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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 LLP
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 ("1935 Act"), for an order exempting
UtiliCorp Canada Corp. ("UCC"), a company organized under the laws of the
province of Alberta, Canada and operating solely in Canada, under Section
3(b) of the 1935 Act.
UCC has a direct equity ownership interest in UtiliCorp. British
Columbia, Ltd., a special purpose corporation organized under the laws of the
Province of British Columbia, Canada ("UBC"), and an indirect equity
ownership interest in West Kootenay Power, Ltd., an electric utility company
organized under the laws of the Province of British Columbia, Canada ("WKP"),
each of which is exempt without qualification from the 1935 Act pursuant to
Section 3(b). SEE Holding Company Act Release No. 35-24204 (October 1, 1986).
WKP is a hydro-electric utility in British Columbia, Canada. WKP
has four hydro-electric generation facilities with a capacity of 205
megawatts and 962 miles of transmission lines that serve approximately 86,000
customers in south central British Columbia. WKP generates about half of its
power requirements and purchases the remaining requirements through power
contracts.
Although UCC is currently exempt by operation of Rule 10 since WKP
is exempt under Section 3(b), it is entitled to its own Section 3(b)
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. Because of favorable
tax treaties, it may be that UCC would be an ideal vehicle to consolidate
UtiliCorp's foreign activities. Nothing included herein should be
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construed by the Commission as a change in the operations or organization of
UCC's Canadian subsidiaries from that which was originally relied on by the
Commission in its order granting an exemption to UBC and WKP. See Holding
Company Act Release No. 35-24204 (October 1, 1986). Accordingly, no letters
or orders with respect to such jurisdiction of the state regulatory bodies
have been furnished to the Commission.
UtiliCorp directly owns a 95% interest and Aquila Canada Holdings,
Inc., a special purpose corporation organized under the laws of Delaware
("ACH"), directly owns a 5% interest in UCC. ACH is owned by Aquila Energy
Corp., a Delaware corporation and a wholly-owned subsidiary of UtiliCorp
("AEC").
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" or a "holding
company," as defined in the 1935 Act.
(2) UCC is a company organized under the laws of the Province of
Alberta, Canada and will not engage in any business other than the
acquisition of Canadian public utility companies, the supervision of
UtiliCorp's investments in Canada, and the participation in the management
and operations of Canadian public utility companies. UCC derives no income
from
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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) UCC utility subsidiary, WKP, is exempt without qualification
from the 1935 Act pursuant to Section 3(b). UCC 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 UCC and its subsidiary companies are
and will be exclusively outside the United States, 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 UCC, 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 disclosure requirements of the
Securities Exchange Act of 1934, as amended, regulation under the federal
securities laws offers significant additional protections for the
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interest of investors. Hence, regulation of UCC 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 UCC is exempt without qualification under Section 3(b) of
the 1935 Act, then UtiliCorp, ACH, and AEC would be entitled to the exemption
provided for by Rule 10 of the 1935 Act.
(8) In addition, if UCC 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:
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Counsel Fees...................... $15,000
Total............................. $15,000
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ITEM 3. APPLICABLE STATUTORY PROVISIONS.
Sections 3(b), 9(a)(2), and 10(a)(1) 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
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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 December 15, 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 January 15, 2000
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.
ITEM 6. EXHIBITS.
The following exhibits are hereby filed as a part of this
Application-Declaration:
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EXHIBIT 1 Form of Notice
EXHIBIT 2 Opinion of counsel
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 LLP
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 UCC 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: November 24, 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
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EXHIBIT TRANSMISSION
NUMBER EXHIBIT METHOD
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1 Proposed Notice of Proceeding Electronic
2 Opinion of Counsel 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
Canada Corp. ("UCC"), a company organized under the laws of the province of
Alberta, Canada and operating solely in Canada, 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 UCC 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.
UCC has a direct equity ownership interest in UtiliCorp. British
Columbia, Ltd., a special purpose corporation organized under the laws of the
Province of British Columbia, Canada ("UBC"), and an indirect equity
ownership interest in West Kootenay Power, Ltd., an electric utility company
organized under the laws of the Province of British Columbia, Canada ("WKP").
WKP is a hydro-electric utility in British Columbia, Canada. WKP
has four hydro-electric generation facilities with a capacity of 205
megawatts and 962 miles of transmission lines that serve approximately 86,000
customers in south central British Columbia.
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WKP generates about half of its power requirements and purchases the
remaining requirements through power contracts.
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 "holding company" subject to regulation under the 1935
Act. UCC is not a public utility company operating in the United States and does
not serve any customers in the United States. UtiliCorp states UCC is a Canadian
corporation and will not engage in any business other than the acquisition of
Canadian public utility companies, the supervision of UtiliCorp's investments in
Canada, and the participation in the management and operations of Canadian
public utility companies. UCC 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 UCC and its
subsidiary companies are and will be exclusively in Canada, 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 UCC is entitled to the exemption without
qualification provided for by Section 3(b) of the 1935 Act, and accordingly,
that UtiliCorp, ACH and AEC 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 UCC 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.
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Notice is further given that any interested person may, not later
than _______, 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 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.
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EXHIBIT 2
File 70-____
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005
November 24, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form U-1 Application
Ladies and Gentlemen:
We refer to the Form U-1 Application ("Application") 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.
In the Application, UtiliCorp applies under Section 3(b) of the
Public Utility Holding Company Act of 1935, as amended ("1935 Act"), and Rule 10
thereunder for an order from the Securities and Exchange Commission ("SEC") to
exempt UtiliCorp Canada Corp. ("UCC"), a company organized under the laws of the
province of Alberta, Canada and operating solely in Canada. UCC has a direct
equity ownership interest in UtiliCorp. British Columbia, Ltd., a special
purpose corporation organized under the laws of the Province of British
Columbia, Canada, and an indirect equity ownership interest in West Kootenay
Power, Ltd., an electric utility company organized under the laws of the
Province of British Columbia, Canada. We have acted as counsel for UtiliCorp in
connection with this Application 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.
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
The opinions expressed below in respect of the transactions
described in the Application ("Transactions") are subject to the following
assumptions or conditions:
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a. The Transactions shall have been duly authorized and approved to
the extent required by federal and state law and by the Board of
Directors of UtiliCorp;
b. The SEC shall have duly entered an appropriate order or orders
granting the Application and permitting the Application 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, 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 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. 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 LLP
MDD
