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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 5 TO
SCHEDULE 14D-9
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities Exchange Act of 1934
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KANSAS CITY POWER & LIGHT COMPANY
(Name of Subject Company)
KANSAS CITY POWER & LIGHT COMPANY
(Name of Person Filing Statement)
COMMON STOCK, NO PAR VALUE
(Title of Class of Securities)
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485134100
(CUSIP Number of Class of Securities)
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JEANIE SELL LATZ, ESQ.
SENIOR VICE PRESIDENT, CORPORATE SECRETARY
AND CHIEF LEGAL OFFICER
KANSAS CITY POWER & LIGHT COMPANY
1201 WALNUT
KANSAS CITY, MISSOURI 64106-2124
(816) 556-2200
(Name, address and telephone number of person authorized
to receive notice and communications on behalf
of the person filing statement)
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Copy to:
NANCY A. LIEBERMAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NY 10022
(213) 735-3000
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This Statement amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 of Kansas City Power & Light Company, a Missouri
corporation ("KCPL"), filed with the Securities and Exchange Commission (the
"Commission") on July 9, 1996, as amended (the "Schedule 14D-9"), with respect
to the exchange offer made by Western Resources, Inc., a Kansas corporation
("Western Resources"), to exchange Western Resources common stock, par value
$5.00 per share, for all of the outstanding shares of KCPL common stock, no par
value ("KCPL Common Stock"), on the terms and conditions set forth in the
prospectus of Western Resources dated July 3, 1996 and the related Letter of
Transmittal.
Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
On July 11, 1996, Western Resources and Mr. Rives filed with the U.S. Court
of Appeals for the Eighth Circuit a brief entitled Respondents' Memorandum in
Opposition to Petitioner's Writ of Mandamus. Western Resources and Rives
contend that a writ of mandamus should not issue because: (i) Rives has
demonstrated "good cause" to discover privileged documents, and Rives'
interests as a KCPL shareholder in this litigation are identical to Western
Resource's interests; and (ii) KCPL waived the attorney-client privilege by
(a) placing legal advice at issue when KCPL commenced an action seeking a
declaratory judgment that the Merger Agreement did not violate the law or
involve a breach of fiduciary duty and (b) disclosing privileged information
to Merrill Lynch, its investment adviser.
On July 11, 1996, Mr. Manson filed with the U.S. Court of Appeals for the
Eighth Circuit a brief entitled Intervenor Jack R. Manson's Response to
Petition for Writ of Mandamus. Mr. Manson contends that a writ of mandamus
should not issue because: (i) KCPL waived the attorney-client privilege by
placing legal advice at issue when KCPL commenced an action seeking a
declaratory judgment that the Merger Agreement did not violate the law or
involve a breach of fiduciary duty; and (ii) he has shown "good cause" to
discover privileged documents under GARNER V. WOLFINBARGER, 430 F.2d 1093
(5th Cir. 1970), CERT. DENIED, 401 U.S. 974 (1971).
On July 11, 1996, UCU filed with the U.S. District Court for the Western
District of Missouri, Western Division, UtiliCorp United Inc.'s Motion to
Intervene and a proposed Answer of Intervenor UtiliCorp United Inc. With this
motion, UtiliCorp seeks to intervene as a Counterclaim Defendant, aligned
with Counterclaim Defendants KCPL and the members of the KCPL Board, and file
an answer to Count I of the Counterclaim of Western Resources and
Robert L. Rives.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
The following Exhibit is filed herewith:
Exhibit [48]: Solicitation materials distributed to KCPL shareholders on
July 13, 1996.
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SIGNATURE
After reasonable inquiry and to the best of her knowledge and belief, the
undersigned certifies that the information set forth in this Statement is true,
complete and correct.
KANSAS CITY POWER & LIGHT COMPANY
By: /s/ Jeanie Sell Latz
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Jeanie Sell Latz
Senior Vice President-Corporate Services
Dated: July 15, 1996
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EXHIBIT INDEX
Exhibit No. Description Page
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Exhibit [48] Solicitation materials distributed
to KCPL shareholders on
July 13, 1996
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EXHIBIT 48
DRUE JENNINGS
CHAIRMAN OF THE BOARD
[LOGO]
AND PRESIDENT
1201 WALNUT
P.O. BOX 418679
KANSAS CITY, MO 64141-9679
July 12, 1996
Dear Shareholder:
The accompanying brochure presents the reasoning behind the KCPL/UtiliCorp
merger, including the potential benefits for you. We urge you to read it
thoroughly.
CONSIDER THE FACTS . . .
YOUR BOARD HAS CONCLUDED UNANIMOUSLY THAT THE KCPL/UTILICORP MERGER IS IN
YOUR BEST INTERESTS. We are convinced the UtiliCorp merger will increase
earnings per share, reduce investment risk and position the new company for
growth in revenue, income and share value. THE UTILICORP MERGER ALSO
CONTEMPLATES INCREASING YOUR ANNUAL DIVIDEND BY MORE THAN 18% TO $1.85 PER
SHARE.
EXAMINE THE RECORD . . .
In choosing between the KCPL/UtiliCorp merger and Western's proposal to
exchange its shares for your KCPL shares, you must decide who can be trusted
to provide the greatest value for you. We encourage you to compare our record
of creating value for shareholders to that of Western's board and management.
LONG-TERM VALUE. I became chief executive officer of KCPL on May 1, 1988.
From that date until January 19, 1996 (the date the KCPL/UtiliCorp merger
agreement was signed), KCPL'S TOTAL RETURN FOR SHAREHOLDERS WAS GREATER THAN
230% -- MORE THAN ONE AND ONE-HALF TIMES WESTERN'S TOTAL RETURN FOR
SHAREHOLDERS (148%) DURING THE SAME TIME PERIOD.*
SHORT-TERM VALUE. OVER THE TWO-YEAR PERIOD ENDED DECEMBER 31, 1995, KCPL'S
TOTAL RETURN FOR SHAREHOLDERS (30%) WAS MORE THAN TRIPLE WESTERN'S TOTAL
RETURN FOR SHAREHOLDERS (9%).* A combined KCPL/UtiliCorp can provide you with
even greater returns and I plan to be part of that process.
. . . AND DO WHAT'S BEST FOR YOU.
TO PROTECT THE VALUE OF YOUR KCPL SHARES, WE STRONGLY URGE YOU TO VOTE "FOR"
THE
KCPL/UTILICORP MERGER TODAY BY SIGNING, DATING AND RETURNING THE ENCLOSED
WHITE PROXY CARD IN THE ACCOMPANYING POSTAGE-PAID RETURN ENVELOPE. A failure
to approve the
KCPL/UtiliCorp merger would deprive you of its many benefits, with no
assurance that a transaction with Western would ever occur. Thank you for
your continued trust and support.
Sincerely,
/s/ Drue Jennings
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*Total return is measured by stock price appreciation, assuming reinvestment of
dividends.
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A new world of ENERGY
[LOGO]
VOTE
FOR the merger on the WHITE proxy card
to make our vision a reality
KANSAS CITY POWER & LIGHT COMPANY
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KCPL and UtiliCorp have chosen Maxim Energies, Inc. as the name of our
new company. MAXIM signifies the strength of our commitment to the
highest levels of value and service, as well as our leadership in
redefining our industry in a newly competitive marketplace. ENERGIES
reflects the efforts of our employees and partners in providing a
broad range of electric, gas and energy-related products and services
in both regulated and non-regulated energy businesses.
Qualifying statement: This Fact Book does not purport to be complete,
and is qualified in its entirety by reference to the more detailed
information appearing in the Proxy Statement of Kansas City Power &
Light Company (including the Annexes thereto), a copy of which has
been previously provided to you. In addition, some statements may
represent the opinions or beliefs of management. Shareholders are
urged to read the KCPL Proxy Statement and Annexes in their entirety.
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CLEARING THE CONFUSION
What is Western Resources' stock really worth? The combined
effect of Western's potential $105 million rate reduction and
what we believe are more realistic merger-related savings for
Western could bring a decline in the value of Western's stock,
and an example is below.
Western Resources Forecast of 1998 Earnings Per Share
for Western Resources/KCPL Combination* $2.52
Adjustment to Reflect $105 Million Rate Reduction Recommended
by Kansas Corporation Commission Staff** (0.22)
Adjustment to Reflect Overstatement of Merger-Related Savings
by Western Resources*** (0.11)
Revised Estimate of Western Resources' 1998 Earnings per Share
for Western Resources/KCPL Combination $2.19
Implied REDUCTION in Western Resources Common Stock value in 1998
based on assumed price/earnings ratio of 11.5**** $3.80
* As reported in the Western Resources Prospectus dated July 3, 1996 and
excluding costs to achieve savings and transaction costs. In the Western
Resources Prospectus, Western Resources estimated earnings per share for
1998 based on Western Resources' closing stock price on July 2, 1996
resulting in an exchange ratio of 1.01224.
** Assumes that Western Resources underestimated the rate reduction by $46.3
million, derived by subtracting from Kansas Corporation Commission staff's
recommended $105 million annual rate reduction both (i) Western Resources'
proposal for an $8.7 million rate reduction and (ii) Western Resources'
proposal for $50 million accelerated depreciation of its investment in the
Wolf Creek nuclear plant. The $46.3 million adjustment as reduced by 40% to
reflect the effect of taxes results in an after-tax adjustment of $27.78
million, which results in a reduction to earnings per share of
approximately $0.22 based upon 128,136,000 shares outstanding.
*** Assumes that $70.421 million in first year savings claimed in the Western
Resources Prospectus are overstated by $23.474 million. KCPL's analysis of
Western Resources' claimed merger-related savings indicated that Western
Resources overestimated total purchasing savings by 62.7% and
over-estimated total administrative savings by 48.5%. Applying such
percentages to the first year purchasing and administrative savings in
Western Resources' Prospectus indicates that first year merger-related
savings are overstated by slightly more than one-third. One-third of
Western Resources' estimate of $70.421 million equals $23.474 million. The
$23.474 million adjustment as reduced by 40% to reflect the effect of taxes
results in an after-tax adjustment of $14.084 million, which results in a
reduction to earnings per share of approximately $0.11 based upon
128,136,000 shares outstanding.
**** Utility industry estimated average for 1996 as calculated in Merrill Lynch
report dated June 26, 1996.
The foregoing contains certain statements of opinion and belief of KCPL.
The foregoing information is provided to facilitate an analysis of the
potential value of Western Resources' offer. The implied reduction, if
any, in Western Resources' common stock value may be greater or less than
indicated above.
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TWO DISTINCT COMPANIES...
[GRAPHIC]
ONE UNIQUE VISION
[GRAPHIC]
/ / REGULATED / / NON-REGULATED
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OUR VISION
Our vision for the KCPL/UtiliCorp combined company is to be a full participant
in the global energy marketplace, adding diversified products and services,
entering new markets, and growing revenues, income and share value for our
shareholders.
The energy industry has entered an era of inevitable, accelerating change.
Consumer demand, technological advances, and legislative and regulatory reforms
are leading to unprecedented competition. As a result, public utilities face
business risks and limits on their ability to grow earnings. KCPL and UtiliCorp
believe that continued growth in the industry can best be achieved through
focused and strategic investment in primarily energy-related businesses.
We feel strongly that the combined company of KCPL/UtiliCorp embodies our shared
vision, embraces the future and creates sustainable, long-term value for KCPL
shareholders through strategic investments in regulated and nonregulated
business opportunities.
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A FIT FOR THE FUTURE...
The cornerstone of our proposal is the ability to achieve sustainable, long-term
growth in shareholder value in this rapidly changing world. As a larger and more
diversified company, we anticipate being able to:
- - compete more effectively in national and global markets
- - gain greater access to new customers and markets
- - use our size and stability to achieve enhanced access to capital markets
- - introduce a new array of energy products and services
- - build on a demonstrated track record in energy-related nonregulated
businesses
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...STARTING NOW
Tomorrow's world of energy begins today with the KCPL/UtiliCorp merger.
- - Shared, strategic vision
- - Opportunies available to Maxim Energies that are not available to KCPL and
UtiliCorp separately:
- Over $600 million in savings over the next 10 years*
- Additional operational pre-tax benefits of $56.5 million over four years
after the mergers**
- Financial performance enhancements (pre-tax) of $244 million over four
years after the mergers***
- - 57% ownership in the new company for KCPL shareholders****
- - $1.85 recommended annual dividend
- - Tax-free transaction
- - On track in the regulatory approval process, expected completion in second
quarter 1997
- - Solid support from community, employees, elected officials
The revised merger agreement requires the favorable vote of a majority of KCPL
shares voting on the transaction, instead of the original agreement's
requirement of approval by two-thirds of all outstanding shares. Therefore, the
will of a majority of KCPL common shares can approve the transaction, and a
small minority of shares will not be able to block the transaction.
* see pages 51-55 of KCPL Proxy Statement
** see page 55 of KCPL Proxy Statement
*** see pages 55-58 of KCPL Proxy Statement
**** based on number of shares outstanding at the date of the KCPL/UtiliCorp
merger agreement
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...WITH THE WORLD AS OUR MARKETPLACE
[MAP DISPLAYING THE LOCATION OF THE CORPORATE HEADQUARTERS,
GAS MARKETING AREAS, POWER PROJECTS, GAS PIPELINES
AND GAS PROCESSING PLANTS.]
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[MAP] Increased access to a variety of
high-growth national and international
markets means the potential for
sustained growth and risk avoidance.
REGULATORY DIVERSITY
- operations in eight states and
six foreign countries
- nonregulated businesses
REVENUE DIVERSITY
- gas and electric utility, gas
gathering and transportation, and
other energy-related services and
products
INVESTMENT DIVERSITY
- nearly half of the combined
company's revenues would come
from nonregulated operations
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AND RESULTS...
We believe that blending the strengths of KCPL and UtiliCorp and their
subsidiaries will define the successful energy services provider of
the future.
FINANCIAL STRENGTHS
- - From 1985 to 1995, both KCPL and UtiliCorp delivered a total return to
shareholders which exceeded market and industry averages.*
- - KCPL has achieved a strong A or above bond rating from major rating
agencies.
- - UtiliCorp has increased assets by 431% since 1985 and earnings before
interest, taxes, depreciation and amortization by 425%.
NEW PRODUCTS AND SERVICES
- - UtiliCorp has introduced EnergyOne, the first national brand name in the
utility industry.
- - Through EnergyOne, UtiliCorp provides energy solutions to over 125 of the
Fortune 500 companies in the U.S.
- - New product introductions are planned for 1997.
NEW MARKETS
- - UtiliCorp has proven experience with utility operations in other countries,
investing a total of $426 million in international electric utilities.
- - Since 1983, UtiliCorp has acquired and merged with ten domestic electric
and gas utilities, investing a total of $858 million.
- - KCPL has become involved in the small power production market in China,
with plans to expand in that area.
- - KCPL has begun preliminary work on three power projects in the Pacific
Northwest.
*Source: Wall Street Journal Shareholder Scoreboard, February 29, 1996.
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...THAT ARE REAL
We believe a merger between KCPL and UtiliCorp means VALUE NOW!
The combined company anticipates the following benefits after
the merger:*
Per Share
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Year One Year Two Year Three Year Four
Synergy Savings $0.10 $0.16 $0.22 $0.25
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Additional Operational Benefits $0.08 $0.08 $0.07 $0.06
-----------------------------------------
Financial Performance Enhancement $0.20 $0.25 $0.35 $0.44
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Total $0.38 $0.49 $0.64 $0.75
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Our combined company will be committed to continued growth
through strategic investment in nonregulated and regulated
segments of the energy business. Our goals to shareholders:
- total returns consistently above both industry and broad market
averages
- an investment with below average market risk
- an investment in a company with a diversified base of
energy-related businesses without excess concentration
in fuel source, customer mix or regulatory jurisdiction
* A portion of the savings from regulated operations will be
shared with ratepayers. Estimates of the savings resulting from
the mergers are based on assumptions which KCPL believes to be
reasonable, but there can be no assurances that such assumptions
will approximate actual experience, and in such event actual
results could differ materially from the predictions herein.
Shareholders are urged to review pages 51-58 of KCPL's Proxy
Statement that discuss these savings and their underlying
assumptions in greater detail.
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"I am confident that the result of the merger will be STRONG
CORPORATE LEADERSHIP and a VALUABLE ALLY in our economic
development efforts. This proposal provides the BEST FUTURE for
Missouri and the Kansas City area." Gov. Mel Carnahan, Governor
of Missouri, May 15, 1996, press release (emphasis added)
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VOTE THE VISION
Vote FOR our vision on the WHITE card to secure the benefits of this
merger. Your vote is important in making the KCPL/UtiliCorp vision a
reality.
TO EXERCISE YOUR RIGHT TO VOTE:
- Return your white proxy card whether or not you plan to attend
the special shareholders meeting on August 7, 1996.
- Remember - you need to send this new proxy card, even if you
voted on the original merger agreement.
- Be sure to sign and date the proxy card.
- Return the card in the enclosed, self-addressed envelope, which
requires no postage if mailed in the United States.
DO NOT SIGN ANY PROXY CARD WESTERN RESOURCES MAY SEND YOU. YOUR
BOARD OF DIRECTORS HAS CONCLUDED THAT THE WESTERN RESOURCES
PROPOSAL IS NOT IN YOUR BEST INTERESTS. BE AWARE - YOU ARE UNDER
NO OBLIGATION TO RESPOND TO ANY SOLICITATION BY WESTERN
RESOURCES.
Questions? Call KCPL Investor Relations at 800-245-5275
or D.F. King, our proxy solicitor, at 800-714-3312.
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"Increased JOB OPPORTUNITIES, COST SAVINGS in the
neighborhood of $600 million over the next decade, and
LOWER RATES than would otherwise be possible make this
merger one of the BEST BUSINESS COMBINATIONS ever
proposed in the state of Missouri." Bob Holden, Missouri
State Treasurer, May 16, 1996, press release (emphasis
added)
"We believe that OUR BEST INTEREST lies with the merger
of KCPL and UtiliCorp....We believe our new company will
rely heavily on the PEOPLE THEY EMPLOY to ACHIEVE THE
GOALS they are setting forth, and this is music to our
ears." Locals 412, 1464 and 1613, The International
Brotherhood of Electrical Workers, April 22, 1996,
letter to union members (emphasis added)
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[LOGO]
Kansas City Power & Light Company
KCPL Investor Relations
800-245-5275
D.F. King
800-714-3312
