FILE NO. 70-10013
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO FORM U-1 APPLICATION/DECLARATION
UNDER SECTION 3(b) AND
RULE 10 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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DUKE ENERGY CORPORATION
526 S. Church Street
Charlotte, North Carolina 28202
(Name of the company filing this application and
address of its principal executive office)
---------------------------------------------
David L. Hauser
Senior Vice President and
Treasurer
Duke Energy Corporation
526 S. Church Street
Charlotte, North Carolina 28202
(Name and address of agent for service)
Please also submit copies of all correspondence to:
Adam Wenner, Esq.
Catherine O'Harra, Esq.
Vinson & Elkins L.L.P.
The Willard Office Building
1455 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-1008
J. Curtis Moffatt, Esq.
Van Ness Feldman
A Professional Corporation
1050 Thomas Jefferson St.
Washington, D.C. 20007-3877
Applicant, Duke Energy Corporation ("Duke Energy"), a North Carolina
corporation, entered into an Amended and Restated Combination Agreement with
Westcoast Energy Inc. ("Westcoast"), a corporation organized under the laws of
Canada, pursuant to which Duke Energy proposed to acquire the stock of Westcoast
(the "Acquisition").
On November 30, 2001, the Form U-1 Application/Declaration in this
proceeding was originally filed pursuant to Section 3(b) of the Public Utility
Holding Company Act of 1935 (the "1935 Act") with the Securities and Exchange
Commission and was subsequently amended on January 15, 2002 (Amendment No. 1),
January 7, 2002 (Amendment No. 2), January 29, 2002 (Amendment No. 3), March 7,
2002 (Amendment No. 4), and March 8, 2002 (Amendment No. 5). On March 8, 2002,
the Commission issued an order granting the requested exemptions under Section
3(b) of the 1935 Act.(1) On March 14, 2002, the Acquisition was consummated.
Applicant files herewith a Certificate relating to the consummation of the
Acquisition as required by Rule 24(a). Applicant also submits a "past tense"
opinion of counsel regarding the Acquisition.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned company has duly caused this Post-Effective Amendment No.
2 to the Form U-1 Application/Declaration to be signed on its behalf by the
undersigned thereunto duly authorized.
Respectfully submitted,
DUKE ENERGY CORPORATION
By: /s/ David L. Hauser
--------------------------------
David L. Hauser
Vice President and
Treasurer
Dated: March 21, 2002
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1 Duke Energy Corporation, Release No. 35-27496; 70-10013, March 8, 2002.
2
CERTIFICATE
Re: Duke Energy Corporation, File No. 70-10013; Release No. 35-27496 (March 8,
2002)
Duke Energy Corporation ("Duke Energy") hereby certifies to the Securities
and Exchange Commission ("Commission") that it has carried out its acquisition
of stock in Westcoast Energy Inc. ("Westcoast") as provided in the Amended and
Restated Combination Agreement between Duke and Westcoast described in, and in
accordance with the terms and conditions of and for the purposes represented by
the Form U-1 Application/Declaration, as amended ("Application") submitted by
Duke Energy in the above-referenced docket, and with the Commission's order of
March 8, 2002 referenced above.
DUKE ENERGY CORPORATION
/s/ David L. Hauser
-----------------------------------
David L. Hauser
Senior Vice President and Treasurer
Duke Energy Corporation
March 21, 2002
VINSON & ELKINS L.L.P.
THE WILLARD OFFICE BUILDING
1455 PENNSYLVANIA AVE., N.W.
[GRAPHIC OMITTED] WASHINGTON, D.C. 20004-1008
Vinson & Elkins TELEPHONE (202) 639-6500
ATTORNEYS AT LAW FAX (202) 639-6604
www.velaw.com
ADAM WENNER
Direct Dial 6533
Direct Fax 6604
awenner@velaw.com
March 21, 2002
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Duke Energy Corporation, Form U-1 Application-Declaration, File No.
70-10013
Ladies and Gentlemen:
We refer to the Form U-1 Application-Declaration (the
"Application-Declaration") filed by Duke Energy Corporation ("Duke Energy"), a
North Carolina corporation, and approved by the Securities and Exchange
Commission (the "SEC") on March 8, 2002. Capitalized terms and parties not
defined herein shall have the meanings ascribed to such terms and parties in the
Application-Declaration.
In the Application-Declaration, Duke Energy applied under Section 3(b) of
the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), for
an order from the SEC to exempt the following companies from the provisions of
the 1935 Act: Union Gas Limited, Pacific Northern Gas Ltd. and P.T. Puncakjaya
(collectively, the "Non-U.S. Utilities"). Duke Energy entered into an agreement
with Westcoast Energy Inc. ("Westcoast"), a corporation organized under the laws
of Canada, to acquire the stock of Westcoast. The Non-U.S. Utilities are
subsidiaries of Westcoast that operate exclusively outside the United States. We
have acted as counsel for Duke Energy in connection with this
Application-Declaration.
The opinions expressed below in respect of the Acquisition described in
the Application-Declaration (the "Acquisition") are subject to the following
assumptions or qualifications:
a. The Acquisition was duly authorized and approved by the Board of
Directors of Duke Energy;
b. The SEC duly entered an appropriate order exempting the Non-U.S.
Utilities without qualification pursuant to section 3(b) of the 1935 Act
from all obligations, duties or liabilities imposed on them as subsidiary
companies of a holding company, granting the Application-Declaration and
permitting the Application-Declaration to become effective with respect to
the Acquisition;
c. The Acquisition was consummated in accordance with all approvals,
authorizations, consents, certificates and orders of any applicable state
commission or
U.S. Securities and Exchange Commission
Page 2
March 21, 2002
regulatory authority required for the consummation of the Acquisition, and
all such required approvals, authorizations, consents, certificates and
orders were obtained and remain in effect;
d. The Acquisition was consummated in accordance with the
Application-Declaration;
e. In rendering opinions number 1 and 2 below, we relied exclusively on
a legal opinion of even date herewith from in-house counsel to Duke
Energy. In rendering opinion number 3 below, we relied exclusively, with
respect to Canadian law, on a legal opinion of even date herewith from
Stikeman Elliott, Duke Energy's Canadian counsel for the Acquisition, and,
with respect to North Carolina and South Carolina law, on a legal opinion
of even date herewith from in-house counsel to Duke Energy;
f. Opinion number 2 below is limited to the laws of the States of North
Carolina and South Carolina, which, according to a legal opinion of even
date herewith from in-house counsel to Duke Energy, are the only states in
which Duke Energy is engaged in the business of a public utility company,
as defined under the 1935 Act;
g. Opinion number 3 below is limited to (i) the laws of Canada and the
province of British Columbia, which according to the legal opinion of even
date herewith from Stikeman Elliott, Duke Energy's Canadian counsel for
the Acquisition, is the only Canadian jurisdiction governing the Plan of
Arrangement, pursuant to which the acquisition of securities of Westcoast
contemplated by the Acquisition will occur, (ii) the laws of the States of
North Carolina and South Carolina, which, according to the legal opinion
of even date herewith from in-house counsel to Duke Energy, are the only
states in which Duke Energy is engaged in the business of a public utility
company, as defined under the 1935 Act, and (iii) the federal laws of the
United States;
h. No act or event other than as described herein shall have occurred
subsequent to the date hereof which would change the opinions expressed
above.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the opinion that:
1. Duke Energy is validly organized and duly existing under the laws of
the State of North Carolina.
2. Duke Energy, upon consummation of the Acquisition, complied with all
State laws applicable to the Acquisition.
3. Upon consummation of the Acquisition, Duke Energy, indirectly
through a subsidiary, legally acquired the common shares of Westcoast,
which were the only securities acquired in the Acquisition.
U.S. Securities and Exchange Commission
Page 3
March 21, 2002
We hereby consent to the use of this opinion as an exhibit to the
Application-Declaration. We have offices in the States of New York and
Texas and in Washington, D.C., and our opinions herein are limited to the
laws of such jurisdictions and the federal laws of the United States. The
opinions set forth herein are issued and expressed as of the date hereof.
We do not assume or undertake any responsibility to advise you of changes
in either fact or law which may come to our attention after the date
hereof.
Very truly yours,
VINSON & ELKINS L.L.P.