Registration No. 333-104787
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective Amendment No. 2 to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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WPS RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-1775292
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-4901)
(Address, including zip
code, and
telephone number, including area code, of
registrant's principal executive offices)
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Larry L. Weyers
Chairman, President and Chief Executive Officer
WPS Resources Corporation
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
(Name, address, including zip
code,
and telephone number, including area code,
of agent for service)
------------------------------------------
with a copy to:
Russell E. Ryba
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 297-5668
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
___________________________________________________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
_______________________________
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Amount of
Amount to be Proposed Maximum Aggregate Registration
Title of Each Class of Securities to be Registered Registered(1) Offering Price Per Unit Offering Price(1)(2) Fee
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Debt Securities(3) (4) (4) (4) --
Common Stock (4) (4) (4) --
Common Stock Purchase Rights(5) -- -- -- --
TOTAL $350,000,000 $350,000,000 $8,585*
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(1) In no event will the aggregate initial price of all Debt Securities and
Common Stock (including the associated Common Stock Purchase Rights) sold
under this registration statement exceed $350,000,000.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o). Exclusive of accrued interest, if any.
(3) If the Debt Securities are issued at an original issue discount, then the
offering will be in such greater principal amount as shall result in an
aggregate initial offering price of $350,000,000, less the initial offering
price of any securities previously sold hereunder.
(4) Not applicable pursuant to General Instruction II.D to Form S-3. (5) The
Common Stock Purchase Rights are attached to and traded with the shares
of Common Stock being registered. The value attributable to the Common
Stock Purchase Rights, if any, is reflected in the value attributable to
the Common Stock.
* This filing fee was paid previously. Pursuant to Rule 457(p), the
registrant offset the aggregate total dollar amount of the filing fee
associated with the $70,972,000 of unsold securities under the registrant's
Registration Statement on Form S-3 (Registration No. 333-88525), filed on
October 6, 1999, of $19,730, against the amount of the registration filing
fee for this registration statement, which was $28,315.
_______________________________
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(A) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(A),
may determine.
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The prospectus contained in this registration statement is a combined prospectus
pursuant to Rule 429 and relates to Registration No. 333-88525.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS Subject to Completion
August 19, 2003
WPS RESOURCES CORPORATION
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
$350,000,000
DEBT SECURITIES
COMMON STOCK
COMMON STOCK PURCHASE RIGHTS
____________________
We may offer these securities in amounts, at prices and on terms determined
at the time of offering. We will provide specific terms of these securities in
supplements to this prospectus. Our common stock is traded on the New York Stock
Exchange under the symbol "WPS".
You should read this prospectus and any supplement carefully before you
invest.
See "Risk Factors" on page 5 for a discussion of certain risks that
prospective investors should consider before investing in our securities.
____________________
These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is ________________, 2003.
TABLE OF CONTENTS
Page
Summary..................................................................... 1
Risk Factors................................................................ 5
The Company................................................................. 5
Use of Proceeds............................................................. 5
Description of Debt Securities.............................................. 5
Description of Common Stock................................................. 15
Plan of Distribution........................................................ 20
Legal Matters............................................................... 21
Experts..................................................................... 21
This prospectus is a part of the registration statement that we filed with
the Securities and Exchange Commission. You should read this prospectus together
with the more detailed information regarding our company, our securities and our
financial statements and notes to those statements that appear elsewhere in this
prospectus or that we incorporate in this prospectus by reference.
You should rely on the information contained in, or incorporated by
reference in, this prospectus and in any accompanying prospectus supplement. We
have not authorized anyone to provide you with information different from that
contained in, or incorporated by reference in, this prospectus or any prospectus
supplement. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the prospectus or prospectus supplement, as applicable.
SUMMARY
This summary highlights selected information from this document and may not
contain all of the information that is important to you. To understand the terms
of our securities, you should carefully read this document with the attached
prospectus supplement. Together these documents will give the specific terms of
the securities we are offering. You should also read the documents we have
incorporated by reference into this prospectus for information on us and our
financial statements.
The Securities We May Offer
This prospectus is part of registration statements (No. 333-88525 and
333-104787) that we filed with the Securities and Exchange Commission utilizing
a "shelf" registration process. Under this shelf process, we may offer from time
to time up to $350,000,000 of the following securities: debt securities and
common stock with associated common stock purchase rights. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer securities, we will provide you with a prospectus supplement that
will describe the specific amounts, prices and terms of the securities being
offered. The prospectus supplement may also add, update or change information
contained in this prospectus.
Debt Securities
We may offer unsecured general obligations of our company, which may be
senior or subordinated. We will refer to the senior debt securities and the
subordinated debt securities together in this prospectus as the "debt
securities". The senior debt securities will have the same rank as all of our
other unsecured, unsubordinated debt. The subordinated debt securities will be
entitled to payment only after payment on our senior indebtedness. Senior
indebtedness includes all indebtedness for money borrowed by us, except our
currently outstanding junior subordinated deferrable interest debentures due
2038 and any indebtedness issued in the future that is stated to be not superior
to, or to have the same rank as, the subordinated debt securities. Currently, we
may not issue indebtedness that ranks junior to our junior subordinated
deferrable interest debentures due 2038.
Claims of creditors and any preferred shareholders of each of our
subsidiaries will have priority with respect to the assets and earnings of such
subsidiaries over the claims of our creditors. The debt securities therefore
will be effectively subordinated to creditors, including holders of secured
indebtedness, and preferred shareholders of our subsidiaries.
The senior debt securities will be issued under an indenture between us and
U.S. Bank, National Association, formerly known as, Firstar Bank, National
Association. We may amend or supplement the indenture from time to time. The
subordinated debt securities will be issued under an indenture between us and
the trustee we name in a prospectus supplement. We encourage you to read the
indentures, which are exhibits to this registration statement (as incorporated
by reference), and our recent periodic and current reports that we file with the
Securities and Exchange Commission.
Summary of Material Indenture Provisions that Apply to Senior and Subordinated
Debt Securities
Neither indenture limits the amount of debt that we may incur. In addition,
neither indenture provides holders with any protection should there be a
recapitalization or restructuring involving our company.
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The indentures allow us to merge or consolidate with another company, or to
sell all or most of our assets to another company. If these events occur, the
other company will be required to assume our responsibilities relating to the
debt securities, and we will be released from all liabilities and obligations.
The indentures provide that holders of a majority of the outstanding
principal amount of any series of debt securities may vote to change our
obligations or your rights concerning that series. However, to change the amount
or timing of payments of principal or interest or other payments for a series of
debt securities, every holder in the series must consent.
We may discharge our obligations under the indenture relating to the senior
or subordinated debt securities by depositing with the trustee sufficient funds
or government obligations to pay the senior or subordinated debt securities when
due.
EVENTS OF DEFAULT. Each indenture provides that the following are events of
default:
o If we do not pay interest for 30 days after its due date.
o If we do not pay principal or premium when due.
o If we continue to breach a covenant in the debt securities of the
series or in the applicable indenture respecting that series for 60
days after notice.
o If we enter bankruptcy or become insolvent.
If an event of default occurs with respect to any series of debt
securities, the trustee or holders of 25% of the outstanding principal amount of
that series may declare the principal amount of the series immediately payable.
However, holders of a majority of the principal amount may rescind this action.
If the event of default is due to our bankruptcy or insolvency, the outstanding
principal amount of all the debt securities will become immediately payable,
without any action on the part of the trustees or the holders of the debt
securities.
Summary of Material Indenture Provisions that Apply Only to Senior Debt
Securities
Under the senior indenture, our failure to pay when due, subject to any
applicable grace period, any principal of, or interest on, any indebtedness for
borrowed money incurred or guaranteed by us in the aggregate principal amount of
at least $50,000,000 constitutes an event of default.
The senior indenture requires us, so long as any senior debt securities are
outstanding:
o to own all of the outstanding shares of voting common stock of
Wisconsin Public Service Corporation unless we transfer the shares
pursuant to our merger or consolidation or sale of substantially all
of our properties.
o not to pledge or grant a security interest or permit any pledge,
security interest or other lien upon any common stock of any of our
subsidiaries owned directly or indirectly by us to secure indebtedness
for money borrowed without securing the senior debt securities equally
and ratably with the other secured indebtedness except for:
o pledges, security interests or encumbrances created to secure the
purchase price of the common stock of our subsidiaries,
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o liens and security interests existing at the time of our
acquisition of the shares or
o any extension or renewal of any permitted pledge, security
interest or encumbrance.
Summary of Material Indenture Provisions that Apply Only to Subordinated Debt
Securities
The subordinated debt securities will be subordinated to all senior
indebtedness. In addition, as previously noted under "Debt Securities", claims
of the creditors and preferred shareholders of each of our subsidiaries will
have priority with respect to that subsidiary's assets and earnings over the
claims of our creditors, including holders of the subordinated debt securities.
The subordinated debt securities, therefore, will be effectively subordinated to
creditors and preferred shareholders of our subsidiaries.
Common Stock
We may offer shares of our common stock, par value $1.00 per share. Holders
of our common stock are entitled to receive dividends when and if declared by
the Board of Directors. Each holder of our common stock is entitled to one vote
per share. The holders of our common stock have no preemptive rights or
cumulative voting rights. Our restated articles of incorporation do not
presently authorize our company to issue preferred stock or other stock having
rights prior to those of the holders of our common stock.
Each share of our common stock will have an associated right to purchase
one share of our common stock at an exercise price of $85 per share. The rights
are not presently exercisable. Under certain circumstances, however, each right
will entitle the holder to purchase at the exercise price our common stock
having a market value of twice the exercise price. See "DESCRIPTION OF COMMON
STOCK - Pre-emptive Rights; Common Stock Purchase Rights" in this prospectus.
Ratios of Earnings to Fixed Charges
The ratio of earnings to fixed charges for each of the periods indicated
are as follows:
YEAR ENDED DECEMBER 31,
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2002 2001 2000 1999 1998
Ratio of earnings to fixed charges 2.9 2.1 2.1 2.8 2.8
We have computed the ratio of earnings to fixed charges by dividing
earnings, which includes income before taxes and fixed charges, by fixed
charges. This calculation excludes the effects of accounting changes which have
been made over time. "Fixed charges" consist of (1) interest on debt and a
portion of rentals determined to be representative of interest and (2) the
preferred stock dividend requirements of our subsidiaries. The preferred stock
dividend requirements of our subsidiaries were assumed to be equal to the
pre-tax earnings that would be required to cover such dividend requirements
based on our effective income tax rates for the respective periods.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. We also filed a
Registration Statement on Form S-3, including exhibits, under the Securities Act
of 1933 with respect to the securities offered by this prospectus. This
prospectus is a part of that registration statement, but does not contain all of
the information included in the registration statement or the exhibits to the
registration statement. You may read and copy the
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registration statement and any other document we file at the Commission's public
reference room at 450 Fifth Street, N.W., Washington, D.C., 20549. Please call
the Commission at 1-800-SEC-0330 for further information on the public reference
rooms. Our Securities and Exchange Commission filings are also available to the
public at the Commission's web site at http://www.sec.gov or on our website
located at http://www.wpsr.com.
The Securities and Exchange Commission allows us to "incorporate by
reference" into this prospectus the information we file with it, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of
this prospectus, and later information that we file with the Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the Securities and
Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until our offering is completed:
i. Annual Report on Form 10-K for the year ended December 31, 2002 (as
updated by the Current Report on Form 8-K dated August 1, 2003);
ii. Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2003;
iii. Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2003;
iv. Current Report on Form 8-K dated August 1, 2003;
v. Current Report on Form 8-K dated May 14, 2003;
vi. Description of Common Stock contained in Registration Statement on
Form 8-B filed on June 1, 1994; and
vii. Description of Common Stock Purchase Rights contained in Registration
Statement on Form 8-A filed on December 13, 1996.
You may request a copy of these filings, at no cost, by writing to or
telephoning us at our principal executive offices:
WPS Resources Corporation
Attn: Secretary
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of the
prospectus or the prospectus supplement.
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RISK FACTORS
You should carefully consider the risk factors discussed under the caption
"Risk Factors," beginning on page 24, in our Annual Report on Form 10-K for the
year ended December 31, 2002, as filed with the SEC on March 10, 2003 (such risk
factors may from time to time be amended, supplemented or superseded by other
filings that we make with the SEC in the future), which we have incorporated by
reference herein, and the risk factors discussed in any other documents
incorporated by reference herein (such risk factors may from time to time be
amended, supplemented or superseded by other filings that we make with the SEC
in the future). In addition, as required and advisable, the prospectus
supplement applicable to the securities we offer will contain a discussion of
the risks applicable to an investment in WPS Resources Corporation and to the
particular types of securities that we are offering under that prospectus
supplement.
THE COMPANY
We are a holding company, based in Green Bay, Wisconsin. Our principal
subsidiary is Wisconsin Public Service Corporation, a regulated electric and
natural gas utility that generates and distributes energy in northeastern
Wisconsin and an adjacent portion of Michigan. Our other major subsidiaries
include Upper Peninsula Power Company, a regulated electric utility operating in
the northern half of Michigan's Upper Peninsula, and two nonregulated
subsidiaries, WPS Power Development, Inc. and WPS Energy Services, Inc. WPS
Power Development, Inc., develops, owns and operates nonregulated electric
generation facilities and steam production facilities in various locations in
the United States and New Brunswick , Canada, as well as a portion of a
synthetic fuel processing facility. WPS Energy Services, Inc., provides energy
and related products and services in the nonregulated energy market in the
northeast quadrant of the United States and Canada.
In 2002, our regulated operations contributed $79.4 million to our net
income and our two nonregulated subsidiaries contributed $35.0 million to our
net income. WPS Resources' operations as a holding company, the operations of
WPS Resources Capital Corporation, an intermediate holding company for our
nonregulated subsidiaries, and the non-utility operations of Wisconsin Public
Service and Upper Peninsula Power as a whole experienced a net loss of $5.0
million in 2002. Our executive offices are at 700 North Adams Street, P.O. Box
19001, Green Bay, Wisconsin 54307. Our telephone number is (920) 433-4901.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we will
use the net proceeds we receive from the sale of the securities offered by this
prospectus and the accompanying prospectus supplement for general corporate
purposes. General corporate purposes may include the repayment of debt and
investments in or extensions of credit to our subsidiaries. It is likely,
however, that most of the securities offered pursuant to this prospectus and the
accompanying prospectus supplement will be issued in connection with the
financing of possible acquisitions or business expansion. We may invest the net
proceeds temporarily or apply the net proceeds to repay short-term debt until we
use the net proceeds for one of these stated purposes.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the material terms of the debt securities sets
forth general terms that may apply to the debt securities. The particular terms
of any series of debt securities will be described in the prospectus supplement
relating to those debt securities.
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The debt securities will be either our senior debt securities or our
subordinated debt securities. The senior debt securities will be issued under an
indenture dated as of October 1, 1999 between us and U.S. Bank, National
Association (f/k/a Firstar Bank, National Association), Saint Paul, Minnesota,
as trustee. This indenture is referred to as the "senior indenture". The
subordinated debt securities will be issued under an indenture to be entered
into between us and the trustee named in a prospectus supplement. This indenture
is referred to as the "subordinated indenture". This prospectus refers to the
senior indenture and the subordinated indenture together as the "indentures".
The following is a summary of all of the material terms of the indentures.
Copies of the entire indentures are filed as exhibits to the registration
statement of which this prospectus is a part. Section references below are to
the section in the applicable indenture. The referenced sections of the
indentures are incorporated by reference.
General
Neither indenture limits the amount of debt securities that we may issue.
Each indenture provides that debt securities may be issued up to the principal
amount authorized by us from time to time. The senior debt securities will be
unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. The subordinated debt securities will be unsecured and will
be subordinated and junior to all senior indebtedness.
The debt securities may be issued in one or more separate series of senior
debt securities or subordinated debt securities. The prospectus supplement
relating to the particular series of debt securities being offered will specify
the particular amounts, prices and terms of those debt securities. These terms
may include:
o the title of the debt securities;
o any limit on the aggregate principal amount of the debt securities of
the series;
o the date on which the debt securities will mature;
o the interest rate or rates, or the method of determining those rates;
o the date from which interest will accrue or the method for determining
such date;
o the interest payment dates and the regular record dates;
o the places where payments may be made;
o any mandatory or optional redemption provisions;
o any sinking fund or analogous provisions;
o the portion of principal amount of the debt security payable upon
acceleration of maturity if other than the full principal amount;
o any additions to the events of default or covenants included in the
indenture under which the debt securities are issued, as described in
this prospectus;
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o if other than U.S. dollars, the currency or currencies, or units based
on or related to currencies, in which payments on the debt securities
will be payable;
o whether the debt securities will be issued in the form of a global
security; and
o any other specific terms of the debt securities.
The debt securities will be registered debt securities and, unless otherwise
specified in the prospectus supplement, will be payable in U.S. dollars in
denominations of $1,000 or an integral multiple of $1,000. (Sections 2.01 and
3.01)
Some of the debt securities may be issued as original issue discount debt
securities. Original issue discount securities bear no interest or bear interest
at below-market rates and will be sold at a discount below their stated
principal amount. The applicable prospectus supplement will also contain any
special tax, accounting or other information relating to original issue discount
securities or to other kinds of debt securities that may be offered, including
debt securities linked to an index or payable in currencies other than U.S.
dollars.
Exchange, Registration and Transfer
Debt securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency maintained by
us for those purposes. Except as otherwise described in a prospectus supplement,
no service charge will be payable upon the transfer or exchange of debt
securities, except for any applicable tax or governmental charge. (Section 3.05)
The designated security registrar for the senior debt securities is U.S. Bank,
National Association, Corporate Trust Services, 180 East Fifth Street, Suite
200, SPTF 0210, Saint Paul, MN 55101. The security registrar for the
subordinated debt securities will be designated in a prospectus supplement.
In the event of any redemption of any series of debt securities, we will
not be required to:
1. issue, register the transfer of, or exchange, debt securities of any
series between the opening of business 15 business days before the
date of the mailing of the notice of redemption of the debt securities
of that series to be redeemed and the close of business on the date of
mailing of the relevant notice of redemption; or
2. register the transfer of, or exchange, any debt security selected for
redemption, in whole or in part, except the unredeemed portion of any
debt security being redeemed in part. (Section 3.05)
Payment And Paying Agent
We will pay principal, interest and any premium on debt securities which
are not global securities at the office of the paying agent. We will make
payment of interest on the debt securities which are not global securities by
check mailed to the persons in whose names the debt securities are registered on
days specified in the indentures or the applicable prospectus supplement. We
will also make payments by wire transfer to a U.S. bank designated by a holder
of debt securities in an aggregate principal amount of at least $10,000,000, all
of which have the same interest payment dates, upon receipt of a written request
from the holder, on or before the record date for the payment, designating the
account to which the payment is to be made. (Section 2.05)
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If any amount payable on any debt security remains unclaimed at the end of
two years after the amount became due and payable, the paying agent will release
any unclaimed amounts to us, and the holder of the debt security will look only
to us for payment. (Section 10.07)
The paying agent for the senior debt securities is U.S. Bank, National
Association, Corporate Trust Services, 180 East Fifth Street, Suite 200, SPTF
0210, Saint Paul, MN 55101. The paying agent for the subordinated debt
securities will be designated in the applicable prospectus supplement.
Book-Entry Securities
We may initially issue the debt securities of any series in the form of one
or more global securities under a book-entry only system operated by a
securities depositary. Unless otherwise specified in the applicable prospectus
supplement, The Depository Trust Company ("DTC"), New York, New York, will act
as securities depositary for each series of debt securities that are issued as
fully-registered securities. The indenture trustee will register in the name of
Cede & Co. (DTC's partnership nominee) (or such other nominee as may be
requested by an authorized representative of DTC) those securities for which DTC
is acting as depositary. Individual purchases of book-entry interests in any of
the debt securities will be made in book-entry form. So long as Cede & Co., as
nominee of DTC, or another nominee of DTC is the securityholder, references in
this prospectus to holders of the debt securities or registered owners will mean
Cede & Co. or another nominee of DTC, rather than the owners of beneficial
ownership interests in the debt securities.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its direct participants deposit with DTC.
DTC also facilitates the settlement among DTC participants of securities
transactions such as transfers and pledges of deposited securities through
electronic computerized book-entry changes in accounts of DTC direct
participants, thereby eliminating the need for physical movement of securities
certificates. DTC direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
DTC is owned by a number of the DTC direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others, such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a DTC
direct participant, either directly or indirectly. The rules applicable to DTC
and its participants are on file with the Securities and Exchange Commission.
Anyone desiring to purchase debt securities under the DTC system must make
these purchases by or through DTC direct participants which will receive a
credit for the debt securities on DTC's records. The direct and indirect
participants will in turn record the ownership interest of each actual purchaser
of the debt securities on the records of the direct or indirect participant. DTC
will not provide beneficial owners of the debt securities with written
confirmations of their purchases. Owners of book-entry interests should receive
from the direct or indirect participant written confirmations of their purchases
providing details of the beneficial owners transactions, as well as periodic
statements of their holdings. DTC direct and indirect participants are to effect
transfers of beneficial ownership interests by entries made on the books of the
DTC direct or indirect participants acting on behalf of the beneficial owners.
Owners of beneficial interests in the debt securities will not receive or be
entitled to receive certificates representing their ownership interests in the
debt securities, except as described below upon the discontinuance of the use of
the book-entry system.
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Principal and the redemption price of, and interest payments on the debt
securities held by or on behalf of DTC as depositary will be made to Cede & Co.,
as nominee of DTC (or to such other nominee as may be requested by an authorized
representative of DTC). DTC's practice is to credit the accounts of DTC direct
participants upon DTC's receipt from the issuer or trustee of funds and
corresponding detail information on a payment date in accordance with their
respective holdings shown on the records of DTC. Payments by DTC direct and
indirect participants to owners of beneficial ownership interests in the debt
securities will be governed by standing instructions and customary practices, as
is the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such DTC direct
or indirect participant and not of DTC, the indenture trustee or us, subject to
any statutory or regulatory requirements as may be in effect from time to time.
DTC is responsible for disbursing such payments to the appropriate DTC direct
participants, and those DTC direct participants, and any indirect participants,
are in turn responsible for disbursing the payment to the owners of beneficial
ownership interests.
To facilitate subsequent transfers, the indenture trustee will register all
debt securities which DTC direct participants deposit with DTC in the name of
DTC's partnership nominee, Cede & Co. (or such other nominee as may be requested
by an authorized representative of DTC). The deposit of debt securities with DTC
and their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt
securities; DTC's records reflect only the identity of the DTC direct
participants to whose accounts the debt securities are credited, which may or
may not be the beneficial owners. The participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to DTC direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners of debt securities
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
The indenture trustees will send redemption notices to DTC. If we are
redeeming less than all of the debt securities within an issue, DTC's practice
is to determine by lot the amount of the interest of each direct participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. or any other nominees of DTC will consent or
vote with respect to the debt securities. Under its usual procedures, DTC will
mail an omnibus proxy to us as soon as possible after the record date. The
omnibus proxy assigns the consenting or voting rights of Cede & Co. or other
nominee of DTC to those DTC direct participants to whose accounts the debt
securities are credited on the record date (identified in a listing attached to
the omnibus proxy).
DTC may discontinue providing its services as debt securities depositary
with respect to the debt securities at any time by giving reasonable notice to
us or the indenture trustee. Under these circumstances, in the event that a
successor securities depositary is not obtained, debt security certificates are
required to be printed and delivered.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depositary). In that event, we will cause
debt security certificates to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable, but neither we,
the indenture trustees nor any underwriter takes any responsibility for the
accuracy of the description of DTC's business organization and procedures.
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Neither we nor the trustees under the indentures will have any
responsibility or obligation to any DTC direct or indirect participant or any
owner of a book-entry interest or any other person not shown on the registration
books of the trustees as being a holder of the debt securities with respect to:
(1) any debt securities; (2) the accuracy of any records maintained by DTC or
any DTC direct or indirect participant; (3) the payment by DTC or any DTC direct
or indirect participant of any amount due to any owner of a book-entry interest
in respect of the principal or redemption price of or interest on the debt
securities; (4) the delivery by DTC or any DTC direct or indirect participant of
any notice to any owner of a book-entry interest which is required or permitted
under the terms of the indentures to be given to holders of the debt securities;
(5) the selection of the owners of a book-entry interest to receive payment in
the event of any partial redemption of any senior debt securities; or (6) any
consent given or other action taken by DTC or its nominee as holder of the debt
securities.
Limitation On Merger, Consolidation And Certain Sales Of Assets
We may, without the consent of the holders of the debt securities, merge
into or consolidate with any other corporation, or convey or transfer all or
substantially all of our properties and assets to another person provided that:
1. the successor is a corporation;
2. the successor expressly assumes on the same terms and conditions all
the obligations under the debt securities and the indentures;
3. immediately after giving effect to the transaction, there is no
default under the applicable indenture; and
4. we deliver to the trustees a certificate and an opinion of counsel
stating that the transaction complies with the indentures. (Sections
8.01 and 8.02)
The remaining or acquiring corporation will take over all of our rights and
obligations under the indentures. (Section 8.03)
There is inherent uncertainty in the phrase "all or substantially all."
This uncertainty may make it difficult for holders of the debt securities to (1)
determine whether our covenant relating to consolidation, merger and sale of our
properties and assets to another person has been breached, (2) declare an event
of default and (3) exercise their acceleration rights. Further, interpretation
of this phrase as it relates to any transfer of our properties and assets will
be governed by applicable law and will be dependent upon the particular facts
and circumstances. In the event the holders of the debt securities attempt to
exercise their rights under the indenture following the occurrence of a
particular transfer or series of transfers that they believe constitutes a
transfer of "all or substantially all" of our properties and assets and we
contest such exercise, we cannot provide any assurance as to how a court would
interpret the phrase "all or substantially all."
Satisfaction And Discharge; Defeasance
We may be discharged from our obligations on the debt securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the debt
securities. (Section 4.01)
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Each indenture contains a provision that permits either (1) our discharge
from all of our obligations with respect to any series of debt securities then
outstanding other than our obligations relating to temporary securities issued
for the debt securities (Section 3.04), registration of transfer and exchange of
the debt securities (Section 3.05), replacement of mutilated, destroyed, lost or
stolen debt securities (Section 3.06), maintenance of paying agencies (Section
10.02) and holding money for payment in trust (Section 10.07); or (2) our
release from our obligations under covenants respecting any series of debt
securities and from the consequences of an event of default resulting from the
breach of those covenants other than our obligations relating to temporary
securities issued for the debt securities (Section 3.04), registration of
transfer and exchange of the debt securities (Section 3.05), replacement of
mutilated, destroyed, lost or stolen debt securities (Section 3.06), the order
in which money collected is applied (Section 5.06), the restoration of rights
and remedies (Section 5.09), the resignation and removal of the trustee and the
appointment of a successor (Section 6.10), the payment of principal and interest
(Section 10.01), maintenance of paying agencies (Section 10.02) and holding
money for payment in trust (Section 10.07).
To exercise either of these two options, we must deposit in trust with the
trustee enough money to pay in full the principal, interest and premium on the
series of debt securities. This amount may be made in cash and/or U.S.
government obligations. (Sections 13.02 and 13.03) As a condition to exercising
either of the above options, we must deliver to the trustee a ruling directed to
the trustee from the Internal Revenue Service or an opinion of counsel based on
an Internal Revenue Service Ruling or a change in applicable federal income tax
law since the date of the indenture, in each case to the effect that the holders
of the debt securities will not recognize income, gain or loss for Federal
income tax purposes as a result of the action and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if the action had not taken place. (Section 13.04)
If we exercise either of these options, the holders of the debt securities
of the series affected will be entitled to receive, solely from the trust fund,
payments of principal, interest and premium on the debt securities and will not
be entitled to any of the other benefits of the indenture, except for limited
provisions including our obligations respecting registration of transfer and
exchange of debt securities, replacement of lost, stolen or mutilated debt
securities, maintenance of paying agencies and holding moneys for payment in
trust. (Sections 13.02 and 13.03)
Events Of Default, Notice And Waiver
Each indenture defines an event of default with respect to any series of
debt securities as one or more of the following events:
o our failure to pay interest on any debt security for 30 days after it
is due;
o our failure to pay the principal or any premium on any debt securities
when due;
o our failure to perform any other covenant in the debt securities of
the series or in the applicable indenture with respect to debt
securities of that series for 60 days after being given notice of the
failure; and
o our entering into bankruptcy or becoming insolvent.
In addition, under the senior indenture our failure to pay when due,
subject to any applicable grace period, any principal of, or interest on, any
indebtedness for borrowed money incurred or guaranteed by us in the aggregate
principal amount of at least $50,000,000 constitutes an event of default under
the senior indenture. Under each indenture, failure to observe or perform an
obligation like
11
replacing mutilated, lost or stolen debt securities of a particular series is an
event of default for that series only and not for any other series of debt
securities. This is in contrast to defaulting on the payment of interest or
principal on a particular series of debt securities, which is an event of
default for all other series of debt securities. (Section 5.01)
Each indenture requires the trustee to give the holders of a series of debt
securities notice of a default with respect to that series within 30 days unless
the default is cured or waived. However, the trustee may withhold this notice if
it determines in good faith that it is in the interest of those holders. The
trustee may not, however, withhold this notice in the case of a payment default.
(Section 6.02)
Other than the duty to act with the required standard of care during an
event of default, a trustee is not obligated to exercise any of its rights or
powers under either indenture at the request or direction of any of the holders
of debt securities, unless the holders have offered to the trustee security or
indemnity to its reasonable satisfaction against the potential costs, expenses
and liabilities of complying with such request or direction. (Section 6.03)
Generally, the holders of a majority in principal amount of outstanding debt
securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the trustee, or exercising any trust or
other power conferred on the trustee. (Section 5.12)
Under each indenture, if an event of default with respect to any series of
debt securities (other than due to events of bankruptcy, insolvency or
reorganization) occurs, the trustee or the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that series, by notice in
writing to us and to the trustee, may declare the unpaid principal of and
accrued interest on all the debt securities of that series to be due and payable
immediately and, upon any such declaration, the debt securities of that series
will become immediately due and payable.
Under each indenture, if an event of default occurs due to bankruptcy,
insolvency or reorganization, all unpaid principal of and accrued interest on
the outstanding debt securities of any series will become immediately due and
payable without any declaration or other act on the part of the trustee or any
holder of any debt security of that series. (Section 5.02)
Under each indenture, the holders of not less than a majority of the
principal amount of the outstanding debt securities of any series may rescind a
declaration of acceleration and its consequences with respect to the debt
securities of a series if:
o all existing events of default, other than the nonpayment of principal
of and interest on the debt securities of that series that have become
due solely as a result of such declaration of acceleration, have been
cured or waived;
o to the extent lawful, interest on overdue interest and on overdue
principal that has become due otherwise than by reason of such
acceleration has been paid;
o the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
o all amounts due to the trustee under the indenture have been paid.
(Section 5.02)
Each indenture requires us to file annually with the trustee a certificate
of our principal executive, financial or accounting officer as to the knowledge
of the officer of our compliance with all conditions and covenants under the
indenture. (Section 7.04)
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Modification of the Indentures
Together with the trustee, we may modify the indentures without the consent
of the holders for limited purposes, including adding covenants or events of
default, establishing forms or terms of debt securities, curing ambiguities and
making certain other changes which do not adversely affect the holders in any
material respect. (Section 9.01)
Together with the trustee, we may make modifications and amendments to each
indenture with the consent of the holders of a majority in principal amount of
the outstanding debt securities of all affected series. However, without the
consent of each affected holder, no modification may:
o change the stated maturity or interest payment date of any debt
security;
o reduce the principal, premium (if any) or rate of interest on any debt
security;
o change any place of payment or the currency in which any debt security
is payable;
o impair the right to enforce any payment after the stated maturity,
payment, or redemption date;
o reduce the percentage of holders of outstanding debt securities of any
series required to consent to any modification, amendment or waiver
under the indenture;
o change the redemption provisions of the indenture in a manner adverse
to a holder; or
o change the provisions of the indenture which relate to its
modification or amendment. (Section 9.02)
Governing Law
The indentures and the debt securities will be governed by, and construed
under, the laws of the State of Wisconsin.
Concerning The Trustees
We may from time to time enter into arms length transactions and maintain
customary banking relationships with the trustee under the senior indenture or
the trustee under the subordinated indenture, including but not limited to,
maintaining lines of credit, borrowing money, maintaining checking account
services and other treasury, depository and cash management services.
Senior Debt Securities
The senior debt securities will be unsecured and will rank equally with the
$150,000,000 principal amount 7.00% Senior Notes due November 1, 2009, and
$100,000,000 principal amount of 5.375% Senior Notes Due December 1, 2012,
presently outstanding under the senior indenture and with all of our other
unsecured and non-subordinated debt. In the event we are unable or unwilling to
satisfy our obligations under the senior indenture (due to insolvency or
otherwise) and our debt holders attempt to obtain satisfaction from our
subsidiaries, claims of our subsidiaries' creditors and preferred shareholders
will have priority with respect to the assets and earnings of the subsidiaries
over the claims of our senior debt holders.
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Our failure to pay when due, subject to any applicable grace period, any
principal of, or interest on, any indebtedness for borrowed money incurred or
guaranteed by us in the aggregate principal amount of at least $50,000,000
constitutes an event of default under the senior indenture.
We agree in the senior indenture that so long as any senior debt securities
are outstanding, we will own, directly or indirectly, all of the shares of
voting common stock of Wisconsin Public Service Corporation now or hereafter
issued and outstanding, unless we transfer or sell these shares in a transaction
which complies with the provisions of the senior indenture relating to our
merger, consolidation or sale of substantially all of our properties. See
"Limitation on Merger, Consolidation and Certain Sales of Assets" in this
prospectus. (Section 10.08)
We agree in the senior indenture that so long as any senior debt securities
are outstanding, we will not pledge or grant a security interest in, or permit
any pledge, security interest or other lien upon, any common stock of any of our
subsidiaries owned directly or indirectly by us to secure any indebtedness for
money borrowed, without making effective provision to secure the senior debt
securities equally and ratably with the other indebtedness and any other
indebtedness similarly entitled to be equally and ratably secured. This
restriction will not apply, however, to (l) the creation or existence of any
pledge, security interest, or encumbrance upon any of the common stock of our
subsidiaries (A) created at the time of our acquisition of the common stock or
within one year after our acquisition of the common stock to secure all or a
portion of the purchase price for the common stock or (B) existing on the common
stock at the time of our acquisition of it, or (2) any extension, renewal or
refunding of any pledge, security interest, or encumbrance described in clause
(1). (Section 10.09)
Subordinated Debt Securities
The subordinated debt securities will be unsecured. The subordinated debt
securities will be subordinate in right of payment to all senior indebtedness.
(Section 14.01 of Subordinated Indenture) In addition, claims of our
subsidiaries' creditors and preferred shareholders will have priority with
respect to the assets and earnings of the subsidiaries over the claims of our
creditors, including holders of the subordinated debt securities, even though
those obligations may not constitute senior indebtedness. The subordinated debt
securities, therefore, will be effectively subordinated to creditors, including
trade creditors, and preferred shareholders of our subsidiaries.
The subordinated indenture defines "senior indebtedness" to mean the
principal of, premium, if any, and interest on:
o all of our indebtedness for money borrowed;
o indebtedness evidenced by securities, debentures, bonds or other
similar instruments issued by us;
o all of our capital lease obligations;
o all of our obligations issued or assumed as the deferred purchase
price of property, all of our conditional sales contracts and all of
our obligations under any title retention agreements (but excluding
trade accounts payable arising in the ordinary course of business);
o all of our obligations for reimbursement on any letter of credit,
banker's acceptance, security purchase facility or similar credit
transaction;
14
o all obligations of the types previously described of other persons for
the payment of which we are responsible or liable as obligor,
guarantor or otherwise; and
o all obligations of the types previously described of other persons
secured by any lien on any of our property, whether or not such
obligation is assumed by us.
o However, the term "senior indebtedness" will not include:
o our 7.00% Junior Subordinated Deferrable Interest Debentures due
2038;
o any indebtedness which is by its terms subordinated to, or pari
passu with, the subordinated debt securities; or
o any of our obligations to any of our affiliates.
There is no limitation under either indenture on our ability to issue
additional senior indebtedness. The senior debt securities constitute senior
indebtedness under the subordinated indenture. The subordinated debt securities
will rank equally with our other subordinated indebtedness.
Under the subordinated indenture, no payment may be made on the
subordinated debt securities, including any redemption or sinking fund payment
if:
o any of our senior indebtedness has not been paid when due and any
applicable grace period has ended and the default has not been cured
or waived or ceased to exist, or
o the maturity of any senior indebtedness has been and remains
accelerated as a result of a default.
In the event that we pay or distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization of us, whether voluntary
or involuntary, the holders of senior indebtedness will be entitled to receive
payment in full of the senior indebtedness before the holders of subordinated
debt securities are entitled to receive or retain any payment. Until the senior
indebtedness is paid in full, any payment or distribution to which holders of
subordinated debt securities would be entitled but for the subordination
provisions of the subordinated indenture will be made to holders of the senior
indebtedness. (Section 14.03 of Subordinated Indenture) If a distribution is
made to holders of subordinated debt securities that, due to the subordination
provisions, should not have been made to them, those holders of subordinated
debt securities are required to pay it over to the holders of the senior
indebtedness or their representatives or trustees, as their interests may
appear. (Section 14.03 of Subordinated Indenture)
As a result of the subordination provisions contained in the subordinated
indenture, in the event of our insolvency, our creditors who are holders of
senior indebtedness may recover more, ratably, than the holders of subordinated
debt securities.
DESCRIPTION OF COMMON STOCK
The following description of our common stock summarizes all of the
material terms and provisions of our common stock. Our restated articles of
incorporation and rights agreement are filed as exhibits to the registration
statement of which this prospectus is a part and are incorporated by reference
into this prospectus.
15
General
We are authorized to issue up to 200,000,000 shares of capital stock
consisting of one class only, designated as "common stock" with a par value of
$1.00 per share. As of February 14, 2003, 32,014,856 shares of our common stock
were issued and outstanding.
The outstanding shares of our common stock are, and any additional shares
which we may offer will be, listed on the New York Stock Exchange under the
symbol "WPS."
Dividend And Liquidation Rights
All shares of our common stock will participate equally with respect to
dividends and rank equally upon liquidation, subject to the rights of holders of
any prior ranking stock which our shareholders may authorize in the future. In
the event of our liquidation, dissolution or winding up, the owners of our
common stock are entitled to receive pro rata the assets and funds remaining
after satisfaction of all of our creditors and payment of all amounts to which
owners of prior ranking stock, if any, then outstanding may be entitled.
Voting Rights
Except as otherwise described in the immediately following paragraphs and
under "Certain Statutory and Other Provisions" below, every holder of our common
stock has one vote for each share.
Our shareholders do not have cumulative voting rights. As a result, the
holders of shares entitled to exercise more than 50% of the voting power of
shares entitled to vote, represented at a meeting at which a majority of the
shares entitled to vote is represented, are entitled to elect all of the
directors to be elected at the meeting. Under our restated articles of
incorporation and by-laws, our board of directors is divided into three classes.
One class is elected each year for a three-year term.
Provisions of Our Restated Articles of Incorporation with Possible Anti-takeover
Effects
In addition to the provisions of our restated articles of incorporation and
by-laws dividing our board of directors into three classes, certain other
provisions of our restated articles of incorporation may have the effect of
delaying, deferring or preventing a change in control of our company.
Article 5 of our restated articles of incorporation provides that, subject
to the exception discussed below, a director may be removed only for cause by
the affirmative vote of shareholders possessing a majority of the voting power
of the then outstanding shares of voting stock. As defined in article 5, "cause"
exists only if the director whose removal is proposed has been convicted of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal or such director has been adjudged to be liable for
negligence or misconduct in the performance of his duty to us in a matter which
has a materially adverse effect on our business, and such adjudication is no
longer subject to direct appeal. Article 5 also provides for the removal of a
director by the shareholders without cause when such removal is recommended by
the "requisite vote" of the directors and approved by the affirmative vote of
shareholders possessing a majority of the voting power of the then outstanding
shares of voting stock. Our restated articles of incorporation define the term
"requisite vote" as the affirmative vote of at least two-thirds of the directors
then in office plus one director. Unless "cause" is established or removal is
recommended by the requisite vote of the directors, a director may not be
removed from office even if shareholders possessing a majority of the voting
power favor such action. Additionally, pursuant to article 5, vacancies on our
board of directors, including those resulting from the removal of a director,
16
may be filled for the unexpired portion of the director's term by the majority
vote of the remaining members of the board.
Article 5 of our restated articles of incorporation provides that those
sections of Article III of our by-laws which set forth the general powers,
number, qualifications and classification of directors may be amended or
repealed only by the affirmative vote of shareholders possessing at least 75% of
the voting power of the then outstanding shares of our common stock generally
possessing voting rights in the election of directors, or by the requisite vote
of the directors. Article 5 of our articles provides that article 5 may itself
be amended or repealed only by the affirmative vote of shareholders possessing
at least 75% of the voting power of the then outstanding shares of our common
stock generally possessing voting rights in the election of directors.
Statutory Provisions with Possible Anti-takeover Effects
Section 180.1150 of the Wisconsin Business Corporation Law provides that
the voting power of shares of a "resident domestic corporation," which includes
our company, which are held by any person holding in excess of 20% of the voting
power in the election of directors of the issuing public corporation's shares
shall be limited to 10% of the full voting power of such excess shares. This
statutory voting restriction will not apply to shares acquired directly from us,
to shares acquired in a transaction incident to which our shareholders vote to
restore the full voting power of such shares, either before or after the
acquisition of the shares, and under certain other circumstances.
Except as may otherwise be provided by law, the required affirmative vote
of shareholders of a Wisconsin corporation for certain significant corporate
actions, including a merger or share exchange with another corporation, sale of
all or substantially all of the corporate property and assets, or voluntary
liquidation, is a majority of all the votes entitled to be cast on the
transaction by each voting group of outstanding shares entitled to vote on the
transaction. Sections 180.1130 through 180.1134 of the Wisconsin Business
Corporation Law provide generally that, in addition to the vote otherwise
required by law or the restated articles of incorporation of a "resident
domestic corporation," business combinations must be approved by (a) the holders
of at least 80% of the votes entitled to be cast and (b) two-thirds of the votes
entitled to be cast by the corporation's outstanding voting shares owned by
persons other than a "significant shareholder" who is a party to the transaction
or an affiliate or associate of such significant shareholder unless the business
combination satisfies certain adequacy-of-price standards intended to provide a
fair price for shares held by disinterested shareholders. In general, these
adequacy-of-price standards provide that the above-referenced vote does not
apply if (1) the aggregate amount of the cash and the market value as of the
valuation date of consideration other than cash to be received per share by
shareholders of the resident domestic corporation in the business combination is
at least equal to the highest of (a) the highest per share price received by any
person selling common shares of the same class or series from the significant
shareholder whether in the transaction in which the person became a significant
shareholder or within the two years before the date of the business combination,
(b) the market value per share of the same class or series on the date of the
commencement of a tender offer initiated by the significant shareholder, on the
date on which the person became a significant shareholder or on the date of the
first public announcement of the proposed business combination, whichever is
higher, or (c) the highest preferential amount per share to which the holder of
shares of the class or series of shares is entitled in a voluntary or
involuntary liquidation or dissolution of the resident domestic corporation and
(2) the consideration to be received by holders of a class or series of
outstanding shares is to be in cash or in the same form as the significant
shareholder has previously paid for shares of the same class or series. Section
180.1130 defines "business combination" to include, subject to certain
exceptions, a merger or share exchange of the resident domestic corporation or
any of its subsidiaries with, or the sale or other disposition of substantially
all assets of the resident domestic corporation to, any significant shareholder
or affiliate thereof. The statute defines "significant shareholder" generally to
mean a person that is the
17
beneficial owner of 10% or more of the voting power of the outstanding voting
shares of the resident domestic corporation.
Sections 180.1140 through 180.1145 of the Wisconsin Business Corporation
Law provides that a "resident domestic corporation," which includes our company,
may not engage in a "business combination" with an "interested stockholder"
within three years after the date on which the interested stockholder acquired
his or her 10% or greater interest, unless the corporation's board of directors
approved the business combination, or the acquisition of the 10% or greater
interest, before the stock acquisition date. The statute defines "interested
stockholder" as a person beneficially owning 10% or more of the aggregate voting
power of the stock of such corporation. If the interested stockholder fails to
obtain such approval by the board of directors, then even after the three-year
period, the interested stockholder may complete a business combination with the
corporation only with the approval of the holders of a majority of the voting
stock not beneficially owned by the interested stockholder, unless the
combination satisfies certain adequacy-of-price standards intended to provide a
fair price for shares held by non-interested shareholders.
Section 196.795 of the Wisconsin statutes applies to holding companies of
Wisconsin public utilities, i.e., companies owning beneficially 5% or more of
the voting securities of entities owning, operating, managing or controlling a
plant or equipment in the state of Wisconsin for the production, transmission,
delivery or furnishing of heat, light, water or power directly or indirectly to
or for the public. The statute states that no person may hold or acquire
directly or indirectly more than 10% of the outstanding voting securities of a
public utility holding company with the unconditional power to vote such
securities unless the Public Service Commission of Wisconsin determines, after
investigation and an opportunity for hearing, that such holding or acquisition
is in the best interests of utility customers, investors and the public. Section
196.795 of the Wisconsin statutes applies to our company. Section 196.795(5)(L)
of the Wisconsin Statues requires that with the exception of certain holding
companies organized before November 28, 1985, any corporation that is a holding
company of a Wisconsin public utility must be incorporated under the Wisconsin
Business Corporation Law. This provision would apply to any company which
becomes the beneficial owner of 5% or more of the voting securities of our
company.
The sections of the Wisconsin law described in the preceding paragraphs and
certain provisions of our articles and by-laws, could have the effect, among
others, of discouraging takeover proposals for our company or impeding a
business combination between us and one of our major shareholders.
Preemptive Rights; Common Stock Purchase Rights
No holder of our common stock has any preemptive or subscription rights to
acquire shares of our common stock except for the common stock purchase rights
attached to each share of our common stock.
On December 12, 1996, our board of directors approved the issuance to
shareholders as of December 16, 1996, of a dividend of one right for each
outstanding share of our common stock. Rights also attach to shares of our
common stock issued after that date. A right will attach to each share of our
common stock which we may offer pursuant to this prospectus and a prospectus
supplement. These rights are not presently exercisable, but ten days after a
person or group acquires 15% or more of our common stock or ten business days
(subject to extension) after a person or group announces a tender offer to
acquire at least 15% of our common stock, the rights will become exercisable.
These rights will entitle each holder of our common stock to purchase one share
of our authorized but unissued common stock for each right. The exercise price
of each right is $85. Upon the acquisition by any person or group of 15% or more
of our common stock, each right, other than rights held by an acquiring party,
will entitle the holder to purchase, at the exercise price, shares of our common
stock having a market value of two times
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the exercise price. The agreement setting forth the terms of the rights excludes
from its effect the inadvertent acquisition of 15% or more of our common stock,
provided there is prompt divestment to less than 15%. We may redeem the rights
or may, under certain circumstances, exchange the rights for shares of our
common stock, all as provided and subject to the limitations set forth in the
agreement setting forth the terms of the rights; otherwise, such rights expire
on December 11, 2006.
The rights have anti-takeover effects. The rights will cause substantial
dilution to a person who attempts to acquire control of our company without the
prior approval of our board of directors. The rights will not affect a
transaction approved by our board of directors, because our board has the power
to redeem the rights in connection with a transaction that it approves.
Conversion Rights, Redemption Provisions and Sinking Fund Provisions.
Our common stock is not convertible, is not redeemable and has no sinking
fund.
Liability to Further Calls or to Assessment
The shares of our common stock which we may offer pursuant to this
prospectus and a prospectus supplement will, upon payment of the purchase price,
be fully-paid and non-assessable by us, except for certain statutory personal
liability which may be imposed upon shareholders under Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law. The substantially identical predecessor
to that statute has been judicially interpreted to mean that shareholders of a
Wisconsin corporation are subject to personal liability, up to an amount equal
to the consideration for which their shares were issued (instead of the
aggregate par value in the case of shares with par value, as the statute
states), for all debts owing to employees of the corporation for services
performed for the corporation, but not exceeding six months service in any one
case.
Restriction on Dividends Payable by Wisconsin Public Service Corporation
We are a holding company, and our ability to pay dividends is largely
dependent upon the ability of our subsidiaries to pay dividends to us. The
Public Service Commission of Wisconsin has by order restricted our principal
subsidiary Wisconsin Public Service Corporation to paying normal dividends on
its common stock of no more than 109% of the previous year's common stock
dividend. The Public Service Commission of Wisconsin also requires Wisconsin
Public Service Corporation to maintain a capital structure (i.e., the
percentages by which each of common stock, preferred stock and debt constitute
the total capital invested in a utility) which has a common equity range of 54%
to 58%. Each of these limitations may be modified by a future order of the
Public Service Commission of Wisconsin. Our right to receive dividends on the
common stock of Wisconsin Public Service Corporation is also subject to the
prior rights of that corporation's preferred shareholders and to provisions in
that corporation's restated articles of incorporation. The provisions in the
restated articles of Wisconsin Public Service Corporation provide (1) that if
Wisconsin Public Service Corporation's "capitalization ratio" (namely, the ratio
of the capital represented by Wisconsin Public Service Corporation's common
stock, including premiums on such common stock, plus the surplus accounts of
Wisconsin Public Service Corporation to the total capital and surplus accounts
of Wisconsin Public Service Corporation) is 25% or greater, then it may not make
any dividend payments that would reduce the capitalization ratio below 25%; (2)
that if the capitalization ratio is 20% or more, but less than 25%, then
Wisconsin Public Service Corporation may make dividend payments that do not
exceed 75% of its prior twelve month net income; or (3) that if the
capitalization ratio is less than 20%, then Wisconsin Public Service Corporation
may make dividend payments that do not exceed 50% of its prior twelve month net
income.
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PLAN OF DISTRIBUTION
We may sell the securities:
o through underwriters,
o through agents, or
o directly to a limited number of institutional purchasers or to a
single purchaser.
As required by applicable law, these underwriters or agents will be
registered broker-dealers or associated persons of registered broker-dealers
acting in that capacity. We will describe the plan of distribution for any
particular offering of the securities in the corresponding prospectus
supplement, in accordance with applicable law.
The prospectus supplement will set forth the terms of the offering of the
securities, including the following:
o the name or names of any underwriters;
o the purchase price and the proceeds we will receive from the sale;
o any underwriting discounts and other items constituting underwriters'
compensation;
o any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and
o any securities exchanges on which the securities of the series may be
listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate. The
obligations of the underwriters to purchase securities will be subject to
conditions precedent and the underwriters will be obligated to purchase all the
securities of a series if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
We may sell Securities directly or through agents designated by us from
time to time. The applicable prospectus supplement will name any agent involved
in the offer or sale of the securities, and will set forth any commissions
payable by us to that agent. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis for the period of
its appointment.
Agents and underwriters may be entitled to indemnification by us against
civil liabilities arising out of this prospectus, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
the agents or underwriters may be required to make relating to those
liabilities. Agents and underwriters may be customers of, engage in transactions
with, or perform services for, us in the ordinary course of business.
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Each series of debt securities will be a new issue of securities with no
established trading market. Any underwriter may make a market in the securities,
but will not be obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity of the
trading market for any securities.
LEGAL MATTERS
Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, our
counsel, will pass upon the validity of the debt securities and common stock
with attached common stock purchase rights offered pursuant to this prospectus
and the prospectus supplements.
EXPERTS
The financial statements as of the years ended December 31, 2002 and 2001
and for each of the three years in the period ended December 31, 2002 and the
related financial statement schedules incorporated in this prospectus in the
registration statement by reference from our Current Report on Form 8-K dated
August 1, 2003 (which report expresses an unqualified opinion and includes an
explanatory paragraph relating to the adoption of EITF Issue 02-03, "Issues
Involved in Accounting for Derivative Contracts Held for Trading Purposes and
Contracts Involved in Energy Trading and Risk Management Activities") have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
We are responsible for paying all of the fees and expenses set forth below.
Other than the Securities and Exchange Commission filing fee, all fees and
expenses are estimated.
Securities and Exchange Commission Registration Fee.... $ 28,315
Trustee's Fees......................................... 12,000
Printing and Engraving Expenses........................ 40,000
Rating Agency Fees..................................... 100,000
Accounting Fees and Expenses........................... 80,000
Legal Fees and Expenses................................ 300,000
Blue Sky and Legal Investment Law Fees and Expenses.... 15,000
Listing Fee............................................ 40,000
Miscellaneous Expenses................................. 25,000
-------------
Total Expenses................................ $ 640,315
=============
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Wisconsin Business Corporation Law and Article VI of the
by-laws of the registrant, directors and officers of the registrant are entitled
to mandatory indemnification from us against certain liabilities and expenses to
the extent such officers or directors are successful on the merits or otherwise
in connection with a proceeding, unless it is determined that the director or
officer breached or failed to perform his or her duties to the registrant and
such breach or failure constituted: (a) a willful failure to deal fairly with
the registrant or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation of the
criminal law unless the director or officer had reasonable cause to believe his
or her conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (c) a transaction from which the director or officer
derived an improper personal profit (unless such profit is immaterial under the
circumstances); or (d) willful misconduct. It should also be noted that the
Wisconsin Business Corporation Law specifically states that it is the policy of
Wisconsin to require or permit indemnification in connection with a proceeding
involving securities regulation to the extent required or permitted as described
above. Additionally, under the Wisconsin Business Corporation Law, directors of
the registrant are not subject to personal liability to the registrant, its
shareholders or any person asserting rights on behalf of the registrant or its
shareholders for certain breaches or failures to perform any duty resulting
solely from their status as directors or officers except in circumstances
paralleling those in subparagraphs (a) through (d) outlined above.
The indemnification provided by the Wisconsin Business Corporation Law and
our by-laws is not exclusive of any other rights to which a director or officer
may be entitled. The general effect of the foregoing provisions may be to reduce
the circumstances under which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expenses.
The indemnification described above may be broad enough to cover
liabilities under the Securities Act of 1933. Officers and directors of the
registrant would also be indemnified by the underwriters or agents for certain
claims under the Securities Act of 1933 pursuant to the terms of the proposed
form of underwriting agreement and agency agreement filed herewith. The
registrant has purchased insurance permitted by the Wisconsin Business
Corporation Law on behalf of its officers and directors which may cover
liabilities under the Securities Act of 1933.
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Item 16. EXHIBITS
The exhibits listed in the accompanying Exhibit Index are filed or
incorporated by reference as part of this registration statement.
Item 17. 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) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, 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 the 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.
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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
c. The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
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d. 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 foregoing provisions, 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-3 and has duly caused this Pre-Effective
Amendment No. 1 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Green Bay, State of
Wisconsin, on August 19, 2003.
WPS RESOURCES CORPORATION
By: /s/ Larry L. Weyers
------------------------------------
Larry L. Weyers
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to its Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Name Capacity
---- --------
/s/ Larry L. Weyers
---------------------------- Chairman, President, Chief Executive Officer and
Larry L. Weyers Director*
/s/ Joseph P. O'Leary
---------------------------- Senior Vice President and Chief Financial Officer
Joseph P. O'Leary (Principal Financial Officer)*
/s/ Diane L. Ford
---------------------------- Vice President-Controller and Chief Accounting
Diane L. Ford Officer (Principal Accounting Officer)*
---------------------------- Director
Ellen Carnahan
Richard A. Bemis + Director
Albert J. Budney, Jr. + Director
Robert C. Gallagher + Director
Kathryn Hasselblad-Pascale + Director
James L. Kemerling + Director
John C. Meng + Director
William F. Protz, Jr. + Director
+By: /s/ Larry L. Weyers
----------------------------
Larry L. Weyers
Attorney-in-Fact*
* Each of the above signatures is affixed as of August 19, 2003.
The required powers of attorney to Larry L. Weyers were filed previously.
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EXHIBIT INDEX
Exhibit Number Document Description
-------------- --------------------
(1)(a) Proposed Form of Underwriting Agreement (incorporated by
reference to Exhibit (1)(a) to Registration Statement No.
333-88525 filed on October 6, 1999).
(1)(b) Proposed Form of Distribution Agreement (incorporated by
reference to Exhibit (1)(b) to Registration Statement No.
333-88525 filed on October 6, 1999).
(3) By-laws (incorporated by reference to Exhibit 3B-1 to Annual
Report on Form 10-K for the year ended December 31, 2000, filed
February 28, 2001 [File No. 1-11337]).
(4)(a) Restated Articles of Incorporation (incorporated by reference to
Exhibit (3)(i).2 to Quarterly Report on Form 10-Q for the period
ended September 30, 2002, filed November 14, 2002 [File No.
1-11337]).
(4)(b) Senior Indenture dated as of October 1, 1999, between us and U.S.
Bank, National Association (f/k/a Firstar Bank, National
Association) as Trustee (incorporated by reference to Exhibit
4(b) to Amendment No. 1 to Registration Statement No. 333-88525
filed on October 21, 1999); First Supplemental Indenture dated as
of November 1, 1999 (incorporated by reference to Exhibit 4A to
Current Report on Form 8-K filed November 12, 1999 [File No.
1-11337]); and Second Supplemental Indenture dated as of November
1, 2002 (incorporated by reference to Exhibit 4A to Current
Report on Form 8-K filed November 25, 2002 [File No. 1-11337]).
(4)(c) Form of Subordinated Indenture (incorporated by reference to
Exhibit (4)(c) to Registration Statement No. 333-88525 filed on
October 6, 1999).
(4)(d) Forms of Supplemental Indentures to Senior Indenture (to be filed
as exhibits to reports pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 or as exhibits to an amendment to
this registration statement).
(4)(e) Forms of Supplemental Indentures to Subordinated Indenture (to be
filed as exhibits to reports pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 or as exhibits to an
amendment to this registration statement).
(4)(f) Forms of Debt Securities (to be filed as exhibits to reports
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 or as exhibits to an amendment to this registration
statement).
(4)(g) Rights Agreement, dated December 12, 1996, between WPS Resources
Corporation and U.S. Bank, National Association (predecessor to
Firstar Trust Company) (incorporated by reference to Exhibit 4-1
to Form 8-A filed December 13, 1996 [File No. 1-11337]).
(4)(h) Amendment to Rights Agreement, effective as of October 9, 2002,
by and among WPS Resources Corporation, U.S. Bank, National
Association and American Stock Transfer & Trust Company (filed
previously with this Registration Statement No. 333-104787 on
April 28, 2003).
(5) Opinion of Foley & Lardner (filed previously with this
Registration Statement No. 333-104787 on August 4, 2003).
(12) Computation of Ratios of Earnings to Fixed Charges (incorporated
by reference to Exhibit 12 to Annual Report on Form 10-K for the
year ended December 31, 2002, filed March 10, 2003 [File No.
1-11337]).
(23)(a) Independent Auditors' Consent.
(23)(b) Consent of Counsel (included in Exhibit 5) (filed previously with
this Registration Statement No. 333-104787 on August 4, 2003).
(24) Powers of Attorney (filed previously with this Registration
Statement No. 333-104787 on April 28, 2003).
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(25)(a) Statement of Eligibility and Qualification on Form T-1 of U.S.
Bank, National Association to act as Trustee under the Senior
Indenture dated October 1, 1999 (filed previously with this
Registration Statement No. 333-104787 on April 28, 2003).
(25)(b) Statement of Eligibility and Qualification on Form T-1 of the
Subordinated Trustee to Act as Trustee under the Subordinated
Indenture (to be filed as an exhibit to a report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 or
as an exhibit to an amendment to this registration statement).
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