Amendment No. 3 to
SEC File No. 70-9599
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM U-1
APPLICATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ("Act")
GPU, INC. ("GPU")
GPX Acquisition Corp.
300 Madison Avenue
Morristown, New Jersey 07962
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(Names of companies filing this statement and
addresses of principal executive offices)
GPU, INC.
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(Name of top registered holding company parent of applicants)
S.L. Guibord, Secretary Douglas E. Davidson, Esq.
M.J. Connolly, Vice President- Berlack, Israels & Liberman LLP
Law 120 West 45th Street
D.C. Brauer, Vice President New York, New York 10036
GPU Service, Inc.
300 Madison Avenue
Morristown, New Jersey 07962
- --------------------------------------------------------------------------------
(Names and addresses of agents for service)
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GPU and GPX Acquisition Corp. ("Acquisition Corp." and, together
with GPU, "Applicants"), hereby amend their Application on Form U-1, as
heretofore amended, docketed in SEC File No. 70-9599, as follows:
I. By amending paragraph D of Item 1 thereof to read in its entirety
as follows:
The merger agreement further provides that following completion of the
Tender Offer, Acquisition Corp. will be merged with and into MYR pursuant to
Section 251 of the Delaware General Corporation Law ("DGCL") and that MYR will
survive the merger. If, following completion of the Tender Offer, Acquisition
Corp. has acquired ownership of 90% or more of MYR's outstanding shares of
common stock, the merger would be consummated pursuant to the "short form
merger" provisions of Section 253 of the DGCL. In such event, MYR would not be
required to convene a meeting of its stockholders to vote on the merger.
Following completion of the Tender Offer, MYR would, however, provide its
shareholders with an information circular pursuant to the Securities Exchange
Act of 1934, as amended ("Exchange Act") prior to the merger.
Should Acquisition Corp. not acquire ownership of at least 90% of MYR's
outstanding common stock prior to the merger, then MYR would convene a meeting
of its shareholders pursuant to Section 251(c) of the DGCL. MYR would distribute
to its shareholders a notice of meeting, proxy statement and forms of proxy, and
may provide other proxy solicitation materials in accordance with Section 14 of
the Exchange Act and the Commission's regulations thereunder. Since, at that
time, MYR would be a "subsidiary company" of GPU under Section 2(a)(8) of the
Act, Applicants request that the Commission's order authorizing the proposed
transactions include authorization to solicit proxies in connection with the
merger pursuant to Section 12 of the Act and Rules 61 and 65 thereunder.
At the effective time of the merger, each MYR shareholder (other than
Acquisition Corp. and any shareholders exercising statutory dissenters' rights
to which they may be entitled) will be entitled to receive $30.10 per share upon
surrender of their shares of MYR common stock. Following completion of the
merger, MYR will be a direct, wholly-owned subsidiary of GPU. On February 24,
2000, GPU and Acquisition Corp. extended the Tender Offer expiration date from
February 29, 2000 to March 24, 2000. Applicants intend to further extend the
Tender Offer expiration date to a date which occurs as soon as practicable after
issuance of the Commission order in this docket authorizing the proposed
transactions.
- 2 -
<PAGE>
II. Item 2 thereof is hereby amended to read in its entirety to read
as follows:
Item 2. Fees, Commissions and Expenses
------------------------------
The estimated fees, commissions and expenses Applicants expect to incur in
connection with the proposed transactions are as follows:
SEC Filing Fee $ 48,569
Hart Scott Rodino Act Filing Fee 45,000
Legal Fees:
Berlack, Israels & Liberman LLP 225,000
Fried, Frank, Harris, Shriver & Jacobson 300,000
Ryan Russell Ogden Seltzer LLP 1,000
Accounting Fees 10,000
Tender Offer Information Agent Fees and Expenses 25,000
Proxy Solicitation Agent 15,000
Depository 25,000
Printing and Mailing 150,000
Miscellaneous 30,431
-------
Total $875,000
========
III. Item 3 thereof is hereby amended by adding the following thereto:
"In addition, Rules 61 and 65 are applicable to certain of the proposed
transactions. "
4. By filing the following exhibits in Item 6 thereof:
F-1 - Opinion of Berlack, Israels & Liberman LLP
F-2 - Opinion of Ryan Russell Ogden Seltzer LLP
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<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935, THE UNDERSIGNED COMPANIES HAVE DULY CAUSED THIS STATEMENT TO BE
SIGNED ON THEIR BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED.
GPU, INC.
By: /s/ T. G. Howson
----------------------------
T. G. Howson, Vice President
and Treasurer
GPX ACQUISITION CORP.
By: /s/ T. G.Howson
----------------------------
T. G. Howson, Treasurer
Date: March 22, 2000
- 4 -
Exhibits to be filed by Edgar
Exhibits:
F-1 - Opinion of Berlack, Israels & Liberman LLP
F-2 - Opinion of Ryan Russell Ogden Seltzer LLP
Exhibit F-1
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March 22, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SEC File No. 70-9599
--------------------
Ladies and Gentlemen:
We have examined the Application on Form U-1, dated December 30,
1999, under the Public Utility Holding Company Act of 1935, as amended (the
"Act"), filed by GPU, Inc. ("GPU") and GPX Acquisition Corp. ("GPX") with the
Securities and Exchange Commission and docketed in SEC File No. 70-9599, as
amended by Amendment No. 1 thereto, dated January 18, 2000, Amendment No. 2
thereto, dated March 6, 2000, and Amendment No. 3 thereto, dated this date, of
which this opinion is to be a part. (The Application, as so amended and as thus
to be amended, is hereinafter referred to as the "Application").
The Application contemplates, among other things, that GPU will
acquire, through GPX, its direct subsidiary, all of the issued and outstanding
shares of MYR Group, Inc. ("MYR"), a Delaware corporation. Pursuant to a Plan
and Agreement of Merger dated as of December 21, 1999 ("Merger Agreement"), GPU
has agreed to pay MYR shareholders $30.10 per share in cash for their shares of
MYR common stock and, in connection therewith, has commenced a tender offer
("Tender Offer") for these shares pursuant to Rule 51 under the Act. The Merger
Agreement also provides, among other things, that (i) following completion of
the Tender Offer GPX will be merged with and into MYR ("Merger"), pursuant to
which each shareholder of MYR other than GPX will receive $30.10 per share in
cash, with the result that MYR will be a direct wholly-owned subsidiary of GPU,
and (ii) GPU may issue shares of GPU common stock (the "GPU Exchange Shares") to
<PAGE>
Securities and Exchange Commission
March 22, 2000
Page 2
the holders of MYR stock options and MYR restricted stock upon the election of
those holders. MYR is a publicly-held utility infrastructure services and
electrical contracting company. MYR's business consists of providing utility
transmission and distribution, infrastructure and related commercial and
industrial electrical (and some mechanical) contracting services.
We have been counsel to GPU and to its subsidiaries for many years.
In such capacity, we have participated in various proceedings relating to GPU
and its subsidiaries, and we are familiar with the terms of the outstanding
securities of the corporations comprising the GPU holding company system.
We have examined copies, signed, certified or otherwise proven to
our satisfaction, of the charter documents and by-laws of GPU. We have also
examined such other documents, instruments and agreements, including the Merger
Agreement, and have made such further investigation as we have deemed necessary
as a basis for this opinion.
We are members of the Bar of the State of New York and do not
purport to be experts on the laws of any jurisdiction other than the laws of the
State of New York and the federal laws of the United States. We have, however,
reviewed the General Corporation Law of the State of Delaware, the applicable
provisions of the Delaware Constitution and the reported judicial decisions
interpreting those laws to the extent required to express the opinions set forth
herein. As to all matters herein which are governed by the laws of the
Commonwealth of Pennsylvania, we have relied upon the opinion of Ryan, Russell,
Ogden & Seltzer LLP which is being filed as Exhibit F-2 to the Application.
We have assumed that (i) MYR has been validly organized and is duly
existing in accordance with the laws of the State of Delaware; (ii) all
necessary corporate action required on the part of GPU, GPX and MYR shall have
been duly taken; (iii) the Commission shall have entered an order forthwith
granting the Application; and (iv) all action under the Federal securities laws
and state "Blue Sky" laws to permit the proposed transaction shall have been
completed.
<PAGE>
Securities and Exchange Commission
March 22, 2000
Page 3
Based upon and subject to the foregoing, and assuming that the
transactions therein proposed are carried out in accordance with the
Application, we are of the opinion that:
(a) all State laws applicable to the proposed
transactions will have been complied with;
(b) GPX will legally acquire the common stock of MYR pursuant
to the Tender Offer and, upon consummation of the Merger, GPU will
legally acquire all outstanding shares of MYR common stock;
(c) (i) GPU is validly organized and duly subsisting and (ii)
the GPU Exchange Shares will be validly issued, fully paid and
nonassessable, and the holders thereof will be entitled to the
rights and privileges pertaining thereto set forth in GPU's articles
of incorporation and by-laws; and
(d) the consummation of the transactions proposed in the
Application will not violate the legal rights of the holders of any
securities issued by GPU or any "associate company" thereof, as
defined in the Act.
We hereby consent to the filing of this opinion as an exhibit to the
Application and in any proceedings before the Commission that may be held in
connection therewith.
Very truly yours,
BERLACK, ISRAELS & LIBERMAN LLP
Exhibit F-2
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Letterhead of RYAN, RUSSELL, OGDEN & SELTZER LLP
March 22, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SEC File No. 70-9599
--------------------
Ladies and Gentlemen:
We have examined the Application on Form U-1, dated December 30,
1999, under the Public Utility Holding Company Act of 1935, as amended (the
"Act"), filed by GPU, Inc. ("GPU") and GPX Acquisition Corp. ("GPX") with the
Securities and Exchange Commission and docketed in SEC File No. 70-9599, as
amended by Amendment No. 1 thereto, dated January 18, 2000, Amendment No. 2
thereto, dated March 6, 2000, and Amendment No. 3 thereto, dated this date, of
which this opinion is to be a part. (The Application, as so amended and as thus
to be amended, is hereinafter referred to as the "Application").
The Application contemplates, among other things, that GPU will
acquire, through GPX, its direct subsidiary, all of the issued and outstanding
shares of MYR Group, Inc. ("MYR"), a Delaware corporation. Pursuant to a Plan
and Agreement of Merger dated as of December 21, 1999 ("Merger Agreement"), GPU
has agreed to pay MYR shareholders $30.10 per share in cash for their shares of
MYR common stock and, in connection therewith, has commenced a tender offer
("Tender Offer") for these shares pursuant to Rule 51 under the Act. The Merger
Agreement also provides, among other things, that (i) following completion of
the Tender Offer GPX will be merged with and into MYR ("Merger"), pursuant to
which each shareholder of MYR other than GPX will receive $30.10 per share in
cash, with the result that MYR will be a direct wholly-owned subsidiary of GPU,
and (ii) GPU may issue shares of GPU common stock (the "GPU Exchange Shares") to
the holders of MYR stock
<PAGE>
Securities and Exchange Commission
March 22, 2000
Page 2
options and MYR restricted stock upon the election of those holders. MYR is a
publicly-held utility infrastructure services and electrical contracting
company. MYR's business consists of providing utility transmission and
distribution, infrastructure and related commercial and industrial electrical
(and some mechanical) contracting services.
We have been Pennsylvania counsel to GPU and to its Pennsylvania
subsidiaries for many years. In such capacity, we have participated in various
proceedings relating to GPU and its Pennsylvania subsidiaries.
We have examined copies, signed, certified or otherwise proven to
our satisfaction, of the charter documents and by-laws of GPU. We have also
examined such other documents, instruments and agreements, including the Merger
Agreement, and have made such further investigation as we have deemed necessary
as a basis for this opinion.
We are members of the Bar of the Commonwealth of Pennsylvania and do
not purport to be experts on the laws of any other jurisdiction.
We have assumed that (i) MYR has been validly organized and is duly
existing in accordance with the laws of the State of Delaware; (ii) all
necessary corporate action required on the part of GPU, GPX and MYR shall have
been duly taken; (iii) the Commission shall have entered an order forthwith
granting the Application; and (iv) all action under the Federal securities laws
and state "Blue Sky" laws to permit the proposed transaction shall have been
completed.
Based upon and subject to the foregoing, and assuming that the
transactions therein proposed are carried out in accordance with the
Application, we are of the opinion, insofar as matters of Pennsylvania law are
concerned, that:
(a) all Pennsylvania laws applicable to the proposed
transactions will have been complied with;
(b) GPU will legally acquire all outstanding shares
of MYR common stock;
<PAGE>
Securities and Exchange Commission
March 22, 2000
Page 3
(c) (i) GPU is validly organized and duly subsisting in the
Commonwealth of Pennsylvania and (ii) the GPU Exchange Shares will
be validly issued, fully paid and nonassessble, and the holders
thereof will be entitled to the rights and privileges pertaining
thereto set forth in GPU's articles of incorporation and by-laws;
and
(d) the consummation of the transactions proposed in the
Application will not violate the legal rights of the holders of any
securities issued by GPU or any "associate company" thereof, as
defined in the Act.
We hereby consent to the filing of this opinion as an exhibit to the
Application and in any proceedings before the Commission that may be held in
connection therewith.
Very truly yours,
RYAN, RUSSELL, OGDEN & SELTZER LLP
