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Registration No. 33-
As filed with the Securities and Exchange Commission on December 21, 1995
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WISCONSIN ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1391525
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
231 West Michigan Street
P.O. Box 2949
Milwaukee, Wisconsin 53201
(Address of principal executive offices) (Zip Code)
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1993 OMNIBUS STOCK INCENTIVE PLAN
(Full title of the plan)
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J. G. REMMEL
Vice President, Treasurer and Chief Financial Officer
Wisconsin Energy Corporation
231 West Michigan Street
P.O. Box 2949
Milwaukee, Wisconsin 53201
(Name and address of agent for service)
(414) 221-2345
(Telephone number, including area code, of agent for service)
Copy to:
BRUCE C. DAVIDSON, ESQ.
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 277-5000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title Maximum Maximum
of Securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered (1) Share (2) Price Fee
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Common Stock,
$.01 par value 1,250,000 shares (2)(3) $36,708,483.50 $12,658.10
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(1) The 1993 Omnibus Stock Incentive Plan (the "Plan") provides for
adjustment of the number of shares issuable thereunder in the event of
certain changes affecting the Registrant's Common Stock. This
Registration Statement therefore covers, in addition to the above stated
1,250,000 shares, an indeterminate number of shares that may become
subject to the Plan by means of any such adjustment. The shares covered
by the Plan may be issued upon the exercise of stock options or stock
appreciation rights granted, or pursuant to stock awards made, in
accordance with the terms of the Plan. Although 4,000,000 shares are
reserved for issuance under the Plan, a lesser number is covered by this
Registration Statement since the Plan will be replaced by a new plan upon
consummation of the Company's proposed business combination transaction
with Northern States Power Company.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon (i) the aggregate exercise price for the
64,250 shares underlying options granted on December 15, 1993 at an
exercise price of $27.375 per share, (ii) the aggregate exercise price
for the 81,250 shares underlying options granted on December 14, 1994 at
an exercise price of $26.813 per share, (iii) the aggregate exercise
price for the 190,000 shares underlying options granted on December 20,
1995 at an exercise price of $30.188 per share, and (iv) as to the
remaining 914,500 shares registered hereby, $29.563 per share, which is
the average of the high and low sales prices of the Registrant's Common
Stock on the New York Stock Exchange Composite Tape on December 18, 1995
as reported in the Midwest Edition of The Wall Street Journal.
(3) In accordance with the terms of the Plan, the actual offering price for
shares of the Registrant's Common Stock covered by an option shall not be
less than 100% of the fair market value of such stock on the date the
option is granted.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Wisconsin Energy Corporation (the
"Registrant") (Commission File No. 1-9057) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "1934 Act") are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 and Amendment No. 1 thereto (on
Form 10-K/A) dated June 23, 1995.
(b) Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1995, June 30, 1995 and
September 30, 1995.
(c) Current Reports on Form 8-K dated April 28, 1995 and
September 13, 1995.
(d) The description of the Registrant's Common Stock
contained in the Registrant's Current Report on
Form 8-K dated October 31, 1991, which updates the
description of the Common Stock incorporated by
reference in the Registrant's Registration Statement
on Form 8-B dated January 7, 1987, including any
future amendment or report filed for the purpose of
updating such description, and the description under
"Description of Primergy Capital Stock" in the Joint
Proxy Statement/Prospectus dated August 7, 1995
contained in the Registrant's Registration Statement
on Form S-4, Registration No. 33-61619, filed in
connection with the Registrant's proposed business
combination transaction with Northern States Power
Company.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See Item 3(d) above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Chapter 180 of the Wisconsin Statutes includes provisions for
indemnification by a corporation of a director or officer against certain
liabilities and expenses incurred by him or her in any proceeding (whether
threatened, pending or completed, and whether brought by the corporation or
any other person) to which he or she was a party because of being a director
or officer. In general, under these provisions (1) a corporation is required
to indemnify a director or officer, to the extent he or she has been
successful on the merits or otherwise in the defense of any such proceeding,
for all reasonable expenses incurred in the proceeding, and (2) in other
cases, the corporation is required to indemnify a director or officer against
liabilities (including, among other things, judgments, penalties, fines and
reasonable expenses) incurred in any such proceeding unless liability was
incurred because he or she breached or failed to perform a duty to the
corporation and the breach or failure constitutes any of the following: (a) a
willful failure to deal fairly with the corporation or its shareholders in
connection with a matter in which he or she has a material conflict of
interest, (b) a violation of criminal law, unless he or she had reasonable
cause to believe his or her conduct was lawful or no reasonable cause to
believe his or her conduct was unlawful, (c) a transaction from which he or
she derived an improper personal profit, or (d) willful misconduct. The
provisions specify that the termination of a proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an equivalent plea,
does not, by itself, create a presumption that indemnification is not
required. Also, the provisions permit a corporation to pay or reimburse
reasonable expenses as incurred if the director or officer affirms his or her
good faith belief that he or she has not breached or failed to perform his or
her duties to the corporation and undertakes to make repayment to the extent
it is ultimately determined that indemnification is not required. With
specified exceptions, these provisions do not preclude additional
indemnification. Chapter 180 specifically provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance, to the extent required or permitted
generally thereunder, for any liability incurred in connection with a
proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Chapter 180 of the Wisconsin Statutes also provides that, with
certain exceptions, a director is not liable to a corporation, its
shareholders, or any person asserting rights on behalf of the corporation or
its shareholders, for damages, settlements, fees, fines, penalties or other
monetary liabilities arising from a breach of, or failures to perform, any
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duty resulting solely from his or her status as a director, unless the person
asserting liability proves that the breach or failure to perform constitutes
any of the four exceptions to mandatory indemnification referred to above.
The Bylaws of the Registrant provide generally for mandatory
indemnification of directors and officers of the Registrant to the fullest
extent permitted by law.
Officers and directors of the Registrant are covered by insurance
policies purchased by the Registrant, under which they are insured (subject to
exceptions and limitations specified in the policies) against expenses and
liabilities arising out of actions, suits or proceedings to which they are
parties by reason of being or having been such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration
Statement.
Exhibit No.
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(4)-(1) - Restated Articles of Incorporation of Registrant. (Incorporated
herein by reference to Exhibit (3)-1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995, File
No. 1-9057.)
(4)-(2) - Bylaws of Registrant. (Incorporated herein by reference to
Exhibit (3)-2 to the Registrant's Registration Statement on
Form S-4, File No. 33-61619.)
(5) - Opinion of Walter T. Woelfle, Esq. as to the legality of the
securities being registered.
(23)-(1) - Consent of Price Waterhouse LLP, Independent Accountants.
(23)-(2) - Consent of Walter T. Woelfle, Esq. (contained in opinion filed as
Exhibit (5)).
(24) - Power of Attorney, contained in signature page of Registration
Statement.
(99) - 1993 Omnibus Stock Incentive Plan. (Incorporated herein by
reference to Exhibit A to the Registrant's definitive Proxy
Statement dated March 22, 1994, File No. 1-9057.)
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Certain exhibits as noted above are incorporated herein by reference
pursuant to Rule 411(c) under the Securities Act of 1933.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referred to in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, State of Wisconsin, on
December 20, 1995.
WISCONSIN ENERGY CORPORATION
(Registrant)
By: /s/ R. A. Abdoo
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R. A. Abdoo, Chairman of the Board,
President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes
R. A. Abdoo and J. G. Remmel, or either of them, as attorneys-in-fact with
full power of substitution, to execute in the name and on behalf of such
person, individually, and in each capacity stated below or otherwise, and to
file, any and all amendments to this Registration Statement.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 20th day of December, 1995.
/s/ R. A. Abdoo Chairman of the Board, President and
- -------------------------------- Chief Executive Officer (Principal
(R. A. Abdoo) Executive Officer) and Director
/s/ J. G. Remmel Vice President and Treasurer
- -------------------------------- (Principal Financial and Accounting
(J. G. Remmel) Officer)
/s/ J. F. Ahearne
- -------------------------------- Director
(J. F. Ahearne)
/s/ J. F. Bergstrom Director
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(J. F. Bergstrom)
/s/ R. A. Cornog Director
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(R. A. Cornog)
S-1
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/s/ R. R. Grigg, Jr. Director
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(R. R. Grigg, Jr.)
/s/ G. B. Johnson Director
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(G. B. Johnson)
/s/ F. P. Stratton, Jr. Director
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(F. P. Stratton, Jr.)
/s/ J. G. Udell Director
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(J. G. Udell)
S-2
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Exhibit (5)
December 20, 1995
Wisconsin Energy Corporation
231 West Michigan Street
P.O. Box 2949
Milwaukee WI 53201
Re: 1993 Omnibus Stock Incentive Plan
Ladies and Gentlemen:
I am providing this opinion in connection with the Registration Statement of
Wisconsin Energy Corporation (the "Company") on Form S-8 (the "Registration
Statement") to be filed under the Securities Act of 1933, as amended (the
"Act"), with respect to the proposed issuance by the Company of up to
1,250,000 shares of Common Stock, par value $.01 per share, of the Company
(the "Shares") pursuant to the Company's 1993 Omnibus Stock Incentive Plan
(the "Plan").
I have examined: (i) the Registration Statement; (ii) the Company's Restated
Articles of Incorporation and Bylaws, as amended to date; (iii) the Plan; (iv)
the corporate proceedings relating to the adoption and approval of the Plan
and the authorization for the issuance of the Shares; and (v) such other
documents and records and such matters of law as I have deemed necessary in
order to render this opinion.
On the basis of the foregoing, I advise you that, in my opinion:
(1) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Wisconsin.
(2) The Shares, when issued as and for the consideration contemplated
by the Plan, will be validly issued, fully paid and nonassessable
by the Company, subject to the personal liability which may be
imposed on shareholders by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts
owing to employees for services performed, but not exceeding six
months service in any one case. Although Section 180.0622(2)(b)
provides that such personal liability of shareholders shall be "to
an amount equal to the par value of shares owned by them
respectively, and to the consideration for which their shares
without par value was issued," the Wisconsin Supreme Court, by a
split decision without a written opinion, has affirmed a judgment
holding shareholders of a corporation liable under the
substantially identical predecessor statute in effect prior to
January 1, 1991 (Section 180.40(6)) for unpaid employee wages to
an amount equal to the consideration for which their par value
shares were issued rather than the shares' lower stated par value.
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Wisconsin Energy Corporation
December 20, 1995
Page 2
Local 257 of Hotel and Restaurant Employees and Bartenders
International Union v. Wilson Street East Dinner Playhouse, Inc.,
126 Wis. 2d 284, 375 N.W.2d 664 (1985) (affirming the 1983
decision of the Circuit Court for Dane County, Wisconsin, in Case
No. 82-CV-0023).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, I do not admit that I am an
"expert" within the meaning of Section 11 of the Act, or that I come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Walter T. Woelfle
Walter T. Woelfle
Director-Legal Services Department
Wisconsin Electric Power Company
WTW:jw
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Exhibit (23)-(1)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 25, 1995 appearing on page
65 of Wisconsin Energy Corporation's Annual Report on Form 10-K for the year
ended December 31, 1994.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
December 20, 1995
