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FILE NO. _______
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 application and
address of its principal executive office)
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Jon R. Empson
Senior Vice-President
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, MO 64105
(Name and address of agent for service)
Please also submit copies of all correspondence to:
M. Douglas Dunn, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, NY 10005
Leslie J. Parrette, Jr.
Blackwell Sanders Peper Martin L.L.P.
Two Pershing Square
2300 Main Street - Suite 1100
Kansas City, Missouri 64108
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ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION
Applicant UtiliCorp United Inc., a Delaware 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 exempting UtiliCorp Asia Pacific
Pty. Ltd. ("UAPL"), a company organized under the laws of Australia and
operating solely in Australia, under Section 3(b) of the 1935 Act.
UAPL has an indirect equity ownership interest in Ikon Energy Pty.
Ltd., an Australian corporation ("Ikon"), Multinet Partnership, an Australian
partnership ("Multinet"), and United Energy Ltd., an Australian corporation
("United Energy"), each of which is exempt without qualification from the 1935
Act pursuant to Section 3(b). See Holding Company Act Release No. 26919
(September 28, 1998); Holding Company Act Release No. 26353 (August 7, 1995).
UAPL has a 25% ownership interest in Ikon. Ikon is a gas retail company
organized under the laws of Australia and operating solely in Australia. Its
service area includes the western central and southeastern suburbs of Melbourne.
UAPL has a 25% ownership interest in Multinet. Multinet is a gas
distribution company organized under the laws of Australia and operating solely
in Australia. Its gas distribution network includes the eastern metropolitan
area of Melbourne, which is densely populated. Multinet serves approximately
587,000 industrial, commercial and residential customers.
UAPL has an approximately 35% indirect ownership interest in United
Energy, an electric distribution utility organized under the laws of Australia
and operating solely in Australia. United Energy serves 546,000 customers in the
state of Victoria.
Although UAPL is currently exempt by operation of Rule 10 since each of
its otherwise ultimate subsidiaries is exempt under Section 3(b), it is entitled
to its own Section 3(b)
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exemption since it "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." By having its own Section 3(b) exemption the management and finance of
its three utility businesses is made less cumbersome. Since UtiliCorp is fully
subject to whatever regulation exists in each of the states in which it
operates, and letters or orders with respect to such jurisdiction of the state
regulatory bodies have been furnished to the Commission in connection with the
acquisition of each of the three Australian utilities, there is no regulatory
gap or protected interest which should concern the Commission.
UAPL is wholly owned by UtiliCorp Asia, Inc. ("UAI"), a special purpose
corporation organized under the laws of Delaware and deemed a resident of
Australia under Australian law. UAI is owned by UtiliCorp Asia Pacific, Inc.
("UAP"), a Delaware corporation and a wholly-owned subsidiary of UtiliCorp.
APPLICANT'S STATEMENTS IN SUPPORT OF APPLICATION
In support hereof, the Applicant states:
(1) UtiliCorp is a publicly held corporation organized under Delaware
law with its principal offices located at 20 West Ninth Street, Kansas City,
Missouri 64105. UtiliCorp engages directly and indirectly 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) UAPL is an Australian corporation and will not engage in any
business other than the acquisition of Australian public utility companies, the
supervision of UtiliCorp's
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investments in Australia, and the participation in the management and operations
of Australian public utility companies. UAPL derives no income from United
States operations, nor is it qualified to do business in any state of the United
States, nor is it a public utility company operating in the United States.
(3) All of UAPL's utility subsidiaries, Ikon, Multinet, and United
Energy, are exempt without qualification from the 1935 Act pursuant to Section
3(b). UAPL has no plan to derive any income from United States operations, or
any company qualified to do business in any state of the United States, or any
public utility company operating in the United States.
(4) Section 3(b) of the 1935 Act provides an exemption for any
subsidiary company, as such, of a holding company from provisions of the 1935
Act applicable to such subsidiary companies, "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," 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."
(5) Since the operations of UAPL and its subsidiary companies are and
will be exclusively in Australia, its sales and revenues, and the regulation
thereof, have little or no effect on the rates and business of UtiliCorp's
electric sales and generation within the United States. UtiliCorp's domestic
utility customers will not be put at risk of any adverse financial effects
resulting from the operations of UAPL, nor will the ability of the various State
commissions to protect the interests of consumers in their respective States be
adversely affected. UtiliCorp's domestic utility operations are, and will
continue to be, fully separated from UtiliCorp's foreign operations. Moreover,
since UtiliCorp is a publicly traded company subject to the continuous
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disclosure requirements of the Securities Exchange Act of 1934, as amended,
regulation under the federal securities laws offers significant additional
protections for the interest of investors. Hence, regulation of UAPL as a
subsidiary of a holding company is not necessary for either the public interest
or for the protection of investors.
(6) 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.
(7) If UAPL is exempt without qualification under Section 3(b) of the
1935 Act, then UtiliCorp, UAI, and UAP would be entitled to the exemption
provided for by Rule 10 of the 1935 Act.
(8) In addition, if UAPL is exempt 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 Act.
(9) The Applicant hereby consents to file an annual report on Form
U-33-S.
ITEM 2. FEES, COMMISSIONS, AND EXPENSES.
An estimate of the fees and expenses to be paid or incurred by the
Applicant in connection with the proposed transaction is set forth below:
<TABLE>
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Counsel Fees ........................$15,000
Total ...............................$15,000
</TABLE>
ITEM 3. APPLICABLE STATUTORY PROVISIONS.
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Section 3(b), 9(a)(2), 10(a)(1) and 33 and Rules 10 and 11(b)(1) of the
1935 Act are or may be applicable to the proposed transaction described herein.
To the extent any other sections of the 1935 Act may be applicable to the
proposed transaction, the Applicant hereby requests appropriate orders
thereunder.
ITEM 4. REGULATORY APPROVAL.
No regulatory approval other than that of the Commission under Section
3(b) is required.
ITEM 5. PROCEDURE.
It is requested that the Commission issue and publish no later than
October 1, 1999 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 29, 1999 as the date after which an order granting and permitting this
Application-Declaration to become effective may be entered by the Commission and
that the Commission enter not later than November 15, 1999 an appropriate order
granting and permitting this Application-Declaration to become effective.
The Applicant hereby waives a hearing with respect to this
Application-Declaration and requests that there be no 30-day waiting period
between the issuance of the Commission's order and the date on which it is to
become effective. The Applicant hereby waives a recommended decision by a
hearing officer or other responsible officer of the Commission and hereby
consents that the Division of Investment Management may assist in the
preparation of the Commission's decision and/or order.
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ITEM 6. EXHIBITS.
The following exhibits are hereby filed as a part of this
Application-Declaration:
EXHIBIT 1 Form of Notice
EXHIBIT 2 Opinion of counsel [TO BE FILED BY AMENDMENT]
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS.
The proposed transaction does 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 the proposed transaction.
It is requested that copies of all orders, notices and communications
with respect to the above application be served as follows:
Jon R. Empson
Senior Vice-President
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, MO 64105
M. Douglas Dunn, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, NY 10005
Leslie J. Parrette, Jr., Esq.
Blackwell Sanders Peper Martin L.L.P.
Two Pershing Square
2300 Main Street - Suite 1100
Kansas City, Missouri 64108
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WHEREFORE, Applicant respectfully requests that the Commission issue an
order herein determining that UAPL is entitled to the exemption without
qualification 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 20, 1999
Respectfully submitted,
UTILICORP UNITED INC.
By: /s/ JON R. EMPSON
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Jon R. Empson
Senior Vice-President
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INDEX OF EXHIBITS
EXHIBIT EXHIBIT TRANSMISSION
NUMBER METHOD
1 Proposed Notice of Proceeding Electronic
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EXHIBIT 1
[FORM OF NOTICE]
Notice is hereby given that UtiliCorp United Inc., a Delaware
corporation, ("UtiliCorp") has filed an application on behalf of UtiliCorp Asia
Pacific Pty. Ltd. ("UAPL"), an electric utility company organized under the laws
of Australia and operating solely in Australia, for an exemption under Section
3(b) of the Public Utility Holding Company Act of 1935, as amended (the "1935
Act"). UtiliCorp asserts that, by virtue of the order declaring that UAPL is
entitled to the exemption provided by Section 3(b) of the 1935 Act, UtiliCorp
and its intermediate subsidiaries, would become exempt from all obligations as a
holding company under Rule 10 promulgated by 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.
UAPL has an indirect equity ownership interest in Ikon Energy Pty.
Ltd., an Australian corporation, Multinet Partnership, an Australian
partnership, and United Energy Ltd., an Australian corporation, each of which is
exempt without qualification from the 1935 Act pursuant to Section 3(b). All
companies are organized under the laws of Australia and operate solely in
Australia.
UAPL is wholly owned by UtiliCorp Asia, Inc., a special purpose
corporation organized under the laws of Delaware and deemed a resident of
Australia under Australian law ("UAI"). UAI is owned by UtiliCorp Asia Pacific,
Inc., a Delaware corporation and a wholly-owned subsidiary of UtiliCorp ("UAP").
Neither UtiliCorp nor any corporation owned or controlled by UtiliCorp
is a "holding company" subject to regulation under the 1935 Act or a "subsidiary
company" of a
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"holding company" subject to regulation under the 1935 Act. UAPL is not a public
utility company operating in the United States and does not serve any customers
in the United States. UtiliCorp states UAPL is an Australian corporation and
will not engage in any business other than the acquisition of Australian public
utility companies, the supervision of UtiliCorp's investments in Australia, and
the participation in the management and operations of Australian public utility
companies. UAPL derives no income from United States operations, nor is it
qualified to do business in any state of the United States, nor is it a public
utility company operating in the United States.
UtiliCorp asserts that, since the operations of UAPL and its subsidiary
companies are and will be exclusively in Australia, its sales and revenues, and
the regulation thereof, have little or no effect on the rates and business of
electric sales and generation within the United States.
UtiliCorp asserts that UAPL is entitled to the exemption without
qualification provided for by Section 3(b) of the 1935 Act, and accordingly,
that UtiliCorp, UAI and UAP are entitled to the exemption from all obligations
as a holding company provided for by Rule 10(a)(1) of the 1935 Act.
In addition, if UAPL 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.
Notice is further given that any interested person may, not later than
October __, 1999, request in writing that a hearing be held in respect of the
request for exemption, relating to the nature of his interest and the reasons
for each request, and the issues of fact or law which he decides to controvert;
or he may request that he be notified should the Commission order a
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hearing herein. Any such request should be addressed: Secretary, Securities and
Exchange Commission, Washington, DC 20549. At any time after said date, the
Commission may grant the exemption requested, or take such other action as it
deems appropriate.
