules 53 and 54 under the
Act. Neither Unitil nor any subsidiary thereof presently has, or as a
consequence of the proposed transactions will have, an interest in any EWG or
FUCO. None of the proceeds from the proposed transactions will be used to
acquire any securities of, or any interest in, an EWG or FUCO. Consequently, all
applicable requirements of Rule 53(a)-(c) under the Act are satisfied as
required by Rule 54 under the Act.
ITEM 2. FEES, COMMISSIONS AND EXPENSES
The fees, commissions and expenses of the Applicant expected to be paid
or incurred, directly or indirectly, in connection with the transactions
described above are estimated as follows:
Filing Fees ......................................$*
Legal fees........................................ *
Accounting Fees................................... *
Printing Fees..................................... *
____________________
/2 Unitil notes that none of its outstanding debt securities have been issued in
a public offering and none are currently rated by a nationally recognized
statistical rating organization.
3
Miscellaneous..................................... *
Total....................................$*
*To be filed by amendment
ITEM 3. APPLICABLE STATUTORY PROVISIONS
Sections 6(a) and 7 of the Act are directly applicable to this
Application-Declaration.
ITEM 4. REGULATORY APPROVALS
Prior to the issuance of the Additional Common Stock in a registered
public offering, the Commission must declare the Registration Statement to be
effective under the Securities Act. No state or federal agency other than the
Commission has jurisdiction with respect to any of the transactions for which
authorization is sought hereby other than as described in this item.
ITEM 5. PROCEDURE
It is requested that the Commission issue and publish no later than
September 5, 2003 the requisite notice under Rule 23 with respect to this
Application-Declaration; such notice specifying a date not later than September
30, 2003 as the date after which an order granting and permitting this
Application-Declaration to become effective may be entered by the Commission and
that the Commission enter not later than October 1, 2003, an appropriate order
granting and permitting this Application-Declaration to become effective.
No recommended decision by a hearing officer or other responsible
officer of the Commission is necessary or required in this matter. The Division
of Investment Management of the Commission may assist in the preparation of the
Commission's decision in this matter. There should be no thirty-day waiting
period between the issuance and effective date of any order issued by the
Commission in this matter, and it is respectfully requested that any such order
be made effective immediately upon the entry thereof.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
(a) Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
A-1 Articles of Incorporation of Unitil
(Filed as exhibit 3.1 to the 1992
Form S-14 Registration Statement of
Unitil, File No. 2-93769, and
incorporated by reference herein).
A-2 Articles of Amendment to Articles of
Incorporation (Filed as exhibit 3.2
to the 1992 Form S-14 Registration
Statement of Unitil, File No.
2-93769, and incorporated by
reference herein).
4
Exhibit No. Description of Exhibit
----------- ----------------------
A-3 By-laws of Unitil (Filed as exhibit 3.2 to the
1992 Form 10-K of Unitil
and incorporated by reference herein).
B-1 Form of Underwriting Agreement (To be
filed with the Commission under the
Securities Act and incorporated by
reference herein).
B-2 Registration Statement on Form S-3
under the Securities Act relating to
the Additional Common Stock (To be
filed with the Commission under the
Securities Act and incorporated by
reference herein).
F-1 Opinion of Counsel (To be filed by Amendment).
F-2 "Past Tense" Opinion of Counsel
(To be filed by Amendment).
G-1 Proposed Form of Notice.
(b) Financial Statements
No. Description of Financial Statement
--- ----------------------------------
FS-1 Unitil Corporation Consolidated Actual Balance Sheet
and Statement of Earnings, December 31, 2002 and
Unaudited Actual Balance Sheet and
Statement of Earnings, March 31, 2003
and June 30, 2003 (Filed with the
Commission with Unitil's Form 10-K
for the year ended December 31, 2002
and Form 10-Q for the quarters ended
March 31, 2003 and June 30, 2003, and
incorporated by reference herein).
FS-2 Unitil Corporation Consolidated Pro Forma Balance Sheet
and Statementof Earnings.
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS
None of the matters that are the subject of this
Application-Declaration involve a "major federal action" nor do they
"significantly affect the quality of the human environment" as those terms are
used in Section 102(2)(C) of the National Environmental Policy Act. None of the
proposed transactions that are the subject of this Application-Declaration will
result in changes in the operation of the Applicant that will have an impact on
the environment. The Applicant are not aware of any federal agency which has
prepared or is preparing an environmental impact statement with respect to the
transactions proposed herein.
5
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the Applicant has duly caused this Application-Declaration to be signed
on its behalf by the undersigned thereunto duly authorized.
Dated: August 29, 2003
UNITIL CORPORATION
By: /s/ Mark H. Collin
----------------------------------------
Name: Mark H. Collin
Title: Senior Vice President,
Chief Financial Officer & Treasurer
6
Exhibit G-1
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35- ___; 70 ___)
Unitil Corporation
Notice of Proposal to Issue and Sell Common Stock
Unitil Corporation ("Unitil"), 6 Liberty Lane West, Hampton, New
Hampshire 03842, has filed an Application- Declaration with this Commission
pursuant to Sections 6(a) and 7 of the Public Utility Holding Company Act of
1935 ("Act").
Unitil proposes to issue and sell for cash prior to January 31, 2004 up
to 717,600 additional shares of its common stock, no par value (the "Additional
Common Stock"). Unitil has a total of 8,000,000 authorized shares of common
stock, of which 4,753,630 shares were issued and outstanding at June 30, 2003.
Unitil expects to issue and sell the Additional Common Stock to the
public through underwriters, who will acquire such Additional Common Stock for
their own account and may resell the shares of the Additional Common Stock 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
sale. The offering is expected to be effected pursuant to an underwriting
agreement of a type generally standard in the industry and Unitil may grant the
underwriters thereof a "green shoe" option to purchase additional shares at the
same price then offered solely for the purpose of covering over-allotments
(provided that the total number of shares offered initially, together with the
number of shares issued pursuant to any such option shall not exceed the number
of shares authorized for issuance by any order granted under the
Application-Declaration). It is also possible that the Additional Common Stock
will be sold by Unitil through dealers, agents or directly to a limited number
of purchasers or a single purchaser.
The aggregate price of the Additional Common Stock being sold through
any underwriter or dealer shall be calculated based on either the specified
selling price to the public or the closing price of the common stock on the day
such offering is announced. Public distributions may be pursuant to private
negotiation with underwriters, dealers or agents as discussed above or effected
through competitive bidding among underwriters. In addition, sales may be made
through private placements or other non-public offerings to one or more persons.
The sale of the shares of Additional Common Stock will be at rates or prices and
under conditions negotiated or based upon, or otherwise determined by,
competitive capital markets. The underwriting fees, commissions or other similar
remuneration paid in connection with the issue, sale or distribution of a
security pursuant to this Application-Declaration (not including any original
issue discount) will not exceed 7% of the principal or total amount of the
Additional Common Stock being issued.
Unitil intends to use the net proceeds (after deduction of fees,
commissions and expenses) of the offering (i) to make cash capital contributions
to its subsidiaries, including, without limitation, its public utility
subsidiaries, Fitchburg Gas and Electric Light Company ("Fitchburg") and Unitil
Energy Systems, Inc. ("Unitil Energy"), pursuant to Rule 45(a)(4) of the Act,
(ii) to repay its outstanding short-term indebtedness and (iii) for other
general corporate purposes consistent with the requirements of the Act,
including to meet working capital needs. Unitil Energy and Fitchburg are
expected, in turn, to use any such funds contributed by Unitil to repay
outstanding short-term indebtedness incurred for additions, extensions and
betterments to their respective property, plant and equipment and to finance
future expenditures for additions, extensions and betterments to property, plant
and equipment. Unitil represents that no proceeds from any offering authorized
hereunder will be used (a) to acquire any exempt wholesale generators or foreign
utility companies, as those terms are defined in Sections 32 and 33 of the Act,
respectively, or (b) to acquire or form a new subsidiary unless such financing
is consummated in accordance with an order of the Commission or an available
exemption under the Act.
Interested persons wishing to comment or request a hearing on this
Application-Declaration should submit their views in writing by September _____,
2003 to the Secretary, Securities and Exchange Commission, Washington, D.C.
20549, and serve a copy on the declarant at the address specified above. Proof
of service (by affidavit or, in the case of an attorney at law, by certificate)
should be filed with the request. After said date, the declaration, as amended
or as it may be further amended, may be granted.
For the Commission by the Division of Investment Management, pursuant
to delegated authority.
UNITIL CORPORATION
CONSOLIDATED BALANCE SHEETS (000's) (A)