SECURITIES AND EXCHANGE COMMISSION
(Release No. 35-27748; 70-10112)
Northeast Utilities, et al.
Order Authorizing Payments of Dividends and Repurchases of Stock Out of Capital or Unearned Surplus
November 7, 2003
Northeast Utilities ("NU"), West Springfield, Massachusetts, a registered public-utility holding company under the Public Utility Holding Company Act of 1935 ("Act"), and Northeast Nuclear Energy Company ("NNECO"), Berlin, Connecticut, NU's wholly owned subsidiary (together "Applicants"), filed with the Securities and Exchange Commission ("Commission") an application-declaration ("Application") under sections 6(a), 7 and 12(c) of the Act and rules 26(c)(3), 42, 43, 44 and 46(a). The Commission issued a notice of the filing of the Application on October 10, 2003 (Holding Co. Act Release No. 27735).
NU and NNECO have requested authorization for NNECO to pay dividends to and, or in the alternative, to repurchase stock from, NU out of capital or unearned surplus through December 31, 2004 ("Authorization Period"). NNECO is in the process of winding up its business.
NNECO was incorporated in 1950. Through a Special Act of the Connecticut Legislature passed in 1967, the company has a valid franchise under Connecticut law to sell electricity to utility companies engaging in electric business in Connecticut and other states; to manufacture, generate and transmit electricity; and to erect and maintain facilities on certain public highways and grounds. NNECO's sole activity has been to act as agent for the NU system companies and other New England utilities in operating and maintaining the Millstone nuclear generating facilities located in Waterford, Connecticut ("Millstone").
Until March 2001, Millstone's facilities were jointly owned by The Connecticut Light and Power Company ("CL&P") and Western Massachusetts Electric Company ("WMECO") (two public-utility subsidiaries of NU and associate companies of NNECO) and other nonaffilitated utility companies. In March 2001, CL&P, WMECO and most of the other joint owners of Millstone sold their interests in Millstone to a subsidiary of Dominion Resources, Inc. CL&P and WMECO sold their 100% interests in Millstone 1 and 2 and, with other selling owners, 94% of Millstone 3. As a result, NNECO no longer acts as agent for any owner in the operation and maintenance of Millstone 1, 2 or 3. It is largely inactive and is winding up its business. NU continues to maintain NNECO as a corporate entity in the event that any unforeseen liabilities arise from past Millstone operations. Nevertheless, to simplify its corporate structure, NU intends to liquidate and dissolve NNECO eventually.
NNECO would like to return up to $16.2 million to NU, an amount equal to the approximate value of NNECO's common stockholders' equity. The Applicants represent that, as of June 30, 2003, NNECO's paid-in-capital surplus equaled approximately $15.3 million and retained earnings equaled approximately $0.9 million, for total capitalization of approximately $16.2 million. As of June 30, 2003, NNECO had approximately $48.3 million invested in the NU system money pool and approximately $0.7 million in other current and accrued assets. As of June 30, 2003, NNECO's net liabilities totaled approximately $32.8 million. These net liabilities are mainly comprised of (i) approximately $20.6 million of net accrued pension costs reflecting amounts due former employees of NNECO,1 (ii) approximately $9.2 million of other employee-related costs, (iii) $1.4 million in federal income taxes due, and (iv) approximately $1.6 million of other obligations.2
NU and NNECO seek authorization for NNECO to pay dividends to and, or in the alternative, to repurchase its common stock from, NU out of paid-in-capital and unearned surplus up to $16.2 million during the Authorization Period. The companies state that they do not anticipate any further obligations being incurred. They further assert that the proposed transactions will not impair NNECO's ability to meet its obligations nor render its assets insufficient to meet anticipated expenses or liabilities.3
NNECO states that Connecticut law allows payments of dividends by corporations, provided that such payments do not render a company insolvent.4 In addition, NNECO represents that any capital distributed by NNECO, if authorized by the Commission, would be paid in accordance with state law.
Under rule 54, the proposed transactions are subject to rule 53(a), (b) and (c). NU states that, for purposes of rule 54, it meets all of the conditions of rule 53(a), except for rule 53(a)(1) (the "safe harbor," which provides that aggregate investment in exempt wholesale generators ("EWGs") and foreign utility companies ("FUCOs") is permitted so long as it does not exceed 50% of a system's consolidated earnings); and that none of the adverse conditions of rule 53(b) exist. With respect to rule 53(c), NU asserts that its continued investment in its only EWG5 will not have the adverse effects set forth in rule 53(c), as discussed below, and, as a result, NU satisfies the requirements of rule 54.
NU states that, as of June 30, 2003, its "aggregate investment" in its EWG was approximately $448.2 million, or approximately 57.8% of NU's average "consolidated retained earnings" of $775 million for the four quarters ended June 30, 2003, as both those terms are defined in rule 53(a)(1), exceeding the parameters of the rule 53(c)(1) safe harbor. Nevertheless, by its March 7, 2000 order in Northeast Utilities, Holding Co. Act Release No. 27148, the Commission authorized NU to exceed the 50% safe harbor limit of rule 53(a)(1) for the financing of its investment in its EWG, determining that the aggregate investment would not have either of the adverse effects set forth in rule 53(c).
Under the Commission's March 7, 2000 order, therefore, NU's investment at this level is permitted (although this aggregate investment level in its EWG currently6 exceeds the rule 53(a)(1) safe harbor). Consequently, in accordance with rule 54, the Commission will not consider the effect on the NU system of the capitalization or earnings of any NU subsidiary that is an EWG (or a FUCO) in determining whether to approve the proposed transactions. NU states, in addition, that it and its subsidiaries are in compliance, and will continue to comply, with the other provisions of rule 53(a) and (b).
Fees, commissions and expenses incurred in connection with these transactions are expected not to exceed $10,000 and are expected to be primarily ordinary legal and accounting fees. None of the fees, commissions or expenses will be paid to any associate company or affiliate of the Applicants, except Northeast Utilities Service Company, for financial and other services. No other state or federal regulatory approval is required for the proposed transactions.
Due notice of the filing of the Application has been given in the manner prescribed in rule 23 under the Act and no hearing has been requested of or ordered by the Commission. Based on the facts in the record, the Commission finds that the applicable standards of the Act and rules are satisfied and no adverse findings are necessary.
IT IS ORDERED, under the applicable provisions of the Act and rules, that the Application, as amended, is granted and permitted to become effective immediately, subject to the terms and conditions prescribed in rule 24 under the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Margaret H. McFarland
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