2012.07.23 letter to ferc detailing acquisition

Hindenburg Research
Hindenburg ResearchHindenburg Research

REH, Public Power, Viridian Letter to FERC Regarding Crius Combination

Kenneth G. Hurwitz
Direct Phone Number: 202.654.4521
Fax Number: 202.654.4251
ken.hurwitz@haynesboone.com
PUBLIC VERSION
Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112
July 23, 2012
(VIA ELECTRONIC FILING)
The Honorable Kimberly D. Bose
Secretary
FEDERAL ENERGY REGULATORY COMMISSION
888 First Street, N.E.
Washington, D.C. 20426
Re: Public Power, LLC and Regional Energy Holdings, Inc., Docket No. EC12-123-000
Dear Secretary Bose:
On July 20, 2012, Public Power, LLC, on behalf of itself and its wholly owned
subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc.,
Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania)—and
Regional Energy Holdings, Inc., on behalf of its wholly owned subsidiaries Viridian Energy,
Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR
Energy Services, LLC and Fairpoint Energy, LLC, electronically filed an Application for Order
Under Section 203 of the Federal Power Act, Request for Confidential Treatment, Request for
Waivers and Request for 21-Day Comment Period. We filed the Application under Section
203(a)(1)(A) of the Federal Power Act1
and Part 33 of the Rules and Regulations of the Federal
Energy Regulatory Commission.2
Page 2 of the Application set forth an incorrect date for the IPO Expiration Date. The
date should be changed from January 21, 2012 to January 21, 2013.
1
16 U.S.C. § 824b(a)(1)(A).
2
18 C.F.R. Part 33 (2011).
Hon. Kimberly D. Bose
July 23, 2012
Page 2
Accordingly, we are submitting a revised Application with this letter. The revised
Application is precisely the same as the one submitted on July 20, but with the correct IPO
Expiration date shown on page 2.
Please contact the undersigned if you have any questions concerning this Application.
Respectfully submitted,
/s/ Kenneth G. Hurwitz
Kenneth G. Hurwitz
COUNSEL FOR REGIONAL ENERGY HOLDINGS, INC.
Enclosure
PUBLIC VERSION
Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Public Power, LLC ) Docket No. EC12-___-000
Regional Energy Holdings, Inc. )
APPLICATION FOR ORDER UNDER
SECTION 203 OF THE FEDERAL POWER ACT,
REQUEST FOR CONFIDENTIAL TREATMENT,
REQUEST FOR WAIVERS AND
REQUEST FOR 21-DAY COMMENT PERIOD
Pursuant to Section 203(a)(1) of the Federal Power Act (“FPA”)1
and Part 33 of the Rules
and Regulations of the Federal Energy Regulatory Commission (the “Commission” or
“FERC”),2
Applicants Public Power, LLC (“Public Power”), on behalf of itself and its wholly
owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY,
Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania) (in
combination with Public Power, the “Public Power MBR Entities”)—and Regional Energy
Holdings, Inc. (“REH”), on behalf of its wholly owned subsidiaries Viridian Energy, Inc.,
Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR
Energy Services, LLC and Fairpoint Energy, LLC (the “REH MBR Entities”), respectfully
request Commission authorization for two transactions—the Proposed Transaction and the
Alternative Proposed Transaction—both of which involve dispositions of direct and indirect
interests in Applicants. The market-based rate authorizations held by the Public Power MBR
1
16 U.S.C. § 824b(a)(1).
2
18 C.F.R. §§ 33.1-33.11 (2011).
2
Entities and the REH MBR Entities and associated books and records are the only jurisdictional
facilities held by the foregoing entities, and the only such facilities involved in this Application.3
The Proposed Transaction will occur in four stages, consisting of (1) an exchange
transaction, whereby approximately 75 percent of the direct ownership interests and shares in
Public Power and REH, respectively, will be contributed by the owners to a new entity, Crius
Energy LLC, in exchange for membership interests in the new entity (the “Exchange
Transaction”);4
(2) the initial public offering of units in a Canada trust (the “Trust” or “Crius
Energy Trust”) to the public (the “IPO”);5
(3) the acquisition by Crius Energy Corporation (an
indirect wholly owned subsidiary of the Trust) of a portion of the ownership interests in Crius
Energy LLC (the “Acquisition”); and (4) a redemption transaction under which REH and Crius
Energy LLC will redeem, for cash, the Retained Interests (“Cash Redemption”).
The Alternative Proposed Transaction will be pursued, after consummation of the
Exchange Transaction, if the IPO does not occur by January 21, 2013 (the “IPO Expiration
Date”). In that case, stages two and three, as described above, will not occur. In addition, the
Retained Interests in REH and Public Power, respectively, will be exchanged for additional
3
Public Power, LLC (Pennsylvania), Public Power & Utility of Maryland, LLC, Public Power &
Utility of NY, Inc., and Public Power & Utility of New Jersey, LLC applied for market-based
rate authorization on July 17, 2012 in Docket Nos. ER12-2252, ER12-2253, ER12-2251, and
ER12-2250, respectively.
4
As described in greater detail below in Section V.A., in stage one, the owners of the direct
ownership interests and shares in Public Power and REH will retain a portion (approximately 25
percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they
will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange
Transaction.
5
Authorization for the IPO itself under FPA Section 203 or 204 is unnecessary because, at the time
of the IPO, the Trust will neither directly or indirectly own nor operate any jurisdictional
facilities.
3
ownership interests in Crius Energy LLC, which will be issued to the REH and Public Power
owners (“Exchange Redemption”). The stage four Cash Redemption will not occur.
With respect to the Proposed Transaction, Applicants specifically request authorization
under Section 203(a)(1) of the FPA for the Exchange Transaction and the Acquisition, and
further request blanket authorization under Section 203(a)(1) for any party to acquire, either
individually or together with its affiliates, less than a ten percent interest in the Trust through
ownership of its units following the IPO. Further, Applicants request authorization for the Cash
Redemption, if and to the extent such authorization is required.
As to the Alternative Proposed Transaction, Applicants specifically request authorization
under Section 203(a)(1) of the FPA for the Exchange Transaction, as above, and, out of an
abundance of caution, for the Exchange Redemption. (Approval of the Exchange Redemption
might not be necessary because the transaction does not appear to effect a change in upstream
control of either Public Power or the REH MBR Entities.)6
As demonstrated in this Application, neither the Proposed Transaction nor the Alternative
Proposed Transaction will have an adverse effect on competition, rates or regulation, and neither
will result in the cross-subsidization of a non-utility associate company or the pledge or
encumbrance of utility assets for the benefit of an associate company. Accordingly, as
specifically requested herein, the Proposed Transaction and the Alternative Proposed Transaction
should be authorized by the Commission pursuant to Section 203 of the FPA as consistent with
the public interest.
6
This issue is discussed in Section V.A below. For the avoidance of doubt, Applicants’ are not
seeking a declaration or other determination by the Commission on the issue of whether the
Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean
State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the
transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”)
4
The Applicants request that the Commission grant limited waivers of its Part 33 filing
requirements to the extent that the information required by Part 33 is not necessary to determine
that the direct and indirect disposition of the jurisdictional assets of the Public Power MBR
Entities and the REH MBR Entities resulting from the Proposed Transaction and the Alternative
Proposed Transaction meet the statutory requirements of Section 203. Applicants provide below
all information required by Part 33 of the Commission’s regulations except to the extent that
Applicants request waiver of such requirements. Specifically, for the reasons described below,
Applicants respectfully request that the Commission grant waiver of the requirement to file
Exhibits A, D, F, G, H, J, K and L and the information required to be submitted therein to the
extent not otherwise provided in this Application. The Commission’s practice is to grant such
waivers when the application contains “sufficient information to evaluate the proposed
transaction.”7
I.
REQUEST FOR EXPEDITED REVIEW
Applicants request a notice period of no longer than 21 days, expedited treatment of this
Application, and a Commission order on this Application by August 20, 2012, to accommodate
the closing of the proposed transactions8
as soon as possible thereafter. Expedited treatment is
warranted because the proposed transactions are consistent with Commission precedent and
require neither a competitive analysis screen nor a vertical competitive analysis.9
7
PSI Energy, Inc., 60 FERC ¶ 62,131 at 63,342 (1992); see Citizens Utils. Co., 41 FERC ¶ 62,064
at 63,180 (1987).
8
The lower case term “proposed transactions” as used in this Application means both the Proposed
Transaction and the Alternative Proposed Transaction.
9
Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642,
FERC Stats. and Regs., Regs. Preambles 1996-2000 ¶ 31,111 at 31,877-78 (2000), order on
reh'g, Order No. 642-A (March 23, 2001), 94 FERC ¶ 61,289 (2001) ("Order No. 642").
5
Pursuant to Section 203(a)(4) of the FPA, the Commission will approve a transaction if
the Commission finds that it (i) is consistent with the public interest (i.e., it has no adverse effect
on competition, rates or regulation) and (ii) will not result in the cross-subsidization of a non-
utility associate company or a pledge or encumbrance of utility assets for the benefit of an
associate company or, if the transaction will result in any of the foregoing, the Commission
determines that it is consistent with the public interest. As demonstrated in this Application, the
Proposed Transaction and the Alternative Proposed Transaction are consistent with the public
interest and do not raise any cross-subsidization concerns.
II.
REQUEST FOR CONFIDENTIAL TREATMENT
Pursuant to 18 C.F.R. §§ 33.9 and 388.112(b), Applicants request privileged and
confidential treatment for Exhibit I, which contains the Term Sheet describing the agreement
pursuant to which the Proposed Transaction and the Alternative Proposed Transaction will occur.
The information in the Term Sheet is commercially sensitive and therefore not publicly
available. Applicants are electronically filing confidential and public versions of this
Application and ask that the confidential version be placed in the Commission’s non-public files.
Applicants understand that the Commission staff will notify them in advance of any public
disclosure of any information contained in Exhibit I. Any questions regarding this request for
confidential treatment should be directed to the persons listed in Section III, below. A proposed
protective order is included as Attachment 1.
III.
COMMUNICATIONS
Applicants request that the following persons be placed on the official service list for this
proceeding:
6
Kenneth G. Hurwitz Jan L. Fox
Partner Vice President and General Counsel
Haynes and Boone, LLP Regional Energy Holdings, Inc.
1615 L Street, NW, Suite 800 64 North Main Street
Washington, DC 20036 Norwalk, CT 06854
Phone: (202) 654-4521 Phone: (203) 517-0130
Email: ken.hurwitz@haynesboone.com Email: JFox@viridian.com
Robert Gries, Jr. Gerit F. Hull, Member
Public Power, LLC Eckert Seamans Cherin & Mellott, LLC
4830 W. Kennedy Blvd. Suite 1200
Suite 445 1717 Pennsylvania Avenue, NW
Tampa, FL 33609 Washington, DC 20006
Phone: (813) 902-9038 Phone: (202) 659-6657
Email: gries@griesinvfund.com Email: ghull@eckertseamans.com
IV.
DESCRIPTION OF APPLICANTS AND
OTHER PARTIES TO THE PROPOSED TRANSACTION
A. The Applicants
This section sets forth a description of the Applicants. Their pre-transaction ownership
structures are set forth in Exhibit C.
1. Regional Energy Holdings, Inc.
Regional Energy Holdings, Inc., a Nevada corporation, owns each of the six REH MBR
Entities, which, in addition to holding market-based rate authority, function as licensed
competitive retail marketers of electricity and, in most cases, natural gas, in eleven states. REH
is filing today’s Application on behalf of the REH MBR Entities, to authorize the disposition of
the upstream direct and indirect interests in such entities, pursuant to the Proposed Transaction
and the Alternative Proposed Transaction. Although each holds market-based rate authority,
none of the REH MBR Entities currently makes any wholesale sales of electricity other than
real-time balancing transactions in regional transmission organization (“RTO”) markets to offset
minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail
sales.
7
2. The REH MBR Entities
The pertinent facts as to each of the REH MBR Entities are set forth in the bullet points
below:10
Viridian Energy, Inc. is a Nevada corporation. Viridian Energy, Inc. has been
granted market-based rate authority by the Commission,11
is a member of ISO
New England, and is licensed to sell electricity to retail customers in Connecticut
and Massachusetts. Viridian Energy, Inc. will be converted into a limited liability
company, Viridian Energy, LLC, after the Exchange Transaction.
Viridian Energy PA, LLC is a Nevada limited liability company. Viridian
Energy PA, LLC has been granted market-based rate authority by the
Commission,12
is a member of the PJM Interconnection, L.L.C. (“PJM”), and is
licensed to sell electricity and natural gas at retail in Pennsylvania and New
Jersey, natural gas at retail in New York, and electricity at retail in Delaware, the
District of Columbia, Illinois and Maryland.
Viridian Energy NY, LLC is a New York limited liability company. Viridian
Energy NY, LLC has been granted market-based rate authority by the
Commission,13
is a member of the New York Independent System Operator
10
In addition to these entities, REH owns Viridian Network, LLC, whose sole business activity is to
provide retail sales services through independent contractors for the REH MBR Entities.
After this application is filed, the REH MBR entities will amend their Electric Quarterly Report
submissions for the pertinent periods to disclose the real-time balancing sales, which were
previously not included in the reports.
11
Viridian Energy, Inc., Docket No. ER11-3069 (unpublished letter order issued May 25, 2011).
12
Viridian Energy PA, LLC, Docket No. ER10-210 (unpublished letter order issued Jan. 27, 2010).
13
Viridian Energy NY, LLC, Docket No. ER10-2661 (unpublished letter order issued Nov. 8, 2010).
8
(“NYISO”), and is licensed to sell electricity and natural gas at retail in New
York.
Cincinnati Bell Energy, LLC is a Nevada limited liability company. Cincinnati
Bell Energy, LLC’s predecessor was granted market-based rate authority by the
Commission.14
Cincinnati Bell Energy, LLC is a member of PJM and is licensed
to sell electricity and gas at retail in Ohio.
FTR Energy Services, LLC is a Nevada limited liability company. An
application for authority to sell electricity at market-based rates is pending,15
as is
its membership application in PJM, the Midwest Independent Transmission
System Operator (“MISO”), NYISO, and the California Independent System
Operator Corporation (“CAISO”). FTR Energy Services LLC is licensed to sell
electricity and natural gas at retail in Ohio and New York. License applications
are pending to sell electricity and natural gas in California and Pennsylvania and
to sell natural gas in Illinois, Michigan, and Indiana
Fairpoint Energy, LLC is a Nevada limited liability company. Fairpoint
Energy, LLC’s predecessor was granted market-based rate authority by the
Commission.16
Fairpoint Energy, LLC is a member of ISO New England, and is
licensed to sell electricity at retail in Maine and New Hampshire.
14
Viridian Energy New Jersey LLC, Docket No. ER11-2663 (unpublished letter order issued Feb.
28, 2011).
15
The application in that docket was filed by Viridian Energy NG, LLC. Viridian Energy NG, LLC
changed its name to FTR Energy Services LLC, and notified the Commission of that change in a
subsequent filing in that proceeding.
16
Viridian Energy MD LLC, Docket No. ER11-4326 (unpublished letter order issued Sept. 12,
2011). Fairpoint Energy, LLC filed a notice of succession with the Commission in Docket No.
ER12-1938.
9
3. Public Power, LLC
Public Power is a Connecticut limited liability company. The Commission granted
Public Power’s predecessor market-based rate authority in 2007.17
Public Power is licensed to
sell electricity at retail in Connecticut, the District of Columbia, Illinois, Massachusetts, New
York and Ohio, and natural gas at retail in New York.
Public Power wholly owns four entities—Public Power, LLC (a Pennsylvania limited
liability company), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY,
Inc. and Public Power & Utility of New Jersey, LLC)18
—that are licensed to and sell electricity
at retail and, in the case of the New Jersey entity, natural gas at retail in the indicated states. The
four entities make no wholesale sales, except for real-time balancing sales in the pertinent RTO
markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load
and actual retail sales.19
Ownership interests in Public Power are held by GF Power I, LLC (95 percent), a
management company, and GF Factoring (5 percent) (the “Public Power Members”). GF Power
I, LLC (95 percent), in turn, is owned by GF Power LLC (81.3 percent), Gries Investment Fund
(14.7 percent) and various individuals. GF Power LLC and Gries Investment Fund are both
owned by individuals, none of whom owns 10 percent or more of either entity.
17
Public Power & Utility, Inc., Docket No. ER07-1161 (unpublished letter order issued Sept. 17,
2007). Public Power & Utility, Inc. changed its name and legal form to Public Power, LLC and
subsequently notified the Commission of that change. See Notice of Succession of Public Power,
LLC, Docket No. ER12-75 (filed Oct. 14, 2011).
18
Public Power & Utility of Maryland, LLC is a Maryland limited liability company, Public Power
& Utility of NY, Inc. is a New York corporation, and Public Power & Utility of New Jersey, LLC
is a New Jersey limited liability company.
19
As stated above, applications for market-based rate authorizations for these four entities are
pending.
10
B. Other Parties to the Proposed Transaction
The Proposed Transaction is fully described in Section V below. This section of the
Application describes the new entities that will be formed as part of the Proposed Transaction, all
of which will be relevant if the IPO and the acquisition of an interest in Crius Energy LLC occur.
Crius Energy LLC, unlike the other entities described in this section, will play a role whether or
not the IPO closes before the IPO Expiration Date—in other words, it will play a role in either
the Proposed Transaction or the Alternative Proposed Transaction.
1. Crius Energy Trust
The Trust will be a newly formed, unincorporated, open-ended limited purpose trust
established under the laws of the Province of Ontario, Canada. As more fully described below,
the Trust will conduct an IPO. Following the IPO, the Trust will wholly own Crius Energy
Holdings Inc., and will not carry on any other business activities.
2. Crius Energy Holdings Inc.
Crius Energy Holdings Inc. will be a newly formed Canadian holding company
incorporated under the laws of the Province of Ontario, Canada. Following the IPO, Crius
Energy Holdings Inc. will own all of the shares of Crius Energy Corporation, and will not carry
on any other business activities.
3. Crius Energy Corporation
Crius Energy Corporation will be incorporated under the laws of the State of Delaware.
Its sole function will be to acquire and hold a membership interest in Crius Energy LLC (the
“Acquired Interest”), following the closing of the IPO.
4. Crius Energy LLC
Crius Energy LLC will be a newly formed Delaware limited liability company.
11
Prior to the IPO, on the closing date of the Exchange Transaction, the Public Power
Members and the REH Shareholders will each contribute a portion (approximately 75 percent) of
their Public Power Membership Interests and their REH Common Stock, respectively, to Crius
Energy LLC, each in exchange for 50 percent of the Crius Energy LLC interests.20
As stated
above, immediately after the IPO, Crius Energy Corporation will contribute the net proceeds of
the IPO to Crius Energy LLC in exchange for a portion of the ownership interests therein.
The Alternative Proposed Transaction will take place in the event the Exchange
Transaction is consummated, but the IPO has not occurred by the IPO Expiration Date. Given
that one of the purposes of the IPO is to fund the acquisition of the Acquired Interest in Crius
Energy LLC by Crius Energy Corporation, in the absence of the IPO, this acquisition will not
occur.
5. Crius Energy Administrator Inc.
Crius Energy Administrator Inc. (the “Administrator”) will be a newly formed
corporation incorporated under the laws of the Province of Ontario, Canada. Pursuant to the
terms of a voting agreement to be entered into between the Trustee, the Administrator and the
Administrator Shareholder (as defined below), the business of the Administrator will be limited
to acting as administrator of the Trust and performing certain ancillary activities. Among its
other responsibilities, the Administrator will be entitled to vote the securities owned by the Trust.
20
As stated above, the owners of the direct ownership interests and shares in Public Power and
REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the
“Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius
Energy LLC pursuant to the Exchange Transaction.
12
This prerogative, including the right to vote the voting shares of Crius Energy Holdings Inc.,
resides in the Administrator’s Board of Directors.21
The sole shareholder of the Administrator will be a newly-formed Canadian corporation
(the “Administrator Shareholder”) whose shares will be owned by the Chief Executive Officer of
Crius Energy LLC. The Administrator Shareholder will enter into a voting agreement with the
Trustee, as agent for the unit holders, and the Administrator, relating to the shares of the
Administrator owned by the Administrator Shareholder. Pursuant to the voting agreement, the
Administrator Shareholder will, following the IPO, agree to vote its shares in the Administrator
as directed by the Trustee, as agent for the unit holders, including in connection with the
election, appointment or removal of the directors of the Administrator. As a result, following the
IPO, the unit holders will have the power to elect, appoint or remove directors of the
Administrator by way of ordinary resolution of the unit holders. Thus, while the Administrator
will have legal authority to vote the securities owned by the Trust, the unit holders ultimately can
override that right because, acting through the Trustee, they can remove members of the
Administrator Board of Directors.
V.
REQUEST FOR AUTHORIZATION FOR THE
DISPOSITION OF JURISDICTIONAL FACILITIES
A. Description of the Proposed Transaction
This section describes the basic steps that will be taken in connection with the Exchange
Transaction, the IPO, the Acquisition, and the Cash Redemption Transaction. The purpose of the
21
Applicants believe the information pertaining to the Administrator in Section VI.A of the
Application is relevant to demonstrating that the Proposed Transaction has no effect on wholesale
competition. Specifically, the information relates to the determination of control, and therefore,
which entities involved in the Proposed Transaction will be deemed to be affiliates of the
Applicants.
13
Proposed Transaction is to consolidate the currently separate multistate retail gas and electric
marketing businesses of Public Power and REH under the umbrella of a new corporate entity,
Crius Energy LLC. In addition, through the IPO, the Proposed Transaction will infuse capital
into that entity. Finally, the Applicants’ businesses will be reorganized to create a rational
corporate framework for management of the businesses. The structure of the Proposed
Transaction is primarily driven by Canadian and U.S. tax considerations and is complex as a
result. However, for purposes of the Commission’s analysis, the transaction entails four discrete
stages, as described below.
The first stage is the Exchange Transaction, the purpose of which is to consolidate the
REH and Public Power retail operating entities under the ownership of Crius Energy LLC. After
Commission approval is obtained, but before the IPO, REH, Public Power and Crius Energy,
LLC will implement an exchange agreement, the elements of which are described in the Term
Sheet in Exhibit I. At closing, each of the REH stockholders and the Public Power members will
contribute a portion (approximately 75 percent) of their interests in Public Power and the REH
MBR Entities to Crius Energy, LLC, each in exchange for 50 percent of the Crius Energy LLC
interests. (The REH Stockholders and the Public Power Members will also retain 25 percent of
their respective ownership interests in Public Power and the REH MBR Entities (i.e., the
Retained Interests)). The exchange, thus, effects a transfer of the ownership interests in the REH
MBR Entities and Public Power to Crius Energy LLC, a disposition of interests in jurisdictional
assets for which Commission approval is required under FPA Section 203(a)(1)(A). The post-
Exchange Transaction ownership structure is shown in Exhibit C.
The second and third stages of the Proposed Transaction are the IPO and the Acquisition
of the Acquired Interest in Crius Energy LLC. Following the closing of the Exchange
14
Transaction, it is intended that a public offering will be made in Canada of units of the Trust and
members of the public will purchase the units. Assuming the IPO is completed, the proceeds of
the IPO will be used by the Trust to subscribe for additional shares of Crius Energy Holdings
Inc., which in turn will use the net proceeds to subscribe for additional shares and debt of Crius
Energy Corporation. Crius Energy Corporation will use the proceeds to acquire the Acquired
Interest in Crius Energy LLC.
As stated above, in connection with the IPO, Applicants request blanket authorization
under Section 203(a)(1) for all dispositions involving any party acquiring, either individually or
together with its affiliates, less than a ten percent interest in the Trust through ownership of its
units following the IPO. The purchasers of any units in the Trust will be members of the general
public in Canada and qualified institutional buyers in the U.S. pursuant to Rule 144A under the
Securities Act of 1933, as amended. Under the Ontario Securities Commission Rule 62-504,
disclosure of the purchase of any block of units exceeding 10 percent is required.22
If blocks of
10 percent or more are acquired, the Applicants will make a filing to disclose this information to
the Commission, and will seek FPA Section 203(a)(1) authority for the acquisition of such
blocks if required.
The fourth stage of the Proposed Transaction is the Cash Redemption Transaction. In
this stage, cash from the IPO, either in the form of loans or cash, is passed down to REH, which
will acquire the Retained Interest of the REH owners in REH, and to Crius Energy LLC, which
22
Under these Canadian securities regulations, any person who, together with persons with whom
they act jointly and in concert, beneficially owns 10 percent or more of the units in the Trust, or
has the power to control or exercise any votes attached to such units, will be required to issue and
file a public news release, as well as an “early warning report” with the Canadian securities
regulators, disclosing such ownership or control promptly after exceeding the 10 percent
threshold.
15
will acquire the Retained Interest held by the Public Power members.23
After the Cash
Redemption Transaction, Crius Energy LLC will own 100 percent of the common shares of
REH, and 100 percent of the ownership interests in Public Power, representing an increase from
pre-redemption ownership levels of 75 percent in each of REH and Public Power, respectively.
The Retained Interests in the owners of REH and Public Power will be eliminated. Applicants
request authorization under FPA Section 203(a)(1)(A) for the Cash Redemption Transaction if
and to the extent it results in a change in indirect control over the jurisdictional assets held by
Public Power and REH, respectively.24
B. Description of the Alternative Proposed Transaction
The Alternative Proposed Transaction is intended as a substitute for the Proposed
Transaction if the IPO does not occur by the IPO Expiration Date. It would achieve the same
purposes as the Proposed Transaction, with the exception of the capital raising aspect and the use
of such capital to purchase the owners’ Retained Interests in cash.
As described above, the Alternative Proposed Transaction will be pursued, after
consummation of the Exchange Transaction, if the IPO does not occur by the IPO Expiration
Date. In that case, stages two and three, as described above, will not occur. In addition, the
Retained Interests (approximately 25 percent) in REH and Public Power, respectively, will be
exchanged for additional ownership interests in Crius Energy LLC, which will be issued to the
23
It is theoretically possible that the IPO will not raise sufficient cash to purchase all of the
Retained Interests in REH and Public Power. In that event, the redemption will be made partially
for cash and partially through the issuance of additional Crius Energy LLC interests.
24
After stage four, or after the Alternative Proposed Transaction is completed, the ownership
interests in Fairpoint Energy, LLC, FTR Energy Services, LLC and Cincinnati Bell Energy,
LLC might be transferred from REH to Crius Energy LLC. Applicants believe that this
transaction would be authorized as an internal corporate reorganization under the blanket
authorization set forth in section 33.1(c)(6) of the Commission’s regulations. In the alternative,
out of an abundance of caution, Applicants seek authorization for the transaction under FPA
Section 203(a)(1).
16
REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption
will not occur.
The net effect of the Exchange Redemption will be to eliminate the Retained Interests of
the REH owners and the Public Power owners and convert them into indirect owners of such
entities (and their respective jurisdictional assets) through the transfer to them of ownership of
ownership interests in Crius Energy LLC. The percentage shares of the pre-existing owners of
Crius Energy LLC will not be changed. For this reason, it does not appear that the Exchange
Redemption will result in a change of control of the Public Power and REH jurisdictional assets.
Hence, Applicants do not believe that authorization for the Exchange Redemption is necessary.
Nevertheless, out of an abundance of caution, we seek such authorization.25
VI.
THE TRANSACTIONS ARE CONSISTENT
WITH THE PUBLIC INTEREST
Under Section 203 of the FPA, the Commission will approve a transaction if the
Commission finds that the transaction “will be consistent with the public interest.”26
In
reviewing transactions under Section 203, the Commission applies a three-part test set forth in its
Merger Policy Statement, as codified in Section 2.26 of the Commission’s regulations.27
Under
this test, the Commission examines the effect of the proposed transaction on competition, rates
and regulation. In addition, Section 203(a)(4) provides that a proposed transaction may not
“result in cross-subsidization of a non-utility associate company or the pledge or encumbrance of
25
As stated supra, for the avoidance of doubt, Applicants’ are not seeking a declaration or other
determination by the Commission on the issue of whether the Commission’s approval is required
for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989)
(“we are not making any determination whether the transfer . . . constitutes a disposition of
jurisdictional facilities under section 203.”)
26
16 U.S.C. § 824b(a)(4).
27
18 C.F.R. § 2.26 (2011).
17
utility assets for the benefit of an associate company, unless the Commission determines that the
cross-subsidization, pledge or encumbrance will be consistent with the public interest.”28
As
described below, the disposition of facilities resulting from the proposed transactions meets these
statutory standards and should be authorized by the Commission.
A. The Transactions Will Have No Adverse Effect on Competition
1. Affiliates of the Applicants
As a threshold matter, to evaluate the impact of the proposed transactions on competition
(which will be negligible, if any), one must identify the affiliates of the Applicants and discuss
their ownership or control of any energy-related businesses. The affiliates fall into three basic
categories: (i) the existing affiliates of REH, (ii) the existing affiliates of Public Power, and (iii)
the affiliates that will be created in the context of the proposed transactions.
Turning to the first category, and referring to the Pre-Transaction Ownership Structure of
REH, shown in Exhibit C, we note that any person or entity shown in Exhibit C that owns 10
percent or more of the ownership interests in an entity constitutes an affiliate under the
Commission’s definition of that term.29
None of such “10 percent” individuals or entities shown
in the exhibit own or control any energy-related businesses, other than the retail electricity and
natural gas marketer businesses owned by REH and the MBR Entities, which make no wholesale
sales other than real-time balancing transactions in real-time markets. Second, turning to Public
28
16 U.S.C. § 824b(a)(4).
29
While the definition is set forth in the market-based rate subpart of the Commission’s regulations,
Applicants believe the definition is pertinent in the context of this Application. See 18 C.F.R. §
35.36(a)(9).
In one instance, such an ownership interest is deemed “passive” because it is superseded by an
actual control arrangement. In that vein, it should be noted that control of JMEG Holdings LLC
is exclusively vested in Johny Malohn, who owns a 51 percent ownership interest in the company
and holds the position of Manager. The ownership interests of the remaining owners are passive
interests. See May 29, 2012 Letter of Viridian Energy NG, LLC in Docket No. ER12-1769.
18
Power, LLC and Exhibit C, the same is true of any “10 percent” individuals or entities—none of
them owns 10 percent or more or otherwise controls any energy-related businesses, other than
the Public Power MBR Entities’ retail and wholesale sales activities. Finally, turning to the
remaining entities described in Section IV.B of the Application,30
and except for Crius Energy
LLC,31
100 percent of each entity’s ownership interests will be owned and controlled by its
direct parent, up to the level of Crius Energy Trust, which will be owned by members of the
general public in Canada. None of these entities or their parent companies will have any
interests in energy-related businesses, other than the retail and de minimis wholesale businesses
discussed above.
2. The Collective Impact of Applicants and their Affiliates on
Competition will be Negligible.
The proposed transactions will not have an adverse effect on competition in the markets
in which the REH MBR Entities or the Public Power MBR Entities operate. Given that the REH
MBR Entities and the Public Power MBR Entities make no wholesale sales of electricity other
than real-time balancing transactions in real-time markets, the proposed transactions will not
have any impact on the wholesale electricity product market in any geographic area. Moreover,
none of the foregoing entities own or control, through power purchase agreements or otherwise,
the output of any generating facilities. Nor does any one of them own transmission facilities.
30
The Administrator arguably (out of an abundance of caution) might be considered an affiliate of
the Applicants under section 35.36(a)(9)(iii) of the Commission’s regulations. That provision
gives the Commission discretion to consider as affiliates persons who “stand in such relation to
the specified company that there is liable to be an absence of arm’s length bargaining between
them.” Although, under the foregoing provision, the Administrator might be considered an
affiliate of the Applicants, the Administrator Shareholder and the CEO of Crius Energy LLC
should not be considered affiliates of the Applicants, because their interests are rendered passive
by the authority of the unit holders acting through the Trustee. See Section IV.B.(5), supra.
31
To the extent the Public Power Members and the Regional Energy Stockholders retain ownership
interests in Crius Energy LLC, their respective affiliates are described above.
19
Section 33.3(a)(2)(i) of the Commission’s regulations states that a horizontal competitive
screen analysis is not required if the applicant “[a]ffirmatively demonstrates that the merging
entities do not currently conduct business in the same geographic markets or that the extent of
the business transactions in the same geographic markets is de minimis.”32
The analysis focuses
on business combinations that involve consolidating control over electric generating facilities,
the output of which is sold in jurisdictional wholesale markets. Neither Applicants nor Public
Power, LLC own or control any electric generating facilities. Accordingly, the proposed
transactions do not raise any horizontal market power concerns.
To the extent the proposed transactions will have any impact on competition, it will be in
retail markets in various states. The Commission stated in Order No. 642 that it will “consider
retail market issues when circumstances warrant. “However,” the Commission stated, “it is our
continuing position that our merger review should not, as a matter of course review a merger’s
impact on retail markets in that state when a state is clearly able to do so.”33
Here, the retail
competition issue is insignificant.
There are nine states in which both a Public Power MBR entity and a Viridian MBR
entity are licensed to sell electricity at retail: Connecticut, the District of Columbia, Illinois,
Maryland, Massachusetts, New Jersey, New York, Ohio and Pennsylvania. Based on 2011 retail
sales data, the combined retail sales of Public Power and Viridian in every one of these states
was less than one percent, with the exception of Connecticut, where the combined share was four
percent, and New Jersey, where the combined share was 1.5 percent. Based on these data, it is
32
18 C.F.R. § 33.3(a)(2)(i). See also Liberty Elec. Power, LLC, 110 FERC ¶ 62,152 (2005)
(approving transfer of jurisdictional facilities without requiring horizontal competitive screen
analysis where parties held only de minimis interests in relevant markets).
33
Order No. 642 at 31,919.
20
difficult to imagine that a state commission would be concerned with the impact of the proposed
transactions on retail competition.
In addition, the foregoing states require, either before or after the proposed transactions
are consummated, that the holder of an retail electricity license notify or submit information
concerning the transaction in accordance with their respective rules. If these state commissions
wish to address the proposed transactions’ impact on retail competition, if any, it is unlikely that
they would be precluded from doing so. Moreover, any state commission that is concerned
about adverse effects, if any, on retail competition would be free to intervene in this docket.
Section 33.4(a)(2)(i) of the Commission’s regulations states that a vertical competitive
analysis is not required if the applicant can affirmatively demonstrate that “[t]he merging entities
currently do not provide inputs to electricity products (i.e., upstream relevant products) and
electricity products (i.e., downstream relevant products) in the same geographic markets or that
the extent of the business transactions in the same geographic markets is de minimis.”34
The
Proposed Merger does not raise any vertical market power concerns.
Applicants do not own or control transmission facilities. Further, Applicants do not own
or control any inputs to generation. Applicants have not sought to erect barriers to entry in any
market, nor will they. Applicants do not own or control any intrastate natural gas transportation,
intrastate natural gas storage or distribution facilities, or physical coal supply sources or coal
transportation, or sites for development of electric generating facilities.
Because the proposed transactions will have no adverse effect on wholesale competition,
and because consideration of retail competition issues by the Commission is unwarranted,
Applicants request that the Commission authorize the disposition of jurisdictional facilities
34
18 C.F.R. § 33.4(a)(2)(i).
21
resulting from the proposed transactions without requiring the filing of a horizontal or a vertical
competitive screen analysis.
B. The Transactions Will Have No Adverse Effect on Rates
In assessing the effect that a proposed transaction could have on rates, the Commission’s
primary concern is “the protection of wholesale ratepayers and transmission customers.”35
Simply stated, the proposed transactions will not have an adverse effect on rates because the
Applicants have no wholesale ratepayers (other than RTOs in real-time balancing markets) or
transmission customers.
The proposed transactions will not affect the rates of any customer. Applicants sell
electricity in competitive deregulated retail markets under the oversight of the state commissions
and have no captive customers. Applicants buy electricity and sell de minimis volumes of
electricity in the competitive deregulated wholesale markets under the Commission’s oversight.
Applicants do not have any captive wholesale or retail customers. None of these arrangements
will change as a result of the proposed transactions. None of the Applicants or their affiliates
own any transmission facilities. Accordingly, the proposed transactions will have no affect on
rates paid by any power customers or transmission customers.
C. The Transactions Will Have No Adverse Effect on Regulation
The proposed transactions will not affect the manner or extent to which the Commission,
any state, or any other federal agency may regulate Applicants. Upon completion of the
proposed transactions, the Applicants will continue to be subject to the jurisdiction of this
Commission and the pertinent state utility commissions to the same extent as before the proposed
35
New England Power Co., 82 FERC ¶ 61,179 at 61,659 order on reh’g, 83 FERC ¶ 61,275 (1998).
See also Merger Policy Statement, FERC Stats. & Regs. ¶ 31,044 at 30,123 (concern is to protect
ratepayers from rate increases because of a merger).
22
transactions. As a consequence, the proposed transactions will have no adverse effect on
regulation.
D. The Transactions Will Not Result in Any Cross-Subsidization of a Non-
Utility Company or Any Pledge or Encumbrance of Utility Assets for the
Benefit of an Associate Company
FPA Section 203(a)(4) provides that the Commission shall approve the proposed
disposition if it finds that the proposed jurisdictional transaction will not result in cross-
subsidization of a non-utility associate company or pledge or encumbrance of utility assets for
the benefit of an associate company, unless the Commission finds that such cross-subsidization,
pledge or encumbrance is consistent with the public interest.36
The Commission has stated that
“the concern about cross-subsidization [in Section 203(a)(4)] is principally a concern over the
effect of a transaction on rates,”37
and that the cross-subsidization requirements in Order No. 669
“apply where a traditional public utility has captive customers (defined as wholesale or retail
electric energy customers served under cost-based regulation) and also where the public utility
owns or provides transmission service over Commission-jurisdictional transmission facilities.”38
The Commission elaborated that “a public utility selling power only pursuant to market-based
regulation will not be regarded as a ‘traditional public utility with captive customers’ and hence,
customers served at market-based rates will not be considered ‘captive customers.’”39
As noted
above, the proposed transactions will not have any adverse effect on rates because all wholesale
(if any) and retail sales of electricity by the Applicants will continue to be made at market-based
36
See 16 U.S.C. § 824b(a)(4) (2000).
37
Transactions Subject to FPA Section 203, Order No. 669, FERC Stats. & Regs. ¶ 31,200 at P 167
(2005), order on reh’g, Order No. 669-A, FERC Stats. & Regs. ¶ 31,214, order on reh’g, Order
No. 669-B, FERC Stats. & Regs. ¶ 31,225 (2006).
38
Order 669-A at P 147.
39
Id.
23
rates authorized by the Commission or in accordance with state utility commission rules.
Accordingly, no detailed examination of cross-subsidization issues is required in connection with
the proposed transactions.
The proposed transactions are within the scope of the “safe harbor” for transactions in
which “no franchised public utility with captive customers is involved in the transaction,” and
thus raise no issue with respect to cross-subsidization. Furthermore, as explained in Exhibit M,
based on facts and circumstances known to Applicants or those that are reasonably foreseeable,
and pursuant to Order Nos. 669 and 669-A, Applicants hereby verify, with respect to them and
each of their affiliates, that the proposed transactions will not result, at the time of the proposed
transactions or in the future, in: (i) any transfer of facilities between a traditional utility associate
company that has captive customers or that owns or provides transmission service over
jurisdictional facilities, and an associate company; (ii) any new issuance of securities by a
traditional public utility associate company that has captive customers or that owns or provides
transmission service over jurisdictional transmission facilities for the benefit of an associate
company; (iii) any new pledge or encumbrance of assets of a traditional public utility associate
company that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, for the benefit of an associate company; or (iv) any new
affiliate contract between a non-utility associate company and a traditional public utility
associate company that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, other than non-power goods and services agreements
subject to review under Sections 205 and 206 of the FPA.40
Applicants verify that the proposed
40
See Order No. 669 at P 169 (stating that such verifications may be accepted in lieu of any other
explanation with respect to cross-subsidization and encumbrance concerns).
24
transactions do not involve utility assets, and therefore there are no existing pledges or
encumbrances that must be disclosed under 18 C.F.R. § 33.2(j)(l)(i).
VI.
INFORMATION REQUIRED BY PART 33 OF THE
COMMISSION’S REGULATIONS
Applicants are including with this Application the Exhibits and supporting information
required by Part 33 of the Commission’s regulations.41
Consistent with Commission precedent
and as described below, Applicants request waiver of the Part 33 regulations to the extent that
such regulations request information that is not necessary to ensure that the proposed
transactions meet the statutory requirements of Section 203 of the FPA.42
A. Section 33.2(a): Names and addresses of the Applicants’ principal business
offices
The exact legal names and addresses of the Applicants are:43
Public Power, LLC
39 Old Ridgebury Rd.
Suite 14
Danbury, CT 06810
Public Power & Utility of Maryland, LLC
39 Old Ridgebury Rd.
Suite 14
Danbury, CT 06810
Public Power & Utility of NY, Inc.
39 Old Ridgebury Rd.
Suite 14
Danbury, CT 06810
41
18 C.F.R. §§ 33.2-33.4 (2011).
42
See, e.g., MACH Gen, LLC, 113 FERC ¶ 61,138 (2005); Boston Generating, LLC, 113 FERC ¶
61,109 (2005); La Paloma Holding Co., LLC, 112 FERC ¶ 61,052 (2005); Lake Road Holding
Co., LLC, 112 FERC ¶ 61,051 (2005).
43
The address of Crius Energy LLC will be 1055 Washington Boulevard, Suite 700, Stamford, CT
06901.
25
Public Power & Utility of New Jersey, LLC
39 Old Ridgebury Rd.
Suite 14
Danbury, CT 06810
Public Power, LLC (Pennsylvania)
39 Old Ridgebury Rd.
Suite 14
Danbury, CT 06810
Regional Energy Holdings Inc.
64 North Main Street
Norwalk, CT 06854
Viridian Energy, Inc.
64 North Main Street
Norwalk, CT 06854
Viridian Energy PA, LLC
64 North Main Street
Norwalk, CT 06854
Viridian Energy NY, LLC
64 North Main Street
Norwalk, CT 06854
Cincinnati Bell Energy, LLC
64 North Main Street
Norwalk, CT 06854
FTR Energy Services, LLC
64 North Main Street
Norwalk, CT 06854
Fairpoint Energy, LLC
64 North Main Street
Norwalk, CT 06854
B. Section 33.2(b): Names, addresses, phone numbers, fax numbers, and e-mail
addresses of persons authorized to receive notice and communications
regarding this Application
Applicants request that the persons listed in Section III, above, be placed on the official
service list for this proceeding.
26
C. Section 33.2(c): Description of the Applicants, including:
1. All business activities of the Applicants, including authorizations by
charter or regulatory approval
Section IV of this Application sets forth a general description of the Applicants and their
business activities. Accordingly, Applicants request waiver of the requirement to file Exhibit A.
2. A list of all energy subsidiaries and energy affiliates, percentage
ownership interest in such subsidiaries and affiliates, and a
description of the primary business in which each is engaged.
Information pertaining to Applicants is provided in Section IV of this Application and in
the attached Exhibit B.
3. Organizational charts depicting the Applicants’ current and proposed
post-transaction corporate structures.
Organizational charts illustrating the current and post transaction ownership structures of
Applicants are attached as Exhibit C.
4. Description of all joint ventures, strategic alliances, tolling
arrangements or other business arrangements, including transfers of
operational control of transmission facilities to Commission approved
Regional Transmission Organizations, both current, and planned to
occur within a year from the date of filing, to which the Applicants or
their parent companies, energy subsidiaries, and energy affiliates is a
party, unless the Applicants demonstrate that the proposed
transaction does not affect any of its business interests.
Applicants request waiver of the requirement to file Exhibit D, to the extent otherwise
deemed necessary, as the proposed transactions will not affect any business interests, except as
described herein.
5. Identity of all common officers or directors of parties to the proposed
transaction.
This information is provided in Exhibit E.
6. Description and locations of wholesale power sales customers and
unbundled transmission services customers served by the Applicants
or parent companies, subsidiaries, affiliates and associate companies.
27
Applicants have no existing wholesale power sales customers, other than RTOs in real-
time balancing markets, and provide no unbundled transmission services. Accordingly, to the
extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit
F.
D. Section 33.2(d): Description of the jurisdictional facilities owned, operated,
or controlled by the Applicants
The Applicants’ jurisdictional facilities are their market-based rate authorizations and
associated books and records. Accordingly, to the extent otherwise deemed necessary,
Applicants request waiver of the requirement to file Exhibit G.
E. Section 33.2(e): A narrative description of the proposed transaction for
which Commission authorization is requested
This information is set forth in Section V, above, and the Term Sheet included in
confidential Exhibit I. Therefore, Applicants request waiver of the requirement to file Exhibit H.
F. Section 33.2(f): Contracts related to the Transaction
A Term Sheet included in confidential Exhibit I describes the proposed transactions. The
proposed transactions will not deviate in any material manner from the Term Sheet included in
Exhibit I. Pursuant to Section 388.112 of the Commission’s regulations, as discussed in Section
II, above, Applicants request privileged and confidential treatment of Exhibit I. Applicants also
request waiver of the requirements of Section 33.2(f) of the Commission’s regulations to the
extent that they would require any other documents to be submitted in confidential Exhibit I.
G. Section 33.2(g): Statement explaining the facts relied upon to demonstrate
that the Transaction is consistent with the public interest
The facts relied upon to show that the disposition of facilities resulting from the proposed
transactions is consistent with the public interest are set forth in Section VI of this Application.
Accordingly, Applicants request waiver of the requirement to file Exhibit J.
28
H. Section 33.2(h): Physical property
A map would not provide the Commission with information relevant to the proposed
transactions. Therefore, Applicants request waiver of the requirement to file Exhibit K.
I. Section 33.2(i): Status of actions before other regulatory bodies
No approvals are needed from any other regulatory bodies. Therefore, Applicants request
waiver of the requirement to file Exhibit L.
J. Section 33.2(j): Cross-subsidization, pledge, or encumbrance
Applicants’ explanation as to how the proposed transactions will not result in cross-
subsidization of a non-utility associate company or pledge or encumbrance of utility assets for
the benefit of an associate company is found in Section VI.D and Exhibit M.
VII.
PROPOSED ACCOUNTING ENTRIES
Applicants are not including accounting entries showing the effect of the proposed
transactions on account balances because Applicants are not required to maintain their books and
records in accordance with the Commission’s Uniform System of Accounts.
VIII.
VERIFICATION
An authorized representative of each of the Applicants has provided the verification
required under § 33.7 of the Commission’s regulations44
in Attachment 2.
IX.
CONCLUSION
For the reasons stated herein, Applicants request that the Commission issue an order no
later than August 20, 2012 authorizing the proposed transactions and granting waivers of its Part
44
18 C.F.R. § 33.7 (2011).
29
33 filing requirements to the extent that the information required by Part 33 is not necessary to
determine that the proposed transactions meet the statutory requirements of FPA Section 203.
Respectfully submitted,
/s/ Kenneth G. Hurwitz /s/ Gerit F. Hull
Kenneth G. Hurwitz, Partner Gerit F. Hull, Member
Haynes and Boone, LLP Eckert Seamans Cherin & Mellott, LLC
1615 L Street, NW, Suite 800 Suite 1200
Washington, DC 20036 1717 Pennsylvania Avenue, N.W.
(202) 654-4521 Washington, DC 20006
ken.hurwitz@haynesboone.com (202) 659-6657
Counsel for Regional Energy Holdings, Inc. ghull@eckertseamans.com
and its subsidiaries Counsel for Public Power, LLC
and its subsidiaries
July 20, 2012
EXHIBIT B
RELEVANT ENERGY-RELATED SUBSIDIARIES AND AFFILIATES OF
REGIONAL ENERGY HOLDINGS, INC. AND PUBLIC POWER, LLC
Other than the REH MBR Entities, the Public Power MBR Entities, and Viridian
Network, LLC (described in Section IV.A.2, above), REH and Public Power have no energy-
related subsidiaries.
EXHIBIT C
ORGANIZATIONAL CHARTS
C-1
Notes:
Market-based rate applications are pending at the Commission for Public Power, LLC (Pennsylvania), Public Power & Utility of NY, Inc.,
Public Power & Utility of Maryland, LLC, and Public Power & Utility of New Jersey, LLC.
In each of the boxes above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in the
relevant subsidiary.
C-2
Note:
Control of the business and affairs of JMEG Holdings, LLC is exclusively vested in an individual, Johny Malohn, who is Manager of
and owns a 51 percent ownership interest in the company. The remaining owners’ respective ownership interests in JMEG Holdings
are merely passive.
In the box above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in REH.
C-3
Notes:
In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Public Power, LLC and 47.5 percent
of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Public
Power, LLC or Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1.
In the box above labeled “Regional Energy Shareholders,” no person or entity owns 10 percent or more of the voting shares of
Regional Energy Holdings, Inc. or Crius Energy LLC.
C-4
Notes:
In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Crius Energy LLC, but otherwise no
person or entity no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The
ownership of GF Power I, LLC will be the same as shown on the chart on page C-1.
In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership
interests in Crius Energy LLC.
C-5
Notes:
In the box above labeled “Public Power Members,” GF Power I, LLC will own 47.5 percent of Crius Energy LLC, but otherwise no
person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I,
LLC will be the same as shown on the chart on page C-1.
In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership
interests in Crius Energy LLC.
EXHIBIT E
COMMON OFFICERS AND DIRECTORS
Regional Energy Holdings, Inc. and Public Power, LLC are the parties to the proposed
transaction. There are no common officers or directors among (i) REH and any of its current
affiliates and subsidiaries, and (ii) Public Power and any of its current affiliates and subsidiaries.
EXHIBIT I
TRANSACTION AGREEMENTS
PUBLIC VERSION
**************************************************
PRIVILEGED, PROTECTED, CONFIDENTIAL
INFORMATION HAS BEEN REMOVED
**************************************************
EXHIBIT M
STATEMENT REGARDING CROSS-SUBSIDIZATION
As demonstrated in Section V.D of the Application and incorporated by reference into
this Exhibit M, the proposed transactions raise no issues concerning cross-subsidization.
The Applicants verify with respect to themselves, based on facts and circumstances
known to them or that are reasonably foreseeable, that the proposed transactions will not result
in, at the time of the proposed transactions or in the future:
(1) any transfers of facilities between a traditional public utility associate company
that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, and an associate company;
(2) any new issuances of securities by a traditional public utility associate company
that has captive customers or that owns or provides transmission service over
jurisdictional transmission facilities, for the benefit of an associate company;
(3) any new pledge or encumbrance of assets of a traditional public utility associate
company that has captive customers or that owns or provides transmission service
over jurisdictional transmission facilities, for the benefit of an associate company;
or
(4) any new affiliate contracts between a non-utility associate company and a
traditional public utility associate company that has captive customers or that own
or provide transmission service over jurisdictional transmission facilities, other
than non-power goods and services agreements subject to review under Sections
205 and 206 of the Federal Power Act.
ATTACHMENT 1
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Public Power, LLC ) Docket No. EC12-___-000
Regional Energy Holdings, Inc. )
PROTECTIVE ORDER
(Issued ____________, 20__)
1. This Protective Order shall govern the use of all Protected Materials produced by, or on behalf
of, any Participant. Notwithstanding any order terminating this proceeding, this Protective Order
shall remain in effect until specifically modified or terminated by the Presiding Administrative
Law Judge (“Presiding Judge”) or the Federal Energy Regulatory Commission (“Commission”).
2. This Protective Order applies to the following two categories of materials: (A) A Participant
may designate as protected those materials which customarily are treated by that Participant as
sensitive or proprietary, which are not available to the public, and which, if disclosed freely,
would subject that Participant or its customers to risk of competitive disadvantage or other
business injury; and (B) A Participant shall designate as protected those materials which contain
critical energy infrastructure information, as defined in 18 C.F.R. § 388.113(c)(1) (“Critical
Energy Infrastructure Information”).
3. Definitions -- For purposes of this Order:
(a) The term “Participant” shall mean Public Power, LLC (“Public Power”) and Regional
Energy Holdings, Inc. (the “Applicants”), any person or entity contemplating intervening
in this proceeding to whom Protected Materials are provided by the Applicant or its
affiliates prior to such intervention, and a Participant as defined in 18 C.F.R. §
385.102(b).
(b)(1) The term “Protected Materials” means (A) materials (including depositions)
provided by a Participant as part of any application or other pleading filed with the
Commission or in response to discovery requests, and designated by such Participant as
protected; (B) any information contained in or obtained from such designated materials;
(C) any other materials which are made subject to this Protective Order by the Presiding
Judge, by the Commission, by any court or other body having appropriate authority, or by
agreement of the Participants; (D) notes of Protected Materials; and (E) copies of
Protected Materials. The Participant producing the Protected Materials shall physically
mark them on each page as “CONTAINS PRIVILEGED INFORMATION––DO NOT
RELEASE” or “PROTECTED MATERIALS” or with words of similar import as long as
the term “Protected Materials” is included in that designation to indicate that they are
Protected Materials. If the Protected Materials contain Critical Energy Infrastructure
Information, the Participant producing such information shall additionally mark on each
page containing such information the words “Contains Critical Energy Infrastructure
Information––Do Not Release.”
2
(2) The term “Notes of Protected Materials” means memoranda, handwritten notes, or
any other form of information (including electronic form) which copies or discloses
materials described in Paragraphs 3(b)(1) or 5. Notes of Protected Materials are subject to
the same restrictions provided in this order for Protected Materials except as specifically
provided in this order.
(3) Protected Materials shall not include (A) any information or document contained in
the files of the Commission, or any other federal or state agency, or any federal or state
court, unless the information or document has been determined to be protected by such
agency or court, or (B) information that is public knowledge, or which becomes public
knowledge, other than through disclosure in violation of this Protective Order, or (C) any
information or document labeled as “Non-Internet Public” by a Participant, in accordance
with Paragraph 30 of FERC Order No. 630, FERC Stats. & Regs. ¶ 31,140. Protected
Materials do include any information or document contained in the files of the
Commission that has been designated as Critical Energy Infrastructure Information.
(c) The term “Non-Disclosure Certificate” shall mean the certificate annexed hereto by
which Participants who have been granted access to Protected Materials shall certify their
understanding that such access to Protected Materials is provided pursuant to the terms
and restrictions of this Protective Order, and that such Participants have read the
Protective Order and agree to be bound by it. All Non- Disclosure Certificates shall be
served on all parties on the official service list maintained by the Secretary in this
proceeding.
(d) The term “Reviewing Representative” shall mean a person who has signed a Non-
Disclosure Certificate and who is:
(1) Commission Litigation Staff;
(2) an attorney who has made an appearance in this proceeding for a Participant;
(3) an attorney, paralegal, or other employee associated for purposes of this case
with an attorney described in Paragraph (2);
(4) an expert or an employee of an expert retained by a Participant for the purpose
of advising, preparing for or testifying in this proceeding;
(5) a person designated as a Reviewing Representative by order of the Presiding
Judge or the Commission; or
(6) an employee or other representative of Participants appearing in this
proceeding with significant responsibility for this docket.
4. Protected Materials shall be made available under the terms of this Protective Order only to
Participants and only through their Reviewing Representatives as provided in Paragraphs 7-9.
3
5. Protected Materials shall remain available to Participants until the later of the date that an
order terminating this proceeding becomes no longer subject to judicial review, or the date that
any other Commission proceeding relating to the Protected Material is concluded and no longer
subject to judicial review. If requested to do so in writing after that date, the Participants shall,
within fifteen days of such request, return the Protected Materials (excluding Notes of Protected
Materials) to the Participant that produced them, or shall destroy the materials, except that copies
of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and
Notes of Protected Material may be retained, if they are maintained in accordance with
Paragraph 6, below. Within such time period each Participant, if requested to do so, shall also
submit to the producing Participant an affidavit stating that, to the best of its knowledge, all
Protected Materials and all Notes of Protected Materials have been returned or have been
destroyed or will be maintained in accordance with Paragraph 6. To the extent Protected
Materials are not returned or destroyed, they shall remain subject to the Protective Order.
6. All Protected Materials shall be maintained by the Participant in a secure place. Access to
those materials shall be limited to those Reviewing Representatives specifically authorized
pursuant to Paragraphs 8-9. The Secretary shall place any Protected Materials filed with the
Commission in a non-public file. By placing such documents in a nonpublic file, the
Commission is not making a determination of any claim of privilege. The Commission retains
the right to make determinations regarding any claim of privilege and the discretion to release
information necessary to carry out its jurisdictional responsibilities. For documents submitted to
Commission Litigation Staff (“Staff”), Staff shall follow the notification procedures of 18 C.F.R.
§ 388.112 before making public any Protected Materials.
7. Protected Materials shall be treated as confidential by each Participant and by the Reviewing
Representative in accordance with the certificate executed pursuant to Paragraph 9. Protected
Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they
be disclosed in any manner to any person except a Reviewing Representative who is engaged in
the conduct of this proceeding and who needs to know the information in order to carry out that
person’s responsibilities in this proceeding. Reviewing Representatives may make copies of
Protected Materials, but such copies become Protected Materials. Reviewing Representatives
may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if
they disclose the contents of Protected Materials.
8. (a) If a Reviewing Representative’s scope of employment includes the marketing of energy,
the direct supervision of any employee or employees whose duties include the marketing of
energy, the provision of consulting services to any person whose duties include the marketing of
energy, or the direct supervision of any employee or employees whose duties include the
marketing of energy, such Reviewing Representative may not use information contained in any
Protected Materials obtained through this proceeding to give any Participant or any competitor of
any Participant a commercial advantage.
(b) In the event that a Participant wishes to designate as a Reviewing Representative a person not
described in Paragraph 3 (d) above, the Participant shall seek agreement from the Participant
providing the Protected Materials. If an agreement is reached that person shall be a Reviewing
4
Representative pursuant to Paragraphs 3(d) above with respect to those materials. If no
agreement is reached, the Participant shall submit the disputed designation to the Presiding Judge
for resolution.
9. (a) A Reviewing Representative shall not be permitted to inspect, participate in discussions
regarding, or otherwise be permitted access to Protected Materials pursuant to this Protective
Order unless that Reviewing Representative has first executed a Non- Disclosure Certificate
provided that if an attorney qualified as a Reviewing Representative has executed such a
certificate, the paralegals, secretarial and clerical personnel under the attorney’s instruction,
supervision or control need not do so. A copy of each Non- Disclosure Certificate shall be
provided to counsel for the Participant asserting confidentiality prior to disclosure of any
Protected Material to that Reviewing Representative.
(b) Attorneys qualified as Reviewing Representatives are responsible for ensuring that persons
under their supervision or control comply with this order.
10. Any Reviewing Representative may disclose Protected Materials to any other Reviewing
Representative as long as the disclosing Reviewing Representative and the receiving Reviewing
Representative both have executed a Non-Disclosure Certificate. In the event that any Reviewing
Representative to whom the Protected Materials are disclosed ceases to be engaged in these
proceedings, or is employed or retained for a position whose occupant is not qualified to be a
Reviewing Representative under Paragraph 3(d), access to Protected Materials by that person
shall be terminated. Even if no longer engaged in this proceeding, every person who has
executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this
Protective Order and the certification.
11. Subject to Paragraph 17, the Presiding Administrative Law Judge or the Commission shall
resolve any disputes arising under this Protective Order. Prior to presenting any dispute under
this Protective Order to the Presiding Administrative Law Judge or the Commission, the parties
to the dispute shall use their best efforts to resolve it. Any participant that contests the
designation of materials as protected shall notify the party that provided the protected materials
by specifying in writing the materials whose designation is contested. This Protective Order shall
automatically cease to apply to such materials five (5) business days after the notification is
made unless the designator, within said 5-day period, files a motion with the Presiding
Administrative Law Judge or the Commission, with supporting affidavits, demonstrating that the
materials should continue to be protected. In any challenge to the designation of materials as
protected, the burden of proof shall be on the participant seeking protection. If the Presiding
Administrative Law Judge or the Commission finds that the materials at issue are not entitled to
protection, the procedures of Paragraph 17 shall apply. The procedures described above shall not
apply to protected materials designated by a Participant as Critical Energy Infrastructure
Information. Materials so designated shall remain protected and subject to the provisions of this
Protective Order, unless a Participant requests and obtains a determination from the
Commission’s Critical Energy Infrastructure Information Coordinator that such materials need
not remain protected.
5
12. All copies of all documents reflecting Protected Materials, including the portion of the
hearing testimony, exhibits, transcripts, briefs and other documents which refer to Protected
Materials, shall be filed and served in sealed envelopes or other appropriate containers endorsed
to the effect that they are sealed pursuant to this Protective Order. Such documents shall be
marked “PROTECTED MATERIALS” or “CONTAINS PRIVILEGED INFORMATION-DO
NOT RELEASE” and shall be filed under seal and served under seal upon the Presiding Judge
and all Reviewing Representatives who are on the service list. Such documents containing
Critical Energy Infrastructure Information shall be additionally marked “Contains Critical
Energy Infrastructure Information - Do Not Release.” For anything filed under seal, redacted
versions or, where an entire document is protected, a letter indicating such, will also be filed with
the Commission and served on all parties on the service list and the Presiding Judge. Counsel for
the producing Participant shall provide to all Participants who request the same, a list of
Reviewing Representatives who are entitled to receive such material. Counsel shall take all
reasonable precautions necessary to assure that Protected Materials are not distributed to
unauthorized persons.
13. If any Participant desires to include, utilize or refer to any Protected Materials or information
derived therefrom in testimony or exhibits during the hearing in these proceedings in such a
manner that might require disclosure of such material to persons other than reviewing
representatives, such participant shall first notify both counsel for the disclosing participant and
the Presiding Judge of such desire, identifying with particularity each of the Protected Materials.
Thereafter, use of such Protected Material will be governed by procedures determined by the
Presiding Judge. Nothing in this Protective Order shall be construed as precluding any
Participant from objecting to the use of Protected Materials on any legal grounds.
14. Nothing in this Protective Order shall preclude any Participant from requesting the Presiding
Judge, the Commission, or any other body having appropriate authority, to find that this
Protective Order should not apply to all or any materials previously designated as Protected
Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this
Protective Order as circumstances warrant at any time during the course of this proceeding.
15. Each party governed by this Protective Order has the right to seek changes in it as
appropriate from the Presiding Judge or the Commission.
16. All Protected Materials filed with the Commission, the Presiding Judge, or any other judicial
or administrative body, in support of, or as a part of, a motion, other pleading, brief, or other
document, shall be filed and served in sealed envelopes or other appropriate containers bearing
prominent markings indicating that the contents include Protected Materials subject to this
Protective Order. Such documents containing Critical Energy Infrastructure Information shall be
additionally marked “Contains Critical Energy Infrastructure Information – Do Not Release.”
17. If the Presiding Judge finds at any time in the course of this proceeding that all or part of the
Protected Materials need not be protected, those materials shall, nevertheless, be subject to the
protection afforded by this Protective Order for three (3) business days from the date of issuance
of the Presiding Judge’s decision, and if the Participant seeking protection files an interlocutory
appeal or requests that the issue be certified to the Commission, for an additional seven (7)
6
business days. None of the Participants waives its rights to seek additional administrative or
judicial remedies after the Presiding Judge’s decision respecting Protected Materials or
Reviewing Representatives, or the Commission’s denial of any appeal thereof. The provisions of
18 C.F.R. §§ 388.112 and 388.113 shall apply to any requests for Protected Materials in the files
of the Commission under the Freedom of Information Act. (5 U.S.C. § 552).
18. Nothing in this Protective Order shall be deemed to preclude any Participant from
independently seeking through discovery in any other administrative or judicial proceeding
information or materials produced in this proceeding under this Protective Order.
19. None of the Participants waives the right to pursue any other legal or equitable remedies that
may be available in the event of actual or anticipated disclosure of Protected Materials.
20. The contents of Protected Materials or any other form of information that copies or discloses
Protected Materials shall not be disclosed to anyone other than in accordance with this Protective
Order and shall be used only in connection with this (these) proceeding(s). Any violation of this
Protective Order and of any Non- Disclosure Certificate executed hereunder shall constitute a
violation of an order of the Commission.
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Public Power, LLC ) Docket No. EC12-___-000
Regional Energy Holdings, Inc. )
NON-DISCLOSURE CERTIFICATE
I hereby certify my understanding that access to Protected Materials is provided to me pursuant
to the terms and restrictions of the Protective Order in this proceeding, that I have been given a
copy of and have read the Protective Order, and that I agree to be bound by it. I understand that
the contents of the Protected Materials, any notes or other memoranda, or any other form of
information that copies or discloses Protected Materials shall not be disclosed to anyone other
than in accordance with that Protective Order. I acknowledge that a violation of this certificate
constitutes a violation of an order of the Federal Energy Regulatory Commission.
By:
Title:
Representing:
Date:
ATTACHMENT 2
2012.07.23 letter to ferc detailing acquisition
2012.07.23 letter to ferc detailing acquisition

Recomendados

Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13 por
Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13
Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13Martin Merritt
526 visualizações8 slides
UCC Basics 101-United Corporate Services, Inc. por
UCC Basics 101-United Corporate Services, Inc.UCC Basics 101-United Corporate Services, Inc.
UCC Basics 101-United Corporate Services, Inc.UCSConnect
1K visualizações23 slides
Full text of the Supreme Court's 6-3 Obamacare ruling por
Full text of the Supreme Court's 6-3 Obamacare rulingFull text of the Supreme Court's 6-3 Obamacare ruling
Full text of the Supreme Court's 6-3 Obamacare rulingDaniel Roth
20.5K visualizações47 slides
MBA Compliance Essentials Successor-In-Interest State Report - California por
MBA Compliance Essentials Successor-In-Interest State Report - CaliforniaMBA Compliance Essentials Successor-In-Interest State Report - California
MBA Compliance Essentials Successor-In-Interest State Report - CaliforniaMBAMortgage
354 visualizações11 slides
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N... por
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N...Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N...
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N...NationalUnderwriter
488 visualizações8 slides
SBA COMMENTS B-408633 por
SBA   COMMENTS   B-408633SBA   COMMENTS   B-408633
SBA COMMENTS B-408633Keven Barnes
108 visualizações8 slides

Mais conteúdo relacionado

Mais procurados

Complaint American Bar Association V. Federal Trade Commission por
Complaint   American Bar Association V. Federal Trade CommissionComplaint   American Bar Association V. Federal Trade Commission
Complaint American Bar Association V. Federal Trade Commissionlawjack
578 visualizações20 slides
Dick Hargis Presentation June 2011 Legal Update por
Dick Hargis Presentation June 2011 Legal UpdateDick Hargis Presentation June 2011 Legal Update
Dick Hargis Presentation June 2011 Legal UpdateHouston Association of REALTORS®
253 visualizações16 slides
10000000015 por
1000000001510000000015
10000000015Randall Reese
482 visualizações477 slides
UCC-1 Financing Statements Presentation 2019-02 por
UCC-1 Financing Statements Presentation 2019-02UCC-1 Financing Statements Presentation 2019-02
UCC-1 Financing Statements Presentation 2019-02Mark Ufford
305 visualizações16 slides
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ... por
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...Patton Boggs LLP
374 visualizações7 slides
Whole IF Presentation2014 por
Whole IF Presentation2014Whole IF Presentation2014
Whole IF Presentation2014Kenneth Weine
748 visualizações106 slides

Mais procurados(19)

Complaint American Bar Association V. Federal Trade Commission por lawjack
Complaint   American Bar Association V. Federal Trade CommissionComplaint   American Bar Association V. Federal Trade Commission
Complaint American Bar Association V. Federal Trade Commission
lawjack578 visualizações
10000000015 por Randall Reese
1000000001510000000015
10000000015
Randall Reese482 visualizações
UCC-1 Financing Statements Presentation 2019-02 por Mark Ufford
UCC-1 Financing Statements Presentation 2019-02UCC-1 Financing Statements Presentation 2019-02
UCC-1 Financing Statements Presentation 2019-02
Mark Ufford305 visualizações
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ... por Patton Boggs LLP
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...
MEMO: Preemption Rules Applicable to Banks and Thrift Institutions After the ...
Patton Boggs LLP374 visualizações
Whole IF Presentation2014 por Kenneth Weine
Whole IF Presentation2014Whole IF Presentation2014
Whole IF Presentation2014
Kenneth Weine748 visualizações
Two New Acts Expand Agency Debarment and Suspension Authority por Patton Boggs LLP
Two New Acts Expand Agency Debarment and Suspension Authority Two New Acts Expand Agency Debarment and Suspension Authority
Two New Acts Expand Agency Debarment and Suspension Authority
Patton Boggs LLP117 visualizações
FCRA Supplemental Training Guide por ZachAttack9
FCRA Supplemental Training GuideFCRA Supplemental Training Guide
FCRA Supplemental Training Guide
ZachAttack9413 visualizações
Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea... por Chuck Stanley
Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea...Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea...
Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea...
Chuck Stanley40 visualizações
Reverse and Forward Triangular Mergers por Roger Royse
Reverse and Forward Triangular MergersReverse and Forward Triangular Mergers
Reverse and Forward Triangular Mergers
Roger Royse2.5K visualizações
Chapter 9 and PREPA: it’s in the agreement. And the precedent por Maria de los Angeles TRIGO
Chapter 9 and PREPA: it’s in the agreement. And the precedentChapter 9 and PREPA: it’s in the agreement. And the precedent
Chapter 9 and PREPA: it’s in the agreement. And the precedent
Maria de los Angeles TRIGO606 visualizações
10000000029 por Randall Reese
1000000002910000000029
10000000029
Randall Reese272 visualizações
Ferc approval of nextera hei por Honolulu Civil Beat
Ferc approval of nextera heiFerc approval of nextera hei
Ferc approval of nextera hei
Honolulu Civil Beat1.3K visualizações
Nrmla letter ab793 por eecker
Nrmla letter ab793Nrmla letter ab793
Nrmla letter ab793
eecker387 visualizações
Will Cannabis Banking Pass with the Defense Spending Bill? por Evergreen Buzz
Will Cannabis Banking Pass with the Defense Spending Bill?Will Cannabis Banking Pass with the Defense Spending Bill?
Will Cannabis Banking Pass with the Defense Spending Bill?
Evergreen Buzz66 visualizações
Oklahoma May Legalize Weed in 2022 por Evergreen Buzz
Oklahoma May Legalize Weed in 2022Oklahoma May Legalize Weed in 2022
Oklahoma May Legalize Weed in 2022
Evergreen Buzz78 visualizações
17 stipulation to dismiss with prejudice and order por Honolulu Civil Beat
17 stipulation to dismiss with prejudice and order17 stipulation to dismiss with prejudice and order
17 stipulation to dismiss with prejudice and order
Honolulu Civil Beat2.1K visualizações
10000000030 por Randall Reese
1000000003010000000030
10000000030
Randall Reese212 visualizações

Similar a 2012.07.23 letter to ferc detailing acquisition

Federal Procurement Updates June 2010 por
Federal Procurement Updates June 2010Federal Procurement Updates June 2010
Federal Procurement Updates June 2010fkenniasty
352 visualizações36 slides
RFP Document for Grid Connected Solar Power Project in Chhattisgarh por
RFP Document for Grid Connected Solar Power Project in ChhattisgarhRFP Document for Grid Connected Solar Power Project in Chhattisgarh
RFP Document for Grid Connected Solar Power Project in ChhattisgarhHeadway Solar
1.5K visualizações70 slides
PW Ventures Vs Nichols por
PW Ventures Vs NicholsPW Ventures Vs Nichols
PW Ventures Vs Nicholsjhoysradt
802 visualizações6 slides
Buntrock Ross por
Buntrock RossBuntrock Ross
Buntrock RossCarl Ford
232 visualizações15 slides
Municipal Cable Francshise Transfer Toolkit por
Municipal Cable Francshise Transfer ToolkitMunicipal Cable Francshise Transfer Toolkit
Municipal Cable Francshise Transfer ToolkitBest Best and Krieger LLP
545 visualizações5 slides
Power supply regulation_28.9 por
Power supply regulation_28.9Power supply regulation_28.9
Power supply regulation_28.9Manoj kumar Rana
253 visualizações11 slides

Similar a 2012.07.23 letter to ferc detailing acquisition(20)

Federal Procurement Updates June 2010 por fkenniasty
Federal Procurement Updates June 2010Federal Procurement Updates June 2010
Federal Procurement Updates June 2010
fkenniasty352 visualizações
RFP Document for Grid Connected Solar Power Project in Chhattisgarh por Headway Solar
RFP Document for Grid Connected Solar Power Project in ChhattisgarhRFP Document for Grid Connected Solar Power Project in Chhattisgarh
RFP Document for Grid Connected Solar Power Project in Chhattisgarh
Headway Solar1.5K visualizações
PW Ventures Vs Nichols por jhoysradt
PW Ventures Vs NicholsPW Ventures Vs Nichols
PW Ventures Vs Nichols
jhoysradt802 visualizações
Buntrock Ross por Carl Ford
Buntrock RossBuntrock Ross
Buntrock Ross
Carl Ford232 visualizações
Power supply regulation_28.9 por Manoj kumar Rana
Power supply regulation_28.9Power supply regulation_28.9
Power supply regulation_28.9
Manoj kumar Rana253 visualizações
Motion to Intervene in ET Rover Pipeline Application for Eminent Domain befor... por Marcellus Drilling News
Motion to Intervene in ET Rover Pipeline Application for Eminent Domain befor...Motion to Intervene in ET Rover Pipeline Application for Eminent Domain befor...
Motion to Intervene in ET Rover Pipeline Application for Eminent Domain befor...
Marcellus Drilling News2.2K visualizações
jonnie williams premanent injunction por stockfraudfinder
 jonnie williams premanent injunction jonnie williams premanent injunction
jonnie williams premanent injunction
stockfraudfinder261 visualizações
10000000012 por Randall Reese
1000000001210000000012
10000000012
Randall Reese369 visualizações
Consumer advocate por Honolulu Civil Beat
Consumer advocateConsumer advocate
Consumer advocate
Honolulu Civil Beat1.3K visualizações
Renewable energy for non profits sec50 por Hilts3
Renewable energy for non profits sec50Renewable energy for non profits sec50
Renewable energy for non profits sec50
Hilts3726 visualizações
Mediacom executives almost arrested for signal theft? por Kraig Beahn
Mediacom executives almost arrested for signal theft?Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Kraig Beahn1.1K visualizações
Purchasing Power produced by Small Modular Reactors VT por E.S.G. JR. Consulting, Inc.
Purchasing Power produced by Small Modular Reactors   VTPurchasing Power produced by Small Modular Reactors   VT
Purchasing Power produced by Small Modular Reactors VT
E.S.G. JR. Consulting, Inc.474 visualizações
2. yap-v-commission-on-audit por karlcredo1
2. yap-v-commission-on-audit2. yap-v-commission-on-audit
2. yap-v-commission-on-audit
karlcredo163 visualizações
Public Citizen Petition to FERC to Establish Office of Public Participation por Marcellus Drilling News
Public Citizen Petition to FERC to Establish Office of Public ParticipationPublic Citizen Petition to FERC to Establish Office of Public Participation
Public Citizen Petition to FERC to Establish Office of Public Participation
Marcellus Drilling News606 visualizações
Chicago Daily Law Bulletin - Legal-malpractice suit can advance in case of m por Paul Porvaznik
Chicago Daily Law Bulletin - Legal-malpractice suit can advance in case of mChicago Daily Law Bulletin - Legal-malpractice suit can advance in case of m
Chicago Daily Law Bulletin - Legal-malpractice suit can advance in case of m
Paul Porvaznik556 visualizações
C.08-12 CS admitted for analysis acquisition authorization request between AM... por Superintendencia de Competencia
C.08-12 CS admitted for analysis acquisition authorization request between AM...C.08-12 CS admitted for analysis acquisition authorization request between AM...
C.08-12 CS admitted for analysis acquisition authorization request between AM...
Superintendencia de Competencia181 visualizações
Breyer Group PLC and Others 2015 por Matheson Law Firm
Breyer Group PLC and Others 2015Breyer Group PLC and Others 2015
Breyer Group PLC and Others 2015
Matheson Law Firm429 visualizações
Patriot coal backstop purchase agreement por Randall Reese
Patriot coal backstop purchase agreementPatriot coal backstop purchase agreement
Patriot coal backstop purchase agreement
Randall Reese820 visualizações

Mais de Hindenburg Research

Questions For Tingo por
Questions For TingoQuestions For Tingo
Questions For TingoHindenburg Research
2.5K visualizações4 slides
Osirius Group LLC vs. Ideanomics por
Osirius Group LLC vs. IdeanomicsOsirius Group LLC vs. Ideanomics
Osirius Group LLC vs. IdeanomicsHindenburg Research
299 visualizações10 slides
Criminal Indictment Matt Beasley.pdf por
Criminal Indictment Matt Beasley.pdfCriminal Indictment Matt Beasley.pdf
Criminal Indictment Matt Beasley.pdfHindenburg Research
169 visualizações6 slides
Acuitas Capital vs. Ideanomics por
Acuitas Capital vs. IdeanomicsAcuitas Capital vs. Ideanomics
Acuitas Capital vs. IdeanomicsHindenburg Research
799 visualizações21 slides
Adani Green Energy Limited Offering Circular.pdf por
Adani Green Energy Limited Offering Circular.pdfAdani Green Energy Limited Offering Circular.pdf
Adani Green Energy Limited Offering Circular.pdfHindenburg Research
5.8K visualizações909 slides
Milestone Tradelinks Phone Number (Pg.1) por
Milestone Tradelinks Phone Number (Pg.1)Milestone Tradelinks Phone Number (Pg.1)
Milestone Tradelinks Phone Number (Pg.1)Hindenburg Research
54 visualizações14 slides

Mais de Hindenburg Research(20)

Questions For Tingo por Hindenburg Research
Questions For TingoQuestions For Tingo
Questions For Tingo
Hindenburg Research2.5K visualizações
Osirius Group LLC vs. Ideanomics por Hindenburg Research
Osirius Group LLC vs. IdeanomicsOsirius Group LLC vs. Ideanomics
Osirius Group LLC vs. Ideanomics
Hindenburg Research299 visualizações
Criminal Indictment Matt Beasley.pdf por Hindenburg Research
Criminal Indictment Matt Beasley.pdfCriminal Indictment Matt Beasley.pdf
Criminal Indictment Matt Beasley.pdf
Hindenburg Research169 visualizações
Acuitas Capital vs. Ideanomics por Hindenburg Research
Acuitas Capital vs. IdeanomicsAcuitas Capital vs. Ideanomics
Acuitas Capital vs. Ideanomics
Hindenburg Research799 visualizações
Adani Green Energy Limited Offering Circular.pdf por Hindenburg Research
Adani Green Energy Limited Offering Circular.pdfAdani Green Energy Limited Offering Circular.pdf
Adani Green Energy Limited Offering Circular.pdf
Hindenburg Research5.8K visualizações
Milestone Tradelinks Phone Number (Pg.1) por Hindenburg Research
Milestone Tradelinks Phone Number (Pg.1)Milestone Tradelinks Phone Number (Pg.1)
Milestone Tradelinks Phone Number (Pg.1)
Hindenburg Research54 visualizações
PMC Projects 2014 Annual Report.pdf por Hindenburg Research
PMC Projects 2014 Annual Report.pdfPMC Projects 2014 Annual Report.pdf
PMC Projects 2014 Annual Report.pdf
Hindenburg Research43 visualizações
PMC Projects Beneficial Ownership Document.pdf por Hindenburg Research
PMC Projects Beneficial Ownership Document.pdfPMC Projects Beneficial Ownership Document.pdf
PMC Projects Beneficial Ownership Document.pdf
Hindenburg Research344 visualizações
Adani Developers (later renamed Sunbourne) 2013 Annual Report.pdf por Hindenburg Research
Adani Developers (later renamed Sunbourne) 2013 Annual Report.pdfAdani Developers (later renamed Sunbourne) 2013 Annual Report.pdf
Adani Developers (later renamed Sunbourne) 2013 Annual Report.pdf
Hindenburg Research344 visualizações
SEBI Orders (Links).docx por Hindenburg Research
SEBI Orders (Links).docxSEBI Orders (Links).docx
SEBI Orders (Links).docx
Hindenburg Research40 visualizações
Krunal Trade & Investment Pvt Ltd.pdf por Hindenburg Research
Krunal Trade & Investment Pvt Ltd.pdfKrunal Trade & Investment Pvt Ltd.pdf
Krunal Trade & Investment Pvt Ltd.pdf
Hindenburg Research90 visualizações
Gardenia Trade and Investment.pdf por Hindenburg Research
Gardenia Trade and Investment.pdfGardenia Trade and Investment.pdf
Gardenia Trade and Investment.pdf
Hindenburg Research147 visualizações
Birch Trade and Investment Ltd.pdf por Hindenburg Research
Birch Trade and Investment Ltd.pdfBirch Trade and Investment Ltd.pdf
Birch Trade and Investment Ltd.pdf
Hindenburg Research84 visualizações
Athena Trade and Investments Pvt Ltd.pdf por Hindenburg Research
Athena Trade and Investments Pvt Ltd.pdfAthena Trade and Investments Pvt Ltd.pdf
Athena Trade and Investments Pvt Ltd.pdf
Hindenburg Research102 visualizações
Flourishing Trade and Investment Ltd.pdf por Hindenburg Research
Flourishing Trade and Investment Ltd.pdfFlourishing Trade and Investment Ltd.pdf
Flourishing Trade and Investment Ltd.pdf
Hindenburg Research147 visualizações
Delphinium Trade and Investment Ltd.pdf por Hindenburg Research
Delphinium Trade and Investment Ltd.pdfDelphinium Trade and Investment Ltd.pdf
Delphinium Trade and Investment Ltd.pdf
Hindenburg Research75 visualizações
Dome Trade and Investment Ltd.pdf por Hindenburg Research
Dome Trade and Investment Ltd.pdfDome Trade and Investment Ltd.pdf
Dome Trade and Investment Ltd.pdf
Hindenburg Research95 visualizações
Endeavour Trade and Investment Ltd.pdf por Hindenburg Research
Endeavour Trade and Investment Ltd.pdfEndeavour Trade and Investment Ltd.pdf
Endeavour Trade and Investment Ltd.pdf
Hindenburg Research251 visualizações
Efficacy Trade and Investment Ltd.pdf por Hindenburg Research
Efficacy Trade and Investment Ltd.pdfEfficacy Trade and Investment Ltd.pdf
Efficacy Trade and Investment Ltd.pdf
Hindenburg Research70 visualizações
Brahma Opportunities A, Ltd.pdf por Hindenburg Research
Brahma Opportunities A, Ltd.pdfBrahma Opportunities A, Ltd.pdf
Brahma Opportunities A, Ltd.pdf
Hindenburg Research129 visualizações

Último

Group and Teams: Increasing Cooperation and Reducing Conflict por
Group and Teams: Increasing Cooperation and Reducing Conflict Group and Teams: Increasing Cooperation and Reducing Conflict
Group and Teams: Increasing Cooperation and Reducing Conflict Seta Wicaksana
13 visualizações14 slides
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi... por
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...Florida Painting Miami
9 visualizações10 slides
India's Leading Cyber Security Companies to Watch.pdf por
India's Leading Cyber Security Companies to Watch.pdfIndia's Leading Cyber Security Companies to Watch.pdf
India's Leading Cyber Security Companies to Watch.pdfinsightssuccess2
7 visualizações40 slides
Greece opens countless opportunities for techies por
Greece opens countless opportunities for techiesGreece opens countless opportunities for techies
Greece opens countless opportunities for techiesAbhinav Immigration Services Pvt. Ltd.
16 visualizações6 slides
Amazon Music - Market Analysis por
Amazon Music - Market AnalysisAmazon Music - Market Analysis
Amazon Music - Market AnalysisAna Weathers
32 visualizações11 slides
ZARA.pptx por
ZARA.pptxZARA.pptx
ZARA.pptxmerlinjenma529
21 visualizações13 slides

Último(20)

Group and Teams: Increasing Cooperation and Reducing Conflict por Seta Wicaksana
Group and Teams: Increasing Cooperation and Reducing Conflict Group and Teams: Increasing Cooperation and Reducing Conflict
Group and Teams: Increasing Cooperation and Reducing Conflict
Seta Wicaksana13 visualizações
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi... por Florida Painting Miami
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...
Discover the Finest Interior Painting Services in Miami Elevate Your Space wi...
Florida Painting Miami9 visualizações
India's Leading Cyber Security Companies to Watch.pdf por insightssuccess2
India's Leading Cyber Security Companies to Watch.pdfIndia's Leading Cyber Security Companies to Watch.pdf
India's Leading Cyber Security Companies to Watch.pdf
insightssuccess27 visualizações
Amazon Music - Market Analysis por Ana Weathers
Amazon Music - Market AnalysisAmazon Music - Market Analysis
Amazon Music - Market Analysis
Ana Weathers32 visualizações
ZARA.pptx por merlinjenma529
ZARA.pptxZARA.pptx
ZARA.pptx
merlinjenma52921 visualizações
Butterfly Valves Manufacturer, supplier and exporter in India por Freture Techno Pvt Ltd
Butterfly Valves Manufacturer, supplier and exporter in IndiaButterfly Valves Manufacturer, supplier and exporter in India
Butterfly Valves Manufacturer, supplier and exporter in India
Freture Techno Pvt Ltd7 visualizações
terms_2.pdf por JAWADIQBAL40
terms_2.pdfterms_2.pdf
terms_2.pdf
JAWADIQBAL4048 visualizações
NewBase 23 November 2023 Energy News issue - 1676 by Khaled Al Awadi_compre... por Khaled Al Awadi
NewBase  23 November 2023  Energy News issue - 1676 by Khaled Al Awadi_compre...NewBase  23 November 2023  Energy News issue - 1676 by Khaled Al Awadi_compre...
NewBase 23 November 2023 Energy News issue - 1676 by Khaled Al Awadi_compre...
Khaled Al Awadi17 visualizações
ANTHROPOIDS WHITE PAPER.pdf por Anthropoids Nfts
ANTHROPOIDS WHITE PAPER.pdfANTHROPOIDS WHITE PAPER.pdf
ANTHROPOIDS WHITE PAPER.pdf
Anthropoids Nfts 39 visualizações
Forex secret por konghatatih
Forex secret Forex secret
Forex secret
konghatatih14 visualizações
NYKAA PPT .pptx por 125071081
NYKAA PPT .pptxNYKAA PPT .pptx
NYKAA PPT .pptx
1250710819 visualizações
Skilled Landscape Contractor por EmmanuelRyker
Skilled Landscape ContractorSkilled Landscape Contractor
Skilled Landscape Contractor
EmmanuelRyker19 visualizações
TNR Gold Los Azules Copper NSR Royalty Holding with McEwen Mining Presentation por Kirill Klip
TNR Gold Los Azules Copper NSR Royalty Holding with McEwen Mining PresentationTNR Gold Los Azules Copper NSR Royalty Holding with McEwen Mining Presentation
TNR Gold Los Azules Copper NSR Royalty Holding with McEwen Mining Presentation
Kirill Klip63 visualizações
bookmyshow-1.pptx por 125071035
bookmyshow-1.pptxbookmyshow-1.pptx
bookmyshow-1.pptx
1250710358 visualizações
voice logger software aegis.pdf por Nirmal Sharma
voice logger software aegis.pdfvoice logger software aegis.pdf
voice logger software aegis.pdf
Nirmal Sharma10 visualizações
chung chi tam compact chiu axit por MaiThiAnh
chung chi tam compact chiu axitchung chi tam compact chiu axit
chung chi tam compact chiu axit
MaiThiAnh14 visualizações
ERC-BEIS Longitudinal Small Business Survey Dissemination Event Slides por enterpriseresearchcentre
ERC-BEIS Longitudinal Small Business Survey Dissemination Event  Slides ERC-BEIS Longitudinal Small Business Survey Dissemination Event  Slides
ERC-BEIS Longitudinal Small Business Survey Dissemination Event Slides
enterpriseresearchcentre72 visualizações

2012.07.23 letter to ferc detailing acquisition

  • 1. Kenneth G. Hurwitz Direct Phone Number: 202.654.4521 Fax Number: 202.654.4251 ken.hurwitz@haynesboone.com PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 July 23, 2012 (VIA ELECTRONIC FILING) The Honorable Kimberly D. Bose Secretary FEDERAL ENERGY REGULATORY COMMISSION 888 First Street, N.E. Washington, D.C. 20426 Re: Public Power, LLC and Regional Energy Holdings, Inc., Docket No. EC12-123-000 Dear Secretary Bose: On July 20, 2012, Public Power, LLC, on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania)—and Regional Energy Holdings, Inc., on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC, electronically filed an Application for Order Under Section 203 of the Federal Power Act, Request for Confidential Treatment, Request for Waivers and Request for 21-Day Comment Period. We filed the Application under Section 203(a)(1)(A) of the Federal Power Act1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission.2 Page 2 of the Application set forth an incorrect date for the IPO Expiration Date. The date should be changed from January 21, 2012 to January 21, 2013. 1 16 U.S.C. § 824b(a)(1)(A). 2 18 C.F.R. Part 33 (2011).
  • 2. Hon. Kimberly D. Bose July 23, 2012 Page 2 Accordingly, we are submitting a revised Application with this letter. The revised Application is precisely the same as the one submitted on July 20, but with the correct IPO Expiration date shown on page 2. Please contact the undersigned if you have any questions concerning this Application. Respectfully submitted, /s/ Kenneth G. Hurwitz Kenneth G. Hurwitz COUNSEL FOR REGIONAL ENERGY HOLDINGS, INC. Enclosure
  • 3. PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) APPLICATION FOR ORDER UNDER SECTION 203 OF THE FEDERAL POWER ACT, REQUEST FOR CONFIDENTIAL TREATMENT, REQUEST FOR WAIVERS AND REQUEST FOR 21-DAY COMMENT PERIOD Pursuant to Section 203(a)(1) of the Federal Power Act (“FPA”)1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission (the “Commission” or “FERC”),2 Applicants Public Power, LLC (“Public Power”), on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania) (in combination with Public Power, the “Public Power MBR Entities”)—and Regional Energy Holdings, Inc. (“REH”), on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC (the “REH MBR Entities”), respectfully request Commission authorization for two transactions—the Proposed Transaction and the Alternative Proposed Transaction—both of which involve dispositions of direct and indirect interests in Applicants. The market-based rate authorizations held by the Public Power MBR 1 16 U.S.C. § 824b(a)(1). 2 18 C.F.R. §§ 33.1-33.11 (2011).
  • 4. 2 Entities and the REH MBR Entities and associated books and records are the only jurisdictional facilities held by the foregoing entities, and the only such facilities involved in this Application.3 The Proposed Transaction will occur in four stages, consisting of (1) an exchange transaction, whereby approximately 75 percent of the direct ownership interests and shares in Public Power and REH, respectively, will be contributed by the owners to a new entity, Crius Energy LLC, in exchange for membership interests in the new entity (the “Exchange Transaction”);4 (2) the initial public offering of units in a Canada trust (the “Trust” or “Crius Energy Trust”) to the public (the “IPO”);5 (3) the acquisition by Crius Energy Corporation (an indirect wholly owned subsidiary of the Trust) of a portion of the ownership interests in Crius Energy LLC (the “Acquisition”); and (4) a redemption transaction under which REH and Crius Energy LLC will redeem, for cash, the Retained Interests (“Cash Redemption”). The Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by January 21, 2013 (the “IPO Expiration Date”). In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests in REH and Public Power, respectively, will be exchanged for additional 3 Public Power, LLC (Pennsylvania), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., and Public Power & Utility of New Jersey, LLC applied for market-based rate authorization on July 17, 2012 in Docket Nos. ER12-2252, ER12-2253, ER12-2251, and ER12-2250, respectively. 4 As described in greater detail below in Section V.A., in stage one, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction. 5 Authorization for the IPO itself under FPA Section 203 or 204 is unnecessary because, at the time of the IPO, the Trust will neither directly or indirectly own nor operate any jurisdictional facilities.
  • 5. 3 ownership interests in Crius Energy LLC, which will be issued to the REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. With respect to the Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction and the Acquisition, and further request blanket authorization under Section 203(a)(1) for any party to acquire, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. Further, Applicants request authorization for the Cash Redemption, if and to the extent such authorization is required. As to the Alternative Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction, as above, and, out of an abundance of caution, for the Exchange Redemption. (Approval of the Exchange Redemption might not be necessary because the transaction does not appear to effect a change in upstream control of either Public Power or the REH MBR Entities.)6 As demonstrated in this Application, neither the Proposed Transaction nor the Alternative Proposed Transaction will have an adverse effect on competition, rates or regulation, and neither will result in the cross-subsidization of a non-utility associate company or the pledge or encumbrance of utility assets for the benefit of an associate company. Accordingly, as specifically requested herein, the Proposed Transaction and the Alternative Proposed Transaction should be authorized by the Commission pursuant to Section 203 of the FPA as consistent with the public interest. 6 This issue is discussed in Section V.A below. For the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”)
  • 6. 4 The Applicants request that the Commission grant limited waivers of its Part 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the direct and indirect disposition of the jurisdictional assets of the Public Power MBR Entities and the REH MBR Entities resulting from the Proposed Transaction and the Alternative Proposed Transaction meet the statutory requirements of Section 203. Applicants provide below all information required by Part 33 of the Commission’s regulations except to the extent that Applicants request waiver of such requirements. Specifically, for the reasons described below, Applicants respectfully request that the Commission grant waiver of the requirement to file Exhibits A, D, F, G, H, J, K and L and the information required to be submitted therein to the extent not otherwise provided in this Application. The Commission’s practice is to grant such waivers when the application contains “sufficient information to evaluate the proposed transaction.”7 I. REQUEST FOR EXPEDITED REVIEW Applicants request a notice period of no longer than 21 days, expedited treatment of this Application, and a Commission order on this Application by August 20, 2012, to accommodate the closing of the proposed transactions8 as soon as possible thereafter. Expedited treatment is warranted because the proposed transactions are consistent with Commission precedent and require neither a competitive analysis screen nor a vertical competitive analysis.9 7 PSI Energy, Inc., 60 FERC ¶ 62,131 at 63,342 (1992); see Citizens Utils. Co., 41 FERC ¶ 62,064 at 63,180 (1987). 8 The lower case term “proposed transactions” as used in this Application means both the Proposed Transaction and the Alternative Proposed Transaction. 9 Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642, FERC Stats. and Regs., Regs. Preambles 1996-2000 ¶ 31,111 at 31,877-78 (2000), order on reh'g, Order No. 642-A (March 23, 2001), 94 FERC ¶ 61,289 (2001) ("Order No. 642").
  • 7. 5 Pursuant to Section 203(a)(4) of the FPA, the Commission will approve a transaction if the Commission finds that it (i) is consistent with the public interest (i.e., it has no adverse effect on competition, rates or regulation) and (ii) will not result in the cross-subsidization of a non- utility associate company or a pledge or encumbrance of utility assets for the benefit of an associate company or, if the transaction will result in any of the foregoing, the Commission determines that it is consistent with the public interest. As demonstrated in this Application, the Proposed Transaction and the Alternative Proposed Transaction are consistent with the public interest and do not raise any cross-subsidization concerns. II. REQUEST FOR CONFIDENTIAL TREATMENT Pursuant to 18 C.F.R. §§ 33.9 and 388.112(b), Applicants request privileged and confidential treatment for Exhibit I, which contains the Term Sheet describing the agreement pursuant to which the Proposed Transaction and the Alternative Proposed Transaction will occur. The information in the Term Sheet is commercially sensitive and therefore not publicly available. Applicants are electronically filing confidential and public versions of this Application and ask that the confidential version be placed in the Commission’s non-public files. Applicants understand that the Commission staff will notify them in advance of any public disclosure of any information contained in Exhibit I. Any questions regarding this request for confidential treatment should be directed to the persons listed in Section III, below. A proposed protective order is included as Attachment 1. III. COMMUNICATIONS Applicants request that the following persons be placed on the official service list for this proceeding:
  • 8. 6 Kenneth G. Hurwitz Jan L. Fox Partner Vice President and General Counsel Haynes and Boone, LLP Regional Energy Holdings, Inc. 1615 L Street, NW, Suite 800 64 North Main Street Washington, DC 20036 Norwalk, CT 06854 Phone: (202) 654-4521 Phone: (203) 517-0130 Email: ken.hurwitz@haynesboone.com Email: JFox@viridian.com Robert Gries, Jr. Gerit F. Hull, Member Public Power, LLC Eckert Seamans Cherin & Mellott, LLC 4830 W. Kennedy Blvd. Suite 1200 Suite 445 1717 Pennsylvania Avenue, NW Tampa, FL 33609 Washington, DC 20006 Phone: (813) 902-9038 Phone: (202) 659-6657 Email: gries@griesinvfund.com Email: ghull@eckertseamans.com IV. DESCRIPTION OF APPLICANTS AND OTHER PARTIES TO THE PROPOSED TRANSACTION A. The Applicants This section sets forth a description of the Applicants. Their pre-transaction ownership structures are set forth in Exhibit C. 1. Regional Energy Holdings, Inc. Regional Energy Holdings, Inc., a Nevada corporation, owns each of the six REH MBR Entities, which, in addition to holding market-based rate authority, function as licensed competitive retail marketers of electricity and, in most cases, natural gas, in eleven states. REH is filing today’s Application on behalf of the REH MBR Entities, to authorize the disposition of the upstream direct and indirect interests in such entities, pursuant to the Proposed Transaction and the Alternative Proposed Transaction. Although each holds market-based rate authority, none of the REH MBR Entities currently makes any wholesale sales of electricity other than real-time balancing transactions in regional transmission organization (“RTO”) markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.
  • 9. 7 2. The REH MBR Entities The pertinent facts as to each of the REH MBR Entities are set forth in the bullet points below:10 Viridian Energy, Inc. is a Nevada corporation. Viridian Energy, Inc. has been granted market-based rate authority by the Commission,11 is a member of ISO New England, and is licensed to sell electricity to retail customers in Connecticut and Massachusetts. Viridian Energy, Inc. will be converted into a limited liability company, Viridian Energy, LLC, after the Exchange Transaction. Viridian Energy PA, LLC is a Nevada limited liability company. Viridian Energy PA, LLC has been granted market-based rate authority by the Commission,12 is a member of the PJM Interconnection, L.L.C. (“PJM”), and is licensed to sell electricity and natural gas at retail in Pennsylvania and New Jersey, natural gas at retail in New York, and electricity at retail in Delaware, the District of Columbia, Illinois and Maryland. Viridian Energy NY, LLC is a New York limited liability company. Viridian Energy NY, LLC has been granted market-based rate authority by the Commission,13 is a member of the New York Independent System Operator 10 In addition to these entities, REH owns Viridian Network, LLC, whose sole business activity is to provide retail sales services through independent contractors for the REH MBR Entities. After this application is filed, the REH MBR entities will amend their Electric Quarterly Report submissions for the pertinent periods to disclose the real-time balancing sales, which were previously not included in the reports. 11 Viridian Energy, Inc., Docket No. ER11-3069 (unpublished letter order issued May 25, 2011). 12 Viridian Energy PA, LLC, Docket No. ER10-210 (unpublished letter order issued Jan. 27, 2010). 13 Viridian Energy NY, LLC, Docket No. ER10-2661 (unpublished letter order issued Nov. 8, 2010).
  • 10. 8 (“NYISO”), and is licensed to sell electricity and natural gas at retail in New York. Cincinnati Bell Energy, LLC is a Nevada limited liability company. Cincinnati Bell Energy, LLC’s predecessor was granted market-based rate authority by the Commission.14 Cincinnati Bell Energy, LLC is a member of PJM and is licensed to sell electricity and gas at retail in Ohio. FTR Energy Services, LLC is a Nevada limited liability company. An application for authority to sell electricity at market-based rates is pending,15 as is its membership application in PJM, the Midwest Independent Transmission System Operator (“MISO”), NYISO, and the California Independent System Operator Corporation (“CAISO”). FTR Energy Services LLC is licensed to sell electricity and natural gas at retail in Ohio and New York. License applications are pending to sell electricity and natural gas in California and Pennsylvania and to sell natural gas in Illinois, Michigan, and Indiana Fairpoint Energy, LLC is a Nevada limited liability company. Fairpoint Energy, LLC’s predecessor was granted market-based rate authority by the Commission.16 Fairpoint Energy, LLC is a member of ISO New England, and is licensed to sell electricity at retail in Maine and New Hampshire. 14 Viridian Energy New Jersey LLC, Docket No. ER11-2663 (unpublished letter order issued Feb. 28, 2011). 15 The application in that docket was filed by Viridian Energy NG, LLC. Viridian Energy NG, LLC changed its name to FTR Energy Services LLC, and notified the Commission of that change in a subsequent filing in that proceeding. 16 Viridian Energy MD LLC, Docket No. ER11-4326 (unpublished letter order issued Sept. 12, 2011). Fairpoint Energy, LLC filed a notice of succession with the Commission in Docket No. ER12-1938.
  • 11. 9 3. Public Power, LLC Public Power is a Connecticut limited liability company. The Commission granted Public Power’s predecessor market-based rate authority in 2007.17 Public Power is licensed to sell electricity at retail in Connecticut, the District of Columbia, Illinois, Massachusetts, New York and Ohio, and natural gas at retail in New York. Public Power wholly owns four entities—Public Power, LLC (a Pennsylvania limited liability company), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc. and Public Power & Utility of New Jersey, LLC)18 —that are licensed to and sell electricity at retail and, in the case of the New Jersey entity, natural gas at retail in the indicated states. The four entities make no wholesale sales, except for real-time balancing sales in the pertinent RTO markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.19 Ownership interests in Public Power are held by GF Power I, LLC (95 percent), a management company, and GF Factoring (5 percent) (the “Public Power Members”). GF Power I, LLC (95 percent), in turn, is owned by GF Power LLC (81.3 percent), Gries Investment Fund (14.7 percent) and various individuals. GF Power LLC and Gries Investment Fund are both owned by individuals, none of whom owns 10 percent or more of either entity. 17 Public Power & Utility, Inc., Docket No. ER07-1161 (unpublished letter order issued Sept. 17, 2007). Public Power & Utility, Inc. changed its name and legal form to Public Power, LLC and subsequently notified the Commission of that change. See Notice of Succession of Public Power, LLC, Docket No. ER12-75 (filed Oct. 14, 2011). 18 Public Power & Utility of Maryland, LLC is a Maryland limited liability company, Public Power & Utility of NY, Inc. is a New York corporation, and Public Power & Utility of New Jersey, LLC is a New Jersey limited liability company. 19 As stated above, applications for market-based rate authorizations for these four entities are pending.
  • 12. 10 B. Other Parties to the Proposed Transaction The Proposed Transaction is fully described in Section V below. This section of the Application describes the new entities that will be formed as part of the Proposed Transaction, all of which will be relevant if the IPO and the acquisition of an interest in Crius Energy LLC occur. Crius Energy LLC, unlike the other entities described in this section, will play a role whether or not the IPO closes before the IPO Expiration Date—in other words, it will play a role in either the Proposed Transaction or the Alternative Proposed Transaction. 1. Crius Energy Trust The Trust will be a newly formed, unincorporated, open-ended limited purpose trust established under the laws of the Province of Ontario, Canada. As more fully described below, the Trust will conduct an IPO. Following the IPO, the Trust will wholly own Crius Energy Holdings Inc., and will not carry on any other business activities. 2. Crius Energy Holdings Inc. Crius Energy Holdings Inc. will be a newly formed Canadian holding company incorporated under the laws of the Province of Ontario, Canada. Following the IPO, Crius Energy Holdings Inc. will own all of the shares of Crius Energy Corporation, and will not carry on any other business activities. 3. Crius Energy Corporation Crius Energy Corporation will be incorporated under the laws of the State of Delaware. Its sole function will be to acquire and hold a membership interest in Crius Energy LLC (the “Acquired Interest”), following the closing of the IPO. 4. Crius Energy LLC Crius Energy LLC will be a newly formed Delaware limited liability company.
  • 13. 11 Prior to the IPO, on the closing date of the Exchange Transaction, the Public Power Members and the REH Shareholders will each contribute a portion (approximately 75 percent) of their Public Power Membership Interests and their REH Common Stock, respectively, to Crius Energy LLC, each in exchange for 50 percent of the Crius Energy LLC interests.20 As stated above, immediately after the IPO, Crius Energy Corporation will contribute the net proceeds of the IPO to Crius Energy LLC in exchange for a portion of the ownership interests therein. The Alternative Proposed Transaction will take place in the event the Exchange Transaction is consummated, but the IPO has not occurred by the IPO Expiration Date. Given that one of the purposes of the IPO is to fund the acquisition of the Acquired Interest in Crius Energy LLC by Crius Energy Corporation, in the absence of the IPO, this acquisition will not occur. 5. Crius Energy Administrator Inc. Crius Energy Administrator Inc. (the “Administrator”) will be a newly formed corporation incorporated under the laws of the Province of Ontario, Canada. Pursuant to the terms of a voting agreement to be entered into between the Trustee, the Administrator and the Administrator Shareholder (as defined below), the business of the Administrator will be limited to acting as administrator of the Trust and performing certain ancillary activities. Among its other responsibilities, the Administrator will be entitled to vote the securities owned by the Trust. 20 As stated above, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction.
  • 14. 12 This prerogative, including the right to vote the voting shares of Crius Energy Holdings Inc., resides in the Administrator’s Board of Directors.21 The sole shareholder of the Administrator will be a newly-formed Canadian corporation (the “Administrator Shareholder”) whose shares will be owned by the Chief Executive Officer of Crius Energy LLC. The Administrator Shareholder will enter into a voting agreement with the Trustee, as agent for the unit holders, and the Administrator, relating to the shares of the Administrator owned by the Administrator Shareholder. Pursuant to the voting agreement, the Administrator Shareholder will, following the IPO, agree to vote its shares in the Administrator as directed by the Trustee, as agent for the unit holders, including in connection with the election, appointment or removal of the directors of the Administrator. As a result, following the IPO, the unit holders will have the power to elect, appoint or remove directors of the Administrator by way of ordinary resolution of the unit holders. Thus, while the Administrator will have legal authority to vote the securities owned by the Trust, the unit holders ultimately can override that right because, acting through the Trustee, they can remove members of the Administrator Board of Directors. V. REQUEST FOR AUTHORIZATION FOR THE DISPOSITION OF JURISDICTIONAL FACILITIES A. Description of the Proposed Transaction This section describes the basic steps that will be taken in connection with the Exchange Transaction, the IPO, the Acquisition, and the Cash Redemption Transaction. The purpose of the 21 Applicants believe the information pertaining to the Administrator in Section VI.A of the Application is relevant to demonstrating that the Proposed Transaction has no effect on wholesale competition. Specifically, the information relates to the determination of control, and therefore, which entities involved in the Proposed Transaction will be deemed to be affiliates of the Applicants.
  • 15. 13 Proposed Transaction is to consolidate the currently separate multistate retail gas and electric marketing businesses of Public Power and REH under the umbrella of a new corporate entity, Crius Energy LLC. In addition, through the IPO, the Proposed Transaction will infuse capital into that entity. Finally, the Applicants’ businesses will be reorganized to create a rational corporate framework for management of the businesses. The structure of the Proposed Transaction is primarily driven by Canadian and U.S. tax considerations and is complex as a result. However, for purposes of the Commission’s analysis, the transaction entails four discrete stages, as described below. The first stage is the Exchange Transaction, the purpose of which is to consolidate the REH and Public Power retail operating entities under the ownership of Crius Energy LLC. After Commission approval is obtained, but before the IPO, REH, Public Power and Crius Energy, LLC will implement an exchange agreement, the elements of which are described in the Term Sheet in Exhibit I. At closing, each of the REH stockholders and the Public Power members will contribute a portion (approximately 75 percent) of their interests in Public Power and the REH MBR Entities to Crius Energy, LLC, each in exchange for 50 percent of the Crius Energy LLC interests. (The REH Stockholders and the Public Power Members will also retain 25 percent of their respective ownership interests in Public Power and the REH MBR Entities (i.e., the Retained Interests)). The exchange, thus, effects a transfer of the ownership interests in the REH MBR Entities and Public Power to Crius Energy LLC, a disposition of interests in jurisdictional assets for which Commission approval is required under FPA Section 203(a)(1)(A). The post- Exchange Transaction ownership structure is shown in Exhibit C. The second and third stages of the Proposed Transaction are the IPO and the Acquisition of the Acquired Interest in Crius Energy LLC. Following the closing of the Exchange
  • 16. 14 Transaction, it is intended that a public offering will be made in Canada of units of the Trust and members of the public will purchase the units. Assuming the IPO is completed, the proceeds of the IPO will be used by the Trust to subscribe for additional shares of Crius Energy Holdings Inc., which in turn will use the net proceeds to subscribe for additional shares and debt of Crius Energy Corporation. Crius Energy Corporation will use the proceeds to acquire the Acquired Interest in Crius Energy LLC. As stated above, in connection with the IPO, Applicants request blanket authorization under Section 203(a)(1) for all dispositions involving any party acquiring, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. The purchasers of any units in the Trust will be members of the general public in Canada and qualified institutional buyers in the U.S. pursuant to Rule 144A under the Securities Act of 1933, as amended. Under the Ontario Securities Commission Rule 62-504, disclosure of the purchase of any block of units exceeding 10 percent is required.22 If blocks of 10 percent or more are acquired, the Applicants will make a filing to disclose this information to the Commission, and will seek FPA Section 203(a)(1) authority for the acquisition of such blocks if required. The fourth stage of the Proposed Transaction is the Cash Redemption Transaction. In this stage, cash from the IPO, either in the form of loans or cash, is passed down to REH, which will acquire the Retained Interest of the REH owners in REH, and to Crius Energy LLC, which 22 Under these Canadian securities regulations, any person who, together with persons with whom they act jointly and in concert, beneficially owns 10 percent or more of the units in the Trust, or has the power to control or exercise any votes attached to such units, will be required to issue and file a public news release, as well as an “early warning report” with the Canadian securities regulators, disclosing such ownership or control promptly after exceeding the 10 percent threshold.
  • 17. 15 will acquire the Retained Interest held by the Public Power members.23 After the Cash Redemption Transaction, Crius Energy LLC will own 100 percent of the common shares of REH, and 100 percent of the ownership interests in Public Power, representing an increase from pre-redemption ownership levels of 75 percent in each of REH and Public Power, respectively. The Retained Interests in the owners of REH and Public Power will be eliminated. Applicants request authorization under FPA Section 203(a)(1)(A) for the Cash Redemption Transaction if and to the extent it results in a change in indirect control over the jurisdictional assets held by Public Power and REH, respectively.24 B. Description of the Alternative Proposed Transaction The Alternative Proposed Transaction is intended as a substitute for the Proposed Transaction if the IPO does not occur by the IPO Expiration Date. It would achieve the same purposes as the Proposed Transaction, with the exception of the capital raising aspect and the use of such capital to purchase the owners’ Retained Interests in cash. As described above, the Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by the IPO Expiration Date. In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests (approximately 25 percent) in REH and Public Power, respectively, will be exchanged for additional ownership interests in Crius Energy LLC, which will be issued to the 23 It is theoretically possible that the IPO will not raise sufficient cash to purchase all of the Retained Interests in REH and Public Power. In that event, the redemption will be made partially for cash and partially through the issuance of additional Crius Energy LLC interests. 24 After stage four, or after the Alternative Proposed Transaction is completed, the ownership interests in Fairpoint Energy, LLC, FTR Energy Services, LLC and Cincinnati Bell Energy, LLC might be transferred from REH to Crius Energy LLC. Applicants believe that this transaction would be authorized as an internal corporate reorganization under the blanket authorization set forth in section 33.1(c)(6) of the Commission’s regulations. In the alternative, out of an abundance of caution, Applicants seek authorization for the transaction under FPA Section 203(a)(1).
  • 18. 16 REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. The net effect of the Exchange Redemption will be to eliminate the Retained Interests of the REH owners and the Public Power owners and convert them into indirect owners of such entities (and their respective jurisdictional assets) through the transfer to them of ownership of ownership interests in Crius Energy LLC. The percentage shares of the pre-existing owners of Crius Energy LLC will not be changed. For this reason, it does not appear that the Exchange Redemption will result in a change of control of the Public Power and REH jurisdictional assets. Hence, Applicants do not believe that authorization for the Exchange Redemption is necessary. Nevertheless, out of an abundance of caution, we seek such authorization.25 VI. THE TRANSACTIONS ARE CONSISTENT WITH THE PUBLIC INTEREST Under Section 203 of the FPA, the Commission will approve a transaction if the Commission finds that the transaction “will be consistent with the public interest.”26 In reviewing transactions under Section 203, the Commission applies a three-part test set forth in its Merger Policy Statement, as codified in Section 2.26 of the Commission’s regulations.27 Under this test, the Commission examines the effect of the proposed transaction on competition, rates and regulation. In addition, Section 203(a)(4) provides that a proposed transaction may not “result in cross-subsidization of a non-utility associate company or the pledge or encumbrance of 25 As stated supra, for the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”) 26 16 U.S.C. § 824b(a)(4). 27 18 C.F.R. § 2.26 (2011).
  • 19. 17 utility assets for the benefit of an associate company, unless the Commission determines that the cross-subsidization, pledge or encumbrance will be consistent with the public interest.”28 As described below, the disposition of facilities resulting from the proposed transactions meets these statutory standards and should be authorized by the Commission. A. The Transactions Will Have No Adverse Effect on Competition 1. Affiliates of the Applicants As a threshold matter, to evaluate the impact of the proposed transactions on competition (which will be negligible, if any), one must identify the affiliates of the Applicants and discuss their ownership or control of any energy-related businesses. The affiliates fall into three basic categories: (i) the existing affiliates of REH, (ii) the existing affiliates of Public Power, and (iii) the affiliates that will be created in the context of the proposed transactions. Turning to the first category, and referring to the Pre-Transaction Ownership Structure of REH, shown in Exhibit C, we note that any person or entity shown in Exhibit C that owns 10 percent or more of the ownership interests in an entity constitutes an affiliate under the Commission’s definition of that term.29 None of such “10 percent” individuals or entities shown in the exhibit own or control any energy-related businesses, other than the retail electricity and natural gas marketer businesses owned by REH and the MBR Entities, which make no wholesale sales other than real-time balancing transactions in real-time markets. Second, turning to Public 28 16 U.S.C. § 824b(a)(4). 29 While the definition is set forth in the market-based rate subpart of the Commission’s regulations, Applicants believe the definition is pertinent in the context of this Application. See 18 C.F.R. § 35.36(a)(9). In one instance, such an ownership interest is deemed “passive” because it is superseded by an actual control arrangement. In that vein, it should be noted that control of JMEG Holdings LLC is exclusively vested in Johny Malohn, who owns a 51 percent ownership interest in the company and holds the position of Manager. The ownership interests of the remaining owners are passive interests. See May 29, 2012 Letter of Viridian Energy NG, LLC in Docket No. ER12-1769.
  • 20. 18 Power, LLC and Exhibit C, the same is true of any “10 percent” individuals or entities—none of them owns 10 percent or more or otherwise controls any energy-related businesses, other than the Public Power MBR Entities’ retail and wholesale sales activities. Finally, turning to the remaining entities described in Section IV.B of the Application,30 and except for Crius Energy LLC,31 100 percent of each entity’s ownership interests will be owned and controlled by its direct parent, up to the level of Crius Energy Trust, which will be owned by members of the general public in Canada. None of these entities or their parent companies will have any interests in energy-related businesses, other than the retail and de minimis wholesale businesses discussed above. 2. The Collective Impact of Applicants and their Affiliates on Competition will be Negligible. The proposed transactions will not have an adverse effect on competition in the markets in which the REH MBR Entities or the Public Power MBR Entities operate. Given that the REH MBR Entities and the Public Power MBR Entities make no wholesale sales of electricity other than real-time balancing transactions in real-time markets, the proposed transactions will not have any impact on the wholesale electricity product market in any geographic area. Moreover, none of the foregoing entities own or control, through power purchase agreements or otherwise, the output of any generating facilities. Nor does any one of them own transmission facilities. 30 The Administrator arguably (out of an abundance of caution) might be considered an affiliate of the Applicants under section 35.36(a)(9)(iii) of the Commission’s regulations. That provision gives the Commission discretion to consider as affiliates persons who “stand in such relation to the specified company that there is liable to be an absence of arm’s length bargaining between them.” Although, under the foregoing provision, the Administrator might be considered an affiliate of the Applicants, the Administrator Shareholder and the CEO of Crius Energy LLC should not be considered affiliates of the Applicants, because their interests are rendered passive by the authority of the unit holders acting through the Trustee. See Section IV.B.(5), supra. 31 To the extent the Public Power Members and the Regional Energy Stockholders retain ownership interests in Crius Energy LLC, their respective affiliates are described above.
  • 21. 19 Section 33.3(a)(2)(i) of the Commission’s regulations states that a horizontal competitive screen analysis is not required if the applicant “[a]ffirmatively demonstrates that the merging entities do not currently conduct business in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”32 The analysis focuses on business combinations that involve consolidating control over electric generating facilities, the output of which is sold in jurisdictional wholesale markets. Neither Applicants nor Public Power, LLC own or control any electric generating facilities. Accordingly, the proposed transactions do not raise any horizontal market power concerns. To the extent the proposed transactions will have any impact on competition, it will be in retail markets in various states. The Commission stated in Order No. 642 that it will “consider retail market issues when circumstances warrant. “However,” the Commission stated, “it is our continuing position that our merger review should not, as a matter of course review a merger’s impact on retail markets in that state when a state is clearly able to do so.”33 Here, the retail competition issue is insignificant. There are nine states in which both a Public Power MBR entity and a Viridian MBR entity are licensed to sell electricity at retail: Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio and Pennsylvania. Based on 2011 retail sales data, the combined retail sales of Public Power and Viridian in every one of these states was less than one percent, with the exception of Connecticut, where the combined share was four percent, and New Jersey, where the combined share was 1.5 percent. Based on these data, it is 32 18 C.F.R. § 33.3(a)(2)(i). See also Liberty Elec. Power, LLC, 110 FERC ¶ 62,152 (2005) (approving transfer of jurisdictional facilities without requiring horizontal competitive screen analysis where parties held only de minimis interests in relevant markets). 33 Order No. 642 at 31,919.
  • 22. 20 difficult to imagine that a state commission would be concerned with the impact of the proposed transactions on retail competition. In addition, the foregoing states require, either before or after the proposed transactions are consummated, that the holder of an retail electricity license notify or submit information concerning the transaction in accordance with their respective rules. If these state commissions wish to address the proposed transactions’ impact on retail competition, if any, it is unlikely that they would be precluded from doing so. Moreover, any state commission that is concerned about adverse effects, if any, on retail competition would be free to intervene in this docket. Section 33.4(a)(2)(i) of the Commission’s regulations states that a vertical competitive analysis is not required if the applicant can affirmatively demonstrate that “[t]he merging entities currently do not provide inputs to electricity products (i.e., upstream relevant products) and electricity products (i.e., downstream relevant products) in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”34 The Proposed Merger does not raise any vertical market power concerns. Applicants do not own or control transmission facilities. Further, Applicants do not own or control any inputs to generation. Applicants have not sought to erect barriers to entry in any market, nor will they. Applicants do not own or control any intrastate natural gas transportation, intrastate natural gas storage or distribution facilities, or physical coal supply sources or coal transportation, or sites for development of electric generating facilities. Because the proposed transactions will have no adverse effect on wholesale competition, and because consideration of retail competition issues by the Commission is unwarranted, Applicants request that the Commission authorize the disposition of jurisdictional facilities 34 18 C.F.R. § 33.4(a)(2)(i).
  • 23. 21 resulting from the proposed transactions without requiring the filing of a horizontal or a vertical competitive screen analysis. B. The Transactions Will Have No Adverse Effect on Rates In assessing the effect that a proposed transaction could have on rates, the Commission’s primary concern is “the protection of wholesale ratepayers and transmission customers.”35 Simply stated, the proposed transactions will not have an adverse effect on rates because the Applicants have no wholesale ratepayers (other than RTOs in real-time balancing markets) or transmission customers. The proposed transactions will not affect the rates of any customer. Applicants sell electricity in competitive deregulated retail markets under the oversight of the state commissions and have no captive customers. Applicants buy electricity and sell de minimis volumes of electricity in the competitive deregulated wholesale markets under the Commission’s oversight. Applicants do not have any captive wholesale or retail customers. None of these arrangements will change as a result of the proposed transactions. None of the Applicants or their affiliates own any transmission facilities. Accordingly, the proposed transactions will have no affect on rates paid by any power customers or transmission customers. C. The Transactions Will Have No Adverse Effect on Regulation The proposed transactions will not affect the manner or extent to which the Commission, any state, or any other federal agency may regulate Applicants. Upon completion of the proposed transactions, the Applicants will continue to be subject to the jurisdiction of this Commission and the pertinent state utility commissions to the same extent as before the proposed 35 New England Power Co., 82 FERC ¶ 61,179 at 61,659 order on reh’g, 83 FERC ¶ 61,275 (1998). See also Merger Policy Statement, FERC Stats. & Regs. ¶ 31,044 at 30,123 (concern is to protect ratepayers from rate increases because of a merger).
  • 24. 22 transactions. As a consequence, the proposed transactions will have no adverse effect on regulation. D. The Transactions Will Not Result in Any Cross-Subsidization of a Non- Utility Company or Any Pledge or Encumbrance of Utility Assets for the Benefit of an Associate Company FPA Section 203(a)(4) provides that the Commission shall approve the proposed disposition if it finds that the proposed jurisdictional transaction will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company, unless the Commission finds that such cross-subsidization, pledge or encumbrance is consistent with the public interest.36 The Commission has stated that “the concern about cross-subsidization [in Section 203(a)(4)] is principally a concern over the effect of a transaction on rates,”37 and that the cross-subsidization requirements in Order No. 669 “apply where a traditional public utility has captive customers (defined as wholesale or retail electric energy customers served under cost-based regulation) and also where the public utility owns or provides transmission service over Commission-jurisdictional transmission facilities.”38 The Commission elaborated that “a public utility selling power only pursuant to market-based regulation will not be regarded as a ‘traditional public utility with captive customers’ and hence, customers served at market-based rates will not be considered ‘captive customers.’”39 As noted above, the proposed transactions will not have any adverse effect on rates because all wholesale (if any) and retail sales of electricity by the Applicants will continue to be made at market-based 36 See 16 U.S.C. § 824b(a)(4) (2000). 37 Transactions Subject to FPA Section 203, Order No. 669, FERC Stats. & Regs. ¶ 31,200 at P 167 (2005), order on reh’g, Order No. 669-A, FERC Stats. & Regs. ¶ 31,214, order on reh’g, Order No. 669-B, FERC Stats. & Regs. ¶ 31,225 (2006). 38 Order 669-A at P 147. 39 Id.
  • 25. 23 rates authorized by the Commission or in accordance with state utility commission rules. Accordingly, no detailed examination of cross-subsidization issues is required in connection with the proposed transactions. The proposed transactions are within the scope of the “safe harbor” for transactions in which “no franchised public utility with captive customers is involved in the transaction,” and thus raise no issue with respect to cross-subsidization. Furthermore, as explained in Exhibit M, based on facts and circumstances known to Applicants or those that are reasonably foreseeable, and pursuant to Order Nos. 669 and 669-A, Applicants hereby verify, with respect to them and each of their affiliates, that the proposed transactions will not result, at the time of the proposed transactions or in the future, in: (i) any transfer of facilities between a traditional utility associate company that has captive customers or that owns or provides transmission service over jurisdictional facilities, and an associate company; (ii) any new issuance of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities for the benefit of an associate company; (iii) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (iv) any new affiliate contract between a non-utility associate company and a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the FPA.40 Applicants verify that the proposed 40 See Order No. 669 at P 169 (stating that such verifications may be accepted in lieu of any other explanation with respect to cross-subsidization and encumbrance concerns).
  • 26. 24 transactions do not involve utility assets, and therefore there are no existing pledges or encumbrances that must be disclosed under 18 C.F.R. § 33.2(j)(l)(i). VI. INFORMATION REQUIRED BY PART 33 OF THE COMMISSION’S REGULATIONS Applicants are including with this Application the Exhibits and supporting information required by Part 33 of the Commission’s regulations.41 Consistent with Commission precedent and as described below, Applicants request waiver of the Part 33 regulations to the extent that such regulations request information that is not necessary to ensure that the proposed transactions meet the statutory requirements of Section 203 of the FPA.42 A. Section 33.2(a): Names and addresses of the Applicants’ principal business offices The exact legal names and addresses of the Applicants are:43 Public Power, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of Maryland, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of NY, Inc. 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 41 18 C.F.R. §§ 33.2-33.4 (2011). 42 See, e.g., MACH Gen, LLC, 113 FERC ¶ 61,138 (2005); Boston Generating, LLC, 113 FERC ¶ 61,109 (2005); La Paloma Holding Co., LLC, 112 FERC ¶ 61,052 (2005); Lake Road Holding Co., LLC, 112 FERC ¶ 61,051 (2005). 43 The address of Crius Energy LLC will be 1055 Washington Boulevard, Suite 700, Stamford, CT 06901.
  • 27. 25 Public Power & Utility of New Jersey, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power, LLC (Pennsylvania) 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Regional Energy Holdings Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy, Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy PA, LLC 64 North Main Street Norwalk, CT 06854 Viridian Energy NY, LLC 64 North Main Street Norwalk, CT 06854 Cincinnati Bell Energy, LLC 64 North Main Street Norwalk, CT 06854 FTR Energy Services, LLC 64 North Main Street Norwalk, CT 06854 Fairpoint Energy, LLC 64 North Main Street Norwalk, CT 06854 B. Section 33.2(b): Names, addresses, phone numbers, fax numbers, and e-mail addresses of persons authorized to receive notice and communications regarding this Application Applicants request that the persons listed in Section III, above, be placed on the official service list for this proceeding.
  • 28. 26 C. Section 33.2(c): Description of the Applicants, including: 1. All business activities of the Applicants, including authorizations by charter or regulatory approval Section IV of this Application sets forth a general description of the Applicants and their business activities. Accordingly, Applicants request waiver of the requirement to file Exhibit A. 2. A list of all energy subsidiaries and energy affiliates, percentage ownership interest in such subsidiaries and affiliates, and a description of the primary business in which each is engaged. Information pertaining to Applicants is provided in Section IV of this Application and in the attached Exhibit B. 3. Organizational charts depicting the Applicants’ current and proposed post-transaction corporate structures. Organizational charts illustrating the current and post transaction ownership structures of Applicants are attached as Exhibit C. 4. Description of all joint ventures, strategic alliances, tolling arrangements or other business arrangements, including transfers of operational control of transmission facilities to Commission approved Regional Transmission Organizations, both current, and planned to occur within a year from the date of filing, to which the Applicants or their parent companies, energy subsidiaries, and energy affiliates is a party, unless the Applicants demonstrate that the proposed transaction does not affect any of its business interests. Applicants request waiver of the requirement to file Exhibit D, to the extent otherwise deemed necessary, as the proposed transactions will not affect any business interests, except as described herein. 5. Identity of all common officers or directors of parties to the proposed transaction. This information is provided in Exhibit E. 6. Description and locations of wholesale power sales customers and unbundled transmission services customers served by the Applicants or parent companies, subsidiaries, affiliates and associate companies.
  • 29. 27 Applicants have no existing wholesale power sales customers, other than RTOs in real- time balancing markets, and provide no unbundled transmission services. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit F. D. Section 33.2(d): Description of the jurisdictional facilities owned, operated, or controlled by the Applicants The Applicants’ jurisdictional facilities are their market-based rate authorizations and associated books and records. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit G. E. Section 33.2(e): A narrative description of the proposed transaction for which Commission authorization is requested This information is set forth in Section V, above, and the Term Sheet included in confidential Exhibit I. Therefore, Applicants request waiver of the requirement to file Exhibit H. F. Section 33.2(f): Contracts related to the Transaction A Term Sheet included in confidential Exhibit I describes the proposed transactions. The proposed transactions will not deviate in any material manner from the Term Sheet included in Exhibit I. Pursuant to Section 388.112 of the Commission’s regulations, as discussed in Section II, above, Applicants request privileged and confidential treatment of Exhibit I. Applicants also request waiver of the requirements of Section 33.2(f) of the Commission’s regulations to the extent that they would require any other documents to be submitted in confidential Exhibit I. G. Section 33.2(g): Statement explaining the facts relied upon to demonstrate that the Transaction is consistent with the public interest The facts relied upon to show that the disposition of facilities resulting from the proposed transactions is consistent with the public interest are set forth in Section VI of this Application. Accordingly, Applicants request waiver of the requirement to file Exhibit J.
  • 30. 28 H. Section 33.2(h): Physical property A map would not provide the Commission with information relevant to the proposed transactions. Therefore, Applicants request waiver of the requirement to file Exhibit K. I. Section 33.2(i): Status of actions before other regulatory bodies No approvals are needed from any other regulatory bodies. Therefore, Applicants request waiver of the requirement to file Exhibit L. J. Section 33.2(j): Cross-subsidization, pledge, or encumbrance Applicants’ explanation as to how the proposed transactions will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company is found in Section VI.D and Exhibit M. VII. PROPOSED ACCOUNTING ENTRIES Applicants are not including accounting entries showing the effect of the proposed transactions on account balances because Applicants are not required to maintain their books and records in accordance with the Commission’s Uniform System of Accounts. VIII. VERIFICATION An authorized representative of each of the Applicants has provided the verification required under § 33.7 of the Commission’s regulations44 in Attachment 2. IX. CONCLUSION For the reasons stated herein, Applicants request that the Commission issue an order no later than August 20, 2012 authorizing the proposed transactions and granting waivers of its Part 44 18 C.F.R. § 33.7 (2011).
  • 31. 29 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the proposed transactions meet the statutory requirements of FPA Section 203. Respectfully submitted, /s/ Kenneth G. Hurwitz /s/ Gerit F. Hull Kenneth G. Hurwitz, Partner Gerit F. Hull, Member Haynes and Boone, LLP Eckert Seamans Cherin & Mellott, LLC 1615 L Street, NW, Suite 800 Suite 1200 Washington, DC 20036 1717 Pennsylvania Avenue, N.W. (202) 654-4521 Washington, DC 20006 ken.hurwitz@haynesboone.com (202) 659-6657 Counsel for Regional Energy Holdings, Inc. ghull@eckertseamans.com and its subsidiaries Counsel for Public Power, LLC and its subsidiaries July 20, 2012
  • 32. EXHIBIT B RELEVANT ENERGY-RELATED SUBSIDIARIES AND AFFILIATES OF REGIONAL ENERGY HOLDINGS, INC. AND PUBLIC POWER, LLC Other than the REH MBR Entities, the Public Power MBR Entities, and Viridian Network, LLC (described in Section IV.A.2, above), REH and Public Power have no energy- related subsidiaries.
  • 34. C-1 Notes: Market-based rate applications are pending at the Commission for Public Power, LLC (Pennsylvania), Public Power & Utility of NY, Inc., Public Power & Utility of Maryland, LLC, and Public Power & Utility of New Jersey, LLC. In each of the boxes above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in the relevant subsidiary.
  • 35. C-2 Note: Control of the business and affairs of JMEG Holdings, LLC is exclusively vested in an individual, Johny Malohn, who is Manager of and owns a 51 percent ownership interest in the company. The remaining owners’ respective ownership interests in JMEG Holdings are merely passive. In the box above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in REH.
  • 36. C-3 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Public Power, LLC and 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Public Power, LLC or Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity owns 10 percent or more of the voting shares of Regional Energy Holdings, Inc. or Crius Energy LLC.
  • 37. C-4 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Crius Energy LLC, but otherwise no person or entity no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
  • 38. C-5 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
  • 39. EXHIBIT E COMMON OFFICERS AND DIRECTORS Regional Energy Holdings, Inc. and Public Power, LLC are the parties to the proposed transaction. There are no common officers or directors among (i) REH and any of its current affiliates and subsidiaries, and (ii) Public Power and any of its current affiliates and subsidiaries.
  • 40. EXHIBIT I TRANSACTION AGREEMENTS PUBLIC VERSION ************************************************** PRIVILEGED, PROTECTED, CONFIDENTIAL INFORMATION HAS BEEN REMOVED **************************************************
  • 41. EXHIBIT M STATEMENT REGARDING CROSS-SUBSIDIZATION As demonstrated in Section V.D of the Application and incorporated by reference into this Exhibit M, the proposed transactions raise no issues concerning cross-subsidization. The Applicants verify with respect to themselves, based on facts and circumstances known to them or that are reasonably foreseeable, that the proposed transactions will not result in, at the time of the proposed transactions or in the future: (1) any transfers of facilities between a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, and an associate company; (2) any new issuances of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; (3) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (4) any new affiliate contracts between a non-utility associate company and a traditional public utility associate company that has captive customers or that own or provide transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the Federal Power Act.
  • 43. UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) PROTECTIVE ORDER (Issued ____________, 20__) 1. This Protective Order shall govern the use of all Protected Materials produced by, or on behalf of, any Participant. Notwithstanding any order terminating this proceeding, this Protective Order shall remain in effect until specifically modified or terminated by the Presiding Administrative Law Judge (“Presiding Judge”) or the Federal Energy Regulatory Commission (“Commission”). 2. This Protective Order applies to the following two categories of materials: (A) A Participant may designate as protected those materials which customarily are treated by that Participant as sensitive or proprietary, which are not available to the public, and which, if disclosed freely, would subject that Participant or its customers to risk of competitive disadvantage or other business injury; and (B) A Participant shall designate as protected those materials which contain critical energy infrastructure information, as defined in 18 C.F.R. § 388.113(c)(1) (“Critical Energy Infrastructure Information”). 3. Definitions -- For purposes of this Order: (a) The term “Participant” shall mean Public Power, LLC (“Public Power”) and Regional Energy Holdings, Inc. (the “Applicants”), any person or entity contemplating intervening in this proceeding to whom Protected Materials are provided by the Applicant or its affiliates prior to such intervention, and a Participant as defined in 18 C.F.R. § 385.102(b). (b)(1) The term “Protected Materials” means (A) materials (including depositions) provided by a Participant as part of any application or other pleading filed with the Commission or in response to discovery requests, and designated by such Participant as protected; (B) any information contained in or obtained from such designated materials; (C) any other materials which are made subject to this Protective Order by the Presiding Judge, by the Commission, by any court or other body having appropriate authority, or by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protected Materials. The Participant producing the Protected Materials shall physically mark them on each page as “CONTAINS PRIVILEGED INFORMATION––DO NOT RELEASE” or “PROTECTED MATERIALS” or with words of similar import as long as the term “Protected Materials” is included in that designation to indicate that they are Protected Materials. If the Protected Materials contain Critical Energy Infrastructure Information, the Participant producing such information shall additionally mark on each page containing such information the words “Contains Critical Energy Infrastructure Information––Do Not Release.”
  • 44. 2 (2) The term “Notes of Protected Materials” means memoranda, handwritten notes, or any other form of information (including electronic form) which copies or discloses materials described in Paragraphs 3(b)(1) or 5. Notes of Protected Materials are subject to the same restrictions provided in this order for Protected Materials except as specifically provided in this order. (3) Protected Materials shall not include (A) any information or document contained in the files of the Commission, or any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court, or (B) information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this Protective Order, or (C) any information or document labeled as “Non-Internet Public” by a Participant, in accordance with Paragraph 30 of FERC Order No. 630, FERC Stats. & Regs. ¶ 31,140. Protected Materials do include any information or document contained in the files of the Commission that has been designated as Critical Energy Infrastructure Information. (c) The term “Non-Disclosure Certificate” shall mean the certificate annexed hereto by which Participants who have been granted access to Protected Materials shall certify their understanding that such access to Protected Materials is provided pursuant to the terms and restrictions of this Protective Order, and that such Participants have read the Protective Order and agree to be bound by it. All Non- Disclosure Certificates shall be served on all parties on the official service list maintained by the Secretary in this proceeding. (d) The term “Reviewing Representative” shall mean a person who has signed a Non- Disclosure Certificate and who is: (1) Commission Litigation Staff; (2) an attorney who has made an appearance in this proceeding for a Participant; (3) an attorney, paralegal, or other employee associated for purposes of this case with an attorney described in Paragraph (2); (4) an expert or an employee of an expert retained by a Participant for the purpose of advising, preparing for or testifying in this proceeding; (5) a person designated as a Reviewing Representative by order of the Presiding Judge or the Commission; or (6) an employee or other representative of Participants appearing in this proceeding with significant responsibility for this docket. 4. Protected Materials shall be made available under the terms of this Protective Order only to Participants and only through their Reviewing Representatives as provided in Paragraphs 7-9.
  • 45. 3 5. Protected Materials shall remain available to Participants until the later of the date that an order terminating this proceeding becomes no longer subject to judicial review, or the date that any other Commission proceeding relating to the Protected Material is concluded and no longer subject to judicial review. If requested to do so in writing after that date, the Participants shall, within fifteen days of such request, return the Protected Materials (excluding Notes of Protected Materials) to the Participant that produced them, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and Notes of Protected Material may be retained, if they are maintained in accordance with Paragraph 6, below. Within such time period each Participant, if requested to do so, shall also submit to the producing Participant an affidavit stating that, to the best of its knowledge, all Protected Materials and all Notes of Protected Materials have been returned or have been destroyed or will be maintained in accordance with Paragraph 6. To the extent Protected Materials are not returned or destroyed, they shall remain subject to the Protective Order. 6. All Protected Materials shall be maintained by the Participant in a secure place. Access to those materials shall be limited to those Reviewing Representatives specifically authorized pursuant to Paragraphs 8-9. The Secretary shall place any Protected Materials filed with the Commission in a non-public file. By placing such documents in a nonpublic file, the Commission is not making a determination of any claim of privilege. The Commission retains the right to make determinations regarding any claim of privilege and the discretion to release information necessary to carry out its jurisdictional responsibilities. For documents submitted to Commission Litigation Staff (“Staff”), Staff shall follow the notification procedures of 18 C.F.R. § 388.112 before making public any Protected Materials. 7. Protected Materials shall be treated as confidential by each Participant and by the Reviewing Representative in accordance with the certificate executed pursuant to Paragraph 9. Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any manner to any person except a Reviewing Representative who is engaged in the conduct of this proceeding and who needs to know the information in order to carry out that person’s responsibilities in this proceeding. Reviewing Representatives may make copies of Protected Materials, but such copies become Protected Materials. Reviewing Representatives may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if they disclose the contents of Protected Materials. 8. (a) If a Reviewing Representative’s scope of employment includes the marketing of energy, the direct supervision of any employee or employees whose duties include the marketing of energy, the provision of consulting services to any person whose duties include the marketing of energy, or the direct supervision of any employee or employees whose duties include the marketing of energy, such Reviewing Representative may not use information contained in any Protected Materials obtained through this proceeding to give any Participant or any competitor of any Participant a commercial advantage. (b) In the event that a Participant wishes to designate as a Reviewing Representative a person not described in Paragraph 3 (d) above, the Participant shall seek agreement from the Participant providing the Protected Materials. If an agreement is reached that person shall be a Reviewing
  • 46. 4 Representative pursuant to Paragraphs 3(d) above with respect to those materials. If no agreement is reached, the Participant shall submit the disputed designation to the Presiding Judge for resolution. 9. (a) A Reviewing Representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this Protective Order unless that Reviewing Representative has first executed a Non- Disclosure Certificate provided that if an attorney qualified as a Reviewing Representative has executed such a certificate, the paralegals, secretarial and clerical personnel under the attorney’s instruction, supervision or control need not do so. A copy of each Non- Disclosure Certificate shall be provided to counsel for the Participant asserting confidentiality prior to disclosure of any Protected Material to that Reviewing Representative. (b) Attorneys qualified as Reviewing Representatives are responsible for ensuring that persons under their supervision or control comply with this order. 10. Any Reviewing Representative may disclose Protected Materials to any other Reviewing Representative as long as the disclosing Reviewing Representative and the receiving Reviewing Representative both have executed a Non-Disclosure Certificate. In the event that any Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in these proceedings, or is employed or retained for a position whose occupant is not qualified to be a Reviewing Representative under Paragraph 3(d), access to Protected Materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this Protective Order and the certification. 11. Subject to Paragraph 17, the Presiding Administrative Law Judge or the Commission shall resolve any disputes arising under this Protective Order. Prior to presenting any dispute under this Protective Order to the Presiding Administrative Law Judge or the Commission, the parties to the dispute shall use their best efforts to resolve it. Any participant that contests the designation of materials as protected shall notify the party that provided the protected materials by specifying in writing the materials whose designation is contested. This Protective Order shall automatically cease to apply to such materials five (5) business days after the notification is made unless the designator, within said 5-day period, files a motion with the Presiding Administrative Law Judge or the Commission, with supporting affidavits, demonstrating that the materials should continue to be protected. In any challenge to the designation of materials as protected, the burden of proof shall be on the participant seeking protection. If the Presiding Administrative Law Judge or the Commission finds that the materials at issue are not entitled to protection, the procedures of Paragraph 17 shall apply. The procedures described above shall not apply to protected materials designated by a Participant as Critical Energy Infrastructure Information. Materials so designated shall remain protected and subject to the provisions of this Protective Order, unless a Participant requests and obtains a determination from the Commission’s Critical Energy Infrastructure Information Coordinator that such materials need not remain protected.
  • 47. 5 12. All copies of all documents reflecting Protected Materials, including the portion of the hearing testimony, exhibits, transcripts, briefs and other documents which refer to Protected Materials, shall be filed and served in sealed envelopes or other appropriate containers endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents shall be marked “PROTECTED MATERIALS” or “CONTAINS PRIVILEGED INFORMATION-DO NOT RELEASE” and shall be filed under seal and served under seal upon the Presiding Judge and all Reviewing Representatives who are on the service list. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information - Do Not Release.” For anything filed under seal, redacted versions or, where an entire document is protected, a letter indicating such, will also be filed with the Commission and served on all parties on the service list and the Presiding Judge. Counsel for the producing Participant shall provide to all Participants who request the same, a list of Reviewing Representatives who are entitled to receive such material. Counsel shall take all reasonable precautions necessary to assure that Protected Materials are not distributed to unauthorized persons. 13. If any Participant desires to include, utilize or refer to any Protected Materials or information derived therefrom in testimony or exhibits during the hearing in these proceedings in such a manner that might require disclosure of such material to persons other than reviewing representatives, such participant shall first notify both counsel for the disclosing participant and the Presiding Judge of such desire, identifying with particularity each of the Protected Materials. Thereafter, use of such Protected Material will be governed by procedures determined by the Presiding Judge. Nothing in this Protective Order shall be construed as precluding any Participant from objecting to the use of Protected Materials on any legal grounds. 14. Nothing in this Protective Order shall preclude any Participant from requesting the Presiding Judge, the Commission, or any other body having appropriate authority, to find that this Protective Order should not apply to all or any materials previously designated as Protected Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this Protective Order as circumstances warrant at any time during the course of this proceeding. 15. Each party governed by this Protective Order has the right to seek changes in it as appropriate from the Presiding Judge or the Commission. 16. All Protected Materials filed with the Commission, the Presiding Judge, or any other judicial or administrative body, in support of, or as a part of, a motion, other pleading, brief, or other document, shall be filed and served in sealed envelopes or other appropriate containers bearing prominent markings indicating that the contents include Protected Materials subject to this Protective Order. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information – Do Not Release.” 17. If the Presiding Judge finds at any time in the course of this proceeding that all or part of the Protected Materials need not be protected, those materials shall, nevertheless, be subject to the protection afforded by this Protective Order for three (3) business days from the date of issuance of the Presiding Judge’s decision, and if the Participant seeking protection files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional seven (7)
  • 48. 6 business days. None of the Participants waives its rights to seek additional administrative or judicial remedies after the Presiding Judge’s decision respecting Protected Materials or Reviewing Representatives, or the Commission’s denial of any appeal thereof. The provisions of 18 C.F.R. §§ 388.112 and 388.113 shall apply to any requests for Protected Materials in the files of the Commission under the Freedom of Information Act. (5 U.S.C. § 552). 18. Nothing in this Protective Order shall be deemed to preclude any Participant from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this Protective Order. 19. None of the Participants waives the right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Materials. 20. The contents of Protected Materials or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with this Protective Order and shall be used only in connection with this (these) proceeding(s). Any violation of this Protective Order and of any Non- Disclosure Certificate executed hereunder shall constitute a violation of an order of the Commission.
  • 49. UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) NON-DISCLOSURE CERTIFICATE I hereby certify my understanding that access to Protected Materials is provided to me pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been given a copy of and have read the Protective Order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with that Protective Order. I acknowledge that a violation of this certificate constitutes a violation of an order of the Federal Energy Regulatory Commission. By: Title: Representing: Date: