Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE MONTANA POWER COMPANY
(Exact name of registrant as specified in its charter)
MONTANA 81-0170530
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
Number)
40 East Broadway
Butte, Montana 59701-9394
(406) 723-5421
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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D. T. BERUBE, J. P. PEDERSON, M. E. ZIMMERMAN, Esq.
Chairman of Vice President Vice President and
the Board and Chief General Counsel
and Chief Financial Officer The Montana
Executive The Montana Power Company
Officer Power Company 40 East Broadway
The Montana 40 East Broadway Butte, Montana 59701
Power Company Butte, Montana 59701 (406) 723-5421
40 East Broadway (406) 723-5421
Butte, Montana 59701
(406) 723-5421
ROBERT G. SCHUUR, Esq.
Reid & Priest
40 West 57th Street
New York, New York 10019
(212) 603-2114
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
Approximate date of commencement of proposed sale to the
public: From time to time after this registration statement
becomes effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If the only securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [x]
CALCULATION OF REGISTRATION FEE
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Proposed
maximum Proposed
Title of aggregate maximunm Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered unit* price* fee
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Common Stock 85,000 $23.4375 $1,992,187.50 $687.00
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*ESTIMATED solely for the purpose of calculating the registration
fee.
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
PROSPECTUS
85,000 Shares
THE MONTANA POWER COMPANY
Common Stock
Up to 85,000 shares (the "Shares") of the Common Stock of
The Montana Power Company (the "Company") are being offered on
behalf of the selling shareholder named herein (the "Selling
Shareholder"). The Selling Shareholder has advised the Company
that, from time to time, it may sell all or a part of the Shares
on either the New York or the Pacific Stock Exchange, in the
over-the-counter market or otherwise, at prices and on terms then
prevailing or at prices relating to the then current market
price, or in negotiated transactions. The Company will not
receive any of the proceeds from the sale of the Shares.
Entech, Inc., a wholly owned subsidiary of Company, is bearing
all of the costs and expenses, estimated to be $13,000,
incurred in connection with registration of the Shares. See
"Selling Shareholder" and "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR BY ANY
STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is December 5, 1994.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES TO WHICH IT RELATES OR ANY OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR
ITS SUBSIDIARIES SINCE THE DATE HEREOF OR THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C., as
well as at the following regional offices: 13th Floor, Seven
World Trade Center, New York, New York, and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois. Copies of such material can be obtained from the
Public Reference Section of the Commission, Washington, D.C.
20549, at prescribed rates. The common stock is listed on the
New York and Pacific Stock Exchanges. Reports, proxy statements
and other information concerning the Company can be inspected at
such Exchanges.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this
Prospectus the following documents heretofore filed with the
Commission:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1993.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30,
1994.
3. The Company's Current Report on Form 8-K dated April
25, 1994.
All reports and other documents filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and prior to the termination of
this offering shall be deemed to be incorporated by reference in
this Prospectus and to be made a part hereof from the date of
filing of such reports and documents.
The Company hereby undertakes to provide, without charge, to
each person to whom a copy of this Prospectus shall have been
delivered, upon the written or oral request of such person, a
copy of any and all of the documents referred to above which have
been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents, unless such exhibits shall
have been specifically incorporated by reference into such
documents. Requests for such copies should be directed to
Manager, Investor Services, The Montana Power Company, 40 East
Broadway, Butte, Montana 59701-9394, telephone 406-723-5421.
THE COMPANY
The Montana Power Company is the issuer of the Shares. The
principal executive offices of the Company are located at 40 East
Broadway, Butte, Montana 59701-9394, and its telephone number is
406-723-5421.
DESCRIPTION OF COMMON STOCK
The following information is a summary of certain rights and
privileges of the common stock of the Company. The summary does
not purport to be complete. Reference is made to the Company's
Restated Articles of Incorporation and By-laws, which are
exhibits to the Registration Statement of which this Prospectus
constitutes a part, for complete statements. The following
statements are qualified in their entirety by such references.
Authorized and Outstanding Stock: The Company has
--------------------------------
125,000,000 authorized shares, without par value, divided into
5,000,000 shares of preferred stock and 120,000,000 shares of
common stock. On October 31, 1994, 1,919,589 shares of the
preferred stock and 53,369,670 shares of the common stock were
issued and outstanding. In addition, options to purchase 540,153
shares of common stock under the Long-Term Incentive Plan were
outstanding on that date.
The common stock is without par value and nonassessable. It
is listed on the New York and Pacific Stock Exchanges.
Voting Rights: Each holder of the preferred and common
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stock of the Company is entitled to vote cumulatively for the
election of Directors, and otherwise to one vote for each share
held. The Board of Directors has fifteen members, five of whom
are elected at each annual meeting for a term of three years. In
general, the presence of a majority of the outstanding shares of
the preferred and common stock will constitute a quorum at a
meeting of shareholders; and the affirmative vote of the majority
of the shares present shall be the act of the shareholders.
Montana law requires (1) class voting upon such matters as a
change in the number of authorized shares or in the relative
rights and preferences of a class or series or the creation of a
new class of stock having superior rights and preferences; and
(2) the approval by two-thirds of the outstanding shares of
preferred and common stock of a merger, consolidation or share
exchange, the sale of all or substantially all of the Company's
assets, or the voluntary dissolution of the Company. The
Company's Restated Articles of Incorporation require the
affirmative vote of a majority of the outstanding shares of the
common stock (1) to redeem the preferred stock of the $6 Series,
the $4.20 Series or the $2.15 Series, which consent has been
given with respect to the $2.15 Series; and (2) the affirmative
vote of a majority of the outstanding shares of preferred and
common stock to create a new class of stock, or for shareholder
amendment of the By-laws. The Restated Articles of Incorporation
also require the affirmative vote of two-thirds of the shares of
the preferred stock voting at a meeting at which a majority of
the shares of the preferred stock shall be present to (l) create
a class of stock or to create any security convertible into a
class of stock ranking prior to the preferred stock, or (2) to
change the express terms of the preferred stock in a manner
substantially prejudicial to the holders thereof.
Dividend Rights: Each series of the preferred stock is
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entitled, in preference to the common stock, to (a) cumulative
dividends at the annual rates established for that series and (b)
mandatory redemption payments if provided for that series. After
full provision for preferred stock dividends and mandatory
redemption payments, if any, the common stock is entitled to
dividends declared out of any remaining funds available therefor.
Liquidation Rights: In liquidation, the preferred stock is
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entitled, in preference to the common stock, to the amount per
share fixed by the Directors in the resolutions providing for the
issue of each particular series plus accumulated unpaid
dividends. Thereafter, the common stock is entitled to all
remaining assets.
Preemptive Rights: Holders of the common stock do not have
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preemptive rights.
Change of Control: The Company's Restated Articles of
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Incorporation include a fair price provision that is intended to
provide protection against coercive takeover tactics deemed by
the Board of Directors not to be in the best interests of all
shareholders. It provides that in the event of certain business
combinations, including mergers, consolidations,
recapitalizations, certain sales or hypothecations of assets,
liquidations and certain issuances of securities, involving a
person or entity who is or may become the beneficial owner of 10%
or more of the outstanding shares of the capital stock of the
Company entitled to vote generally in the election of Directors
(the "Voting Shares"), the amount of cash or other consideration
to be paid to holders of the common stock must be at least equal
to the higher of the highest price paid by the 10% shareholder in
connection with the acquisition of certain of its shares of
common stock or the highest quoted price of the common stock on
certain dates related to such acquisition. Similar provisions
apply to the acquisition of the preferred stock. The fair price
provision does not apply in the event that such a business
combination shall have been approved by either two-thirds of
certain directors who are not affiliated with the 10% shareholder
(the "Continuing Directors") or the holders of 70% of the Voting
Shares. In addition, unless a proposed business combination has
been approved by two-thirds of the Continuing Directors, certain
other requirements must be met, including the requirement that a
proxy or information statement describing the proposed business
combination be mailed to shareholders at least 30 days prior to
its consummation. The fair price provisions may not be amended
or repealed except by the vote of holders of at least 70% of the
Voting Shares unless the amendment or repeal is recommended by
two-thirds of the Continuing Directors.
Preferred Share Purchase Rights: The holders of the common
-------------------------------
stock have one preferred share purchase right (each a "Right")
for each share of common stock. Each Right, evidenced by and
traded with the shares of common stock, entitles the shareholder
to purchase one one-hundredth of a share of Participating
Preferred Shares, A Series, at an exercise price of $120.00,
subject to certain adjustments. The Rights will be exercisable
only if a person or group acquires 20% or more of the Company's
Voting Shares or announces a tender offer, the consummation of
which would result in the beneficial ownership by a person or
group of 20% or more of the Company's Voting Shares.
If any person or group acquires 20% or more of the
outstanding Voting Shares of the Company, each Right will entitle
its holder (other than such person or members of such group) to
purchase a number of shares of common stock or Participating
Preferred Shares, A Series, having a market value of twice the
Right's exercise price. If any person or group acquires between
20% and 50% of the outstanding Voting Shares of the Company, the
Board of Directors of the Company may, subject to requisite
regulatory approval, if any, require each outstanding Right to be
exchanged for one share of common stock or one one-hundredth of a
Participating Preferred Share, A Series (or assets in lieu
thereof).
In addition, after any person or group has acquired 20% or
more of the outstanding Voting Shares of the Company, the Company
may not consolidate or merge with, or sell 50% or more of its
assets or earning power to, any person or group, or engage in
certain "self-dealing" transactions with any person or group
owning 20% or more of the outstanding Voting Shares of the
Company, unless proper provision is made so that each Right would
thereafter entitle its holder to purchase a number of the
acquiring company's common shares having a market value at the
time of twice the Right's exercise price.
The Rights may be redeemed, at a redemption price of $.01
per Right, by the Board of Directors of the Company at any time
until any person or group has acquired 20% or more of the
outstanding Voting Shares of the Company. The Rights will expire
June 6, 1999.
Transfer Agents and Registrars: The Transfer Agents for the
------------------------------
common stock are the Company and First Chicago Trust Company of
New York. The Registrars are First Chicago Trust Company of New
York and First BankMontana, National Association, Butte, Montana.
SELLING SHAREHOLDER
The Selling Shareholder is The A. G. Andrikopoulos Trust
(the "Trust"), of which A. G. Andrikopoulos is the sole trustee.
The Trust acquired the Shares from Entech, Inc., a wholly owned
subsidiary of the Company. The Selling Shareholder has advised
the Company that it does not beneficially own any shares of the
common stock of the Company, other than the Shares, which
constitute less than .002% of the outstanding shares of such
common stock. Entech, Inc. has agreed to cause the Shares, at
its expense, to be registered for secondary offering by the
Trust. All commissions, fees and expenses in connection with the
sale of the Shares will be borne by the Selling Shareholder.
PLAN OF DISTRIBUTION
The Selling Shareholder has advised the Company that, from
time to time, it may sell all or a part of the Shares on either
the New York or the Pacific Stock Exchange, in the over-the-
counter market or otherwise, at prices and on terms then
prevailing or at prices relating to the then current market
price, or in negotiated transactions.
LEGAL MATTERS
The validity of the Share will be passed on for the Company
by Michael E. Zimmerman, Esq., General Counsel of the Company, 40
East Broadway, Butte, Montana, and by Reid & Priest, 40 West 57th
Street, New York, New York, Special Counsel to the Company. The
incorporation of the Company, its franchises, permits and
licenses and all other matters governed by Montana and Wyoming
law will be passed upon only by Mr. Zimmerman.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993, have been so
incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The statements made as to matters of law and legal
conclusions under (i) "Business-Utility Division-Regulation and
Rates," "Business-Environment" and "Properties-Entech-Coal
Properties," in the Company's Annual Report on Form 10-K,
incorporated herein by reference, and (ii) under "Description of
Common Stock" herein have been reviewed by Michael E. Zimmerman,
Esq., General Counsel of the Company, and are set forth therein
and herein upon the authority of such Counsel, as expert. As of
October 31, 1994, Mr. Zimmerman owned 2034 shares through the
Company's Deferred Savings and Employee Stock Ownership Plan and
had been granted options to purchase 9,600 additional shares at
the market price existing on the date of such grant. Mr.
Zimmerman's shares, including the underlying shares subject to
options granted to him, had a fair market value of approximately
$270,000 on that date.
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.+
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*Filing fee-Securities and Exchange Commission . . $ 687
Legal fees . . . . . . . . . . . . . . . . . . . . 10,000
Auditor's fees . . . . . . . . . . . . . . . . . . 1,500
Miscellaneous . . . . . . . . . . . . . . . . . . . 813
-------
Total expenses . . . . . . . . . . . . . . . . . $13,000
=======
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+To be borne by Entech, Inc.
*Actual, others estimated.
Item 15. Indemnification of Directors and Officers.
-----------------------------------------
The Restated Articles of Incorporation of the Company
provide for the indemnification of directors and officers to the
extent and in the manner provided in Sections 35-1-451 through
35-1-457, Montana Code Annotated, which Sections are as follows:
35-1-451. Definitions. As used in 35-1-451 through
35-1-459, the following definitions apply:
(1) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(2) (a) "Director" means an individual who is or was a
director of a corporation or an individual who, while a director
of a corporation, is or was serving at the corporation's request
as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the corporation's request if the director's duties to the
corporation include duties or services by him to the plan or to
participants in or beneficiaries of the plan.
(b) Director includes, unless the context requires
otherwise, the estate or personal representative of a
director.
(3) "Expenses" include attorneys' fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, or fine, including an excise tax assessed
with respect to an employee benefit plan, or to pay reasonable
expenses incurred with respect to a proceeding.
(5) (a) "Official capacity" means:
(i) when used with respect to a director, the office of
director in a corporation; or
(ii) when used with respect to an individual other than
a director, as contemplated in 35-1-457, the office in a
corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf
of the corporation.
(b) Official capacity does not include service for any
other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan, or other
enterprise.
(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(7) "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal.
35-1-452. Authority to indemnify.
(1) Except as provided in subsection (4), an individual
made a party to a proceeding because he is or was a director may
be indemnified against liability incurred in the proceeding if:
(a) he conducted himself in good faith;
(b) he reasonably believed:
(i) in the case of conduct in his official capacity with
the corporation, that his conduct was in the corporation's
best interests; and
(ii) in all other cases, that his conduct was at least
not opposed to the corporation's best interests; and
(c) in the case of any criminal procedure, he had no
reasonable cause to believe his conduct was unlawful.
(2) A director's conduct with respect to an employee
benefit plan for a purpose the director reasonably believed to be
in the interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirement of subsection
(I)(b)(ii).
(3) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, a determination that the director
did not meet the standard of conduct described in this section.
(4) A corporation may not indemnity a director under this
section:
(a) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to
the corporation; or
(b) in connection with any other proceeding charging
improper personal benefit to the director, whether or not
involving action in the director's official capacity, in which
the director was adjudged liable on the basis that personal
benefit was improperly received by the director.
(5) Indemnification permitted under this section in
connection with a proceeding by or in the right of the
corporation is limited to reasonable expenses incurred in
connection with the proceeding.
35-1-453. Mandatory indemnification. Unless limited by its
articles of incorporation, a corporation shall indemnify a
director who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which the director was a
party because he is or was a director of the corporation, against
reasonable expenses incurred by the director in connection with
the proceeding.
35-1-454. Advance for expenses.
(1) A corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(a) the director furnishes the corporation a written
affirmation of the director's good faith belief that the
director has met the standard of conduct described in
35-1-452;
(b) the director furnishes the corporation a written
undertaking, executed personally or on the director's behalf,
to repay the advance if it is ultimately determined that the
director did not meet the standard of conduct described in
35-1-452; and
(c) a determination is made that the facts then known to
those making the determination would not preclude
indemnification under 35-1-451 through 35-1-459.
(2) The undertaking required by subsection (I)(b) must be
an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial
ability to make repayment.
(3) Determinations and authorizations of payments under
this section must be made in the manner specified in 35-1-456.
35-1-455. Court-ordered indemnification. Unless a
corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may
apply for indemnification to the court conducting the proceeding
or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court
considers necessary, may order indemnification if it determines
that the director:
(1) is entitled to mandatory indemnification under
35-1-453, in which case the court shall also order the
corporation to pay the director's reasonable expenses incurred in
obtaining court-ordered indemnification; or
(2) is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the
director met the standard of conduct set forth in 35-1-452 or was
adjudged liable as described in 35-1-452(4). If the director was
adjudged liable as described in 35-1-452(4), the director's
indemnification is limited to reasonable expenses incurred.
35-1-456. Determination and authorization of
indemnification.
(1) A corporation may not indemnify a director under
35-1-452 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because the director has met
the standard of conduct set forth in 35-1-452.
(2) The determination must be made:
(a) by the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(b) if a quorum cannot be obtained under subsection (2)(a),
by majority vote of a committee designated by the board of
directors, in which designated directors who are parties may
participate, consisting solely of two or more directors not at
the time parties to the proceeding;
(c) by special legal counsel:
(i) selected by the board of directors or its committee
in the manner prescribed in subsection (2)(a) or (2)(b); or
(ii) if a quorum of the board of directors cannot be
obtained under subsection (2)(a) and a committee cannot be
designated under subsection (2)(b), selected by majority
vote of the full board of directors in which selected
directors who are parties may participate; or
(d) by the shareholders, but shares owned by or voted under
the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(3) Authorization of indemnification and evaluation as to
reasonableness of expenses must be made in the same manner as the
determination that indemnification is permissible, except that if
the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of
expenses must be made by those entitled under subsection (2)(c)
to select counsel.
35-1-457. Indemnification of officers, employees, and
agents. Unless a corporation's articles of incorporation provide
otherwise:
(1) an officer of the corporation who is not a director is
entitled to mandatory indemnification under 35-1-453 and is
entitled to apply for court-ordered indemnification under
35-1-455 to the same extent as to a director;
(2) the corporation may indemnify and advance expenses
under 35-1-451 through 35-1-459 to an officer, employee, or agent
of the corporation who is not a director to the same extent as to
a director; and
(3) a corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided by
its articles of incorporation, bylaws, general or specific action
of its board of directors, or contract.
* * * * * *
The bylaws of the Company further provide that the foregoing
right of indemnification shall not exclude or restrict any other
rights or actions which any director or officer may have, and
shall be available whether or not the director or officer
continues to hold such office at the time of incurring such
expense or discharging such liability.
The Company has insurance covering its expenditures which
might arise In connection with the lawful indemnification of its
directors and officers for their liabilities and expenses and
insuring officers and directors of the Company against certain
other liabilities and expenses.
Item 16. List of Exhibits.
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Incorporated by Reference
-------------------------
Exhibit Exhibit
No. Previous Filing Designation
------- --------------- -----------
3(a) - Restated Articles
of Incorporation,
as amended.
3(b) - By-laws, as 33-64576 4(b)
amended.
4(a) - Rights Agreement 33-42882 4(d)
dated as of June 6,
1989, between The
Montana Power
Company and First
Chicago Trust
Company of New
York, as Rights
Agent.
5(a) - Opinion of Michael
E. Zimmerman, Esq.
5(b) - Opinion of Reid &
Priest.
23(a) - Consent of Price
Waterhouse LLP.
23(b) - Consent of Michael
E. Zimmerman, Esq.
(included in
Exhibit 5(a)).
23(c) - Consent of Reid &
Priest (included in
Exhibit 5(b)).
24 - Power of Attorney
(See
page II-6).
99(a) - Seventeenth
Supplemental
Indenture to
Mortgage and Deed
of Trust.
99(b) - Eighteenth
Supplemental
Indenture to
Mortgage and Deed
of Trust.
Item 17. Undertakings.
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer of controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
POWER OF ATTORNEY
Each director and/or officer of the registrant whose
signature appears below hereby appoints each of the Agents for
Service named in this registration statement as his attorney-
in-fact to sign in his name and behalf, in any and all capacities
stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective
amendments, to this registration statement, and the registrant
hereby also appoints each such Agent for Service as its
attorney-in-fact with like authority to sign and file any such
amendments in its name and behalf.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Municipality of Butte-Silver Bow, and State of Montana, on
the 5th day of December, 1994.
THE MONTANA POWER COMPANY
By /s/ Daniel T. Berube
------------------------
D. T. Berube, Chairman
of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Daniel T. Berube Chairman of the Board, December 5, 1994
-------------------- Chief Executive Officer
D. T. Berube and Director
(Principal Executive
Officer)
/s/ J. P. Pederson Vice President, December 5, 1994
-------------------- Chief Financial
J. P. Pederson Officer and Director
(Principal Financial
and Accounting
Officer)
/s/ J. J. Burke Director December 5, 1994
--------------------
J. J. Burke
-------------------- Director
Alan F. Cain
/s/ R. D. Corrette Director December 5, 1994
--------------------
R. D. Corette
-------------------- Director
Kay Foster
/s/ R. P. Gannon Director December 5, 1994
--------------------
R. P. Gannon
-------------------- Director
B. D. Harris
-------------------- Director
Chase T. Hibbard
-------------------- Director
D. P. Lambros
/s/ Carl Lehrkind Director December 5, 1994
--------------------
Carl Lehrkind
/s/ J. P. Lucas Director December 5, 1994
--------------------
J. P. Lucas
/s/ A. K. Neill Director December 5, 1994
--------------------
A. K. Neill
/s/ G. H. Selover Director December 5, 1994
--------------------
G. H. Selover
-------------------- Director
N. E. Vosburg
<PAGE>
EXHIBIT INDEX
Exhibit
------- Page
3(a) - Restated Articles of Incorporation, as amended
5(a) - Opinion of Michael E. Zimmerman, Esq.
5(b) - Opinion of Reid & Priest
23(a) - Consent of Price Waterhouse LLP
99(a) - Seventeenth Supplemental Indenture to Mortgage
and Deed of Trust
99(b) - Eighteenth Supplemental Indenture to Mortgage
and Deed of Trust
Exhibit 3(a)
06/13/88
RESTATED ARTICLES OF INCORPORATION
OF
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 58 of the Montana
Business Corporation Act, the undersigned Corporation adopts the
following Restated Articles of Incorporation:
ARTICLE I. The name of the Corporation is The Montana Power
Company.
ARTICLE II. The objects and purposes for which The Montana
Power Company is formed are as follows:
To manufacture, produce, generate, store, acquire, purchase,
sell, control, use, dispose of, transmit, distribute and supply
electricity and electrical energy or any other power or force in
any form and for any purpose whatsoever;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease, or otherwise dispose of machinery, generators,
motors, plants, apparatus, devices and supplies of every kind
pertaining to or otherwise connected with the production, use,
transmission, distribution, regulation, control or application of
electricity or electrical energy;
To transform power generated by hydraulic or other plants
into electrical or other energy for any and all purposes;
To purchase, mine, produce, process, sell, distribute, use,
lease, or otherwise acquire, use, or dispose of coal, coal mines,
coal properties, machinery, appliances, and equipment of every
kind and nature whatsoever used or useful in connection with the
mining, production, transportation, use, sale or disposition of
coal, coal mines or coal properties;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease or otherwise dispose of all water rights, water
powers and water privileges;
To construct, purchase or otherwise acquire, hold, use,
operate, sell, lease or otherwise dispose of hydraulic, electric
and other works, plants, buildings, machinery, equipment, pipe
lines, distributing systems, transmission lines, dams, flumes,
ditches, canals, apparatus, devices or processes for use in
connection with such works;
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, transmit, distribute, deal in, use, manufacture, produce,
furnish and supply bus service, natural or artificial gas, light,
heat, ice, refrigeration, water and steam in any form and for any
purposes whatsoever, and any power or force or energy in any form
and for any purposes whatsoever;
To construct, purchase, lease or otherwise acquire, hold,
use, operate, sell, lease or otherwise dispose of natural gas,
manufactured gas, gas works, gas plants, gas transmission
systems, distributing systems, gas reserves, gas rights, gas
storage fields and facilities and all properties of any kind
whatsoever used or useful in the gas business, together with
licenses, permits, authorizations or consents of every kind and
nature whatsoever which may be used or useful in connection with
any or all of the foregoing;
To purchase or otherwise acquire, hold, use, operate, sell,
lease or otherwise dispose of machinery, engines, mechanical
devices and articles of every character and description;
To acquire, build, construct, equip, own and operate street
railways and other railway properties of all kinds and
descriptions and with any kind of motive power, and to sell and
lease the same, but the powers in this paragraph set forth shall
be exercised only in connection with and as part of the other
objects and purposes referred to in this Article;
To purchase or otherwise acquire, hold, use, operate, sell,
lease, or otherwise dispose of such real and personal estate,
property rights, rights-of-way, easements, privileges, grants,
consents and franchises, individually or in association with
others, as may be necessary for or appropriate to or useful in
connection with the business and purposes of the company;
To apply for, purchase or otherwise acquire, and to hold,
use, own, operate and to sell, assign or otherwise dispose of,
and to grant or receive licenses in respect of or otherwise to
turn to account any and all inventions, improvements, patents,
patent rights, processes, trademarks and trade names, secured by
or issued under the laws of the United States of America or of
any other government or country;
To acquire by purchase or otherwise, and to hold, invest in,
sell, or otherwise dispose of the shares, bonds, debentures and
other evidences of indebtedness of any persons, firms,
associations and corporations, including the Corporation created
by these Articles; and when owner of any such shares, bonds,
debentures, securities or other obligations, to exercise all the
rights, powers and privileges of ownership, including the right
to vote thereon for any and all purposes; to aid in any manner
any corporation whose shares, bonds, debentures or other
obligations are owned or held by it, or in the shares, bonds,
debentures, securities or other obligations of which it is in any
way interested; and to guarantee the shares, bonds, debentures,
securities or other act or thing for the preservation,
protection, improvement or enhancement of the value of any such
shares, bonds, debentures, securities or obligations;
To construct, operate and maintain facilities for the
service of water to the public;
Without limitation to hold, purchase, mortgage and convey
real and personal property of every kind and description in any
state or territory of the United States or elsewhere;
In general, to do all such things as are incidental or
conducive to the accomplishment of the foregoing purposes, and to
engage in any and all lawful business whatever necessary or
convenient therefor, with all rights, privileges and powers now
or hereafter granted by the State of Montana to corporations.
ARTICLE III. Unless and until changed in the manner
provided by law, the address of the registered office of the
Corporation in the State of Montana is 40 East Broadway, Butte,
and the name of its registered agent at such address is
T. 0. McElwain.
ARTICLE IV. The period of duration of this Corporation
shall be perpetual.
ARTICLE V. The number of Directors of this Corporation
shall be fixed by the Bylaws, but shall be not less than
three (3) nor more than eighteen (18). In the absence of a Bylaw
fixing the number of directors, the number of Directors shall be
eleven (11).
ARTICLE VI. No Director of the Corporation shall be
personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a Director;
provided, however, that this Article VI shall not eliminate or
limit the liability of a Director to the extent provided by
applicable law (a) for a breach of the Director's duty of loyalty
to the Corporation or its shareholders, (b) for acts or omissions
that constitute willful misconduct, recklessness, or a knowing
violation of law, (c) under 35-1-409 of the Montana Code
Annotated, (d) for a transaction from which the Director derives
an improper personal benefit, or (e) for any act or omission
occurring prior to the effective date of this Article VI. No
amendment to or repeal of this Article VI shall apply to or have
any effect on the liability or alleged liability of any Director
of the Corporation for or with respect to any acts or omissions
of such Director occurring prior to such amendment or repeal.
ARTICLE VII. The aggregate number of shares which the
Corporation has authority to issue is 65,000,000 shares without
nominal or par value, consisting of 5,000,000 Preferred shares
and 60,000,000 Common shares.
At the date hereof, the aggregate number of shares, issued
and unissued, itemized by class and series, if any, within each
class is as follows:
Issued Unissued Total
Common 23,750,936 36,249,064 60,000,000
Preferred:
$6.00 Series 159,589
$4.20 Series 60,000
$2.15 Series 1,200,000
Undesignated 3,580,411 5,000,000
(a) The Preferred shares shall be issued from time to time
in one or more series. The shares of any such series shall bear
such distinctive serial designation as shall be stated and
expressed in the resolution or resolutions providing for the
issue of such shares from time to time adopted by the Board of
Directors; and in such resolution or resolutions providing for
the issue of shares of each particular series, the Board of
Directors is expressly empowered to fix:
1. The dividend rate for the particular series, and
the date or dates from which dividends on shares of such
series shall be cumulative;
2. The terms on which the shares of the particular
series may be redeemed;
3. The amount which shall be paid to the holders of
shares of the particular series in the case of dissolution
or any distribution of assets; and
4. The terms or amount of any sinking fund provided
for the purchase or redemption of the shares of the
particular series.
All of the Preferred shares of any one series shall be
identical in all respects, except as to the dates from which
dividends thereon shall be cumulative; and all of the Preferred
shares shall be of equal rank, regardless of series, and shall be
identical in all respects except as herein otherwise provided.
(b) The holders of Preferred shares at the time outstanding
shall be entitled to receive dividends when and as declared by
the Board of Directors, out of the surplus or net profits of the
Corporation, payable in the case of each series at the annual
dividend rate for that particular series theretofore fixed by the
Board of Directors as hereinbefore provided. Such dividends on
Preferred shares shall be cumulative from the date or dates
theretofore fixed for the purpose by the Board of Directors, as
hereinbefore provided, so that if dividends on all outstanding
shares of each particular series of the Preferred shares, at the
annual dividend rate fixed by the Board of Directors, as
hereinbefore provided, shall not have been paid or declared and
set apart for payment for all past dividend periods and for the
current dividend periods, the deficiency shall be fully paid or
dividends equal thereto declared and set apart for payment at
said rate, but without interest, before any dividends on the
Common shares shall be paid or declared and set apart for
payment. No dividends shall be paid or declared and set apart
for payment on any series of Preferred shares for any particular
dividend period unless at the same time all unpaid dividends, if
any, on all the outstanding Preferred shares for all dividend
periods terminating prior to or concurrently with the termination
of such particular dividend period shall be paid or declared and
set apart for payment thereon. Dividends may be paid upon the
Common shares only when dividends at the respective annual
dividend rates fixed by the Board of Directors, as hereinbefore
provided, upon all the outstanding Preferred shares shall have
been paid or declared and set apart for payment for all past
dividend periods and for the then current dividend periods, but
whenever there shall have been paid or declared and set apart for
payment all such dividend upon the Preferred shares, as
aforesaid, then dividends upon the Common shares may be declared
payable then or thereafter out of any surplus or net profits then
remaining. The holders of shares of each series of the Preferred
shares shall not be entitled to receive any dividends thereon
other than the aforesaid dividends at the annual dividend rate
for the particular series fixed by the Board of Directors, as
hereinbefore provided.
Dividends may also be declared and paid in cash out of
depletion reserves in the manner and to the extent provided by
law.
(c) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation or any distribution of
capital, whether voluntary or involuntary, the holders of
Preferred shares at the time outstanding shall be entitled to be
paid the amount fixed by the Board of Directors, as hereinbefore
provided, before any distribution or payment shall be made to the
holders of Common shares. The holders of the Preferred shares
shall not be entitled to receive any distributive amounts upon
the liquidation, dissolution or winding up of the affairs of the
Corporation or upon any distribution of capital other than the
distributive amounts at the rates for the respective series fixed
by the Board of Directors, as hereinbefore provided, but, after
such payment to the holders of the Preferred shares, the
remaining assets and funds of the Corporation (subject to the
rights of any class of shares hereafter authorized) shall be
divided and distributed among the holders of the Common shares
alone according to their respective shares.
(d) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any of the provisions hereof.
(e) Except as hereinafter otherwise provided, each holder
of record of Preferred or Common shares shall be entitled to one
vote for each share of stock held by him, except that holders of
Preferred shares shall not be entitled to notice of or to vote at
any annual or special meeting of shareholders called for the
purpose of redeeming the whole or any part of the Preferred
shares at the time outstanding, and except that at all elections
for Directors, each holder of Preferred or Common shares shall be
entitled to as many votes as shall equal the number of his
Preferred or Common shares multiplied by the number of Directors
to be elected, and may cast all of such votes in person or by
proxy for a single Director, or may distribute them among the
number to be voted for, or any two or more of them as he may see
fit.
(f) No holder of Preferred shares shall be entitled as
such, as a matter of right, to subscribe for or purchase any part
of any new or additional issue of stock of any class whatsoever,
or of securities convertible into stock of any class whatsoever,
whether now or hereafter authorized or whether issued for cash,
for a consideration other than cash or by way or dividend.
(g) Upon any issue for money or other consideration of any
shares of the Corporation that may be authorized from time to
time, no holder of shares, irrespective of the kind of such
shares, shall have any preemptive or other right to subscribe
for, purchase or receive any proportionate or other share of the
shares so issued, but the Board of Directors may dispose of all
or any portion of such shares as and when it may determine free
of any such rights, whether by offering the same to shareholders
or by sale of other disposition, as said Board may deem
advisable.
(h) The Corporation may redeem the whole or any part of the
Preferred shares at the time outstanding, or the whole or any
part of any series thereof, at any time or from time to time,
upon the terms fixed by the Board of Directors as hereinbefore
provided for the redemption of the Preferred shares to be
redeemed; provided, however, that no Preferred shares of the
$6 Series, the $4.20 Series or the $2.15 Series shall be redeemed
without either the written consent, or the affirmative vote at
any annual meeting or at any special meeting called for that
purpose, of the holders of record of a majority of the Common
shares issued and outstanding. If less than all of the shares of
any particular series of the Preferred shares are to be redeemed,
the shares of such series to be redeemed shall be selected in
such manner as the Board of Directors or the Executive Committee
shall determine. The Board of Directors by the vote or consent
of two-thirds (2/3) of all of the members thereof shall have the
power to select for redemption any particular share or shares of
the Preferred shares to be redeemed, designating the share or
shares of such Preferred shares so selected by the number or
numbers appearing on the then outstanding certificate or
certificates representing the shares so selected. Notice of
intention of the Corporation to redeem Preferred shares and of
the date and place of redemption shall be mailed not less than
thirty (30) days (or in case the Board of Directors shall have
fixed a longer period as hereinbefore provided, then not less
than such longer period) before the date of redemption to each
holder of record of the shares to be redeemed, at his last known
post office address as shown by the records of the Corporation.
The holders of any Preferred shares so called for redemption
shall, on the redemption date specified in such notice, cease to
be shareholders of the Corporation with respect to such shares
and all rights with respect to such Preferred shares so called
for redemption shall, on such redemption date, cease and
terminate except only the right of the holders thereof to receive
the redemption price therefor without interest.
At any time after such notice of redemption of any Preferred
shares has been mailed or otherwise given, the Corporation may
deposit, or may cause its nominee to deposit, the aggregate
redemption price (or the portion thereof not already paid in the
redemption of shares so to be redeemed) with any bank or trust
company in the State of Montana having a capital and undivided
surplus of not less than $500,000 named in a notice mailed to
holders of the shares called for redemption and represented by
certificates not theretofore surrendered, payable in the proper
amounts to the respective orders of the record holders of such
shares to be redeemed on endorsement, if required, and surrender
of their certificates for said shares, and from and after the
making of such deposit said holders shall have no interest in or
claim against the Corporation or its nominee, with respect to
said shares, but shall be entitled only to receive said moneys
from said bank or trust company, without interest, on
endorsement, if required, and surrender of their certificates as
aforesaid. The Corporation shall be entitled to receive from any
such bank or trust company the interest, if any, allowed by said
bank or trust company on any moneys deposited as in this
paragraph provided, and the holders of any shares so redeemed
shall have no claim to any such interest. Any moneys so
deposited and remaining unclaimed at the end of six years from
the date fixed for redemption shall, if thereafter requested by
resolution of the Board of Directors or of the Executive
Committee, be repaid to the Corporation, and in the event of such
repayment to the Corporation, such holders of record of the
shares so redeemed as shall not have made claim against such
moneys prior to such repayment to the Corporation, shall be
deemed to be unsecured creditors of the Corporation for an amount
equivalent to the amount deposited as above-stated for the
redemption of such shares and so repaid to the Corporation, but
shall in no event be entitled to any interest. If such deposit
shall be made by the nominee of the Corporation, as aforesaid,
such nominee shall upon such deposit become the owner of the
shares with respect to which such deposit is made, and
certificates for shares may be issued to such nominee in evidence
of such ownership.
The Corporation may require any shares so called for
redemption to be delivered, duly assigned to a nominee of the
Corporation upon payment by such nominee in the manner
hereinabove provided of all amounts payable on such redemption
with respect to said shares. Any shares delivered to or acquired
by the nominee of the Corporation under the provisions hereof
shall be converted into or exchanged for such other securities of
the Corporation and on such terms as on or before such delivery
or acquisition may have been provided by the Corporation in
accordance with the next three paragraphs hereof.
The Corporation from time to time may resell any of its own
shares purchased or otherwise acquired by it as herein provided
for at such price as may be fixed by its Board of Directors or
Executive Committee.
The Corporation, in order to acquire funds with which to
redeem any Preferred shares of any class, may issue and sell
shares of any class then authorized but unissued, bonds, notes,
evidences of indebtedness or other securities.
The Board of Directors of the Corporation may at any time
authorize the conversion or exchange of the whole or any
particular share or shares of the outstanding Preferred shares of
any class, with the consent of the holder or holders thereof,
into or for shares of any other class at the time of such consent
authorized but unissued and may fix the terms and conditions upon
which such conversion or exchange may be made; provided that
without the consent of the holders of record of two-thirds (2/3)
of the Common shares outstanding given at a meeting of the
holders of the Common shares called and held as provided by the
Bylaws or given in writing without a meeting, the Board of
Directors shall not authorize the conversion or exchange of any
Preferred shares of any class into or for Common shares or
authorize the conversion or exchange of any Preferred shares of
any class into or for Preferred shares of any other class, if by
such conversion or exchange the amount which the holders of the
shares so converted or exchanged would be entitled to receive
either as dividends or shares in distribution of assets in
preference to the Common shares would be increased.
The Board of Directors shall have full power and authority,
subject to the limitations and provisions herein contained, to
prescribe the manner in which and the terms and conditions upon
which Preferred shares shall be redeemed from time to time.
(i) Except as herein otherwise provided, upon the vote of a
majority of all of the Directors of the Corporation and of the
holders of record of a majority of the total number of shares
then issued and outstanding and entitled to vote on such question
as herein stipulated, irrespective of class (or if the vote of a
larger number or different proportion of shares is required by
the laws of the State of Montana, notwithstanding the above
agreement of the shareholders of the Corporation to the contrary,
then upon the vote of the larger number or different proportion
of shares so required), the Corporation may from time to time
create or authorize one or more other classes of shares with such
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications as may be determined
by said vote, which may be the same as or different from the
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications of the classes of
shares of the Corporation then authorized. Any vote authorizing
the creation of a new class of shares may provide that all moneys
payable by the Corporation with respect to any class of shares
thereby authorized shall be paid in the money of any foreign
country named therein or designated by the Board of Directors
pursuant to authority therein granted. Any such vote may
authorize any shares of any class then authorized but unissued to
be issued as shares of such new class or classes.
So long as any of the Preferred shares are outstanding, the
Corporation shall not, without the consent (given by a vote at a
meeting called for that purpose) of the holders of at least two-
thirds of the total number of the Preferred shares then
outstanding.
1. Create or authorize any new shares ranking prior
to the Preferred shares as to dividends, in liquidation,
dissolution, winding up or distribution, or create or
authorize any security convertible into such shares; or
2. Amend, alter, change or repeal any of the express
terms of the Preferred shares then outstanding in a manner
substantially prejudicial to the holders thereof.
(j) All shares of the Corporation without nominal or par
value, whether authorized by these Articles or by subsequent
increase of capital or pursuant to any amendment hereof, may be
issued from time to time for such consideration as may be fixed
from time to time by the Board of Directors, and authority to the
Board of Directors so to fix such consideration is hereby granted
by the shareholders; and any and all shares so issued, the full
consideration for which shall have been paid or delivered, shall
be conclusively deemed to be fully paid and nonassessable and the
holders thereof shall not be liable to the Corporation or its
creditors in respect thereof.
At the time of the issue of any shares without nominal or
par value, the Board of Directors may determine conclusively in
the exercise of their reasonable discretion what capital
valuation shall be placed upon any property (other than money)
acquired by the Corporation in payment upon original issue of any
of its shares without nominal or par value.
(k) The Corporation may issue securities, notes, bonds,
debentures or other obligations convertible into shares of any
class, in the amounts and on such terms as may be provided by
resolution of the Board of Directors; provided, however, that the
shares issued upon conversion thereof shall not have prior or
superior rights and preferences to the shares of any class
outstanding at the time the convertible securities, notes, bonds,
debentures or other obligations are issued, and the issuance of
such shares shall not substantially prejudice the holders of
shares of any class outstanding at the time such convertible
securities, notes, bonds, debentures or other obligations are
issued.
1. The Corporation may issue notes, bonds, debentures
and other obligations of the Corporation in such amounts and
upon such terms and conditions as may be authorized by
resolution of the Board of Directors.
ARTICLE VIII. Unless the laws of the State of Montana
otherwise provide, any action which at any meeting of
shareholders requires the vote, assent or consent of two-
thirds (2/3) in interest of all the shareholders or of two-
thirds (2/3) in interest of each class of shareholders having
voting powers, or which requires such assent or consent in
writing to be filed, may be taken upon the assent of and the
assent given and filed of two-thirds (2/3) in interest of the
shareholders present and voting at such meeting in person or by
proxy; provided that where assent by classes is required, such
assent shall be given by two-thirds (2/3) in interest of each
class so present and voting.
ARTICLE IX. The Board of Directors may appoint from the
Directors an Executive Committee, of which a majority shall
constitute a quorum, and to such extent as shall be provided in
the Bylaws, such Executive Committee shall have and may exercise
all of the delegable powers of the Board of Directors, including
power to cause the seal of the Corporation to be affixed to all
papers that may require it.
The power of appointment of committees (other than the
Executive Committee) and of Officers (other than the President,
the Vice Presidents, the Secretary and the Treasurer) and other
persons employed by the Company may to the extent permitted by
the Bylaws be delegated by the Board of Directors to the
President or to the Executive Committee.
The Board of Directors shall have the power from time to
time to fix and to determine and to vary the amount of the
working capital of the Corporation, and to direct and determine
the use and disposition of any surplus or net profits over and
above the capital paid in.
The Board of Directors from time to time shall determine
whether and to what extent, and at what times and places and
under what conditions and regulations, the accounts and books of
the Corporation, or any of them, shall be open to the inspection
of the shareholders, and no shareholder shall have any right to
inspect any account or book or document of the Corporation,
except as conferred by Statute or authorized by the Board of
Directors, or by a resolution of the shareholders.
ARTICLE X. The shareholders may alter or amend the Bylaws
of the Corporation by a majority vote (or if required by the laws
of the State of Montana, a larger number or different proportion
of the shares outstanding) of all the outstanding shares of the
Corporation entitled to vote given at any meeting duly held as
provided in the Bylaws, the notice of which includes notice of
the proposed alterations or amendment. The Board of Directors
may also alter or amend the Bylaws at any time by affirmative
vote of a majority (or if required by the laws of the State of
Montana, a larger number or different proportion of the members
of the Board of Directors) of the Board of Directors given at a
duly convened meeting of the Board of Directors, the notice of
which includes notice of the proposed alterations or amendments,
subject to the power of shareholders to change or repeal such
Bylaws; provided that the Board of Directors shall not make or
alter any Bylaw fixing their qualifications or changing the
number of shares required to constitute a quorum for a
shareholders' meeting.
ARTICLE XI. A. In addition to any affirmative vote
required by law or under any other provision of these Restated
Articles of Incorporation, and except as otherwise expressly
provided in paragraph B., a Business Combination (as hereinafter
defined) shall require the affirmative vote of the holders of at
least 70 percent of the outstanding shares of Capital Stock (as
hereinafter defined) of the Corporation entitled to vote
generally in the election of Directors ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
B. The provisions of paragraph A. of this Article shall
not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative
vote as is required by law and any other provision of these
Restated Articles of Incorporation, if all of the conditions
specified in subparagraphs 1. or 2. shall have been satisfied:
1. The Business Combination shall have been approved
by two-thirds (whether such approval is made prior to or
subsequent to the acquisition of beneficial ownership of the
Voting Shares that caused the 10% Shareholder [as
hereinafter defined] to become a 10% Shareholder) of the
Continuing Directors (as hereinafter defined); or
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of
Common shares in such Business Combination shall be at least
equal to the highest amount determined under clauses (i) and
(ii) below:
(i) (if applicable) The highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the 10% Shareholder for any Common shares in connection
with the acquisition by the 10% Shareholder of
beneficial ownership of Common shares (A) within the
two-year period immediately prior to the first public
announcement of the proposed Business Combination (the
"Announcement Date") or (B) in the transaction in which
it became a 10% Shareholder, whichever is higher; and
(ii) The Fair Market Value per Common share on the
Announcement Date or on the date on which the
10% Shareholder became a 10% Shareholder (such latter
date referred to in this Article as the "Determination
Date"), whichever is higher.
All per share prices and Fair Market Values
shall be adjusted to reflect any intervening stock
splits, stock dividends and reverse stock splits.
(b) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any class or
series of outstanding Capital Stock, other than Common
shares, shall be at least equal to the highest amount
determined under clauses (i), (ii) and (iii) below:
(i) (if applicable) The highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the 10% Shareholder for any share of such class or
series of Capital Stock in connection with the
acquisition by the 10% Shareholder of beneficial
ownership of shares of such class or series of Capital
Stock (A) within the two-year period immediately prior
to the Announcement Date or (B) in the transaction in
which it became a 10% Shareholder, whichever is higher.
(ii) The Fair Market Value per share of such class
or series of Capital Stock on the Announcement Date or
on the Determination Date, whichever is higher; and
(iii) (if applicable) The highest preferential
amount per share to which the holders of shares of such
class or series of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation,
regardless of whether the Business Combination to be
consummated constitutes such an event.
All per share prices and Fair Market Values
shall be adjusted for intervening stock splits, stock
dividends and reverse stock splits.
The provisions of this subparagraph (b) shall
be required to be met with respect to every class or
series of outstanding Capital Stock, whether or not the
10% Shareholder has previously acquired beneficial
ownership of any shares of a particular class or series
of Capital Stock.
(c) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock
(including Common shares) shall be cash or in the same form
as previously has been paid by or on behalf of the
10% Shareholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class
or series of Capital Stock. If the consideration so paid
for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series
of Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares
of such class or series of Capital Stock previously acquired
by the 10% Shareholder.
(d) After such 10% Shareholder has become a
10% Shareholder and prior to the consummation of such
Business Combination:
(i) except as approved by two-thirds of the
Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) in
accordance with the terms of the outstanding Preferred
shares;
(ii) there shall have been (A) no reduction in the
annual rate of dividend paid on the Common shares
(except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Shares), except
as shall have been approved by two-thirds of the
Continuing Directors, and (B) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding Common shares, unless the failure so to
increase such annual rate shall have been approved by
two-thirds of the Continuing Directors; and
(iii) such 10% Shareholder shall have not become
the beneficial owner of any additional Voting Shares
except as part of the transaction which results in such
10% Shareholder becoming a 10% Shareholder and except
in a transaction that, after giving effect thereto,
would not result in any increase in the
10% Shareholder's percentage beneficial ownership of
any class or series of Capital Stock.
(e) After such 10% Shareholder has become a
10% Shareholder, such 10% Shareholder shall not have:
(i) received the benefit, directly or indirectly
(except proportionately as a shareholder), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or
otherwise; or
(ii) made any major change in the Corporation's
business or equity capital structure without the
approval of two-thirds of the Continuing Directors.
(f) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
have been mailed to holders of outstanding Voting Shares of
the Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions). The proxy
or information statement shall contain on the first page
thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Combination
that the Continuing Directors, or any of them, may choose to
make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking
firm selected by a majority of the Continuing Directors as
to the fairness (or lack thereof) of the terms of the
Business Combination from a financial point of view to the
holders of the outstanding Voting Shares other than the
10% Shareholder and its Affiliates or Associates (as
hereinafter defined).
C. For the purposes of this Article:
1. The term "Business Combination" shall mean:
(a) any merger, consolidation or share exchanges of the
Corporation or any Subsidiary (as hereinafter defined) with:
(i) any 10% Shareholder, or
(ii) any other company (whether or not such other
company is a 10% Shareholder) which is, or after such
merger or consolidation would be, an Affiliate or
Associate of a 10% Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a
series of transactions) with or for the benefit of any
10% Shareholder or any Affiliate or Associate of any
10% Shareholder involving any assets, securities or
commitments of the Corporation or any Subsidiary having an
aggregate Fair Market Value and/or involving aggregate
commitments of five million dollars ($5,000,000) or more;
(c) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of five million
dollars ($5,000,000) or more;
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder;
(e) any reclassification of any securities of the
Corporation (including any reverse stock split),
recapitalization or reorganization of the Corporation,
merger or consolidation of the Corporation with any
Subsidiary, or any other transaction (whether or not with or
otherwise involving a 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder) that has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
that is beneficially owned by any 10% Shareholder or any
Affiliate or Associate of any 10% Shareholder; or
(f) any other transaction or series of transactions
that is similar in purpose or effect to, or any agreement,
contract or other arrangement providing for any one or more
of the actions specified in the foregoing subparagraphs (a)
through (e).
2. A "person" shall mean any individual, firm, corporation
or other entity and shall include any group comprised of any
person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital
Stock.
3. "10% Shareholder" shall mean, in respect of any
Business Combination, any person or Affiliate or Associate (other
than the Corporation or any Subsidiary and other than any profit
sharing, employee stock ownership or other employee benefit plan
of the Corporation or any Subsidiary or any trustee or fiduciary
of any such plan when acting in such capacity) who or which, as
of the record date for the determination of shareholders entitled
to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction:
(a) is the beneficial owner, directly or indirectly,
of not less than ten percent of the Voting Shares; or
(b) is an Affiliate or Associate of the Corporation
and at any time within three (3) years prior thereto was the
beneficial owner, directly or indirectly, of not less than
ten percent of the then outstanding Voting Shares; or
(c) is an assignee or has otherwise succeeded to
control of any Voting Shares of the Corporation which were
at any time within three (3) years prior thereto
beneficially owned by any 10% Shareholder, if such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
4. A person shall be the "beneficial owner" of any Voting
Shares:
(a) which such person or any of its Affiliates and
Associates beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or
Associates has, directly or indirectly
(i) the right to acquire (whether such right is
exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion
rights, exchange rights, warrants, options, or
otherwise, or
(ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any Voting
Shares.
5. Voting Shares shall include shares deemed beneficially
owned through application of subparagraph 4 above but shall not
include any Voting Shares which may be issuable pursuant to any
agreement, arrangement or understanding or upon exercise of
conversion rights, warrants, options, or otherwise.
6. "Continuing Director" shall mean any member of the
Board of Directors who is not an Affiliate or Associate or
representative of the 10% Shareholder and who was a member of the
Board of Directors of the Corporation prior to the date as of
which any 10% Shareholder acquired in excess of five percent of
the then outstanding Voting Shares, or a person designated
(before his initial election as a Director) as a Continuing
Director by a majority of the then Continuing Directors.
7. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash
to be received" shall mean Common shares and/or the shares of any
other class of outstanding Voting Shares of the Corporation
retained by the holders of such shares.
8. "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule l2b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1986.
9. "Subsidiary" means any company of which a majority of
any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the
definition of 10% Shareholder set forth in subparagraph 3 of this
paragraph C., the term "Subsidiary" shall mean only a company of
which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
10. The term "Capital Stock" shall mean all capital stock
of this Corporation authorized to be issued from time to time
under these Articles of Incorporation as amended from time to
time.
11. The term "Fair Market Value" means:
(a) in the case of shares, the highest closing sale
price during the 30-day period immediately preceding the
date in question of such a share on the New York Stock
Exchange; and
(b) in the case of property other than cash or shares,
the fair market value of such property on the date in
question as determined by a majority of Continuing Directors
then on the Board.
D. A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article on
the basis of information known to them:
1. The number of Voting Shares beneficially owned by
any person,
2. Whether a person is an Affiliate or Associate of
another,
3. Whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in
subparagraph 4 of paragraph C. of this Article,
4. Whether the assets which are the subject of any
Business Combination have an aggregate Fair Market Value of
five million dollars ($5,000,000) or more, and
5. Any other matters with respect to which a
determination is required under this Article. Any such
determinations made in good faith shall be binding and
conclusive on all parties.
E. Consideration for shares to be paid to any shareholder
pursuant to this Article shall be the minimum consideration
payable to the shareholder and shall not limit a shareholder's
right under any provision of law or otherwise to receive greater
consideration for any shares of the Corporation.
F. The fact that any Business Combination complies with
the provisions of subparagraph B.2. of this Article shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner
the Board, or any member thereof, with respect to evaluations of
or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding any other provisions of these Restated
Articles of Incorporation or the Bylaws of the Corporation any
amendment, alteration, change or repeal of this Article shall
require the affirmative vote of the holders of at least
70 percent of the then outstanding Voting Shares; provided that
this paragraph G. shall not apply to, and such 70 percent vote
shall not be required for, any amendment, alteration, change or
repeal recommended to the shareholders by two-thirds of the
Continuing Directors.
H. Nothing contained in this Article shall be construed to
relieve any 10% Shareholder from any fiduciary obligation imposed
by law.
ARTICLE XII. These Restated Articles of Incorporation
correctly set forth without change the corresponding provisions
of the Articles of Incorporation as heretofore amended and hereby
amended, and supersede the original articles of incorporation and
all amendments thereto.
Dated June 10, 1988
/s/ John Carl
-------------------------------
Vice President
/s/ Patricia L. du Toit
-------------------------------
Assistant Secretary
<PAGE>
ARTICLES OF AMENDMENT AND CERTIFICATE
OF ADOPTION OF RESTATED ARTICLES OF INCORPORATION
OF
THE MONTANA POWER COMPANY
Pursuant to Sections 35-1-209 and 35-1-213, M.C.A., the
undersigned corporation hereby makes the following statement:
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: The annexed Restated Articles of Incorporation of
THE MONTANA POWER COMPANY were adopted by the shareholders on
May 10, 1988.
THIRD: The number of shares outstanding, and the number of
shares of each class entitled to vote thereon was:
Class No. of Shares
Common 23,750,936
Preferred 1,419,589
Total 24,170,525
FOURTH: (a) The number of shares voted for and against the
Restatement of the Articles of Incorporation was:
No. Voted Against
No. Voted for Restated Restated Articles
Class Articles of Incorporation of Incorporation
All Classes 19,901,320 755,210
No class of shares is entitled to vote as a class on the
Restatement of the Articles of Incorporation.
(b) The number of shares voted for and against the
Amendment to the Articles of Incorporation adding a new
Article VI, relating to the liability of Directors, and
renumbering the existing Article VI and those following was:
No. Voted for No. Voted Against
Class the Amendment the Amendment
All Classes 19,901,320 755,210
No class of shares is entitled to vote as a class on the
Amendment to the Articles of Incorporation.
FIFTH: Neither the Restated Articles of Incorporation nor
the Amendment to the Articles of Incorporation provide for an
exchange, reclassification or cancellation of issued shares.
DATED: June 10, 1988
THE MONTANA POWER COMPANY
By /s/ John Carl
---------------------------
Vice President
(SEAL)
By /s/ P. O. McElwain
---------------------------
Assistant Secretary
STATE OF MONTANA )
) ss.
County of Silver Bow )
I, the undersigned Notary Public, do hereby certify that on
this 10th day of June 1988, personally appeared before me John
Carl, who, being by me first duly sworn, declared that he is a
Vice President of THE MONTANA POWER COMPANY, that he signed the
foregoing document as Vice President of the Corporation, and that
the statements therein contained are true.
/s/ Jessica G. Eyde
------------------------------
Notary Public for the State of
(SEAL) Montana
Residing at Butte, Montana
My Commission expires 10-29-88.
<PAGE>
ARTICLES OF AMENDMENT
to the
of
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 35-1-209, MCA, the
undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation.
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: The following amendment to its Articles of
Incorporation was adopted by the shareholders of the corporation
on May 8, 1990, in the manner prescribed by the Montana Business
Corporation Act.
The first paragraph of Article VI of the Restated Articles
of Incorporation of the corporation is amended to read as
follows:
"The aggregate number of shares which the corporation
has authority to issue is 125,000,000 shares without nominal
or par value, consisting of 5,000,000 Preferred shares and
120,000,000 Common shares."
THIRD: The number of Common shares of the corporation
outstanding at the time of such adoption was 49,613,012 Common
shares having no par value; and the number of such shares
entitled to vote thereon was 49,456,153. The number of Preferred
shares of the corporation outstanding at the time of such
adoption was 1,419,589 Preferred shares having no par value; and
the number of such shares entitled to vote thereon was 1,419,589.
FOURTH: The vote to increase the number of authorized
Common shares was as follows:
For Against
Common 39,015,717 2,267,098
Preferred 1,074,899 54,306
Total 40,090,616 2,321,404
DATED: May 15, 1990
THE MONTANA POWER COMPANY
/s/ John Carl
--------------------------
Vice President
(SEAL)
/s/ P. O. McElwain
--------------------------
Assistant Secretary
STATE OF MONTANA )
)ss.
County of Silver Bow )
I, the undersigned Notary Public, do hereby certify that on
this 15th day of May 1990, personally appeared before me John
Carl, who, being by me first duly sworn, declared that he is a
Vice President of THE MONTANA POWER COMPANY, that he signed the
foregoing document as Vice President of the Corporation, and that
the statements therein contained are true.
/s/ Jessica G. Eyde
--------------------------------------
Notary Public for the State of Montana
(SEAL) Residing at Butte, Montana
My Commission expires 10-29-91.
<PAGE>
ARTICLES OF AMENDMENT
to the
RESTATED ARTICLES OF INCORPORATION
of
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 35-1-619, Montana Code
Annotated, the undersigned corporation adopts the following
Articles of Amendment to its Restated Articles of Incorporation.
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: On August 24, 1993 and October 26, 1993, the Board
of Directors of the corporation established and designated a
Fourth Series of Preferred Stock, determining with respect to
such Series the dividend rate, periods and payment dates, the
redemption prices and the amount to be paid in the event of
liquidation, dissolution or winding up of the affairs of the
corporation or any distribution of its capital, and authorized
the amendment to the Restated Articles of Incorporation set forth
below under THIRD.
THIRD: The text of the amendment so authorized is as
follows, and will be inserted as a new, undesignated subparagraph
at the end of Section (a) of Article VII of the Restated Articles
of Incorporation:
Fourth Series
The Fourth Series of Preferred Stock of the Company
(the "Fourth Series"), consists of 500,000 shares designated
as "Preferred Stock, $6.875 Series," and has the relative
rights, preferences and limitations as set forth in these
Restated Articles of Incorporation, and as follows:
(A) The dividend rate for the Fourth Series shall
be $6.875 per share per annum; quarterly periods ending
January 31, April 30, July 31, and October 31 of each
year hereby are established as the regular dividend
periods for the shares of such Series and dividends for
such periods shall be payable, in arrears, on
February 1, May 1, August 1, and November 1 of each
year; provided, however, the first dividend shall be
payable, in arrears, on February 1, 1994, for the
period from the date of the original issue through
January 31, 1994; and dividends on shares of the Fourth
Series shall be cumulative from the date of original
issue;
(B) The shares of the Fourth Series shall not be
redeemable prior to November 1, 2003; the shares shall be
redeemable, at the option of the Company, in whole or in
part, at any time upon not less than thirty (30) days'
notice, on and after November 1, 2003, at the redemption
prices per share set forth below, plus, in each case,
accumulated but unpaid dividends to the date of redemption:
Redemption Period Price
November 1, 2003 to October 31, 2004 $103.438
November 1, 2004 to October 31, 2005 $103.094
November 1, 2005 to October 31, 2006 $102.750
November 1, 2006 to October 31, 2007 $102.406
November 1, 2007 to October 31, 2008 $102.063
November 1, 2008 to October 31, 2009 $101.719
November 1, 2009 to October 31, 2010 $101.375
November 1, 2010 to October 31, 2011 $101.031
November 1, 2011 to October 31, 2012 $100.688
November 1, 2012 to October 31, 2013 $100.344
November 1, 2013 and thereafter $100.000
(C) The amount which shall be paid to the holders of
shares of the Fourth Series in the event of any liquidation,
dissolution or winding up of the affairs of the Company or
any distribution of its capital, whether voluntary or
involuntary, before any distribution or payment shall be
made to the holders of Common Stock, shall be $100 per
share, plus accumulated but unpaid dividends.
FOURTH: Shareholder approval of these Articles of
Amendment is not required.
DATED: October 26, 1993.
THE MONTANA POWER COMPANY
/s/ P. K. Merrill
----------------------------
Vice President and Secretary
(SEAL)
/s/ R. M. Ralph
----------------------------
Assistant Secretary
STATE OF MONTANA )
) ss.
County of Silver Bow )
I, the undersigned, Notary Public, do hereby certify that on
this 26th day of October, 1993, personally appeared before me P.
K. Merrell, who, being by me first duy sworn, declared that she
is Vice President and Secretary of THE MONTANA POWER COMPANY,
that she signed the foregoing document as Vice President and
Secretary of the corporation, and that the statements therein
contained are true.
(SEAL)
/s/ Jessica G. Eyde
--------------------------------------
Notary Public for the State of Montana
Residing at Butte, Montana
My Commission expires 10/29/94.
Exhibit 5(a)
THE MONTANA POWER COMPANY
40 East Broadway
Butte, MT 59701
December 5, 1994
The Montana Power Company
40 East Broadway
Butte, MT 59701
Ladies and Gentlemen:
With respect to the Registration Statement to be filed with the
Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, on or about the date hereof, contemplating
the sale of 85,000 shares of its Common Stock (the "Stock"), I am
of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Montana and
qualified to do business in the States of Idaho and Wyoming.
2. The Stock has been legally and validly issued and is fully
paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement, and the use of my name, as counsel,
therein.
Very truly yours,
/s/ Michael E. Zimmerman
MICHAEL E. ZIMMERMAN
Vice President and General Counsel
Exhibit 5(b)
REID & PRIEST
40 West 57th Street
New York, New York 10019
(212) 603-2114
December 5, 1994
The Montana Power Company
40 East Broadway
Butte, Montana 59701
Dear Sirs:
With respect to the Registration Statement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, on or about the date hereof,
contemplating the sale of 85,000 shares of its Common Stock (the
"Stock"), we are of the opinion that:
1. The Company is a corporation duly organized and
validly existing under the laws of the State of Montana and
qualified to do business in the States of Idaho and Wyoming.
2. The Stock has been legally and validly issued and
is fully paid and nonassessable.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts on the laws of any other
state. In giving this opinion, we have relied as to matters of
Montana law upon the opinion addressed to you, of even date
herewith, of Michael E. Zimmerman, Esq., Vice President and
General Counsel of the Company and a member of the Bar of the
State of Montana.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement, and the use of our name,
as counsel, therein.
Very truly yours,
/s/ Reid & Priest
REID & PRIEST
Exhibit 23(a)
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-3 of our report dated February 10, 1994 which appears on
page 41 of The Montana Power Company's Annual Report on Form 10-K
for the year ended December 31, 1993. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Portland, Oregon
December 5, 1994
Exhibit 99(a)
THE MONTANA POWER COMPANY
TO
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
(formerly Guaranty Trust Company of New York)
AND
P.J. CROWLEY
(successor to Arthur E. Burke, Karl R. Henrich,
H. H. Gould and R. Amundsen),
As Trustees under The Montana
Power Company's Mortgage and
Deed of Trust, dated as of
October 1, 1945
SEVENTEENTH SUPPLEMENTAL INDENTURE
Providing, among other things, for
First Mortgage Bonds, 5.90% Series due 2023
Dated as of December 1, 1993
<PAGE>
SEVENTEENTH SUPPLEMENTAL INDENTURE
SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of
December 1, 1993, between THE MONTANA POWER COMPANY, a corpo-
ration of the State of Montana (successor by merger to The
Montana Power Company, a corporation of the State of New Jersey),
whose post office address is 40 East Broadway, Butte, Montana
59701 (hereinafter sometimes called the Company), and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, a corporation of the State of
New York (formerly Guaranty Trust Company of New York), whose
post office address is 60 Wall Street, New York, N.Y. 10260
(hereinafter sometimes called the Corporate Trustee) and P.J.
CROWLEY (successor to Arthur E. Burke, Karl R. Henrich, H. H.
Gould and R. Amundsen), whose post office address is 22 Wayne
Street, Montvale, N.J. 07645 (said P.J. Crowley being hereinafter
sometimes called the Co-Trustee, and the Corporate Trustee and
the Co-Trustee being hereinafter together sometimes called the
Trustees), as Trustees under the Mortgage and Deed of Trust,
dated as of October 1, 1945 (hereinafter called the Mortgage and,
together with any indentures supplemental thereto, hereinafter
sometimes called the Indenture), which Mortgage was executed and
delivered by The Montana Power Company, a corporation of the
State of New Jersey (hereinafter sometimes called the Company--
New Jersey) to Guaranty Trust Company of New York and Arthur E.
Burke, to secure the payment of bonds issued or to be issued
under and in accordance with the provisions of the Mortgage,
reference to which Mortgage is hereby made, this instrument
(hereinafter called the Seventeenth Supplemental Indenture) being
supplemental thereto;
WHEREAS, the Mortgage was or is to be recorded in the
official records of various counties in the states of Montana and
Wyoming, which counties include or will include all counties in
which this Seventeenth Supplemental Indenture is to be recorded;
and
WHEREAS, by the Mortgage, the Company--New Jersey
covenanted that it would execute and deliver such supplemental
indenture or indentures and such further instruments and do such
further acts as might be necessary or proper to carry out more
effectually the purposes of the Indenture and to make subject to
the lien of the Indenture any property thereafter acquired, made
or constructed and intended to be subject to the lien thereof;
and
WHEREAS, the Company--New Jersey executed and delivered
to the Trustees its First Supplemental Indenture, dated as of May
1, 1954 (hereinafter called the First Supplemental Indenture);
its Second Supplemental Indenture, dated as of April 1, 1959
(hereinafter called the Second Supplemental Indenture); and
WHEREAS, the Company--New Jersey was merged into the
Company on November 30, 1961, and to evidence the succession of
the Company to the Company--New Jersey and the assumption by the
Company of the covenants and conditions of the Company--New
Jersey in the bonds and in the Indenture contained and to enable
the Company to have and exercise the powers and rights of the
Company--New Jersey under the Indenture in accordance with the
terms thereof, the Company executed and delivered to the Trustees
its Third Supplemental Indenture, dated as of November 30, 1961
(hereinafter called the Third Supplemental Indenture); and
WHEREAS, the Company executed and delivered to the
Trustees its Fourth Supplemental Indenture, dated as of April 1,
1970 (hereinafter called the Fourth Supplemental Indenture); its
Fifth Supplemental Indenture, dated as of April 1, 1971
(hereinafter called the Fifth Supplemental Indenture); its Sixth
Supplemental Indenture, dated as of March 1, 1974 (hereinafter
called the Sixth Supplemental Indenture); its Seventh
Supplemental Indenture, dated as of December 1, 1974 (hereinafter
called the Seventh Supplemental Indenture); its Eighth
Supplemental Indenture, dated as of July 1, 1975 (hereinafter
called the Eighth Supplemental Indenture); its Ninth Supplement-
al Indenture, dated as of December 1, 1975 (hereinafter called
the Ninth Supplemental Indenture); its Tenth Supplemental
Indenture, dated as of January 1, 1979 (hereinafter called the
Tenth Supplemental Indenture); its Eleventh Supplemental
Indenture, dated as of October 1, 1983 (hereinafter called the
Eleventh Supplemental Indenture); its Twelfth Supplemental
Indenture, dated as of January 1, 1984 (hereinafter called the
Twelfth Supplemental Indenture); its Thirteenth Supplemental
Indenture, dated as of December 1, 1991 (hereinafter called the
Thirteenth Supplemental Indenture); its Fourteenth Supplemental
Indenture, dated as of January 1, 1993 (hereinafter called the
Fourteenth Supplemental Indenture); its Fifteenth Supplemental
Indenture, dated as of March 1, 1993 (hereinafter called the
Fifteenth Supplemental Indenture) and its Sixteenth Supplemental
Indenture, dated as of May 1, 1993 (hereinafter called the
Sixteenth Supplemental Indenture); and
WHEREAS, the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth and Sixteenth Supplemental In-
dentures were or are to be recorded in the official records of
various counties in the states of Montana and Wyoming, which
counties include or will include all counties in which this
Seventeenth Supplemental Indenture is to be recorded; and
WHEREAS, an instrument dated March 15, 1955 was
executed by the Company--New Jersey appointing Karl R. Henrich as
Co-Trustee in succession to said Arthur E. Burke, resigned, under
the Mortgage and by Karl R. Henrich accepting the appointment as
Co-Trustee under the Mortgage in succession to said Arthur E.
Burke, which instrument was recorded in various counties in the
states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 29, 1962 was executed
by the Company appointing H. H. Gould as Co-Trustee in succession
to said Karl R. Henrich, resigned, under the Mortgage and by H.
H. Gould accepting the appointment as Co-Trustee under the
Mortgage in succession to said Karl R. Henrich, which instrument
was recorded in various counties in the states of Montana, Idaho
and Wyoming; and
WHEREAS, an instrument dated June 22, 1973 was executed
by the Company appointing R. Amundsen as Co-Trustee in succession
to said H. H. Gould, resigned, under the Mortgage and by R.
Amundsen accepting the appointment as Co-Trustee under the
Mortgage in succession to said H. H. Gould, which instrument was
recorded in various counties in the states of Montana, Idaho and
Wyoming; and
WHEREAS, an instrument dated July 1, 1986 was executed
by the Company appointing P.J. Crowley as Co-Trustee in
succession to said R. Amundsen, resigned, under the Mortgage and
by P.J. Crowley accepting the appointment as Co-Trustee under the
Mortgage in succession to said R. Amundsen, which instrument was
recorded in various counties in the states of Montana, Idaho and
Wyoming; and
WHEREAS, in addition to the property described in the
Mortgage, the Company has acquired certain other property, rights
and interests in property; and
WHEREAS, the Company--New Jersey or the Company has
heretofore issued, in accordance with the provisions of the
Mortgage, the following series of First Mortgage Bonds:
Principal
Principal Amount Amount
Series Issued Outstanding
2-7/8% Series due 1975 . . . . . . . $ 40,000,000 NONE
3-1/8% Series due 1984 . . . . . . . 6,000,000 NONE
4-1/2% Series due 1989 . . . . . . . 15,000,000 NONE
8-1/4% Series due 1974 . . . . . . . 30,000,000 NONE
7-1/2% Series due 2001 . . . . . . . 25,000,000 $25,000,000
8-5/8% Series due 2004 . . . . . . . 60,000,000 NONE
8-3/4% Series due 1981 . . . . . . . 30,000,000 NONE
9.60% Series due 2005. . . . . . . . 35,000,000 NONE
9.70% Series due 2005. . . . . . . . 65,000,000 NONE
9-7/8% Series due 2009 . . . . . . . 50,000,000 NONE
11-3/4% Series due 1993. . . . . . . 75,000,000 NONE
10/10-1/8% Series due 2004/2014. . . 80,000,000 80,000,000
8-1/8% Series due 2014 . . . . . . . 41,200,000 NONE
7.70% Series due 1999. . . . . . . . 55,000,000 55,000,000
8-1/4% Series due 2007 . . . . . . . 55,000,000 55,000,000
8.95% Series due 2022. . . . . . . . 50,000,000 50,000,000
Secured Medium-Term Notes. . . . . . 43,000,000 43,000,000
7% Series due 2005 . . . . . . . . . 50,000,000 50,000,000
6-1/8% Series due 2023 . . . . . . . 90,205,000 90,205,000
which bonds are also hereinafter sometimes called bonds of the
First through Nineteenth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the
form of each series of bonds (other than the First Series) issued
thereunder and of the coupons to be attached to coupon bonds of
such series shall be established by Resolution of the Board of
Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof,
and may also contain such provisions not inconsistent with the
provisions of the Indenture as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Indenture; and
WHEREAS, Section 120 of the Mortgage provides, among
other things, that any power, privilege or right expressly or
impliedly reserved to or in any way conferred upon the Company by
any provision of the Indenture, whether such power, privilege or
right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations or restrictions for the bene-
fit of any one or more series of bonds issued thereunder, or the
Company may cure any ambiguity contained therein or in any
supplemental indenture or may (in lieu of establishment by
Resolution as provided in Section 8 of the Mortgage) establish
the terms and provisions of any series of bonds other than said
First Series, by an instrument in writing executed and
acknowledged by the Company in such manner as would be necessary
to entitle a conveyance of real estate to record in all of the
states in which any property at the time subject to the lien of
the Indenture shall be situated; and
WHEREAS, the Company now desires to create a new series
of bonds and (pursuant to the provisions of Section 120 of the
Mortgage) to add to its covenants and agreements contained in the
Mortgage certain other covenants and agreements to be observed by
it and to alter and amend in certain respects the covenants and
provisions contained in the Indenture; and
WHEREAS, the execution and delivery by the Company of
this Seventeenth Supplemental Indenture, and the terms of the
bonds of the Twentieth Series, hereinafter referred to, have been
duly authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors;
NOW THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of $1.00 to it duly
paid by the Trustees at or before the ensealing and delivery of
these presents, the receipt whereof is hereby acknowledged, and
in further evidence of assurance of the estate, title and rights
of the Trustees and in order further to secure the payment of
both the principal of and interest and premium, if any, on the
bonds from time to time issued under the Indenture, according to
their tenor and effect and the performance of all the provisions
of the Indenture (including any modification made as in the
Mortgage provided) and of said bonds, and to confirm the lien of
the Mortgage on certain after-acquired property, hereby grants,
bargains, sells, releases, conveys, assigns, transfers,
mortgages, pledges, sets over and confirms (subject, however, to
Excepted Encumbrances as defined in Section 6 of the Mortgage)
unto P.J. Crowley and (to the extent of its legal capacity to
hold the same for the purposes hereof) to Morgan Guaranty Trust
Company of New York, as Trustees under the Indenture, and to
their successor or successors in said trust, and to said Trustees
and their successors and assigns forever, all property, real,
personal and mixed, of the kind or nature specifically mentioned
in the Mortgage, as heretofore supplemented, or of any other kind
or nature (whether or not located in the State of Montana),
acquired by the Company after the date of the execution and
delivery of the Mortgage, as heretofore supplemented (except any
herein or in the Mortgage, as heretofore supplemented, expressly
excepted), now owned or, subject to the provisions of subsection
(I) of Section 87 of the Mortgage, hereafter acquired by the
Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing
or of any general description contained in the Indenture) all
lands, power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, dams, dam sites, aqueducts,
and all other rights or means for appropriating, conveying, stor-
ing and supplying water; all rights of way and roads; all plants
for the generation of electricity by steam, water and/or other
power; all power houses, gas plants, street lighting systems,
standards and other equipment incidental thereto, telephone,
radio and television systems, air-conditioning systems and
equipment incidental thereto, water works, water systems, steam
heat and hot water plants, substations, lines, service and supply
systems, bridges, culverts, tracks, ice or refrigeration plants
and equipment, offices, buildings and other structures and the
equipment thereof; all machinery, engines, boilers, dynamos,
electric, gas and other machines, regulators, meters,
transformers, generators, motors, electrical, gas and mechanical
appliances, conduits, cables, water, steam heat, gas or other
pipes, gas mains and pipes, service pipes, fittings, valves and
connections, pole and transmission lines, wires, cables, tools,
implements, apparatus, furniture and chattels; all franchises,
consents or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for
any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection
therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same and (except as herein or in the Mortgage, as heretofore
supplemented, expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind
or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the
Mortgage, as heretofore supplemented, described.
TOGETHER with all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 57 of
the Mortgage) the tolls, rents, revenues, issues, earnings,
income, product and profits thereof, and all the estate, right,
title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and
to the aforesaid property and franchises and every part and
parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of subsection (I) of Section 87 of the Mortgage, all
the property, rights, and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Mortgage, as heretofore supplemented, expressly excepted,
shall be and are as fully granted and conveyed hereby and as
fully embraced within the lien hereof and the lien of the Mort-
gage, as supplemented, as if such property, rights and franchises
were now owned by the Company and were specifically described
herein and conveyed hereby.
PROVIDED that the following are not and are not
intended to be now or hereafter granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged, hy-
pothecated, affected, pledged, set over or confirmed hereunder
and are hereby expressly excepted from the lien and operation of
the Mortgage, as supplemented, namely: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not specifically pledged, paid, deposited, delivered or held
under the Mortgage, as supplemented, or covenanted so to be; (2)
merchandise, equipment, apparatus, materials or supplies held for
the purpose of sale or other disposition in the usual course of
business; fuel, oil and similar materials and supplies consumable
in the operation of any of the properties of the Company; all
aircraft, tractors, rolling stock, trolley coaches, buses, motor
coaches, automobiles, motor trucks, and other vehicles and
materials and supplies held for the purpose of repairing or
replacing (in whole or part) any of the same; (3) bills, notes
and accounts receivable, judgments, demands and chooses in
action, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage, as supplemented, or
covenanted so to be; the Company's contractual rights or other
interest in or with respect to tires not owned by the Company;
(4) the last day of the term of any lease or leasehold which may
be or become subject to the lien of the Mortgage, as
supplemented; (5) electric energy, gas, steam, water, ice, and
other materials or products generated, manufactured, produced,
purchased or acquired by the Company for sale, distribution or
use in the ordinary course of its business; all timber, minerals,
mineral rights and royalties and all Gas and Oil Production Prop-
erty, as defined in Section 4 of the Mortgage; (6) the Company's
franchise to be a corporation; and (7) any property heretofore
released pursuant to any provisions of the Indenture and not
heretofore disposed of by the Company; provided, however, that
the property and rights expressly excepted from the lien and
operation of the Mortgage, as supplemented, in the above
subdivisions (2) and (3) shall (to the extent permitted by law)
cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XIII of the Mortgage
by reason of the occurrence of a Default as defined in Section 65
thereof.
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto P.J.
CROWLEY and (to the extent of its legal capacity to hold the same
for the purposes hereof) unto MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Trustees, and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon
the same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
supplemented, this Seventeenth Supplemental Indenture being
supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage, as supplemented, shall affect and apply to the
property hereinbefore described and conveyed and to the estate,
rights, obligations and duties of the Company and the Trustees
and the beneficiaries of the trust with respect to said property,
and to the Trustees and their successors as Trustees of said
property in the same manner and with the same effect as if the
said property had been owned at the time of the execution of the
Mortgage, and had been specifically and at length described in
and conveyed to the Trustees, by the Mortgage as a part of the
property therein stated to be conveyed.
The Company further covenants and agrees to and with
the Trustees and their successors in said trust under the
Indenture, as follows:
ARTICLE I
Twentieth Series of Bonds
Section 1. There shall be a series of bonds designated
"5.90% Series due 2023" (herein sometimes referred to as the
"Twentieth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section
specified. Bonds of the Twentieth Series shall mature on
December 1, 2023, and shall be issued as fully registered bonds
in denominations of Five Thousand Dollars and in any multiple or
multiples of Five Thousand Dollars; they shall
bear interest at the rate of 5.90% per annum, payable
semiannually on June 1 and December 1 of each year; the principal
of and interest on each said bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts. Bonds of the Twentieth Series shall be dated as
in Section 10 of the Mortgage provided.
At the option of the registered owner, any bonds of the
Twentieth Series, upon surrender thereof for cancellation at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, shall be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized
denominations.
Bonds of the Twentieth Series shall not be transferable
except to any successor trustee under the Indenture of Trust,
dated as of December 1, 1993, of the City of Forsyth, Rosebud
County, Montana (hereinafter referred to as the "Forsyth
Indenture"), relating to the City of Forsyth, Rosebud County,
Montana, Pollution Control Revenue Refunding Bonds (The Montana
Power Company Colstrip Project) Series 1993B (hereinafter
referred to as the "Forsyth Bonds"), any such transfer to be made
(subject to the provisions of Section 12 of the Mortgage) at the
office or agency of the Company in the Borough of Manhattan, The
City of New York.
Upon any exchange or transfer of bonds of the Twentieth
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any
exchange or transfer of bonds of the Twentieth Series.
Upon the delivery of this Seventeenth Supplemental
Indenture, bonds of the Twentieth Series in the aggregate
principal amount of $80,000,000 are to be issued forthwith and
will be Outstanding in addition to $25,000,000 aggregate
principal amount of bonds of the Fifth series, $80,000,000
aggregate principal amount of bonds of the Twelfth Series,
$55,000,000 aggregate principal amount of bonds of the Fourteenth
Series, $55,000,000 aggregate principal amount of bonds of the
Fifteenth Series, $50,000,000 aggregate principal amount of bonds
of the Sixteenth Series, $43,000,000 aggregate principal amount
of bonds of the Seventeenth Series, $50,000,000 aggregate
principal amount of bonds of the Eighteenth Series and
$90,205,000 aggregate principal amount of bonds of the Nineteenth
Series Outstanding at the date of delivery of this Seventeenth
Supplemental Indenture.
(I) Upon the redemption, in whole or in part, of the
Forsyth Bonds, pursuant to Section 3.01(c) of the Forsyth
Indenture, bonds of the Twentieth Series shall be redeemed in
whole or in like part, as the case may be. The Corporate Trustee
may conclusively presume that no redemption of bonds of the
Twentieth Series is required pursuant to this subdivision (I)
unless and until it shall have received a written notice from the
trustee under the Forsyth Indenture (hereinafter referred to as
the "Forsyth Trustee"), signed by its President, a Vice President
or a Trust Officer, stating that Forsyth Bonds are to be redeemed
pursuant to Section 3.01(c) of the Forsyth Indenture (said notice
is hereinafter referred to as the "Forsyth Redemption Demand").
The Forsyth Redemption Demand also shall state the date on which
the Forsyth Bonds are to be redeemed, the principal amount of
bonds of the Twentieth Series to be redeemed and that such amount
is equal to the principal amount of the Forsyth Bonds to be
redeemed and shall instruct the Corporate Trustee to call the
stated principal amount of bonds of the Twentieth Series for
redemption on the date on which the Forsyth Bonds are to be
redeemed. The Forsyth Redemption Demand shall also contain a
waiver of notice of such redemption by the Forsyth Trustee, as
holder of all bonds of the Twentieth Series then Outstanding.
The Corporate Trustee may conclusively presume the statements
contained in the Forsyth Redemption Demand to be correct.
Redemption of bonds of the Twentieth Series shall be at the
principal amount of the bonds to be redeemed together with the
applicable accrued interest to the redemption date, and such
amount shall become due and payable on the redemption date. The
Company hereby covenants that, if a Forsyth Redemption Demand
shall be delivered to the Corporate Trustee, the Company, subject
to subdivision (II) of this Article I, will deposit, on or before
the redemption date, with the Corporate Trustee, in accordance
with Article X of the Mortgage, an amount in cash sufficient to
redeem the bonds of the Twentieth Series so called for
redemption.
(II) All bonds of the Twentieth Series shall be issued
and delivered to, and registered in the name of, the Forsyth
Trustee (or, subject to Section 6.11 of the Forsyth Indenture,
its nominee) in order to provide for the payment of the Company's
obligation to make certain payments under the Loan Agreement,
dated as of December 1, 1993, between the Company and the City of
Forsyth, Rosebud County, Montana, relating to the Forsyth Bonds.
The obligation of the Company to make payments with respect to
the principal of and interest on bonds of the Twentieth Series
shall be fully or partially, as the case may be, satisfied and
discharged to the extent that, at the time that any such payment
shall be due, there shall be in the Bond Fund established
pursuant to the Forsyth Indenture sufficient available funds to
fully or partially pay the then due principal of and interest on
the Forsyth Bonds. The Corporate Trustee may conclusively
presume that the obligation of the Company to make payments with
respect to the principal of and interest on bonds of the
Twentieth Series shall have been fully satisfied and discharged
unless and until the Corporate Trustee shall have received a
written notice from the Forsyth Trustee, signed by its President,
a Vice President or a Trust Officer, stating (i) that there are
not sufficient available funds in such Bond Fund to make timely
payment of the principal of or interest on the Forsyth Bonds, and
(ii) the amount of funds required to make such payment. The
Corporate Trustee may conclusively presume the statements
contained in any such notice to be correct.
<PAGE>
ARTICLE II
Miscellaneous Provisions
Section 2. Subject to the amendments provided for in
this Seventeenth Supplemental Indenture, the terms defined in the
Mortgage, as heretofore supplemented, shall, for all purposes of
this Seventeenth Supplemental Indenture, have the meanings spe-
cified in the Mortgage, as heretofore supplemented.
Section 3. The Trustees hereby accept the trusts
herein declared, provided, created or supplemented and agree to
perform the same upon the terms and conditions herein and in the
Mortgage, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Seventeenth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply
to and form part of this Seventeenth Supplemental Indenture with
the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as
may be appropriate to make the same conform to the provisions of
this Seventeenth Supplemental Indenture.
Section 4. Whenever in this Seventeenth Supplemental
Indenture any of the parties hereto is named or referred to, this
shall, subject to the provisions of Articles XVI and XVII of the
Mortgage, be deemed to include the successors and assigns of such
party, and all the covenants and agreements in this Seventeenth
Supplemental Indenture contained by or on behalf of the Company,
or by or on behalf of the Trustees shall, subject as aforesaid,
bind and inure to the respective benefits of the respective suc-
cessors and assigns of such parties, whether so expressed or not.
Section 5. Nothing in this Seventeenth Supplemental
Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Indenture, any right,
remedy or claim under or by reason of this Seventeenth
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Seventeenth
Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Indenture.
Section 6. This Seventeenth Supplemental Indenture
shall be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
<PAGE>
IN WITNESS WHEREOF, THE MONTANA POWER COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its
Vice Presidents, and its corporate seal to be attested by its
Secretary or one of its Assistant Secretaries for and in its
behalf, and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, in token
of its acceptance of the trust hereby created, has caused its
corporate name to be hereunto affixed, and this instrument to be
signed and sealed by one of its Vice Presidents or one of its
Trust Officers, and its corporate seal to be attested by one of
its Assistant Secretaries, and P.J. Crowley, for all like
purposes, has hereunto set his hand and affixed his seal, as of
the day and year first above written.
THE MONTANA POWER COMPANY
By: /s/ J. P. Pederson
Vice President
Attest:
/s/ Patricia L. du Toit
Assistant Secretary
Executed, sealed and delivered by
THE MONTANA POWER COMPANY in the presence of:
/s/ Robert T. Hopewell
/s/ Jessica G. Eyde
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Corporate Trustee
BY: /s/ Catherine F. Donohue
Trust Officer
Attest:
/s/ Diana M. Hils
Assistant Secretary
/s/ P. J. Crowley
P.J. CROWLEY, as Co-
Trustee
Executed, sealed and delivered
by MORGAN GUARANTY TRUST COMPANY OF NEW
YORK and P.J. CROWLEY in the presence of:
/s/ Allison M. Leuchick
/s/ Susan F. Donnelly
<PAGE>
STATE OF MONTANA )
) ss.:
COUNTY OF SILVER BOW )
On this 10th day of December, in the year 1993, before
me, Susan Hawke, a Notary Public in and for the State of Montana,
personally came and appeared J. P. Pederson, to me known and
known to me to be a Vice President of THE MONTANA POWER COMPANY,
the corporation that executed the within instrument, and ac-
knowledged to me that such corporation executed the same, and
being by me duly sworn, did depose and say that he resides at
1829 Utah Avenue, Butte, Montana; that he is a Vice President of
THE MONTANA POWER COMPANY, the corporation described in and which
executed the within and above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name
thereto by like order.
IN WITNESS WHEREOF, I have hereunto subscribed my name
and affixed my official seal the day and year in this certificate
first above written.
/s/ Susan Hawke
Susan Hawke
Notary Public, State of Montana
Residing at Butte, Montana
My Commission Expires June 1, 1996
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 14th day of December, 1993, before me, Thomas
J. Courtney, a Notary Public in and for the State of New York,
personally came and appeared Catherine F. Donohue, to me known
and known to me to be a Trust Officer of MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, the corporation that executed the within
instrument, and acknowledged to me that such corporation executed
the same, and, being by me duly sworn, did depose and say that
she resides at Bronxville, New York; that she is a Trust Officer
of MORGAN GUARANTY TRUST COMPANY OF NEW YORK, the corporation de-
scribed in and which executed the within and above instrument;
that she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that she signed her name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name
and affixed my official seal the day and year in this certificate
first above written.
/s/ Thomas J. Courtney
Thomas J. Courtney
Notary Public, State of New York
No. 24-4996233
Qualified in Kings County
Commission Expires May 11, 1994
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 14th day of December, in the year 1993, before
me, Thomas J. Courtney, a Notary Public in and for the State of
New York, personally came and appeared P.J. CROWLEY, known to me
to be one of the persons described in and who executed the within
and foregoing instrument, and whose name is subscribed thereto,
and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name
and affixed my official seal the day and year in this certificate
first above written.
/s/ Thomas J. Courtney
Thomas J. Courtney
Notary Public, State of New York
No. 24-4996233
Qualified in Kings County
Commission Expires May 11, 1994
Exhibit 99(b)
THE MONTANA POWER COMPANY
TO
THE BANK OF NEW YORK
AND
W. T. CUNNINGHAM
As Trustees under The Montana
Power Company's Mortgage and
Deed of Trust, dated as of
October 1, 1945
EIGHTEENTH SUPPLEMENTAL INDENTURE
Providing, among other things, for
the succession of The Bank of New York,
to Morgan Guaranty Trust Company of New York,
as the Corporate Trustee, and of W. T. Cunningham
to P. J. Crowley, as the Co-Trustee, under such Mortgage and
Deed of Trust and the amendment of Section 101 thereof.
<PAGE>
EIGHTEENTH SUPPLEMENTAL INDENTURE
EIGHTEENTH SUPPLEMENTAL INDENTURE, dated as of August 5,
1994, between THE MONTANA POWER COMPANY, a corporation of the
State of Montana (successor by merger to The Montana Power
Company, a corporation of the State of New Jersey), whose post
office address is 40 East Broadway, Butte, Montana, 59701
(hereinafter sometimes called the Company), and THE BANK OF NEW
YORK, a corporation of the State of New York, whose principal
corporate trust office is located at 101 Barclay Street, New
York, New York, 10286, which hereby is appointed successor
Corporate Trustee to MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
and W. T. CUNNINGHAM, whose post office address is 3 Arlington
Drive, Denville, New Jersey, 07834, who hereby is appointed
successor Co-Trustee to P.J. CROWLEY (the successor Corporate
Trustee and the successor Co-Trustee being hereinafter together
sometimes called the Trustees), as successor Trustees under the
Mortgage and Deed of Trust, dated as of October 1, 1945 (such
Mortgage and Deed of Trust, as executed and delivered and as
thereafter from time to time amended and supplemented being
hereinafter referred to as the Mortgage), which Mortgage was
executed and delivered by The Montana Power Company, a
corporation of the State of New Jersey (hereinafter sometimes
called the Company--New Jersey) to Guaranty Trust Company of New
York and Arthur E. Burke, to secure the payment of bonds issued
or to be issued under and in accordance with the provisions of
the Mortgage, reference to which Mortgage is hereby made, this
instrument (hereinafter called the Eighteenth Supplemental
Indenture) being supplemental thereto;
WHEREAS, the Mortgage was or is to be recorded in the
official records of various counties in the states of Montana and
Wyoming, which counties include or will include all counties in
which this Eighteenth Supplemental Indenture is to be recorded;
and
WHEREAS, by the Mortgage, the Company--New Jersey covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as might be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired, made or constructed
and intended to be subject to the lien thereof; and
WHEREAS, the Company--New Jersey executed and delivered to
the Trustees its First Supplemental Indenture, dated as of May 1,
1954 (hereinafter called the First Supplemental Indenture); its
Second Supplemental Indenture, dated as of April 1, 1959
(hereinafter called the Second Supplemental Indenture); and
WHEREAS, the Company--New Jersey was merged into the Company
on November 30, 1961, and to evidence the succession of the
Company to the Company--New Jersey and the assumption by the
Company of the covenants and conditions of the Company--New
Jersey in the bonds and in the Mortgage contained and to enable
the Company to have and exercise the powers and rights of the
Company--New Jersey under the Mortgage in accordance with the
terms thereof, the Company executed and delivered to the Trustees
its Third Supplemental Indenture, dated as of November 30, 1961
(hereinafter called the Third Supplemental Indenture); and
WHEREAS, the Company executed and delivered to the Trustees
its Fourth Supplemental Indenture, dated as of April 1, 1970
(hereinafter called the Fourth Supplemental Indenture); its Fifth
Supplemental Indenture, dated as of April 1, 1971 (hereinafter
called the Fifth Supplemental Indenture); its Sixth Supplemental
Indenture, dated as of March 1, 1974 (hereinafter called the
Sixth Supplemental Indenture); its Seventh Supplemental Inden-
ture, dated as of December 1, 1974 (hereinafter called the
Seventh Supplemental Indenture); its Eighth Supplemental
Indenture, dated as of July 1, 1975 (hereinafter called the
Eighth Supplemental Indenture); its Ninth Supplemental
Indenture, dated as of December 1, 1975 (hereinafter called the
Ninth Supplemental Indenture); its Tenth Supplemental Indenture,
dated as of January 1, 1979 (hereinafter called the Tenth
Supplemental Indenture); its Eleventh Supplemental Indenture,
dated as of October 1, 1983 (hereinafter called the Eleventh
Supplemental Indenture); its Twelfth Supplemental Indenture,
dated as of January 1, 1984 (hereinafter called the Twelfth
Supplemental Indenture); its Thirteenth Supplemental Indenture,
dated as of December 1, 1991 (hereinafter called the Thirteenth
Supplemental Indenture); its Fourteenth Supplemental Indenture,
dated as of January 1, 1993 (hereinafter called the Fourteenth
Supplemental Indenture); its Fifteenth Supplemental Indenture,
dated as of March 1, 1993 (hereinafter called the Fifteenth
Supplemental Indenture); its Sixteenth Supplemental Indenture,
dated as of May 1, 1993 (hereinafter called the Sixteenth
Supplemental Indenture) and its Seventeenth Supplemental
Indenture, dated as of December 1, 1993 (hereinafter called the
Seventeenth Supplemental Indenture); and
WHEREAS, the First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth and Seventeenth Supplemental In-
dentures were or are to be recorded in the official records of
various counties in the states of Montana and Wyoming, which
counties include or will include all counties in which this
Eighteenth Supplemental Indenture is to be recorded; and
WHEREAS, an instrument dated March 15, 1955 was executed by
the Company--New Jersey appointing Karl R. Henrich as Co-Trustee
in succession to said Arthur E. Burke, resigned, under the
Mortgage and by Karl R. Henrich accepting the appointment as Co-
Trustee under the Mortgage in succession to said Arthur E. Burke,
which instrument was recorded in various counties in the states
of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 29, 1962 was executed by
the Company appointing H. H. Gould as Co-Trustee in succession to
said Karl R. Henrich, resigned, under the Mortgage and by H. H.
Gould accepting the appointment as Co-Trustee under the Mortgage
in succession to said Karl R. Henrich, which instrument was
recorded in various counties in the states of Montana, Idaho and
Wyoming; and
WHEREAS, an instrument dated June 22, 1973 was executed by
the Company appointing R. Amundsen as Co-Trustee in succession to
said H. H. Gould, resigned, under the Mortgage and by R. Amundsen
accepting the appointment as Co-Trustee under the Mortgage in
succession to said H. H. Gould, which instrument was recorded in
various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated July 1, 1986 was executed by
the Company appointing P.J. Crowley as Co-Trustee in succession
to said R. Amundsen, resigned, under the Mortgage and by P. J.
Crowley accepting the appointment as Co-Trustee under the
Mortgage in succession to said R. Amundsen, which instrument was
recorded in various counties in the states of Montana, Idaho and
Wyoming; and
WHEREAS, in addition to the property described in the
Mortgage, the Company has acquired certain other property, rights
and interests in property; and
WHEREAS, the Company--New Jersey or the Company has
heretofore issued, in accordance with the provisions of the
Mortgage, the following series of First Mortgage Bonds:
<TABLE>
<CAPTION>
Principal Principal
Amount Amount
Series Issued Outstanding
<S> <C> <C>
2-7/8% Series due 1975. . . . . . . . . . . . $40,000,000 NONE
3-1/8% Series due 1984. . . . . . . . . . . . 6,000,000 NONE
4-1/2% Series due 1989. . . . . . . . . . . . 15,000,000 NONE
8-1/4% Series due 1974. . . . . . . . . . . . 30,000,000 NONE
7-1/2% Series due 2001 (Fifth). . . . . . . . 25,000,000 $25,000,000
8-5/8% Series due 2004. . . . . . . . . . . . 60,000,000 NONE
8-3/4% Series due 1981. . . . . . . . . . . . 30,000,000 NONE
9.60% Series due 2005 . . . . . . . . . . . . 35,000,000 NONE
9.70% Series due 2005 . . . . . . . . . . . . 65,000,000 NONE
9-7/8% Series due 2009. . . . . . . . . . . . 50,000,000 NONE
11-3/4% Series due 1993 . . . . . . . . . . . 75,000,000 NONE
10/10-1/8% Series due 2004/2014 . . . . . . . 80,000,000 NONE
8-1/8% Series due 2014. . . . . . . . . . . . 41,200,000 NONE
7.70% Series due 1999 (Fourteenth). . . . . . 55,000,000 55,000,000
8-1/4% Series due 2007 (Fifteenth). . . . . . 55,000,000 55,000,000
8.95% Series due 2022 (Sixteenth) . . . . . . 50,000,000 50,000,000
Secured Medium-Term Notes (Seventeenth) . . . 68,000,000 68,000,000
7% Series due 2005 (Eighteenth) . . . . . . . 50,000,000 50,000,000
6-1/8% Series due 2023 (Nineteenth) . . . . . 90,205,000 90,205,000
5.90% Series due 2023 (Twentieth) . . . . . . 80,000,000 80,000,000
</TABLE>
which bonds are also hereinafter sometimes called bonds of the
First through Twentieth Series, respectively; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon the Company by any
provision of the Mortgage, whether such power, privilege or right
is in any way restricted or is unrestricted, may be in whole or
in part waived or surrendered or subjected to any restriction if
at the time unrestricted or to additional restriction if already
restricted, and the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more
series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein or in any supplemental indenture or
may (in lieu of establishment by Resolution as provided in
Section 8 of the Mortgage) establish the terms and provisions of
any series of bonds other than said First Series, by an in-
strument in writing executed and acknowledged by the Company in
such manner as would be necessary to entitle a conveyance of real
estate to record in all of the states in which any property at
the time subject to the lien of the Mortgage shall be situated;
and
WHEREAS, Section 101 of the Mortgage provides that any
Trustee may resign at any time by giving written notice thereof
to the Company and publishing notice thereof in the manner set
forth in such Section; and
WHEREAS, Morgan Guaranty Trust Company of New York has given
written notice to the Company that it has resigned as Corporate
Trustee under the Mortgage, such resignation to take effect at
the close of business on August 5, 1994, unless previously a
successor Corporate Trustee shall have been appointed as provided
in the Mortgage, in which event such resignation shall take
effect immediately upon the appointment of such successor
Corporate Trustee; and
WHEREAS, P.J. Crowley has given written notice to the
Company that he has resigned as Co-Trustee under the Mortgage,
such resignation to take effect at the close of business on
August 5, 1994, unless previously a successor Co-Trustee shall
have been appointed as provided in the Mortgage, in which event
such resignation shall take effect immediately upon the
appointment of such successor Co-Trustee; and
WHEREAS, Section 102 of the Mortgage provides that the
Company, pursuant to the order of its Board of Directors, may
appoint a successor Trustee if a Trustee shall resign; and
WHEREAS, the Company desires that The Bank of New York and
W.T. Cunningham act as successor Corporate Trustee and Co-
Trustee, respectively, under the Mortgage; and
WHEREAS, The Bank of New York and W.T. Cunningham are
eligible and qualified to serve as Corporate Trustee and Co-
Trustee, respectively, under the Mortgage, in compliance with
Sections 35, 88 and 99 of the Mortgage, and are willing to accept
such appointment as successor Trustees; and
WHEREAS, The Company has agreed to publish notice of such
appointment as provided in Section 102 of the Mortgage;
WHEREAS, the Company now desires (pursuant to the provisions
of Section 120 of the Mortgage) to add to its covenants and
agreements contained in the Mortgage certain other covenants and
agreements to be observed by it and to alter and amend in certain
respects the covenants and provisions contained in the Mortgage;
and
WHEREAS, the execution and delivery by the Company of this
Eighteenth Supplemental Indenture have been duly authorized by
the Board of Directors of the Company by appropriate Resolutions
of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That, pursuant
to Section 102 of the Mortgage and by order of its Board of
Directors, the Company hereby appoints The Bank of New York as
successor Corporate Trustee under the Mortgage, subject to the
conditions of Article XVII thereof, effective at the close of
business on August 5, 1994;
That The Bank of New York, a bank or trust company having
its principal office and place of business in the Borough of
Manhattan, The City of New York, hereby accepts its appointment
by the Company as successor Corporate Trustee under the Mortgage;
That, pursuant to Section 102 of the Mortgage and by order
of its Board of Directors, the Company hereby appoints W.T.
Cunningham as successor Co-Trustee under the Mortgage, subject to
the conditions in Article XVII thereof, effective at the close of
business on August 5, 1994;
That the undersigned, W.T. Cunningham, a citizen of the
United States of America, hereby accepts his appointment by the
Company as successor Co-Trustee under the Mortgage;
That the Company will proceed with the publication of the
notice of appointment as provided in Section 102 of the Mortgage
in substantially the following form:
THE MONTANA POWER COMPANY
Mortgage and Deed of Trust, dated as of October 1, 1945,
as amended and supplemented
NOTICE OF APPOINTMENT OF SUCCESSOR CORPORATE TRUSTEE
AND SUCCESSOR CO-TRUSTEE
NOTICE IS HEREBY GIVEN, pursuant to Section 102 of the
above-mentioned Mortgage, that The Montana Power Company has
appointed The Bank of New York and W. T. Cunningham,
respectively, as successor Corporate Trustee and successor Co-
Trustee under the Mortgage, and that The Bank of New York and
W.T. Cunningham have accepted such appointments, effective at the
close of business on August 5, 1994.
THE MONTANA POWER COMPANY
August 5, 1994
That the Company, in consideration of the premises and of
$1.00 to it duly paid by the Trustees at or before the ensealing
and delivery of these presents, the receipt whereof is hereby
acknowledged, and in further evidence of assurance of the estate,
title and rights of the Trustees and in order further to secure
the payment of both the principal of and interest and premium, if
any, on the bonds from time to time issued under the Mortgage,
according to their tenor and effect and the performance of all
the provisions of the Mortgage (including any modification made
as in the Mortgage provided) and of said bonds, and to confirm
the lien of the Mortgage on certain after-acquired property,
hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances as defined in Section 6 of the
Mortgage) unto W.T. Cunningham, who has been appointed successor
Co-Trustee as hereinabove provided, and (to the extent of its
legal capacity to hold the same for the purposes hereof) to The
Bank of New York, which has been appointed successor Corporate
Trustee as hereinabove provided, as Trustees under the Mortgage,
and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all property,
real, personal and mixed, of the kind or nature specifically
mentioned in the Mortgage, or of any other kind or nature
(whether or not located in the State of Montana), acquired by the
Company after the date of the execution and delivery of the Mort-
gage, as heretofore supplemented (except any herein or in the
Mortgage, as heretofore supplemented, expressly excepted), now
owned or, subject to the provisions of subsection (I) of
Section 87 of the Mortgage, hereafter acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) and wheresoever situated, including (without
in anywise limiting or impairing by the enumeration of the same
the scope and intent of the foregoing or of any general
description contained in the Mortgage) all lands, power sites,
flowage rights, water rights, water locations, water appro-
priations, ditches, flumes, reservoirs, reservoir sites, canals,
raceways, dams, dam sites, aqueducts, and all other rights or
means for appropriating, conveying, storing and supplying water;
all rights of way and roads; all plants for the generation of
electricity by steam, water and/or other power; all powerhouses,
gas plants, street lighting systems, standards and other
equipment incidental thereto, telephone, radio and television
systems, air-conditioning systems and equipment incidental
thereto, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, electric, gas
and other machines, regulators, meters, transformers, generators,
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture and chattels; all franchises, consents or permits; all
lines for the transmission and distribution of electric current,
gas, steam heat or water for any purpose including towers, poles,
wires, cables, pipes, conduits, ducts and all apparatus for use
in connection therewith; all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage
expressly excepted) all the right, title and interest of the
Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property hereinbefore or in the Mortgage
described.
TOGETHER with all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in
anywise appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income,
product and profits thereof, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which
the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel
thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of subsection (I) of Section 87 of the Mortgage, all
the property, rights, and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Mortgage expressly excepted, shall be and are as fully
granted and conveyed hereby and as fully embraced within the lien
hereof and the lien of the Mortgage as if such property, rights
and franchises were now owned by the Company and were specifi-
cally described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of the Mortgage, namely:
(1) cash, shares of stock, bonds, notes and other obligations and
other securities not specifically pledged, paid, deposited,
delivered or held under the Mortgage or covenanted so to be;
(2) merchandise, equipment, apparatus, materials or supplies held
for the purpose of sale or other disposition in the usual course
of business; fuel, oil and similar materials and supplies
consumable in the operation of any of the properties of the
Company; all aircraft, tractors, rolling stock, trolley coaches,
buses, motor coaches, automobiles, motor trucks, and other
vehicles and materials and supplies held for the purpose of
repairing or replacing (in whole or part) any of the same;
(3) bills, notes and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage or cove-
nanted so to be; the Company's contractual rights or other
interest in or with respect to tires not owned by the Company;
(4) the last day of the term of any lease or leasehold which may
be or become subject to the lien of the Mortgage; (5) electric
energy, gas, steam, water, ice, and other materials or products
generated, manufactured, produced, purchased or acquired by the
Company for sale, distribution or use in the ordinary course of
its business; all timber, minerals, mineral rights and royalties
and all Gas and Oil Production Property, as defined in Section 4
of the Mortgage; (6) the Company's franchise to be a corporation;
and (7) any property heretofore released pursuant to any
provisions of the Mortgage and not heretofore disposed of by the
Company; provided, however, that the property and rights
expressly excepted from the lien and operation of the Mortgage in
the above subdivisions (2) and (3) shall (to the extent permitted
by law) cease to be so excepted in the event and as of the date
that either or both of the Trustees or a receiver or trustee
shall enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XIII of the Mortgage
by reason of the occurrence of a Default as defined in Section 65
thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the
Company as aforesaid, or intended so to be, unto W.T. CUNNINGHAM
and (to the extent of its legal capacity to hold the same for the
purposes hereof) unto THE BANK OF NEW YORK, as Trustees and their
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage,
this Eighteenth Supplemental Indenture being supplemental
thereto.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights,
obligations and duties of the Company and the Trustees and the
beneficiaries of the trust with respect to said property, and to
the Trustees and their successors as Trustees of said property in
the same manner and with the same effect as if the said property
had been owned at the time of the execution of said Mortgage and
Deed of Trust, and had been specifically and at length described
in and conveyed to the Trustees, by said Mortgage and Deed of
Trust as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successors in said trust under the Mortgage,
as follows:
ARTICLE I.
Amendment of Section 101 of the Mortgage
Section A. The second paragraph of Section 101 of the
Mortgage hereby is amended by adding a new sentence at the end
thereof to read as follows:
"In the absence of a Default or the occurrence of an
event which, after notice, the passage of time, or
both, would constitute a Default, any Trustee
theretofore appointed by the Company as provided in
Section 102 hereof also may be removed at any time by
an instrument in writing executed by order of its Board
of Directors, duly acknowledged by its President or a
Vice President and filed with such Trustee. Should any
Trustee be so removed by the order of the Board of
Directors, the Company shall publish notice thereof in
the manner hereinabove provided in this Section 101."
ARTICLE II.
Miscellaneous Provisions
Section 2. Subject to the amendments provided for in this
Eighteenth Supplemental Indenture, the terms defined in the
Mortgage shall, for all purposes of this Eighteenth Supplemental
Indenture, have the meaning specified in the Mortgage.
Section 3. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the Mortgage
set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Eighteenth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage shall apply
to and form part of this Eighteenth Supplemental Indenture with
the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as
may be appropriate to make the same conform to the provisions of
this Eighteenth Supplemental Indenture.
Section 4. Whenever in this Eighteenth Supplemental
Indenture any of the parties hereto is named or referred to, this
shall, subject to the provisions of Articles XVI and XVII of the
Mortgage, be deemed to include the successors and assigns of such
party, and all the covenants and agreements in this Eighteenth
Supplemental Indenture contained by or on behalf of the Company,
or by or on behalf of the Trustees shall, subject as aforesaid,
bind and inure to the respective benefits of the respective suc-
cessors and assigns of such parties, whether so expressed or not.
Section 5. Nothing in this Eighteenth Supplemental
Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Eighteenth
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Eighteenth
Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
Section 6. This Eighteenth Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, THE MONTANA POWER COMPANY has caused its
corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its President or one of its Vice Presidents,
and its corporate seal to be attested by its Secretary or one of
its Assistant Secretaries for and in its behalf, and THE BANK OF
NEW YORK, in token of its acceptance of the trust hereby created,
has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by one of its Vice Presidents
or one of its Assistant Vice Presidents, and its corporate seal
to be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, and W.T. CUNNINGHAM, for all
like purposes, has hereunto set his hand and affixed his seal, as
of the day and year first above written.
THE MONTANA POWER COMPANY
By: /s/ J.P. Pederson
Vice President
Attest:
/s/ R.M. Ralph
Assistant Secretary
Executed, sealed and delivered by
THE MONTANA POWER COMPANY in the presence of:
/s/ W.C. Verbael
/s/ L.J. O'Farrell
<PAGE>
THE BANK OF NEW YORK,
as successor Corporate Trustee
BY: /s/ David G. Sampson
Vice President
Attest:
/s/ Alfia Monastra
Assistant Treasurer
/s/ W.T. Cunningham [L.S.]
W.T. CUNNINGHAM, as successor
Co-Trustee
Executed, sealed and delivered
by THE BANK OF NEW YORK and
W.T. CUNNINGHAM in the presence of:
/s/ Helen M. Cotiaux
/s/ Robert F. McIntyre
<PAGE>
STATE OF MONTANA )
) ss.:
COUNTY OF SILVER BOW )
On this 5th day of August, in the year 1994, before me,
Susan Hawke, a Notary Public in and for the State of Montana,
personally came and appeared J.P. Pederson, to me known and known
to me to be a Vice President of THE MONTANA POWER COMPANY, the
corporation that executed the within instrument, and acknowledged
to me that such corporation executed the same, and being by me
duly sworn, did depose and say that he resides at 1829 Utah
Avenue, Butte, Montana; that he is a Vice President of THE
MONTANA POWER COMPANY, the corporation described in and which
executed the within and above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name
thereto by like order.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate
first above written.
/s/ Susan Hawke
Susan Hawke
Notary Public, State of Montana
Residing at Butte, Montana
My Commission Expires June 1, 1996
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 5th day of August, 1994, before me, W. Cassels, a
Notary Public in and for the State of New York, personally came
and appeared David G. Sampson, to me known and known to me to be
a Vice President of THE BANK OF NEW YORK, the corporation that
executed the within instrument, and acknowledged to me that such
corporation executed the same, and, being by me duly sworn, did
depose and say that he resides at 220 Hulls Hill Rd., Southbury,
Connecticut; that he is a Vice President of THE BANK OF NEW YORK,
the corporation described in and which executed the within and
above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate
first above written.
/s/ W. J. Cassels
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York
County
Commission Expires May 16, 1996
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 5th day of August, in the year 1994, before me,
W. Cassels, a Notary Public in and for the State of New York,
personally came and appeared W.T. CUNNINGHAM, known to me to be
one of the persons described in and who executed the within
instrument, and whose name is subscribed thereto, and
acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal the day and year in this certificate
first above written.
/s/ W. J. Cassels
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York
County
Commission Expires May 16, 1996
