EXHIBIT 1.1
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______________________________________________________________________
NORTHWESTERN CORPORATION
(a Delaware corporation)
3,200,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: October 10, 2001
______________________________________________________________________
Table of Contents
PURCHASE AGREEMENT
SECTION 1. Representations and Warranties . . . . . . . . . . . . . 3
(a) Representations and Warranties by the Company . . . . . . 3
(i) Compliance with Registration Requirements . . . . 3
(ii) Incorporated Documents . . . . . . . . . . . . . . 4
(iii) Independent Accountants . . . . . . . . . . . . . 4
(iv) Financial Statements . . . . . . . . . . . . . . . 4
(v) No Material Adverse Change in Business . . . . . . 4
(vi) Good Standing of the Company . . . . . . . . . . . 5
(vii) Good Standing of Subsidiaries . . . . . . . . . . 5
(viii) Capitalization . . . . . . . . . . . . . . . . . . 6
(ix) Authorization of Agreement . . . . . . . . . . . . 6
(x) Authorization and Description of Securities . . . 6
(xi) Absence of Defaults and Conflicts . . . . . . . . 6
(xii) Absence of Labor Dispute . . . . . . . . . . . . . 7
(xiii) Absence of Proceedings . . . . . . . . . . . . . . 7
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . 7
(xv) Possession of Intellectual Property . . . . . . . 8
(xvi) Absence of Further Requirements . . . . . . . . . 8
(xvii) Possession of Licenses and Permits . . . . . . . . 8
(xviii)Title to Property . . . . . . . . . . . . . . . . 8
(xix) Investment Company Act . . . . . . . . . . . . . . 9
(xx) Environmental Laws . . . . . . . . . . . . . . . . 9
(xxi) FERC . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Officer's Certificates . . . . . . . . . . . . . . . . . 10
SECTION 2. Sale and Delivery to Underwriters; Closing . . . . . . . 10
(a) Initial Securities . . . . . . . . . . . . . . . . . . . 10
(b) Option Securities . . . . . . . . . . . . . . . . . . . . 10
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) Denominations; Registration . . . . . . . . . . . . . . . 12
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . 12
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . 15
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Termination of Agreement . . . . . . . . . . . . . . . . 15
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . 15
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . 19
(a) Indemnification of Underwriters . . . . . . . . . . . . . 19
(b) Indemnification of Company, Directors and Officers . . . 20
(c) Actions Against Parties; Notification . . . . . . . . . . 20
(d) Settlement without Consent if Failure to Reimburse . . . 20
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . 21
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SECTION 8. Representations, Warranties and Agreements to
Survive Delivery . . . . . . . . . . . . . . . . . . . . 23
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . 23
(a) Termination; General . . . . . . . . . . . . . . . . . . 23
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10. Default by One or More of the Underwriters . . . . . . 23
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 13. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . 25
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . 25
SCHEDULES
Schedule A - List of Underwriters . . . . . . . . . . . Sch A-1
Schedule B - Pricing Information . . . . . . . . . . . . Sch B-1
Schedule C - List of Subsidiaries . . . . . . . . . . . Sch C-1
Schedule D - List of Persons and Entities
Subject to Lock-up . . . . . . . . . . . . Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Special Counsel . . A-1
Exhibit B - Form of Opinion of Company's Counsel . . . . . . B-1
Exhibit C - Form of Lock-up Letter . . . . . . . . . . . . . C-1
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NORTHWESTERN CORPORATION
(a Delaware corporation)
3,200,000 Shares of Common Stock
(Par Value $1.75 Per Share)
PURCHASE AGREEMENT
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October 10, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NorthWestern Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the
other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx and Credit Suisse First Boston Corporation are acting as
representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $1.75 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with
respect to the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b)
hereof to purchase all or any part of 480,000 additional shares of
Common Stock to cover over-allotments, if any. The aforesaid
3,200,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 480,000
shares of Common Stock subject to the option described in Section 2(b)
hereof (the "Option Securities") are hereinafter called, collectively,
the "Securities".
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") registration statements on Form S-3 (Nos. 333-58491
and 333-82707), including a prospectus, relating to common stock and
other securities of the Company. Such registration statements were
filed under the Securities Act of 1933, as amended (the "1933 Act"),
and have become effective. Promptly after execution and delivery of
this Agreement, the Company will prepare and file with the Commission
a prospectus in accordance with the provisions of paragraph (b) of
Rule 424 ("Rule 424(b)") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). The
prospectus included in the registration statement No. 333-82707 at the
time it became effective, as supplemented to reflect the terms of the
Securities and the terms of the offering of the Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) under the 1933 Act Regulations, including all material
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, is hereinafter referred to as the "Prospectus".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act. Each prospectus used before any registration
statement became effective is herein called a "preliminary
prospectus." Such registration statements, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act,
at the time registration statement no. 333-82707 became effective and
including the prospectus included in such registration statement at
the time it became effective, as supplemented to reflect the terms of
the Securities and the terms of the offering of the Securities, as
first filed with the Commission pursuant to and in accordance with
Rule 424(b) under the 1933 Act Regulations, are collectively herein
called the "Registration Statement", provided that references to the
Registration Statement at the time it became effective shall not be
deemed to include the information first filed pursuant to and in
accordance with Rule 424(b) under the 1933 Act Regulations. For
purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement, any preliminary prospectus or
the Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus
or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in the Registration
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Statement, such preliminary prospectus or the Prospectus, as the case
may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each
Date of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective, at the time
of the filing by the Company of any annual report on Form 10-K,
and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement
and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at
the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing
by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection
3
with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the
1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when
read together with the other information in the Prospectus, at
the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and if any
Option Securities are purchased, at the Date of Delivery), did
not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"),
4
(B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for dividends on the 4-1/2% Series and the 6-1/2%
Series of preferred stock and regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has
corporate power and authority and franchises to own or lease and
operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation
S-X) of the Company and each of Expanets, Inc., Blue Dot
Services, Inc., NorthWestern Growth Corporation and CornerStone
Propane Partners, L.P. (each, a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized or formed and is
validly existing as a corporation or a limited partnership, as
the case may be, in good standing under the laws of its
jurisdiction of incorporation or organization, has corporate or
partnership power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or
limited partnership to transact business and is in good standing
in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding shares of capital
stock or partnership interests, as the case may be, of each such
Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
and none of the outstanding shares of capital stock or limited
partnership interests of any Subsidiary was issued in violation
of the preemptive or similar rights of any security holder of
5
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Schedule C hereto.
(viii) CAPITALIZATION. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-
assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other
similar rights of any security holder of the Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable; the Common Stock conforms
to all statements relating thereto contained in the Prospectus
and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any security holder of the
Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would
not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated herein and in the Registration
Statement (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not
6
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will
such action result in any violation of (A) the provisions of the
charter or by-laws of the Company or any subsidiary or (B) any
applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations,
except, in the case of clause (B) hereof, for such violations
that would not result in a Material Adverse Effect. As used
herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
subsidiary prior to the scheduled maturity thereof or any other
scheduled payment date.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, which may reasonably be
expected to result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. Other than as disclosed in
the Registration Statement, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement, or which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of
the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
7
reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or
any of its subsidiaries therein, and which infringement,
conflict, invalidity or inadequacy, singly or in the aggregate,
might reasonably be expected to result in a Material Adverse
Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to have
such Governmental Licenses would not, singly or in the aggregate,
have a Material Adverse Effect; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or
8
in the aggregate, might reasonably be expected to result in a
Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company and its
subsidiaries have good and marketable title to all material real
property owned by the Company and its subsidiaries and good title
to all other material properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to
be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any subsidiary
has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940
Act").
(xx) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and
9
approvals required under any applicable Environmental Laws and
are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxi) FERC. The Federal Energy Regulatory Commission
("FERC") has issued an appropriate order or orders with respect
to the issuance and sale of the Securities in accordance with
this Agreement; such order or orders are in full force and
effect; and the issuance and sale of the Securities are in
conformity with the terms of such order or orders.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share
set forth in Schedule B, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional
number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up
to an additional 480,000 shares of Common Stock at the price per share
set forth in Schedule B, less an amount per share equal to any
dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The
option hereby granted will expire 30 days after the date hereof and
may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon
notice by the Representatives to the Company setting forth the number
10
of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery
for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days after the exercise of
said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial Securities, subject
in each case to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices
of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than ten business days after such date as shall be agreed upon
by the Representatives and the Company (such time and date of payment
and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Representatives and the Company, on
each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be
purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has
agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities or
the Option Securities, if any, to be purchased by any Underwriter
whose funds have not been received by the Closing Time or the relevant
Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
11
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing
Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial Securities and the Option Securities, if
any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will notify the
Representatives immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii)
of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending
the use of the Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will
take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus.
The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement, or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any
such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
12
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the Representatives and counsel for
the Underwriters, at their request and without charge, conformed
copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and conformed
copies of all consents and certificates of experts. The copies
of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company will furnish to
each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to
the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
13
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign)
as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year
from the effective date of the Registration Statement; PROVIDED,
HOWEVER, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement.
(g) RULE 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to
effect the listing of the Securities on the New York Stock
Exchange.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of
75 days from the date of the Prospectus, the Company will not,
without the prior written consent of Xxxxxxx Xxxxx, (i) directly
or indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such
swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities to be sold hereunder, or (B) any shares of
Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company
referred to in the Prospectus.
14
(k) REPORTING REQUIREMENTS. The Company, during the period
when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company
will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents
as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of
the Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the filing
fees incident to any necessary filings under state securities laws and
the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the
Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus
and of the Prospectus and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies
of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, and
(ix) the fees and expenses incurred in connection with the listing of
the Securities on the New York Stock Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated
by the Representatives in accordance with the provisions of Section 5
or Section 9(a)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants
and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The
Registration Statement has become effective and at Closing Time
no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission,
15
and any request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus shall
have been filed with the Commission in accordance with Rule
424(b).
(b) (i) OPINION OF SPECIAL COUNSEL FOR COMPANY. At
Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxx &
Xxxxx, special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto and to
such further effect as counsel to the Underwriters may reasonably
request.
(ii) OPINION OF COUNSEL FOR COMPANY. At Closing Time,
the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Xxxx X. Xxxxxxxx, Esq., Vice
President Legal Administration of the Company, in form and
substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the
other Underwriters to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time,
the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters with respect to
the matters set forth in clauses (ii) and (iii) of Exhibit B, (i)
and (ii) of Exhibit A (solely as to preemptive or other similar
rights arising by operation of law or under the charter or
by-laws of the Company), (iii) through (v) of Exhibit A,
inclusive, (viii) of Exhibit A, (ix) of Exhibit A (solely as to
the information in the Prospectus under "Description of Common
Stock", and "Description of Preferred Stock and Preference
Stock") and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall
not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
16
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) ACCOUNTANTS' COMFORT LETTERS. At the time of the
execution of this Agreement, the Representatives shall have
received from Xxxxxx Xxxxxxxx LLP a letter dated such date, in
form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the
other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus.
(f) BRING-DOWN COMFORT LETTERS. At Closing Time, the
Representatives shall have received from Xxxxxx Xxxxxxxx LLP a
letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities
shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(h) LOCK-UP AGREEMENTS. At the date of this Agreement, the
Representatives shall have received an agreement substantially in
the form of Exhibit C hereto signed by the persons listed on
Schedule D hereto.
(i) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the
event that the Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall
be true and correct as of each Date of Delivery and, at the
17
relevant Date of Delivery, the Representatives shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such
Date of Delivery, of the President or a Vice President of
the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) OPINION OF SPECIAL COUNSEL FOR COMPANY. The
favorable opinion of Xxxxxx Xxxxxx & Xxxxx, special counsel
for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b)(i) hereof.
(iii) OPINION OF COUNSEL FOR COMPANY. The favorable
opinion of Xxxx X. Xxxxxxxx, Esq., counsel for the Company,
in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(b)(ii) hereof.
(iv) OPINION OF COUNSEL FOR UNDERWRITERS. The
favorable opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(v) BRING-DOWN COMFORT LETTER. A letter from Xxxxxx
Xxxxxxxx LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(f)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(j) ADDITIONAL DOCUMENTS. At Closing Time and at each Date
of Delivery, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein
18
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(k) TERMINATION OF AGREEMENT. If any condition specified
in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of Option Securities, on a Date of
Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities,
may be terminated by the Representatives by notice to the Company
at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
19
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Xxxxxxx Xxxxx expressly for
use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
20
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on
21
the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this Section. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and
referred to above in this Section shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section are several in proportion to
the number of Initial Securities set forth opposite their respective
names in Schedule A hereto and not joint.
22
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or
on behalf of any Underwriter or controlling person, or by or on behalf
of the Company, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by
the Commission or the New York Stock Exchange, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited,
or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv)
if a banking moratorium has been declared by either Federal or New
York authorities, or (v) if a material disruption has occurred in
commercial banking or securities settlement or clearance services in
the United States or with respect to Clearstream or Euroclear systems
in Europe.
(b) LIABILITIES. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the
23
Representatives shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters,
or any other underwriters, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, the
non-defaulting Underwriters shall be obligated, each severally
and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs
after Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery
which is after Closing Time, which does not result in a termination of
the obligation of the Underwriters to purchase and the Company to sell
the relevant Option Securities, as the case may be, either the
Representatives or the Company shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representatives at Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxx Xxxxxxxxx; and notices to the
Company shall be directed to it at 000 X. Xxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxx Xxxxxx, 00000, attention of Xxxx X. Xxxxxxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
24
or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in
accordance with its terms.
Very truly yours,
NORTHWESTERN CORPORATION
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxx Xxxxxxx
----------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
25
SCHEDULE A
Name of U.S. Underwriter Number of
Initial U.S.
Securities
------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . 2,240,000
Credit Suisse First Boston Corporation. . . . . . . . . . 960,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . 3,200,000
=========
Sch A-1
SCHEDULE B
NORTHWESTERN CORPORATION
3,200,000 Shares of Common Stock
(Par Value $1.75 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $21.25.
2. The purchase price per share for the U.S. Securities to be
paid by the several Underwriters shall be $20.40, being an amount
equal to the initial public offering price set forth above less $.85
per share; provided that the purchase price per share for any Option
Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the Option
Securities.
Sch B-1
SCHEDULE C
List of subsidiaries
NorthWestern Corporation
Grant, Inc.
NorthWestern Growth Corporation
Coast Energy Capital Corporation
Cornerstone Propane GP, Inc.
SYN Inc.
Claremont Gas Corp.
Cornerstone Propane Partners, L.P.
Cornerstone Propane, L.P.
NorthWestern Capital Corporation
Blue Dot Services Inc.
Expanets, Inc.
NorthWestern Capital Ventures, LLC
NorthWestern Capital Partners, LLC
NorthWestern Networks, Inc.
NorthWestern Systems, Inc.
LNSI, Inc.
NorthWestern Services Group, Inc.
Nekota Resources Inc.
NorCom Advanced Technologies, Inc.
NorthWestern Energy Corporation
NorthWestern Services Corporation
Sch C-1
SCHEDULE D
List of persons and entities
subject to lock-up
Xxxxx X. Xxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx, III
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxx X. Xxx Xxxx
Xxxx X. Xxxx
Xxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxxxx
Xxx X-0
Exhibit A
FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Securities have been duly authorized for issuance and
sale to the Underwriters pursuant to the Purchase Agreement and, when
issued and delivered by the Company pursuant to the Purchase Agreement
against payment of the consideration set forth in the Purchase
Agreement, will be validly issued and fully paid and non-assessable
and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(ii) The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(iii) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(v) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which we need
express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(vi) The execution, delivery and performance of the Purchase
Agreement and compliance by the Company with its obligations under the
Purchase Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, result in any violation of
the provisions of the charter or by-laws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having
A-1
jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(vii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(ix) The information in the Prospectus under "Description of
Common Stock" and "Description of Preferred Stock" and in the
Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
charter and by-laws or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects.
(x) The Rights under the Company's Shareholder Rights Plan to
which holders of the Securities will be entitled have been duly
authorized and, when the Securities are issued by the Company in
accordance with the Purchase Agreement, will be validly issued.
(xi) The FERC has issued an appropriate order or orders with
respect to the issuance and sale of the Securities in accordance with
the Purchase Agreement; to the best of our knowledge, such order or
orders are in full force and effect; the issuance and sale of the
Securities are in conformity with the terms of such order or orders;
and no other authorization, approval or consent, license, order,
registration, qualification or decree of, any court or any other
governmental body or agency is legally required for the issuance and
sale of the Securities as contemplated by the Purchase Agreement,
except such as have been obtained under the 1933 Act and such as may
be required under the state securities laws (as to which we express no
opinion).
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including
the Rule 430A Information and Rule 434 Information (if applicable),
(except for financial statements and schedules and other financial
data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no
statement), at the time the Prospectus was issued, at the time any
A-2
such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
A-3
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
(i) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to the Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus);
the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of
capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of Delaware.
(iii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement.
(iv) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(v) Each Subsidiary has been duly organized or formed and
is validly existing as a corporation or a limited partnership, as
the case may be, in good standing under the laws of its
jurisdiction of incorporation or organization, has corporate or
partnership power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or
limited partnership to transact business and is in good standing
in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding shares of capital
stock or partnership interests, as the case may be, of each such
B-1
Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and, to the best of my knowledge,
are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of
capital stock or partnership interests of any Subsidiary was
issued in violation of the preemptive or similar rights of any
security holder of such Subsidiary.
(vi) To the best of my knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a party,
or to which the property of the Company or any subsidiary is
subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(vii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus
that are not described as required.
(viii) To the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects.
(ix) To the best of my knowledge, neither the Company nor
any subsidiary is in violation of its charter or by-laws and no
default by the Company or any subsidiary exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(x) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated
in the Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by
the Company with its obligations under the Purchase Agreement do
not and will not, whether with or without the giving of notice or
B-2
lapse of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined in Section 1(a)(xi) of
the Purchase Agreement) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument,
known to me, to which the Company or any subsidiary is a party or
by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse
Effect).
(xi) The Rights under the Company's Shareholder Rights Plan
to which holders of the Securities will be entitled have been
duly authorized and, when the securities are issued by the
Company in accordance with the Purchase Agreement, validly
issued.
(xii) The FERC has issued an appropriate order or orders
with respect to the issuance and sale of the Securities in
accordance with the Purchase Agreement; to my knowledge, such
order or orders are in full force and effect; the issuance and
sale of the Securities are in conformity with the terms of such
order or orders; and no other authorization, approval or consent,
license, order, registration, qualification or decree of, any
court or any other governmental body or agency (including,
without limitation, in the jurisdictions of South Dakota,
Nebraska, North Dakota and Iowa) is legally required for the
issuance and sale of the Securities as contemplated by the
Purchase Agreement, except such as have been obtained under the
1933 Act and such as may be required under the state securities
laws (as to which I express no opinion).
(xiii) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which I
need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the 1933
Act or the 1934 Act, as applicable, and the rules and regulations
of the Commission thereunder.
Nothing has come to my attention that would lead me to believe
that the Registration Statement or any amendment thereto, including
the Rule 430A Information and Rule 434 Information (if applicable),
(except for financial statements and schedules and other financial
data included or incorporated by reference therein or omitted
therefrom, as to which I need make no statement), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
B-3
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which I need make no
statement), at the time the Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
B-4
Exhibit C
FORM OF LOCK UP FROM DIRECTORS AND OFFICERS PURSUANT TO SECTION 5(i)
October [__], 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Credit Suisse First Boston Corporation
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by NorthWestern Corporation
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
NorthWestern Corporation, a Delaware corporation (the "Company"),
understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Credit Suisse First Boston
Corporation propose(s) to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock,
par value $1.75 per share (the "Common Stock"). In recognition of the
benefit that such an offering will confer upon the undersigned as a
stockholder and an officer and/or director of the Company, and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a
period of 75 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Xxxxxxx
Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of or transfer any shares of the Company's Common
Stock or any securities convertible into or exchangeable or
exercisable for Common Stock, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect
to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
C-1
directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:________________________
Print Name:_______________________
C-2
