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FILE N0.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1 APPLICATION - DECLARATION
UNDER SECTION 3(b) AND
RULE 10 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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UtiliCorp United Inc.
20 West Ninth Street
Kansas City, MO 64105
(Name of the company filing this statement and
address of its principal executive office)
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None
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(Name of top registered holding company,
parent of each applicant or declarant)
Jon R. Empson
Senior Vice-President
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, MO 64105
(Name and address of agent for service)
The Commission is requested to send copies of all notices,
orders and communications in connection with this
Application - Declaration to:
M. Douglas Dunn, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, NY 10005
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Item 1. Description of Proposed Transaction.
Applicant UtiliCorp United Inc., a Missouri corporation
("UtiliCorp"), hereby applies under Section 3(b) of the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"), for an order declaring that
Power New Zealand Limited ("PNZ"), a New Zealand corporation, is entitled to the
exemption provided for by Section 3(b) of the 1935 Act. PNZ is currently a
foreign utility company exempt under Section 33 of the 1935 Act.
UtiliCorp, currently owns through subsidiaries of the
approximately 30% of the stock of PNZ and after the transaction will own through
subsidiaries 78.6% of the stock of PNZ. The additional shares are being acquired
in a private transaction from other large strategic investors in New Zealand.
UtiliCorp hereby also applies under Rule 10 of the 1935 Act for an order
exempting UtiliCorp and its intermediate entities from the definition of
"holding company" under the 1935 Act by virtue of the order declaring that PNZ
is entitled to the exemption provided for by Section 3(b) of the 1935 Act.
As of the time of filing the application, UtiliCorp has
entered into a purchase agreement to purchase the additional interest in PNZ.
In support hereof, Applicant states:
(1) UtiliCorp is a publicly traded corporation incorporated
under the laws of Missouri. UtiliCorp primarily engages directly in the sale and
distribution of gas and electricity to retail and wholesale customers. Neither
UtiliCorp nor any corporation owned or controlled by UtiliCorp is a "holding
company" or a "subsidiary company" of a "holding company," as defined in the
1935 Act.
(2) PNZ is a New Zealand corporation primarily engaged in the
generation and transmission of electricity to New Zealand wholesale and retail
customers. PNZ derives
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substantially all its income from New Zealand sales of electricity, is not
qualified to do business in any state of the United States, operates exclusively
as a New Zealand business in New Zealand and owns no securities of any other
public utility or holding company. PNZ is currently a foreign utility company
under Section 33 of the 1935 Act. The notification on Form U-57 was filed on
December 5, 1994.
(3) Section 3(b) provides an exemption for any subsidiary
company of a holding company from the 1935 Act provided "[t]he Commission, by
rules and regulations upon its own motion, or by order upon application" finds
that such exemption "from any provision or provisions of [the 1935 Act], the
application of which to such subsidiary company... is not necessary in the
public interest or for the protection of investors," and "if such subsidiary
company derives no material part of its income, directly or indirectly, from
sources within the United States, and neither it nor any of its subsidiary
companies is a public-utility company operating in the United States." In
connection with its notification of foreign utility status filed on form U-57,
UtiliCorp filed letters from all jurisdictions in which UtiliCorp provided
service subject to rate jurisdiction (i.e. Colorado, Iowa, Kansas, Michigan,
Minnesota, Missouri, South Dakota and West Virginia). Each letter or order
stated that each commission had the ability and the resources to protect its
ratepayers and that each such commission intended to exercise this authority in
connection with UtiliCorp's investment in PNZ. While UtiliCorp has obtained
financing approval where necessary and notified those authorities that it
promised to do so in such prior letter or order, no regulatory authority other
than the Commission under Section 3(b) has any jurisdiction over the acquisition
of the additional interest in PNZ.
(4) PNZ derives no material income from United States
operations and it is not a public utility company operating in the United
States. Since the operations of PNZ are
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exclusively New Zealand, its sales and revenues, and the regulation thereof,
have little or no effect on the prices and business of electric sales and
generation within the United States. Accordingly, no regulatory purpose would be
served by treating PNZ as a subsidiary of a holding company. Hence, regulation
of PNZ as a subsidiary of a holding company is not necessary for either the
public interest or for the protection of investors.
(5) A larger investment by UtiliCorp in PNZ will not in any
way diminish the ability of the various state commissions that regulate the
retail electric and gas operations of UtiliCorp to protect the interests of
consumers in their respective states. UtiliCorp's domestic utility operations
are, and will continue to be, fully separated from UtiliCorp's foreign
operations. UtiliCorp will maintain separate books of account for any of its
subsidiaries that may control any of these companies and will commit to provide
access to those books and records to each state commission with retail rate
jurisdiction to the extent not already required under state law.
(6) On the basis of the facts referred to in paragraph 4
(above), PNZ is entitled to the exemption provided for by Section 3(b) of the
1935 Act.
(7) If PNZ is exempt under Section 3(b) of the 1935 Act, then
UtiliCorp, as 78.6% owner, through subsidiaries, of the common stock of PNZ and
the intervening subsidiaries are entitled to the exemption provided for by Rule
10 of the 1935 Act.
(8) In addition, if PNZ is exempt without qualification under
Section 3(b) of the 1935 Act, then UtiliCorp would be entitled under Rule
11(b)(1) to an exemption from Section 9(a)(2) of the 1935 Act.
(9) UtiliCorp hereby consents to file an annual report on Form
U-33-S.
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Item 2. Fees, Commissions and Expenses.
An estimate of the fees and expenses to be paid or incurred by
the applicants in connection with the proposed transactions is set forth below:
<TABLE>
<CAPTION>
<S> <C>
Description............................................................. Amount
Counsel fees............................................................ $5,000
Total................................................................... $5,000
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</TABLE>
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Item 3. Applicable Statutory Provisions.
Sections 3(b), 9(a)(2), 10(a)(1) and 33 and Rules 10 and
11(b)(1) of the Act are or may be applicable to one or more of the transactions
described herein. To the extent any other sections of the Act and the
Commission's rules thereunder may be applicable to the proposed transactions,
the Applicant hereby requests appropriate orders thereunder.
Item 4. Regulatory Approval.
While UtiliCorp has sought financing approval where necessary,
no regulatory approval other than that of the commission under Section 3(b) is
necessary for the acquisition of the additional interest in PNZ.
Item 5. Procedure.
It is requested that the Commission issue and publish no later
than September 28, the requisite notice under Rule 23 with respect to the filing
of this Application-Declaration, such notice to specify a date not later than
October 5, 1998 as the date after which an order granting and permitting this
Application-Declaration to become effective may be entered by the
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Commission and that the Commission enter not later than October 6, 1998 an
appropriate order granting and permitting this Application-Declaration to become
effective.
No recommended decision by a hearing officer or other
responsible officer of the Commission is necessary or required in this matter.
The Division of Investment Management of the Commission may assist in the
preparation of the Commission's decision in this matter. There should be no
thirty-day waiting period between the issuance and the effective date of any
order issued by the Commission in this matter, and it is respectfully requested
that any such order be made effective immediately upon the entry thereof.
Item 6. Exhibits.
The following exhibits are filed as part of this statement:
<TABLE>
<CAPTION>
Exhibits Description
<S> <C>
Exhibit A Form of Notice
Exhibit B Preliminary Opinion of Counsel
</TABLE>
Item 7. Information as to Environmental Effects.
The proposed transactions do not involve major federal action
having a significant effect on the environment and to the best of the
Applicant's knowledge, no federal agency has prepared or is preparing an
environmental impact statement with respect to such the proposed transactions.
It is requested that copies of all orders, notices and
communications with respect to the above Application be served as follows:
M. Douglas Dunn, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, New York 10005
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Mr. Jon R. Empson
Senior Vice President
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
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WHEREFORE, Applicant respectfully requests that the Commission
issue an order herein determining (i) PNZ is entitled to the exemption provided
for by Section 3(b) of the 1935 Act and (ii) UtiliCorp and its intermediate
entities are entitled to the exemption provided by Rules 10 and 11(b)(1) of the
1935 Act.
Dated: September 10, 1998
Respectfully submitted,
UTILICORP UNITED INC.
By:
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Jon R. Empson
Senior Vice-President
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EXHIBIT 99 A
File
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[FORM OF NOTICE]
Notice is hereby given that UtiliCorp United Inc., a Delaware
corporation, ("UtiliCorp") has filed an application for an exemption under
Section 3(b) of the Public Utility Holding Company Act of 1935, as amended (the
"35 Act"), on behalf of Power New Zealand, Limited ("PNZ"), New Zealand
corporation engaged in the distribution of electricity solely in New Zealand.
UtiliCorp asserts that, by virtue of the order declaring that PNZ is entitled to
the exemption provided by Section 3(b) of the 1935 Act, UtiliCorp and any of its
subsidiaries that may be formed in connection with its acquisition of an
interest in PNZ would become exempt from all obligations as a holding company
under Rule 10 promulgated by the Securities and Exchange Commission (the
"Commission") under the 1935 Act and exempt from Section 9(a)(2) of the 1935 Act
pursuant to Rule 11(b)(1) promulgated thereunder. All interested persons are
referred to the application, which is summarized below, for a complete statement
of the facts.
UtiliCorp currently owns through subsidiaries approximately
30% of PNZ and will increase its interest through purchases in a private
transaction to 78.6% of the stock of PNZ. In light of certain tax, legal and
regulatory considerations, however, it may be advisable for UtiliCorp to
structure the transactions using one or more intermediate companies to be owned
by a UtiliCorp subsidiary. Also, to accommodate New Zealand tax considerations,
it may be necessary to effect any such transaction through a series of asset and
stock acquisitions. Section 3(b) of the 1935 Act provides an exemption for any
subsidiary company of a holding company from provisions of the 1935 Act
application to such subsidiary companies, "if such subsidiary company derives no
material part of its income, directly or indirectly, from sources
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within the United States, and neither it nor any of its subsidiary companies is
a public utility company operating in the United States, "provided that the
Commission finds that the application of the 1935 Act to such subsidiary company
is "not necessary in the public interest or for the protection of investors."
PNZ is a public utility company which does not operate in the
United States and, following the proposed increase in ownership by UtiliCorp,
would not serve any customers in the United States. The proposed increase in
ownership by UtiliCorp would not affect in any way the status of PNZ as an
electricity company subject to regulation by New Zealand authorities and New
Zealand law. PNZ derives no income from United States operations or sources
within the United States. The regulation of PNZ under the 1935 Act is not
necessary in the public interest, or for the protection of investors or
consumers. Therefore, PNZ satisfies the standards of Section 3(b) and an
unqualified exemption, as a subsidiary company, from all provisions of the 1935
Act.
An investment by UtiliCorp In PNZ will not in any way diminish
the ability of the various state commissions that regulate the retail electric
and gas operations of UtiliCorp to protect the interests of consumers in their
respective states. UtiliCorp's domestic utility operations are, and will
continue to be, fully separated by UtiliCorp's foreign operations. UtiliCorp
will maintain separate books of account for any of its subsidiaries that may
control any of these companies and will commit to provide access to those books
and records to each state commission with retail rate jurisdiction to the extent
not already required under state law.
Because PNZ is exempt without qualification under Section 3(b)
of the 1935 Act, UtiliCorp is entitled to the exemption provided under rule
10(a)(1) of the 1935 Act with respect to these companies.
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In addition, because PNZ is exempt without qualification under
Section 3(b) of the 1935 Act, UtiliCorp is entitled under Rule 11(b)(1) to an
exemption from Section 9(a)(2) of the 1935 Act. Notice is further given that any
interested person may, not later than [ ], 1998, request in writing that a
hearing be held in respect of the request for exemption, relating to the nature
of his or her interest and the reasons for each request, and the issues of fact
or law which he or she decides to controvert; or he or she may request that he
or she be notified should the Commission order a hearing herein. Any such
request should be addressed: Secretary, Securities and Exchange Commission,
Washington, D.C. 20549. At any time after said date, the Commission may grant
the exemption request, or take such other action as it deems appropriate.
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EXHIBIT 99B
File
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Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005
September 10, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form U-1 Application-Declaration
Ladies and Gentlemen:
We refer to the Form U-1 Application-Declaration (the
"Application-Declaration") filed by UtiliCorp United Inc.("UtiliCorp"), a
Delaware corporation. Capitalized terms and parties not defined herein shall
have the meanings ascribed to such terms and parties in the
Application-Declaration.
In the Application-Declaration, UtiliCorp applies under
Section 3(b) of the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), and Rule 10 thereunder for an order from the Securities and
Exchange Commission (the "Commission") to exempt under Section 3(b) of the 1935
Act Power New Zealand Limited, a New Zealand corporation ("PNZ"). UtiliCorp
currently indirectly owns through subsidiaries approximately 30% of the common
stock of PNZ. Notification of PNZ's status as a foreign utility company was
filed December 5, 1994. We have acted as counsel for UtiliCorp in connection
with this Application-Declaration and, as such counsel, we are familiar with the
corporate proceedings taken and to be taken by UtiliCorp and its subsidiaries as
described in the Application-Declaration.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of UtiliCorp, certificates of public
officials, certificates of officers and representatives of UtiliCorp and other
documents as we have deemed it necessary to require as a basis for the opinions
hereinafter expressed. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity with authentic original documents of all documents submitted
to us as copies. When relevant facts were not independently established, we have
relied upon statements of governmental officials and upon representations made
by officers of UtiliCorp and other appropriate persons, and statements contained
in the Application-Declaration.
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The opinions expressed below in respect of the transactions
described in the Application-Declaration (the "Transactions")are subject to the
following assumptions or conditions:
a. The Transactions shall have been duly authorized by, in
accordance with, and approved to the extent required by federal and state law,
the law of New Zealand and by the Board of Directors of UtiliCorp;
b. The SEC shall have duly entered an appropriate order or
orders granting the Application-Declaration and permitting the
Application-Declaration to become effective with respect to the Transactions;
c. The Transactions shall have been accomplished in accordance
with all approvals, authorizations, consents, certificates and orders of any
applicable state commission or regulatory authority required for the
consummation of the Transactions, and all such required approvals,
authorizations, consents, certificates and orders shall have been obtained and
remain in effect; and
d. No act or event other than as described herein shall have
occurred subsequent to the date hereof which would change the opinions expressed
above.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that, in the event
that the Transactions are completed in accordance with the
Application-Declaration, and subject to the assumptions and conditions set forth
above:
1. UtiliCorp will be validly organized and duly existing
under the laws of the State of Delaware; and
2. All U.S. state and federal laws applicable to the
Transaction will have been complied with. 3. UtiliCorp
will legally, directly or indirectly, acquire any
securities that are part of the Transaction.
4. The Consummation of the Transaction will not violate the
legal rights of the holders of any securities issued by
UtiliCorp.
We hereby consent to the use of this opinion as an exhibit to
the Application-Declaration. The opinions set forth herein are issued and
expressed as of the date hereof. We do not assume or undertake any
responsibility to advise you of changes in either fact or law which may come to
our attention after the date hereof.
Very truly yours,
Milbank, Tweed, Hadley & McCloy
MDD/
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