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91_SB0411eng SB411 Engrossed LRB9102271JSpc 1 AN ACT to amend the Public Utilities Act by changing 2 Section 6-102. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Public Utilities Act is amended by 6 changing Section 6-102 as follows: 7 (220 ILCS 5/6-102) (from Ch. 111 2/3, par. 6-102) 8 Sec. 6-102. Authorization of issues of stock, bonds, and 9 notes. 10 (a) Subject to the provisions of this Act and of the 11 order of the Commission issued as provided in this Act, a 12 public utility may issue stocks and stock certificates, and 13 bonds, notes and other evidences of indebtedness payable at 14 periods of more than 12 months after the date thereof for any 15 lawful purpose. However, such public utility shall first have 16 secured from the Commission an order authorizing such issue 17 and stating the amount thereof and the purpose or purposes to 18 which the issue or the proceeds thereof are to be applied, 19 and that in the opinion of the Commission, the money, 20 property or labor to be procured or paid for by such issue is 21 reasonably required for the purpose or purposes specified in 22 the order. 23 (b) The provisions of this subsection (b) shall apply 24 only to (1) any issuances of stock in a cumulative amount, 25 exclusive of any issuances referred to in item (3), that are 26 10% or more in a calendar year or 20% or more in a 24-month 27 period of the total common stockholders' equity or of the 28 total amount of preferred stock outstanding, as the case may 29 be, of the public utility, and (2) to any issuances of bonds, 30 notes or other evidences of indebtedness in a cumulative 31 principal amount, exclusive of any issuances referred to in SB411 Engrossed -2- LRB9102271JSpc 1 item (3), that are 10% or more in a calendar year or 20% or 2 more in a 24-month period of the aggregate principal amount 3 of bonds, notes and other evidences of indebtedness of the 4 public utility outstanding, all as of the date of the 5 issuance, but shall not apply to (3) any issuances of stock 6 or of bonds, notes or other evidences of indebtedness 90% or 7 more of the proceeds of which are to be used by the public 8 utility for purposes of refunding, redeeming or refinancing 9 outstanding issues of stock, bonds, notes or other evidences 10 of indebtedness. To enable it to determine whether it will 11 issue the order required by subsection (a) of this Section, 12 the Commission may hold a hearing and may make such 13 additional inquiry or investigation, and examine such 14 witnesses, books, papers, accounts, documents and contracts 15 and require the filing of such data as it may deem of 16 assistance. The public utility may be required by the 17 Commission to disclose every interest of the directors of 18 such public utility in any transaction under investigation. 19 The Commission shall have power to investigate all such 20 transactions and to inquire into the good faith thereof, to 21 examine books, papers, accounts, documents and contracts of 22 public utilities, construction or other companies or of firms 23 or individuals with whom the public utility shall have had 24 financial transactions, for the purpose of enabling it to 25 verify any statements furnished, and to examine into the 26 actual value of property acquired by or services rendered to 27 such public utility. Before issuing its order, the 28 Commission, when it is deemed necessary by the Commission, 29 shall make an adequate physical valuation of all property of 30 the public utility, but a valuation already made under proper 31 public supervision may be adopted, either in whole or in 32 part, at the discretion of the Commission; and shall also 33 examine all previously authorized or outstanding securities 34 of the public utility, and fixed charges attached thereto. A SB411 Engrossed -3- LRB9102271JSpc 1 statement of the results of such physical valuation, and a 2 statement of the character of all outstanding securities, 3 together with the conditions under which they are held, shall 4 be included in the order. The Commission may require that 5 such information or such part thereof as it thinks proper, 6 shall appear upon the stock, stock certificate, bond, note or 7 other evidence of indebtedness authorized by its order. The 8 Commission may by its order grant permission for the issue of 9 such stock certificates, or bonds, notes or other evidences 10 of indebtedness in the amount applied for, or in a lesser 11 amount, or not at all, and may attach to the exercise of its 12 permission such condition or conditions as it may deem 13 reasonable and necessary. Nothing in this Section shall 14 prevent a public utility from seeking, nor the Commission 15 from approving, a shelf registration plan for issuing 16 securities over a reasonable period in accordance with 17 regulations established by the United States Securities and 18 Exchange Commission. Any securities issued pursuant to an 19 approved shelf registration plan need not be further approved 20 by the Commission so long as they are in compliance with the 21 approved shelf registration plan. The Commission shall have 22 the power to refuse its approval of applications to issue 23 securities, in whole or in part, upon a finding that the 24 issue of such securities would be contrary to public 25 interest. The Commission may also require the public utility 26 to compile for the information of its shareholders such facts 27 in regard to its financial transactions, in such form as the 28 Commission may direct. 29 No public utility shall, without the consent of the 30 Commission, apply the issue of any stock or stock 31 certificates, or bond, note or other evidence of 32 indebtedness, which was issued pursuant to an order of the 33 Commission entered pursuant to this subsection (b), or any 34 part thereof, or any proceeds thereof, to any purpose not SB411 Engrossed -4- LRB9102271JSpc 1 specified in the Commission's order or to any purpose 2 specified in the Commission's order in excess of the amount 3 authorized for such purpose; or issue or dispose of the same 4 on any terms less favorable than those specified in such 5 order, or a modification thereof. The Commission shall have 6 the power to require public utilities to account for the 7 disposition of the proceeds of all sales of stocks and stock 8 certificates, and bonds, notes and other evidences of 9 indebtedness, which were issued pursuant to an order of the 10 Commission entered pursuant to this subsection (b), in such 11 form and detail as it may deem advisable, and to establish 12 such rules and regulations as it may deem reasonable and 13 necessary to insure the disposition of such proceeds for the 14 purpose or purposes specified in its order. 15 (c) A public utility may issue notes, for proper 16 purposes, and not in violation of any provision of this Act 17 or any other Act, payable at periods of not more than 12 18 months after the date of issuance of the same, without the 19 consent of the Commission; but no such note shall, in whole 20 or in part, be renewed or be refunded from the proceeds of 21 any other such note or evidence of indebtedness from time to 22 time without the consent of the Commission for an aggregate 23 period of longer than 2 years. 24 (d) Any issuance of stock or of bonds, notes or other 25 evidences of indebtedness, other than issuances of notes 26 pursuant to subsection (c) of this Section, which is not 27 subject to subsection (b) of this Section, shall be regulated 28 by the Commission as follows: the public utility shall file 29 with the Commission, at least 15 days before the date of the 30 issuance, an informational statement setting forth the type 31 and amount of the issue and the purpose or purposes to which 32 the issue or the proceeds thereof are to be applied. Prior 33 to the date of the issuance specified in the public utility's 34 filing, the Commission, if it finds that the issuance is not SB411 Engrossed -5- LRB9102271JSpc 1 subject to subsection (b) of this Section, shall issue a 2 written order in conformance with subsection (a) of this 3 Section authorizing the issuance. Notwithstanding any other 4 provisions of this Act, the Commission may delegate its 5 authority to enter the order required by this subsection (d) 6 to a hearing examiner. 7 (e) The Commission shall have no power to authorize the 8 capitalization of the right to be a corporation, or to 9 authorize the capitalization of any franchise, license, or 10 permit whatsoever or the right to own, operate or enjoy any 11 such franchise, license, or permit, in excess of the amount 12 (exclusive of any tax or annual charge) actually paid to the 13 State or to a political subdivision thereof as the 14 consideration for the grant of such franchise, license, 15 permit or right; nor shall any contract for consolidation or 16 lease be capitalized, nor shall any public utility hereafter 17 issue any bonds, notes or other evidences of indebtedness 18 against or as a lien, upon any contract for consolidation or 19 merger. 20 (f) The provisions of this Section shall not apply to 21 public utilities which are not corporations duly incorporated 22 under the laws of this State to the extent that any such 23 public utility may issue stock, bonds, notes or other 24 evidences of indebtedness not directly or indirectly 25 constituting or creating a lien or charge on, or right to 26 profits from, any property used or useful in rendering 27 service within this State. Nothing in this Section or in 28 Section 6-104 of this Act shall be construed to require a 29 common carrier by railroad subject to Part I of the 30 Interstate Commerce Act, being part of an Act of the 49th 31 Congress of the United States entitled "An Act to Regulate 32 Commerce", as amended, to secure from the Commission 33 authority to issue or execute or deliver any conditional 34 sales contract or similar contract or instrument reserving or SB411 Engrossed -6- LRB9102271JSpc 1 retaining title in the seller for all or part of the purchase 2 price of equipment or property used or to be used for or in 3 connection with the transportation of persons or property. 4 (Source: P.A. 90-561, eff. 12-16-97.)