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Registration No. 333-
As filed with the Securities and Exchange Commission on September 2 , 1999
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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WISCONSIN ELECTRIC POWER COMPANY
EMPLOYEE RETIREMENT SAVINGS PLAN
(Full title of the plan)
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CALVIN H. BAKER
Treasurer
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
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 277-5000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES MAXIMUM AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED(1) REGISTERED (1) PER SHARE(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 7,000,000 shares $24.84375 $173,906,250 $48,345.94
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon the average of the high and low sales
prices of the registrant's common stock on the New York Stock Exchange
Composite Tape on August 31, 1999.
* * * * *
This registration statement registers additional securities relating to
the employee benefit plan described herein, for which an earlier registration
statement on Form S-8 (Registration No. 333-60383), filed on July 31, 1998, is
and shall remain effective until the remaining shares registered thereby are
sold. The registrant has elected not to rely upon General Instruction E to Form
S-8, which permits the filing of an abbreviated registration statement for the
registration of additional securities, since such earlier registration statement
is itself an abbreviated registration statement which incorporates earlier
registration statements. Instead, this registration statement responds to all
applicable items of Form S-8.
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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) and the Wisconsin Electric Power
Company Employee Retirement Savings Plan (the "plan") with the Securities and
Exchange Commission pursuant to Section 13 of the Securities Exchange Act of
1934 are incorporated herein by reference:
- Annual Report on Form 10-K for the fiscal year ended December 31,
1998 and Amendments No. 1 and 2 thereto (on Form 10-K/A).
- Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999 and June 30, 1999.
- Current Reports on Form 8-K dated March 16, 1999, March 25, 1999,
June 27, 1999, June 29, 1999, July 14, 1999 and September 1, 1999.
- The description of the registrant's common stock contained in
the registrant's Current Report on Form 8-K dated September 1,
1999, which updates and supersedes the description of the
common stock incorporated by reference in the registrant's
Registration Statement on Form 8-B dated January 7, 1987, as
previously updated by the Registrant's Current Report on Form
8-K dated October 31, 1991; and any future amendment or report
filed for the purpose of updating such description.
- Information furnished in lieu of the Form 11-K Annual Report
for the plan for the year ended December 31, 1998, which is
filed as Exhibit 99.1 with Amendment No. 2 (on Form 10-K/A) to
the registrant's Annual Report on Form 10-K for the year ended
December 31, 1998.
All documents subsequently filed by the registrant and the plan 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.
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 fourth bullet point in Item 3 above.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Wisconsin Energy is incorporated under the Wisconsin Business
Corporation Law (the "WBCL").
Under Section 180.0851(1) of the WBCL, Wisconsin Energy is required to
indemnify a director or officer, to the extent such person is successful on the
merits or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if such person was a party because he or she was a
director or officer of Wisconsin Energy. In all other cases, Wisconsin Energy is
required by Section 180.0851(2) to indemnify a director or officer against
liability incurred in a proceeding to which such person was a party because he
or she was a director or officer of Wisconsin Energy, unless it is determined
that he or she breached or failed to perform a duty owed to Wisconsin Energy and
the breach or failure to perform constitutes: (i) a willful failure to deal
fairly with Wisconsin Energy or its shareholders in connection with a matter in
which the director or officer has a material conflict of interest; (ii) a
violation of criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was lawful or no reasonable cause to believe his
or her conduct was unlawful; (iii) a transaction from which the director or
officer derived an improper personal profit; or (iv) willful misconduct. Section
180.0858(1) provides that, subject to certain limitations, the mandatory
indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under Wisconsin Energy's Restated Articles of Incorporation, Bylaws, any written
agreement or a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL 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 under Sections
180.0850 to 180.0858 of the WBCL, 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.
Section 180.0828 of the WBCL 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 failure to perform, any 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 under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of Wisconsin Energy
against whom claims are asserted with respect to the declaration of improper
dividends or distributions to shareholders or certain other improper acts which
they approved are entitled to contribution from other directors who approved
such actions and from shareholders who knowingly accepted an improper dividend
or distribution, as provided therein.
Articles V and VI of Wisconsin Energy's Bylaws provide that Wisconsin
Energy will indemnify to the fullest extent permitted by law any person who is
or was a party or threatened to be made a party to any legal proceeding by
reason of the fact that such person is or was a director or officer of Wisconsin
Energy, or is or was serving at the request of Wisconsin Energy as a director or
officer of another enterprise, against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such legal proceeding. Wisconsin Energy's
Restated Articles of Incorporation and Bylaws do not limit the indemnification
to which directors and officers are entitled under the WBCL.
Officers and directors of Wisconsin Energy are covered by insurance
policies purchased by Wisconsin Energy 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.
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Wisconsin Energy's subsidiary Wisconsin Electric Power Company, the
sponsor of the plan, also is incorporated under the WBCL and is subject to the
same statutory provisions and has substantially the same charter provisions and
insurance with respect to the indemnification of directors and officers as are
described above with respect to Wisconsin Energy.
The plan provides that Wisconsin Electric shall indemnify the plan
administrator, members of the Savings Plan Policy Committee, directors and any
other employee deemed to be a "fiduciary" against claims in connection with any
action or failure to act regarding the plan, to the extent required or permitted
by law.
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 Annual Report on Form 10-K for
the year ended December 31, 1997, File No. 1-9057).
(5) - Opinion of Sally R. Bentley, Esq. as to the legality of the
securities being registered (to the extent such securities
may be original issuance or treasury shares as opposed to
market purchase shares).
(23)-(1) - Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
(23)-(2) - Consent of Sally R. Bentley, Esq. (contained in opinion filed
as Exhibit (5)).
(24) - Power of Attorney, contained in signature page of registration
statement.
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The registrant hereby undertakes that it will submit or has submitted
the plan and any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner, and has made or will make all changes required by the IRS in
order to qualify the plan under Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
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; and
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(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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.
(4) 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 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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.
(5) 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 of this
registration statement, 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
The Registrant. 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 September 2, 1999.
WISCONSIN ENERGY CORPORATION
By: /s/ RICHARD A. ABDOO
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Richard A. Abdoo, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Richard A. Abdoo or
Calvin H. Baker, 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.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.*
SIGNATURE AND TITLE
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/s/ RICHARD A. ABDOO
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Richard A. Abdoo, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer and Director)
/s/ PAUL DONOVAN
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Paul Donovan, Senior Vice President
and Chief Financial Officer
(Principal Financial Officer)
/s/ ANNE K. KLISURICH
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Anne K. Klisurich, Controller
(Principal Accounting Officer)
/s/ JOHN F. AHEARNE
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John F. Ahearne, Director
/s/ JOHN F. BERGSTROM
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John F. Bergstrom, Director
/s/ BARBARA L. BOWLES
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Barbara L. Bowles, Director
/s/ ROBERT A. CORNOG
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Robert A. Cornog, Director
/s/ RICHARD R. GRIGG
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Richard R. Grigg, Director
/s/ JOHN N. MACDONOUGH
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John N. MacDonough, Director
/s/ JULIA B. NORTH
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Julia B. North, Director
/s/ FREDERICK P. STRATTON, JR.
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Frederick P. Stratton, Jr., Director
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* Each of the above signatures is affixed as of September 2, 1999.
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The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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 September 2, 1999.
WISCONSIN ELECTRIC POWER COMPANY EMPLOYEE
RETIREMENT SAVINGS PLAN
By: /s/ CALVIN H. BAKER
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Calvin H. Baker, Administrator
S-2
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EXHIBIT (5)
[WISCONSIN ENERGY LETTERHEAD]
September 2, 1999
Wisconsin Energy Corporation
231 West Michigan Street
P.O. Box 2949
Milwaukee, WI 53201
RE: WISCONSIN ELECTRIC POWER COMPANY EMPLOYEE RETIREMENT SAVINGS PLAN
Ladies and Gentlemen:
I am providing this opinion in connection with the Registration Statement of
Wisconsin Energy Corporation (the "Company") relating to the Wisconsin Electric
Power Company Employee Retirement Savings Plan (the "Plan") on Form S-8 (the
"Registration Statement") to be filed for the registration under the Securities
Act of 1933, as amended (the "Act"), of an indeterminate amount of interests in
the Plan and 7,000,000 shares (the "Shares") of Common Stock, par value $.01 per
share ("Common Stock"), of the Company to be sold to participants in the Plan.
Shares of Common Stock for the Plan will be purchased by the Trustee in market
transactions or may be authorized but unissued or treasury shares acquired
directly from the Company.
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 of the Plan and the
authorization for the issuance and/or sale of the Shares thereunder; 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 to be sold from time to time pursuant to the Plan which are
original issuance or treasury shares will, when issued as and for the
consideration contemplated by the Plan, 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.
I 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/ Sally R. Bentley
Sally R. Bentley
Counsel for Wisconsin Energy Corporation
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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 27, 1999 relating to the
financial statements, which appears in the Wisconsin Energy Corporation Annual
Report on Form 10-K for the year ended December 31, 1998. We also consent to the
incorporation by reference of our report dated January 27, 1999 relating to the
financial statement schedules, which appears in such Annual Report on Form 10-K.
We also consent to the incorporation by reference in the Registration Statement
on Form S-8 of our report dated June 18, 1999 appearing in Exhibit 99.1 filed
with Amendment No. 2 (on Form 10-K/A) to the Wisconsin Energy Corporation Annual
Report on Form 10-K for the year ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
Milwaukee, Wisconsin
September 2, 1999
