Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 9 31K
2: EX-1 Underwriting Agreement 84 290K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 18 68K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 18 68K
5: EX-4 Instrument Defining the Rights of Security Holders 1 5K
6: EX-5 Opinion re: Legality 30 63K
7: EX-6 Opinion re: Discount on Capital Shares 27 63K
8: EX-7 Opinion re: Liquidation Preference 37 118K
9: EX-8 Opinion re: Tax Matters 6 21K
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
EX-2 | 1st Page of 18 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 2 CONFORMED COPY
WEC STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of April 28, 1995 by
and among Northern States Power Company, a Minnesota corpora-
tion ("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 Wis-
consin 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) sub-
ject 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 ei-
ther 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. Capital-
ized 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 Mer-
ger Agreement shall have occurred, although the events speci-
fied 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 be-
comes 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 Op-
tion, 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 Agree-
ment pursuant to Section 9.1 thereof (other than upon or during
the continuance of a Trigger Event); or (iii) 180 days follow-
ing 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 regu-
lation, 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, con-
tained 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 issu-
able upon such exercise, notwithstanding that the stock trans-
fer books of the Company shall then be closed or that certifi-
cates representing such Company Shares shall not then be actu-
ally 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 ter-
minated; (ii) the Company Shares, and any NSP Shares which are
issued in payment of the Exercise Price, shall have been ap-
proved for listing on the NYSE upon official notice of issu-
ance; (iii) all consents, approvals, orders or authorizations
of, or registrations, declarations or filings with, any fed-
eral, 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 Com-
pany of the NSP Shares constituting the Exercise Price here-
under; 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 defini-
tive form representing the number of the Company Shares desig-
nated 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 ag-
gregate 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 condi-
tion in Section 1(b), a certificate or certificates represent-
ing the number of NSP Shares being issued by NSP in consider-
ation 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 Exer-
cise 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 Arti-
cles") would be applicable (the "Buyback Approvals") and sub-
ject 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 de-
livery 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 re-
quired Buyback Approvals), (c) such corporate action (including
the approval of the Board of Directors of the Company) is in-
tended 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 ob-
ligation of the Company and, assuming this Agreement consti-
tutes a valid and binding obligation of NSP, is enforceable
against the Company in accordance with its terms, (e) the Com-
pany 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 ac-
celerate 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, fran-
chise, 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 Company, 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 contem-
plated 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 de-
livery of the Company Shares hereunder would be exempt from the
registration and prospectus delivery requirements of the Secu-
rities 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 pur-
suant 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 corpora-
tion duly organized, validly existing and in good standing un-
der 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 au-
thorize 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 ac-
cordance with its terms, (d) prior to any delivery of NSP
Shares in consideration of the purchase of Company Shares pur-
suant hereto, NSP will have taken all necessary corporate ac-
tion 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 inappli-
cable to the receipt by the Company of the NSP Shares the pro-
visions 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 se-
curity interests of any nature whatsoever, (f) except as de-
scribed in Section 4.4(b) of the Merger Agreement, the exe-
cution 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 no-
tice or lapse of time, or both) under, or result in any Vio-
lation 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, fran-
chise, 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 de-
scribed 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 vio-
lation 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 circum-
stances 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 Exer-
cise 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 limi-
tation 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 Sec-
tion 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 Com-
pany 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 Com-
pany 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 "Expi-
ration 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 Expira-
tion Date, neither party shall, directly or indirectly, by op-
eration 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 ex-
change 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 Re-
stricted 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 des-
ignated by the Registrant) shall thereupon have the option ex-
ercisable 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 no-
tice 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 op-
tion pursuant to this Section 10 with respect to all Regis-
trable 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 en-
titled to more than an aggregate of two effective registration
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statements hereunder and (ii) the Registrant will not be re-
quired to file any such registration statement during any pe-
riod 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 ma-
terial 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, ac-
quisition or other material transaction involving the Regis-
trant 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 jurisdic-
tion; provided, however, that the Registrant shall not be re-
quired to qualify to do business in, or consent to general
service of process in, any jurisdiction by reason of this pro-
vision.
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 dis-
tribution 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 underwrit-
ing 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 cer-
tificates, opinions of counsel and "comfort" letters from au-
ditors) 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 of-
fering and (iii) to take all further actions which shall be
reasonably necessary to effect such registration and sale (in-
cluding, 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 registra-
tion effected pursuant to this Section 10 only if and to the
extent the Manager determines that such inclusion will not ad-
versely 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 divi-
dends, splitups, mergers (other than the Mergers), recapital-
izations, 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 repre-
senting 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 ad-
dition, 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 im-
plied, 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 vio-
lation of the provisions of this Agreement. In the event that
any action should be brought in equity to enforce the provi-
sions 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 regula-
tory 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
-15-
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 Sec-
tion 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 in-
serted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of
this Agreement.
-16-
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 pro-
vided 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
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.
-17-
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
-18-
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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