0000893220-01-500810.txt : 20011101 0000893220-01-500810.hdr.sgml : 20011101 ACCESSION NUMBER: 0000893220-01-500810 CONFORMED SUBMISSION TYPE: POS AMC PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20011031 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONECTIV CENTRAL INDEX KEY: 0001029590 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 510377417 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AMC SEC ACT: 1935 Act SEC FILE NUMBER: 070-09069 FILM NUMBER: 1771140 BUSINESS ADDRESS: STREET 1: 800 KING ST STREET 2: P O BOX 231 CITY: WILMINGTON STATE: DE ZIP: 19899 BUSINESS PHONE: 3024293114 MAIL ADDRESS: STREET 1: 800 KING ST STREET 2: P O BOX 231 CITY: WILMINGTON STATE: DE ZIP: 19899 POS AMC 1 w54384posamc.txt POST-EFFECTIVE AMENDMENT NO. 7 TO FORM U-1 As filed with the Securities and Exchange Commission on October 31, 2001 File No. 70-9069 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 POST-EFFECTIVE AMENDMENT NO. 7 TO FORM U-1 APPLICATION/DECLARATION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 CONECTIV ATS OPERATING SERVICES, INC. ATLANTIC GENERATION, INC. ATLANTIC JERSEY THERMAL SYSTEMS, INC. CONECTIV ENERGY SUPPLY, INC. CONECTIV OPERATING SERVICES COMPANY CONECTIV THERMAL SYSTEMS, INC. 800 King Street Wilmington, DE 19899 (Name of company filing this statement and address of principal executive offices) Conectiv (Name of top registered holding company parent) Philip S. Reese Vice President and Treasurer Conectiv (address above) (Name and address of agent of service) The Commission is requested to send copies of all notices, orders and communications in connection with this Application to: Peter F. Clark, General Counsel Judith A. Center Christie Day Cannon, Assistant General Counsel Skadden Arps, Slate, Conectiv Meagher, & Flom LLP 800 King Street 1440 New York Avenue, N.W. Wilmington, DE 19899 Washington, D.C. 20005 Item 1 of Post-Effective Amendment No. 6, as previously filed, is hereby amended in its entirety as follows: ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS A. BACKGROUND Conectiv, a Delaware corporation, previously was authorized under Section 9(a)(2) of the Public Utility Holding Company Act of 1935, as amended (the "Act"), to consummate certain transactions resulting in the acquisition by Conectiv of all of the outstanding common stock of Delmarva Power & Light Company, a Delaware and Virginia corporation and an operating public utility company, and of Atlantic City Electric Company, a New Jersey corporation and an operating public utility company and of certain direct and indirect nonutility subsidiaries (see HCAR No. 26832 dated February 25, 1998 in File No. 70-9069). Pursuant to authority granted in such order and a number of subsequent orders, Conectiv has established various utility and nonutility subsidiaries, including the subsidiaries listed above, which derive substantially all of their revenues from energy-related activities identified in Rule 58 of the Commission's regulations. B. REQUESTED AUTHORIZATION Conectiv, on behalf of any current or future nonutility subsidiaries which derive substantially all of their revenues from energy-related activities ("Energy-Related Subsidiaries"), requests authority to engage in energy-related business activities outside the United States. C. ENERGY MARKETING AND OTHER ENERGY-RELATED ACTIVITIES OUTSIDE THE UNITED STATES. Conectiv requests authority on behalf of Energy-Related Subsidiaries to engage in energy-related business activities outside the United States. Such activities may include: (i) the brokering and marketing of electricity, natural gas and other energy commodities ("Energy Marketing"); (ii) energy management services ("Energy Management Services"), including the marketing, sale, installation, operation and maintenance of various products and services related to energy management and demand-side management, including energy and efficiency audits; facility design and process control and enhancements; construction, installation, testing, sales and maintenance of (and training client personnel to operate) energy conservation equipment; design, implementation, monitoring and evaluation of energy conservation programs; development and review of architectural, structural and engineering drawings for energy efficiencies, design and specification of energy consuming equipment; and general advice on programs; the design, construction, installation, testing, sales and maintenance of new and retrofit heating, ventilating and air conditioning, electrical and power systems, alarm and warning systems, motors, pumps, lighting, water, water-purification and plumbing systems, and related structures, in connection with energy-related needs; and the provision of services and products designed to prevent, control, or mitigate adverse effects of power disturbances on a customer's electrical systems; and (iii) engineering, consulting and other technical support services ("Consulting Services") with respect to energy-related businesses, as well as for individuals. Such Consulting Services would include technology assessments, power factor correction and harmonics mitigation analysis, meter reading and repair, rate schedule design and analysis, environmental 2 services, engineering services, billing services (including consolidation billing and bill disaggregation tools), risk management services, communications systems, information systems/data processing, system planning, strategic planning, finance, feasibility studies, and other similar services. Conectiv's specific interest at this time is for authorization to participate through one or more direct or indirect subsidiaries in a new energy market in Canada that is expected to commence operations in the near future. An Independent Electricity Market Operator will be responsible for the Ontario bulk electricity system and for enabling, administering and operating the upcoming competitive wholesale energy markets in the Province of Ontario. Conectiv wishes to participate in that market as soon as the market is established. Conectiv requests that the Commission (i) authorize Energy-Related Subsidiaries to engage in Energy Marketing in Canada;(ii) authorize the Energy-Related Subsidiaries to provide Energy Management and Consulting Services anywhere outside the United States; and (iii) reserve jurisdiction over other activities of Energy Related Subsidiaries outside the United States and Canada pending completion of the record. The Commission has recognized that given the integrated nature of the United States and Canadian energy markets, the conduct of marketing activities in Canada satisfies the functional relationship standard of Section 11 to the same extent as does the conduct of such activities anywhere within the Unites States. Similarly, the Commission has also found that energy management and consulting activities outside the United States pose no incremental risks to the registered company system to compete effectively in an increasingly global marketplace. (1) D. STATEMENT PURSUANT TO RULE 54. Rule 54 promulgated under the Act states that in determining whether to approve the issue or sale of a security by a registered holding company for purposes other than the acquisition of an Exempt Wholesale Generator ("EWG") or a Foreign Utility Company ("FUCO"), or other transactions by such registered holding company or its subsidiaries other than with respect to EWGs or FUCOs, the Commission shall not consider the effect of the capitalization or earnings of any subsidiary which is an EWG or a FUCO upon the registered holding company system if Rules 53(a), (b), or (c) are satisfied. As demonstrated below, such rules are satisfied. By Order dated August 17, 2000, HCAR No. 27213 (the "August 17 Order"), the Commission authorized Conectiv to invest up to $350 million ("EWG Project Limit") in EWGs. Conectiv has no investments in FUCOs and does not propose to make any investments in FUCOs. Conectiv is currently in compliance with the EWG Project Limit, in that its current investment in EWGs as of June 30, 2001 was approximately $156.3 million. Moreover, Conectiv will inform the Commission of its investments in EWGs on an ongoing basis by filing with the Commission, as required by the August 17 Order, quarterly certificates containing extensive information specified in the August 17 Order concerning those investments. With respect to the other requirements of Rule 53: (i) Conectiv maintains books and records to identify investments in, and earnings from, each EWG and FUCO in which it directly or indirectly holds an interest. -------- (1) See Energy East Corp. et al, HCAR No. 27228 (September 12, 2000); NiSource Inc. et al., HCAR No. 27265 (November 1, 2000); Southern Energy, Inc., HCAR No. 27020 May 13, 1999) (supplemented order amending prior order to permit registered holding company subsidiary to engage in power and gas marketing activities in Canada and reserving jurisdiction over such activities outside the United States and Canada); Interstate Energy Corp., HCAR No. 27069 (August 26, 1999); See also, National Fuel Gas Co., HCAR No. 27114 (December 16, 1999). 3 (A) For each United States EWG in which Conectiv directly or indirectly holds an interest: (1) the books and records for such EWG will be kept in conformity with United States generally accepted accounting principles ("GAAP"); (2) the financial statements will be prepared in accordance with GAAP; and (3) Conectiv directly or through its subsidiaries undertakes to provide the Commission access to such books and records and financial statements as the Commission may request. (B) For each FUCO or foreign EWG that is a majority-owned subsidiary of Conectiv: (1) the books and records for such subsidiary will be kept in accordance with GAAP; (2) the financial statements for such subsidiary will be prepared in accordance with GAAP; and (3) Conectiv directly or through its subsidiaries undertakes to provide the Commission access to such books and records and financial statements, or copies thereof in English, as the Commission may request. (C) For each FUCO or foreign EWG in which Conectiv owns 50% or less of the voting securities, Conectiv directly or through its subsidiaries will proceed in good faith, to the extent reasonable under the circumstances, to cause: (1) such entity to maintain books and records in accordance with GAAP; (2) the financial statements of such entity to be prepared in accordance with GAAP; and (3) access by the Commission to such books and records and financial statements (or copies thereof) in English as the Commission may request and, in any event, will provide the Commission on request copies of such materials as are made available to Conectiv and its subsidiaries. If and to the extent that such entity's books, records or financial statements are not maintained in accordance with GAAP, Conectiv will, upon request of the Commission, describe and quantify each material variation therefrom as and to the extent required by subparagraphs (a) (2) (iii) (A) and (a) (2) (iii) (B) of Rule 53. (ii) No more than 2% of Conectiv's domestic public utility subsidiary employees will render any services, directly or indirectly, to any EWG or FUCO in which Conectiv directly or indirectly holds an interest. (iii) Conectiv, in connection with any Form U-1 seeking approval of EWG or FUCO financing, will submit copies of such Form U-1 and every certificate filed pursuant to Rule 24 with every federal, state or local regulator having jurisdiction over the retail rates of the public utility companies in the Conectiv holding company system. In addition, Conectiv will submit to each such commission copies of any amendments to any Form U-1 seeking approval of EWG or FUCO financing and any Rule 24 certificates required thereunder, 4 as well as a copy of Item 9 of Conectiv's Form U5S and Exhibits H and I thereof (commencing with the Form U5S to be filed for the calendar year in which the authorization therein requested is granted). (iv) None of the provisions of paragraph (b) of Rule 53 render paragraph (a) of that Rule unavailable for a transaction requiring Commission approval for the issuance and sale of a security by Conectiv for purposes other than the acquisition of an EWG or FUCO or other transactions by Conectiv or its subsidiaries other than with respect to EWGs or FUCOs. (A) Neither Conectiv nor any subsidiary of Conectiv having a book value exceeding 10% of Conectiv's consolidated retained earnings is the subject of any pending bankruptcy or similar proceeding. (B) As stated previously, Conectiv is in complete compliance with the August 17 Order, which dealt with the status of Conectiv's consolidated retained earnings. (C) Conectiv did not incur operating losses from direct or indirect investments in EWGs and FUCOs in 2000 in excess of 5% of Conectiv's December 31, 2000 consolidated retained earnings. ITEM 2. FEES, COMMISSIONS AND EXPENSES. The fees, commissions and expenses to be incurred, directly or indirectly, by Conectiv or any associate company thereof in connection with the proposed transactions are estimated as follows:
Expenses of Conectiv Resource Partners, Inc. $ 1,500 Fees of outside counsel. $ 2,000 Miscellaneous expenses $ 500 ------- TOTAL $ 5,500
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS. EXHIBITS A Not applicable B Not applicable C Not applicable D Not applicable E Not applicable F Preliminary opinion of counsel (filed herewith) G Form of Federal Register notice (previously filed) FINANCIAL STATEMENTS: FS-1 Conectiv Consolidated Balance Sheet as of June 30, 2001. (incorporated by reference to the filing on Form 10-Q) FS-2 Conectiv Consolidated Income Statement for the period ended June 30, 2001 (incorporated by reference to the filing on Form 10-Q) 5 Since the proposed transactions have no impact on the financial statements of Conectiv nor the consolidated system nor on any subsidiary company, proforma financial statements are omitted. ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS. The Commission's action in this matter will not constitute major federal action significantly affecting the quality of the human environment. No other federal agency has prepared or is preparing an environmental impact statement with regard to the proposed transactions. 6 SIGNATURE Pursuant to the requirements of the Act, the undersigned companies have duly caused this Post-Effective Amendment No. 7 to be signed on its behalf by the undersigned thereunto duly authorized. The signatures of the applicants and of the persons signing on their behalf are restricted to the information contained in this application which is pertinent to the application of the respective companies. DATE: Conectiv ATS Operating Services, Inc. Atlantic Generation, Inc. Atlantic Jersey Thermal Systems, Inc Conectiv Energy Supply Inc. Conectiv Operating Services Company Conectiv Thermal Systems, Inc. October 31, 2001 /s/ Philip S. Reese ------------------- Philip S. Reese Vice President and Treasurer 7 EX-99.F 3 w54384ex99-f.txt PRELIMINARY OPINION OF COUNSEL EXHIBIT F October 31, 2001 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D. C. 20549 Re: Conectiv SEC File No. 70-9069 Dear Sir or Madam: I am the Vice President, General Counsel and Secretary of Conectiv, a Delaware corporation ("Conectiv"), and have acted as its counsel in connection with Post-Effective Amendment No. 7 to the Application/Declaration on Form U-1 (File No. 70-9069) (the "Amendment") filed with the Securities and Exchange Commission ("Commission") jointly by Conectiv and several direct and indirect nonutility subsidiaries named therein, including ATS Operating Services, Inc., Atlantic Generation, Inc., Atlantic Jersey Thermal Systems, Inc., Conectiv Energy Supply, Inc., Conectiv Operating Services Company, and Conectiv Thermal Systems, Inc. (each, an "Applicant" and collectively, the "Applicants") and previously amended by Pre-Effective Amendments Nos. 1 through 4 and Post-Effective Amendments Nos. 1 through 6 (as so amended, the "Application"). By this Amendment, Applicants request that the Commission: (i) authorize any current or future nonutility subsidiaries that derive substantially all of their revenues from energy related activities ("Energy Related Subsidiaries") to engage in Energy Marketing (as defined in the Amendment) in Canada; (ii) authorize the Energy Related Subsidiaries to provide Energy Management and Consulting Services (each as defined in the Amendment) anywhere outside the United States; and (iii) reserve jurisdiction over other activities of Energy Related Subsidiaries outside the United States and Canada pending completion of the record. I am a member of the bar of the State of Delaware, the state in which all but one of the Applicants are incorporated. I am also a member of the bar of the Commonwealth of Virginia, in which certain of the subsidiaries named in the Application are authorized to do business. I am not a member of the bar of the State of New Jersey (in which Atlantic Generation, Inc. is incorporated). I do not hold myself out as an expert in the laws of any state other than Delaware or Virginia, although I have consulted and will consult with counsel to Conectiv who are experts in such laws. For purposes of this opinion, to the extent I deemed necessary, I have relied on advice from counsel employed or retained by Conectiv who are members of the bar of the States of New Jersey. In connection with this opinion, I, or attorneys in whom I have confidence, have examined originals or copies, certified or otherwise identified to my satisfaction, of such records of Conectiv and such other documents, certificates and corporate or other records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In my examination, I or they have assumed the genuineness of all signatures, the legal capacity of all persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of documents submitted to me as 8 certified or photostatic copies and the authenticity of the originals of such copies. As to various questions of fact material to such opinions, I have relied, when relevant facts were not independently established, upon statements contained in the Application. The opinions expressed below in respect of the proposed transactions described in the Application (the "Proposed Transactions") are subject to the following assumptions, qualifications, limitations, conditions and exceptions: (a) The Commission shall have duly entered an appropriate order or orders granting and permitting the Application to become effective under the Act and the rules and regulations thereunder and the Proposed Transactions are consummated in accordance with Application. (b) Appropriate corporate action shall have been taken by each of the applicable Applicants to authorize the Proposed Transactions, any applicable documents relating to the Proposed Transactions shall have been executed and delivered and any appropriate taxes shall have been paid. (c) Each of the applicable Applicants shall have obtained any consents, waivers and releases required for the Proposed Transactions under all applicable governing documents, contracts, agreements, debt instruments, indentures, franchises, licenses and permits. (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. (e) Each of the Applicants, shall, at the time of the Proposed Transactions, continue to be duly incorporated and validly existing in good standing under the laws of the jurisdiction in which it is domiciled. Based on the foregoing, and subject to the assumptions and conditions set forth herein, I am of the opinion that, in the event the Proposed Transactions are consummated in accordance with the Application: 1. All state laws applicable to the Proposed Transactions will have been complied with. 2. Each of the Applicants is, and will be at the time of the Proposed Transaction, duly formed or incorporated under the laws of the jurisdiction in which it is domiciled. 3. The consummation of the Proposed Transactions will not violate the legal rights of the holders of any securities issued by any Applicant or any associate company thereof. I hereby consent to the use of this opinion in connection with the Application. Very truly yours, /s/Peter F. Clark ------------------------------ Peter F. Clark 9