Exhibit 8(b)
New York, New York
October 22, 1997
Upper Peninsula Energy Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as
of July 10, 1997
Ladies & Gentlemen:
You have requested our opinion as to certain federal income tax
consequences resulting upon the consummation of the merger of WPS
Resources Corporation ("WPS") and Upper Peninsula Energy Corporation
("XXXX") which will be consummated pursuant to an Agreement and Plan of
Merger, By and Between WPS Resources Corporation and Upper Peninsula
Energy Corporation Dated as of July 10, 1997 (hereinafter the "Merger" and
the "Merger Agreement" respectively). Unless otherwise defined herein,
capitalized terms shall have the meanings ascribed to them in the Merger
Agreement. This opinion is being furnished in accordance with Section
8.2(e) of the Merger Agreement.
The opinions expressed herein are based solely upon current law,
including the Internal Revenue Code of 1986, as amended (the "Code"),
applicable Treasury Regulations promulgated or proposed thereunder,
current positions of the Internal Revenue Service contained in published
Revenue Rulings and Revenue Procedures, other current administrative
positions of the Internal Revenue Service and existing judicial decisions,
all as of the date hereof. It should be noted that such statutes,
regulations, judicial decisions and administrative interpretations are
subject to change or modification at any time, which change may have
retroactive effect. Such a change in authorities upon which our opinion
is based could affect our conclusions reached in rendering this opinion.
In addition, this opinion does not apply to certain special classes of
taxpayers, including, without limitation, foreign corporations, tax exempt
entities, and persons who acquired XXXX Common Stock pursuant to the
exercise of employee stock options or rights or otherwise as compensation.
In connection with the rendering of this opinion, we have
reviewed the Merger Agreement, the Proxy Statement/Prospectus forming a
part of the Registration Statement filed with the Securities and Exchange
Commission by WPS and XXXX in respect of the Merger (the "Registration
Statement"), and related documents and other materials as we have deemed
relevant to the rendering of our opinion. In addition, we have assumed
that we will receive, prior to the Effective Time, representations to be
made by WPS and XXXX, in the form attached hereto and we have relied upon
the accuracy of the statements contained therein. We have also assumed
that all documents we have reviewed are true and accurate, accurately
reflect the originals and have been or will be properly executed, and that
all actions conducted or to be conducted in connection with the Merger
Agreement and the transactions contemplated thereby have been and will be
conducted in the manner provided in such document. Further, we have also
assumed that the Merger of WPS and XXXX will qualify as a "statutory
merger or consolidation" under applicable state laws.
We are members of the bar of the State of New York and are not
admitted to practice law in any other jurisdiction. Accordingly, we
express no opinion with respect to the laws of any other jurisdiction
other than the federal laws of the United States of America in respect of
the opinions set forth herein.
Based on and subject to the foregoing, it is our opinion that:
(1) The Merger will constitute a reorganization within the meaning
of Section 368(a) of the Code. WPS and XXXX will each be "a party to a
reorganization" within the meaning of Section 368(b) of the Code.
(2) No gain or loss will be recognized by XXXX pursuant to the
Merger.
(3) Each holder of XXXX Common Stock who exchanges those shares
solely for shares of WPS Common Stock pursuant to the Merger (the
"Exchanging XXXX Shareholders") will not recognize any gain or loss as a
result of the Merger.
(4) The aggregate tax basis of the WPS Common Stock received by each
Exchanging XXXX Shareholder will be the same as the aggregate tax basis of
the stock exchanged therefor.
(5) The holding period of the WPS Common Stock received by each
Exchanging XXXX Shareholder will include the period for which the stock
exchanged therefor was held, provided that such stock is held as a capital
asset at the effective time of the Merger.
Further, we are of the opinion that the statements set forth under
the caption "THE MERGER-MATERIAL FEDERAL INCOME TAX CONSEQUENCES" in the
Registration Statement and attributed to Xxxx & Priest LLP, constitute an
accurate description, in general terms, of the material United States
federal income tax consequences of the Merger. The discussion set forth
therein, to the extent attributed to Xxxx & Priest LLP, reflects the
opinion of Xxxx & Priest LLP.
Except as set forth above, we express no opinion with respect to
the Merger. This opinion is solely for your information and is not to be
quoted in whole or in part, summarized or otherwise referred to, nor is it
to be filed with or supplied to or relied upon by any governmental agency
or other person without our written consent. This opinion is as of the
date hereof. We disclaim any responsibility to update or supplement this
opinion to reflect any events or state of facts which may hereafter come
to our attention, or any changes in statutes or regulations or any other
legal authorities which may hereafter occur.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 8(b) to the Registration
Statement.
Very truly yours,
XXXX & PRIEST LLP
Draft
WPS Resources Corporation
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 00000
Xxxxx Xxx, Xxxxxxxxx 00000-0000
[ Date ]
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
RE: Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as
of July 10, 1997
Gentlemen:
This letter is furnished to you in connection with the
preparation of your tax opinion with respect to certain federal income tax
consequences of a merger of WPS Resources Corporation ("WPS") and Upper
Peninsula Energy Corporation ("XXXX") which will be consummated pursuant
to an Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as of July
10, 1997 (hereinafter the "Merger" and "Merger Agreement" respectively).
Unless otherwise defined herein, capitalized terms shall have the meanings
ascribed to them in the Merger Agreement.
The following representations of fact are being made to you for
use in the preparation of your opinion and it is understood that you will
be relying on such representations of fact in delivering your opinion of
even date herewith. On the date hereof, the undersigned hereby
represents, after due inquiry, that:
(a) The Merger will be effected in accordance with the terms of the
Merger Agreement and in accordance with applicable state corporation laws.
(b) WPS has no plan or intention to reacquire any of its stock
issued in the Merger, provided, however, that WPS will continue to acquire
shares of its stock through open market purchases consistant with past
practice to satisfy share requirements under its stock investment plan,
its employee stock ownership plan and its executive deferred compensation
plan.
(c) Following the Merger, WPS will continue the historic business of
XXXX or will use a significant portion of the historic business assets of
XXXX in a business.
(d) WPS presently has no plan or intention to sell or otherwise
dispose of any of the XXXX assets acquired in the Merger, except for
dispositions made in the ordinary course of business.
(e) WPS and its shareholders will pay their respective expenses, if
any, incurred in connection with the Merger.
(f) There is no intercorporate indebtedness between WPS and XXXX
existing at the Effective Time of the Merger that was issued, acquired, or
which will be settled, at a discount.
(g) WPS is not an investment company as defined in Sections
368(a)(2)(F)(iii) and (iv) of the Code.
(h) The payment of cash to holders of XXXX Common Stock in the
Merger in lieu of issuing fractional shares of WPS Common Stock is solely
for the purpose of saving the expense and inconvenience of issuing
fractional shares and does not represent separately bargained for
consideration.
The undersigned recognizes that your tax opinion will be based
on the representations of facts set forth in this letter.
Very truly yours,
WPS Resources Corporation
By:
Name:
Title:
DRAFT
Upper Peninsula Energy Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
[ Date ]
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
RE: Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as
of July 10, 1997
Gentlemen:
This letter is furnished to you in connection with the
preparation of your tax opinion with respect to certain federal income tax
consequences of a merger of WPS Resources Corporation ("WPS") and Upper
Peninsula Energy Corporation ("XXXX") which will be consummated pursuant
to an Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as of July
10, 1997 (hereinafter the "Merger" and "Merger Agreement" respectively).
Unless otherwise defined herein, capitalized terms shall have the meanings
ascribed to them in the Merger Agreement.
The following representations of fact are being made to you for
use in the preparation of your opinion and it is understood that you will
be relying on such representations of fact in delivering your opinion of
even date herewith. On the date hereof, the undersigned hereby
represents, after due inquiry, that:
(i) The Merger will be effected in accordance with the terms of the
Merger Agreement and in accordance with applicable state corporation laws.
(j) The fair market value of the WPS Common Stock received by each
holder of XXXX Common Stock will be, at the Effective Time, approximately
equal to the fair market value of the XXXX Common Stock surrendered by
each holder in exchange therefor pursuant to the Merger. The
consideration that will be issued in the Merger to the holders of XXXX
Common Stock in exchange for their XXXX Common Stock was determined in
arm's length negotiations.
(k) There is no plan or intention by any holder of XXXX Common Stock
who owns five percent (5%) or more of value of the outstanding XXXX Common
Stock, and to the best of the knowledge of the management of XXXX, there
is no plan or intention on the part of any remaining holder of XXXX Common
Stock to sell, exchange or otherwise dispose of a number of shares of WPS
Common Stock received in the Merger that would reduce the XXXX
shareholders' ownership of WPS Common Stock received in the Merger to a
number of shares having a value, as of the Effective Time, of less than
fifty percent (50%) of the value of all of the formerly outstanding XXXX
Common Stock as of the same date. For purposes of this representation,
shares of XXXX Common Stock surrendered by dissenters will be considered
outstanding XXXX Common Stock as of the Effective Time. Moreover, stock
which is (i) sold, redeemed, cancelled or otherwise disposed of prior or
subsequent to and as part of the overall transaction, and (ii) exchanged
for cash in lieu of fractional shares of WPS Common Stock, will be
considered in making this representation.
(l) The payment of cash to holders of XXXX Common Stock in the
Merger in lieu of issuing fractional shares of WPS Common Stock is solely
for the purpose of saving the expense and inconvenience of issuing
fractional shares and does not represent separately bargained for
consideration.
(m) On the date of the Merger, the fair market value of the assets
of XXXX to be transferred to WPS will exceed the sum of the liabilities to
be assumed by WPS, plus the amount of liabilities, if any, to which the
assets to be transferred are subject.
(n) The liabilities of XXXX assumed by WPS and the liabilities to
which the transferred assets of XXXX are subject were incurred by XXXX in
the ordinary course of its business.
(o) The compensation that will be paid to any of the XXXX employees
who become employees of WPS following the Merger, including compensation
paid pursuant to any employment, severance or "stay-on bonus" agreements,
will not be a part of the consideration paid to the XXXX shareholders in
exchange for their XXXX Common Stock, and will be commensurate in each
instance with the services rendered or to be rendered by such employees.
In addition, none of the WPS Common Stock that will be issued in the
Merger in respect of any stock of XXXX to any shareholder who is also an
employee of XXXX will represent separate consideration attributable to any
compensation owed to such shareholder-employee.
(p) XXXX and its shareholders will each pay their respective
expenses, if any, incurred in connection with the Merger.
(q) There is no intercorporate indebtedness between WPS and XXXX
existing at the Effective Time of the Merger that was issued, acquired, or
which will be settled, at a discount.
(r) XXXX is not an investment company as defined in Sections
368(a)(2)(F)(iii) and (iv) of the Code.
The undersigned recognizes that your tax opinion will be based
on the facts and representations set forth in this letter.
Very truly yours,
Upper Peninsula Energy Corporation
By:___________________________
Name:
Title:
