File No. 70-9519
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 8
TO
FORM U-1
APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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The National Grid Group plc New England Electric System
National Grid (US) Holdings New England Power Company
Limited Massachusetts Electric Company
National Grid (US) The Narragansett Electric Company
Investments Granite State Electric Company
Kirby Corner Road Nantucket Electric Company
Coventry CV48JY New England Electric Transmission Corporation
United Kingdom New England Hydro-Transmission Corporation
New England Hydro-Transmission Electric
National Grid (Ireland) 1 Company, Inc.
Limited Vermont Yankee Nuclear Power Corporation
National Grid (Ireland) 2 New England Hydro Finance Company, Inc.
Limited NEES Global, Inc.
8-10 rue Mathias Hardt NEES Energy, Inc.
BP39, L2010 AllEnergy Marketing Company, L.L.C.
Luxembourg Granite State Energy, Inc.
New England Power Service
National Grid General Company, Inc.
Partnership NEES Communication, Inc.
NGG Holdings, Inc. Texas Liquids, L.L.C.
10th Floor Texas-Ohio Gas, Inc.
Oliver Building Metro West Realty L.L.C.
2 Oliver Street 25 Research Drive
Boston, MA 02109 Westborough, Massachusetts 01582
(Name of company filing this statement and
address of principal executive offices)
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The National Grid Group plc New England Electric System
(Name of top registered holding company
parent of each applicant or declarant)
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Jonathan M. G. Carlton Douglas W. Hawes
The National Grid Group plc Joanne C. Rutkowski
National Grid House Sheri E. Bloomberg
Kirby Corner Road Markian M.W. Melnyk
Coventry CV4 8JY LeBoeuf, Lamb, Greene & MacRae, L.L.P.
United Kingdom 125 West 55th Street
Telephone: 011-44-1203-537-777 New York, NY 10019
Facsimile: 011-44-1203-423-678 Telephone: 212-424-8000
Facsimile: 212-424-8500
NGG Holdings, Inc.
10th Floor
Oliver Building
2 Oliver Street
Boston, MA 02109
Telephone: 617-946-2104
Facsimile: 617-946-2111
Michael E. Jesanis Clifford M. Naeve
Kirk L. Ramsauer Judith A. Center
New England Electric System Skadden, Arps, Slate, Meagher
25 Research Drive & Flom L.L.P.
Westborough, Massachusetts 01582 1440 New York Avenue, N.W.
Washington, D.C. 20005
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(Names and addresses of agents for service)
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Defined Terms
1. Applicants means the Intermediate Companies, National Grid and NEES.
2. Intermediate Companies means National Grid (US) Holdings Limited,
National Grid (US) Investments, National Grid (Ireland) 1 Limited,
National Grid (Ireland) 2 Limited and National Grid General
Partnership.
3. NEES -- Immediately after the proposed Merger, pursuant to an
amendment to NEES' Agreement and Declaration of Trust, NEES will have
been merged with NGG Holdings, LLC, with NEES as the surviving entity
and then merged again into another LLC (which survives) which in turn
will merge into NGG Holdings, Inc. with NGG Holdings, Inc. as the
surviving entity. The term "NEES" refers to both NEES and NGG
Holdings, Inc. as the surviving entity.
4. National Grid means The National Grid Group plc.
5. National Grid System means National Grid and its subsidiary companies.
6. NEES Group means NEES and the NEES Subsidiary Companies.
7. NEES Subsidiary Companies means the subsidiary companies of NEES.
8. U.S. Subsidiary Companies means NEES, the NEES Subsidiary Companies
and the Intermediate Companies.
9. U.S. Utility Subsidiaries means New England Power Company,
Massachusetts Electric Company, The Narragansett Electric Company,
Granite State Electric Company, Nantucket Electric Company, New
England Electric Transmission Corporation, New England Hydro-
Transmission Corporation, New England Hydro-Transmission Electric
Company, Inc. and Vermont Yankee Nuclear Power Corporation.
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TABLE OF CONTENTS
ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTION
A. Introduction and General Request
B. Description of Existing NEES Financing Arrangements
C. Overview of Proposed Financings
D. Specifics of Proposed Financing Arrangements
1. National Grid External Financing
(a) Ordinary Shares
(b) Preferred Stock
(c) Debt
(d) Interest Rate and Currency Risk Management Devices
2. U.S. Subsidiary Company Financings
(a) Money Pool
(b) Guarantees
(c) Payment of Dividends Out of Capital or Unearned Surplus
(d) Approval of New Tax Allocation Agreement
3. Changes in Capital Stock of Subsidiaries
4. Financing Entities
5. EWG/FUCO-related Financings
E. Filing of Certificates of Notification
ITEM 2. FEES, COMMISSIONS AND EXPENSES
ITEM 3. APPLICABLE STATUTORY PROVISIONS
ITEM 4. REGULATORY APPROVALS
ITEM 5. PROCEDURE
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
ITEM 7. STATEMENT AS TO ENVIRONMENTAL EFFECTS
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This Pre-effective Amendment No. 8 replaces and revises the Form U-1
Application/Declaration in this proceeding, originally filed with the Securities
and Exchange Commission on June 11, 1999 in File No. 70-9519 in its entirety,
with the exception that it does not replace exhibits previously filed:
ITEM 1. DESCRIPTION OF THE PROPOSED TRANSACTION
A. Introduction and General Request
This Application-Declaration is submitted in connection with the proposed
acquisition of the New England Electric System ("NEES") by National Grid.
National Grid and NEES have previously filed an Application/Declaration on Form
U-1 (File No. 70-9473) with the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act" or "Act") (the "Merger U-1"), seeking approvals relating to the
proposed acquisition by National Grid of all of the voting securities of NEES,
and its consequent indirect acquisition of the voting securities of the NEES
Subsidiary Companies, as well as for certain related transactions (the
"Merger").1
Upon consummation of the transactions described in the Merger U-1, National
Grid and each of the Intermediate Companies will register as holding companies
under Section 5 of the Act.2 NEES will continue to be regulated as a registered
holding company, and its subsidiary companies will continue to be regulated as
members of a registered holding company
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1 On February 1, 1999, NEES announced that it had entered into an agreement
to acquire all of the outstanding common stock of Eastern Utilities Associates
("EUA"), a holding company registered under the Act. The consummation of the
merger between NEES and EUA is not conditional on, and is proceeding
independently from, the closing of the Merger. It is contemplated that similar
authority will be requested in connection with EUA and its subsidiary companies.
2 The Intermediate Companies either have been or will be formed prior to
the consummation of the Merger. They have been added to the instant application,
and will be added to the application for the Merger, to enable the Commission to
notice the Merger-related transactions. The Intermediate Companies will require
the approval of their respective boards of directors to engage in the activities
contemplated by this filing and the Merger U-1.
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system.3 National Grid's other operations have been segregated under a
newly-formed first-tier subsidiary company, National Grid Holdings Ltd.
("Holdings"), which will be a foreign utility company ("FUCO") within the
meaning of Section 33 of the Act. The Applicants intend that the operations of
Holdings and its subsidiary companies will largely be financed at the Holdings
level to avoid the need for significant additional capital investments by, or
credit support from, National Grid. The purpose of this separation is to create
a financial firewall between the NEES Group, on the one hand, and National
Grid's non-U.S. interests, on the other. Exhibit D-1 sets forth the corporate
structure of National Grid System after the proposed Merger and Exhibit D-2
describes each company in the National Grid System.
In the instant matter, the Applicants request that the Commission extend
the existing financing authority of the NEES Group for a period of approximately
three and one-half years from the date of consummation of the Merger through May
31, 2003 (the "Authorization Period"). In addition, the Applicants seek
authority for the following transactions through the Authorization Period:
(i) financings by National Grid, including but not limited to issuance of
ordinary shares and American Depositary Shares, preferred stock, short and
long-term debt, and currency and interest rate swaps;
(ii) financings by the U.S. Subsidiary Companies;
(iii) intrasystem financings, including (a) the continuation of the NEES
system money pool ("Money Pool"), (b) guarantees of the obligations of, and
other forms of credit support for, the U.S. Subsidiary Companies, (c) the
payment of dividends out of capital or unearned surplus, and (d) approval of a
new tax allocation agreement;
(iv) the issuance by the U.S. Subsidiary Companies of additional shares, or
alteration of the terms of any then-existing authorized security;
(v) the formation of financing entities and the issuance by such entities
of securities otherwise authorized to be issued and sold pursuant to this
Application/Declaration or pursuant to applicable exemptions under the Act,
including intrasystem guarantees of such securities; and
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3 The Merger U-1 further requests that the Commission deem the Intermediate
Companies not to be "subsidiary companies" of National Grid, solely for purposes
of complying with the "great-grandfather" provisions of Section 11(b)(2).
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(vi) financings by National Grid for the purposes of acquiring, or funding
the operations of, exempt wholesale generators ("EWGs") and FUCOs.
As explained more fully herein, the specific terms and conditions of the
requested authority are not known at this time. Accordingly, the Applicants
represent that the proposed transactions will be subject to the following
general terms and conditions:
1. National Grid will maintain its long-term debt rating at an investment
grade level as established by a nationally recognized statistical rating
organization, as that term is used in paragraphs (c)(2)(vi)(E), (F) and (H) of
Rule 15c3-1 of the Securities Exchange Act of 1934. In addition, the National
Grid System will maintain a ratio of Consolidated EBITDA to Net Interest Payable
of not less than 3:1, and a ratio of Consolidated Total Net Debt to Consolidated
EBITDA not to exceed 4.75:1;4
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4 National Grid's commitment to maintain the above stated EBITDA ratios
demonstrates that the securities issuances proposed in this
Application-Declaration will be reasonably adapted to National Grid's security
structure and earning power, and that such issuances will not be detrimental to
the public interest in a prudently capitalized holding company system,
consistent with the standards of Sections 7(d) and 10(b)(3) under the Act. The
terms are as defined in the Credit Agreement which is attached as Exhibit B-3 to
the Merger U-1. Generally,
Consolidated EBITDA means: in respect of any period, Consolidated Profits Before
Interest and Tax for that period after adding back depreciation and amortization
of goodwill and excludes the group's share of associate and joint venture
operating results. An associate interest is an equity interest of greater than
20%, but less than 50%;
Consolidated Profits Before Interest and Tax means: in respect of any period,
the consolidated net pre-taxation profits on operating activities (after adding
back Net Interest Payable and excluding any Exceptional Items and after adding
back restructuring costs incurred as a result of the Merger or other
acquisitions) of the National Grid System;
Consolidated Total Net Debt means: the aggregate principal amount (or amounts
equivalent to principal, howsoever described) comprised in the financial
indebtedness of the National Grid System at the time calculated on a
consolidated basis less cash and cash equivalents held by any member of the
National Grid System as shown in the consolidated financial statements. Cash
equivalents are readily marketable securities such as gilts (i.e. treasury
bonds) and other near-cash items such as deposits and commercial paper;
Exceptional Items: has the meaning given to it in FRS3 issued by the UK
Accounting Standards Board (i.e., material items which derive from events or
transactions that fall within the ordinary activities of the reporting entity
and which individually or, if of a similar type, in aggregate, need to be
disclosed by virtue of their size or incidence if the financial statements are
to give a true and fair view); and
Net Interest Payable means: in relation to any period, all interest, acceptance
commission and all other continuing, regular or periodic costs, charges and
expenses in the nature of interest (whether paid, payable or capitalized)
incurred by the National Grid System in effecting, servicing or maintaining all
financial indebtedness of the National Grid System less all interest and other
similar income receivable by members of the National Grid System during that
period (but only to the extent the same accrue and are receivable by the
National Grid System in a freely convertible and transferrable currency) in each
case as determined from the consolidated financial statements relating to that
period and excludes the group's share of associate and joint venture net
interest payable.
If any subsidiary has joined the National Grid System during the financial year,
an adjustment will be made to reflect a full 12 months period and if any
subsidiary leaves the National Grid System an equivalent adjustment will be
made.
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2. The common stock equity5 of NEES on a consolidated basis, as reflected
in its most recent annual, quarterly or other periodic earnings report, and the
NEES electric utility subsidiaries,6 individually, will not fall below 35% of
total capitalization;7
3. National Grid expects that its common stock equity as a percentage of
total capitalization, measured on a book value US GAAP basis, will generally
increase through the Authorization Period.8 National Grid undertakes to cause
its common stock equity percentage
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5 Common stock equity includes common stock (i.e., amounts received equal
to the par or stated value of the common stock), additional paid in capital and
retained earnings.
6 New England Electric Transmission Corporation and Vermont Yankee Nuclear
Power Corporation would be excluded from the 35% common stock equity
capitalization standard. In addition, the 35% standard would be applied to the
combined capitalization of Nantucket Electric Company and Massachusetts Electric
Company.
7 Applicants would calculate the common stock equity to total
capitalization ratio as follows: equity/(gross debt + equity). Total
capitalization is the sum of common stock equity, preferred stock, long-term
debt, short-term debt and current maturities.
8 National Grid recently sold 27,000,000 shares of its subsidiary Energis
plc ("Energis"), a telecommunications company. National Grid proposes to use
part of the net proceeds from the sale to implement a buy-back program of up to
400 million pounds ($640 million) of National Grid shares. The buy-back program
will be implemented over a period of time. The amount eventually bought back
will be subject to market conditions and National Grid's other financing
requirements. National Grid wishes to buy back its own shares to use its surplus
cash efficiently and to take advantage of a share price which does not reflect
the Board's view of the underlying value of the business. The markets'
short-term judgement of the value of a company does not always necessarily
reflect the underlying value of the business, and "shareholder value" can
therefore be enhanced on occasions through buy-backs at the right price.
In the U.K. once shares are repurchased they are canceled, as opposed to the
U.S. where they can be held on the balance sheet as treasury stock - this
practice is not permitted under U.K. company law. Assuming the full execution of
the buyback program (i.e., the repurchase of $640 million of National Grid
shares) by March 31, 2000, and given the effect of the Energis share sale, it is
anticipated that the following common stock equity capitalization ratios will
result:
March 31: 2000 2001 2002
- ------------------------- ----------------- ----------------- -----------------
Equity capitalization 28.5% 28.9% 30.1%
ratio
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measured on such basis to be 28.5% or above at the time of closing and
thereafter during the Authorization Period, and 30% or above by March 31, 2002;9
4. The cost of money on debt financings of National Grid will not exceed
300 basis points over that for comparable term U.S. treasury securities or
government benchmark for the currency concerned;
5. The cost of money on preferred securities or other fixed income oriented
securities of National Grid, when issued, will not exceed 500 basis points over
that for comparable term U.S. treasury securities or government benchmark for
the currency concerned;
6. The underwriting fees, commissions or other similar remuneration paid in
connection with the non-competitive issue, sale or distribution of a security
pursuant to the Application/Declaration will not exceed 5% of the principal or
total amount of the security being issued;
7. The aggregate amount of external debt and equity issued by National Grid
pursuant to the authority requested in this matter will not exceed $4.0 billion,
at any one time outstanding;
8. Post-Merger, National Grid's additional "aggregate investment" in EWGs
and FUCOs, as defined in Rule 53 under the Act, will not exceed 50 percent of
the consolidated retained earnings of the National Grid System; and
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9 National Grid will report its compliance with this undertaking in its
Rule 24 certificates.
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9. The proceeds from the sale of securities in external financing
transactions will be used for the acquisition, retirement or redemption of
securities issued by National Grid or its U.S. Subsidiary Companies, without the
need for prior Commission approval and for necessary and urgent general
corporate purposes including (i) extension or renewal of the merger-related
debt, (ii) the financing, in part, of the capital expenditures of the National
Grid System, (iii) the financing of working capital requirements of the National
Grid System, and (iv) other lawful general purposes.
The Applicants represent that no financing proceeds will be used to acquire
a new subsidiary, other than a special purpose financing entity as described
below, unless such acquisition is consummated in accordance with an order of the
Commission or an available exemption under the Act. The proceeds of external
financings will be allocated to companies in the National Grid System in various
ways through intrasystem financing discussed in this application and will be
used for general and corporate purposes including capital expenditures, working
capital and other permitted activities. Similarly, the proceeds of external
financings of the NEES Group, authorized previously by the Commission and
extended by the authorization requested in this application, will be used for
general and corporate purposes including capital expenditures, working capital
and other purposes consistent with permitted activities.
The requested authority will give the Applicants the flexibility to respond
quickly and efficiently to their financing needs and to changes in market
conditions to the benefit of customers and shareholders. Approval of this
Application/Declaration is consistent with existing Commission precedent, both
for newly registered holding company systems (See, e.g., Conectiv, Inc., Holding
Co. Act Release No. 26833 (Feb. 26,1998); New Century Energies, Inc., Holding
Co. Act Release No. 26750 (Aug.1, 1997)), and for holding company systems that
have been registered for a longer period of time (See, e.g., The Columbia Gas
System, Inc., Holding Co. Act Release No. 26634 (Dec. 23, 1996); Gulf States
Utilities Co., Holding Co. Act Release No. 26451 (Jan.16, 1996)).
The table below shows the revenues, net income and total assets of National
Grid, NEES and EUA for the twelve months to September 30, 1999, according to
U.S. GAAP.
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National Grid NEES EUA
($ mm) ($ mm) ($ mm)
Revenues 2,412 2,513 548
Net Income 1,661 149 17
Total Assets 8,437 4,900 1,481
The table below shows the capitalization of National Grid, NEES, EUA, and
the combined group on a pro forma basis, as of September 30, 1999, according to
U.S. GAAP.10
<TABLE>
<CAPTION>
National National NEES NEES EUA EUA Pro Forma Pro Forma
Grid Grid (%) ($ mm) (%) ($ mm) (%) Combined Combined
($ mm) ($ mm) (%)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Short-term 404 6.7% 39 1.4% 118 16.8% 561 5.7%
debt
Long-term 3,133 52.3% 1,059 38.8% 190 27.1% 6,682 11 68.2%
debt
Preferred - - 20 0.7% 35 5.0% 55 0.6%
stock
Minority 1 - 39 1.4% - - 40 0.4%
interest
Common 2,454 41.0% 1,578 57.7% 358 51.1% 2,454 25.1%12
stock equity
Total 5,992 100% 2,735 100% 701 100% 9,791 100%
</TABLE>
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10 The figures for revenues, net income and assets were translated into
dollars using a rate of U.S. $1.60 equals one pound. Consistent with U.S. GAAP,
National Grid's share of joint ventures and associate's businesses is included
in net income and assets but is omitted from revenues. For the year ended
September 30, 1999, National Grid's share of Energis losses were $26 million
(excluding exceptional profits of $1,427 million).
11 Includes $2,300 million of acquisition financing.
12 Cash balances of $1,074 million (on a pro forma basis) on hand on
September 30, 1999 are not shown above.
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B. Description of Existing NEES Financing Arrangements
Unlike some of the other U.S. registered holding companies, NEES does not
have a so-called "omnibus" financing order. Instead, financing transactions have
been authorized on a discrete basis. The major NEES financing orders are
summarized below:
By order dated October 29, 1997, the Commission authorized participation in
the NEES intrasystem money pool by Massachusetts Electric Company, Nantucket
Electric Company, Narragansett Electric Company, New England Hydro-Transmission
Electric Co., Inc., New England Power Company and New England Power Service
Company (collectively, the "Borrowing Companies"), and the issue and sale of
commercial paper and short-term debt by the Borrowing Companies, all through
October 31, 2001. The Borrowing Companies were authorized to borrow money and/or
issue commercial paper up to the following amounts: $150 million for
Massachusetts Electric Company, $5 million for Nantucket Electric Company, $100
million for Narragansett Electric Company, $25 million for New England
Hydro-Transmission Electric Co., Inc., $375 million for New England Power
Company and $12 million for New England Power Service Company. The order noted
that financings for the remaining U.S. Utility Subsidiaries had been expressly
authorized by the New Hampshire Public Utilities Commission and were thus exempt
pursuant to Rule 52. New England Electric System, Holding Co. Act Release No.
26768 (Oct. 29, 1997).
By order dated June 2, 1998, the Commission increased the limits on
short-term borrowings by New England Power Company from $375 million to $750
million. New England Electric System, Holding Co. Act Release No. 26881 (June 2,
1998).
By order dated October 9, 1996, the Commission authorized NEES to issue and
sell short-term notes in a principal amount of up to $100 million at any one
time outstanding through October 31, 2001. New England Electric System, Holding
Co. Act Release No. 26589 (Oct. 9, 1996), as amended by Holding Co. Act Release
No. 26793 (Dec. 10, 1997) (authorizing NEES to borrow up to $500 million).
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NEES has also been authorized to invest up to $50 million in one or more
new special purpose subsidiaries that will acquire interests in office and
warehouse space that would be leased to associate companies, New England
Electric System, Holding Co. Act Release No. 26969 (Jan. 27, 1999), and to issue
up to two million shares of its common stock, through December 31, 2002, to
acquire the stock or assets of one or more "energy-related companies," within
the meaning of Rule 58. New England Electric System, Holding Co. Act Release No.
26849 (March 25, 1998), as modified by Holding Co. Act Release No. 26942 (Nov.
18, 1998).
Lastly, by order dated September 25, 1998, New England Power Company was
authorized to repurchase up to 5 million shares of its common stock from NEES
through December 31, 2000. New England Electric System, Holding Co. Act Release
No. 26918 (Sept. 25, 1998).
C. Overview of Proposed Financings
Briefly stated, the proposed financing authority is intended primarily to
fund National Grid's U.S. operations. A secondary purpose is to provide a
limited source of capital and credit support for Holdings and its subsidiaries.
It should be emphasized that any parent-level financing is merely supplementary
to financings at the Holdings level. In this regard, the Applicants believe that
Holdings and its subsidiary companies will be largely self funding.
D. Specifics of Proposed Financing Arrangements
1. National Grid External Financing
National Grid proposes to issue long-term equity and debt securities
aggregating not more than $4.0 billion at any one time outstanding during the
Authorization Period.13 Such securities could include, but would not necessarily
be limited to, ordinary shares, preferred shares, options, warrants, long- and
short-term debt (including commercial paper), convertible securities,
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13 The overall limit of $4.0 billion includes the merger-related financing.
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subordinated debt, bank borrowings and securities with call or put options.
National Grid may also enter into currency and interest rate swaps as described
below.
National Grid proposes that the various securities to be issued would
generally fall within the following limits, but would not in the aggregate
exceed the $4.0 billion limit stated above:
Security $ billions
Equity, including options and warrants14 0.5
Preferred stock 0.1
Bank debt 3.0
Commercial paper 3.0
Bond issues - straight 3.0
Bond issues - convertible 1.0
(a) Ordinary Shares. As discussed in the Merger U-1, National Grid's common
stock equity consists of ordinary shares, with a par value of 11 13/17 pence
each, that are listed on the London Stock Exchange. National Grid currently has
a small number of American Depositary Shares ("ADS'") in the U.S. which trade as
American Depositary Receipts ("ADRs"). National Grid has established a sponsored
ADR program in the US and has its ADRs listed on the New York Stock Exchange and
registered under the Securities Act of 1933, as amended (the "1933 Act"). As a
result, National Grid has registered under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and will file the periodic disclosure reports
required of a foreign issuer with the Commission. The request contained herein
with respect to ordinary shares refers to the issuance of ordinary shares
directly or through the ADR program
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14 National Grid currently has outstanding $742 million (translated at
$1.60 equals one Pound) of 4.25% exchangeable bonds that mature in 2008. The
bonds are exchangeable on or prior to February 8, 2008, at the option of the
holder, into common stock of National Grid. Should bondholders exchange their
bonds prior to maturity, National Grid may issue up to 110 million additional
shares of common stock not included in the overall $4.0 billion external
financing limit and the $0.5 billion sub-limit for equity issuances.
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and, for purposes of this request, the ADS' and ADRs are not considered separate
securities from the underlying ordinary shares.
Ordinary shares may be sold pursuant to underwriting agreements of a type
generally standard in the industry in the U.K. or the U.S. (depending on the
selling location). Such public distributions may be pursuant to private
negotiation with underwriters, dealers or agents (as discussed in more detail
below) 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. All such sales of ordinary shares will be at rates or
prices and under conditions negotiated or based upon or otherwise determined by,
competitive capital markets.
Ordinary share financings covered by this Application/Declaration may occur
in any one of the following ways: (i) through underwriters or dealers; (ii)
through agents; (iii) directly to a number of purchasers or a single purchaser;
(iv) directly to employees (or to trusts established for their benefit) and
other shareholders through National Grid's employee benefit schemes; or (v)
through the issuance of bonus shares (i.e., stock dividends) to existing
shareholders. If underwriters are used in the sale of the securities, such
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 sale. The securities may be offered to the public either through
underwriting syndicates (which may be represented by a managing underwriter or
underwriters designated by National Grid) or directly by one or more
underwriters acting alone. The securities may be sold directly by National Grid
or through agents designated by National Grid from time to time. If dealers are
utilized in the sale of any of the securities, National Grid will sell such
securities 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. If common stock is being sold in an underwritten offering,
National Grid may grant the underwriters thereof a "green shoe" option
permitting the purchase from National Grid at the same price additional shares
then being offered solely for the purpose of covering over-allotments.
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National Grid seeks authority to use its ordinary shares (or associated
ADS' or ADRs) as consideration for acquisitions that are otherwise authorized
under the Act. Among other things, transactions may involve the exchange of
parent company equity securities for securities of the company being acquired in
order to provide the seller with certain tax advantages. These transactions are
individually negotiated. The ability to offer stock as consideration provides
both National Grid and the seller of the business with flexibility. The National
Grid ordinary shares to be exchanged may, among other things, be purchased on
the open market pursuant to Rule 42 or may be original issue. From the
perspective of the Commission, the use of stock as consideration valued at
market value is no different than a sale of common stock on the open market and
use of the proceeds to acquire securities, the acquisition of which is otherwise
authorized. For purposes of the $4.0 billion external financing limit, National
Grid ordinary shares used to fund an acquisition of a company through the
exchange of National Grid equity for securities being acquired, would be valued
at market value based upon the closing price on the London Stock Exchange on the
day before closing of the sale or issuance.
In addition to other general corporate purposes, the ordinary shares will
be used to fund employee benefit plans. National Grid currently maintains three
employee benefit plans pursuant to which its employees may acquire equity
interests in the company as part of their compensation: (a) The National Grid
1990 Savings Related Share Option Scheme. National Grid operates an employee
savings plan that offers staff who take out special savings contracts the
opportunity to purchase National Grid shares at a discount. Approximately 85% of
employees participate in this scheme. (b) The National Grid Executive Share
Option Scheme 1990. National Grid operates an executive share option plan for
its senior executives. Share options have been granted to over 120 senior
executives under this plan to a maximum aggregate level of four times base
salary for executive directors and lower levels for other participants. Options
may be exercised after they have been held for a minimum period of three years
provided that financial performance targets have been achieved. (c) The National
Grid Share Match Plan 1996. The share match plan requires executive directors to
invest 25% of their annual bonuses, net of income tax, in shares. Provided these
shares are held for a minimum of three years, the company will provide
additional shares equal to the pre-tax equivalent of the investment by the
director. A small number of other senior executives may also, but are not
required to, participate in the share match.
-14-
<PAGE>
Following consummation of the Merger, National Grid intends to issue
ordinary shares to US employees through the introduction of the National Grid US
Employee Stock Purchase Plan (the "US Plan"). The US Plan, which is designed to
qualify under Section 423 of the US Internal Revenue Code of 1986, will enable
US employees to receive awards of National Grid shares on an all-employee basis.
In addition, other share-based plans may be developed to motivate and retain key
executives.
Certain existing NEES programs provide for investment in or awards payable
in NEES shares (see, e.g., Holding Co. Act Release Nos. 26301 (June 2, 1995);
25051 (Mar. 8, 1990); 25678 (Nov. 18, 1992); and 26195 (Dec. 19, 1994). NEES has
also guaranteed to the participants in certain plans that if his or her employer
does not make distributions provided thereunder, NEES will make such planned
payments. Under deferral plans for employees and directors, participants are
given the option of investing at the prime rate or, at the present time, in NEES
shares.
Following consummation of the Merger, National Grid may wish to adopt
similar plans to give investment opportunities, to provide retirement benefits,
to facilitate deferral of compensation opportunities, and to motivate and retain
key executives and other employees. National Grid requests authority to issue
ordinary shares, including options, warrants, and similar securities such as
stock appreciation rights, to employees under its existing plans, the US Plan
and such additional plans that may be developed for the purposes stated above.
Securities issued by National Grid under all of the plans will be included
within the $4.0 billion external financing limit and will be valued, if ordinary
shares, at market value based on the closing price on the London Stock Exchange
on the day before the award. Securities issued by National Grid to a plan that
are not ordinary shares (e.g., options) will be valued based on a reasonable and
consistent method applied at the time of the award.
By order dated December 11, 1996, NEES was authorized to issue and sell up
to 10,693,536 shares of its authorized but unissued common stock pursuant to the
NEES System Dividend Reinvestment and Common Share Purchase Plan ("Plan"). In
the alternative, NEES was authorized to purchase shares of its common stock on
the open market and sell those shares to the Plan at the market price. New
England Electric System, Holding Co. Act Release No. 26621
-15-
<PAGE>
(Dec. 11, 1996). As all outstanding shares of NEES will be acquired by National
Grid pursuant to the Merger, the Plan will cease to operate following the
Merger.
(b) Preferred Stock. National Grid proposes to issue preferred stock from
time to time during the Authorization period. Any such preferred stock would
have dividend rates or methods of determining the same, redemption provisions,
conversion or put terms and other terms and conditions as National Grid may
determine at the time of issuance, provided that, the cost of money on preferred
stock of National Grid, when issued, will not exceed 500 basis points over that
for comparable term U.S. treasury securities or government benchmark for the
currency concerned. In addition, all issuances of preferred stock will be at
rates or prices, and under conditions negotiated pursuant to, based upon, or
otherwise determined by competitive capital markets.
(c) Debt. National Grid proposes to issue debt securities from time to time
during the Authorization Period. Any debt securities would have the designation,
aggregate principal amount, interest rate(s) or method of determining the same,
terms of payment of interest, redemption provisions, non-refunding provisions,
sinking fund terms, conversion or put terms and other terms and conditions as
are deemed appropriate at the time of issuance, provided however, that the cost
of money on debt financings of National Grid will not exceed 300 basis points
over that for comparable term U.S. treasury securities or government benchmark
for the currency concerned. In addition, the maturity of any debt securities
will not exceed 50 years.
The debt securities may be issued and sold pursuant to standard
underwriting agreements or under negotiated bank facilities. In the case of
public debt offerings, distribution may be effected through private negotiations
with underwriters, dealers or agents, or through competitive bidding among
underwriters. In addition, the debt securities may be issued and sold through
private placements or other non-public offerings to one or more persons or
distributed by dividend or otherwise to existing shareholders. All transactions
will be at rates or prices, and under conditions negotiated pursuant to, based
upon, or otherwise determined by competitive capital markets.
-16-
<PAGE>
National Grid intends to finance the acquisition of NEES (and the NEES
acquisition of EUA) through a combination of borrowings under existing bank
facilities and other internal cash sources. Debt incurred to fund the
acquisition is included in the $4.0 billion external financing authority
requested in this application. Given the price escalation provisions of the
Merger Agreement and the nature of the transaction, the exact cash purchase
price to be paid to NEES shareholders in the aggregate will depend on the timing
of the closing of the Merger as well as the number of NEES shares outstanding at
that time. However, it is expected that the acquisition price will be
approximately $3.2 billion. On March 5, 1999, National Grid entered into a fully
committed bank facility with six banks providing for up to $2.750 billion in
borrowings by National Grid, wholly-owned National Grid subsidiaries
incorporated in the UK (other than National Grid Company), and other National
Grid subsidiaries as approved in writing by the banks, plus a further 250
million Pound Sterling facility available to National Grid Company only. The
facility has a maturity of 3 to 5 years. Each of these banks is a sophisticated
commercial lender and the facilities were negotiated at arm's length. It is
expected that additional banks will be added to the facility and subsequent
syndication may bring the number of banks involved to over 70. These facilities
were established both for funding the acquisition and to provide other working
capital needs for National Grid. In addition, National Grid will have access to
other internal sources of funds for the acquisition, namely existing cash
balances. As of September 30, 1999, National Grid had on hand deposits of $2,432
million.15
Parent-level debt may be issued in connection with the servicing of the
acquisition debt as well as for necessary and urgent general and corporate
purposes including, financing capital expenditures and working capital
requirements, the acquisition, retirement or redemption of securities issued by
National Grid or its U.S. Subsidiary Companies, and other lawful general
purposes. Section 7(c)(2)(A) expressly contemplates that a registered holding
company can issue such securities "for the purpose of refunding, extending,
exchanging, or discharging an outstanding security of the declarant and/or a
predecessor company thereof." Section 7(c)(2)(D) further provides for the
issuance of nontraditional securities if "such security is to be issued or sold
solely for necessary or urgent corporate purposes of the declarant where the
requirements of
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15 As of February 21, 2000, National Grid had on hand deposits of
approximately $3,317 million.
-17-
<PAGE>
the provisions of paragraph (1) would impose an unreasonable financial burden
upon the declarant and are not necessary or appropriate in the public interest
or for the protection of investors or consumers." Registered gas systems have
relied on this provision for years in connection with their routine financing
transactions. See, e.g., The Columbia Gas System, Inc., Holding Co. Act Release
No. 26634 (Dec. 23, 1996) (authorizing Columbia to issue external, long-term
debt which, in the aggregate with equity financing issued by Columbia, would not
exceed $5 billion at any one time outstanding through December 31, 2001).
To the extent that the question is not the existence of parent-level debt
per se but rather the appropriateness of debt at more than one level, again, the
Commission has resolved that issue. In the 1992 amendments to Rule 52, the
Commission eliminated the requirement that a public-utility subsidiary company
could issue debt to nonassociates only if its parent holding company had issued
no securities other than common stock and short-term debt. The rule release
explains:
Condition (6) provides that a public-utility subsidiary company may
issue and sell securities to nonassociates only if its parent holding
company has issued no securities other than common stock and short-term
debt. All eight commenters that considered this condition recommended that
it be eliminated. They noted that it may be appropriate for a holding
company to issue and sell long-term debt and that such a transaction is
subject to prior Commission approval. They further observed that other
controls, that did not exist when the statute was enacted, provide
assurance that such financings will not lead to abuse. These include the
likely adverse reaction of rating agencies to excessive amounts of debt at
the parent holding company level and the disclosure required of companies
seeking public capital. The Commission agrees with these observations and
also notes the power of many state utility commissions to limit the ability
of utility subsidiaries to service holding company debt by restricting the
payment of dividends to the parent company. The Commission concludes that
this provision should be eliminated.
Exemption of Issuance and Sale of Certain Securities by Public-Utility
Subsidiary Companies of Registered Public-Utility Holding Companies, Holding Co.
Act Release No. 25573 (July 7, 1992).
-18-
<PAGE>
The Applicants have commissioned a study by Professor Julian Franks of the
London Business School, working with independent consultants from the Brattle
Group, to address the financial strength of the National Grid System
post-Merger.16 The Franks/Brattle Study examines National Grid's debt level
after both the merger with NEES and the subsequent acquisition by NEES of EUA,
and concludes that National Grid's post-acquisition debt, relative to its
projected rate base, will lie within a range for comparable U.S. utilities.
Credit rating agencies have confirmed that National Grid will retain a strong
credit rating. The debt issuances of National Grid currently have a rating of
"AA" from Standard and Poor's and "A1" from Moody's. Although on a "credit
watch" by Standard and Poor's and Moody's, the major rating agencies have
indicated that National Grid will retain at least an "A" rating post-Merger.17
The financial strength is confirmed by the competitive terms under which
National Grid has been able to secure financing for the proposed transaction.
National Grid believes that a restriction against parent-level debt is an
unreasonable financial burden that is not necessary or appropriate in the public
interest or for the protection of investors or consumers because it may
interfere with National Grid's ability to implement an optimal capital structure
for its business. Prior to issuing debt, preferred securities or equity,
National Grid will evaluate the relevant financial implications of the issuance,
including without limit, the cost of capital, and select the security that
provides the most efficient capital structure consistent with sound financial
practices and the capital markets.
It is important to note, however, that the issuance of debt is subject to
certain objective conditions intended to ensure the financial integrity of
National Grid and the NEES Group. National Grid has committed to cause its
common stock equity as a percentage of total capitalization, measured on a book
value U.S. GAAP basis, to be 30% or above by March 31,
- --------
16 A copy of the study (the "Franks/Brattle Study") is included in Exhibit
J-3 to the Merger U-1 in File No. 70-9473.
17 The investment bank Dresdner Kleinwort Benson ("Dresdner") has also
projected that National Grid will continue to have an A rating after the NEES
transaction. Franks Brattle Study at 12. Dresdner is National Grid's primary
external financial adviser, a participant bank in the syndicate providing the
$2.75 billion credit facility discussed above, and a market maker in National
Grid's stock on the London Stock Exchange. Dresdner does not hold an ownership
interest in National Grid.
-19-
<PAGE>
2002. In addition, National Grid will maintain the common stock equity of NEES
and, with limited exceptions, its electric utility subsidiaries at or above 35%
of total capitalization.18
(d) Interest Rate and Currency Risk Management Devices
In order to protect the National Grid System from adverse interest rate
movements, the interest rate on the debt portfolio is managed through the use of
fixed-rate debt, combined with interest rate swaps, options and option-related
instruments with a view to maintaining a significant proportion of fixed rates
over the medium term. The proportion of debt at fixed rates is varied over time
and within policy guidelines, depending on debt projections and market levels of
interest rates. The resulting position as of September 30, 1999 was that 57% of
the System borrowings were at fixed rates of interest.
The National Grid System's exposure to currency risk is not significant at
present. In the future, National Grid may seek to hedge its exposure to currency
fluctuations through currency swaps and forward exchange or similar
transactions.
National Grid maintains a central treasury department whose activities are
governed by policies and guidelines approved by the Board of Directors, with
regular reviews and monitoring by a standing committee of the Board. The
treasury department operates as a service center rather than as a profit center
and is subject to internal and external audit. Treasury activities are managed
in a non-speculative manner and all transactions in financial instruments or
products are matched to an underlying business requirement. Such transactions
will meet the criteria established by the Financial Accounting Standards Board
in order to qualify for hedge- accounting treatment or will so qualify under UK
GAAP. In the event transactions in financial instruments or products are
qualified for hedge accounting treatment under UK GAAP, but not under US GAAP,
National Grid's financial statements filed in accordance with Form 20-F will
contain a reconciliation of the difference between the two methods of accounting
treatment. No gain or loss on a hedging transaction will be allocated to any
company in the NEES Group, regardless of the accounting treatment accorded to
the transaction.
- --------
18 See note 6, supra.
-20-
<PAGE>
2. U.S. Subsidiary Company Financings
The existing financing arrangements of the NEES Group have been authorized
by rule or Commission order. These arrangements will remain in place. The
Applicants request the Commission to extend the term of any existing authority,
as necessary, for the Authorization Period. The dollar amount and the type of
securities authorized in the existing NEES Group financing authorizations would
not be affected by the extension of the term through the Authorization Period.
The extended existing NEES Group financing authority is in addition to the $4.0
billion external financing authority requested by National Grid.
Each of the Intermediate Companies and NEES is seeking authorization to
issue and sell securities to, and acquire securities from, its immediate parent
and subsidiary companies, respectively. Each of the Intermediate Companies and
NEES is also seeking authorization to issue guarantees and other forms of credit
support to direct and indirect subsidiaries. Guarantees entered into by NEES
will be subject to a limit of $500 million based upon the amount at risk. In no
case would the Intermediate Companies or NEES borrow, or receive any extension
of credit or indemnity from any of their respective direct or indirect
subsidiary companies. For reasons of economic efficiency, the terms and
conditions of any such financings will be on an arm's length basis, except that
the interest rates and maturity dates of any debt security issued by NEES to its
immediate parent company will be designed to parallel the effective cost of debt
capital of National Grid.19 Securities issuances by NEES will be limited to
issuances permitted by the existing NEES group financing orders, as extended
through the Authorization Period.
(a) Money Pool. National Grid requests authority to continue the operation
of the NEES Money Pool, with the substitution of NGG Holdings, Inc., the
successor to NEES, as an investor in the Money Pool and the addition to the
Money Pool as lenders only of the Intermediate Companies, National Grid and all
other newly-formed or acquired or currently non-participating NEES Subsidiary
Companies.
- --------
19 Borrowings by an Intermediate Company or NEES, for example, would not be
subject to Rule 52 because each is a holding company.
-21-
<PAGE>
(b) Guarantees. National Grid requests authorization to enter into
guarantees, obtain letters of credit, enter into guaranty-type expense
agreements or otherwise provide credit support with respect to the obligations
of the U.S. Subsidiary Companies as may be appropriate to enable such system
companies to carry on their respective authorized or permitted businesses. In
addition, authority is requested for the NEES Subsidiary Companies (except the
U.S. Utility Subsidiaries) to enter into similar arrangements with one another,
except as exempted under Rule 45. Guarantees entered into by National Grid will
be subject to a $2.0 billion limit (i.e., not included in the $4.0 billion
external financing limit), based upon the amount at risk.
(c) Payment of Dividends Out of Capital or Unearned Surplus. As a result of
the application of the purchase method of accounting to the Merger, the current
retained earnings of NEES and the NEES Subsidiary Companies will be
recharacterized as additional paid- in-capital. In addition, the Merger will
give rise to a substantial level of goodwill, the difference between the
aggregate fair values of all identifiable tangible and intangible (non-goodwill)
assets on the one hand, and the total consideration to be paid for NEES and the
fair value of the liabilities assumed, on the other. In accordance with the
Commission's Staff Accounting Bulletin No. 54, Topic 5J ("Staff Accounting
Bulletin"), the goodwill will be "pushed down" to the NEES Subsidiary Companies
and reflected as additional paid-in-capital in their financial statements.20 The
effect of these accounting conventions would be to leave the NEES Subsidiary
Companies with no retained earnings, the traditional source of dividend payment,
but, nevertheless, strong balance sheets showing significant common stock equity
levels. Applicants request authorization to pay dividends out of the additional
paid-in-capital account up to the amount of the NEES Group companies' aggregate
retained earnings just prior to the Merger and out of earnings before the
amortization of the goodwill thereafter.
The accounting for a business combination is done on a pooling of interests
basis if it meets certain specified criteria. Business combinations that do not
meet all of the specified
- --------
20 Applicants are commissioning their public accounting firm to perform a
fair value study in connection with the application of purchase accounting. One
purpose of this fair value study is to determine the amount of goodwill that
should be recorded on each subsidiary's books. NEES' auditors have confirmed
that the push down of goodwill is appropriate and consistent with SEC accounting
guidance.
-22-
<PAGE>
criteria must be accounted for as a purchase. One requirement for pooling of
interests accounting is that cash represent not more than 10% of the
consideration paid for the acquisition. The NEES/National Grid combination does
not meet this criteria because more than 10% of the consideration paid by
National Grid to NEES shareholders is cash - in fact, all of the consideration
is cash. Another requirement is that significant assets cannot be disposed of in
contemplation of the combination. The Commission's accounting staff has
concluded that a sale of assets prior to a combination would be presumed to be
in contemplation of the combination. New England Power's sale of generation
assets which commenced in September 1996 but was not concluded until September
1998 may be viewed as significant. While NEES believes that there are arguments
to rebut the Staff's presumption, there is no certainty that the Commission
would allow pooling because of the generation sale.
In purchase accounting, the grand total value, which must be assigned to
NEES's assets, is the total consideration to be paid for NEES, plus the fair
value of all liabilities assumed in the acquisition. Generally speaking,
goodwill is the residual balance of the total value remaining after fair values
have been assigned to all of NEES's identifiable assets (both tangible and
non-goodwill intangible assets). Accordingly, the excess of the purchase
consideration over the fair market value of the acquired assets of NEES will be
assigned to goodwill for US GAAP purposes.21
As indicated in the Staff Accounting Bulletin, registrants that have
substantially all (generally defined as in excess of 95%) of their common stock
acquired by a third party, in a business combination accounted for under the
purchase method, should reflect the push-down of goodwill in the registrant's
post-acquisition financial statements. For any post-acquisition reporting of the
consolidated NEES financial statements, push down accounting will be reflected
in those statements and the full amount of goodwill associated with the NEES
acquisition will be reflected. Push down accounting will also be applied to the
NEES Subsidiary Companies.
- --------
21 The amount of goodwill for US reporting purposes will vary somewhat from
the UK goodwill amount because of identified UK/US GAAP differences, which will
have an effect on the respective fair valuation analyses.
-23-
<PAGE>
Under UK GAAP, there is a presumption that the goodwill amortization period
should not exceed 20 years. This presumption is rebuttable by annual valuations
to confirm that no impairment of the carrying value of the goodwill has
occurred. National Grid currently intends to amortize the goodwill resulting
from the acquisition of NEES over a 20-year period. US GAAP at present allows a
goodwill life of up to 40 years. The Commission, however, has been challenging
registrants that adopt the maximum period. Additionally, the FASB draft proposal
relating to accounting for business combinations would limit the maximum
goodwill life to 20 years. Applicants, therefore, currently intend to adopt a
20-year goodwill amortization period for NEES for purposes of its separate US
reporting. This has the advantage of consistency with UK reporting requirements.
The application of "push down" accounting represents the termination of the
old accounting entity and the creation of a new one. For FERC and state
commission reporting purposes, goodwill will be recorded in the "Acquisition
adjustments" account. The original historical basis of the plant accounts will
not be disturbed.
As a result of the push down of the goodwill, the common stock equity
balances of NEES and the NEES Subsidiary Companies are effectively reset as if
they were new companies, because a new basis of accounting has been pushed down
to the entities. As a result, retained earnings are eliminated. Immediately
following this accounting treatment, the only components with a recorded value
would be:
o Common stock - which would continue to reflect the par value of the common
stock issued.
o Additional paid in capital - which would reflect a value consistent with
total common stockholders equity minus the par value recorded in the common
stock line.
In other words, the resulting common stockholders' equity will equal the total
consideration paid for the entity.
-24-
<PAGE>
Based on financial information as of September 30, 1999, the application of
these accounting principles to the NEES/National Grid merger will result in the
following adjustments to NEES' accounts (adjusted to reflect the pro forma
effect of the merger of NEES and EUA):
<TABLE>
<CAPTION>
$'000 Sept. 30, Adjustments1 Adjustments2 Restated
1999
<S> <C> <C> <C> <C>
Common shares 64,970 - - 64,970
Paid in capital 736,661 780,003 2,242,227 3,758,891
Retained earnings 1,010,489 (1,010,489) - -
Treasury stock (231,199) 231,199 - -
Accumulated income, net 713 (713) - -
Total common stock equity 1,581,634 - 2,242,227 3,823,861
- ----------------------------------- ------------------ ---------------------- --------------------- -----------------
</TABLE>
Adjustments 1 -- capital accounts are restated as Paid in Capital.
Adjustments 2 -- goodwill is added to Paid in Capital, which includes
an additional capital contribution of $633,516,000 from National Grid
to pay for the EUA acquisition.
The push down of the goodwill also has an impact on the net income of NEES.
Since the goodwill will be amortized over 20 years, NEES's net income will be
reduced by the amount of the amortization. For example, net income of $190
million in 1998 would be reduced by a goodwill amortization of $80 million. The
resulting net income after amortization would be $110 million. That amount is
less than the $147 million in dividends paid to NEES's shareholders in 1998.
NEES' acquisition of EUA also will involve similar issues. The premium to
be paid to acquire EUA will result in goodwill and the elimination of EUA's
retained earnings. EUA's consolidation with NEES will further increase NEES'
additional paid in capital account. The amortization of the EUA goodwill also
will reduce net income. The required accounting adjustments put NEES in the
anomalous position of having greater stockholders' equity following both
mergers, but projected net income below NEES's current dividend payment levels
and no retained earnings from which to pay dividends. As discussed further
below, these merger-related accounting adjustments do not affect the cash flow
associated with the U.S. Utility Subsidiaries.
-25-
<PAGE>
Section 12 of the 1935 Act, and Rule 46 thereunder, generally prohibit the
payment of dividends out of "capital or unearned surplus" except pursuant to an
order of the Commission. The legislative history explains that this provision
was intended to "prevent the milking of operating companies in the interest of
the controlling holding company groups." S. Rep. No. 621, 74th Cong., 1st Sess.
34 (1935).22 In determining whether to permit a registered holding company to
pay dividends out of capital surplus, the Commission considers various factors,
including: (i) the asset value of the company in relation to its capitalization,
(ii) the company's prior earnings, (iii) the company's current earnings in
relation to the proposed dividend, and (iv) the company's projected cash
position after payment of a dividend. See Eastern Utilities Associates, Holding
Co. Act Release No. 25330 (June 13, 1991), and cases cited therein. Further, the
payment of the dividend must be "appropriate in the public interest." Id.,
citing Commonwealth & Southern Corporation, 13 S.E.C. 489, 492 (1943).
National Grid and the U.S. Subsidiary Companies request authority to pay
dividends out of additional paid-in-capital up to the amount of NEES'
consolidated retained earnings just prior to the Merger and out of earnings
before the amortization of goodwill thereafter. In no case would dividends be
paid if the common stock equity of NEES as a percentage of total capitalization
was below 35% on a consolidated basis. This restriction is intended to protect
both investors and consumers.
In support of their request, Applicants assert that each of the standards
of Section 12(c) of the 1935 Act enunciated in the EUA case are satisfied:
(i) After the Merger, and giving effect to the pushdown of goodwill, NEES'
common stock equity as a percentage of total capitalization will be
75%, substantially in excess of the traditional levels of equity
capitalization that the Commission has authorized for other registered
holding company systems. Applicants' commitment to maintain the
capitalization of NEES at or above 35% common stock equity on a
consolidated basis should result in a capital structure consistent
with industry norms.
- --------
22 Compare Section 305(a) of the Federal Power Act.
-26-
<PAGE>
(ii) NEES has a favorable history of prior earnings and it has a long
record of consistent dividend payments.23
(iii)Applicants anticipate that NEES' cash flow after the Merger will not
differ significantly from its pre-Merger cash flow and that earnings
before the amortization of goodwill ("Gross Earnings"), therefore,
should remain stable post- Merger. Applicants intend that dividends
paid out of post-Merger earnings will continue to reflect a dividend
payout ratio of between 60% and 100% of Gross Earnings, based on a
rolling 5-year average. In addition, to assure that the U.S. Utility
Subsidiaries have sufficient cash to support their businesses,
Applicants will not cause any of the U.S. Utility Subsidiaries to pay
more than 80% of their post- Merger Gross Earnings as dividends, based
on a rolling 5-year average.24 Exhibit D-3 describes the dividend
history of the NEES subsidiaries in detail for the years 1994 to 1998.
(iv) The projected cash position of NEES and its U.S. Utility Subsidiaries
after the Merger will be adequate to meet the obligations of each
company. As of September 30, 1999, NEES had cash balances of $201
million on a consolidated basis. The amortization of goodwill is a
non-cash expense that will not affect the
- --------
23 In recent years, NEES' net income and dividends have been:
Year Net Income ($ millions) Dividends Paid ($ millions)
1994 199 148
1995 205 151
1996 209 154
1997 220 153
1998 190 147
1999 163 137
24 Applicants request the Commission to grant the proposed dividend relief
for the duration of the goodwill amortization period.
-27-
<PAGE>
cash flow of NEES or its subsidiaries. Each of NEES and its subsidiary
companies is forecast to have sufficient cash to pay dividends in the
amounts contemplated.
(v) The proposed dividend payments are in the public interest. NEES and
its subsidiary companies are in sound financial condition as indicated
by their credit ratings. NEES' commercial paper is rated A-1 by S&P
and Prime-1 by Moody's. The long-term debt of Massachusetts Electric
Co., Narragansett Electric Co., and New England Power Co. is rated
AA-, A1; AA-, A1; and A+, A1 by S&P and Moody's, respectively. Indeed,
Standard & Poor's has placed the credit ratings of NEES, Massachusetts
Electric Co., Narragansett Electric Co. and New England Power Co. on
"creditwatch with positive implications."25 The positive implications
for NEES and its subsidiaries are a result of their association with
the even stronger credit of National Grid. The expectations of
continued strong credit ratings by the U.S. Utility Subsidiaries
should allow them to continue to access the capital markets to finance
their operations and growth.
In addition, the dividend payments are consistent with investor interests
because they allow the capital structure of the NEES Group to be adjusted to
more appropriate levels of debt and equity. Lastly, a prohibition on dividend
payments out of additional paid-in-capital would seriously harm the ability of
National Grid to service the acquisition debt incurred in connection with the
Merger.
(d) Approval of New Tax Allocation Agreement The Applicants ask the
Commission to approve an agreement for the allocation of consolidated tax among
National Grid General Partnership ("NGGP") and the NEES Group post-Merger (the
"Tax Allocation Agreement"). Approval is necessary because the Tax Allocation
Agreement provides for the retention by NGGP of certain payments for tax losses
that it has incurred, rather than the allocation of such losses to subsidiary
companies without payment as would otherwise be required by Rule 45(c)(5).
Exhibit C-1 is a copy of the proposed Tax Allocation Agreement. Applicants have
provided a detailed legal analysis of Rule 45(c) and the proposed Tax Allocation
Agreement in Exhibit C-2.
- --------
25 Standard & Poor's Credit Wire (Dec. 14, 1998).
-28-
<PAGE>
Provisions in a tax allocation agreement between a registered holding
company and its subsidiaries must comply with Section 12 of the Act and Rule 45
thereunder. Rule 45(a) of the Act generally prohibits any registered holding
company or subsidiary company from, directly or indirectly, lending or in any
manner extending its credit to or indemnifying, or making any donation or
capital contribution to, any company in the same holding company system, except
pursuant to a Commission order. Rule 45(c) provides that no approval is required
for a tax allocation agreement between eligible associate companies in a
registered holding company system, that "provides for allocation among such
associate companies of the liabilities and benefits arising from such
consolidated tax return for each tax year in a manner not inconsistent with" the
conditions of the rule. Of interest here, Rule 45(c)(5) provides that:
The agreement may, instead of excluding members as provided in
paragraph (c)(4), include all members of the group in the tax
allocation, recognizing negative corporate taxable income or a
negative corporate tax, according to the allocation method chosen. An
agreement under this paragraph shall provide that those associate
companies with a positive allocation will pay the amount allocated and
those subsidiary companies with a negative allocation will receive
current payment of their corporate tax credits. The agreement shall
provide a method for apportioning such payments, and for carrying over
uncompensated benefits, if the consolidated loss is too large to be
used in full. Such method may assign priorities to specified kinds of
benefits. (Emphasis added.)
Under the rule, only "subsidiary companies," as opposed to "associate companies"
(which includes the holding company in a holding company system), are entitled
to be paid for corporate tax credits. However, if a tax allocation agreement
does not fully comply with the provisions of Rule 45(c), it may nonetheless be
approved by the Commission under Section 12(b) and Rule 45(a).
In connection with the 1981 amendments to Rule 45, the Commission explained
that the distinction between associate companies, on the one hand, and
subsidiary companies, on the other, represented a policy decision to preclude
the holding company from sharing in consolidated return savings. The Commission
noted that exploitation of utility companies by holding companies through the
misallocation of consolidated tax return benefits was among the
-29-
<PAGE>
abuses examined in the investigations underlying the enactment of the 1935 Act.
Holding Co. Act Release No. 21968 (March 25, 1981), citing Sen. Doc. 92, Part
72A, 70th Congress, 1st Sess. at 477-482. It must be noted, however, that the
result in Rule 45(c)(5) is not dictated by the statute and, as the Commission
has recognized, there is discretion on the part of the agency to approve tax
allocation agreements that do not, by their terms, comply with Rule 45(c) -- so
long as the policies and provisions of the Act are otherwise satisfied. In this
matter, where the holding company is seeking only to receive payment for tax
losses that have been generated by it, in the limited and discrete circumstances
where the losses were incurred in connection with acquisition-related debt only,
the proposed arrangement will not give rise to the types of problems (e.g.,
upstream loans) that the Act was intended to address. Compare Section 12(a) of
the Act. Accordingly, the Applicants request that the Commission approve the Tax
Allocation Agreement.
National Grid may suffer an increased UK tax liability without the tax
allocation agreement. UK corporate law looks at each company as a separate
entity, even where a company is a wholly owned subsidiary of another. This
perspective requires the maintenance of corporate capital and is particularly
important for creditor protection. Each company is required to prepare and
publicly file its own statutory accounts.
Each company is also taxed separately. The UK does not have a system of
consolidated groups. If one company in a group has a loss for tax purposes then
it may "surrender" that loss to another member thereby reducing its taxable
profits by the amount of the loss surrendered. The companies are separate
entities, however, for corporate law purposes and, because a tax loss is
available to reduce future taxable profits and therefore tax liabilities if not
surrendered, a loss is considered an asset which is invariably paid for if
surrendered. A payment avoids distorting the results of each entity and the risk
of voiding the surrender.
When a UK company receives a dividend from an overseas company it is
subject to tax on that dividend but is given a credit for the foreign tax borne
on the profits out of which the dividend has been paid. These rules also operate
on an entity by entity basis (consistent with the general approach in the UK
explained above). Therefore, if the tax paid by the foreign company has been
reduced by a loss incurred by another member of the group, the amount of relief
for foreign tax is distorted unless the foreign entity reimburses the loss maker
for the losses. This is illustrated in the example below. In the example it is
assumed that NGGP has debt of $2.2 billion
-30-
<PAGE>
and is a holding company of the U.S. Utility Subsidiaries only (i.e,, not EUA).
The example shows the impact of the tax allocation payments and the potential
increase in UK tax if the payments were not made.
<TABLE>
<CAPTION>
Illustrative post-acquisition
using 1998 figures
------------------------------------------------
1998 Without tax With tax allocation
allocation payments payments
$'000 $'000 $'000
<S> <C> <C> <C>
Profit before tax (note 1) 312,396 312,396 312,396
Tax (note 2)
- - tax payments 122,354 76,154 76,154
- tax allocation 0 0 46,200
agreement payments ------------------------------------------------------------------------
Profit after tax 190,042 236,242 190,042
Dividends (note 3) 145,648 145,648 145,648
UK tax on dividend of 10,829 2,839
$145,648 (note 4)
</TABLE>
Notes
1. The debt:equity ratio of the U.S. Utility Subsidiaries will be unaffected
by the National Grid acquisition and therefore the profit before tax of the
U.S. Utility Subsidiaries will not change for this reason.
2. If the debt in NGGP is assumed to be $2,200 million and the interest rate
is 6%, interest of $132 million is payable per annum by NGGP. Tax relief
for this interest reduces the federal tax paid by the U.S. Utility
Subsidiaries by 35% of $132 million, i.e. $46.2 million.
If no tax allocation payment is made, the U.S. Utility Subsidiaries' tax
expense is reduced by $46.2 million to $76.1 million. Alternatively, under
the proposed tax allocation agreement the U.S. Utility Subsidiaries will
make a payment of $46.2 million to NGGP to leave their total tax expense
the same as it would be on a separate return basis. The proposed tax
allocation agreement provides that the utilities tax payments and tax
allocation payments together will not exceed their tax payments on a
separate return basis.
3. Dividends cannot exceed profit after tax.
-31-
<PAGE>
4. The calculations are as follows:
Without tax allocation With tax allocation
payment Payment
$'000 $'000
----- -----
Dividend 145,648 145,648
Gross up 145,648 x 76,154 46,950
------
236,242
145,648 x 76,154 58,364
------ ------
190,042
Taxable amount 192,598 204,012
======= =======
UK tax @ 30% 57779 61,203
Less credit for US tax 46,950 58,364
------ ------
UK tax due 10,829 2839
====== ====
It is important to note that various safeguards assure that the structure
proposed in this application cannot be used to the detriment of investors,
consumers or the public interest. Most importantly, the tax allocation
agreement, included as Exhibit C-1 to this application, provides that "under no
circumstances shall the amount of tax allocated to a Member exceed its separate
tax liability." Secondly, the U.S. Utility Subsidiaries are limited to dividend
payments that do not exceed 80% of their Gross Earnings. Further, NEES on a
consolidated basis and, with limited exceptions, its electric utility
subsidiaries must maintain common stock equity capitalization of at least 35% of
total capitalization.26 With regard to debt financing, NEES' financing will
mirror the market terms of debt raised by National Grid and the NEES Subsidiary
Companies will finance their operations as permitted under existing Commission
orders or the rules under the 1935 Act. Lastly, with respect to service
transactions, the NEES Group will receive certain limited services from National
Grid and its subsidiaries, but all service transactions will be priced at cost
in accordance with Section 13 and the rules thereunder. Consequently, the NEES
Group is effectively insulated from the financial abuses targeted by the 1935
Act. The proposed tax allocation agreement and Intermediate Company structure
should be permitted as reasonable and appropriate measures to organize National
Grid's ownership of NEES efficiently in a manner consistent with the protection
of investors, consumers and the public interest.
- --------
26 See note 6, supra.
-32-
<PAGE>
If not reinvested in NEES or another business, National Grid expects that
funds retained by NGGP under the tax allocation agreement will flow up the chain
of Intermediate Companies to National Grid through dividends, interest payments,
share repurchases and the repayment of principal.27
3. Changes in Capital Stock of Subsidiaries
The portion of an individual U.S. Subsidiary Company's aggregate financing
to be effected through the sale of equity securities to its immediate parent
company during the Authorization Period cannot be determined at this time. It
may happen that the proposed sale of capital securities may in some cases exceed
the then authorized capital stock of such U.S. Subsidiary Company. In addition,
the U.S. Subsidiary Company may choose to use other forms of capital securities.
Capital stock includes common stock, preferred stock, other preferred
securities, options and/or warrants convertible into common or preferred stock,
rights, and similar securities. As needed to accommodate the sale of additional
equity, Applicants request the authority to increase the amount or change the
terms of any such U.S. Subsidiary Company's authorized capital securities,
without additional Commission approval, except as provided below. The terms that
may be changed include dividend rates, conversion rates and dates, and
expiration dates. Applicants note that each of the Intermediate Companies will
be wholly-owned directly or indirectly by National Grid and that none will have
third-party investors. Applicants request that the Commission reserve
jurisdiction over changes to the capital stock of NEES and any U.S. Subsidiary
Company that is not wholly-owned directly or indirectly by National Grid. The
changes to capital stock proposed above affect only the manner in which
financing is conducted by the U.S. Subsidiary Companies and will not alter the
terms or limits proposed in this application or those of the existing NEES Group
financing orders.
- --------
27 Exhibit C-3 describes the manner in which funds flow among the
Intermediate Companies.
-33-
<PAGE>
4. Financing Entities
Authority is sought for National Grid and the U.S. Subsidiary Companies to
organize new corporations, trusts, partnerships or other entities created for
the purpose of facilitating financings through their issuance to third parties
of income preferred securities or other securities authorized hereby or issued
pursuant to an applicable exemption. Request is also made for these financing
entities to issue such securities to third parties in the event such issuances
are not exempt pursuant to Rule 52. Additionally, request is made for
authorization with respect to (i) the issuance of debentures or other evidences
of indebtedness by any of National Grid or the U.S. Subsidiary Companies to a
financing entity in return for the proceeds of the financing, (ii) the
acquisition by any of National Grid or the U.S. Subsidiary Companies of voting
interests or equity securities issued by the financing entity to establish
ownership of the financing entity and (iii) the guarantee by the Applicants of
such financing entity's obligations in connection therewith. Each of National
Grid and the U.S. Subsidiary Companies also may enter into expense agreements
with its respective financing entity, pursuant to which it would agree to pay
all expenses of such entity. All expense reimbursements would be at cost.
Applicants seek authorization for such expense reimbursement arrangements under
Section 7(d)(4) of the Act, regarding the reasonableness of fees paid in
connection with the issuance of a security, and/or under Section 13 of the Act
and the rules thereunder to the extent the financing entity is deemed to provide
services to an associate company.
Any amounts issued by such financing entities to third parties pursuant to
this authorization will count against the $4.0 billion external financing limit
authorized herein for the immediate parent of such financing entity. However,
the underlying intra-system mirror debt and parent guarantee will not count
against the $4 billion external financing limit or the separate National Grid
and NEES guarantee limits. The authorization sought herein with respect to
financing entities is substantially the same as that given to New Century
Energies, Inc. in Holding Co. Act Release No. 26750 (Aug.1, 1997) and Conectiv,
Inc. in Holding Co. Act Release No. 26833 (Feb. 26, 1998).
-34-
<PAGE>
5. EWG/FUCO-related Financings
National Grid has adopted a corporate structure that separates its existing
foreign operations from its U.S. utility operations. The organization of foreign
activities under Holdings, and U.S. utility activities under NEES, reflects
National Grid's intent to develop these two business areas in a financially
independent manner. As a general matter, National Grid intends to fund its FUCO
activities at the Holdings level, although under certain circumstances it may be
necessary from time to time for National Grid to provide some investment capital
or credit support for FUCO acquisitions or operations.28 To that end, National
Grid is seeking authority to finance EWG and FUCO investments and operations in
an aggregate amount of up to 50% of its consolidated retained earnings at any
one time outstanding, during the Authorization Period.29 As of September 30,
1999, 50% of National Grid's consolidated retained earnings on a U.S. GAAP basis
was $874 million. Such financings may include the issue or sale of a security
for purposes of financing the acquisition or operations of an EWG or FUCO, or
the guarantee of a security of an EWG or FUCO. As explained more fully below,
the proposed financing will not have an adverse effect on the financial
integrity of the National Grid System, nor will it have an adverse impact on any
U.S. Utility Subsidiary, any customers of any U.S. Utility Subsidiary, or the
ability of the affected state commissions to protect the U.S. Utility
Subsidiaries and their customers.
National Grid differs from all other registered holding companies with FUCO
investments because it developed first as a foreign utility company, involved in
high-voltage transmission of electricity in England and Wales, and only
secondarily has become involved, through the NEES acquisition, in the U.S.
energy industry. National Grid, therefore, joins the family of registered
holding companies with significant foreign investments and operating experience
in foreign markets. As of September 30, 1999 National Grid had an "aggregate
investment", as the term is defined in Rule 53 under the Act, in EWGs and FUCOs
of $3,532
- --------
28 For example, it may be desirable for reasons of economic efficiency to
hold certain FUCO interests outside Holdings and its subsidiary companies.
29 As noted above, all of National Grid's current subsidiaries are held
through a FUCO. The National Grid System will not own any EWGs at the closing of
the Merger. In the Merger U-1, National Grid has requested that its pre-existing
investment in FUCOs be grandfathered for purposes of the financing limits under
Rule 53.
-35-
<PAGE>
million. This investment represents 202% of the combined NEES and National Grid
pro forma consolidated retained earnings as of September 30, 1999 calculated in
accordance with U.S. GAAP.
This information is provided for historical perspective only. As stated
above, due to National Grid's unique history as a significant operator and
investor in foreign utility companies at the time that it will become a
registered holding company, a forward-looking view of the appropriate level of
investment in EWGs and FUCOs is most valuable in determining whether the
financing proposed in this application will have a substantial adverse effect
upon the financial integrity of the registered holding company system. In fact,
the expertise that National Grid has gained in operating the England and Wales
transmission system, and other transmission throughout the world, promises to be
of substantial benefit to U.S. consumers in the management of NEES. It would
indeed be a curious result if the Commission found that National Grid's
preexisting FUCO investments adversely affected the registered holding company
system, U.S. customers or state regulation.
National Grid's unique background makes it difficult for the company to
comply fully with certain of the technical requirements of Rule 53. In
particular because National Grid has pre-existing foreign utility operations, it
cannot at this time commit to maintain the books and records of its FUCOs in
conformity with U.S. GAAP. Nonetheless, National Grid satisfies the ultimate
standards, as set forth in Section 32 and reflected in Rule 53(c), namely, the
proposed investment will not have a substantial adverse impact on the financial
integrity of the National Grid System, or an adverse impact on any of the U.S.
Utility Subsidiaries, or their customers, or on the ability of state commissions
to protect such subsidiary or customers. National Grid makes this assertion
based on an assessment of its business activities, its capital structure, the
earnings and cash flows anticipated from its assets, and the risks that could
affect the financial stability of the National Grid System.
The Franks/Brattle Study provides useful comparisons between National Grid
and other registered holding companies. In particular, the business of National
Grid's primary asset, The National Grid Company plc ("NGC"), enjoys stable
revenues from its electric transmission business. NGC's current rate structure
insulates it from the weather-related or economy-related
-36-
<PAGE>
variability in revenues that typically affect U.S. utilities. National Grid's
other significant business is a telecommunications company named Energis plc.
The majority of Energis shares are publicly held and National Grid has announced
its intention to dispose of its Energis holdings over the next several years.
The investment bank Dresdner Kleinwort Benson has opined that "National Grid's
credit will remain stronger than that of its peers since its earnings will
almost exclusively be derived from stable predictable monopoly distribution and
transmission cash flows."30 This stability is reflected in the low volatility of
National Grid's stock since its initial public offering in December, 1995.
National Grid's beta, a measure of a stock's variability of returns as compared
with the returns of the market as a whole, is .66. Stated in other words,
National Grid's stock was only 66% as volatile as the market. The average beta
of U.K. electric utilities is .84, and the betas of comparable U.S. utilities
range from .55 to .85. National Grid's business activities, therefore, present a
favorable financial profile.
The soundness of National Grid's security structure can be shown in several
ways. Perhaps the best overall expression of sound capitalization is a high
credit rating. National Grid's AA rating by Standard & Poor's exceeds the
ratings of the other U.S. registered holding companies examined in the
Franks/Brattle Study.31 National Grid shares an A1 Moody's rating with several
of the utilities in the study group. In contrast to the 63% average debt to
asset base ratio of the utilities in the Franks/Brattle Study group, National
Grid will have a post-Merger ratio of 56% of regulatory asset base. National
Grid also gains additional flexibility from having convertible debt as part of
its capital structure. National Grid's current stock price is above the exchange
price of the convertible debt, making it likely that the debt will be converted
into equity. The debt ratio comparison shows that National Grid has significant
debt capacity and that the proposed FUCO investment authority would not result
in a substantial adverse impact to the system.
Cash flow forecasts indicate that National Grid would be able to finance
new capital expenditures and pay down all debt over the estimated useful life of
its assets.32 National Grid's remaining equity holdings in Energis also
represent a large, marketable security that National Grid
- --------
30 Franks/Brattle Study, at 11.
31 Franks/Brattle Study, Table 5.
32 Id.
-37-
<PAGE>
may use to service the acquisition debt or the additional financing proposed in
this Application- Declaration. The market value of National Grid's Energis stake
is $3.3 billion (based on the September 30, 1999 closing market price on the
London Stock Exchange).33
As of March 31, 1998 and March 31, 1999, National Grid's consolidated
capitalization (on a U.S. GAAP basis) is shown in the table below:
March 31, 1998 March 31, 1999
National Grid (%) National Grid (%)
($ mm) ($ mm)
Debt 2,500.2 71% 3,676.0 60%
Common stock 1,022.2 29% 2,415.8 40%
equity
Total 3,522.4 100% 6,091.8 100%
National Grid's equity market value to book value ratios and stock price to
earnings ratios over periods before and after the announcement of the NEES
acquisition are provided below:
- --------
33 After the recent sale by National Grid of 27,000,000 Energis shares, the
market value of National Grid's remaining Energis stake is $5.8 billion, based
on the February 14, 2000 closing market price on the London Stock Exchange.
-38-
<PAGE>
<TABLE>
<CAPTION>
Market to Book Value
At: Mar. 31, 1998 Sept. 30, 1998 Mar. 31, 1999 Sept. 30, 1999
$mm $mm $mm $mm
<S> <C> <C> <C> <C>
Market value of equity 8,551.5 10,617.1 11,084.3 10,232.7
Book value of equity 1,022.2 1,100.1 2,415.8 2,530.9
(under U.S. GAAP)
Ratio of market to book 8.4x 9.7x 4.6x 4.0x
value (times)
</TABLE>
-39-
<PAGE>
<TABLE>
<CAPTION>
Price/Earnings Ratios
$ $ $ $
<S> <C> <C> <C> <C>
Basic earnings per share 0.518 0.167 1.129 0.205
(U.S. GAAP)34
Annualized earnings per 0.518 0.334 1.129 0.410
share (U.S. GAAP)
Ratio of price to earnings 11.2x 21.6x 6.6x 16.8x
</TABLE>
The recent growth in National Grid's retained earnings and consolidated common
stock equity is shown below:
<TABLE>
<CAPTION>
At: Mar. 31, 1997 Mar. 31, 1998 Mar. 31, 1999 Sept. 30, 1999
$mm $mm $mm $mm
<S> <C> <C> <C> <C>
Capital stock 283.1 286.3 286.9 287.9
Paid-in-capital 304.4 384.0 406.7 440.1
Treasury stock -- (17.3) (18.2) (25.2)
Retained earnings 1,251.6 369.2 1,740.4 1,828.1
Shareholder's equity 1,839.1 1,022.2 2,415.8 2,530.9
Annual growth rate -- (44)%35 136% 5%
Growth rate over 38%
last 2.5 years
Annualized growth 14%
rate
</TABLE>
- --------
34 Unadjusted for the net income arising on the sale of Energis shares in
the year ended March 31, 1999 of $1,149.8 million. Unadjusted for the reduction
in our interest in Energis in the year ended March 31, 1998 of $184.5 million.
35 A special dividend of $1.23 billion was paid during the year ended March
31, 1998, which distorts the historical trend in growth of shareholder's equity.
-40-
<PAGE>
The following table compares National Grid's net income to the net income of
National Grid Company:
<TABLE>
<CAPTION>
National Grid NGC NGC as % of
National Grid
For the year ended March 31, 1998
$mm $mm %
<S> <C> <C> <C>
Net income (U.S. GAAP) 757.2 1,073.0 142%
Adjustment36 418.6
Pro forma net income 757.2 86%
(U.S. GAAP) 654.4
Year ended March 31, 1999
Net income (U.S. GAAP) 1,654.6 564.4 34%
Six months ended September 30, 1999
Net income (U.S. GAAP) 302.3 259.6 86%
</TABLE>
The final aspect of the Commission's inquiry into the proposed FUCO
financing should focus on whether risks associated with the foreign utility
businesses could adversely affect the financial stability of the system. In this
regard, National Grid's successful operation of a national, high-voltage
transmission system and its profitable investment in Energis should indicate
that the firm has sound management skills and expertise in the utility industry,
particularly as it relates to foreign utility operations. To ensure continued
success in its new ventures, National Grid subjects all project proposals to
stringent reviews.
National Grid's disciplined investment review process minimizes the risks
associated with FUCO activities. Before National Grid or its subsidiaries make
any investment in a project, the project is analyzed in detail, including the
specific country risk, where applicable. The project review process includes a
series of independent internal reviews, both at the subsidiary and National Grid
levels.
- --------
36 NGC recorded a profit on the sale of Energis shares to National Grid.
This profit is adjusted out of NGC's income on the pro forma net income line.
-41-
<PAGE>
In the UK, the majority of projects by number will relate to NGC's
transmission business. Each potential project is subjected to a series of formal
reviews to ensure its financial robustness. The process begins with a
consideration of NGC's strategic plans, which are updated periodically. The
investment procedure follows on from and integrates with the planning cycle of
National Grid. Individual project business plans are prepared as part of the
process of including potential investments in the Group Business Plan. All
projects identified as requiring future funding must be included within the
planning cycle. This planning procedure ensures that all capital and
non-recurring revenue project expenditures can be justified on business,
technical and economic grounds. In addition project progress is monitored and
subject to normal business control to ensure that approved projects meet their
performance targets.
The project review process includes consideration of business, financial,
regulatory, environmental and legal risks. Foreign projects are subject to an
additional level of scrutiny concerning:
o the political and economic stability of the particular country,
o the host governments' commitment to private power,
o the legal and regulatory framework for private investment in utility
facilities,
o the local business support for long-term investment of private capital,
o the economic viability of the project,
o the environmental impact, and o the currency conversion and repatriation of
dividends
Project proposals are subject to successive stages of review by senior
management and directors depending upon National Grid's projected financial
exposure in a particular project. Generally, the process by which National Grid
identifies, manages and approves its business development activities, broadly
follows the following lines:
o The production of an Opportunity Registration Paper ("ORP"), which covers,
in outline form, a description of the opportunity, a brief description of
the investment environment, the strategic importance of the investment and
future actions. The ORP would also be presented to the Business Development
Committee for approval.
-42-
<PAGE>
o The production of a Development Strategy Paper ("DSP"), which identifies
the development strategy for the investment and covers, in outline form,
market conditions, the development strategy, competitive position and an
action plan. The DSP would also be presented to the Business Development
Committee for approval.
o The production of an Investment Proposal Paper ("IPP") seeking approval for
a bid. This paper would cover the investment opportunity, a financial
appraisal, existing strategy, the transaction, bid details, and planned
future actions. The IPP is the board paper for National Grid, and must be
approved by the directors.
Once development of a project is undertaken, milestones are established to
ensure that continuing expenditures are producing acceptable results. In
addition, project teams are established to identify the major technical,
financial, commercial and legal risks associated with a particular project and
risk mitigation strategies. The process would follow the following broad
outline:
o undertake due diligence
o prepare valuation
o prepare business plan
o obtain internal approvals
o obtain acquisition financing
o develop corporate and tax structure
o prepare corporate communications plan
o prepare and submit bid/offer
o prepare post acquisition plan
The final project review process, in many cases is, to a large extent,
duplicated by the lenders who agree to provide construction or permanent debt
financing on a non-recourse basis, since repayment of that debt will depend
solely upon the success of the project. National Grid's ability to arrange
appropriate levels of non-recourse financing for its existing investments is
evidence of the success of the project review and risk management process
outlined above.
-43-
<PAGE>
In addition, it is noteworthy that none of the conditions described in
paragraph (b) of Rule 53 is applicable. Specifically; (1) there has been no
bankruptcy of any National Grid associate company in which a plan of
reorganization has not been confirmed; (2) the average consolidated retained
earnings for the two most recent semiannual periods has not decreased by 10
percent from the average for the previous two semiannual periods;37 and (3) in
the past fiscal year, National Grid has not reported operating losses
attributable to its direct or indirect investments in EWGs and FUCOs.
Statement of Financial Accounting Standards No.121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets To Be Disposed Of,
requires an evaluation of the impairment of all assets of a utility that a
company plans to write down and take as a loss. National Grid currently has no
assets that would need to be written down under SFAS 121. No assets with respect
to any FUCOs currently owned (directly or indirectly) by National Grid are
expected to require a write down under SFAS 121, nor has any associate EWG or
FUCO ever defaulted under the terms of any financing document. National Grid
undertakes to notify the Commission by filing a post-effective amendment in this
proceeding in the event that any of the circumstances described in Rule 53(b)
occurs during the authorization period.
The Commission has found the standards of the Act satisfied in connection
with requests by a number of U.S. registered holding companies to exceed the
so-called "50 percent limit" under Rule 53. Southern Co., Holding Co. Act
Release No. 26501 (April 1, 1996); Central and South West Corporation, Holding
Co. Act Release No. 26653 (Jan. 24. 1997). See also GPU, Inc., Holding Co. Act
Release No. 26779 (Nov. 17, 1997); Cinergy Corp., Holding Co. Act Release No.
26848 (March 23, 1998); American Electric Power Company, Holding Co. Act Release
No. 26864 (April 27, 1998); New Century Energies, Holding Co. Act Release No.
26982 (Feb. 26, 1999). In each of those matters, the applicant sought relief
from the safe-harbor requirements of Rule 53(a)(1) to allow investments in an
amount equal to the applicant's consolidated retained earnings. The Commission
found that the applicants in each matter had demonstrated successfully, through
the use of certain financial indicators, that investing in EWGs
- --------
37 Although Rule 53 specifies quarterly periods, National Grid does not
prepare accounts with this frequency.
-44-
<PAGE>
and FUCOs in an amount not to exceed their consolidated retained earnings would
not have a substantial adverse impact on the financial integrity of the holding
company system. Applicants assert that the comparison of the financial measures
and indicators discussed above, and National Grid's stringent project review
procedures, demonstrate that the financial integrity of the National Grid System
is superior to or substantially similar to the financial integrity of the
applicants in matters in which the Commission has previously granted exceptions
to the safe harbor requirements of Rule 53.
The soundness of National Grid's financial structure and the lack of risk
to U.S. utility consumers is further demonstrated by the following:
o National Grid's commitment to maintain the common stock equity ratios of
NEES and, with limited exceptions, its electric utility subsidiaries at a
minimum of 35%;38
o National Grid's commitment to maintain its long-term debt rating at an
investment grade level;
o National Grid's commitment to maintain its interest cover ratio
(Consolidated EBITDA to Net Interest Payable) at not less than 3:1, and;
o National Grid's undertaking to cause its common stock equity as a
percentage of total capitalization, measured on a book value US GAAP basis,
to be 30% or above by March 31, 2002.
Under Rule 53(c)(2) National Grid must demonstrate that the proposed use of
financing proceeds to invest in FUCOs will not have an "adverse impact" on any
of the U.S. Utility Subsidiaries, their respective customers, or on the ability
of the State commissions having jurisdiction over one or more such utility
subsidiaries to protect such public utility companies or such customers.
The conclusion that the customers of the U.S. Utility Subsidiaries will not
be adversely impacted by increased levels of investment is well-supported by the
following:
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38 See note 6, supra.
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(a) All of National Grid's investments in EWGs and FUCOs will be segregated
from the U.S. Utility Subsidiaries. None of the U.S. Utility Subsidiaries will
provide financing for, extend credit to, or sell or pledge its assets directly
or indirectly to any EWG or FUCO in which National Grid owns any interest.
National Grid further commits not to seek recovery in retail rates for any
failed investment in, or inadequate returns from, an EWG or FUCO investment.
(b) Investments in EWGs and FUCOs will not have any negative impact on the
ability of the U.S. Utility Subsidiaries to fund operations and growth. The U.S.
Utility Subsidiaries currently have financial facilities in place that are
adequate to support their operations.39 These facilities will continue
subsequent to the Merger. Indeed, as noted previously, Standard & Poor's has
placed the credit ratings of NEES, Massachusetts Electric Co., Narragansett
Electric Co. and New England Power Co. on "creditwatch with positive
implications."40 The positive implications for NEES and its subsidiaries are a
result of their association with the even stronger credit of National Grid. The
expectation of continued strong credit ratings by the U.S. Utility Subsidiaries
should allow them to continue to access the capital markets to finance their
operations and growth.
(c) National Grid will comply with the requirements of Rule 53(a)(3)
regarding the limitation on the use of the U.S. Utility Subsidiaries' employees
in connection with providing services to FUCOs. It is contemplated that project
development, management and home office support functions for the projects will
be largely performed by Holdings and its subsidiary companies, and by outside
consultants (e.g., engineers, investment advisors, accountants and attorneys)
engaged by National Grid or Holdings. On a going-forward basis, National Grid
also will comply with Rule 53(a)(4) regarding the provision of EWG and FUCO
related information to every federal, state and local regulator having
jurisdiction over the retail rates, as applicable, of the U.S. Utility
Subsidiaries.
(d) National Grid believes that the State commissions are able to protect
utility customers within their respective states. In connection with the
National Grid/NEES transaction generally, representatives of National Grid have
met with each of the affected state commissions
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39 See, Item 1.B., supra.
40 Standard & Poor's CreditWire (Dec. 14, 1998).
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and requested them to provide the Commission with letters certifying that the
state commission has jurisdiction over the respective NEES system public-utility
companies and that the state commission will exercise this authority to protect
ratepayers.
(e) In addition, National Grid will provide the information required by
Form 20-F to permit the Commission to monitor the effect of National Grid's EWG
and FUCO investments on National Grid's financial condition.
E. Filing of Certificates of Notification
It is proposed that, with respect to National Grid which, as noted above,
has registered under the 1934 Act in connection with its sponsored ADR program,
the reporting systems of the 1934 Act and the 1933 Act be integrated with
reports under the 1935 Act. This would eliminate duplication of filings with the
Commission that cover essentially the same subject matters, and reduce burdens
on both the Commission and National Grid. To effect such integration, the
Applicants propose to incorporate by reference into the Rule 24 certificates of
notification under this file the portion of the 1933 Act and 1934 Act reports
containing or reflecting disclosures of transactions occurring pursuant to the
authorization granted in this proceeding. The certificates would also contain
all other information required by Rule 24, including the certification that each
transaction included in the report had been carried out in accordance with the
terms and conditions of and for the purposes represented in this Application.
Applicants propose to provide Rule 24 certificates on a semiannual basis,
consistent with the frequency of financial reporting required in the UK. Under
UK rules, National Grid must prepare and publish consolidated financial
information semi-annually. In addition, semiannual financial reporting is
consistent with National Grid's ADR listing on the New York Stock Exchange. Due
to National Grid's extensive foreign holdings, it would entail significant
additional work and expense for National Grid to prepare consolidated financial
statements on a quarterly basis. In that regard, in the interest of maintaining
the consistent presentation of financial information, Applicants propose that
their Form U5S filings will comprise National Grid's consolidated financial
statements in the format required by Form 20-F, i.e., U.K. GAAP format with
reconciliations to U.S. GAAP. In addition, Applicants propose to include in
their Form U5S
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filings: (1) U.S. GAAP financial statements for all the companies in the NEES
Group, and (2) U.S. GAAP financial statements or financial statements in the
format required by Form 20-F for (a) Holdings, on a consolidated basis, (b) any
subsequently acquired FUCO, and (c) the Intermediate Companies. Amounts included
in Form U5S filings will be stated in U.S. dollars. National Grid will provide
the Commission access to the books, records and financial statements, or copies
thereof, of any of its subsidiary companies, in English, as the Commission may
request.
Applicants also request an exemption from Rule 26(a)(1) under the Act,
regarding the maintenance of financial statements in conformance with Regulation
S-X. The exemption would apply only to subsidiaries of Holdings that are
organized outside the U.S., provided that with respect to any direct or indirect
acquisition, after the issuance of an order in this Application- Declaration, of
any securities of or interest in an entity that owns or operates facilities that
are not located in any state and which are used for the generation, transmission
or distribution of electric energy for sale or the distribution at retail of
natural or manufactured gas: (i) National Grid will cause a Form U-57 to be
filed by or on behalf of that entity, and (ii) the entity will maintain its
financial statements in accordance with U.S. GAAP or reconcile such statements
to U.S. GAAP in the same manner as required by Form 20-F.
National Grid will also provide the following supplemental information in
its annual Form U5S filing:
1. The amount of any income tax credit and/or income tax liability incurred
during the previous fiscal year by NGGP: (a) as a result of any
acquisition-related debt; and (b) as a result of any other income source or
expense;
2. A description of how the income tax credit and/or income tax liability was
calculated and allocated to all companies included in the consolidated tax
return, showing all of NGGP's interest costs and any assumptions used in
the calculation;
3. A description of how any acquisition-related funding is effected through
all Intermediate Companies;
4. A description of the amount and character of any payments made by each
Intermediate Company to any other National Grid System company during the
reporting period; and
5. A statement that the allocation of tax credits and liabilities was
conducted in accordance with the tax allocation agreement in effect and
filed as an exhibit to the Form U5S.
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The Rule 24 certificates will be provided to the Commission within 90 days
after the end of National Grid's fiscal year and within 60 days of the end of
its second fiscal quarter and will contain the following information:
a. The principal amount, interest rate, term, number of shares, market
price per share, sales price per share (if other than market price)
and aggregate proceeds, as applicable, of any securities issued by
National Grid during the reporting period, including securities issued
to dividend reinvestment plans and employee benefit plans;
b. The amount of guarantees issued during the reporting period by
National Grid, the name of the beneficiary of the guarantee and the
terms and purpose of the guarantee;
c. National Grid's aggregate investment, as defined under Rule 53, in
EWGs and FUCOs, excluding grandfathered investments, as of the end of
the reporting period in dollars and as a percentage of National Grid's
consolidated retained earnings, and a description of EWG and FUCO
investments during the reporting period;
d. The aggregate amount of securities and the aggregate amount of
guarantees issued and outstanding by National Grid since the date of
the order in this application, including any NEES acquisition debt;
e. A list of the securities issued by the Intermediate Companies during
the reporting period, including principal amount, interest rate, term,
number of shares and aggregate proceeds, as applicable, with the
acquiring company identified;
f. The amount and terms of any short-term debt issued by any U.S. Utility
Subsidiary, and a list of the deposits and withdrawals by company from
the system money pool during the reporting period;
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g. The amount and terms of any nonexempt financings consummated during
the period by any U.S. Utility Subsidiary during the reporting period;
h. The amount and terms of any nonexempt financings consummated by any
nonutility U.S. Subsidiary Company during the reporting period;
i. A retained earnings analysis of each company in the NEES Group
detailing Gross Earnings, goodwill amortization, dividends paid out of
each capital account, and the resulting capital account balances at
the end of the reporting period;
j. A table showing, as of the end of the reporting period, the dollar and
percentage components of the capital structures of National Grid,
Holdings, each Intermediate Company, and each company in the NEES
Group;
k. Paper copies of National Grid's filings of Form 20-F and semiannual
reports to shareholders; and
l. As applicable, all amounts shall be expressed in U.K. Pounds and
converted to U.S. dollars and shall be presented in accordance with
the U.S. GAAP reconciliation requirements of Form 20-F. In particular,
the semiannual reports provided to the Commission in Rule 24 filings
under this Application-Declaration shall be organized so that all
columns showing amounts in Pounds in financial statements or tables
are accompanied by parallel columns showing dollar amounts.
ITEM 2 FEES, COMMISSIONS AND EXPENSES
Applicants have incurred or will incur estimated fees and expenses of
approximately $30 million in connection with the financing transactions proposed
in this Application. This amount includes arrangement fees, underwriting costs,
facility fees and hedging and option costs. As noted previously, National Grid
proposes that fees, commissions or other similar remuneration paid in connection
with the non-competitive issue, sale or distribution of a security pursuant to
the Application will not exceed 5% of the principal or total amount of the
security issued. Fees for
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investment bankers, lawyers, brokers, accountants, consultants and other service
providers are included within the Merger-related fees disclosed in Item 2 of
File No. 70-9473.
ITEM 3 APPLICABLE STATUTORY PROVISIONS
Sections 6(a), 7, 9(a), 10 and 12 of the Act and Rules 42, 43, 45, 52, 53
and 54 are considered applicable to the proposed transactions.
To the extent that the proposed transactions are considered by the
Commission to require authorization, exemption or approval under any section of
the Act or the rules and regulations other than those set forth above, request
for such authorization, exemption or approval is hereby made.
ITEM 4 REGULATORY APPROVALS
The Federal Energy Regulatory Commission has jurisdiction over the payment
by a jurisdictional public utility company of dividends out of capital or
unearned surplus and has issued an order approving such payment.41 The
Massachusetts Department of Telecommunications and Energy ("MDTE") has
jurisdiction over the acquisition of securities by Massachusetts Electric
Company, New England Hydro-Transmission Electric Company, Inc., Nantucket
Electric Company and New England Power Company. In addition, the New Hampshire
Public Utilities Commission ("NHPUC") has jurisdiction over the issuance of
short-term debt by Granite State Electric Company, New England Power Company,
New England Electric Transmission Company and New England Hydro-Transmission
Company. Such transactions have been authorized through October 31, 2001.42
Applicants have requested that the Commission extend the term of any existing
NEES Group financing authority through the Authorization Period. To the extent
that any NEES Subsidiary Company requires further authorization from the MDTE or
the NHPUC subsequent to October 31, 2001, the Applicants will seek such
authorization. Except as discussed
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41 New England Power Company, et al., 89 FERCP. 61,266 (1999).
42 New England Electric System, et al., Holding Co. Act Release No. 26768
(Oct. 29, 1997).
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above, no state or federal regulatory agency other than the Commission under the
Act has jurisdiction over the proposed transactions.
ITEM 5 PROCEDURE
The Applicants hereby request that there be no hearing on this
Application/Declaration and that the Commission issue its order as soon as
practicable after the filing hereof. The Commission is respectfully requested to
issue and publish the requisite notice under Rule 23 with respect to the filing
of this Application/Declaration not later than June 30, 1999, such notice to
specify a date not later than July 25, 1999, by which comments may be entered
and a date not later than the date of the Commission's order for the Merger U-1,
as the date on which an order of the Commission granting and permitting the
Application/Declaration to become effective may be entered by the Commission.
The Applicants hereby (i) waive a recommended decision by a hearing
officer, (ii) waive a recommended decision by any other responsible officer or
the Commission, (iii) consent that the Division of Investment Management may
assist in the preparation of the Commission's decision and (iv) waive a 30-day
waiting period between the issuance of the Commission's order and the date on
which it is to become effective.
ITEM 6 EXHIBITS AND FINANCIAL STATEMENTS
Exhibits
A-1 Articles and Memorandum of Association of National Grid
(incorporated by reference to Exhibit A-1 of the Merger U-1)
B-1 National Grid Credit Facility (incorporated by reference to
Exhibit B-3 of the Merger U-1)
C-1 Form of Tax Allocation Agreement, revised
C-2 Legal Analysis of Rule 45(c) and the Proposed Tax Allocation
Agreement
C-3 Intercompany Debt and Funds Flow
D-1 National Grid Corporate Chart (Filed on Form SE)
D-2 Description of the Companies in the National Grid System
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D-3 Dividend History of NEES and its Subsidiaries
F-1.1 Opinion of counsel
F-1.2 Past-tense opinion of counsel (to be filed by amendment)
H-1 Annual Report of National Grid dated March 31, 1998 (incorporated
by reference to Exhibit H-1 of the Merger U-1)
H-2 Annual Report on Form 10-K of NEES for the year ended December
31, 1998 (filed with the Commission on March 31, 1999 (File No.
1-3446) and incorporated by reference herein)
I-1 Proposed Form of Notice
K-1 Response to the Comments of Russell G. Gilmore (filed with the
Commission on November 30, 1999 in File No. 70-9473 and
incorporated herein by reference)
Financial Statements
FS-1 National Grid Unaudited Pro Forma Condensed Consolidated Balance
Sheet (Confidential Treatment Requested)
FS-2 National Grid Unaudited Pro Forma Condensed Consolidated
Statement of Income (Confidential Treatment Requested)
FS-3 Notes to Unaudited Pro Forma Condensed Consolidated Financial
Statements (Confidential Treatment Requested)
FS-4 National Grid Consolidated Balance Sheet as of September 30, 1998
(incorporated by reference to Exhibit FS-4 to the Merger U-1)
FS-5 National Grid Consolidated Statement of Income as of September
30, 1998 (incorporated by reference to Exhibit FS-5 to the Merger
U-1)
FS-6 NEES Consolidated Balance Sheet as of December 31, 1998 (see NEES
Form 10-K for the year ended December 30, 1998 (Exhibit H-2
hereto))
FS-7 NEES Consolidated Statement of Income for the twelve months ended
December 31, 1998 (see NEES Form 10-K for the year ended December
31, 1998 (Exhibit H-2 hereto))
FS-8 National Grid Financial Projections for the Years 1999-2004
(Confidential Treatment Requested)
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FS-9 Notes to National Grid's Financial Projections for the Years
1999-2004 (Confidential Treatment Requested)
FS-10 Pro Forma Capitalization Tables (Confidential Treatment
Requested)
ITEM 7 STATEMENT AS TO ENVIRONMENTAL EFFECTS
None of the matters that are the subject of this Application involves 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. The transactions that are the subject of this
Application will not result in changes in the operation of the company that will
have an impact on the environment. The Applicants are not aware of any federal
agency that has prepared or is preparing an environmental impact statement with
respect to the transactions that are the subject of this Application.
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SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned companies have duly caused this Pre-Effective Amendment
No. 8 to the Application-Declaration, File No. 70-9519, to be signed on their
behalf by the undersigned thereunto duly authorized.
The signature of the Applicants and of the persons on their behalf are
restricted to the information contained in this application which is pertinent
to the application of the respective companies.
Date: March 14, 2000
/s/ Jonathan M. G. Carlton
--------------------------
Jonathan M. G. Carlton
Business Development Manager -- Regulation
The National Grid Group plc
/s/ Kirk Ramsauer
--------------------------
Kirk Ramsauer
Deputy General Counsel
New England Electric System*
*The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby referred
to, and a copy of which as amended has been filed with the Secretary of the
Commonwealth of Massachusetts. Any agreement, obligation or liability made,
entered into or incurred by or on behalf of New England Electric System binds
only its trust estate, and no shareholder, director, trustee, officer or agent
thereof assumes or shall be held to any liability therefor.
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