SEC FILE NO. 70-8179
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CERTIFICATE PURSUANT TO
RULE 24
OF FINAL COMPLETION OF
TRANSACTIONS
GPU INTERNATIONAL, INC.<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------X
In the Matter of )
)
GPU INTERNATIONAL, INC. )
)
SEC File No. 70-8179 )
)
(Public Utility Holding )
Company Act of 1935) )
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To the Members of the Securities and Exchange Commission:
The undersigned, GPU International, Inc. (formerly
known as Energy Initiatives, Inc.) ("GPUI"), hereby certifies
pursuant to Rule 24 of the General Rules and Regulations under
the Public Utility Holding Company Act of 1935, as amended, that
the transactions authorized by the Commission's Order, dated
September 7, 1993, and Supplemental Order, dated June 13, 1994,
have been carried out in accordance with the terms and conditions
of, and for the purposes represented by, the Application, as
post-effectively amended, in SEC File No. 70-8179, as follows:
1. On December 31, 1996, GPUI, Polsky Energy Corporation
("Cogen Corp.") and Michael Polsky, as assignee of Allstate
Insurance Company and Allstate Life Insurance Company ("Polsky")
entered into Amendment No. 1 (the "Amendment") to the Stock
Purchase Agreement dated as of September 7, 1993 (the
Agreement ), which, among other things, (i) reduced to 191 and 9
the number of shares of Cogen Corp.'s Class C Non-Voting Common
Stock and Class D Voting Common Stock, respectively
(collectively, the "Shares") which GPUI was obligated to purchase
2
<PAGE>
on July 1, 1996 and (ii) extended the date on which such purchase
from the Company was required to be made.
2. On January 3, 1997, GPUI acquired the Shares pursuant
to the terms of the Agreement, as amended by the Amendment. GPUI
paid to Cogen Corp. an aggregate of $500,000 for the Shares, or
$2,500 per share.
3. GPUI has purchased from Cogen Corp. a total of 915
Shares of Class D Voting Common Stock and 2,085 shares of Class C
Non-Voting Common Stock for an aggregate purchase price of
$7,500,000 or $2,500 per share. GPUI's ownership of Class D
Voting Common Stock does not exceed 4.9% of the total outstanding
voting power of Cogen Corp.'s capital stock.
4. The following exhibits are filed herewith in Item 6:
B-1 Amendment No. 1 to Stock Purchase Agreement
F-1(a) "Past-tense" opinion of Berlack, Israels &
Liberman LLP.
3<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, THE UNDERSIGNED COMPANY HAS DULY
CAUSED THIS STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
GPU INTERNATIONAL, INC.
By:/s/ B. L. Levy
B. L. Levy, President
Date: January 29, 1997<PAGE>
EXHIBITS TO BE FILED BY EDGAR
Exhibits
B-1 Amendment No. 1 to Stock Purchase Agreement
F-1(a) "Past-tense" opinion of Berlack, Israels &
Liberman LLP.<PAGE>
Exhibit B-1
EXECUTION COPY
Amendment No. 1, dated as of December 31, 1996, to
Stock Purchase Agreement, dated as of September 7, 1996,
("Original Agreement"), among Polsky Energy Corporation, a
Delaware Corporation (the "Company"), GPU International, Inc. a
Delaware corporation formerly known as Energy Initiatives, Inc.
("GPUI"), and Michael Polsky ("Polsky"), as assignee of Allstate
Insurance Company and Allstate Life Insurance Company
(collectively, "Allstate").
WHEREAS, pursuant to the Original Agreement, GPUI has
prior to the date hereof purchased 906 shares of Class D Voting
Common and 1,894 shares of Class C Non-Voting Common of the
Company;
WHEREAS, pursuant to the Original Agreement, Allstate
has prior to the date hereof purchased 750 shares of Series E
Common (the "Series E Shares") from the Company;
WHEREAS, pursuant to a Stock Purchase Agreement dated
as of August 27, 1996, Polsky purchased from Allstate the Series
E Shares and all 2,500 shares of Series A Preferred owned by
Allstate, and assumed all of Allstate's obligations under the
Original Agreement;
WHEREAS, the Original Agreement requires GPUI to
purchase 573 additional shares of Class C Non-Voting Common and
27 additional shares of Class D Voting Common, and Polsky (as
successor in interest to Allstate) to purchase an additional 250
shares of Class E Common;
WHEREAS, the parties now desire to amend the Original<PAGE>
Agreement in order to (i) reduce to 191 and 9 the number of
shares of Class C Non-Voting Common and Class D Voting Common,
respectively, which GPUI is obligated to purchase; (ii) reduce to
83 1/3 the aggregate number of Class E Shares which Polsky is
obligated to purchase; and (iii) extend to December 31, 1996 the
date on which such purchases from the Company are to be made.
NOW THEREFORE, in consideration of the premises for
other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. Terms used herein and not otherwise
defined have the meaning set forth in the Original Agreement.
2. Amendments to Original Agreement.
(a) Clauses (i) and (ii) of Section 1.01 of the
Original Agreement are hereby amended in their entirety to read
as follows:
(i) GPUI agrees to purchase from the
Company, and the Company agrees to sell to GPUI, a
total of 915 shares of Class D Voting Common and 2,085
shares of Class C Non-Voting Common for an aggregate
purchase price of $7,500,000, or $2,500 per share. Of
such shares, GPUI agrees to purchase from the Company,
and the Company agrees to sell to GPUI, on the date
hereof, 824 shares of Class D Voting Common and 176
shares of Class C Non-Voting Common (the "EII Initial
Shares"), for an aggregate purchase price of $2,500,000
(the "EII Initial Contribution") and GPUI agrees to
purchase from the Company, and the Company agrees to
sell to GPUI, on the dates specified in Article II
hereof (but subject to Section 2.04 hereof), a total of
1,909 shares of Class C Non-Voting Common and 91 shares
of Class D Voting Common (collectively, the "EII
Subscription Shares" and, together with the EII Initial
Shares, the "EII Shares"), for an aggregate purchase
price of $5,000,000; and
(ii) Polsky, as successor to the
Institutional Investor, and Polsky, as successor to the
Other Institutional Investor, agrees to purchase from
the Company, and the Company agrees to sell to Polsky,
as successor to the Institutional Investor, and Polsky,
as successor to the Other Institutional Investor, on
the dates specified in Article II hereof (but subject<PAGE>
to Section 2.04 hereof), an aggregate of 556-1/3 shares
and 277 shares, respectively, of Class E Common (the
"Investor Subscription Shares") for an aggregate
purchase price of $1,390,833.33 and $692,500,
respectively, or $2,500 per share.
(b) The date "July 1, 1996" in Sections
2.01(a)(i) and 2.02(a)(i) is deleted and the date "December 31,
1996" inserted in its place.
(c) The row beginning "July 1, 1996" in Exhibit B
is amended in its entirety to read as follows:
Polsky (as Polsky (as
successor to successor to
GPUI Institutional Other Institut-
GPUI (Class C (Class D Investor) ional Investor)
Subsequent Non-Voting Voting (Class E (Class E
Closing Date Common) Common) Common) Common)
Dec. 31, 1996 191 9 56 1/3 27
3. Depere Energy Center
(a) The parties agree as following regarding the
Depere Energy Center (the "Project"), which has been under joint
development by GPUI and the Company pursuant to a Joint Venture
Agreement dated as of February 11, 1994 ("JVA"):
(i) GPUI shall be deemed withdrawn from
development of the Project, and shall have no operating
rights thereto (it being understood that the Project
shall not be considered a Designated Project, or reduce
the number of Designated Projects for which GPUI shall
have the right to operate as set forth in Section 6.02
of the Original Agreement), and the parties agree that
the JVA shall be deemed terminated;<PAGE>
(ii) GPUI shall be obligated to pay by
December 31, 1996 the sum of US$185,436.84 (the Final
Payment ), which represents all amounts billed to GPUI,
but unpaid, through October 31, 1996 in connection with
the development of the Project. The Company shall not
bill to GPUI, and GPUI shall not be obligated to pay,
any other Project development costs including, without
limitation, any costs incurred after November 1, 1996.
(iii) At the finance closing for the Project
("Finance Closing"), the Company shall pay to GPUI an
aggregate amount of US$636,550.96; which represents the
sum of the total development costs heretofore paid by
GPUI plus the Final Payment, multiplied by 125%.
(iv) GPUI's outstanding letter of credit
("L/C") in the face amount of $1,788,850, which was
furnished to Wisconsin Public Service Company ("WPSC"),
shall remain in place until the earlier of (A) receipt
or denial of a certificate of public convenience and
necessity for the Project and (B) August 31, 1997, at
which point the Company shall return the L/C to GPUI for
cancellation. In the event of any draw on the L/C prior
to its return to GPUI, the Company shall (x) immediately
upon demand, pay to GPUI (or the issuing bank, as GPUI
may direct) an amount equal to one-half of such draw,
and (y) at the Finance Closing, pay to GPUI an amount
equal to one-half of such draw. At the the Finance
Closing, the Company shall pay to GPUI an amount equal
to the sum of all fees and costs (including fees payable
to the issuing bank) incurred by GPUI to obtain and<PAGE>
maintain the L/C, multiplied by 125%. The amounts
payable by the Company under this clause (iv) are in
addition to amounts payable under clause (iii) above.
4. Miscellaneous.
(a) The parties understand and agree that
except for GPUI's obligation to purchase an additional 191 Class
C Shares and 9 Class D Shares, and Polsky's obligation to
purchase in the aggregate an additional 83 1/3 Class E Shares, in
each case on December 31, 1996 and for a purchase price of $2,500
per share, neither GPUI nor Polsky shall be under any further
obligation to purchase any shares of capital stock of the Company
under the Original Agreement, as amended by this Amendment.
(b) This Amendment shall be governed by the
laws of the State of Delaware without giving effect to conflict
of law principles.
(c) This Amendment may be executed in
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
(d) Except as expressly amended by this
Amendment, the Original Agreement shall remain in full force and
effect.<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date first above written.
GPU INTERNATIONAL, INC.
By:___________________________
Name:
Title:
______________________________
Michael Polsky
POLSKY ENERGY CORPORATION
By:___________________________
Name:
Title: <PAGE>
Exhibit F1 (a)
February 29, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: GPU International, Inc.
SEC File No. 70-8179
Ladies and Gentlemen:
We refer to our opinions, dated August 23, 1993 and
March 22, 1994, which have been filed as Exhibit F and Exhibit
F(a), respectively, to the Application on Form U-1, dated March
30, 1993, as amended, under the Public Utility Holding Company
Act of 1935 (the "Act") filed by GPU International, Inc.
(formerly known as Energy Initiatives, Inc.) ("GPUI"), a Delaware
corporation and subsidiary of GPU, Inc. ("GPU"), which has been
docketed in SEC File No. 70-8179. (The Application, as so
amended, is hereinafter referred to as the "Application").
The Application contemplated, among other things, the
acquisition by GPUI from time to time, pursuant to the terms and
conditions of a Stock Purchase Agreement, of up to 3,400 shares
of common stock ("Shares") of a non-affiliated, privately held
Delaware corporation ("Cogen Corp.") engaged in the business of
developing, owning or operating non-utility power generation
projects which will be either "qualifying facilities" under the
Public Utility Regulatory Policies Act of 1978 and the
regulations of the Federal Energy Regulatory Commission ("FERC")
thereunder, or "exempt wholesale generators" or "foreign utility
companies" as defined under the Act and the applicable
regulations of the Commission and the FERC, and in such other
activities as GPUI may lawfully engage in under the Act, at a
purchase price of $2,500 per share. From September 7, 1993
through January 3, 1997, GPUI acquired an aggregate of 3,000
Shares of Cogen Corp. (the "Acquired Shares").
The Application also contemplated the entering into by
GPU of a letter of credit reimbursement agreement ("Reimbursement
Agreement") in respect of a letter of credit having a face amount
of up to $2.5 million, which would be delivered to Cogen Corp. to<PAGE>
Securities and Exchange Commission
January 29, 1997
Page 2
secure in part GPUI's obligation to purchase the Shares and
certain other Cogen Corp. shares pursuant to the Stock Purchase
Agreement.
In addition to the matters recited in our aforesaid
opinions, we have examined a copy of the Commission's Order,
dated September 7, 1993 and Supplemental Order dated June 13,
1994, granting the Application, as then amended. We have also
examined a copy of the Certificate Pursuant to Rule 24 of
Completion of Transactions, with which this opinion is being
filed as an exhibit, certifying as to the completion of the
transactions contemplated by the Application. We have also
examined such other instruments, agreements and other documents
and made such further investigation as we have deemed necessary
as a basis for this opinion.
We have been counsel to GPU and to its subsidiary,
GPUI, for many years. In that connection, we have participated
in various proceedings relating to the issuance of securities by
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 are members of the Bar of the State of New York and
do not purport to be expert in 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 provisions of
the General Corporation Law of the State of Delaware to the
extent necessary. The opinions expressed herein are limited to
matters governed by the laws of the State of New York, the
Federal laws of the United States and the General Corporation Law
of the State of Delaware.
Based upon the foregoing, we are of the opinion that,
(a) all State laws applicable to the proposed transactions
have been complied with,
(b) GPUI has legally acquired the Acquired Shares,
(c) the Reimbursement Agreement was a valid and binding
obligation of GPUI in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally and general principles of equity
limiting the availability of equitable remedies, and
(d) the consummation of the transactions proposed in the
Application did not violate the legal rights of the holders of
any securities issued by GPUI or any "associated company"
thereof, as defined in the Act.<PAGE>
Securities and Exchange Commission
January 29, 1997
Page 3
We hereby consent to the filing of this opinion as an
exhibit to the aforesaid Certificate Pursuant to Rule 24 and in
any proceedings before the Commission that may be held in
connection herewith.
Very truly yours,
BERLACK, ISRAELS & LIBERMAN LLP<PAGE>
