CHAPTER 146

FORMERLY

HOUSE BILL NO. 306

AN ACT TO AMEND CHAPTER 1, TITLE 26, DELAWARE CODE RELATING TO REQUIRING APPROVAL OF THE DELAWARE PUBLIC SERVICE COMMISSION PRIOR TO TRANSFER OF CONTROL OF A DELAWARE PUBLIC UTILITY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §215, Subchapter 11, Chapter 1, Title 26, Delaware Code by striking said Section in its entirety and substituting in lieu thereof the following:

"pls. Merger, Mortgage or Transfer of Property; Issuance of Securities; Assumption of Obligation of Another; Transfer of Control; Exceptions

(a) No public utility, without having first obtained the approval of the Commission, shall (1) directly or indirectly merge or consolidate with any other person or company, or sell, lease, assign, or mortgage except by supplemental indenture in accordance with the terms of a mortgage outstanding September 1, 1949, or otherwise dispose of or encumber any essential part of its franchises, plant, equipment or other property, necessary or useful in the performance of its duty to the public; or (2) issue any stocks, stock certificates, or notes, bonds or other evidences of indebtedness payable in more than one year from the date thereof; or (3) assume any obligation or liability as guarantor, endorser, surety or otherwise in respect of any security of any other person or corporation, payable or maturing more than one year after the date of such issue or assumption of liability.

(b) No individual, group, syndicate, general or limited partnership, association, corporation, joint stock company, trust, or other entity, whether or not organized under the laws of this State, shall acquire control, either directly or indirectly, of any public utility doing business in this State without having first obtained the approval of the Commission. Any such acquisition of control without such prior authorization shall be void and of no effect. As used herein the term 'control' means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a public utility, whether through the ownership of voting securities, by effecting a change in the composition of the board of directors, by contract or otherwise. Control shall be presumed to exist if any such individual or entity, directly or indirectly, owns 10% or more of the voting securities of the public utility. This presumption may be rebutted by a showing that such ownership does not in fact confer control.

(c) Application for any such approval or authorization shall be made to the Commission in writing, verified by oath or affirmation, and be in such form and contain such information u the Commission requires.

(d) The Commission shall approve any such proposed merger, mortgage, transfer, Issue, assumption, or acquisition when it finds that the same is to be made in accordance with law, for a proper purpose and Is consistent with the public interest. The Commission may make such investigation and hold such hearings in the matter as it deems necessary, and thereafter may grant any application under this section in whole or in part and with such modification and upon such terms and conditions as it deems necessary or appropriate. The Commission shall grant, modify, refuse or prescribe appropriate terms and conditions with respect to every such application within 30 days after the filing of the application therefor, except that with respect to any application filed under subsection (b) hereof, if the Commission gives notice to the parties of a hearing to be held by the Commission with respect to the application and the hearing is commenced within such 30 days or on a date mutually acceptable to the Commission and the parties, the Commission shall have 30 days after the submission of the hearing examiner's report or recommended decision within which to render Its decision. In the absence of any such action within such period of time, any such proposed merger, mortgage, transfer, issue, assumption, or acquisition shall be deemed to be approved.

(e) Subsection (b) of this section shall not apply to any acquisition of control of any public utility which derives a greater percentage of its gross revenue from business in another jurisdiction than from business in this State if the Commission determines that the other jurisdiction has statutes or rules which are applicable and are being applied and which afford protection to ratepayers in this State substantially equal to that afforded such ratepayers by this section. For purposes of this subsection, the term 'gross revenue' is used as that term Is used in Section 115(c) of this title, except that in defining gross revenue derived from business in another jurisdiction, the name of the appropriate regulatory agency or agencies established by such other jurisdiction for the regulation of public utilities shall be substituted for the Public Service Commission' In Section 115(cXI) and for ' the Commission' in Section 115(b).

(f) Nothing contained in this section shall be construed in any way to prevent the sale or lease or other disposition of any public utility of any of its property in the ordinary course of its business."

Section 2. "Scvcrability. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can bo given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable."

Approved July 4, 1985.