860-027-0175 - Energy Utility Reporting Requirements Relating to Major Shareholders

860-027-0175. Energy Utility Reporting Requirements Relating to Major Shareholders

(1) As used in this rule:

(a) "Beneficial owner(ship)" has the meaning defined in 17 CFR ¦ 240.13d-3 (April 1, 2009).

(b) "Board member" means a member of the board of directors of an energy utility or the board of directors of an entity or person authorized by the Commission to exercise substantial influence over an energy utility.

(c) "Major shareholder" means a person that is a beneficial owner, directly or indirectly, of five percent or more of an energy utility. In the event a person is a beneficial owner of shares of a parent of an energy utility, the person may also be an indirect beneficial owner of the energy utility. Indirect beneficial ownership of an energy utility is calculated by multiplying the person's percentage of beneficial ownership of the parent by the parent(s)'s percentage of beneficial ownership of the energy utility.

(d) "Person" has the meaning set forth in ORS 756.010(5).

(e) "Schedule 13D" means the statement filed with the Securities and Exchange Commission, as required by 17 C.F.R. 240.13d-1 (April 1, 2009), and containing the information required by 17 C.F.R. 240.13d-101 (April 1, 2009).

(f) "Schedule 13G" means the statement filed with the Securities and Exchange Commission, as required by 17 C.F.R. 240.13 d- 1 (April 1, 2009), and containing the information required by 17 C.F.R. 240.13d-102 (April 1, 2009).

(g) "Securities and Exchange Commission" means the federal agency created under Section 4 of the 1934 Securities Exchange Act, as codified at 15 U.S.C. 78 d (January 5, 2009).

(h) "Tender offer" means an offer to purchase the equity securities of an energy utility, or the solicitation of an offer to sell the equity securities of an energy utility, that would constitute a tender offer, or a request or invitation for tender, for the purpose of Section 14(d) of the Securities Exchange Act of 1934, as codified at 15 U.S.C. 78 n(d) (February 1, 2010).

(2) An energy utility must submit a written report to the Commission by March 1 of each calendar year.

(a) The report must list the energy utility's major shareholders and their respective percentages of beneficial ownership of the energy utility and parent(s), to the extent such information is then known to management of the energy utility; or, if there are no major shareholders, the report must state that there are none.

(b) Information in the report must be current as of December 31 of the previous year or a more recent date if so specified by the energy utility in the report.

(3) In addition to the March 1 report, within 10 business days after the energy utility acquires actual knowledge of the existence and identity of a major shareholder, the energy utility must submit a written report to the Commission that identifies the major shareholder and lists the shareholder's percentage of beneficial ownership of the energy utility and parent(s). The energy utility may rely on information in Schedule 13D or Schedule 13G filings with the Securities and Exchange Commission. The report must include copies of Schedule 13D or Schedule 13G filings made with the Securities and Exchange Commission by the listed major shareholders, when copies have not been provided previously to the Commission.

(4) Each energy utility must report to the Commission within 10 business days after the energy utility acquires actual knowledge of the existence of a Schedule 13D filing made with the Securities and Exchange Commission by a major shareholder with respect to beneficial ownership or intended beneficial ownership of the energy utility or parent(s).

(5) Each energy utility must file with the Commission a detailed report describing any of the following actions taken by, or on behalf of, a major shareholder within 10 business days after the energy utility acquires actual knowledge of the action:

(a) A request to insert in the proxy statement of the energy utility or a parent of the energy utility:

(A) The major shareholder's nominee for election to the board of directors of the energy utility or parent of the energy utility, or

(B) A proposal that could materially affect the policies or actions of the energy utility;

(b) The initiation of an independent solicitation of proxies to vote for:

(A) The major shareholder's nominee for election to the board of directors of the energy utility or a parent of the energy utility, or

(B) A proposal that could materially affect the policies or actions of the energy utility;

(c) The initiation of a withhold or "vote no" campaign against any existing member of the board of directors of the energy utility or parent of the energy utility;

(d) The placement on the ballot used at a meeting of the shareholders of the energy utility or a parent of the energy utility, :

(A) The major shareholder's nominee for election to the board of directors of the energy utility or such parent, or

(B) A proposal that could materially affect the policies or actions of the energy utility;

(e) The expression of an intent to take any of the actions set forth in sections (5)(a) through (5)(d), if the energy utility does not comply with a request by the major shareholder;

(f) The expression of an intent to buy or sell shares of the energy utility or a parent if the energy utility does not comply with a request by the major shareholder that would materially affect the policies or actions of the energy utility;

(g) The initiation of a tender offer with respect to the energy utility or parent;

(h) Any other expression by a major shareholder of intent to:

(A) Take an action that could materially affect the policies or actions of the energy utility if the energy utility does not comply with a request from the major shareholder, or

(B) Provide an inducement to the energy utility for complying with a request by the major shareholder that could materially affect the policies or actions of the energy utility; and

(i) An action or event that would require a major shareholder to make a 13D filing with the Securities and Exchange Commission.

(6) Each board member is required to report to the Chief Executive Officer or President of the energy utility any action of a major shareholder described in section (5) of this rule within five business days after the board member acquires actual knowledge of such action.

(7) The energy utility, directly or indirectly through a parent, must notify each board member in writing, at least once every 12 months, of the reporting obligations described in section (6) of this rule. The energy utility must maintain at its corporate office, copies of these notices for a period two years from the date of such notice, and must produce such notices to the Commission within five business days of a request by the Commission.

(8) An energy utility is not required to provide a report to the Commission for:

(a) A request made by a major shareholder, or the representative of a major shareholder, in the capacity of a shareholder, for information normally available to shareholders of the energy utility or a parent; or

(b) A request made by the major shareholder, or the representative of a major shareholder, in the capacity of a customer of the energy utility, regarding utility service.

(9) Unless expressly provided in a Commission order, this rule does not apply to any actions otherwise reportable by the energy utility or a parent or its respective board members under section (5) where the major shareholder has been authorized to exert control or influence by a Commission order entered under ORS 757.511.

(10) The energy utility must identify a report submitted to the Commission under this rule as a report filed under OAR 860-027-0175. The energy utility must describe the basis for a request that the report, or any portion thereof, be treated as containing information not subject to public disclosure, as required by OAR 860-001-0070. The Commission will review the report and determine if a filing by the major shareholder under ORS 757.511 is required.

(PUC 7-2010, f. & cert. ef. 12-2-10)

Stat. Auth.: ORS 756.040, 757.511

Stats. Implemented: ORS 757.511

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