SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
In the Matter of )
Wisconsin Energy Corporation )
) Certificate Pursuant to Rule 24
File No. 70-9571 ) of Completion of Transactions
)
Public Utility Holding Company )
Act of 1935 )
This Certificate of Notification is filed by Wisconsin Energy
Corporation ("WEC"), a Wisconsin corporation, in connection with the transaction
proposed in WEC's Application/Declaration on Form U-1 (File No. 70-9571), as
amended (the "Application"), and authorized by order of the Commission dated
April 10, 2000 (Release No. 35-27163). Pursuant to Rule 24 under the Act, 17
C.F.R. section 250.24 (1999), WEC hereby certifies that the transaction has been
carried out in accordance with the terms and conditions of and for the purposes
represented in the Application and of the Commission's order with respect
thereto.
Exhibit
F-2 Past-tense opinion of counsel
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned company has duly caused this Certificate to be signed
on its behalf by the undersigned thereunto duly authorized.
WISCONSIN ENERGY CORPORATION
BY: /s/ Larry Salustro
------------------------------
Name: Larry Salustro
Title: Vice President
Dated: May 4, 2000
<PAGE>
EXHIBIT F-2
[Quarles & Brady LLP Letterhead]
May 2, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Application of Wisconsin Energy Corporation
Form U-1 Under the Public Utility Holding Company Act of 1935
(File No. 70-09571)
Ladies and Gentlemen:
This opinion supplements our earlier opinion, dated March 21, 2000,
filed as Exhibit F-1 to Pre-Effective Amendment No. 3 to the
Application/Declaration on Form U-1, dated March 27, 2000, under the Public
Utility Holding Company Act of 1935 (the "Act"), by Wisconsin Energy Corporation
("WEC") in File No. 70-09571. (The Application/Declaration, as amended, is
referred to as the "Application.")
The Application requested that the Commission authorize WEC's
acquisition of all of the issued and outstanding stock of WICOR, Inc., a
Wisconsin corporation ("WICOR") (the "Transaction"), and also requested an order
from the Commission that, following the consummation of the Transaction, WEC,
and each of its subsidiary companies, will be exempt from all provisions of the
Act, other than Section 9(a)(2), pursuant to Section 3(a)(1) of the Act. Prior
to the Transaction, WEC and WICOR both were exempt holding companies pursuant to
Section 3(a)(1) of the Act.
The Transaction was consummated on April 26, 2000 at 11:59 p.m.,
Central Time (the "Effective Time of Merger") in accordance with the terms of an
Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 27,
1999, as amended, by and among WEC, WICOR and CEW Acquisition, Inc. ("CEW
Acquisition"), a Wisconsin corporation and wholly owned subsidiary of WEC formed
for the purpose of facilitating the Transaction. (Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Merger
Agreement.) The Merger Agreement provided for the acquisition of WICOR by WEC
through a merger of CEW Acquisition with WICOR (the "Merger") in which the
outstanding shares of WICOR common stock, par value $1.00 per share ("WICOR
Common Stock"), would be converted into the right to receive cash, shares of WEC
common stock, par value $.01 per share ("WEC Common Stock"), or a combination of
cash and shares of WEC Common Stock equal to $31.50 per WICOR share (the "Merger
Consideration"), upon the terms and subject to the conditions of the Merger
Agreement. Under the Merger Agreement, WEC was to select a percentage of the
Merger Consideration to be paid in WEC Common Stock, which could not be less
than 40% or more than 60%; the balance would be paid in cash. However, WEC could
elect to pay the Merger Consideration in 100% cash if the Average Wisconsin
Energy Price (the average closing price of WEC Common Stock during a valuation
period shortly before the Merger closed, when the Exchange Ratio would be
determined) was less than $22.00 per share.
The Average Wisconsin Energy Price during the applicable ten trading
day valuation period ended April 18, 2000, was $20.73125 and, as permitted by
the Merger Agreement if the Average Wisconsin Energy Price was less than $22.00,
Wisconsin Energy elected to pay the Merger Consideration 100% in cash. However,
even though the Merger was otherwise an all-cash transaction, WICOR Options and
WICOR Awards outstanding at the Effective Time of Merger were converted into
shares, phantom shares or options to acquire shares of Wisconsin Energy Common
Stock based on the Exchange Ratio, as provided in Section 2.9 of the Merger
Agreement. The Exchange Ratio is 1.5194, which is obtained by dividing the
Exchange Value of $31.50 per WICOR share by $20.73125, the Average Wisconsin
Energy Price.
In accordance with the Merger Agreement, since the Merger
Consideration was paid 100% in cash, CEW Acquisition was merged with and into
WICOR, which is the surviving corporation (the "Surviving Corporation").
In connection with this opinion, we have examined such corporate
records, certificates and other documents, and such questions of fact and
matters of law, as we have deemed necessary for purposes of this opinion.
The opinions expressed below with respect to the Transaction are
subject to and rely upon the following assumptions and conditions:
(a) The Transaction has been duly authorized and approved, to the
extent required by the governing corporate documents and
applicable state laws, by the boards of directors and
shareholders of WEC and WICOR.
(b) All required approvals, authorizations, consents, certificates,
rulings and orders of, and all filings and registrations with,
all applicable federal and state commissions and regulatory
authorities with respect to the Transaction have been obtained or
made, as the case may be (including the approval and
authorization of the Commission under the Act), and the
Transaction has been accomplished in accordance with all such
approvals, authorizations, consents, certificates, orders,
filings and registrations.
(c) The Registration Statement of WEC on Form S-4 (Registration No.
333-86827), filed with the Commission on September 9, 1999 and
declared effective by the Commission on September 10, 1999, has
remained effective pursuant to the Securities Act of 1933, as
amended, and no stop order has been entered with respect thereto.
(d) All corporate formalities required by state law for the
consummation of the Transaction have been taken, and the
Transaction has become effective in accordance with the laws of
the State of Wisconsin.
(e) The parties have obtained all consents, waivers and releases, if
any, required for the Transaction under all applicable governing
corporate documents, contracts, agreements, debt instruments,
indentures, franchises, licenses and permits.
(f) The representations and warranties of WICOR concerning the
corporate organization, existence and capitalization of WICOR set
forth in the Merger Agreement are true and correct in all
respects.
Based upon the foregoing, and subject to the assumptions and conditions
set forth herein, it is our opinion that:
1. Each of WEC and WICOR is, and prior to the Merger CEW Acquisition
was, a corporation duly incorporated and validly existing under
the laws of the State of Wisconsin.
2. Upon the Transaction being consummated in accordance with the
Merger Agreement and as contemplated by the Application:
(a) All State laws applicable to the consummation of the
Transaction have been complied with;
(b) (i) Subject to the terms and conditions of the Merger
Agreement, each share of WICOR Common Stock (together
with the associated common stock purchase right)
outstanding at the Effective Time of Merger (except for
WICOR New Restricted Stock, which was converted into
restricted shares of WEC Common Stock as provided in
Section 2.9(b) of the Merger Agreement) was converted
into and became the right to receive cash in the amount
of $31.50 per share, and no shares of WEC Common Stock
were issued in exchange therefor;
(ii) The shares of WEC Common Stock issued in connection
with the Transaction at the Effective Time of Merger,
being only 57,745 shares of restricted stock issued
upon the conversion of the WICOR New Restricted Stock,
have been validly issued and are fully paid and
nonassessable (except as otherwise provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation
Law, as judicially interpreted), and the holders
thereof are entitled to the rights and privileges
appertaining thereto as set forth in the Restated
Articles of Incorporation of WEC, subject to the
forfeiture provisions and other terms of the Restricted
Stock Agreements pursuant to which such shares were
issued;
(iii) The shares of common stock of WICOR (as the Surviving
Corporation) outstanding immediately after the
Effective Time of Merger, as provided in Section 2.5 of
the Merger Agreement, have been validly issued and are
fully paid and nonassessable (except as otherwise
provided in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted),
and WEC, as the sole holder thereof, is entitled to the
rights and privileges appertaining thereto as set forth
in the Restated Articles of Incorporation of WICOR;
(c) WEC legally acquired all of the outstanding shares of WICOR
Common Stock; and
(d) The consummation of the Transaction has not violated the
legal rights of the holders of any securities issued by WEC
or any associate company thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Application.
Larry J. Martin, a partner in our firm, is General Counsel of WEC.
Very truly yours,
/s/ Quarles & Brady LLP
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QUARLES & BRADY LLP
