AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MADISON GAS AND ELECTRIC COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
WISCONSIN 39-0444025
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
133 SOUTH BLAIR STREET
POST OFFICE BOX 1231
MADISON, WISCONSIN 53701-1231
(608) 252-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
GARY J. WOLTER
VICE PRESIDENT--ADMINISTRATION AND SECRETARY
133 SOUTH BLAIR STREET
POST OFFICE BOX 1231
MADISON, WISCONSIN 53701-1231
(608) 252-7292
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* REGISTRATION FEE
- ---------------------------------------------------------------------------------------
Debt Securities........ $40,000,000 100% $40,000,000 $12,500
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* Estimated solely for the purpose of calculating the registration fee.
----------------
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.
PURSUANT TO THE PROVISIONS OF RULE 429 OF THE RULES AND REGULATIONS OF THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, THE
PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT WILL BE USED AS A
COMBINED PROSPECTUS IN CONNECTION WITH THIS REGISTRATION STATEMENT AND THE
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3, REGISTRATION NO. 33-46192.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 2, 1994
PROSPECTUS
$45,000,000
MADISON GAS AND ELECTRIC COMPANY
DEBT SECURITIES
DUE FROM 9 MONTHS TO 35 YEARS FROM DATE OF ISSUE
-----------
Madison Gas and Electric Company (the "Company") may offer from time to time
up to $45,000,000 aggregate principal amount of its Debt Securities (the "Debt
Securities"), consisting of one or more series of its First Mortgage Bonds (the
"Bonds") and one or more series of its notes secured by a collateral series of
first mortgage bonds (the "Secured Notes"). The Debt Securities may be offered
with maturities ranging from 9 months to 35 years from the date of issue and in
amounts, at prices and on terms to be determined at the time or times of sale.
For each offering of Debt Securities (the "Offered Securities") with respect to
which this Prospectus is being delivered, the accompanying Prospectus
Supplement (the "Prospectus Supplement") sets forth the specific designation,
aggregate principal amount, maturity or maturities, initial public offering
price or prices, interest rate or rates (which may be fixed or, in the case of
Secured Notes, variable), any sinking fund provisions, any listing on a
securities exchange, any terms for redemption at the option of the Company or
the holder, and any other special terms in respect of the Offered Securities.
The Debt Securities may be issued in registered form, in bearer form with
coupons attached or both. In addition, all or a portion of the Debt Securities
of any series may be issued in permanent registered global form, which will be
exchangeable only under certain conditions into definitive Debt Securities. See
"Description of Debt Securities--Global Securities."
The Company may sell the Debt Securities to or through underwriters or
dealers, directly to other purchasers or through agents. See "Plan of
Distribution." The names of any underwriters, dealers or agents, any applicable
commissions, discounts or allowances and the proceeds to the Company from the
sale of the Offered Securities are set forth in the Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
THE DATE OF THIS PROSPECTUS IS , 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its regional offices at Seven World Trade Center, New York,
New York 10048 and 500 West Madison Street, 14th Floor, Chicago, Illinois
60661. Copies of such material can be obtained from the Public Reference
Section of the Commission, Washington, D.C. 20549 at prescribed rates. The
Company has filed with the Commission a Registration Statement on Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Debt Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain portions of which
are omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to such Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act (File Number 0-1125) are incorporated in this Prospectus by
reference and made a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1992;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1993, June 30, 1993 and September 30, 1993; and
3. The Company's Current Report on Form 8-K dated February 11, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, after the date of this Prospectus and prior to the
termination of the offering made by this Prospectus, shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference in this Prospectus modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified and superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents referred
to above which have been incorporated in this Prospectus by reference, other
than certain exhibits to such documents. Such requests should be directed to
Joseph T. Krzos, Vice President--Finance, Madison Gas and Electric Company,
Post Office Box 1231, Madison, Wisconsin 53701-1231 (Telephone: (608) 252-
7923).
THE COMPANY
The Company, a Wisconsin corporation organized as such in 1896, is a public
utility located in Madison, Wisconsin. It is engaged in generating and
transmitting electric energy and distributing it to approximately 117,000
customers throughout 250 square miles in Dane County. The Company also
distributes and transports natural gas to approximately 97,000 customers
throughout 975 square miles in Dane, Columbia, Iowa, Juneau, Monroe and Vernon
counties. The principal executive offices of the Company are located at 133
South Blair Street, Post Office Box 1231, Madison, Wisconsin 53701-1231, and
its telephone number is (608) 252-7000.
2
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement, the Company intends
to use the net proceeds from the sale of the Debt Securities for its general
corporate purposes, including the financing of capital expenditures, the
refinancing of indebtedness, the replacement of an accounts receivable
facility, and possible business investments and acquisitions. Pending such
applications, the net proceeds would be temporarily invested in marketable
securities.
SELECTED FINANCIAL DATA
(000'S EXCEPT RATIO AND PER SHARE DATA)
YEAR ENDED DECEMBER 31
--------------------------------------------
1989 1990 1991 1992 1993
-------- -------- -------- -------- --------
INCOME STATEMENT DATA:
Operating Revenues
Electric........................ $131,961 $140,493 $146,378 $142,646 $147,201
Gas............................. 85,627 80,075 85,822 85,356 96,932
-------- -------- -------- -------- --------
Total......................... $217,588 $220,568 $232,200 $228,002 $244,133
======== ======== ======== ======== ========
Net Operating Income.............. 33,606 34,798 36,374 35,062 34,230
Net Income........................ 20,596 22,029 24,880 23,807 24,675
Earnings on Common Stock.......... 20,038 21,488 24,356 23,301 24,186
Earnings per share of Common
Stock(1)......................... 1.95 2.04 2.28 2.18 2.26
Ratio of Earnings to Fixed
Charges(2)....................... 2.84 3.24 3.88 3.60 4.15
AS OF DECEMBER 31
---------------------------------------------
1992 1993
---------------------- ----------------------
AMOUNT PERCENTAGE AMOUNT PERCENTAGE
-------- ---------- -------- ----------
CAPITALIZATION:
Long-Term Debt (First Mortgage
Bonds).......................... $122,363(3) 39.7% $120,396(3) 38.8%
Redeemable Preferred Stock (Net
of $100 current sinking fund re-
quirement)...................... 5,600 1.8 5,400 1.7
Common Shareholders' Equity...... 180,367 58.5 184,995 59.5
-------- ----- -------- -----
Total Capitalization........... $308,330 100.0% $310,791 100.0%
======== ===== ======== =====
- --------
(1) Adjusted to reflect a three-for-two common stock split in the form of a
dividend distributed January 21, 1992.
(2) For the purpose of computing the ratio of earnings to fixed charges,
earnings have been calculated by adding to income before interest expense,
current and deferred federal and state income taxes, investment tax credits
deferred and restored charged (credited) to operations and the estimated
interest component of rentals. Fixed charges represent interest expense,
amortization of debt discount, premium and expense, and the estimated
interest component of rentals.
(3) Excluding $25,925 and $18,982, respectively, of construction funds held by
a trustee pending disbursement.
3
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may consist of one or more series of Bonds and one or
more series of Secured Notes. Any such Bonds will be issued pursuant to and
secured by the Company's Indenture of Mortgage and Deed of Trust dated as of
January 1, 1946 (the "Original Mortgage") to First Wisconsin Trust Company (now
known as Firstar Trust Company), as trustee (the "Mortgage Trustee"), as now or
hereafter supplemented and amended (the Original Mortgage as so supplemented
and amended being hereinafter referred to as the "Mortgage" and all bonds now
or hereafter issued under the Mortgage being hereinafter referred to as the
"bonds"). Any such Secured Notes will be issued pursuant to the Company's
Indenture to be dated as of March 1, 1994 (the "Note Indenture") to M&I First
National Bank, as trustee (the "Note Trustee"), and will be secured by one or
more First Mortgage Bonds, 2029 Series (the "Collateral Bonds"), to be issued
by the Company pursuant to the Mortgage and pledged to the Note Trustee.
Included in this Prospectus are descriptions of the Mortgage, the Note
Indenture, the Bonds and the Secured Notes. Such descriptions are brief
summaries of the provisions referred to and do not purport to be complete. The
respective forms of the Mortgage and the Note Indenture are filed as exhibits
to the Registration Statement of which this Prospectus is a part, and reference
is made thereto for the definitive provisions of such documents. The
descriptions herein are qualified in their entirety by such reference. Certain
capitalized terms used herein shall have the meanings respectively set forth in
the Mortgage and the Note Indenture.
Subject to the limitations contained herein, the Prospectus Supplement will
set forth the following terms relating to the Offered Securities: (1) the
specific designation of the Offered Securities and whether the Offered
Securities constitute Secured Notes or Bonds; (2) any limit on the aggregate
principal amount of the Offered Securities; (3) the date or dates, if any, on
which the Offered Securities will mature; (4) the rate or rates per annum
(which may be fixed or, in the case of Secured Notes, variable) at which the
Offered Securities will bear interest, if any, the date or dates on which any
such interest will be payable and the Record Dates for any interest payable on
the Offered Securities which are Registered Securities; (5) any mandatory or
optional redemption or sinking fund provisions, including the period or periods
within which, the price or prices at which and the terms and conditions upon
which the Offered Securities may be redeemed or purchased at the option of the
Company or otherwise; (6) whether the Offered Securities will be issuable in
registered form or bearer form or both, and, if issuable in bearer form, the
restrictions as to the offer, sale and delivery of the Offered Securities in
bearer form and as to exchanges between registered and bearer form; (7) whether
the Offered Securities will be issuable in the form of one or more temporary or
permanent Global Securities and, if so, the identity of the Depository for such
Global Securities; (8) each office or agency where the principal of and any
premium and interest on the Offered Securities will be payable, and each office
or agency where the Offered Securities may be presented for registration of
transfer or exchange; (9) any applicable United States Federal income tax
consequences, including whether and under what circumstances the Company will
pay additional amounts with respect to the Offered Securities to a non-United
States Person (as defined in such Prospectus Supplement) on account of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Offered Securities rather than pay
such additional amounts; and (10) any other terms of the Offered Securities not
inconsistent with the Mortgage or the Note Indenture, as the case may be,
including covenants and events of default relating solely to the Offered
Securities. Offered Securities may be issued bearing no interest or interest at
a rate below the prevailing market rate at the time of issuance, to be offered
and sold at a discount below their stated principal amount. United States
Federal income tax consequences and other special considerations applicable
thereto or to other Offered Securities offered and sold at par which are
treated as having been issued at a discount for United States Federal income
tax purposes will be described in the Prospectus Supplement relating thereto.
DESCRIPTION OF THE MORTGAGE AND THE BONDS
General. Any Bonds offered hereby will be issued in an aggregate principal
amount not in excess of $45,000,000. Such Bonds, which will mature not more
than 35 years from date of issue, will be issuable only
4
in definitive fully registered form in the denomination of $1,000 or any
multiple thereof. The Bonds will be transferable and exchangeable without
charge to the holder except for any tax or other governmental charge. Both
principal and interest will be payable at the office of the Mortgage Trustee in
Milwaukee, Wisconsin. Subject to certain exceptions, the Mortgage provides for
the payment of interest on each interest payment date only to the persons in
whose names the Bonds are registered on the record date, i.e., the tenth
business day prior to such interest payment date. At the option of the Company
the interest on the Bonds will be payable by check mailed to the registered
owners.
Maintenance and Replacement Fund. The Supplemental Indenture or Indentures
creating or securing any Series of Debt Securities will not provide for a
maintenance and replacement fund. However, the supplemental indentures with
respect to two outstanding series of bonds provide for a maintenance and
replacement fund, so long as any of such series of bonds are outstanding, with
a combined maintenance and replacement requirement equivalent to 3 1/4% per
annum of the average amount of the Company's depreciable electric and gas
property in service for the period for which the requirement is calculated.
Provision is made for certification upon specified bases of unbonded net
property additions, reacquired bonds or prior lien bonds, or the deposit with
the Mortgage Trustee of cash, equal to the excess of total maintenance and
replacement requirements for expired periods over the aggregate of amounts
expended for repairs and maintenance of the mortgaged property and for property
additions in renewal or replacement of, or in substitution for, property
retirements during such periods. There are generally similar maintenance and
replacement requirements with respect to another series of bonds, except that
the annual requirement is 2 1/2%. The latest stated maturity of outstanding
bonds with respect to which there are maintenance and replacement requirements
occurs in 2006. (Article IV of the Fifth, Seventh and Tenth Supplemental
Indentures.)
Withdrawal of Certain Cash. Cash deposited with the First Mortgage Trustee as
a basis for the issue of additional bonds may be withdrawn by the Company in
the amount of:
(1) 60% of the lesser of the cost or fair value of unbonded net property
additions made after December 31, 1945 (subject to appropriate deductions
if such property additions secure prior lien bonds);
(2) the principal amount of unbonded retired prior lien bonds theretofore
deducted in connection with the withdrawal or reduction in cash or 166 2/3%
of the principal amount of any prior lien bonds theretofore so deducted at
166 2/3% of their principal amount; or
(3) the principal amount of unbonded retired bonds. (Article VIII of the
Original Mortgage.)
Dividend Covenant. The Company will covenant that, so long as any Debt
Securities are outstanding, it will not declare or pay any dividend on its
common stock (other than dividends payable solely in shares of its common
stock) or make any other distribution on or purchase any shares of its common
stock, unless, after giving effect thereto, the aggregate of all such
dividends, distributions and purchases, subsequent to December 31, 1945, shall
not exceed the earned surplus (retained income) of the Company available for
dividends on its common stock accumulated subsequent to December 31, 1945. The
supplemental indentures relating to each of the seven outstanding series of
bonds contain a similar dividend covenant, but three of them contain an
additional requirement that, so long as any bonds issued thereunder are
outstanding, the Company will not declare or pay any such dividend or make any
such distribution or so purchase any shares of its common stock unless the
remainder of such earned surplus so accumulated, after giving effect to such
dividend, distribution or purchase, shall be at least equal to the amount, if
any, by which the aggregate of the charges to income of the Company for
maintenance of and repairs to, and as provision for depreciation of, the
mortgaged property, from the beginning of the calendar year in which the
relevant bonds were issued to the end of the calendar year preceding such
dividend, distribution or purchase, shall be less than the cumulative
maintenance and replacement requirement with respect to outstanding bonds at
the end of such later calendar year. The latest stated maturity of outstanding
bonds with respect to which such additional dividend covenant is applicable
occurs in 2006. As of December 31, 1993, none of these covenants operated to
restrict retained income. (Article V of the Fifth, Seventh and Tenth
Supplemental Indentures and Article IV of the Fourteenth, Fifteenth, Sixteenth
and Seventeenth Supplemental Indentures.)
5
Modifications of the Mortgage. In general, modifications or alterations of
the Mortgage, and of the rights or obligations of the Company and of the
bondholders, as well as waivers of compliance with the Mortgage, may with the
approval of the Company be made at bondholders' meetings upon the affirmative
vote of 66 2/3% of the bonds entitled to vote thereat with respect to matters
involved. Provisions relating to such modifications or alterations and waivers
of compliance are subject to certain conditions designed to safeguard the
position of the bondholders and the Mortgage Trustee with respect to certain
matters of basic importance, including payment of principal of and interest on
bonds and creation of liens ranking prior to or on a parity with the lien of
the Mortgage as to any property. (Article XIV of the Original Mortgage.)
Security and Priority. The Mortgage constitutes a direct first mortgage lien
upon substantially all of the fixed property, and upon the permits and
licenses, owned by the Company, subject to "permissible encumbrances" (as
defined in the Mortgage). The Mortgage contains provisions subjecting to the
lien thereof fixed property, and permits and licenses, which the Company may
subsequently acquire, subject, however, to "permissible encumbrances" and to
liens existing or placed upon such property at the time of acquisition thereof
by the Company. The Mortgage obligates the Company not to create prior or
parity liens or permit them to exist, except for "permissible encumbrances,"
liens upon property acquired after the date of the Original Mortgage existing
thereon at the date of acquisition thereof, and purchase money mortgages
created by the Company at the time of the acquisition of such property. The
Mortgage provides that no property subject to a prior lien, other than
"permissible encumbrances," may be acquired if immediately thereafter the
amount of outstanding indebtedness secured by all such liens would exceed the
greater of $675,000 or 15% of the principal amount of outstanding bonds, unless
at the date of acquisition (i) the outstanding indebtedness secured by such
liens shall not exceed 60% of the cost of such property to the Company, and
(ii) the net earnings of such property available for interest for a twelve-
month period preceding the acquisition shall have been at least twice the
annual interest charges on all indebtedness secured by such liens. (Granting
Clauses, Articles I and V of the Original Mortgage.)
The Collateral Bonds and the Bonds will rank equally and ratably (except as
to any sinking or other fund which is or may be established for the exclusive
benefit of one or more particular series of bonds) with all bonds, regardless
of series, at any time issued and outstanding under the Mortgage.
Outstanding and Additional Series. At December 31, 1993, bonds of seven
series were outstanding. Additional bonds may be issued under the Mortgage in
principal amounts (unlimited except as provided by law) equal to:
(1) 60% of the cost or fair value, whichever is less, of unbonded net
property additions made after December 31, 1945 (subject to deductions if
such net property additions secure prior lien bonds);
(2) the principal amount of bonds previously issued under the Mortgage
and of prior lien bonds theretofore deducted for purposes of the Mortgage,
which have been retired or are then being retired and have not been bonded;
and
(3) the amount of cash deposited with the Mortgage Trustee for such
purpose;
but in each case subject to specified net earnings requirements, unless the
bonds are being issued under certain conditions under (2) above. Additional
bonds may not be issued whenever 60% of the lesser of the cost or fair value of
restricted property (in essence, bonded additions subject to prior liens, other
than "permissible encumbrances," or not used or useful in the electric or gas
utility business) would exceed 10% of the aggregate principal amount of
outstanding bonds and prior lien bonds. (Articles I, Ill and V of the Original
Mortgage.)
At December 31, 1993, unbonded net property additions amounted to
approximately $79,600,000 and unbonded bond retirements were $142,500,000. The
Collateral Bonds and the Bonds may be issued upon a combination of unbonded
property additions, unbonded bond retirements and deposited cash.
Except as set forth above, the Mortgage does not limit the amount of
additional bonds which can be issued; and it does not contain any restrictions
on the issuance of unsecured indebtedness. The Mortgage
6
does not prohibit a merger or sale of substantially all of the Company's assets
or a comparable transaction unless the lien of the Mortgage is impaired, and
does not address the effects on the bondholders of a highly leveraged
transaction, however effected. A leveraged buyout initiated or supported by
management would be treated no differently from any other highly leveraged
transaction.
Concerning the Mortgage Trustee. The Mortgage Trustee is Firstar Trust
Company, Milwaukee, Wisconsin. The Mortgage Trustee, Firstar Bank, Milwaukee
and Firstar Bank, Madison are all affiliated. The Company has for a number of
years maintained lines of credit with one or more of such affiliates of the
Mortgage Trustee.
Default and Notice Thereof. The Mortgage provides that each of the following
shall constitute events of default:
(a) Failure to make due and punctual payment of any installment of
interest on any bonds or of any sinking fund obligation if such default
continues for a period of 60 days, or failure to pay the principal of any
bonds when due and payable.
(b) Failure to make due and punctual payment of any installment of
interest on any prior lien bonds if such default continues for any
applicable grace period, or failure to pay the principal of any prior lien
bonds when due and payable.
(c) The Company's failure to perform or observe any other covenant,
agreement or condition in the Mortgage or in any indenture supplemental
thereto or in the bonds issued thereunder or in any prior lien or prior
lien bonds and continuance of such failure for 90 days after written notice
to the Company by the Mortgage Trustee or by holders of not less than 25%
of the bonds.
(d) Any written admission by the Company of its inability to pay its
debts generally, or any petition in voluntary bankruptcy, or any general
assignment for the benefit of creditors or consent to the appointment of a
receiver by the Company, or any seeking by the Company of a reorganization;
or any adjudication that the Company is bankrupt or insolvent or any
appointment of a receiver without the Company's consent, or any decree
approving a plan of reorganization of the Company, or any assumption of
control over the Company by a court, if such adjudication, order,
appointment or decree shall not be vacated within 90 days. (Article IX of
the Original Mortgage.)
In case of a default the Mortgage Trustee or the holders of not less than 25%
of the bonds may declare the principal and accrued and unpaid interest on all
bonds, if not already due, to be immediately due and payable. The Mortgage
Trustee shall, upon written request of the holders of a majority of the bonds,
waive any such default and rescind such declaration if such default is remedied
or cured to the reasonable satisfaction of the Mortgage Trustee. (Article IX of
the Original Mortgage.)
The Mortgage Trustee shall give the holders of the bonds notice of any
default known to it within 90 days after the occurrence thereof (disregarding
any periods of grace or notice) unless such default shall have been cured.
However, except in case of default in the payment of principal or of interest
on the bonds or in the payment of any sinking fund installment, the Mortgage
Trustee may withhold such notice if in good faith it determines that the
withholding of such notice is in the interest of the holders of the bonds.
(Article XII of the Original Mortgage.)
The holders of a majority of the bonds shall have the right to direct the
time, method and place of conducting any proceeding for any remedy open to the
Mortgage Trustee and of exercising any power or trust conferred upon the
Mortgage Trustee under the Indenture. (Article IX of the Original Mortgage.)
The Mortgage Trustee is not required to take action to enforce any remedy
unless provided with satisfactory indemnity against costs, expenses and
liabilities which may be incurred thereby. (Articles IX and XII of the Original
Mortgage.)
7
Compliance with certain provisions of the Mortgage is required to be
evidenced by various written statements or certificates filed with the Mortgage
Trustee, and various certificates and other papers are required to be so filed
annually and upon the happening of various events. No periodic evidence is
required to be furnished as to the absence of default or as to compliance with
the terms of the Mortgage; however, the Trust Indenture Act of 1939, as
amended, requires that annual certificates as to the absence of such defaults
be furnished to the Mortgage Trustee. (Article V of the Original Mortgage.)
DESCRIPTION OF THE NOTE INDENTURE AND THE SECURED NOTES.
General. The Secured Notes will be issuable under the Note Indenture and
secured by the Collateral Bonds to be issued by the Company and pledged to the
Note Trustee. The Note Indenture does not limit the aggregate principal amount
of Secured Notes which may be issued thereunder, except that no Secured Notes
shall be issued if, after giving effect to such issuance, the aggregate
principal amount of the Outstanding Secured Notes would exceed the aggregate
Stated Principal Amount (as defined below) of the Outstanding Collateral Bonds.
Subject to the foregoing limitation, Secured Notes may be issued under the Note
Indenture from time to time in one or more series. Each series of Secured Notes
shall be denominated and bear interest in United States currency and shall
mature on a date not less than 9 months nor more than 35 years after the date
of issuance (but in no event shall any Secured Note mature after January 15,
2029, the date of maturity of the Collateral Bonds). (Article Two of the Note
Indenture.)
Security; The Collateral Bonds. The payment of the principal of, premium (if
any) and interest on the Secured Notes will be secured by a pledge to the Note
Trustee of the Collateral Bonds. The Collateral Bonds will be issued under and
secured by the Mortgage, equally and ratably with all other bonds now or
hereafter issued and Outstanding thereunder. The aggregate principal amount of
the Collateral Bonds will be limited to the lesser of (a) the dollar amount set
forth therein (the "Stated Principal Amount") or (b) the aggregate principal
amount of the Secured Notes from time to time Outstanding. The interest payable
on the Collateral Bonds shall be equal to the aggregate interest payable with
respect to the Secured Notes, but such interest shall not exceed an amount
computed using a fixed interest rate of 25% per annum. Both principal and
interest with respect to the Collateral Bonds will be payable to the Note
Trustee. Unless otherwise indicated in the applicable Prospectus Supplement,
interest will be payable on the Collateral Bonds semi-annually on January 15
and July 15 of each year during which Secured Notes are Outstanding. Principal,
premium (if any) and interest payments with respect to the Secured Notes shall
be deemed to be payments of the principal, premium (if any) and interest due
with respect to the Collateral Bonds. For a description of the Mortgage, the
bonds issued thereunder and the rights of the holders of such bonds, see
"Description of Debt Securities--Description of the Mortgage and the Bonds"
herein. The Note Trustee shall be deemed and treated as the sole holder of the
Collateral Bonds for all purposes under the Mortgage. (Article Twelve of the
Note Indenture.)
The Collateral Bonds will not be entitled to the benefit of any sinking fund.
The Collateral Bonds are subject to redemption upon the demand of the Note
Trustee on the occurrence of an Event of Default under the Note Indenture and
the resulting acceleration of the maturity of the Secured Notes. The redemption
price shall be equal to 100% of the aggregate principal amount of the
Outstanding Secured Notes of all series plus accrued interest thereon to the
date fixed for redemption. At any time after any such acceleration of the
Secured Notes, but before a judgment or decree for the immediate payment of the
Secured Notes has been obtained, and so long as the Collateral Bonds have not
been accelerated, the Holders of at least a majority in principal amount of the
Outstanding Secured Notes may, under certain circumstances described in the
Note Indenture, rescind the acceleration of the Secured Notes and the demand
for redemption of the Collateral Bonds. (Article Five of the Note Indenture.)
Global Securities. The Secured Notes may be issued in the form of a global
security which is deposited with and registered in the name of the depository
(or a nominee of the depository) specified in the accompanying Prospectus
Supplement. So long as the depository for a global security, or its nominee, is
the
8
registered owner of the global security, the depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Secured Notes
represented by such global security for all purposes under the Note Indenture.
Except as provided in the Note Indenture, owners of beneficial interests in
Secured Notes represented by a global security will not (a) be entitled to have
such Secured Notes registered in their names, (b) receive or be entitled to
receive physical delivery of certificates representing such Secured Notes in
definitive form, (c) be considered the owners or holders thereof under the Note
Indenture or (d) have any rights under the Note Indenture with respect to such
global security. Unless and until it is exchanged in whole or in part for
individual certificates evidencing the Secured Notes represented thereby, a
global security may not be transferred except as a whole by the depository for
such global security to a nominee of such depository or by a nominee of such
depository to such depository or another nominee of such depository or by the
depository or any nominee to a successor depository or any nominee of such
successor. The Company, in its sole discretion, may at any time determine that
any series of Secured Notes issued or issuable in the form of a global security
shall no longer be represented by such global security and such global security
shall be exchanged for securities in definitive form pursuant to the Note
Indenture. (Sections 2.3, 2.4, 2.8 and 7.3 of the Note Indenture.)
Upon issuance of a global security, the depository will credit, on its book-
entry registration and transfer system, the respective principal amounts of
such global security to the accounts of participants. Ownership of interests in
a global security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the depository (with respect to
interests of participants in the depository), or by participants in the
depository or persons that may hold interests through such participants (with
respect to persons other than participants in the depository). Ownership of
beneficial interests in a global security will be limited to participants or
persons that hold interests through participants.
Exchange and Transfer. Secured Notes may be presented for exchange and
registered Secured Notes may be presented for registration of transfer at the
offices and subject to the restrictions set forth therein and in the applicable
Prospectus Supplement without service charge, but upon payment of any taxes or
other governmental charges due in connection therewith, subject to any
applicable limitations contained in the Note Indenture. Secured Notes in bearer
form and the coupons appertaining thereto, if any, will be transferable by
delivery. (Section 2.8 of the Note Indenture.)
Payment. Unless otherwise indicated in the applicable Prospectus Supplement,
payment of the principal of and the premium and interest, if any, on all
Secured Notes in registered form (other than a Registered Global Security) will
be made at the office of the Note Trustee in the City of West Bend, Wisconsin,
except that, at the option of the Company, payment of any interest may be made
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register or (ii) by wire transfer to an
account maintained by the Person entitled to such payment as specified in the
Note Register. Unless otherwise indicated in the applicable Prospectus
Supplement, payment of any interest due on Secured Notes in registered form
will be made to the Persons in whose name such Secured Notes are registered at
the close of business on the Record Date for such interest payments. (Sections
3.1 and 3.2 of the Note Indenture.)
Events of Default. The occurrence of any of the following events with respect
to the Secured Notes of any series will constitute an "Event of Default" with
respect to the Secured Notes of such series: (a) default for 30 days in the
payment of any interest on any of the Secured Notes of such series; (b) default
in the payment of any of the principal of or the premium, if any, on any of the
Secured Notes of such series, whether at maturity, upon redemption, by
declaration or otherwise; (c) default in the deposit of any sinking fund
payment in respect of Secured Notes of such series; (d) default for 60 days by
the Company in the performance or observance of any other covenant or agreement
contained in the Note Indenture relating to the Secured Notes of such series
after written notice thereof as provided in the Note Indenture; (e) the
occurrence of an event of default under the Mortgage and the Mortgage Trustee,
the Company or the Holders of at least 25% in aggregate principal amount of the
Outstanding Secured Notes of such series shall have
9
given written notice thereof to the Note Trustee; or (f) the occurrence of
certain events of bankruptcy, insolvency or reorganization relating to the
Company. Additional Events of Default may be prescribed for the benefit of the
Holders of a particular series of Secured Notes, and any such additional Events
of Default will be described in the Prospectus Supplement relating thereto.
If an Event of Default due to a default in the payment of the principal of or
the premium or interest, if any, on any series of Secured Notes shall have
occurred and be continuing, either the Note Trustee or the Holders of not less
than 25% in aggregate principal amount of the Secured Notes of such series then
Outstanding may declare the principal of all Secured Notes of such series and
the interest, if any, accrued thereon to be due and payable immediately. If an
Event of Default due to a default in the observance or performance of any other
covenant or agreement of the Company contained in the Note Indenture and
applicable to the Secured Notes of one or more (but less than all) series then
Outstanding shall have occurred and be continuing, either the Note Trustee or
the Holders of not less than 25% in aggregate principal amount of the Secured
Notes of the affected series then Outstanding (voting as one class) may declare
the principal of all Secured Notes of each such affected series and the
interest, if any, accrued thereon to be due and payable immediately. If any
Event of Default due to a default in the observance or performance of any other
covenant or agreement of the Company contained in the Note Indenture applicable
to all Secured Notes then Outstanding or due to certain events of bankruptcy,
insolvency or reorganization relating to the Company shall have occurred and be
continuing, either the Note Trustee or the Holders of not less than 25% in
aggregate principal amount of all Secured Notes then Outstanding (voting as one
class) may declare the principal of all Secured Notes and the interest, if any,
accrued thereon to be due and payable immediately.
Upon any such acceleration of the Secured Notes, the Note Trustee is
empowered to cause the mandatory redemption of the Collateral Bonds at 100% of
the principal amount thereof plus accrued interest to the redemption date. At
any time after an acceleration of the Secured Notes has been declared, but
before a judgment or decree for the immediate payment of the principal amount
of the Secured Notes has been obtained and so long as the Collateral Bonds have
not been accelerated, the holders of a majority in principal amount of the
Outstanding Secured Notes may, under certain circumstances, rescind and annul
such acceleration and its consequences.
Upon certain conditions, any such declaration of the Secured Notes may be
rescinded and annulled if all Events of Default, other than the nonpayment of
accelerated principal, with respect to the Secured Notes of all such affected
series then Outstanding shall have been cured or waived as provided in the Note
Indenture by the Holders of a majority in aggregate principal amount of the
Secured Notes of the affected series then Outstanding (voting as one class,
except in the case of Events of Default described in clauses (a), (b) and (c)
above, as to which each series so affected will vote as a separate class). See
"Modification of the Note Indenture" below. Reference is made to the Prospectus
Supplement relating to any series of Original Issue Discount securities for the
particular provisions relating to the acceleration of a portion of the
principal amount thereof upon the occurrence and continuance of an Event of
Default with respect thereto.
The Note Indenture provides that, subject to the duty of the Trustee to act
with the requisite standard of care in case default with respect to a series of
Secured Notes shall have occurred and be continuing, the Note Trustee will be
under no obligation to exercise any of its rights or powers under the Note
Indenture at the request, order or direction of the Holders of the Secured
Notes, unless such Holders shall have offered to the Note Trustee reasonable
indemnity. Subject to such provisions for indemnity and certain other
limitations contained in the Note Indenture, the Holders of a majority in
aggregate principal amount of the Secured Notes of each affected series then
Outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercising any trust or power conferred on the Note Trustee, with respect to
the Secured Notes of such affected series.
The Note Indenture provides that no Holder of Secured Notes may institute any
action against the Company under the Note Indenture (except actions for payment
of overdue principal, premium or interest)
10
unless such Holder previously shall have given to the Note Trustee notice of
default and continuance thereof and unless the Holders of not less than 25% in
aggregate principal amount of the Secured Notes of the affected series then
Outstanding (voting as one class) shall have requested the Note Trustee to
institute such action and shall have offered the Note Trustee reasonable
indemnity, the Note Trustee shall not have instituted such action within 60
days of such request and the Note Trustee shall not have received direction
inconsistent with such request by the Holders of a majority in aggregate
principal amount of the Secured Notes of the affected series then Outstanding
(voting as one class). (Article Five of the Note Indenture.)
The Note Indenture requires the Company to furnish to the Note Trustee
annually a statement as to the Company's compliance with all conditions and
covenants under the Note Indenture. The Note Indenture provides that the Note
Trustee may withhold notice to the Holders of the Secured Notes of any series
of any default affecting such series (except defaults as to payment of
principal, premium or interest on the Secured Notes of such series) if it
considers such withholding to be in the interests of the Holders of the Secured
Notes of such series. (Sections 4.3 and 5.11 of the Note Indenture.)
Consolidation, Merger or Sale of Assets. The Note Indenture provides that the
Company may consolidate with or merge into, or sell, lease or convey its
property as an entirety or substantially as an entirety to, any other
corporation if (a) such corporation assumes the obligations of the Company
under the Secured Notes and the Note Indenture and is organized and existing
under the laws of the Untied States of America, any State thereof or the
District of Columbia, (b) immediately after such consolidation, merger, sale,
lease or conveyance, such other corporation shall have assumed and become
liable for all of the obligations of the Company under and with respect to the
Mortgage and the Collateral Bonds and the Note Indenture and (c) no such
consolidation, merger or sale shall have impaired the lien of the Mortgage or
any of the rights and powers of the holder of the Collateral Bonds. The term
"impaired" is not defined in the Mortgage, but the Company believes that an
impairment would occur thereunder if any such transaction had the effect or
releasing any property from the first mortgage lien created by the Mortgage or
subjecting any property subject to such lien to any prior lien except as
expressly permitted by the Mortgage. (Article Nine of the Note Indenture.)
Modification of the Note Indenture. The Note Indenture permits the Company
and the Note Trustee to enter into supplemental indentures thereto without the
consent of the Holders of the Secured Notes to: (a) additionally secure the
Secured Notes of one or more series, (b) evidence the assumption by a successor
corporation of the obligations of the Company under the Note Indenture and the
Secured Notes then Outstanding, (c) add covenants for the protection of the
Holders of the Secured Notes, (d) cure any ambiguity or correct any
inconsistency in the Note Indenture, (e) establish the form and terms of the
Secured Notes of any series and (f) evidence the acceptance of appointment by a
successor Note Trustee.
The Note Indenture also permits the Company and the Note Trustee, with the
consent of the Holders of not less than a majority in aggregate principal
amount of the Secured Notes of each series then Outstanding and affected, to
add any provisions to, or change in any manner or eliminate any of the
provisions of, the Note Indenture or modify in any manner the rights of the
Holders of the Secured Notes of each such affected series; provided, however,
that the Company and the Note Trustee may not, without the consent of the
Holder of each Secured Note then Outstanding and affected thereby: (a) extend
the time of payment of the principal (or any installment) of any Secured Note,
or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any amount payable on the redemption
thereof, or impair the security interest of the Note Trustee in the Collateral
Bonds, or reduce the amount payable on any Original Issue Discount Notes upon
acceleration or provable in bankruptcy, or impair the right to institute suit
for the enforcement of any payment on any Secured Note when due; or (b) reduce
the percentage in principal amount of the Secured Notes of the affected series,
the consent of whose Holders is required for any such modification or for any
waiver provided for in the Note Indenture. (Article Eight of the Note
Indenture.)
Prior to the acceleration of the maturity of any Secured Notes, the Holders
of a majority in aggregate principal amount of the Secured Notes of all series
at the time Outstanding with respect to which a default or
11
an Event of Default shall have occurred and be continuing (voting as one class)
may on behalf of the Holders of all such affected Secured Notes waive any past
default or Event of Default and its consequences, except a default or an Event
of Default in respect of a covenant or provision of the Note Indenture or of
any Secured Note which cannot be modified or amended without the consent of the
Holder of each Secured Note affected. (Section 5.10 of the Note Indenture.)
Defeasance and Discharge. The Note Indenture provides that, at the option of
the Company: (a) the Company will be discharged from any and all obligations in
respect of the Secured Notes of a particular series then Outstanding (except
for certain obligations to register the transfer of or exchange the Secured
Notes of such series, to replace stolen, lost or mutilated Secured Notes of
such series, to maintain paying agencies and to maintain the trust described
below), or (b) the Company need not comply with and shall have no liability in
respect of certain restrictive covenants of the Note Indenture (including those
described under "Consolidation, Merger or Sale of Assets"), and the failure to
comply with such covenants shall not be an Event of Default, in each case if
the Company irrevocably deposits in trust with the Note Trustee money, and/or
securities backed by the full faith and credit of the United States which,
through the payment of the principal thereof and the interest thereon in
accordance with their terms, will provide money in an amount sufficient to pay
all the principal of (and premium, if any) and interest on the Secured Notes of
such series on the stated maturity of such Secured Notes and any mandatory
sinking fund or analogous payment on the dates on which such payments are due
and payable in accordance with the terms thereof. To exercise such option, the
Company is required, among other things, to deliver to the Note Trustee an
opinion of independent counsel to the effect that the exercise of such option
would not cause the Holders of the Secured Notes of such series to recognize
income, gain or loss for United Stated Federal income tax purposes as a result
of such defeasance, and such Holders will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred, and, in the case
of a discharge in clause (a) of the preceding sentence, such opinion is to be
accompanied by a private letter ruling to the same effect received from the
Internal Revenue Service, a revenue ruling to such effect pertaining to a
comparable form of transaction published by the Internal Revenue Service or
appropriate evidence that since the date of the Note Indenture there has been a
change in the applicable Federal income tax law. Notwithstanding the foregoing,
such option may not be exercised by the Company if (i) any Event of Default, or
event which with notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing under the Note Indenture, (ii) any such
deposit of money and/or securities would result in a breach or violation of, or
constitute a default under, the Note Indenture or any other agreement to which
the Company is a party or by which it is bound, or (iii) any such deposit would
cause any Secured Note of the affected series then listed on any national
securities exchange to be delisted.
In the event the Company exercises its option to effect a covenant defeasance
with respect to the Secured Notes of any series as described in the preceding
paragraph and the Secured Notes of such series are thereafter declared due and
payable because of the occurrence of any Event of Default other than an Event
of Default caused by failing to comply with the covenants which are defeased,
and the amount of money and securities on deposit with the Trustee would be
insufficient to pay amounts due on the Secured Notes of such series at the time
of their accelerated maturity, the Company would remain liable for such
accelerated amounts.
The Company may also obtain a discharge of the Note Indenture with respect to
all Secured Notes then Outstanding (except for the rights of Noteholders in the
property deposited and to receive payments of principal and interest when due,
the rights of the Note Trustee and certain obligations to register the transfer
of or exchange such Secured Notes, to replace stolen, lost or mutilated Secured
Notes, to maintain paying agencies and to maintain the trust described below)
by irrevocably depositing in trust with the Note Trustee money, and/or
securities backed by the full faith and credit of the United States which,
through the payment of the principal thereof or the interest thereon in
accordance with their terms, will provide money in an amount sufficient to pay
all the principal of (and premium, if any) and interest on the Secured Notes on
the stated maturities thereof and any mandatory sinking fund or analogous
payments on the dates on which such
12
payments are due and payable, provided that such Secured Notes are by their
terms due and payable, or are to be called for redemption, within one year.
(Article Ten of the Note Indenture.)
CONCERNING THE NOTE TRUSTEE.
M&I First National Bank, the trustee under the Note Indenture, is one of a
number of banks with which the Company maintains ordinary banking
relationships, including, in certain cases, credit facilities.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four ways:
(i) directly to purchasers, (ii) through agents, (iii) through underwriters and
(iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Debt Securities in respect of which this Prospectus is
delivered, will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If underwriters are utilized in the sale, the Company will execute an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of the Debt Securities in respect of which this Prospectus is
delivered to the public. Any underwriters will acquire Debt Securities for
their own account and may resell such Debt Securities from time to time in one
or more transactions, including negotiated transactions, at fixed public
offering prices or at varying prices determined at the time of sale. Debt
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters, or directly by the managing underwriters.
Only underwriters named in the Prospectus Supplement are deemed to be
underwriters in connection with the Debt Securities offered thereby. If any
underwriters are utilized in the sale of the Debt Securities, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale
of Debt Securities will be obligated to purchase all such Debt Securities, if
any are purchased.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
Agents, underwriters and dealers may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities (including liabilities under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise) or to contribution with respect to payments which the agents,
underwriters or dealers may be required to make in respect thereof. Agents,
underwriters and dealers may be customers of, engage in transactions with, or
perform services for the Company in the ordinary course of business.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales will be described in the
Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Debt Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for
13
payment and delivery on the date stated in the Prospectus Supplement. Each
Contract will be for an amount not less than, and unless the Company otherwise
agrees the aggregate principal amount of Debt Securities sold pursuant to
Contracts shall be not less nor more than, the respective amounts stated in the
Prospectus Supplement. Institutions with whom Contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but shall in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except that the purchase by an
institution of the Debt Securities covered by its Contract shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject. A commission indicated in the
Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Debt Securities pursuant to Contracts accepted by the Company.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
LEGAL OPINIONS
Legal matters with respect to the Debt Securities will be passed upon for the
Company by Michael, Best & Friedrich, Milwaukee, Wisconsin.
EXPERTS
The financial statements and financial statement schedules included (or
incorporated by reference) in the Company's Annual Report on Form 10-K for the
year ended December 31, 1992, incorporated by reference herein, have been
audited by Arthur Andersen & Co., independent public accountants, as indicated
in their report with respect thereto, and are so incorporated by reference
herein in reliance upon the authority of said firm as experts in accounting and
auditing in giving said report. The financial statements included in the
Company's Current Report on Form 8-K dated February 11, 1994 for the year ended
December 31, 1993, incorporated by reference herein, have been audited by
Coopers & Lybrand, independent accountants, as indicated in their report with
respect thereto, and are so incorporated by reference herein in reliance upon
the authority of said firm as experts in accounting and auditing matters. Any
financial statements and schedules hereafter incorporated by reference in the
Registration Statement of which this Prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Registration Fee--Securities and Exchange Commission............. $ 12,500
Public Service Commission of Wisconsin Fee....................... 1,500
Legal Fees and Expenses.......................................... 65,000
Blue Sky Fees and Expenses....................................... 7,500
Accounting Fees and Expenses..................................... 22,000
Printing Expenses................................................ 15,000
Trustee Fees and Expenses........................................ 20,000
Miscellaneous.................................................... 20,000
--------
Total.......................................................... $163,500
========
All of the above items except the Registration Fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of the Wisconsin Business Corporation Law and
Article IX of the Registrant's By-Laws, director and officers of the Registrant
are entitled to mandatory indemnification from the Registrant against certain
liabilities (which may include liabilities under the Securities Act of 1933)
and expenses (i) to the extent such officers or directors are successful in the
defense of a proceeding; and (ii) in proceedings in which the director or
officer is not successful in defense thereof, 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 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; or (d) willful misconduct.
Additionally, under the Wisconsin Business Corporation Law, directors of the
Registrant are not subject to personal lability to the Registrant, its
shareholders or any person asserting rights on behalf thereof, for certain
breaches or failures to perform any duty resulting solely from their status as
directors, except in circumstances paralleling those outlined above.
II-1
EXHIBIT INDEX
ITEM 16. EXHIBITS
EXHIBIT
NUMBER NATURE OF EXHIBIT
------- -----------------
1.1 Form of Agency Agreement.
1.2 Form of Underwriting Agreement.
*4.1 Indenture of Mortgage and Deed of Trust between the Company and First
Wisconsin Trust Company (now known as Firstar Trust Company), as
Trustee, dated as of January 1, 1946 (Exhibit 7-D to file No. 2-6059),
and the following indentures supplemental thereto, respectively, the
Fifth Supplemental Indenture dated as of June 1, 1966 (Exhibit 4-B-6
to file No. 2-25244), the Seventh Supplemental Indenture dated as of
January 15, 1971 (Exhibit 2.08 to file No. 2-38980), the Tenth
Supplemental Indenture dated as of November 1, 1976 (Exhibit 2.03 to
file No. 2-60227), the Fourteenth Supplemental Indenture dated as of
April 1, 1992 (Exhibit 4C to file No. 0-1125), the Fifteenth
Supplemental Indenture dated as of April 1, 1992 (Exhibit 4D to file
No. 0-1125), the Sixteenth Supplemental Indenture dated as of October
1, 1992 (Exhibit 4E to file No. 0-1125), and the Seventeenth
Supplemental Indenture dated as of February 1, 1993 (Exhibit 4F to
file No. 0-1125).
4.2 Form of Note Indenture.
Form of Eighteenth Supplemental Indenture creating the Collateral
4.3 Bonds.
Form of Supplemental Indenture to create one or more series of Bonds
4.4 to be issued.
4.5 Form of Fixed Rate Note.
4.6 Form of Floating Rate Note.
4.7 Form of Calculation Agency Agreement.
5 Opinion of Michael, Best & Friedrich.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Coopers & Lybrand.
23.3 Consent of Michael, Best & Friedrich (included in Exhibit Number 5).
24 Powers of Attorney (included in signature page).
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Firstar Trust Company.
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of M&I First National Bank.
- --------
* The exhibits listed above and marked with an asterisk were filed as exhibits
to Registration Statements or Reports previously filed with the Commission
under the exhibit number and Registration or File number as shown after each
such exhibit, and they are hereby incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually
II-2
or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement; or
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(4) That, for purpose 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
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 15, 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.
II-3
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 REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MADISON, STATE OF WISCONSIN, ON FEBRUARY 28, 1994.
Madison Gas and Electric Company
/s/ David C. Mebane
By: __________________________________
DAVID C. MEBANE
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHIEF OPERATING OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES
INDICATED ON FEBRUARY 28, 1994.
Each person whose signature below constitutes and appoints David C. Mebane
and Joseph T. Krzos, and each of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto such attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying all that such attorneys-in-fact and agents, or any of
them or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
SIGNATURE TITLE
/s/ Frank C. Vondrasek Chairman and Director
- -------------------------------------
FRANK C. VONDRASEK
/s/ David C. Mebane President, Chief Executive Officer,
- ------------------------------------- Chief Operating Officer and
DAVID C. MEBANE Director (Principal Executive
Officer)
/s/ Joseph T. Krzos Vice President--Finance (Principal
- ------------------------------------- Financial Officer and Principal
JOSEPH T. KRZOS Accounting Officer)
/s/ Jean Manchester Biddick Director
- -------------------------------------
JEAN MANCHESTER BIDDICK
/s/ Richard E. Blaney Director
- -------------------------------------
RICHARD E. BLANEY
/s/ Robert M. Bolz Director
- -------------------------------------
ROBERT M. BOLZ
II-4
SIGNATURE TITLE
/s/ Donald J. Helfrecht Director
- -------------------------------------
DONALD J. HELFRECHT
/s/ Frederic E. Mohs Director
- -------------------------------------
FREDERIC E. MOHS
/s/ Robert B. Rennebohm Director
- -------------------------------------
ROBERT B. RENNEBOHM
/s/ Phillip C. Stark Director
- -------------------------------------
PHILLIP C. STARK
Director
- -------------------------------------
H. LEE SWANSON
II-5
EXHIBIT INDEX
ITEM 16. EXHIBITS
EXHIBIT
NUMBER NATURE OF EXHIBIT PAGE
------- ----------------- ----
1.1 Form of Agency Agreement.
1.2 Form of Underwriting Agreement.
*4.1 Indenture of Mortgage and Deed of Trust between the Company and
First Wisconsin Trust Company (now known as Firstar Trust
Company), as Trustee, dated as of January 1, 1946 (Exhibit 7-D
to file No. 2-6059), and the following indentures supplemental
thereto, respectively, the Fifth Supplemental Indenture dated
as of June 1, 1966 (Exhibit 4-B-6 to file No. 2-25244), the
Seventh Supplemental Indenture dated as of January 15, 1971
(Exhibit 2.08 to file No. 2-38980), the Tenth Supplemental
Indenture dated as of November 1, 1976 (Exhibit 2.03 to file
No. 2-60227), the Fourteenth Supplemental Indenture dated as of
April 1, 1992 (Exhibit 4C to file No. 0-1125), the Fifteenth
Supplemental Indenture dated as of April 1, 1992 (Exhibit 4D to
file No. 0-1125), the Sixteenth Supplemental Indenture dated as
of October 1, 1992 (Exhibit 4E to file No. 0-1125), and the
Seventeenth Supplemental Indenture dated as of February 1, 1993
(Exhibit 4F to file No. 0-1125).
4.2 Form of Note Indenture.
4.3 Form of Eighteenth Supplemental Indenture creating the
Collateral Bonds.
4.4 Form of Supplemental Indenture to create one or more series of
Bonds to be issued.
4.5 Form of Fixed Rate Note.
4.6 Form of Floating Rate Note.
4.7 Form of Calculation Agency Agreement.
5 Opinion of Michael, Best & Friedrich.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Coopers & Lybrand.
23.3 Consent of Michael, Best & Friedrich (included in Exhibit
Number 5).
24 Powers of Attorney (included in signature page).
25.1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Firstar Trust Company.
25.2 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of M&I First National Bank.
- --------
* The exhibits listed above and marked with an asterisk were filed as exhibits
to Registration Statements or Reports previously filed with the Commission
under the exhibit number and Registration or File number as shown after each
such exhibit, and they are hereby incorporated herein by reference.
II-6