-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MvtwCA2NoWhjzbq3qVsbSYmqTj10N4Vgjb48GkhEgt2SjeDjINiua/zL5fPgz2tk hdNF0K++c33yTzmb/qf+Tw== 0000950120-04-000892.txt : 20041230 0000950120-04-000892.hdr.sgml : 20041230 20041230164335 ACCESSION NUMBER: 0000950120-04-000892 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20041230 ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041230 DATE AS OF CHANGE: 20041230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNISOURCE ENERGY CORP CENTRAL INDEX KEY: 0000941138 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 860786732 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13739 FILM NUMBER: 041234490 BUSINESS ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE STREET 2: SUITE 100 CITY: TUCSON STATE: AZ ZIP: 85701 BUSINESS PHONE: 520-571-4000 MAIL ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE, SUITE 100 STREET 2: P.O. BOX 711 CITY: TUCSON STATE: AZ ZIP: 85702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TUCSON ELECTRIC POWER CO CENTRAL INDEX KEY: 0000100122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 860062700 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05924 FILM NUMBER: 041234491 BUSINESS ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE STREET 2: SUITE 100 CITY: TUCSON STATE: AZ ZIP: 85701 BUSINESS PHONE: 520-571-4000 MAIL ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE, SUITE 100 STREET 2: P.O. BOX 711 CITY: TUCSON STATE: AZ ZIP: 85702 FORMER COMPANY: FORMER CONFORMED NAME: TUCSON GAS & ELECTRIC CO /AZ/ DATE OF NAME CHANGE: 19790528 8-K 1 form8k.txt CURRENT REPORT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): December 30, 2004 IRS Employer Commission Registrant; State of Incorporation; Identification File Number Address; and Telephone Number Number - ------------ --------------------------------------------- -------------- 1-13739 UNISOURCE ENERGY CORPORATION 86-0786732 (An Arizona Corporation) One South Church Avenue, Suite 100 Tucson, AZ 85701 (520) 571-4000 1-5924 TUCSON ELECTRIC POWER COMPANY 86-0062700 (An Arizona Corporation) One South Church Avenue, Suite 100 Tucson, AZ 85701 (520) 571-4000 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT - -------------------------------------------------------- In November 2003, UniSource Energy Corporation (UniSource Energy) entered into an Agreement and Plan of Merger (the Agreement) with Saguaro Acquisition Corp. (Saguaro), an affiliate of Saguaro Utility Group L.P. (Saguaro LP), that provided for the acquisition of all of UniSource Energy's outstanding common stock for $25.25 per share by Saguaro. Saguaro LP is an Arizona limited partnership whose general partner is Sage Mountain, L.L.C. and whose limited partners include investment funds associated with Kohlberg Kravis Roberts & Co., L.P., J.P. Morgan Partners, LLC and Wachovia Capital Partners. On December 21, 2004, the Arizona Corporation Commission (ACC) voted, at the end of a special open meeting, to deny the application seeking its approval of the proposed acquisition. The Agreement provides that in the event that the ACC denies the acquisition, Saguaro or UniSource Energy may terminate the Agreement, and UniSource Energy is obligated to reimburse up to $7 million of Saguaro's expenses. On December 30, 2004, Saguaro exercised its right to terminate the Agreement and UniSource Energy paid Saguaro $7 million to cover Saguaro's expenses, pursuant to the terms of the Agreement. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS - ------------------------------------------- (c) Exhibits EXHIBIT NO. DESCRIPTION ----------- ----------- 99.1 Letter, dated December 30, 2004, from Saguaro to UniSource Energy terminating the Agreement. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Date: December 30, 2004 UNISOURCE ENERGY CORPORATION ------------------------------------ (Registrant) /s/ Kevin P. Larson ------------------------------------ Vice President and Principal Financial Officer Date: December 30, 2004 TUCSON ELECTRIC POWER COMPANY ------------------------------------ (Registrant) /s/ Kevin P. Larson ------------------------------------ Vice President and Principal Financial Officer EX-99 2 e636626_ex99-1.txt EX. 99.1 - LETTER TERMINATING AGREEMENT EXHIBIT 99.1 SAGUARO ACQUISITION CORP. 4201 NORTH 24TH STREET, SUITE 100 PHOENIX, ARIZONA 85016 December 30, 2004 VIA FACSIMILE AND FEDERAL EXPRESS UniSource Energy Corporation UniSource Energy Tower One South Church Avenue Tucson, Arizona 85701 Attention: Vincent Nitido, Jr. Telecopy: (520) 884-3612 Ladies and Gentlemen: Reference is hereby made to (i) the Agreement and Plan of Merger (the "AGREEMENT") between UniSource Energy Corporation (the "COMPANY") and Saguaro Acquisition Corp. ("NEWCO") dated as of November 21, 2003 and (ii) the approval by the Arizona Corporation Commission (the "ACC") at its open meeting held in Tucson, Arizona, on December 21, 2004 of the Recommended Opinion and Order of Administrative Law Judge Jane Rodda, subject to certain amendments, relating to the transactions contemplated by the Agreement (such approval, the "ACC ACTION"). The parties acknowledge that the ACC Action is a "Final Order" as defined in the Agreement. Capitalized terms used but not defined in this letter agreement shall have the respective meanings assigned such terms in the Agreement. As a result of the ACC Action, the condition set forth in Section 7.02(d) of the Agreement has become incapable of being satisfied. Accordingly, Newco hereby elects to terminate the Agreement pursuant to Section 8.01(d)(i) of the Agreement. Newco represents and warrants that it has incurred Termination Expenses in excess of $7,000,000. The Company acknowledges that, pursuant to Section 8.02(a)(iv) of the Agreement, it is obligated to pay $7,000,000 in reimbursement of Newco's Termination Expenses and agrees to pay such amount on the date hereof to Newco by wire transfer of immediately available funds in U.S. dollars to the account designated on Exhibit A attached hereto. Newco and the Company acknowledge and agree that the termination shall have the effects described in Section 8.03 of the Agreement. The Company represents and warrants that, at or prior to the effectiveness of this letter agreement, no Alternative Proposal has been publicly announced, commenced or otherwise communicated or made known to the Company nor has any person publicly announced, commenced or otherwise communicated or made known an intention, whether or not conditional, to make an Alternative Proposal. In reliance on the foregoing representation and warranty, Newco acknowledges that the payment of the Termination Expenses described above shall be in full satisfaction of all of the Company's obligations arising from the termination. Each of Newco and the Company releases the other party hereto and its affiliates and the directors, officers, shareholders, partners, members, agents, successors and assigns of the other party and its affiliates from all liability, fixed or contingent, known or unknown, arising under the Agreement or relating to the transactions contemplated thereby through the time at which this letter agreement becomes effective (other than any liabilities arising under this letter agreement); provided that if the Company's representations and warranties set forth in the preceding paragraph are not true and correct, then the Company's obligation to pay Newco the Termination Fee pursuant to Section 8.02(a)(iv) shall be deemed not to have been released. Newco and the Company agree that this letter agreement shall not be effective until the occurrence of both (i) the countersignature of this letter agreement by the Company and (ii) the receipt by Newco of the $7,000,000 in Termination Expenses in the manner described above. This letter agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to any applicable conflict of law provisions thereof that may require the application of the Laws of another jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware in respect of the interpretation and enforcement of the provisions of this letter agreement and hereby waive, and agree not to assert, as a defense in any Action for the interpretation or enforcement hereof, that it is not subject thereto or that such Action may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this letter agreement may not be enforced in or by such courts, and the parties irrevocably agree that all claims with respect to such Action shall be heard and determined in such a Delaware State or federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such Action in the manner provided in Section 9.12 of the Agreement or in such other manner as may be permitted by Law shall be valid and sufficient service thereof. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR ANY MATTERS RELATING HERETO. This letter agreement and the Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This letter agreement may be amended, modified, and supplemented only by a written document executed by the Company and Newco. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This letter shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. [Remainder of Page Intentionally Left Blank] If you agree with the foregoing, please sign and return a copy of this letter agreement, which will constitute our agreement with respect to the subject matter of this letter agreement. Very truly yours, SAGUARO ACQUISITION CORP. By: /s/ Frederick B. Rentschler --------------------------- Name: Frederick B. Rentschler Title: President Acknowledged and Agreed: UNISOURCE ENERGY CORPORATION By: /s/ Kevin P. Larson - ----------------------- Name: Kevin P. Larson Title: Vice President, Chief Financial Officer and Treasurer cc: Thelen Reid & Priest LLP: 875 Third Avenue New York, New York 10022-6225 Attention: Richard S. Green John T. Hood Telecopy: (212) 603-2001 Simpson Thacher & Bartlett LLP: 425 Lexington Avenue New York, New York 10017 Attention: David J. Sorkin Brian M. Stadler Telecopy: (212) 455-2502 -----END PRIVACY-ENHANCED MESSAGE-----