Mergers
On June 4, 2018, pursuant to the Merger Agreement, (i) Great Plains Energy merged with and into Evergy (the “GPE Merger”), with Evergy
continuing as the surviving corporation in the GPE Merger, and (ii) Merger Sub merged with and into Westar Energy (the “Westar Merger,” together with the GPE Merger, the “Mergers”), with Westar Energy continuing as the
surviving corporation in the Westar Merger.
Pursuant to the Westar Merger, each share of common stock, $5.00 par value, of Westar Energy (the
“Westar Energy common stock”) was converted into the right to receive one validly issued, fully paid and
non-assessable
share of common stock, no par value, of Evergy (the “Evergy common
stock”). Pursuant to the GPE Merger, each share of common stock, no par value, of Great Plains Energy (the “Great Plains Energy common stock”) was converted into the right to receive 0.5981 validly issued, fully paid and
non-assessable
shares of Evergy common stock. As of the effective time of the Mergers, the outstanding shares of Evergy common stock were held by the former holders of Westar Energy common stock and Great Plains
Energy common stock. Pursuant to the Merger Agreement, as of the effective time of the Mergers, all shares of Evergy common stock owned by Westar Energy, Great Plains Energy or any of their respective subsidiaries were cancelled and retired for no
consideration.
Each performance unit of Westar Energy that was unvested and outstanding immediately prior to the effective time of the Mergers was
cancelled as of the effective time of the Mergers and converted into a right to receive one share of Evergy common stock plus a cash payment in an amount equal to any dividend equivalents associated with such performance units as of the effective
time of the Mergers, with the number of vested Westar Energy performance units as of the effective time of the Mergers to equal the greater of the target award or the number determined in accordance with the performance criteria provided in the
applicable award agreement, less withholding with respect to applicable taxes.
Each restricted share unit of Westar Energy that was unvested and
outstanding immediately prior to the effective time of the Mergers (other than those restricted share units granted on June 3, 2018 as described below) was cancelled as of the effective time of the Mergers and converted into a right to receive
one share of Evergy common stock plus a cash payment in an amount equal to any dividend equivalents associated with such restricted share units as of the effective time of the Mergers, less withholding with respect to applicable taxes.
Each contractual right to receive a share of Westar Energy common stock or the value of such a share, other than Westar Energy restricted share units and
Westar Energy performance units, pursuant to any Westar Energy benefit plan that was outstanding immediately prior to the effective time of the Mergers vested in full, and all restrictions (including forfeiture restrictions or repurchase rights)
lapsed, and all such contractual rights were cancelled as of the effective time of the Mergers and converted into a right to receive a share of Evergy Common Stock plus a cash payment in an amount equal to any dividend equivalents associated with
such contractual rights as of the effective time of the Mergers, less withholding with respect to applicable taxes.
On June 3, 2018, Westar Energy
granted 16,566, 18,405 and 13,803 restricted share units pursuant to Westar Energy’s Long-Term Incentive and Share Award Plan to each of Tony Somma, Greg Greenwood and Bruce Akin, respectively. The restricted share units will vest in
one-third
increments on each of the first three anniversaries of the grant date. Additionally, if the executive’s employment is terminated by Westar Energy (or its successor) without cause (as defined in the
award agreement), the restricted share units will vest in full as of such termination date and will be paid within 30 days of such termination date. A copy of the Form of Restricted Share Units Award is attached hereto as Exhibit 10.1 and is
incorporated herein by reference.
The issuance of Evergy common stock pursuant to the Mergers was registered under the Securities Act of 1933, as amended
(the “Securities Act”), pursuant to Evergy’s registration statement on Form
S-4
(File
No. 333-220465),
as amended (the “Registration
Statement”), filed with the Securities and Exchange Commission (the “SEC”) and declared effective on October 10, 2017. The definitive joint proxy statement/prospectus of Westar Energy and Great Plains Energy, dated
October 10, 2017, that forms a part of the Registration Statement (the “Joint Proxy Statement/Prospectus”) contains additional information about the Mergers and the other transactions contemplated by the Merger Agreement, including
information concerning the interests of directors, executive officers and affiliates of Westar Energy and Great Plains Energy in the Mergers.
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In connection with and effective as of the date of the Westar Merger, Merger Sub’s articles of incorporation
and bylaws became the governing organizational documents for Westar Energy.
Prior to the Westar Merger, shares of Westar Energy common stock were
registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and listed on the New York Stock Exchange (the “NYSE”). Pursuant to Rule
12g-3(c)
under the Exchange Act, the Evergy common stock is deemed to be registered under Section 12(b) of the Exchange Act. The Evergy common stock has been approved for listing on the New York Stock
Exchange and will begin trading under the symbol “EVRG” on June 5, 2018. As a result of the Westar Merger, on June 4, 2018, Westar Energy requested that the NYSE withdraw the shares of Westar Energy common stock from listing on
the NYSE and file a Form 25 with the SEC to report that the shares of Westar Energy common stock are no longer listed on the NYSE. The shares of Westar Energy common stock were suspended from trading on the NYSE prior to the open of trading on
June 5, 2018. Westar Energy plans to file a Form 15 with the SEC to terminate the registration under Section 12(g) of the Exchange Act of the Westar Energy common stock.
Supplemental Indenture
On June 4, 2018, Westar
Energy entered into a forty-eighth supplemental indenture (the “Supplemental Indenture”) to the Mortgage and Deed of Trust, dated July 1, 1939, between Westar Energy and The Bank of New York Mellon Trust Company, N.A., as successor to
Harris Trust and Savings Bank, as trustee, as amended and supplemented by forty-seven indentures supplemental thereto, in addition to the Forty-Second Supplemental (Reopening) Indenture (as amended and supplemented, the “Mortgage” and, as
so amended and supplemented, the “Amended Mortgage”). Pursuant to the Supplemental Indenture and as required by the Mortgage, Westar Energy, as the surviving corporation in the Westar Merger, assumed the due and punctual payment of the
principal and interest of all bonds currently outstanding under the Mortgage according to their tenor and the due and punctual performance and observance of all the covenants and conditions of the Mortgage to be kept or performed by Westar Energy,
as predecessor to the surviving corporation.
A copy of the form of Supplemental Indenture is attached hereto as Exhibit 4.1 and is incorporated herein by
reference.