As filed with the Securities and Exchange Commission on
October 17, 2003
File No. 70-10161
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO THE
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
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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.
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 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
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Total $223,425 100%
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The reported closing price of Unitil common stock on the American Stock
Exchange on October 1, 2003 was $25.05 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 25,648 11
Preferred Stock 3,269 2
Common Stock 90,160 40
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Total $223,425 100%
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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 and Listing Fees ............................. $13,211
Legal fees........................................... 160,000
Accounting Fees...................................... 29,500
Transfer Agent & Registrar Fees 2,500
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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
Printing Fees........................................ 20,000
Miscellaneous........................................ 10,000
Total....................................... $234,711
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
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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
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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 (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 (Filed with the Commission under the
Securities Act and incorporated by reference
herein).
F-1 Opinion of Counsel.
F-2 "Past Tense" Opinion of Counsel (To be filed by
Amendment).
G-1 Proposed Form of Notice (Previously filed).
(b) Financial Statements
No. Description of Financial Statement
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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 Statement of Earnings (Previously filed).
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: October 17, 2003
UNITIL CORPORATION
By: /s/ Mark H. Collin
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Name: Mark H. Collin
Title: Senior Vice President, Chief
Financial Officer & Treasurer
6
LEBOUEF, LAMB, GREENE & MACRAE
L.L.P.
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
NEW YORK 260 Franklin Street LONDON
WASHINGTON, D.C. Boston, MA 02110-3173 (A LONDON BASED
ALBANY (617) 748-6800 MULTINATIONAL PARTNERSHIP)
BOSTON Facsimile: (617) 439-0341 PARIS
DENVER BRUSSELS
HARRISBURG JOHANNESBURG
HARTFORD (PTY) LTD.
HOUSTON MOSCOW
JACKSONVILLE RIYADH
LOS ANGELES (AFFILIATED OFFICE)
NEWARK TASHKENT
PITTSBURGH BISHKEK
SALT LAKE CITY ALMATY
SAN FRANCISCO October 17, 2003 BEIJING
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Unitil Corporation, et al. (File No. 70-10161)
Ladies and Gentlemen:
This opinion is furnished to the Securities and Exchange Commission
(the "Commission") in connection with the filing with the Commission of the
Application-Declaration on Form U-1 (File No. 70-10161) (the
"Application-Declaration") of Unitil Corporation (the "Company" or "Unitil"), a
New Hampshire corporation and a registered public utility holding company under
the Public Utility Holding Company Act of 1935, as amended (the "Act"). The
Application-Declaration relates to the request by the Company 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 of the Company
(the "Common Stock").
In connection with this opinion, we have examined originals, or copies
certified to our satisfaction, of the Application-Declaration, such corporate
records of the Company, certificates of public officials, certificates of
officers and representatives of the Company, and such other exhibits, documents,
agreements, instruments, and other materials as we considered necessary or
advisable in order to render the opinions set forth below. In such examination,
we have assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all such documents submitted to us as copies and the authenticity of the
originals of such latter documents. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied upon the
aforesaid records, certificates, exhibits, documents, agreements, instruments,
and other materials. In addition, we have examined such questions of law as we
considered necessary or appropriate for the purpose of rendering this opinion.
Securities and Exchange Commission
October 17, 2003
Page 2
Based on the foregoing, and subject to the final paragraph hereof, we
are of the opinion that when the Commission has taken the action requested in
the Application-Declaration:
(1) All state laws applicable to the transactions described in the
Application-Declaration will have been complied with.
(2) The Company is validly organized and duly existing under the laws
of the State of New Hampshire.
(3) The shares of Common Stock to be issued in accordance with the
Application-Declaration will be validly issued, fully paid and
non-assessable, and the holders thereof will be entitled to the
rights and privileges appertaining thereto set forth in the
Company's Articles of Incorporation, as amended.
(4) The consummation of the proposed transactions will not violate
the legal rights of the holders of any securities issued by the
Company.
The opinions expressed above are subject to the following assumptions
or conditions:
a. The Commission shall have duly entered an appropriate order or
orders granting and permitting the Application-Declaration to
become effective with respect to the Common Stock offering
described therein.
b. The Company shall be in compliance with the terms of the order
issued by the Commission with respect to the
Application-Declaration.
c. The Company's Registration Statement on Form S-3 (File No.
333-108349), which registers the shares of Common Stock to be
offered under the Securities Act of 1933, as amended, shall have
been declared effective by the Commission, and certificates for
the shares of Common Stock shall have been executed,
authenticated, issued, paid for and delivered as contemplated in
the Registration Statement and any prospectus supplement relating
thereto and in accordance with any underwriting agreement.
d. No act or event other than as described herein shall have
occurred subsequent to the date hereof, which would change the
opinions expressed above.
Securities and Exchange Commission
October 17, 2003
Page 3
This opinion is intended solely for the use of the Commission and may
not be relied upon by any other person or used for any other purpose. We are
not, in this opinion, opining on laws other than the laws of the State of New
Hampshire and the federal laws of the United States. We hereby consent to the
use of this opinion as an exhibit to the Application-Declaration.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.