AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 25, 2001
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLETE MINNESOTA 41-0418150
(LEGALLY INCORPORATED AS (State or other jurisdiction of (I.R.S. Employer
MINNESOTA POWER, INC.) incorporation or organization) Identification No.)
(Exact name of registrant as
specified in its charter)
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30 West Superior Street
Duluth, Minnesota 55802-2093
(218) 279-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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David G. Gartzke Philip R. Halverson, Esq. Robert J. Reger, Jr., Esq.
Senior Vice President-Finance Vice President, General Counsel Thelen Reid & Priest LLP
and Chief Financial Officer and Secretary 40 West 57th Street
30 West Superior Street 30 West Superior Street New York, New York 10019-4097
Duluth, Minnesota 55802-2093 Duluth, Minnesota 55802-2093 (212) 603-2000
(218) 279-5000 (218) 279-5000
(Names and addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
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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 and other factors.
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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. [ ]
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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.[ ]
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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
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING PRICE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) (1) REGISTRATION FEE
- --------------------------------- ------------------ ----------------- ------------------ ------------------
Common Stock, without par value 591,292 Shares $20.84375 $12,324,743 $3,082
Preferred Share Purchase Rights 591,292 Rights (2) -- -- -- (3)
================================== ================== ================= ================== ==================
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 on the basis of the average
of the high and low prices of the registrant's common stock on the New York
Stock Exchange composite tape on January 18, 2001.
(2) The preferred share purchase rights are attached to and will trade with the
common stock. The value attributable to the preferred share purchase
rights, if any, is reflected in the market price of the common stock.
(3) Since no separate consideration is paid for the preferred share purchase
rights, the registration fee for such securities is included in the fee for
the common stock.
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 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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SUBJECT TO COMPLETION, DATED JANUARY 25, 2001
PROSPECTUS
ALLETE
591,292 SHARES OF COMMON STOCK
(WITHOUT PAR VALUE)
--------------------
The shares of common stock, together with attached preferred share purchase
rights (collectively, "common stock"), of ALLETE offered hereby will be sold
from time to time by the selling shareholders identified in this prospectus in
brokers' transactions at prices prevailing at the time of sale or as otherwise
described in "Plan of Distribution." ALLETE will not receive any of the proceeds
from the sale of these shares of common stock. Expenses in connection with the
registration of these shares of common stock under the Securities Act of 1933,
including legal and accounting fees of ALLETE, will be paid by ALLETE.
These shares of common stock were acquired by the selling shareholders from
ALLETE in a private placement transaction. This prospectus has been prepared for
the purpose of registering these shares of common stock under the Securities Act
of 1933 to allow future sales by the selling shareholders to the public without
restriction. To the knowledge of ALLETE, the selling shareholders have made no
arrangement with any brokerage firm for the sale of these shares of common
stock. The selling shareholders may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933. Any commissions received by a broker or
dealer in connection with resales of these shares of common stock may be deemed
to be underwriting commissions or discounts under the Securities Act of 1933.
ALLETE's common stock is listed on the New York Stock Exchange and trades
under the symbol "ALE." The last reported sale price on the New York Stock
Exchange on January 24, 2001 was $21-7/8.
These shares of common stock have not been registered for sale under the
securities laws of any state or jurisdiction as of the date of this prospectus.
Brokers or dealers effecting transactions in these shares of common stock should
confirm the registration thereof under the securities laws of the states or
jurisdictions in which such transactions occur, or the existence of any
exemption from registration.
ALLETE's principal executive offices are located at 30 West Superior
Street, Duluth, Minnesota 55802-2093, telephone number (218) 279-5000.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 2001
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The information in this prospectus is not complete and may be changed. The
selling shareholders 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 jurisdiction where the offer or sale is not
permitted.
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION...........................................3
INCORPORATION BY REFERENCE....................................................3
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995............................................3
ALLETE........................................................................5
SELLING SHAREHOLDERS..........................................................7
DESCRIPTION OF COMMON STOCK...................................................8
USE OF PROCEEDS..............................................................11
PLAN OF DISTRIBUTION.........................................................11
EXPERTS......................................................................12
LEGAL OPINIONS...............................................................13
2
WHERE YOU CAN FIND MORE INFORMATION
ALLETE files annual, quarterly and other reports and other information with
the Securities and Exchange Commission ("SEC"). You can read and copy any
information filed by ALLETE with the SEC at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain additional
information about the Public Reference Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including ALLETE.
ALLETE also maintains an Internet site (http://www.allete.com). Information
contained on ALLETE's Internet site does not constitute part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows ALLETE to "incorporate by reference" the information that
ALLETE files with the SEC, which means that ALLETE may, in this prospectus,
disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus.
ALLETE is incorporating by reference the documents listed below and any future
filings ALLETE makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, until this offering is terminated.
Information that ALLETE files in the future with the SEC will automatically
update and supersede this information.
(1) ALLETE's Annual Report on Form 10-K for the year ended December 31,
1999.
(2) ALLETE's Quarterly Report on Form 10-Q for the quarters ended March
31, 2000, June 30, 2000 and September 30, 2000.
(3) ALLETE's Current Reports on Form 8-K filed with the SEC on June 20,
2000, June 28, 2000, July 19, 2000, August 8, 2000, October 10, 2000,
October 18, 2000 and January 19, 2001.
You may request a copy of these documents, at no cost to you, by writing or
calling Shareholder Services, ALLETE, 30 West Superior Street, Duluth, Minnesota
55802-2093, telephone number (218) 723-3974 or (800) 535-3056.
You should rely only on the information contained in, or incorporated by
reference in, this prospectus and any prospectus supplement. ALLETE has not, and
any underwriters, agents or dealers have not, authorized anyone else to provide
you with different information. You should not assume that the information
contained in this prospectus and any prospectus supplement is accurate as of any
date other than the date on the front of those documents.
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, ALLETE is hereby filing cautionary statements
identifying important factors that could cause ALLETE's actual results to differ
materially from those projected in forward-looking statements (as that term is
defined in the Private Securities Litigation Reform Act of 1995) made by or on
behalf of ALLETE which are made in this prospectus or any supplement to this
prospectus, in presentations, in response to questions or otherwise. Any
statements that express, or involve discussions as to, expectations, beliefs,
plans, objectives, assumptions or future events or performance (often, but not
always, through the use of words or phrases such as "anticipates," "believes,"
"estimates," "expects," "intends," "plans," "projects," "will likely," "result,"
"will continue" or similar expressions) are not statements of historical facts
and may be forward-looking.
Forward-looking statements involve estimates, assumptions and uncertainties
and are qualified in their entirety by reference to, and are accompanied by, the
following important factors, which are difficult to predict, contain
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uncertainties, are beyond the control of ALLETE and may cause actual results to
differ materially from those contained in those forward-looking statements:
o prevailing governmental policies and regulatory actions, including
those of the United States Congress, state legislatures, the Federal
Energy Regulatory Commission, the Minnesota Public Utilities
Commission, the Florida Public Service Commission, the North Carolina
Utilities Commission and the Public Service Commission of Wisconsin
and various county regulators, with respect to allowed rates of
return, industry and rate structure, acquisition and disposal of
assets and facilities, operation and construction of plant facilities,
recovery of purchased power, and present or prospective wholesale and
retail competition (including but not limited to retail wheeling and
transmission costs);
o economic and geographic factors, including political and economic
risks;
o changes in and compliance with environmental and safety laws and
policies;
o weather conditions;
o population growth rates and demographic patterns;
o competition for retail and wholesale customers;
o pricing and transportation of commodities;
o market demand, including structural market changes;
o changes in tax rates or policies or in rates of inflation;
o changes in project costs;
o unanticipated changes in operating expenses and capital expenditures;
o capital market conditions;
o competition for new energy development opportunities; and
o legal and administrative proceedings (whether civil or criminal) and
settlements that influence the business and profitability of ALLETE.
Any forward-looking statement speaks only as of the date on which that
statement is made, and ALLETE undertakes no obligation to update any
forward-looking statement to reflect events or circumstances after the date on
which that statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time and it is not possible for
management to predict all of those factors, nor can it assess the impact of each
of those factors on the businesses of ALLETE or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from
those contained in any forward-looking statement.
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ALLETE
ALLETE has been incorporated under the laws of the State of Minnesota since
1906. Before September 1, 2000 ALLETE did business under the name Minnesota
Power, Inc. ALLETE is a multi-services company with four business segments:
(1) Energy Services, which include electric and gas services, coal mining
and telecommunications;
(2) Automotive Services, which include a network of wholesale and salvage
vehicle auctions, a finance company and several subsidiaries that are
integral parts of the vehicle redistribution business;
(3) Water Services, which include water and wastewater services; and
(4) Investments, which include real estate operations, investments in
emerging technologies related to the electric utility industry and a
securities portfolio.
YEAR ENDED DECEMBER 31,
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1998 1999 2000
---- ---- ----
DILUTED EARNINGS PER SHARE OF COMMON STOCK
Before Capital Re and ACE Transactions..... $ 1.35 $ 1.49 $ 1.67
Capital Re and ACE Transactions (a)........ - (0.52) 0.44
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Total.................................... $ 1.35 $ 0.97 $ 2.11
====== ====== ======
NET INCOME
Energy Services............................ $ 47.4 $ 45.0 $ 43.1
Automotive Services........................ 25.5 39.9 48.5
Water Services............................. 7.5 12.2 13.1
Investments................................ 29.6 26.8 29.3
Corporate Charges.......................... (21.5) (19.7) (15.8)
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Net Income before Capital Re and ACE
Transactions........................... 88.5 104.2 118.2
Capital Re and ACE Transactions (a)........ - (36.2) 30.4
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$ 88.5 $ 68.0 $148.6
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(a) In May 2000 ALLETE sold its investment in ACE Limited (ACE) common stock,
which resulted in an after-tax gain of $30.4 million, or $0.44 per share.
The ACE shares were received in December 1999 upon completion of ACE's
merger with Capital Re Corporation (Capital Re). During 1999 ALLETE
recorded an aggregate $36.2 million, or $0.52 per share, after-tax non-cash
charge in connection with the valuation and exchange of its investment in
Capital Re stock for the ACE shares.
ENERGY SERVICES
The Energy Services segment, which includes Minnesota Power, primarily
generates, transmits, distributes and markets electricity. In addition, Energy
Services include coal mining and telecommunications in and near Minnesota
Power's electric utility service area. As of December 31, 2000, Minnesota Power
supplied retail electric service to 130,000 customers in northeastern Minnesota.
Superior Water, Light and Power Company, a wholly owned subsidiary, provided
electric, natural gas, and water services to 14,000 electric customers, 11,000
natural gas customers and 10,000 water customers in northwestern Wisconsin as of
December 31, 2000. Split Rock Energy LLC, formed as an alliance between
Minnesota Power and Great River Energy, combines power supply capabilities and
customer loads to share market and supply risks and to optimize power trading
opportunities. Split Rock contracts for exclusive services from MPEX, Minnesota
Power's power marketing division.
BNI Coal, Ltd., another wholly owned subsidiary, owns and operates a
lignite mine in North Dakota. Two electric generating cooperatives, Minnkota
Power Cooperative, Inc. and Square Butte Electric Cooperative, presently consume
virtually all of BNI Coal's production of lignite coal under cost-plus coal
supply agreements extending to 2027. Under an agreement with Square Butte,
Minnesota Power purchases approximately 71 percent of the output from the Square
Butte unit which is capable of generating up to 455 megawatts. Minnkota Power
has an option to extend its coal supply agreement to 2042.
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Other subsidiaries within the Energy Services business segment include:
o Electric Outlet, Inc., doing business as Electric Odyssey, which is a
retail, catalog and e-commerce merchandiser that sells unique products
for the home, office and travel;
o Minnesota Power Telecom, Inc., which provides high reliability fiber
optic based communication services to businesses and communities
across Minnesota and in Wisconsin; and
o Rainy River Energy Corporation, which holds a power purchase position
in wholesale merchant generation and is developing a wholesale
merchant generation facility.
Minnesota Power has large power contracts to sell power to 12 industrial
customers, each requiring 10 megawatts or more of generating capacity. These
contracts require the payment of minimum monthly demand charges that cover the
fixed costs associated with having capacity available to serve each of these
customers, including a return on common equity. Each contract continues past the
contract termination date unless the required four-year advance notice of
cancellation has been given.
AUTOMOTIVE SERVICES
Automotive Services include several subsidiaries which are integral parts
of the vehicle redistribution business.
ADESA Corporation, a wholly owned subsidiary, is the second largest vehicle
auction network in North America. Headquartered in Indianapolis, Indiana, ADESA
owns, or leases, and operates 54 vehicle auction facilities in the United States
and Canada through which used cars and other vehicles are sold to franchised
automobile dealers and licensed used car dealers. Sellers at ADESA's auctions
include domestic and foreign auto manufacturers, car dealers, automobile
fleet/lease companies, banks and finance companies. ADESA also owns 21 vehicle
auctions in the United States and Canada that provide "total loss" vehicle
recovery services to insurance companies.
Automotive Finance Corporation, another wholly owned subsidiary, provides
inventory financing for wholesale and retail automobile dealers who purchase
vehicles from ADESA auctions, independent auctions, other auction chains and
other outside sources.
Other subsidiaries within the Automotive Services business segment include:
o Great Rigs Incorporated, which is one of the nation's largest
independent used automobile transport carriers with over 140
automotive carriers, the majority of which are leased;
o PAR, Inc., doing business as PAR North America, which provides
customized vehicle remarketing services to various fleet operations;
o AutoVIN, Inc., 90 percent owned, which provides professional field
information service to the automotive industry and the industry's
secured lenders. Services provided include vehicle condition
reporting, inventory verification auditing, program compliance
auditing and facility inspection; and
o ADESA Importation Services, Inc., which is the nation's second largest
registered, independent commercial importer of vehicles.
WATER SERVICES
Water Services include Florida Water Services Corporation, Heater
Utilities, Inc., Instrumentation Services, Inc., Americas' Water Service
Corporation and Georgia Water Services Corporation, each a wholly owned
subsidiary. Florida Water, the largest investor owned water supplier in Florida,
owns and operates water and wastewater treatment facilities within that state.
As of December 31, 2000, Florida Water served 152,000 water customers and 73,000
wastewater customers, and maintained 157 water and wastewater facilities
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throughout Florida. As of December 31, 2000, Heater Utilities, which provides
water and wastewater treatment services in North Carolina, served 44,000 water
customers and 5,000 wastewater treatment customers. Instrumentation Services
provides predictive maintenance and instrumentation consulting services to water
and wastewater utilities in the southeastern United States as well as Texas and
Minnesota. Americas' Water Services offers contract management, operations and
maintenance services for water and wastewater treatment facilities to
governments and industries.
INVESTMENTS
Investments consist of real estate operations, investments in emerging
technologies related to the electric utility industry and an actively traded
securities portfolio. Through subsidiaries, ALLETE owns Florida real estate
operations at Cape Coral and Lehigh Acres adjacent to Ft. Myers, at Palm Coast
in northeast Florida and at Sugarmill Woods in Citrus County. Since 1985, ALLETE
has invested $38.6 million in start-up companies that are developing
technologies that may be used by the electric utility industry. As of December
31, 2000, ALLETE had approximately $103 million invested in a trading and
available-for-sale securities portfolio.
SELLING SHAREHOLDERS
The following table lists the selling shareholders, the number of shares of
common stock of ALLETE beneficially owned by the selling shareholders as of the
date of this prospectus, the number of shares of common stock to be offered and
the number of outstanding shares of common stock to be owned after the sale. The
shares were issued by ALLETE and delivered to the selling shareholders in
connection with the merger of ComSearch, Inc. ("ComSearch") and AA Salvage
Company, a wholly-owned subsidiary of ALLETE, pursuant to an Agreement and Plan
of Merger, dated as January 10, 2001 (the "Merger Agreement"), by and among
ALLETE, AA Salvage Company, ComSearch and the shareholders of ComSearch.
Shares to be
Shares Owned Shares to be Owned After
Selling Shareholders (1) Prior to Offering (2) Offered Hereby (3) Offering (4)
- -------------------------- ----------------------- -------------------- ----------------
Robert P. Lyons 258,729 (5) 258,729 (5) 0
Joseph W. Lyons 76,401 (6) 76,401 (6) 0
John E. Lyons 35,884 (7) 35,884 (7) 0
S. Dennis Lyons 30,820 (8) 30,820 (8) 0
Mary McLaughlin 30,820 (9) 30,820 (9) 0
James A. DelBonis 76,401 (10) 76,401 (10) 0
Auto Placement Rhode
Island Associates, LLC 82,237 (11) 82,237 (11) 0
- ----------------------
(1) Robert. P. Lyons is the President, Chief Executive Officer and a Director
of ComSearch, John E. Lyons is the Vice President - Operations of
ComSearch, and James A. DelBonis is the Chief Operating Officer of
ComSearch. Robert P. Lyons and John E. Lyons are the equal owners of Auto
Placement Rhode Island Associates, LLC.
(2) As of January 18, 2001, the selling shareholders held less than one percent
of the Company's then outstanding Common Stock.
(3) As of January 18, 2001 the selling shareholders represented to ALLETE that
they were acquiring these shares of common stock for their own account for
investment and not with a view toward resale or distribution.
(4) Assumes the sale of all of these shares of common stock covered by this
prospectus and that no additional shares are acquired by the selling
shareholders.
(5) Includes 25,830 shares of common stock registered in the name of Bank One
Trust Company, N.A., as escrow agent ("Escrow Agent"), pursuant to an
escrow agreement ("Escrow Agreement") executed in connection with the
Merger Agreement.
(6) Includes 7,597 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
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(7) Includes 3,545 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
(8) Includes 3,039 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
(9) Includes 3,039 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
(10) Includes 7,597 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
(11) Includes 8,224 shares of common stock registered in the name of the Escrow
Agent, pursuant to the Escrow Agreement.
The escrowed shares of common stock described above will be held by the
Escrow Agent until certain conditions in the Escrow Agreement are satisfied. To
the extent that the Escrow Agent is directed to sell some or all of these
shares, the sale proceeds will be held by the Escrow Agent until the escrow
release conditions are satisfied.
DESCRIPTION OF COMMON STOCK
General. The following statements describing our common stock are not
intended to be a complete description. They are qualified in their entirety by
reference to our Articles of Incorporation and Mortgage and Deed of Trust. We
also refer you to the laws of the State of Minnesota.
We have the following authorized capital stock by our Articles of
Incorporation: 130,000,000 shares of common stock, without par value, and
3,616,000 shares of preferred stock. As of the date of this prospectus,
75,335,983 shares of common stock were issued and outstanding and no shares of
preferred stock were issued and outstanding.
Dividend Rights. Our common stock is entitled to dividends only after we
have provided for dividends and any sinking fund requirements on any issued and
outstanding preferred stock.
Our Articles of Incorporation contain provisions which would restrict net
income available for the payment of cash dividends on outstanding common stock
in the event that shares of ALLETE's preferred stock were outstanding and
certain common stock equity capitalization ratios were not met.
Voting Rights (Non-Cumulative Voting). Holders of our common stock are
entitled to receive notice of and to vote at any meeting of our shareholders.
Each share of our common stock, as well as each share of any of our issued and
outstanding preferred stock, is entitled to one vote. Since the holders of these
shares do not have cumulative voting rights, the holders of more than 50 percent
of the shares voting can elect all our directors. If that happens, the holders
of the remaining shares voting (less than 50 percent) cannot elect any
directors. In addition, whenever dividends on any of our preferred stock are in
default in the amount of four quarterly payments, and until all the dividends in
default are paid, the holders of our preferred stock are entitled, as one class,
to elect a majority of the directors. Our common stock, as one class, would then
elect the minority.
Our Articles of Incorporation include detailed procedures and other
provisions relating to these rights and their termination, including:
o Quorums;
o Terms of directors elected;
o Vacancies;
o Class voting;
o Meetings; and
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o Adjournments.
Our Articles of Incorporation contain provisions that make it difficult to
obtain control of ALLETE through transactions not having the approval of our
Board of Directors. These provisions include:
o a provision requiring the affirmative vote of 75 percent of the
outstanding shares of all classes of our capital stock, present and
entitled to vote, in order to authorize certain mergers or
consolidations, or sales or leases of a significant amount of assets,
of ALLETE, and other significant transactions that may have an effect
on the control of ALLETE. Any of those transactions are required to
meet certain "fair price" and procedural requirements. Neither a 75
percent shareholder vote nor "fair price" is required for any of those
transactions that have been approved by a majority of the
"Disinterested Directors," as that term is defined in our Articles of
Incorporation;
o a provision permitting a majority of the Disinterested Directors to
determine whether the above requirements have been satisfied; and
o a provision providing that some parts of our Articles of Incorporation
cannot be altered unless approved by 75 percent of the outstanding
shares of all classes of our capital stock, present and entitled to
vote, unless the alteration is recommended to the shareholders by a
majority of the Disinterested Directors. The parts of our Articles of
Incorporation that cannot be altered except as stated above include
some parts relating to:
- mergers or consolidations, or sales or leases of a significant
amount of assets, of ALLETE, and other significant transactions
that may have an effect on the control of ALLETE; and
- the number, election, terms of office and removal of directors of
ALLETE and the way in which vacancies on the Board of Directors
are filled.
Liquidation Rights. After we have satisfied creditors and the preferential
liquidation rights of any of our outstanding preferred stock, the holders of our
common stock are entitled to share ratably in the distribution of all remaining
assets.
Miscellaneous. Holders of our common stock have no preemptive or conversion
rights. Our common stock is listed on the New York Stock Exchange. The transfer
agents and registrars for our common stock are Wells Fargo Bank, N.A. and
ALLETE.
Description of Preferred Share Purchase Rights. The following statements
describing our Preferred Share Purchase Rights (each a "Right") are not intended
to be a complete description. They are qualified in their entirety by reference
to the Rights Agreement, dated as of July 24, 1996 ("Rights Plan"), between
ALLETE and ALLETE's Corporate Secretary, as Rights Agent. We also refer you to
the laws of the State of Minnesota.
In July 1996 our Board of Directors declared a dividend distribution of one
Right for each outstanding share of our common stock to shareholders of record
at the close of business on July 24, 1996 ("Record Date"). Our Board of
Directors also authorized the issuance of one Right for each share of our common
stock that becomes outstanding between the Record Date and July 23, 2006, or an
earlier date on which the Rights are redeemed. Except as described below, each
Right, when exercisable, entitles the registered holder to purchase from us one
two-hundredth of a share of Junior Serial Preferred Stock A, without par value
("Serial Preferred"), at a price of $45 per one two-hundredth of a share (the
"Purchase Price"). The Purchase Price is subject to adjustment.
Initially no separate Right Certificates will be distributed. Until the
Distribution Date, our common stock certificates together with a copy of the
Summary of Rights Plan are proof of the Rights. The Distribution Date is the
earlier to occur of:
o 10 days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15 percent
or more of the outstanding shares of our common stock (the "Stock
Acquisition Date"); or
9
o 15 business days following the commencement of (or a public
announcement of an intention to make) a tender or exchange offer where
a person or group would become the beneficial owner of 15 percent or
more of our outstanding shares of common stock. At any time before a
person becomes an Acquiring Person, our Board of Directors may extend
the 15-business day time period.
Until the Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the Rights will be transferred only with our common
stock. The transfer of any certificates for our common stock, with or without a
copy of the Summary of Rights Plan, will also constitute the transfer of the
Rights associated with those common stock certificates. As soon as practicable
following the Distribution Date, we will mail separate certificates for the
Rights to holders of record of our common stock as of the close of business on
the Distribution Date. After the Distribution Date, separate certificates for
the Rights will be given as proof of the Rights.
Each whole share of our Serial Preferred will have a minimum preferential
quarterly dividend rate equal to the greater of $51 per share or, subject to
anti-dilution adjustment, 200 times the dividend declared on our common stock.
If ALLETE liquidates, no distribution will be made to the holders of our common
stock until the holders of our Serial Preferred have received a liquidation
preference of $100 per share, plus accrued and unpaid dividends. Holders of our
Serial Preferred will be entitled to receive notice of and to vote at any
meeting of our shareholders. Each whole share of our Serial Preferred is
entitled to one vote. These shares do not have cumulative voting rights.
Whenever dividends on any of our preferred stock are in default in the
amount of four quarterly payments, and until all the dividends in default are
paid, the holders of our Serial Preferred and other preferred stock will be
entitled, together as one class, to elect a majority of directors. Our common
stock would then elect the minority. If, in any merger or other transaction,
shares of our common stock are exchanged for or converted into other securities
and/or property, each whole share of our Serial Preferred will be entitled to
receive, subject to anti-dilution adjustment, 200 times the amount for or into
which each share of our common stock is exchanged or converted. We cannot redeem
the shares of Serial Preferred.
The Rights are not exercisable until the Distribution Date and will expire
at the earliest of:
o July 23, 2006 ("Final Expiration Date");
o the redemption of the Rights by ALLETE as described below; or
o the exchange of all Rights for our common stock as described below.
If any person (other than ALLETE, our affiliates or any person receiving
newly-issued shares of common stock directly from ALLETE) becomes the beneficial
owner of 15 percent or more of the then outstanding shares of common stock, each
holder of a Right will have a right to receive, upon exercise at the then
current exercise price of the Right, common stock (or, in the discretion of the
Board of Directors, cash, property or other securities of ALLETE) with a value
equal to two times the exercise price of the Right. The Rights Plan contains an
exemption for common stock we issue directly to any person. This exemption
applies even if the person would become the beneficial owner of 15 percent or
more of our common stock, provided that the person does not acquire any
additional shares of our common stock. Examples of situations where we might
issue common stock directly include private placements or acquisitions we make
using our common stock as consideration.
If following the Stock Acquisition Date we are acquired in a merger or
other business combination transaction, or 50 percent or more of our assets or
earning power are sold, we will make proper provision so that each holder of a
Right will, after the transaction, have the right to receive, upon exercise at
the then current exercise price of the Right, common stock of the acquiring or
surviving company with a value equal to two times the exercise price of the
Right.
If the events described in the preceding two paragraphs happen (the
"Triggering Events"), any Rights that an Acquiring Person beneficially owns or
transferred to certain persons, will immediately become null and void.
10
The Purchase Price payable and the number of shares of our Serial Preferred
or other securities or property issuable if the Rights are exercised, are
subject to adjustment. An adjustment would be made to prevent dilution, if there
was a stock dividend on, or a subdivision, split, combination, consolidation or
reclassification of, our Serial Preferred or our common stock, or a reverse
split of our outstanding shares of Serial Preferred or common stock.
Our Board of Directors may exchange the Rights at an exchange ratio of one
share of common stock per Right at any time that is:
o after the acquisition by a person or group of affiliated or associated
persons of beneficial ownership of 15 percent or more of the
outstanding common stock; and
o before the acquisition by that person or group of 50 percent or more
of the outstanding common stock.
This exchange ratio is subject to adjustment and does not include Rights that
have become null and void.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least one
percent in the Purchase Price. We will not be required to issue fractional
shares of Serial Preferred or common stock (other than fractions in multiples of
one one-hundredths of a share of Serial Preferred). Instead, we may make an
adjustment in cash based on the market price of the Serial Preferred or common
stock on the last trading date before the date of exercise.
Our Board of Directors may redeem the Rights in whole, but not in part, at
a price of $.005 per Right ("Redemption Price") anytime before a person becomes
an Acquiring Person. At our option, we may pay the Redemption Price in cash,
shares of our common stock or other consideration that our Board of Directors
deems appropriate. If we redeem the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the Redemption Price.
If the Rights are exercised, issuance of our Serial Preferred or our common
stock will be subject to any necessary regulatory approvals. Until a Right is
exercised, the holder of the Right will have no rights as a shareholder of
ALLETE, including, without limitation, the right to vote or to receive
dividends. One million shares of our Serial Preferred were reserved for issuance
if the Rights are exercised.
We may amend the provisions of the Rights Plan. However, any amendment
adopted after the time that a person becomes an Acquiring Person may not
adversely affect the interests of holders of Rights.
The Rights have anti-takeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire ALLETE without
conditioning the offer on the redemption of the Rights or on the acquisition of
a substantial number of Rights. The Rights beneficially owned by that person or
group may become null and void. The Rights should not interfere with any merger
or other business combination approved by our Board of Directors. This is
because, at any time before a person becomes an Acquiring Person, our Board of
Directors may redeem all of the outstanding Rights at the Redemption Price.
USE OF PROCEEDS
ALLETE will not receive any of the proceeds from sales of these shares of
common stock.
PLAN OF DISTRIBUTION
The selling shareholders may sell or distribute some or all of these shares
of common stock from time to time through underwriters or dealers or brokers or
other agents or directly through one or more purchasers, including pledgees, in
transactions (which may involve crosses and block transactions) on the New York
Stock Exchange or in privately negotiated transactions (including sales pursuant
to pledges) or in a combination of such transactions. Such transactions may be
effected by the selling shareholders at market prices prevailing at the time of
sale, at prices related to prevailing market prices, at negotiated prices, or at
fixed prices, which may be changed. Brokers, dealers, agents or underwriters
11
participating in such transactions as agent may receive compensation in the form
of discounts, concessions or commissions from the selling shareholders (and, if
they act as agent for the purchaser of such shares, from such purchaser). Such
discounts, concessions or commissions as to a particular broker, dealer, agent
or underwriter might be in excess of those customary in the type of transaction
involved. This prospectus also may be used, with ALLETE's consent, by donees of
the selling shareholders, or by other persons acquiring shares and who wish to
offer and sell such shares under circumstances requiring or making desirable its
use.
When required, this prospectus will be supplemented to set forth the number
of shares offered for sale and, if such offering is to be made by or through
underwriters, dealers, brokers or other agents, the names of such persons and
the principal terms of the arrangements between such persons and the selling
shareholders.
The selling shareholders and any underwriters, brokers, dealers or agents
acting in connection with the sale or distribution of these shares of common
stock hereunder may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act of 1933, and any commissions received by them and
any profit realized by them on the resale of shares as principals may be deemed
underwriting compensation under the Securities Act of 1933. To the extent that
the selling shareholders are deemed to be "underwriters," the selling
shareholders will be subject to the prospectus delivery requirements of the
Securities Act of 1933. In addition, any shares of common stock covered by this
prospectus which qualify for sale pursuant to Rule 144 promulgated under the
Securities Act of 1933 may be sold under Rule 144 rather than pursuant to this
prospectus. Furthermore, the selling shareholders may transfer shares of common
stock in other ways not involving market makers or established trading markets,
including directly by gift, distribution, or other transfer.
The selling shareholders may enter into hedging transactions with
broker-dealers in connection with distributions of shares of our common stock or
otherwise. In such transactions, broker-dealers may engage in short sales of the
shares of our common stock in the course of hedging the positions they assume
with selling shareholders. The selling shareholders also may sell shares short
and redeliver shares of our common stock to close out such short positions. The
selling shareholders may enter into option or other transactions with
broker-dealers which require the delivery to the broker-dealer of shares of our
common stock. The broker-dealer may then resell or otherwise transfer such
shares pursuant to this prospectus. The selling shareholders may also loan or
pledge the shares of our common stock to a broker-dealer. The broker-dealer may
sell the common stock so loaned, or upon a default the broker-dealer may sell
the pledged shares pursuant to this prospectus.
Expenses in connection with the registration of these shares of common
stock under the Securities Act of 1933, including legal and accounting fees of
ALLETE, will be paid by ALLETE. The selling shareholders may agree to indemnify
any broker-dealer or agent against certain liabilities related to the selling of
the shares of our common stock, including liabilities arising under the
Securities Act of 1933.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31, 1999
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The statements as to matters of law and legal conclusions under
"Description of the Common Stock" in this prospectus and in the documents
incorporated in this prospectus by reference, have been reviewed by Philip R.
Halverson, Esq., Duluth, Minnesota, Vice President, General Counsel and
Secretary of ALLETE. All of such statements and conclusions are presented or
incorporated by reference in this prospectus in reliance upon the opinions of
such individual and firms, respectively as experts.
As of January 15, 2001, Mr. Halverson owned 22,743 shares of common stock
of ALLETE. Mr. Halverson is acquiring additional shares of ALLETE common stock
at regular intervals as a participant in the Employee Stock Ownership Plan and
Supplemental Retirement Plan. Under the Executive Long-Term Incentive
Compensation Plan, Mr. Halverson has:
12
o been granted options to purchase 45,342 shares of ALLETE common stock,
of which 33,684 options are fully vested, the remainder of which shall
vest over the next two years, and all of which will expire ten years
from the date of grant;
o earned approximately 874 performance shares that have not yet been
paid out under the terms of this plan; and
o an award opportunity for up to 7,538 additional performance shares
contingent upon the attainment of certain performance goals of ALLETE
for the period January 1, 2000 through December 31, 2001.
LEGAL OPINIONS
The legality of these shares of common stock offered hereby will be passed
upon for ALLETE by Mr. Halverson and by Thelen Reid & Priest LLP, New York, New
York, counsel for ALLETE. Thelen Reid & Priest LLP may rely as to all matters of
Minnesota law upon the opinion of Mr. Halverson.
-------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ALLETE HAS NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. ALLETE IS NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY JURISDICTION 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 THOSE DOCUMENTS.
13
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered are:
Filing Fee for Registration Statement........................... $ 3,082
Stock Exchange Listing Fee...................................... 3,000*
Legal and Accounting Fees....................................... 9,000*
Miscellaneous................................................... 1,918*
------------
Total........................................................... $ 17,000*
============
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act generally
provides for the indemnification of directors, officers or employees of a
corporation made or threatened to be made a party to a proceeding by reason of
the former or present official capacity of the person against judgments,
penalties and fines (including attorneys' fees and disbursements) where such
person, among other things, has not been indemnified by another organization,
acted in good faith, received no improper personal benefit and with respect to
any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful.
Article IX of the Articles of Incorporation of ALLETE contains the
following provision:
"No director of this Corporation shall be personally liable to this
Corporation or its stockholders for monetary damages for breach of
fiduciary duty by that director as a director; provided, however, that this
Article IX shall not eliminate or limit the liability of a director: (a)
for any breach of the director's duty of loyalty to this Corporation or its
stockholders; (b) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law; (c) under
Minnesota Statutes Section 302A.559 or 80A.23; (d) for any transaction from
which the director derived an improper personal benefit; or (e) for any act
or omission occurring prior to the date when this Article IX becomes
effective. If, after the stockholders approve this provision, the Minnesota
Business Corporation Act, Minnesota Statutes Chapter 302A, is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of this
Corporation shall be deemed eliminated or limited to the fullest extent
permitted by the Minnesota Business Corporation Act, as so amended. No
amendment to or repeal of this Article IX shall apply to or have any affect
on the liability or alleged liability of any director of this Corporation
for or with respect to any acts or omissions of such director occurring
prior to that amendment or repeal."
Section 13 of the Bylaws of ALLETE contains the following provisions
relative to indemnification of directors and officers:
"The Corporation shall reimburse or indemnify each present and future
Director and officer of the Corporation (and his or her heirs, executors
and administrators) for or against all expenses reasonably incurred by such
Director or officer in connection with or arising out of any action, suit
or proceeding in which such Director or officer may be involved by reason
of being or having been a Director or officer of the Corporation. Such
indemnification for reasonable expenses is to be to the fullest extent
permitted by the Minnesota Business Corporation Act, Minnesota Statutes
Chapter 302A. By affirmative vote of the Board of Directors or with written
approval of the Chairman and Chief Executive Officer, such indemnification
may be extended to include agents and employees who are not Directors or
officers of the Corporation, but who would otherwise be indemnified for
acts and omissions under Chapter 302A of the Minnesota Business Corporation
Act, if such agent or employee were an officer of the Corporation."
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"Reasonable expenses may include reimbursement of attorneys' fees and
disbursements, including those incurred by a person in connection with an
appearance as a witness."
"Upon written request to the Corporation and approval by the Chairman and
Chief Executive Officer, an agent or employee for whom indemnification has
been extended, or an officer or Director may receive an advance for
reasonable expenses if such agent, employee, officer or Director is made or
threatened to be made a party to a proceeding involving a matter for which
indemnification is believed to be available under Minnesota Statutes
Chapter 302A."
"The foregoing rights shall not be exclusive of other rights to which any
Director or officer may otherwise be entitled and shall be available
whether or not the Director or officer continues to be a Director or
officer at the time of incurring such expenses and liabilities."
ALLETE has insurance covering its expenditures which might arise in
connection with the lawful indemnification of its directors and officers for
their liabilities and expenses, and insuring officers and directors of ALLETE
against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibit
- ------ ----------------------
*4(a)(1)- Articles of Incorporation, amended and restated as of May 27, 1998
(filed as Exhibit 4(a) to the June 3, 1998 Form 8-K, File No. 1-3548).
*4(a)(2)- Amendment to Certificate of Assumed Name, filed with the Minnesota
Secretary of State on August 29, 2000 (filed as Exhibit 4 to the
October 10, 2000 Form 8-K, File No. 1-3548).
*4(b) - Bylaws, as amended effective May 27, 1998 (filed as Exhibit 4(b), to
the June 3, 1998 Form 8-K, File No. 1-3548).
*4(c)1 - Mortgage and Deed of Trust, dated as of September 1, 1945, between
Minnesota Power & Light Company (now Minnesota Power, Inc., doing
business as ALLETE) and Irving Trust Company (now The Bank of New
York) and Richard H. West (Douglas J. MacInnes, successor), as
Trustees (filed as Exhibit 7(c), File No. 2-5865).
*4(c)2 - Supplemental Indentures to Minnesota Power, Inc.'s (doing business
as ALLETE) Mortgage and Deed of Trust:
Number Dated as of Reference File Exhibit
------------- ------------------- ---------------------- ---------
First March 1, 1949 2-7826 7(b)
Second July 1, 1951 2-9036 7(c)
Third March 1, 1957 2-13075 2(c)
Fourth January 1, 1968 2-27794 2(c)
Fifth April 1, 1971 2-39537 2(c)
Sixth August 1, 1975 2-54116 2(c)
Seventh September 1, 1976 2-57014 2(c)
Eighth September 1, 1977 2-59690 2(c)
Ninth April 1, 1978 2-60866 2(c)
Tenth August 1, 1978 2-62852 2(d)2
Eleventh December 1, 1982 2-56649 4(a)3
Twelfth April 1, 1987 33-30224 4(a)3
Thirteenth March 1, 1992 33-47438 4(b)
Fourteenth June 1, 1992 33-55240 4(b)
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Number Dated as of Reference File Exhibit
------------- ------------------- ---------------------- ---------
Fifteenth July 1, 1992 33-55240 4(c)
Sixteenth July 1, 1992 33-55240 4(d)
Seventeenth February 1, 1993 33-50143 4(b)
Eighteenth July 1, 1993 33-50143 4(c)
Nineteenth February 1, 1997 1-3548 (1996 Form 10-K) 4(a)3
Twentieth November 1, 1997 1-3548 (1997 Form 10-K) 4(a)3
4(c)3 - Twenty-first Supplemental Indenture, dated as of October 1, 2000,
between Minnesota Power, Inc. (doing business as ALLETE) and The Bank
of New York (formerly Irving Trust Company) and Douglas J. MacInnes
(successor to Richard H. West), Trustees.
*4(d)1 - Mortgage and Deed of Trust, dated as of March 1, 1943, between
Superior Water, Light and Power Company and Chemical Bank & Trust
Company and Howard B. Smith, as Trustees, both succeeded by U. S. Bank
Trust N.A., as Trustee (filed as Exhibit 7(c), File No. 2-8668).
*4(d)2 - Supplemental Indentures to Superior Water, Light and Power Company's
Mortgage and Deed of Trust:
Number Dated as of Reference File Exhibit
------------- ------------------- ---------------------- ---------
First March 1, 1951 2-59690 2(d)(1)
Second March 1, 1962 2-27794 2(d)1
Third July 1, 1976 2-57478 2(e)1
Fourth March 1, 1985 2-78641 4(b)
Fifth December 1, 1992 1-3548 (1992 Form 10-K) 4(b)1
Sixth March 24, 1994 1-3548 (1996 Form 10-K) 4(b)1
Seventh November 1, 1994 1-3548 (1996 Form 10-K) 4(b)2
Eighth January 1, 1997 1-3548 (1996 Form 10-K) 4(b)3
*4(e)1 - Indenture, dated as of March 1, 1993, between Southern States
Utilities, Inc. (now Florida Water Services Corporation) and
Nationsbank of Georgia, National Association (now SunTrust Bank,
Central Florida, N.A.), as Trustee (filed as Exhibit 4(d) to the 1992
Form 10-K, File No. 1-3548).
*4(e)2 - Supplemental Indentures to Florida Water Services Corporation's
Indenture:
Number Dated as of Reference File Exhibit
------------- ------------------- ---------------------- ---------
First March 1, 1993 1-3548 (1996 Form 10-K) 4(c)1
Second March 31, 1997 1-3548 (March 31,1997
Form 10-Q) 4
Third May 28, 1997 1-3548 (June 30, 1997 4
Form 10-Q)
*4(f)1 - Amended and Restated Trust Agreement, dated as of March 1, 1996,
relating to MP&L Capital I's (now ALLETE Capital I) 8.05% Cumulative
Quarterly Income Preferred Securities, between Minnesota Power & Light
Company (now Minnesota Power, Inc., doing business as ALLETE), as
Depositor, and The Bank of New York, The Bank of New York (Delaware),
Philip R. Halverson, David G. Gartzke and James K. Vizanko, as
Trustees (filed as Exhibit 4(a) to the March 31, 1996 Form 10-Q, File
No. 1-3548), as modified by Amendment No. 1, dated April 11, 1996
(filed as Exhibit 4(b) to the March 31, 1996 Form 10-Q, File No.
1-3548).
4(f)2 - First Amendment [2000], dated August 23, 2000, to Amended and
Restated Trust Agreement, dated as of March 1, 1996, between Minnesota
Power, Inc. (doing business as ALLETE), as Depositor, and The Bank of
New York, The Bank of New York (Delaware), Philip R. Halverson, David
G. Gartzke and James K. Vizanko, as Trustees.
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*4(g) - Indenture, dated as of March 1, 1996, relating to ALLETE's 8.05%
Junior Subordinated Debentures, Series A, Due 2015, between Minnesota
Power & Light Company (now Minnesota Power, Inc., doing business as
ALLETE) and The Bank of New York, as Trustee (filed as Exhibit 4(c) to
the March 31, 1996 Form 10-Q, File No. 1-3548).
*4(h) - Guarantee Agreement, dated as of March 1, 1996, relating to MP&L
Capital I's (now ALLETE Capital I) 8.05% Cumulative Quarterly Income
Preferred Securities, between Minnesota Power & Light Company (now
Minnesota Power, Inc., doing business as ALLETE), as Guarantor, and
The Bank of New York, as Trustee (filed as Exhibit 4(d) to the March
31, 1996 Form 10-Q, File No. 1-3548).
*4(i) - Agreement as to Expenses and Liabilities, dated as of March 20,
1996, relating to MP&L Capital I's (now ALLETE Capital I) 8.05%
Cumulative Quarterly Income Preferred Securities, between Minnesota
Power & Light Company (now Minnesota Power, Inc., doing business as
ALLETE) and MP&L Capital I (now ALLETE Capital I) (filed as Exhibit
4(e) to the March 31, 1996 Form 10-Q, File No. 1-3548).
*4(j) - Officer's Certificate, dated March 20, 1996, establishing the terms
of the 8.05% Junior Subordinated Debentures, Series A, Due 2015 issued
in connection with the 8.05% Cumulative Quarterly Income Preferred
Securities of MP&L Capital I (now ALLETE Capital I) (filed as Exhibit
4(i) to the 1996 Form 10-K, File No. 1-3548).
*4(k) - Rights Agreement dated as of July 24, 1996, between Minnesota Power
& Light Company (now Minnesota Power, Inc., doing business as ALLETE)
and the Corporate Secretary of Minnesota Power & Light Company (now
Minnesota Power, Inc., doing business as ALLETE), as Rights Agent
(filed as Exhibit 4 to the August 2, 1996 Form 8-K, File No. 1-3548).
*4(l) - Indenture (for Unsecured Debt Securities), dated as of May 15, 1996,
between ADESA Corporation and The Bank of New York, as Trustee
relating to the ADESA Corporation's 7.70% Senior Notes, Series A, Due
2006, and its 8.10% Senior Notes, Series B, Due 2010 (filed as Exhibit
4(k) to the 1996 Form 10-K, File No. 1-3548).
*4(m) - Guarantee of Minnesota Power & Light Company (now Minnesota Power,
Inc., doing business as ALLETE), dated as of May 30, 1996, relating to
the ADESA Corporation's 7.70% Senior Notes, Series A, Due 2006 (filed
as Exhibit 4(l) to the 1996 Form 10-K, File No. 1-3548).
*4(n) - ADESA Corporation Officer's Certificate 1-D-1, dated May 30, 1996,
relating to the ADESA Corporation's 7.70% Senior Notes, Series A, Due
2006 (filed as Exhibit 4(m) to the 1996 Form 10-K, File No. 1-3548).
*4(o) - Guarantee of Minnesota Power, Inc. (doing business as ALLETE), dated
as of March 30, 2000, relating to ADESA Corporation's 8.10% Senior
Notes, Series B, Due 2010 (filed as Exhibit 4(a) to the March 31, 2000
Form 10-Q, File No. 1-3548).
*4(p) - ADESA Corporation Officer's Certificate 2-D-2, dated as of March 30,
2000, relating to ADESA Corporation's 8.10% Senior Notes, Series B,
Due 2010 (filed as Exhibit 4(b) to the March 31, 2000 Form 10-Q, File
No. 1-3548).
5(a) - Opinion and Consent of Philip R. Halverson, Esq., Vice President,
General Counsel and Secretary of ALLETE.
5(b) - Opinion and Consent of Thelen Reid & Priest LLP.
23(a) - Independent Auditors' Consent of PricewaterhouseCoopers LLP.
II-4
23(b) - Consent of Philip R. Halverson, Esq. (included in opinion, attached
hereto as Exhibit 5(a)).
23(c) - Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
24 - Powers of Attorney (included on the signature page of this
registration statement).
* Incorporated herein by reference as indicated.
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 SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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) do not apply if 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 SEC
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the 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.
b. 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 under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933 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
II-5
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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes any agent for
service named in this registration statement to execute in the name of each such
person, and to file with the SEC, any and all amendments, including
post-effective amendments, to this registration statement, and appoints any such
agent for service as attorney-in-fact to sign in each such person's behalf
individually and in each capacity stated below and file any such amendments to
this registration statement and the registrant hereby also appoints each such
agent for service as its attorney-in-fact with like authority to sign and file
any such amendments in its name and behalf.
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 Duluth, State of Minnesota, on January 25, 2001.
ALLETE
(LEGALLY INCORPORATED AS MINNESOTA POWER, INC.)
By /s/ Edwin L. Russell
--------------------------------------------
Edwin L. Russell
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Edwin L. Russell Chairman, President, Chief January 25, 2001
- --------------------------------- Executive Officer and
Edwin L. Russell Director (Principal
Executive Officer)
/s/ David G. Gartzke Senior Vice President-- January 25, 2001
- --------------------------------- Finance and Chief
David G. Gartzke Financial Officer
(Principal Financial Officer)
/s/ Mark A. Schober Controller January 25, 2001
- --------------------------------- (Principal Accounting
Mark A. Schober Officer)
II-7
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kathleen A. Brekken Director January 25, 2001
- ---------------------------------
Kathleen A. Brekken
/s/ Merrill K. Cragun Director January 25, 2001
- ---------------------------------
Merrill K. Cragun
/s/ Dennis E. Evans Director January 25, 2001
- ---------------------------------
Dennis E. Evans
/s/ Glenda E. Hood Director January 25, 2001
- ---------------------------------
Glenda E. Hood
/s/ Peter J. Johnson Director January 25, 2001
- ---------------------------------
Peter J. Johnson
/s/ George L. Mayer Director January 25, 2001
- ---------------------------------
George L. Mayer
/s/ Jack I. Rajala Director January 25, 2001
- ---------------------------------
Jack I. Rajala
/s/ Arend. J. Sandbulte Director January 25, 2001
- ---------------------------------
Arend J. Sandbulte
/s/ Nick Smith Director January 25, 2001
- ---------------------------------
Nick Smith
/s/ Bruce W. Stender Director January 25, 2001
- ---------------------------------
Bruce W. Stender
/s/ Donald C. Wegmiller Director January 25, 2001
- ---------------------------------
Donald C. Wegmiller
II-8
EXHIBIT INDEX
4(c)3 Twenty-first Supplemental Indenture, dated as of October 1, 2000,
between Minnesota Power, Inc. (doing business as ALLETE) and The Bank
of New York (formerly Irving Trust Company) and Douglas J. MacInnes
(successor to Richard H. West), Trustees.
4(f)2 First Amendment [2000], dated August 23, 2000, to Amended and Restated
Trust Agreement, dated as of March 1, 1996, between Minnesota Power,
Inc. (doing business as ALLETE), as Depositor, and The Bank of New
York, The Bank of New York (Delaware), Philip R. Halverson, David G.
Gartzke and James K. Vizanko, as Trustees.
5(a) Opinion and Consent of Philip R. Halverson, Esq., Vice President,
General Counsel and Secretary of ALLETE
5(b) Opinion and Consent of Thelen Reid & Priest LLP.
23(a) Independent Auditors' Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Philip R. Halverson, Esq. (included in opinion, attached
hereto as Exhibit 5(a)).
23(c) Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
24 Powers of Attorney (included on the signature pages of this
registration statement).
EXHIBIT 4(C)3
- --------------------------------------------------------------------------------
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
DOUGLAS J. MACINNES
(SUCCESSOR TO RICHARD H. WEST, J. A. AUSTIN,
E. J. MCCABE, D. W. MAY, J. A. VAUGHAN AND W. T. CUNNINGHAM)
AS TRUSTEES UNDER MINNESOTA
POWER, INC.'S MORTGAGE AND
DEED OF TRUST DATED AS OF
SEPTEMBER 1, 1945
------------------------
TWENTY-FIRST SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FLOATING RATE FIRST MORTGAGE BONDS DUE OCTOBER 20, 2003
(TWENTY-SEVENTH SERIES)
DATED AS OF OCTOBER 1, 2000
- --------------------------------------------------------------------------------
TWENTY-FIRST SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of October 1, 2000, by and between MINNESOTA
POWER, INC. (doing business AS ALLETE), a corporation of the State of Minnesota,
whose post office address is 30 West Superior Street, Duluth, Minnesota 55802
(hereinafter sometimes called the "Company"), and THE BANK OF NEW YORK (formerly
Irving Trust Company), a corporation of the State of New York, whose post office
address is 101 Barclay Street, New York, New York 10286 (hereinafter sometimes
called the "Corporate Trustee"), and DOUGLAS J. MACINNES (successor to Richard
H. West, J. A. Austin, E. J. McCabe, D. W. May, J. A. Vaughan and W. T.
Cunningham), whose post office address is 1784 W. McGalliard Avenue, Hamilton,
New Jersey 08610 (said Douglas J. MacInnes being hereinafter sometimes called
the "Co-Trustee" and the Corporate Trustee and the Co-Trustee being hereinafter
together sometimes called the "Trustees"), as Trustees under the Mortgage and
Deed of Trust, dated as of September 1, 1945, between the Company (formerly
Minnesota Power & Light Company) and Irving Trust Company and Richard H. West,
as Trustees, securing bonds issued and to be issued as provided therein
(hereinafter sometimes called the "Mortgage"), reference to which mortgage is
hereby made, this indenture (hereinafter sometimes called the "Twenty-first
Supplemental Indenture") being supplemental thereto:
WHEREAS, the Mortgage was filed and recorded in various official records in
the State of Minnesota; and
WHEREAS, an instrument, dated as of October 16, 1957, was executed and
delivered under which J. A. Austin succeeded Richard H. West as Co-Trustee under
the Mortgage, and such instrument was filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 4, 1967, was executed and
delivered under which E. J. McCabe in turn succeeded J. A. Austin as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, under the Sixth Supplemental Indenture, dated as of August 1,
1975, to which reference is hereinafter made, D. W. May in turn succeeded E. J.
McCabe as Co-Trustee under the Mortgage; and
WHEREAS, an instrument, dated as of June 25, 1984, was executed and
delivered under which J. A. Vaughan in turn succeeded D. W. May as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of July 27, 1988, was executed and
delivered under which W. T. Cunningham in turn succeeded J. A. Vaughan as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 15, 1999, was executed and
delivered under which Douglas J. MacInnes in turn succeeded W. T. Cunningham as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
WHEREAS, by the Mortgage the Company covenanted, among other things, that
it would execute and deliver such supplemental indenture or indentures and such
further instruments and do such further acts as might be necessary or proper to
carry out more effectually the purposes of the Mortgage and to make subject to
the lien of the Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered the following indentures supplemental to the Mortgage:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture....................... March 1, 1949
Second Supplemental Indenture...................... July 1, 1951
Third Supplemental Indenture....................... March 1, 1957
Fourth Supplemental Indenture...................... January 1, 1968
Fifth Supplemental Indenture....................... April 1, 1971
Sixth Supplemental Indenture....................... August 1, 1975
Seventh Supplemental Indenture..................... September 1, 1976
Eighth Supplemental Indenture...................... September 1, 1977
Ninth Supplemental Indenture....................... April 1, 1978
Tenth Supplemental Indenture....................... August 1, 1978
Eleventh Supplemental Indenture.................... December 1, 1982
Twelfth Supplemental Indenture..................... April 1, 1987
Thirteenth Supplemental Indenture.................. March 1, 1992
Fourteenth Supplemental Indenture.................. June 1, 1992
Fifteenth Supplemental Indenture................... July 1, 1992
Sixteenth Supplemental Indenture................... July 1, 1992
Seventeenth Supplemental Indenture................. February 1, 1993
Eighteenth Supplemental Indenture.................. July 1, 1993
Nineteenth Supplemental Indenture.................. February 1, 1997
Twentieth Supplemental Indenture................... November 1, 1997
which supplemental indentures were filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, as heretofore supplemented, the following series of
First Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ---------- -----------
3-1/8% Series due 1975...................... $26,000,000 None
3-1/8% Series due 1979...................... 4,000,000 None
3-5/8% Series due 1981...................... 10,000,000 None
4-3/4% Series due 1987...................... 12,000,000 None
6-1/2% Series due 1998...................... 18,000,000 None
2
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ---------- -----------
8-1/8% Series due 2001...................... $23,000,000 None
10-1/2% Series due 2005..................... 35,000,000 None
8.70% Series due 2006....................... 35,000,000 None
8.35% Series due 2007....................... 50,000,000 None
9-1/4% Series due 2008...................... 50,000,000 None
Pollution Control Series A.................. 111,000,000 None
Industrial Development Series A............. 2,500,000 None
Industrial Development Series B............. 1,800,000 None
Industrial Development Series C............. 1,150,000 None
Pollution Control Series B.................. 13,500,000 None
Pollution Control Series C.................. 2,000,000 None
Pollution Control Series D.................. 3,600,000 None
7-3/4% Series due 1994...................... 55,000,000 None
7-3/8% Series due March 1, 1997............. 60,000,000 None
7-3/4% Series due June 1, 2007.............. 55,000,000 $55,000,000
7-1/2% Series due August 1, 2007............ 35,000,000 35,000,000
Pollution Control Series E.................. 111,000,000 111,000,000
7% Series due March 1, 2008................. 50,000,000 50,000,000
6-1/4% Series due July 1, 2003.............. 25,000,000 25,000,000
7% Series due February 15, 2007............. 60,000,000 60,000,000
6.68% Series due November 15, 2007.......... 20,000,000 20,000,000
which bonds are also hereinafter sometimes called bonds of the First through
Twenty-Sixth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series
of bonds (other than the First Series) issued thereunder and of coupons to be
attached to coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as the Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any
power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may (to the
extent permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
3
of bonds issued thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the terms and
provisions of any series of bonds (other than said First Series) by an
instrument in writing executed and acknowledged by the Company in such manner as
would be necessary to entitle a conveyance of real estate to record in all of
the states in which any property at the time subject to the lien of the Mortgage
shall be situated; and
WHEREAS, the Company now desires to create one new series of bonds and
(pursuant to the provisions of Section 120 of the Mortgage) to add to its
covenants and agreements contained in the Mortgage, as heretofore supplemented,
certain other covenants and agreements to be observed by it and to alter and
amend in certain respects the covenants and provisions contained in the
Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Twenty-first
Supplemental Indenture, and the terms of the bonds of the Twenty-seventh Series,
hereinafter referred to, have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to it
duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, as heretofore
supplemented, according to their tenor and effect and the performance of all the
provisions of the Mortgage (including any instruments supplemental thereto and
any modification made as in the Mortgage provided) and of said bonds, hereby
grants, bargains, sells, releases, conveys, assigns, transfers, mortgages,
pledges, sets over and confirms (subject, however, to Excepted Encumbrances)
unto THE BANK OF NEW YORK and DOUGLAS J. MACINNES, as Trustees under the
Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all property, real, personal
and mixed, of the kind or nature specifically mentioned in the Mortgage, as
heretofore supplemented, or of any other kind or nature acquired by the Company
after the date of the execution and delivery of the Mortgage, as heretofore
supplemented (except any herein or in the Mortgage, as heretofore supplemented,
expressly excepted), now owned or, subject to the provisions of subsection (I)
of Section 87 of the Mortgage, hereafter acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing or of any general
description contained in this Twenty-first Supplemental Indenture) all lands,
power sites, flowage rights, water rights, water locations, water
appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways,
dams, dam sites, aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and roads; all plants
for the generation of electricity by steam, water and/or other power; all power
houses, gas plants, street lighting systems, standards and other equipment
incidental thereto, telephone, radio and television systems, air-conditioning
systems and equipment incidental thereto, water works, water systems, steam heat
4
and hot water plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment, offices, buildings
and other structures and the equipment thereof; all machinery, engines, boilers,
dynamos, electric, gas and other machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes, service pipes,
fittings, valves and connections, pole and transmission lines, wires, cables,
tools, implements, apparatus, furniture and chattels; all municipal and other
franchises, consents or permits; all lines for the transmission and distribution
of electric current, gas, steam heat or water for any purpose including towers,
poles, wires, cables, pipes, conduits, ducts and all apparatus for use in
connection therewith; all real estate, lands, easements, servitudes, licenses,
permits, franchises, privileges, rights of way and other rights in or relating
to real estate or the occupancy of the same and (except as herein or in the
Mortgage, as heretofore supplemented, expressly excepted) all the right, title
and interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection with
any property hereinbefore or in the Mortgage, as heretofore supplemented,
described.
TOGETHER WITH all and singular the tenements, hereditaments, prescriptions,
servitudes and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every part
and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
subsection (I) of Section 87 of the Mortgage, all the property, rights, and
franchises acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) after the date hereof,
except any herein or in the Mortgage, as heretofore supplemented, expressly
excepted, shall be and are as fully granted and conveyed hereby and by the
Mortgage and as fully embraced within the lien hereof and the lien of the
Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein or in the Mortgage and conveyed
hereby or thereby.
PROVIDED that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder and
are hereby expressly excepted from the lien and operation of this Twenty-first
Supplemental Indenture and from the lien and operation of the Mortgage, namely:
(1) cash, shares of stock, bonds, notes and other obligations and other
securities not hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise, equipment,
apparatus, materials or supplies held for the purpose of sale or other
disposition in the usual course of business; fuel, oil and similar materials and
supplies consumable in the operation of any of the properties of the Company;
all aircraft, rolling stock, trolley coaches, buses, motor coaches, automobiles
and other vehicles and materials and supplies held for the purpose of repairing
or replacing (in whole or part) any of the same; all timber, minerals, mineral
rights and royalties; (3) bills, notes and accounts receivable, judgments,
5
demands and choses in action, and all contracts, leases and operating agreements
not specifically pledged under the Mortgage or covenanted so to be; the
Company's contractual rights or other interest in or with respect to tires not
owned by the Company; (4) the last day of the term of any lease or leasehold
which may hereafter become subject to the lien of the Mortgage; (5) electric
energy, gas, steam, ice, and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution or use
in the ordinary course of its business; and (6) the Company's franchise to be a
corporation; provided, however, that the property and rights expressly excepted
from the lien and operation of this Twenty-First Supplemental Indenture and from
the lien and operation of the Mortgage in the above subdivisions (2) and (3)
shall (to the extent permitted by law) cease to be so excepted in the event and
as of the date that either or both of the Trustees or a receiver or trustee
shall enter upon and take possession of the Mortgaged and Pledged Property in
the manner provided in Article XIII of the Mortgage by reason of the occurrence
of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by the Company as aforesaid, or intended so to be, unto
the Trustees and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as supplemented, this Twenty-first Supplemental
Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions,
provisos, covenants and provisions contained in the Mortgage, as heretofore
supplemented, shall affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said property, and
to the Trustees and their successors in the trust in the same manner and with
the same effect as if said property had been owned by the Company at the time of
the execution of the Mortgage, and had been specifically and at length described
in and conveyed to said Trustees by the Mortgage as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and their
successors in said trust under the Mortgage as follows:
ARTICLE I
TWENTY-SEVENTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "Floating Rate First
Mortgage Bonds due October 20, 2003" (herein sometimes referred to as the
"Twenty-seventh Series"), and the form thereof, established by Resolution of the
Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Twenty-seventh Series shall be dated as in Section 10 of the Mortgage provided,
mature on October 20, 2003, be issued as fully registered bonds in denominations
of One Thousand Dollars and, at the option of the Company, in any multiple or
multiples of One Thousand Dollars (the exercise of such option to be evidenced
6
by the execution and delivery thereof) and bear interest on the interest payment
dates, as provided in the form of bond of the Twenty-seventh Series; the
principal of and interest on each said bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts.
The Company shall appoint ABN AMRO Bank, N.V., Chicago Branch as the
Calculation Agent for the bonds of the Twenty-seventh Series pursuant to a
Calculation Agency Agreement between the Company and the Calculation Agent. Upon
receipt by the Company of notice of termination by the Calculation Agent or upon
the Company giving written notice of termination to the Calculation Agent, the
Company shall promptly appoint a successor Calculation Agent and enter into a
new Calculation Agency Agreement.
(I) Bonds of the Twenty-seventh Series shall be in substantially the
following form, with such insertions, omissions and variations as the officer of
the Company executing such bond may determine, such determination to be
conclusively evidenced by such officer's execution of such bond:
7
(legend at the end of this
bond for restrictions on transferability
and change of form)
[TEMPORARY] REGISTERED BOND
ALLETE (LEGALLY INCORPORATED AS
MINNESOTA POWER, INC.)
Floating Rate First Mortgage Bond,
Due October 20, 2003
No. TR - 1 CUSIP 018522 AB 8
$
ALLETE (legally incorporated as MINNESOTA POWER, INC.), a corporation
of the State of Minnesota (hereinafter called the Company), for value received,
hereby promises to pay to , or registered assigns, on October
-----------------
20, 2003, at the office or agency of the Company in the Borough of Manhattan,
The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for public and private debts, and to pay to the
registered owner hereof interest thereon from October 20, 2000, if the date of
this bond is prior to January 20, 2001, or if the date of this bond is on or
after January 20, 2001, from the April 20, July 20, October 20 or January 20
immediately preceding the date of this bond to which interest has been paid
(unless the date hereof is an interest payment date to which interest has been
paid, in which case from the date hereof) in like coin or currency at such
office or agency on January 20, April, 20, July 20 and October 20 in each year,
until the Company's obligation with respect to the payment of such principal
shall have been discharged.
This bond is [a temporary bond and] one of an issue of bonds of the
Company issuable in series and is one of a series known as its Floating Rate
First Mortgage Bonds due October 20, 2003, all bonds of all series issued and to
be issued under and equally secured (except in so far as any sinking or other
fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Twenty-first Supplemental Indenture dated as
of October 1, 2000, called the Mortgage), dated as of September 1, 1945,
executed by the Company to Irving Trust Company (now The Bank of New York) and
Richard H. West (Douglas J. MacInnes successor), as Trustees.
The bonds of this series will bear interest for each Interest Period
(defined below) at a per annum interest rate determined by ABN AMRO Bank, N.V.,
8
Chicago Branch, or its successor appointed by the Company as permitted by the
Mortgage, acting as Calculation Agent. The interest rate for each Interest
Period will be equal to LIBOR on the Interest Determination Date for that
Interest Period plus .85%; provided, however, that in certain circumstances
described below, the interest rate will be determined in an alternative manner
without reference to LIBOR. Promptly upon determination, the Calculation Agent
will notify the Corporate Trustee of the interest rate for the new Interest
Period. The interest rate determined by the Calculation Agent, absent willful
default, bad faith or manifest error, will be binding and conclusive upon the
beneficial owners and holders of the bonds of this series, the Company and the
Corporate Trustee.
"Interest Period" means the period commencing on an interest payment date
and ending on the day preceding the next succeeding interest payment date
provided that the initial Interest Period will commence on the date of initial
issuance. The "Interest Determination Date" for an Interest Period is the second
London Business Day immediately preceding the first day of that Interest Period.
For purposes of this calculation, "London Business Day" means a day on
which dealings in deposits in U.S. dollars are transacted, or with respect to
any future date, are expected to be transacted, in the London interbank market.
"LIBOR" for any Interest Determination Date will be the offered rate for
deposits in U.S. dollars having an index maturity of three months for a period
commencing on the second London Business Day immediately following the Interest
Determination Date (the "Three Month Deposits") in amounts of not less than
$1,000,000, as that rate appears on Telerate Page 3750, or a successor reporter
of such rates selected by the Calculation Agent and acceptable to the Company,
at approximately 11:00 a.m., London time, on the Interest Determination Date
(the "Reported Rate").
"Telerate Page 3750" means the display designated on page "3750" on Dow
Jones Markets Limited (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits).
If the following circumstances exist on any Interest Determination Date,
the Calculation Agent will determine the interest rate for the bonds of this
series as follows:
(1) In the event no Reported Rate appears on Telerate Page 3750 as of
approximately 11:00 a.m., London time, on an Interest Determination Date, the
Calculation Agent will request the principal London offices of each of four
major banks in the London interbank market selected by the Calculation Agent
(after consultation with the Company) to provide a quotation of the rate at
which Three Month Deposits in amounts of not less than $1,000,000 are offered by
it to prime banks in the London interbank market, as of approximately 11:00
a.m., London time, on that Interest Determination Date, that is representative
of single transactions at that time (the "Representative Amounts"). If at least
two rate quotations are provided, the interest rate will be the arithmetic mean
of the rate quotations obtained by the Calculation Agent, plus .85%.
In the event no Reported Rate appears on Telerate Page 3750 and the
Calculation Agent obtains fewer than two rate quotations, the interest rate will
be the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York
City time, on that Interest Determination Date, by three major banks in New York
9
City, selected by the Calculation Agent (after consultation with the Company),
for loans in Representative Amounts in U.S. dollars to leading European banks,
having an index maturity of three months for a period commencing on the second
London Business Day immediately following that Interest Determination Date, plus
.85%; provided, however, that if fewer than three banks selected by the
Calculation Agent are quoting those rates, the interest rate for the applicable
Interest Period will be the same as the interest rate in effect for the
immediately preceding interest period.
Upon the request of the holder of any of the bonds, the Calculation Agent
will provide to that holder the interest rate in effect on the date of the
request and, if determined, the interest rate for the next Interest Period.
The interest will be paid to the persons in whose names the bonds of this
series are registered at the close of business (1) on the business day prior to
each interest payment date if the bonds of this series remain in book-entry only
form or (2) on the 15th calendar day before each interest payment date if the
bonds of this series do not remain in book-entry only form.
The bonds of this series shall not be redeemable prior to October 20, 2001.
On or after October 20, 2001, the Company may redeem the bonds of this series,
at its option, in whole or in part from time to time, on any interest payment
date prior to their maturity (each a "Redemption Date"). The Company will give
notice of its intent to redeem any of the bonds of this series 30 days prior to
a Redemption Date. If the Company redeems all or any part of the bonds of this
series, it will pay a redemption price equal to 100% of the principal amount of
the bonds of this series being redeemed plus accrued and unpaid interest
thereon, if any, to the Redemption Date.
Reference is made to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustees in respect thereof, the duties and
immunities of the Trustees and the terms and conditions upon which the bonds are
and are to be secured and the circumstances under which additional bonds may be
issued. With the consent of the Company and to the extent permitted by and as
provided in the Mortgage, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage may be modified or altered by affirmative vote of the
holders of at least 66 2/3% principal amount of the bonds then outstanding under
the Mortgage and, if the rights of the holders of one or more, but less than
all, series of bonds then outstanding are to be affected, then also by
affirmative vote of the holders of at least 66 2/3% in principal amount of the
bonds then outstanding of each series of bonds so to be affected (excluding in
any case bonds disqualified from voting by reason of the Company's interest
therein as provided in the Mortgage); provided that, without the consent of the
holder hereof, no such modification or alteration shall, among other things,
impair or affect the right of the holder to receive payment of the principal of
(and premium, if any) and interest on this bond, on or after the respective due
dates expressed herein, or permit the creation of any lien equal or prior to the
lien of the Mortgage or deprive the holder of the benefit of a lien on the
mortgaged and pledged property.
10
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a default as in the
Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, upon surrender and cancellation of this bond, and thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange herefor as provided in the Mortgage. The Company and
the Trustees may deem and treat the person in whose name this bond is registered
as the absolute owner hereof for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, bonds of this series, upon
surrender thereof for cancellation at the office or agency of the Company in the
Borough of Manhattan, The City of New York, are exchangeable for a like
aggregate principal amount of bonds of the same series of other authorized
denominations.
As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of ten (10) days next
preceding any interest payment date for bonds of said series.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer, or director of the
Company or of any predecessor or successor corporation, as such, either directly
or through the Company or any predecessor of successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers, and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until The Bank of New York, the
Corporate Trustee under the Mortgage, or its successor thereunder, shall have
signed the form of authentication certificate endorsed hereon.
11
IN WITNESS WHEREOF, ALLETE (legally incorporated as Minnesota Power,
Inc.) has caused this bond to be signed in its corporate name by its President
or one of its Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its Secretary
or one of its Assistant Secretaries by his signature or a facsimile thereof.
Dated: October , 2000
ALLETE (legally incorporated as
Minnesota Power, Inc.)
By
--------------------------------------
Senior Vice President - Finance
ATTEST:
- --------------------------------------
Secretary
Corporate Trustee's Authentication Certificate
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned Mortgage.
THE BANK OF NEW YORK,
as Corporate Trustee,
By
--------------------------------------
Authorized Signatory
12
LEGEND
[Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial holders
hereof as then certified to the Trustee by the Depository Trust Company or its
successor (the "Depositary"), this bond may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
Unless this certificate is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer, exchange or
payment, and any certificate to be issued is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
the Depositary and any amount payable thereunder is made payable to Cede & Co.,
or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
This bond may be exchanged for certificated bonds registered in the names
of the various beneficial owners hereof if (a) the Depositary is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the Company by the
Depositary)].
[End of Bond Form]
(II) The Company has initially designated The Depository Trust Company as
the Depository (the "Depository") for the bonds of the Twenty-seventh series.
For as long as the bonds of the Twenty-seventh series are registered in the name
of the Depository or its nominee, all payments of interest, principal and other
amounts in respect of such bonds may be made to the Depository or its nominee in
accordance with the Depository's applicable procedures. Notwithstanding any
provision hereof or in the Indenture, none of the Company, or the Trustees, nor
any agent of any such person, shall have any responsibility with respect to the
Depository's procedures or for any payments, transfers or other transactions, or
any notices or other communications, among the Depository, any of its direct or
indirect participants and any beneficial owners of such bonds. Each of the
Company, the Trustees and any agent for any such person may treat the registered
holder as the sole and exclusive owner of the bonds of the Twenty-seventh series
for all purposes under the Indenture, including for making payments on such
bonds and for providing notices and obtaining consents under the Indenture.
(III) Upon the occurrence of a Change of Control, the Company will be
required to offer to redeem the bonds of the Twenty-seventh series, in whole or
in part, on the next business day after such Change of Control at a redemption
price equal to 101% of the principal amount of the bonds of the Twenty-seventh
Series being redeemed plus accrued and unpaid interest thereon, if any, to the
13
redemption date. The holders of the bonds of the Twenty-seventh Series will be
permitted twenty business days after the offer in which to accept the offer by
written notice to the Company. The Company will tender the redemption price to
the accepting holders in exchange for their bonds of the Twenty-seventh Series
within twenty business days after receipt of timely written notice of acceptance
from those holders. A "Change of Control" shall be deemed to have occurred if at
any time that any of the bonds of the Twenty-seventh Series are outstanding the
following events shall occur:
(1) Any "person" (as defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding for this
purpose the Company or any subsidiary of the Company or any Intermediate
Holding Company, or any employee benefit plan of the Company or any
subsidiary of the Company, or any person or entity organized, appointed or
established by the Company for or pursuant to the terms of such plan which
acquires beneficial ownership of voting securities of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly of securities of the Company representing fifty
percent (50%) or more of the combined voting power (not depending on the
happening of a contingency) for the election of a majority of the members
of the board of directors or any other governing body of the Company;
provided, however, that no Change in Control shall be deemed to have
occurred as the result of an acquisition of securities of the Company by
the Company which, by reducing the number of voting securities outstanding,
increases the direct or indirect beneficial ownership interest of any
person to fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities, but any subsequent increase in the
direct or indirect beneficial ownership interest of such a person in the
Company shall be deemed a Change in Control; and provided further that if
the Board of Directors of the Company determines in good faith that a
person who has become the beneficial owner directly or indirectly of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities has
inadvertently reached that level of ownership interest, and if such person
divests within 45 days after notice to the Company a sufficient amount of
securities of the Company so that the person no longer has a direct or
indirect beneficial ownership interest in fifty percent (50%) or more of
the combined voting power of the Company's then outstanding securities,
then no Change in Control shall be deemed to have occurred; or
(2) Consummation of (a) an agreement for the sale or disposition of the Company
or all or substantially all of the Company's assets, (b) a plan of merger
or consolidation of the Company with any other company, or (c) a similar
transaction or series of transactions involving the Company (any
transaction described in parts (a) through (c) of this subparagraph being
referred to as a "Business Combination"), in each case unless after such a
Business Combination the shareholders of the Company immediately prior to
the Business Combination continue to own, directly or indirectly, more than
fifty (50%) of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of the
new (or continued) entity.
14
"Intermediate Holding Company" means any entity organized or established by
or with the consent of the Company which acquires, directly or indirectly,
voting securities of the Company in exchange for voting securities of such
entity.
(IV) So long as the bonds of the Twenty-seventh Series remain outstanding,
the Company will not merge its regulated electric utility business with its auto
auction business in the same legal entity.
(V) At the option of the registered owner, any bonds of the Twenty-seventh
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, together with a
written instrument of transfer wherever required by the Company duly executed by
the registered owner or by his duly authorized attorney, shall (subject to the
provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized denominations.
Bonds of the Twenty-seventh Series shall be transferable (subject to the
provisions of Section 12 of the Mortgage) at the office or agency of the Company
in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Twenty-seventh Series, the
Company may make a charge therefor sufficient to reimburse it for any tax or
taxes or other governmental charge, as provided in Section 12 of the Mortgage,
but the Company hereby waives any right to make a charge in addition thereto for
any exchange or transfer of bonds of the Twenty-seventh Series.
Upon the delivery of this Twenty-first Supplemental Indenture and upon
compliance with the applicable provisions of the Mortgage, there shall be an
initial issue of bonds of the Twenty-seventh Series for the aggregate principal
amount of $250,000,000.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants and agrees that the provisions of
subdivision (III) of Section 39 of the Mortgage, which are to remain in effect
so long as any of the bonds of the First Series shall remain Outstanding, shall
remain in full force and effect so long as any bonds of the First through
Twenty-seventh Series shall remain Outstanding.
ARTICLE III
AMENDMENT TO THE MORTGAGE - MEETINGS AND CONSENTS OF BONDHOLDERS
SECTION 3. Pursuant to the reservation of right in Section 3 of the Fifth
Supplemental Indenture dated as of April 1, 1971 and there being no Outstanding
bonds of any series created prior to the Sixth Series, the Company hereby amends
15
the Mortgage, as supplemented, by substituting for Article XIX (relating to
Meetings and Consents of Bondholders) a new Article XIX to read as set forth in
Section 3 of such Fifth Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to the amendments provided for in this Twenty-first
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Twenty-first Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 5. The holders of bonds of the Twenty-seventh Series consent that
the Company may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of bonds of the Twenty-seventh Series
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, those persons who were holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
SECTION 6. The Trustees hereby accept the trusts herein declared, provided,
created or supplemented and agree to perform the same upon the terms and
conditions herein and in the Mortgage set forth and upon the following terms and
conditions:
The Trustees shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Twenty-first Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply to and form part
of this Twenty-first Supplemental Indenture with the same force and effect as if
the same were herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to the
provisions of this Twenty-first Supplemental Indenture.
SECTION 7. Whenever in this Twenty-first Supplemental Indenture any party
hereto is named or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the Mortgage, as heretofore supplemented, be deemed to
include the successors or assigns of such party, and all the covenants and
agreements in this Twenty-first Supplemental Indenture contained by or on behalf
of the Company, or by or on behalf of the Trustees shall, subject as aforesaid,
bind and inure to the benefit of the respective successors and assigns of such
party whether so expressed or not.
SECTION 8. Nothing in this Twenty-first Supplemental Indenture, expressed
or implied, is intended, or shall be construed, to confer upon, or give to, any
person, firm or corporation, other than the parties hereto and the holders of
the bonds and coupons Outstanding under the Mortgage, any right, remedy, or
claim under or by reason of this Twenty-first Supplemental Indenture or any
16
covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this
Twenty-first Supplemental Indenture contained by and on behalf of the Company
shall be for the sole and exclusive benefit of the parties hereto, and of the
holders of the bonds and of the coupons Outstanding under the Mortgage.
SECTION 9. This Twenty-first Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 10. The Company, the mortgagor named herein, by its execution
hereof acknowledges receipt of a full, true and complete copy of this
Twenty-first Supplemental Indenture.
17
IN WITNESS WHEREOF, Minnesota Power, Inc. (doing business as ALLETE) has
caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its President or one of its Vice Presidents, and its
corporate seal to be attested by its Secretary or one of its Assistant
Secretaries for and in its behalf, and The Bank of New York has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents or one of its Assistant Vice Presidents and
its corporate seal to be attested by one of its Assistant Treasurers or one of
its Assistant Vice Presidents, and Douglas J. MacInnes has hereunto set his hand
and affixed his seal, all in The City of New York, as of the day and year first
above written.
MINNESOTA POWER, INC. (DOING BUSINESS
AS ALLETE)
By /s/ D. G. Gartzke
--------------------------------------
David G. Gartzke
Senior Vice President - Finance
and Chief Financial Officer
Attest:
/s/ Philip R. Halverson
- --------------------------------------
Philip R. Halverson
Vice President, General Counsel
and Corporate Secretary
Executed, sealed and delivered by ALLETE (Legally incorporated as
MINNESOTA POWER, INC.)
in the presence of:
/s/ Mary Kay Warren
- --------------------------------------
/s/ Jan A. Berguson
- --------------------------------------
18
THE BANK OF NEW YORK,
as Corporate Trustee
By /s/ Stephen J. Giurlando
--------------------------------------
Stephen J. Giurlando
Vice President
Attest:
/s/ Terence Rawlins
- --------------------------------------
Terence Rawlins
Assistant Vice President
/s/ Douglas J. MacInnes
--------------------------------------
DOUGLAS J. MACINNES
Executed, sealed and delivered by THE BANK OF NEW
YORK and DOUGLAS J. MACINNES in the presence of:
/s/ Suzanne Young
- --------------------------------------
/s/ Ada L. Li
- --------------------------------------
19
STATE OF MINNESOTA )
) SS.:
COUNTY OF ST. LOUIS )
On this 19th day of October, 2000, before me, a Notary Public within and
for said County, personally appeared DAVID G. GARTZKE and PHILIP R. HALVERSON,
to me personally known, who, being each by me duly sworn, did say that they are
respectively the Senior Vice President - Finance and Chief Financial Officer and
the Vice President, General Counsel and Corporate Secretary of MINNESOTA POWER,
INC. (DOING BUSINESS AS ALLETE) of the State of Minnesota, the corporation named
in the foregoing instrument; that the seal affixed to the foregoing instrument
is the corporate seal of said corporation; that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of Directors; and
said DAVID G. GARTZKE and PHILIP R. HALVERSON acknowledged said instrument to be
the free act and deed of said corporation.
Personally came before me on this 19th day of October 2000, DAVID G.
GARTZKE, to me known to be the Senior Vice President - Finance and Chief
Financial Officer, and PHILIP R. HALVERSON, to me known to be the Vice
President, General Counsel and Corporate Secretary, of the above named MINNESOTA
POWER, INC. (DOING BUSINESS AS ALLETE), the corporation described in and which
executed the foregoing instrument, and to me personally known to be the persons
who as such officers executed the foregoing instrument in the name and behalf of
said corporation, who, being by me duly sworn did depose and say and acknowledge
that they are respectively the Senior Vice President - Finance and Chief
Financial Officer and the Vice President, General Counsel and Corporate
Secretary of said corporation; that the seal affixed to said instrument is the
corporate seal of said corporation; and that they signed, sealed and delivered
said instrument in the name and on behalf of said corporation by authority of
its Board of Directors and stockholders, and said DAVID G. GARTZKE and PHILIP R.
HALVERSON then and there acknowledged said instrument to be the free act and
deed of said corporation and that such corporation executed the same.
On the 19th day of October, 2000, before me personally came DAVID G.
GARTZKE and PHILIP R. HALVERSON, to me known, who, being by me duly sworn, did
depose and say that they respectively reside at 2609 East 5th Street, Duluth,
Minnesota, and 3364 West Tischer Road, Duluth, Minnesota; that they are
respectively the Senior Vice President - Finance and Chief Financial Officer and
the Vice President, General Counsel and Corporate Secretary of MINNESOTA POWER,
INC. (DOING BUSINESS AS ALLETE), one of the corporations described in and which
executed the above instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that they
signed their names thereto by like order.
GIVEN under my hand and notarial seal this 19th day of October, 2000.
[Seal of the JAN A. BERGUSON /s/ Jan A. Berguson
State of NOTARY PUBLIC-MINNESOTA ------------------------------
Minnesota] My Commission Expires Jan. 31, 2005
20
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 19th day of October, 2000, before me, a Notary Public within and
for said County, personally appeared STEPHEN J. GIURLANDO and TERENCE RAWLINS,
to me personally known, who, being each by me duly sworn, did say that they are
respectively a Vice President and an Assistant Vice President of THE BANK OF NEW
YORK of the State of New York, the corporation named in the foregoing
instrument; that the seal affixed to the foregoing instrument is the corporate
seal of said corporation; that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Directors; and said STEPHEN J.
GIURLANDO and TERENCE RAWLINS acknowledged said instrument to be the free act
and deed of said corporation.
Personally came before me on this 19th day of October, 2000, STEPHEN J.
GIURLANDO, to me known to be a Vice President, and TERENCE RAWLINS, known to me
to be an Assistant Vice President, of the above named THE BANK OF NEW YORK, the
corporation described in and which executed the foregoing instrument, and to me
personally known to be the persons who as such officers executed the foregoing
instrument in the name and behalf of said corporation, who, being by me duly
sworn did depose and say and acknowledge that they are respectively a Vice
President and an Assistant Vice President of said corporation; that the seal
affixed to said instrument is the corporate seal of said corporation; and that
they signed, sealed and delivered said instrument in the name and on behalf of
said corporation by authority of its Board of Directors, and said STEPHEN J.
GIURLANDO and TERENCE RAWLINS then and there acknowledged said instrument to be
the free act and deed of said corporation and that such corporation executed the
same.
On the 19th day of October, 2000, before me personally came STEPHEN J.
GIURLANDO and TERENCE RAWLINS, to me known, who, being by me duly sworn, did
depose and say that they respectively reside at 63 Euclid Avenue, Massapequa,
New York, and 8 Karwatt Court, Sayreville, New Jersey; that they are
respectively a Vice President and an Assistant President of THE BANK OF NEW
YORK, one of the corporations described in and which executed the above
instrument; that they know the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that they signed their names
thereto by like order.
GIVEN under my hand and notarial seal this 19th day of October, 2000.
/s/ William J. Cassels
--------------------------------------
William J. Cassels
Notary Public, State of New York
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
21
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 18th day of October, 2000, before me personally appeared DOUGLAS J.
MACINNES, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Personally came before me this 18th day of October, 2000, the above named
DOUGLAS J. MACINNES, to me known to be the person who executed the foregoing
instrument, and acknowledged the same.
On the 18th day of October, 2000, before me personally came DOUGLAS J.
MACINNES, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
GIVEN under my hand and notarial seal this 18th day of October, 2000.
/s/ William J. Cassels
--------------------------------------
William J. Cassels
Notary Public, State of New York
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
22
EXHIBIT 4(F)2
FIRST AMENDMENT
TO
AMENDED AND RESTATED TRUST AGREEMENT
OF
MP&L CAPITAL I
This First Amendment, dated as of August 23, 2000 (this "Amendment"), to
the Trust Agreement (as defined below) of MP&L Capital I (the "Trust"), is made
and entered into by and among Minnesota Power, Inc. (formerly known as Minnesota
Power & Light Company), a Minnesota corporation, as Depositor (the "Depositor"),
David G. Gartzke, Philip R. Halverson and James K. Vizanko (each an
"Administrative Trustee," and collectively, the "Administrative Trustees"), and
The Bank of New York, as Property Trustee.
W I T N E S S E T H
-------------------
WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the
"Act") pursuant to (i) the Trust Agreement of the Trust, dated as of February
15, 1996 (the "Original Trust Agreement"), which Original Trust Agreement was
amended and restated by the Amended and Restated Trust Agreement, dated as of
March 1, 1996 (the "Trust Agreement"), and (ii) the Certificate of the Trust of
the Trust, dated February 15, 1996, as filed with the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on February 15, 1996
(the "Certificate of Trust");
WHEREAS, the Depositor has heretofore changed its name from "Minnesota
Power & Light Company" to "Minnesota Power, Inc.";
WHEREAS, the Depositor has adopted a trade name effective September 1, 2000
and will do business under the name of "ALLETE";
WHEREAS, in accordance with the Trust Agreement, the Depositor and the
Administrative Trustees desire to (i) change the name of the Trust from "MP&L
Capital I" to "ALLETE Capital I" and (ii) reflect in the Trust Agreement the
change in the name of the Depositor from "Minnesota Power & Light Company" to
"Minnesota Power, Inc., doing business as ALLETE";
WHEREAS, the Trust Agreement may be amended (on approval of a majority of
the Administrative Trustees) in accordance with the terms of Section 10.03(a) of
the Trust Agreement, to reflect the terms set forth below; and
WHEREAS, the Depositor has requested and hereby requests that the Property
Trustee join in the execution and delivery of this Amendment.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
I. AMENDMENTS.
----------
A. All references in the Trust Agreement to "MP&L Capital I" are hereby
amended by changing such references to "ALLETE Capital I".
B. All references in the Trust Agreement to "Minnesota Power & Light
Company" are hereby amended by changing such references to "Minnesota Power,
Inc., doing business as ALLETE".
II. MISCELLANEOUS.
-------------
A. Successors and Assigns. This Amendment shall be binding upon, and
----------------------
shall enure to the benefit of, the parties hereto and their respective
successors and assigns.
B. Full Force and Effect. Except to the extent modified hereby, the
---------------------
Trust Agreement shall remain in full force and effect.
C. Counterparts. This Amendment may be executed in counterparts, all of
------------
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
D. Recitals. The recitals contained in this Amendment shall be taken as
--------
the statements of the Depositor and the Administrative Trustees, and the
Property Trustee assumes no responsibility for their correctness.
E. Governing Law. This Amendment shall be interpreted in accordance with
-------------
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
F. Effectiveness of Amendment. This Amendment shall be effective upon
--------------------------
mailing of a notice of this Amendment to the Securityholders, in accordance with
Section 10.08 of the Trust Agreement.
G. Certificate of Amendment. Any Administrative Trustee, acting
------------------------
singly, is hereby authorized to execute and file with the Secretary of State a
Certificate of Amendment to the Certificate of Trust to effect the substance of
this Amendment.
H. Status of Outstanding Trust Securities. Any Trust Securities that
--------------------------------------
are validly issued and Outstanding on the date hereof shall continue to be (i)
represented by the Trust Securities Certificates executed and delivered in
connection with the original issuance of the Trust Securities, and (ii) Trust
Securities validly issued, fully paid, nonassessable and entitled to the
benefits of the Trust Agreement, notwithstanding that the Trust Securities are
designated in such Trust Securities Certificates as Trust Securities of "MP&L
Capital I" rather than of "ALLETE Capital I".
I. Capitalized Terms. Capitalized terms used herein and not otherwise
-----------------
defined herein are used as defined in the Trust Agreement.
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first set forth above.
MINNESOTA POWER, INC.,
as Depositor
By: /s/ David G. Gartzke
------------------------------------
Name: David G. Gartzke
Title: Senior Vice President - Finance and
Chief Financial Officer
PHILIP R. HALVERSON, not in his individual
capacity, but solely as Administrative
Trustee of the Trust
/s/ Philip R. Halverson
------------------------------------
DAVID G. GARTZKE, not in his individual
capacity, but solely as Administrative
Trustee of the Trust
/s/ David G. Gartzke
------------------------------------
JAMES K. VIZANKO, not in his individual
capacity, but solely as Administrative
Trustee of the Trust
/s/ James K. Vizanko
------------------------------------
THE BANK OF NEW YORK,
as Property Trustee of the Trust
/s/ Stephen J. Giurfando
------------------------------------
Stephen J. Giurfando
Vice President
-3-
EXHIBIT 5(A)
ALLETE
PHILIP R. HALVERSON
Vice President,
General Counsel and Secretary
January 25, 2001
ALLETE
(legally incorporated as Minnesota Power, Inc.)
30 West Superior Street
Duluth, Minnesota 55802
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-3 to be filed
by ALLETE (legally incorporated as Minnesota Power, Inc.) (the "Company") on or
about the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to 591,292 shares of the
Company's Common Stock, without par value ("Stock") and the Preferred Share
Purchase Rights attached thereto ("Rights") (the Stock and the Rights being
collectively referred to as the "Shares"), which are to be issued in connection
with the Agreement and Plan of Merger, dated as of January 10, 2001, by and
among the Company, AA Salvage Company, ComSearch, Inc. and the shareholders of
ComSearch, Inc., I am of the opinion that:
1. The Company is a corporation validly organized and existing under
the laws of the State of Minnesota.
2. All action necessary to make the Stock validly issued, fully paid
and non-assessable and the Rights validly issued will have been taken when:
a) At a meeting or meetings of the Company's Board of
Directors (or the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the issuance and sale of
the Shares and any other action necessary to the consummation of the proposed
issuance and sale of the Shares;
b) The Minnesota Public Utilities Commission shall have
authorized the issuance and sale of the Shares;
c) The Stock shall have been issued and delivered for the
consideration contemplated in the Registration Statement; and
January 25, 2001
Page 2
d) The Rights shall have been issued in accordance with the
terms of the Rights Agreement dated as of July 24, 1996 between the Company and
the Corporate Secretary of the Company, as Rights Agent.
I am a member of the Minnesota Bar and do not hold myself out as an
expert on the laws of any other jurisdiction. As to all of Minnesota law, Thelen
Reid & Priest LLP is hereby authorized to rely upon this opinion to the same
extent as if this opinion had been addressed to them.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to the reference to me in the Prospectus
included in the Registration Statement under the captions "Experts" and "Legal
Opinions."
Sincerely,
/s/ Philip R. Halverson
Philip R. Halverson
EXHIBIT 5(B)
THELEN REID & PRIEST LLP
NEW YORK ATTORNEYS AT LAW
SAN FRANCISCO 40 WEST 57TH STREET
WASHINGTON, D.C. NEW YORK, N.Y. 10019-4097
LOS ANGELES TEL (212) 603-2000 FAX (212) 603-2001
SILICON VALLEY www. thelenreid.com
MORRISTOWN, N.J.
January 25, 2001
ALLETE
(legally incorporated as Minnesota Power, Inc.)
30 West Superior Street
Duluth, Minnesota 55802
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-3 to be filed
by ALLETE (legally incorporated as Minnesota Power, Inc.) (the "Company") on or
about the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to 591,292 shares of the
Company's Common Stock, without par value ("Stock") and the Preferred Share
Purchase Rights attached thereto ("Rights") (the Stock and the Rights being
collectively referred to as the "Shares"), which are to be issued in connection
with the Agreement and Plan of Merger, dated as of January 10, 2001, by and
among the Company, AA Salvage Company, ComSearch, Inc. and the shareholders of
ComSearch, Inc., we are of the opinion that:
1. The Company is a corporation validly organized and existing under
the laws of the State of Minnesota.
2. All action necessary to make the Stock validly issued, fully paid
and non-assessable and the Rights validly issued will have been taken when:
a) At a meeting or meetings of the Company's Board of
Directors (or the Executive Committee of the Board of Directors) favorable
action shall have been taken to approve and authorize the issuance and sale of
the Shares and any other action necessary to the consummation of the proposed
issuance and sale of the Shares;
b) The Minnesota Public Utilities Commission shall have
authorized the issuance and sale of the Shares;
c) The Stock shall have been issued and delivered for the
consideration contemplated in the Registration Statement; and
THELEN REID & PRIEST LLP
January 25, 2001
Page 2
d) The Rights shall have been issued in accordance with the
terms of the Rights Agreement dated as of July 24, 1996 between the Company and
the Corporate Secretary of the Company, as Rights Agent.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of the State of Minnesota. As to all matters governed by the
laws of the State of Minnesota, we have relied upon an opinion of even date
herewith addressed to you by Philip R. Halverson, Esq., Vice President, General
Counsel and Secretary of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to us in the Prospectus
included in the Registration Statement under the caption "Legal Opinions." In
giving the foregoing consents, we do not hereby admit that we belong to the
class of persons whose consent is required under Section 7 of the Securities
Act, or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 17, 2000, relating to the
financial statements and financial statement schedule, which appear in ALLETE's
(legally incorporated as Minnesota Power, Inc.) Annual Report on Form 10-K for
the year ended December 31, 1999. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
January 25,2001