EXHIBIT 8(b)
Xxx Xxxx, Xxx Xxxx
Xxxxxxxx 0, 0000
Xxxxx Xxxxxxxxx Energy Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: Agreement and Plan of Merger, By and Between WPS Resources
Corporation and Upper Peninsula Energy Corporation Dated as
of July 10, 1997
Ladies & Gentlemen:
You have requested our opinion as to certain federal income tax
consequences resulting upon the consummation of the merger of WPS
Resources Corporation ("WPS") and Upper Peninsula Energy Corporation
("XXXX") which will be consummated pursuant to an Agreement and Plan of
Merger, By and Between WPS Resources Corporation and Upper Peninsula
Energy Corporation Dated as of July 10, 1997 (hereinafter the "Merger" and
the "Merger Agreement" respectively). Unless otherwise defined herein,
capitalized terms shall have the meanings ascribed to them in the Merger
Agreement. This opinion is being furnished in accordance with Section
8.2(e) of the Merger Agreement.
The opinions expressed herein are based solely upon current law,
including the Internal Revenue Code of 1986, as amended (the "Code"),
applicable Treasury Regulations promulgated or proposed thereunder,
current positions of the Internal Revenue Service contained in published
Revenue Rulings and Revenue Procedures, other current administrative
positions of the Internal Revenue Service and existing judicial decisions,
all as of the date hereof. It should be noted that such statutes,
regulations, judicial decisions and administrative interpretations are
subject to change or modification at any time, which change may have
retroactive effect. Such a change in authorities upon which our opinion
is based could affect our conclusions reached in rendering this opinion.
In addition, this opinion does not apply to certain special classes of
taxpayers, including, without limitation, foreign corporations, tax exempt
entities, and persons who acquired XXXX Common Stock pursuant to the
exercise of employee stock options or rights or otherwise as compensation.
In connection with the rendering of this opinion, we have
reviewed the Merger Agreement, the Proxy Statement/Prospectus forming a
part of the Registration Statement filed with the Securities and Exchange
Commission by WPS and XXXX in respect of the Merger (the "Registration
Statement"), and related documents and other materials as we have deemed
relevant to the rendering of our opinion. In addition, we have assumed
that we will receive, prior to the Effective Time, representations to be
made by WPS and XXXX, in the form attached hereto and we have relied upon
the accuracy of the statements contained therein. We have also assumed
that all documents we have reviewed are true and accurate, accurately
reflect the originals and have been or will be properly executed, and that
all actions conducted or to be conducted in connection with the Merger
Agreement and the transactions contemplated thereby have been and will be
conducted in the manner provided in such document. Further, we have also
assumed that the Merger of WPS and XXXX will qualify as a "statutory
merger or consolidation" under applicable state laws.
We are members of the bar of the State of New York and are not
admitted to practice law in any other jurisdiction. Accordingly, we
express no opinion with respect to the laws of any other jurisdiction
other than the federal laws of the United States of America in respect of
the opinions set forth herein.
Based on and subject to the foregoing, it is our opinion that:
(1) The Merger will constitute a reorganization within the meaning
of Section 368(a) of the Code. WPS and XXXX will each be "a party to a
reorganization" within the meaning of Section 368(b) of the Code.
(2) No gain or loss will be recognized by XXXX pursuant to the
Merger.
(3) Each holder of XXXX Common Stock who exchanges those shares
solely for shares of WPS Common Stock pursuant to the Merger (the
"Exchanging XXXX Shareholders") will not recognize any gain or loss as a
result of the Merger.
(4) The aggregate tax basis of the WPS Common Stock received by each
Exchanging XXXX Shareholder will be the same as the aggregate tax basis of
the stock exchanged therefor.
(5) The holding period of the WPS Common Stock received by each
Exchanging XXXX Shareholder will include the period for which the stock
exchanged therefor was held, provided that such stock is held as a capital
asset at the effective time of the Merger.
(6) The payment of cash to an Exchanging XXXX Shareholder in lieu of
issuing fractional shares of WPS Common Stock will be treated as if the
fractional share was distributed pursuant to the Merger and then redeemed
by WPS. The cash payment will be treated as having been received in a
distribution in full payment in exchange for the fractional share. The
Exchanging XXXX Shareholder will recognize gain or loss equal to the
difference between (i) the cash payment, and (ii) the portion of the
Exchanging XXXX Shareholder's basis in the XXXX Common Stock which is
allocable to the fractional share. This gain or loss will be capital gain
or loss, provided that such stock is held as a capital asset at the
effective time of the Merger.
Further, we are of the opinion that the statements set forth under
the caption "THE MERGER-MATERIAL FEDERAL INCOME TAX CONSEQUENCES" in the
Registration Statement and attributed to Xxxx & Priest LLP, constitute an
accurate description, in general terms, of the material United States
federal income tax consequences of the Merger. The discussion set forth
therein, to the extent attributed to Xxxx & Priest LLP, reflects the
opinion of Xxxx & Priest LLP.
Except as set forth above, we express no opinion with respect to
the Merger. This opinion is for your information and is not to be quoted
in whole or in part, summarized or otherwise referred to, nor is it to be
filed with or supplied to any governmental agency or other person without
our written consent. This opinion is as of the date hereof. We disclaim
any responsibility to update or supplement this opinion to reflect any
events or state of facts which may hereafter come to our attention, or any
changes in statutes or regulations or any other legal authorities which
may hereafter occur.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 8(b) to the Registration
Statement. We also consent to the discussion of this opinion and the
reference to our firm under the heading "THE MERGER-MATERIAL FEDERAL
INCOME TAX CONSEQUENCES" in the Proxy Statement/Prospectus that
constitutes part of the Registration Statement.
Very truly yours,
/s/ Xxxx & Priest LLP
XXXX & PRIEST LLP
