Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Wisconsin Energy Corporation 9 34K
2: EX-2.1 Agreement and Plan of Merger 84 331K
3: EX-2.2 Wec Stock Option Agreement 18 79K
4: EX-2.3 Nsp Stock Option Agreement 18 78K
5: EX-2.4 Committees of the Board of Directors of Primergy 1 6K
6: EX-2.5 Form of Employment Agreement of James J. Howard 30 66K
7: EX-2.6 Form of Employment Agreement of Richard A. Abdoo 27 63K
8: EX-2.7 Amended and Restated Articles of Northern Power 37 124K
Wis Corp
9: EX-99.1 Wec Press Release 5 22K
EX-2.2 — Wec Stock Option Agreement
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EXHIBIT (2)-2
WEC STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of April 28, 1995
by and among Northern States Power Company, a Minnesota corporation
("NSP"), and Wisconsin Energy Corporation, a Wisconsin corporation
(the "COMPANY").
WHEREAS, concurrently with the execution and
delivery of this Agreement, (i) NSP, the Company, Northern Power
Wisconsin Corp., a Wisconsin corporation ("NEW NSP") and WEC Sub
Corp., a Wisconsin corporation ("WEC SUB"), are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the
"MERGER AGREEMENT"), which provides, among other things, upon the
terms and subject to the conditions thereof, for the merger of NSP
with and into New NSP and the merger of WEC Sub with and into New
NSP (the "MERGERS"), and (ii) the Company and NSP are entering into
a certain stock option agreement dated as of the date hereof
whereby NSP grants to the Company an option with respect to certain
shares of NSP's common stock on the terms and subject to the
conditions set forth therein (the "NSP STOCK OPTION AGREEMENT");
and
WHEREAS, as a condition to NSP's willingness to
enter into the Merger Agreement, NSP has requested that the Company
agree, and the Company has so agreed, to grant to NSP an option
with respect to certain shares of the Company's common stock, on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, to induce NSP to enter into the Mer-
ger Agreement, and in consideration of the mutual covenants and
agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants NSP
an irrevocable option (the "COMPANY OPTION") to purchase up to
21,773,726 shares, subject to adjustment as provided in SECTION 11
(such shares being referred to herein as the "COMPANY SHARES") of
common stock, par value $.01 per share, of the Company (the
"COMPANY COMMON STOCK") (being 19.9% of the number of shares of
Company Common Stock outstanding on the date hereof) in the manner
set forth below at a price (the "EXERCISE PRICE") per Company Share
of $27.675 (which is equal to the Fair Market Value (as defined
below) of a Company Share on the date hereof) payable, at NSP's
option, (a) in cash or (b) subject to the Company's having obtained
the approvals of any Governmental Authority required for the
Company to acquire the NSP Shares (as defined below) from NSP,
which approvals the Company shall use best efforts to obtain, in
shares of common
stock, par value $2.50 per share, of NSP ("NSP SHARES") in either
case in accordance with Section 4 hereof. Notwithstanding the
foregoing, in no event shall the number of Company Shares for which
the Company Option is exercisable exceed 19.9% of the number of
issued and outstanding shares of Company Common Stock. As used
herein, the "FAIR MARKET VALUE" of any share shall be the average
of the daily closing sales price for such share on the New York
Stock Exchange (the "NYSE") during the 10 NYSE trading days prior
to the fifth NYSE trading day preceding the date such Fair Market
Value is to be determined. Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Merger
Agreement.
2. EXERCISE OF OPTION. The Company Option may be
exercised by NSP, in whole or in part, at any time or from time to
time after the Merger Agreement becomes terminable by NSP under
circumstances which could entitle NSP to termination fees under
either Section 9.3(a) of the Merger Agreement (provided that the
events specified in Section 9.3(a)(ii)(x) of the Merger Agreement
shall have occurred, although the events specified in Section
9.3(a)(ii)(y) thereof need not have occurred) or Section 9.3(b) of
the Merger Agreement (regardless of whether the Merger Agreement is
actually terminated or whether there occurs a closing of any
Business Combination involving a Target Party or a closing by which
a Target Party becomes a subsidiary), any such event by which the
Merger Agreement becomes so terminable by NSP being referred to
herein as a "TRIGGER EVENT." The Company shall notify NSP promptly
in writing of the occurrence of any Trigger Event, it being un-
derstood that the giving of such notice by the Company shall not be
a condition to the right of NSP to exercise the Company Option. In
the event NSP wishes to exercise the Company Option, NSP shall
deliver to the Company a written notice (an "EXERCISE NOTICE")
specifying the total number of Company Shares it wishes to
purchase. Each closing of a purchase of Company Shares (a
"CLOSING") shall occur at a place, on a date and at a time
designated by NSP in an Exercise Notice delivered at least two
business days prior to the date of the Closing. The Company Option
shall terminate upon the earlier of: (i) the Effective Time; (ii)
the termination of the Merger Agreement pursuant to Section 9.1
thereof (other than upon or during the continuance of a Trigger
Event); or (iii) 180 days following any termination of the Merger
Agreement upon or during the continuance of a Trigger Event (or if,
at the expiration of such 180 day period the Company Option cannot
be exercised by reason of any applicable judgment, decree, order,
law or regulation, 10 business days after such impediment to
exercise shall have been removed or shall have become final and not
subject to appeal, but in no event under this clause (iii) later
than October 31, 1997). Notwithstanding the foregoing,
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the Company Option may not be exercised if NSP is in material
breach of any of its material representations or warranties, or in
material breach of any of its covenants or agreements, contained in
this Agreement or in the Merger Agreement. Upon the giving by NSP
to the Company of the Exercise Notice and the tender of the
applicable aggregate Exercise Price, NSP shall be deemed to be the
holder of record of the Company Shares issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Company
Shares shall not then be actually delivered to NSP.
3. CONDITIONS TO CLOSING. The obligation of the
Company to issue the Company Shares to NSP hereunder is subject to
the conditions, which (other than the conditions described in
clauses (i), (iii) and (iv) below) may be waived by the Company in
its sole discretion, that (i) all waiting periods, if any, under
the HSR Act, applicable to the issuance of the Company Shares
hereunder shall have expired or have been terminated; (ii) the
Company Shares, and any NSP Shares which are issued in payment of
the Exercise Price, shall have been approved for listing on the
NYSE upon official notice of issuance; (iii) all consents,
approvals, orders or authorizations of, or registrations,
declarations or filings with, any federal, state or local
administrative agency or commission or other federal state or local
Governmental Authority, if any, required in connection with the
issuance of the Company Shares hereunder shall have been obtained
or made, as the case may be, including, without limitation, the
approval of the SEC under Section 10 of the 1935 Act of the
acquisition of the Company Shares by NSP and, if applicable, the
acquisition by the Company of the NSP Shares constituting the
Exercise Price hereunder; and (iv) no preliminary or permanent
injunction or other order by any court of competent jurisdiction
prohibiting or otherwise restraining such issuance shall be in
effect.
4. CLOSING. At any Closing, (a) the Company will
deliver to NSP or its designee a single certificate in definitive
form representing the number of the Company Shares designated by
NSP in its Exercise Notice, such certificate to be registered in
the name of NSP and to bear the legend set forth in SECTION 12, and
(b) NSP will deliver to the Company the aggregate price for the
Company Shares so designated and being purchased by (i) wire
transfer of immediately available funds or certified check or bank
check or (ii) subject to the condition in SECTION 1(b), a
certificate or certificates representing the number of NSP Shares
being issued by NSP in consideration thereof, as the case may be.
For the purposes of this Agreement, the number of NSP Shares to be
delivered to the Company shall be equal to the quotient obtained by
dividing (i)
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the product of (x) the number of Company Shares with respect to
which the Company Option is being exercised and (y) the Exercise
Price by (ii) the Fair Market Value of the NSP Shares on the date
immediately preceding the date the Exercise Notice is delivered to
the Company. The Company shall pay all expenses, and any and all
United States federal, state and local taxes and other charges that
may be payable in connection with the preparation, issue and
delivery of stock certificates under this Section 4 in the name of
NSP or its designee.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to NSP that (a) except as set
forth in Section 5.1 of the WEC Disclosure Schedule, the Company is
a corporation duly organized, validly existing and in active status
under the laws of the State of Wisconsin and has the corporate
power and authority to enter into this Agreement and, subject to
obtaining the applicable approval of shareholders of the Company
for the repurchase of Company Shares pursuant to Section 7(a) below
under circumstances where Section 180.1134(1) of the WBCL or
Article III D.(1) of the Company's Restated Articles of
Incorporation ("RESTATED ARTICLES") would be applicable (the
"BUYBACK APPROVALS") and subject to any regulatory approvals
referred to herein and to the provisions of Section 180.0640 of the
WBCL, if applicable, to carry out its obligations hereunder, (b)
the execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of the Company and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or any of
the transactions contemplated hereby (other than any required Buy-
back Approvals), (c) such corporate action (including the approval
of the Board of Directors of the Company) is intended to render
inapplicable to this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, the provisions of the
WBCL referred to in Section 5.15 of the Merger Agreement, (d) this
Agreement has been duly executed and delivered by the Company,
constitutes a valid and binding obligation of the Company and,
assuming this Agreement constitutes a valid and binding obligation
of NSP, is enforceable against the Company in accordance with its
terms, (e) the Company has taken all necessary corporate action to
authorize and reserve for issuance and to permit it to issue, upon
exercise of the Company Option, and at all times from the date
hereof through the expiration of the Company Option will have re-
served, 21,773,726 authorized and unissued Company Shares, such
amount being subject to adjustment as provided in SECTION 11, all
of which, upon their issuance and delivery in accordance with the
terms of this Agreement, will be validly issued, fully paid and
nonassessable (subject to Section 180.0622(2)(b) of
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the WBCL, as judicially interpreted), (f) upon delivery of the
Company Shares to NSP upon the exercise of the Company Option, NSP
will acquire the Company Shares free and clear of all claims,
liens, charges, encumbrances and security interests of any nature
whatsoever, (g) except as described in Section 5.4(b) of the Merger
Agreement, the execution and delivery of this Agreement by the
Company does not, and the consummation by the Company of the
transactions contemplated hereby will not, violate, conflict with,
or result in a breach of any provision of, or constitute a default
(with or without notice or lapse of time, or both) under, or result
in the termination of, or accelerate the performance required by,
or result in a right of termination, cancellation, or acceleration
of any obligation or the loss of a material benefit under, or the
creation of a lien, pledge, security interest or other encumbrance
on assets (any such conflict, violation, default, right of
termination, cancellation or acceleration, loss or creation, a
"VIOLATION") of the Company or any of its subsidiaries, pursuant
to, (A) any provision of the Restated Articles or by-laws of the
Company, (B) any provisions of any loan or credit agreement, note,
mortgage, indenture, lease, Company benefit plan or other
agreement, obligation, instrument, permit, concession, franchise,
license or (C) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company or its
properties or assets, which Violation, in the case of each of
clauses (B) and (C), could reasonably be expected to have a
material adverse effect on the Company and its subsidiaries taken
as a whole, (h) except as described in Section 5.4(c) of the Merger
Agreement or SECTION 1(b) or SECTION 3 hereof, the execution and
delivery of this Agreement by the Company does not, and the
performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, (i) none of the Com-
pany, any of its affiliates or anyone acting on its or their behalf
has issued, sold or offered any security of the Company to any
person under circumstances that would cause the issuance and sale
of the Company Shares, as contemplated by this Agreement, to be
subject to the registration requirements of the Securities Act as
in effect on the date hereof and, assuming the representations of
NSP contained in Section 6(h) are true and correct, the issuance,
sale and delivery of the Company Shares hereunder would be exempt
from the registration and prospectus delivery requirements of the
Securities Act, as in effect on the date hereof (and the Company
shall not take any action which would cause the issuance, sale and
delivery of the Company Shares hereunder not to be exempt from such
requirements), and (j) any NSP Shares acquired pursuant to this
Agreement will be acquired for the Company's own account, for
investment purposes only and will not be acquired
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by the Company with a view to the public distribution thereof in
violation of any applicable provision of the Securities Act.
6. REPRESENTATIONS AND WARRANTIES OF NSP. NSP rep-
resents and warrants to the Company that (a) NSP is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Minnesota and has the corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this
Agreement by NSP and the consummation by NSP of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of NSP and no other corporate
proceedings on the part of NSP are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this
Agreement has been duly executed and delivered by NSP and
constitutes a valid and binding obligation of NSP, and, assuming
this Agreement constitutes a valid and binding obligation of the
Company, is enforceable against NSP in accordance with its terms,
(d) prior to any delivery of NSP Shares in consideration of the
purchase of Company Shares pursuant hereto, NSP will have taken all
necessary corporate action to authorize for issuance and to permit
it to issue such NSP Shares, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, and to render
inapplicable to the receipt by the Company of the NSP Shares the
provisions of the MBCA referred to in Section 4.15 of the Merger
Agreement, (e) upon any delivery of such NSP Shares to the Company
in consideration of the purchase of Company Shares pursuant hereto,
the Company will acquire the NSP Shares free and clear of all
claims, liens, charges, encumbrances and security interests of any
nature whatsoever, (f) except as described in Section 4.4(b) of the
Merger Agreement, the execution and delivery of this Agreement by
NSP does not, and the consummation by NSP of the transactions
contemplated hereby will not, violate, conflict with, or result in
the breach of any provision of, or constitute a default (with or
without notice or lapse of time, or both) under, or result in any
Violation by NSP or any of its subsidiaries, pursuant to (A) any
provision of the Restated Articles of Incorporation or By-laws of
NSP, (B) any provisions of any loan or credit agreement, note,
mortgage, indenture, lease, NSP benefit plan or other agreement,
obligation, instrument, permit, concession, franchise, license or
(C) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to NSP or its properties or assets, which
Violation, in the case of each of clauses (B) and or (C), would
have a material adverse effect on NSP and its subsidiaries taken as
a whole, (g) except as described in Section 4.4(c) of the Merger
Agreement or SECTION 1(b) or SECTION 3 hereof, the execution and
delivery of this
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Agreement by NSP does not, and the consummation by NSP of the
transactions contemplated hereby will not, require any consent,
approval, authorization or permit of, or filing with or noti-
fication to, any Governmental Authority and (h) any Company Shares
acquired upon exercise of the Company Option will be acquired for
NSP's own account, for investment purposes only and will not be,
and the Company Option is not being, acquired by NSP with a view to
the public distribution thereof in violation of any applicable
provision of the Securities Act.
7. CERTAIN REPURCHASES.
(a) NSP PUT. At the request of NSP by written no-
tice at any time during which the Company Option is exercisable
pursuant to SECTION 2 (the "REPURCHASE PERIOD"), the Company (or
any successor entity thereof) shall repurchase from NSP all or any
portion of the Company Option, at the price set forth in
subparagraph (i) below, or, at the request of NSP by written notice
at any time prior to April 30, 1997 (provided that such date shall
be extended to October 31, 1997 under the circumstances where the
date after which either party may terminate the Merger Agreement
pursuant to Section 9.1(b) of the Merger Agreement has been
extended to October 31, 1997), the Company (or any successor entity
thereof) shall repurchase from NSP all or any portion of the
Company Shares purchased by NSP pursuant to the Company Option, at
the price set forth in subparagraph (ii) below:
(i) the difference between the "MARKET/OFFER PRICE" for
shares of Company Common Stock as of the date NSP gives notice
of its intent to exercise its rights under this SECTION 7
(defined as the higher of (A) the price per share offered as
of such date pursuant to any tender or exchange offer or other
offer with respect to a Business Combination which was made
prior to such date and not terminated or withdrawn as of such
date (the "OFFER PRICE") and (B) the Fair Market Value of
Company Common Stock as of such date (the "MARKET PRICE")) and
the Exercise Price, multiplied by the number of Company Shares
purchasable pursuant to the Company Option (or portion thereof
with respect to which NSP is exercising its rights under this
SECTION 7), but only if the Market/Offer Price is greater than
the Exercise Price;
(ii) the product of (x) the sum of (A) the Exercise Price
paid by NSP per Company Share acquired pursuant to the Company
Option and (B) the difference between the Market/Offer Price
and the Exercise Price, but only if the Market/Offer Price is
greater than the Exercise Price, and (y) the number of Company
Shares so to be repurchased
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pursuant to this SECTION 7. For purposes of this clause (ii),
the Offer Price shall be the highest price per share offered
pursuant to a tender or exchange offer or other Business
Combination offer during the Repurchase Period prior to the
delivery by NSP of a notice of repurchase.
(b) REDELIVERY OF NSP SHARES. If NSP elected to
purchase Company Shares pursuant to the exercise of the Company
Option by the issuance and delivery of NSP Shares, then the Company
shall, if so requested by NSP, in fulfillment of its obligation
pursuant to clause (A) of SECTION 7(a)(ii)(x) (that is, with
respect to the Exercise Price only and without limitation to its
obligation to pay additional consideration under clause (B) of
SECTION 7(a)(ii)(x)), redeliver the certificate for such NSP Shares
to NSP, free and clear of all liens, claims, damages, charges and
encumbrances of any kind or nature whatsoever; PROVIDED, HOWEVER,
that if less than all of the Company Shares purchased by NSP
pursuant to the Company Option are to be repurchased pursuant to
this SECTION 7, then NSP shall issue to the Company a new
certificate representing those NSP Shares which are not due to be
redelivered to NSP pursuant to this SECTION 7 as they constituted
payment of the Exercise Price for the Company Shares not being
repurchased.
(c) PAYMENT AND REDELIVERY OF COMPANY OPTION OR SHARES.
In the event NSP exercises its rights under this SECTION 7, the
Company shall, within 10 business days thereafter, pay the required
amount to NSP in immediately available funds and NSP shall
surrender to the Company the Company Option or the certificates
evidencing the Company Shares purchased by NSP pursuant thereto,
and NSP shall warrant that it owns the Company Option or such
shares and that the Company Option or such shares are then free and
clear of all liens, claims, damages, charges and encumbrances of
any kind or nature whatsoever.
(d) NSP CALL. If NSP has elected to purchase Company
Shares pursuant to the exercise of the Company Option by the
issuance and delivery of NSP Shares, notwithstanding that NSP may
no longer hold any such Company Shares or that NSP elects not to
exercise its other rights under this SECTION 7, NSP may require, at
any time or from time to time prior to April 30, 1997 (provided
that such date shall be extended to October 31, 1997 under the
circumstances where the date after which either party may terminate
the Merger Agreement pursuant to Section 9.1(b) of the Merger
Agreement has been extended to October 31, 1997), the Company to
sell to NSP any such NSP Shares at the price attributed to such NSP
Shares pursuant to SECTION 4 plus interest at the rate of 6.5% per
annum on such amount from the Closing Date relating to the exchange
of such NSP Shares pursuant to SECTION 4 to the closing date under
this
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SECTION 7(d) less any dividends on such NSP Shares paid during such
period or declared and payable to stockholders of record on a date
during such period.
(e) REPURCHASE PRICE REDUCED AT NSP'S OPTION. In the
event the repurchase price specified in SECTION 7(a) would subject
the purchase of the Company Option or the Company Shares purchased
by NSP pursuant to the Company Option to a vote of the shareholders
of the Company pursuant to Section 180.1134 of the WBCL or Section
D(1) of Article III of the Company's Restated Articles of
Incorporation, then NSP may, at its election, reduce the repurchase
price to an amount which would permit such repurchase without the
necessity for such a shareholder vote.
8. VOTING OF SHARES. Following the date hereof and
prior to the fifth anniversary of the date hereof (the "EXPIRATION
DATE"), each party shall vote any shares of capital stock of the
other party acquired by such party pursuant to this Agreement,
including any NSP Shares issued pursuant to SECTION 1(b)
("RESTRICTED SHARES") or otherwise beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT")) by such party on each
matter submitted to a vote of shareholders of such other party for
and against such matter in the same proportion as the vote of all
other shareholders of such other party are voted (whether by proxy
or otherwise) for and against such matter.
9. RESTRICTIONS ON TRANSFER.
(a) RESTRICTIONS ON TRANSFER. Prior to the Expiration
Date, neither party shall, directly or indirectly, by operation of
law or otherwise, sell, assign, pledge, or otherwise dispose of or
transfer any Restricted Shares beneficially owned by such party,
other than (i) pursuant to SECTION 7, or (ii) in accordance with
SECTION 9(b) or SECTION 10.
(b) PERMITTED SALES. Following the termination of the
Merger Agreement, a party shall be permitted to sell any Restricted
Shares beneficially owned by it if such sale is made pursuant to a
tender or exchange offer that has been approved or recommended, or
otherwise determined to be fair to and in the best interests of the
shareholders of the other party, by a majority of the members of
the Board of Directors of such other party which majority shall
include a majority of directors who were directors prior to the
announcement of such tender or exchange offer.
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10. REGISTRATION RIGHTS. Following the termination of
the Merger Agreement, each party hereto (a "DESIGNATED HOLDER") may
by written notice (the "REGISTRATION NOTICE") to the other party
(the "REGISTRANT") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares
beneficially owned by such Designated Holder (the "REGISTRABLE
SECURITIES") pursuant to a bona fide firm commitment underwritten
public offering in which the Designated Holder and the underwriters
shall effect as wide a distribution of such Registrable Securities
as is reasonably practicable and shall use their best efforts to
prevent any person (including any Group (as used in Rule 13d-5
under the Exchange Act)) and its affiliates from purchasing through
such offering Restricted Shares representing more than 1% of the
outstanding shares of common stock of the Registrant on a fully
diluted basis (a "PERMITTED OFFERING"). The Registration Notice
shall include a certificate executed by the Designated Holder and
its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing (the
"MANAGER"), stating that (i) they have a good faith intention to
commence promptly a Permitted Offering and (ii) the Manager in good
faith believes that, based on the then prevailing market con-
ditions, it will be able to sell the Registrable Securities at a
per share price equal to at least 80% of the then Fair Market Value
of such shares. The Registrant (and/or any person designated by
the Registrant) shall thereupon have the option exercisable by
written notice delivered to the Designated Holder within 10
business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the Registrable
Securities proposed to be so sold for cash at a price (the "OPTION
PRICE") equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then
Fair Market Value of such shares. Any such purchase of Registrable
Securities by the Registrant (or its designee) hereunder shall take
place at a closing to be held at the principal executive offices of
the Registrant or at the offices of its counsel at any reasonable
date and time designated by the Registrant and/or such designee in
such notice within 20 business days after delivery of such notice.
Any payment for the shares to be purchased shall be made by
delivery at the time of such closing of the Option Price in
immediately available funds.
If the Registrant does not elect to exercise its option
pursuant to this SECTION 10 with respect to all Registrable
Securities, it shall use its best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the
unpurchased Registrable Securities proposed to be so sold;
PROVIDED, HOWEVER, that (i) neither party shall be entitled to more
than an aggregate of two effective registration
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statements hereunder and (ii) the Registrant will not be required
to file any such registration statement during any period of time
(not to exceed 40 days after such request in the case of clause (A)
below or 90 days in the case of clauses (B) and (C) below) when (A)
the Registrant is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed
at such time and, in the opinion of counsel to the Registrant, such
information would have to be disclosed if a registration statement
were filed at that time; (B) the Registrant is required under the
Securities Act to include audited financial statements for any
period in such registration statement and such financial statements
are not yet available for inclusion in such registration statement;
or (C) the Registrant determines, in its reasonable judgment, that
such registration would interfere with any financing, acquisition
or other material transaction involving the Registrant or any of
its affiliates. The Registrant shall use its reasonable best
efforts to cause any Registrable Securities registered pursuant to
this SECTION 10 to be qualified for sale under the securities or
Blue-Sky laws of such jurisdictions as the Designated Holder may
reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; PROVIDED, HOWEVER,
that the Registrant shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction
by reason of this provision.
The registration rights set forth in this SECTION 10 are
subject to the condition that the Designated Holder shall provide
the Registrant with such information with respect to such holder's
Registrable Securities, the plans for the distribution thereof, and
such other information with respect to such holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all
material facts required to be disclosed with respect to a
registration thereunder.
A registration effected under this SECTION 10 shall be
effected at the Registrant's expense, except for underwriting
discounts and commissions and the fees and the expenses of counsel
to the Designated Holder, and the Registrant shall provide to the
underwriters such documentation (including certificates, opinions
of counsel and "comfort" letters from auditors) as are customary in
connection with underwritten public offerings as such underwriters
may reasonably require. In connection with any such registration,
the parties agree (i) to indemnify each other and the underwriters
in the customary manner, (ii) to enter into an underwriting
agreement in form and substance customary for transactions of such
type with the
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Manager and the other underwriters participating in such offering
and (iii) to take all further actions which shall be reasonably
necessary to effect such registration and sale (including, if the
Manager deems it necessary, participating in road-show
presentations).
The Registrant shall be entitled to include (at its
expense) additional shares of its common stock in a registration
effected pursuant to this SECTION 10 only if and to the extent the
Manager determines that such inclusion will not adversely affect
the prospects for success of such offering.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Without
limitation to any restriction on the Company contained in this
Agreement or in the Merger Agreement, in the event of any change in
Company Common Stock by reason of stock dividends, splitups,
mergers (other than the Mergers), recapitalizations, combinations,
exchange of shares or the like, the type and number of shares or
securities subject to the Company Option, and the purchase price
per share provided in SECTION 1, shall be adjusted appropriately to
restore to NSP its rights hereunder, including the right to
purchase from the Company (or its successors) shares of Company
Common Stock representing 19.9% of the outstanding Company Common
Stock for the aggregate Exercise Price calculated as of the date of
this Agreement as provided in SECTION 1.
12. RESTRICTIVE LEGENDS. Each certificate representing
shares of Company Common Stock issued to NSP hereunder, and NSP
Shares, if any, delivered to the Company at a Closing, shall
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY IF
SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGIS-
TRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUB-
JECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK OPTION AGREEMENT, DATED AS OF APRIL
28, 1995, A COPY OF WHICH MAY BE OBTAINED FROM THE
ISSUER UPON REQUEST.
It is understood and agreed that: (i) the reference to the
resale restrictions of the Securities Act in the above legend
shall be removed by delivery of substitute certificate(s)
without such reference if NSP or the Company, as the case may
be, shall have delivered to the other party a copy of a letter
from the staff of the Securities and Exchange Commission, or an
opinion of counsel, in form and substance satisfactory to the
other party, to the effect that such legend is not required for
-12-
purposes of the Securities Act; (ii) the reference to the pro-
visions to this Agreement in the above legend shall be removed
by delivery of substitute certificate(s) without such reference
if the shares have been sold or transferred in compliance with
the provisions of this Agreement and under circumstances that do
not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the
preceding clauses (i) and (ii) are both satisfied. In addition,
such certificates shall bear any other legend as may be required
by law. Certificates representing shares sold in a registered
public offering pursuant to SECTION 10 shall not be required to
bear the legend set forth in this SECTION 12.
13. BINDING EFFECT; NO ASSIGNMENT; NO THIRD PARTY
BENEFICIARIES. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective suc-
cessors and permitted assigns. Except as expressly provided for
in this Agreement, neither this Agreement nor the rights or the
obligations of either party hereto are assignable, except by
operation of law, or with the written consent of the other
party. Nothing contained in this Agreement, express or implied,
is intended to confer upon any person other than the parties
hereto and their respective permitted assigns any rights or
remedies of any nature whatsoever by reason of this Agreement.
Any Restricted Shares sold by a party in compliance with the
provisions of SECTION 10 shall, upon consummation of such sale,
be free of the restrictions imposed with respect to such shares
by this Agreement, unless and until such party shall repurchase
or otherwise become the beneficial owner of such shares, and any
transferee of such shares shall not be entitled to the
registration rights of such party.
14. SPECIFIC PERFORMANCE. The parties recognize and
agree that if for any reason any of the provisions of this
Agreement are not performed in accordance with their specific
terms or are otherwise breached, immediate and irreparable harm
or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in
addition to other remedies, the other party shall be entitled to
an injunction restraining any violation or threatened violation
of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of
the Agreement, neither party will allege, and each party hereby
waives the defense, that there is adequate remedy at law.
15. ENTIRE AGREEMENT. This Agreement, the NSP Stock
Option Agreement, the Confidentiality Agreement and the Merger
Agreement (including the exhibits and schedules thereto) con-
stitute the entire agreement among the parties with respect to
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the subject matter hereof and thereof and supersede all other
prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject
matter hereof and thereof.
16. FURTHER ASSURANCES. Each party will execute and
deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate
the transactions contemplated hereby.
17. VALIDITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of the other provisions of this Agreement, which
shall remain in full force and effect. In the event any court
or other competent authority holds any provisions of this
Agreement to be null, void or unenforceable, the parties hereto
shall negotiate in good faith the execution and delivery of an
amendment to this Agreement in order, as nearly as possible, to
effectuate, to the extent permitted by law, the intent of the
parties hereto with respect to such provision and the economic
effects thereof. If for any reason any such court or regulatory
agency determines that NSP is not permitted to acquire, or the
Company is not permitted to repurchase pursuant to SECTION 7,
the full number of shares of Company Common Stock provided in
SECTION 1 hereof (as the same may be adjusted), it is the
express intention of the Company to allow NSP to acquire or to
require the Company to repurchase such lesser number of shares
as may be permissible, without any amendment or modification
hereof. Each party agrees that, should any court or other
competent authority hold any provision of this Agreement or part
hereof to be null, void or unenforceable, or order any party to
take any action inconsistent herewith, or not take any action
required herein, the other party shall not be entitled to
specific performance of such provision or part hereof or to any
other remedy, including but not limited to money damages, for
breach hereof or of any other provision of this Agreement or
part hereof as the result of such holding or order.
18. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if (i)
delivered personally, or (ii) sent by reputable overnight cou-
rier service, or (iii) telecopied (which is confirmed), or (iv)
five days after being mailed by registered or certified mail
(return receipt requested) to the parties at the following ad-
dresses (or at such other address for a party as shall be
specified by like notice):
-14-
A. If to NSP, to:
Northern States Power Company
4 Nicollet Mall
Minneapolis, MN 55401
Attention: Gary R. Johnson, Esq.
Telephone: (612) 330-7623
Telecopy: (612) 330-6222
with a copy to:
Gardner, Carton & Douglas
Quaker Tower
321 North Clark Street, 31st Floor
Chicago, IL 60610
Attention: Peter Clarke, Esq.
Telephone: (312) 245-8685
Telecopy: (312) 644-3381
and a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Barry A. Bryer, Esq.
Seth A. Kaplan, Esq.
Telephone: (212) 403-1000
Telecopy: (212) 403-2000
B. If to the Company, to:
Wisconsin Energy Corporation
231 West Michigan Street
Milwaukee, WI 53201
Attention: Walter T. Woelfle, Esq.
Telephone: (414) 221-2765
Telecopy: (414) 221-2412
with a copy to:
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Patrick M. Ryan, Esq.
Telephone: (414) 277-5181
Telecopy: (414) 277-5174
and a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022
Attention: Sheldon S. Adler, Esq.
Telephone: (212) 735-3000
Telecopy: (212) 735-2000
19. GOVERNING LAW; CHOICE OF FORUM. This Agreement
shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be
performed entirely within such State and without regard to its
choice of law principles. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any
federal court located in the State of New York or any New York
state court in the event any dispute arises out of this Agree-
ment or any of the transactions contemplated by this Agreement,
(b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from
any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contem-
plated by this Agreement in any court other than a federal court
sitting in the state of New York or a New York state court.
20. INTERPRETATION. When a reference is made in this
Agreement to a Section such reference shall be to a Section of
this Agreement unless otherwise indicated. Whenever the words
"include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without
limitation". The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
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21. COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall be deemed to be an orig-
inal, but both of which, taken together, shall constitute one
and the same instrument.
22. EXPENSES. Except as otherwise expressly provided
herein or in the Merger Agreement, all costs and expenses
incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such ex-
penses.
23. AMENDMENTS; WAIVER. This Agreement may be
amended by the parties hereto and the terms and conditions
hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving
compliance.
24. EXTENSION OF TIME PERIODS. The time periods for
exercise of certain rights under SECTIONS 2, 6 and 7 shall be
extended: (i) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights, and for the expira-
tion of all statutory waiting periods; and (ii) to the extent
necessary to avoid any liability under SECTION 16(b) of the
Exchange Act by reason of such exercise.
25. REPLACEMENT OF COMPANY OPTION. Upon receipt by
the Company of evidence reasonably satisfactory to it of the
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loss, theft, destruction or mutilation of this Agreement, and
(in the case of loss, theft or destruction) of reasonably sat-
isfactory indemnification, and upon surrender and cancellation
of this Agreement, if mutilated, the Company will execute and
deliver a new Agreement of like tenor and date.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective duly autho-
rized officers as of the date first above written.
NORTHERN STATES POWER COMPANY
By: /s/ JAMES J. HOWARD
-------------------------
Name: James J. Howard
Title: Chairman and Chief
Executive Officer
WISCONSIN ENERGY CORPORATION
By: /s/ RICHARD A. ABDOO
------------------------------
Name: Richard A. Abdoo
Title: Chairman, President and
Chief Executive Officer
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 10/31/97 | | 2 | | 8 | | | None on these Dates |
| | 4/30/97 | | 7 | | 8 |
| Filed on: | | 5/3/95 |
| For Period End: | | 4/28/95 | | 1 | | 12 |
| List all Filings |
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