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 No.)
40 EAST BROADWAY
BUTTE, MONTANA 59701
(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 THE BOARD VICE PRESIDENT AND VICE PRESIDENT AND
AND CHIEF CHIEF FINANCIAL OFFICER GENERAL COUNSEL
EXECUTIVE OFFICER THE MONTANA THE MONTANA
THE MONTANA POWER COMPANY POWER COMPANY
POWER COMPANY 40 EAST BROADWAY 40 EAST BROADWAY
40 EAST BROADWAY BUTTE, MONTANA 59701 BUTTE, MONTANA 59701
BUTTE, MONTANA 59701 (406) 723-5421 (406) 723-5421
(406) 723-5421
ROBERT G. SCHUUR, ESQ.
REID & PRIEST LLP
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)
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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 ANY OF THE 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]
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CALCULATION OF REGISTRATION FEE
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Title of
Each Class Proposed Proposed
of Securities Amount Maximum Maximum Amount of
to be to Be Offering Price Aggregate Registration
registered Registered per Unit* Offering Price* Fee
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Common Stock 2,000,000 Shares $22.6875 $45,375,000 $15,646.53
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*ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE.
PURSUANT TO RULE 429, THE COMBINED PROSPECTUS FILED HEREWITH ALSO RELATES
TO REGISTRATION NO. 33-64922.
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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PROSPECTUS
THE MONTANA POWER COMPANY
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
SHARES OF COMMON STOCK
Daniel T. Berube
Chairman of the Board
Dear Participant or Prospective Participant:
We are pleased to send you this Prospectus describing our Dividend
Reinvestment and Stock Purchase Plan, as amended (the "Plan"). The Plan
provides investors with an economical and convenient method of acquiring
shares of the Company's common stock. Participation in the Plan is open
to (1) shareholders of record of the common and preferred stock of the
Company, (2) to the extent described below, beneficial owners of the
common and preferred stock of the Company, (3) employees of the Company
and its subsidiaries, and (4) other interested investors (including
Montana Utility customers of the Company) who are resident in the states
listed herein.
The Plan permits participants to: (a) reinvest dividends on all or
any specified number of shares of common and/or preferred stock held
through certificates registered in their own names or through the Plan in
additional shares of common stock, (b) purchase shares of common stock
with optional cash payments, automatic monthly electronic funds transfers
from their banks or, in the case of employees, automatic payroll
deductions, and (c) deposit their certificates for shares of common stock
and preferred stock into their Plan accounts for safekeeping.
Beneficial owners whose shares are held by brokers or other nominee
shareholders of record may participate only in the reinvestment of
dividends to purchase a whole number of shares and only through
participation by their brokers or other nominees.
Employees may join the Plan by authorizing, at the time of enrollment,
optional cash payments through automatic payroll deductions of at least
$10 per deduction.
In order to join the Plan, other interested investors (including
Montana utility customers of the Company), at the time of enrollment, must
make an initial cash payment of not less than $100 ($50 in the case of
Montana utility customers) nor more than $60,000.
Shareholders of record, employees and other interested investors who
wish to join the Plan may enroll at any time by completing an
Authorization Form and returning it to: Plan Administrator, Investor
Services, The Montana Power Company, 40 East Broadway, Butte, Montana
59701-9394. Participants who wish to make optional payments by means of
electronic funds transfers may do so by completing and returning an
Automatic Cash Payment Form. These forms may be obtained by writing to
the Plan Administrator, Investor Services, or by calling (out of Montana)
1-800-245-6767 or (in Montana) 1-800-325-6767.
We suggest that you retain this Prospectus for future reference.
Shareholders not participating in the Plan will continue to receive
dividends, as declared by the Board of Directors, by electronic funds
transfer or check.
Sincerely,
Daniel T. Berube
Chairman of the Board
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 , 1995.
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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. 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:
The Company's Annual Report on Form 10-K for the year ended December
31, 1994.
The Company's Current Reports on Form 8-K, dated February 27 and
March 24, 1995.
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 or 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 the Plan
Administrator, Investor Services, The Montana Power Company, 40 East
Broadway, Butte, Montana 59701-9394, telephone (out of Montana)
1-800-245-6767 or (in Montana) 1-800-325-6767.
THE COMPANY
The Montana Power Company (the "Company") is the issuer of the
additional shares of common stock offered hereby. The principal executive
offices of the Company are located at 40 East Broadway, Butte, Montana
59701-9394.
USE OF PROCEEDS
For so long as the Plan shall utilize authorized but unissued shares of
common stock purchased from the Company, the net proceeds received by the
Company from the sale of such shares will be used for general corporate
purposes. During 1994, the Company sold 989,263 shares under the Plan for
which it received $23,642,540. The Company has no basis for estimating
the number of shares of common stock that the Company will sell through
the Plan or the prices at which such shares will be sold. Should Plan
shares be purchased by a broker in the open market or through negotiated
transactions, the Company will not receive any of the proceeds from the
sales of such shares.
THE PLAN
The Company's Dividend Reinvestment and Stock Purchase Plan (the
"Plan") is as follows:
PURPOSE
The purpose of the Plan is to provide participants in the Plan with
(a) a simple and convenient method of reinvesting all or a portion of
their cash dividends and/or investing optional cash payments in additional
shares of
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the Company's common stock, and (b) a means for the safekeeping of
their shares of the Company's common and preferred stock now represented
by stock certificates. To the extent that shares are purchased from the
Company, the Company will use the proceeds for general corporate purposes.
ADVANTAGES
Upon joining the Plan, Participants may (a) reinvest dividends on all
shares of common and/or preferred stock held through certificates
registered in their own names or through the Plan in additional shares of
common stock, (b) reinvest dividends on a specified number of shares of
common and/or preferred stock held in their names or through the Plan in
additional shares of common stock and continue to receive cash dividends
on the remaining shares, and (c) invest optional cash payments of not less
than $10 per payment nor more than $60,000 per year to purchase additional
shares of common stock.
At present, there are no service charges for participating in the Plan
(see "Costs"). For so long as the Plan continues to purchase shares from
the Company, participants will not pay any commissions on shares purchased
through the Plan. However, should the Plan purchase shares on the open
market or in negotiated transactions through one or more broker-dealers
appointed by the Company to act as independent agents of participants for
such purpose (the "Broker"), participants would pay commissions on those
shares. Because of the volume of shares purchased through the Plan,
commissions should be less than those which participants otherwise would
pay should they purchase, individually, a like number of shares.
Full investment of funds is possible under the Plan because fractional
shares, as well as full shares, are credited to participants' accounts.
In addition, dividends on fractional shares, as well as full shares, are
credited to participants' accounts.
Participants may make optional cash payments automatically by
authorizing their banks to make such payments monthly from their accounts
by means of electronic funds transfers. Employees may make optional cash
payments automatically by authorizing payroll deductions.
Participants may deposit their certificates for shares of the Company's
common and preferred stock into the Plan for safekeeping.
All shares purchased through the Plan are held by the Custodian (see
"Administration") and credited to participants' accounts under the Plan.
Statements reflecting each purchase for a participant are furnished to
that participant and provide simplified recordkeeping. Participants are
relieved of the responsibility for the safekeeping of certificates for
shares purchased through the Plan or deposited into the Plan.
At the request of a participant, either common shares held in his or
her account will be sold and the net proceeds remitted to that participant
or certificates for common or preferred shares held in such account
registered in the participant's name will be issued to such participant.
As described hereinafter, there are certain limitations upon
participation in the Plan by beneficial owners whose shares are registered
in the names of brokers or other nominee shareholders of record.
ADMINISTRATION
The Plan Administrator administers the Plan for participants, keeps
records, sends statements of account to participants, monthly, in the case
of optional cash purchases, and quarterly, in the case of dividend
reinvestment, and performs other duties relating to the Plan. The Company
is the Plan Administrator. Should the Plan purchase shares on the open
market or in negotiated transactions, the Company will appoint the Broker
which will act as the independent agent of participants. The Company, as
Custodian of the Plan, holds shares acquired under the Plan and shares
deposited into the Plan for safekeeping. The Company may resign as Plan
Administrator or as Custodian at any time upon the appointment of a
successor.
All communications concerning the Plan should be directed by mail or
telephone to the Plan Administrator as follows:
Plan Administrator, Investor Services
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9394
Telephone: (out of Montana) 1-800-245-6767 or (in Montana)
1-800-325-6767
Fax: (406) 497-2149
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PARTICIPATION
Shareholders of Record
All of the Company's common and/or preferred shareholders of record may
join the Plan by completing an Authorization Form and returning it to the
Plan Administrator, Investor Services. In order to be eligible to
participate in the Plan as a shareholder of record, beneficial owners of
shares of common and/or preferred stock whose shares are registered in
names other than their own must become shareholders of record by having
some or all of these shares transferred to their names.
Beneficial Owners
Beneficial owners whose shares are held by brokers or other nominee
shareholders of record may participate in the dividend reinvestment
portion of the Plan, if their brokers or other nominees elect to join the
Plan on their behalf. Reinvestment of dividends is limited to the
purchase of whole shares. Optional cash payments may not be made.
Brokers and other nominees may participate on behalf of beneficial
owners by completing a Broker and Nominee Authorization Form and returning
it to the Plan Administrator, Investor Services. If the Plan
Administrator receives written instructions from a broker or nominee
shareholder by the fifth business day following each dividend record date,
the Plan Administrator reinvests that dividend in accordance with those
instructions. The reinvestment of dividends is limited with respect to
each account designated on such Form to the purchase of the largest number
of whole shares that can be purchased with the dividends attributable to
such account. Any funds remaining after reinvestment are remitted to the
broker or other nominee. A dividend check is mailed to the broker or
nominee in the usual manner for all shares for which reinvestment
instructions are not received by the Plan Administrator. Standing
instructions are not permitted.
Since the Plan Administrator does not maintain records as to, or hold
shares for the accounts of, beneficial owner participants, such
participants must look to their brokers or other nominees for records of
their participation and with respect to the sale of shares purchased with
reinvested dividends or the receipt of certificates therefor.
Employees
Employees of the Company or any of its subsidiaries may join the Plan
and may make regular optional cash payments through payroll deductions by
completing the Employee Authorization Form and the Employee Payroll
Deduction Form and sending them to the Plan Administrator, Investor
Services. However, if an employee participant who has chosen Payroll
deductions receives a hardship withdrawal under the Company's Deferred
Savings and Employee Stock Ownership Plan, such deductions will be
suspended for twelve months.
Payroll deductions must be in an even dollar amount, not less than $10
per deduction and not more than $60,000 per year. Payroll deductions may
be increased, decreased or terminated by an employee at any time by
executing a new Employee Payroll Deduction Form and sending it to the
Investor Services Department.
Other Interested Investors, Including Montana Utility Customers of the
Company
Other interested investors (including Montana utility customers of the
Company) who are individuals domiciled, or which are corporations or other
legal entities whose principal places of business are, in the States of
California, Colorado, Georgia, Illinois, Louisiana, Minnesota, Montana,
New Mexico, New York, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee,
Texas, Utah and Wisconsin, may join the Plan by completing an
Authorization Form and returning it to the Plan Administrator, Investor
Services accompanied with a cash payment of not less than $100 ($50 in the
case of Montana Utility customers of the Company) nor more than $60,000.
Montana utility customers of the Company are individuals domiciled in
Montana and corporations and other legal entities whose principal places
of business are in Montana and for whose account public utility services
are rendered by the Company.
From time-to-time, the Company may qualify shares for offering under
the Plan to other interested investors located in additional states.
Other interested investors located in foreign countries may not join the
Plan until such time as they shall have become either shareholders of
record or beneficial owners.
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FORMS
Authorization Forms, Broker and Nominee Authorization Forms, Employee
Authorization Forms, Employee Payroll Deduction Forms, Cash Payment Forms,
Automatic Cash Payment Forms, Safekeeping Authorization Forms and
instructions may be obtained, at any time, from the Plan Administrator,
Investor Services.
PURCHASES
Shares purchased under the Plan are authorized but unissued shares of
common stock purchased from the Company, outstanding shares purchased by
the Broker in the open market or through negotiated transactions, or both.
Periodically, the Company may change the source of such purchases.
Purchases from the Company
Shares purchased from the Company with reinvested dividends on the
common and preferred stock are purchased and credited to participants'
accounts as of each dividend payment date. Dividend payment dates for
both the common and preferred stock usually are the first days of
February, May, August and November. Shares purchased from the Company
with optional cash payments received by the Company by the twenty-seventh
day of any month are purchased and credited to participants' accounts as
of the first day of the following month. Optional cash payments received
by the Company subsequent to the twenty-seventh day of any month will be
used to purchase shares as of the first day of the second following month.
For example, an optional cash payment received on or after April 28 will
be used to purchase shares on June 1. No interest is paid on optional
cash payments received and held by the Plan Administrator prior to
investment.
Market Purchases
When the Plan purchases shares through the Broker, reinvested dividends
are used by the Broker to purchase shares during the periods commencing on
the fifth business day prior to the first days of February, May, August
and November and ending at the discretion of the Broker, but no later than
the fifteenth business days of such February, May, August and November.
Optional cash payments received by the twenty-seventh day of any month are
used by the Broker to purchase shares during a period commencing on the
twenty-eighth day of such month and ending on the earlier of the tenth
business day of the following month or, if the following month is a month
in which a common stock ex-dividend date occurs, the day preceding the ex-
dividend date. However, the Broker will not purchase any shares in the
open market on any day on which the market price of the common shares will
be the basis for determining the price of shares purchased from the
Company. The number of shares purchased with reinvested dividends and
optional cash payments on any day during each purchase period and the
prices paid for such shares are determined by the Broker.
Each purchase date described above in "Purchases from the Company" and
each of the periods for purchasing shares described above in "Market
Purchases" is hereinafter referred to as a "Purchase Period."
ENROLLMENT AND OPTIONAL CASH PAYMENT DEADLINES
If any Authorization Form directing reinvestment of dividends is
received by the Plan Administrator on or prior to a dividend record date,
that dividend is reinvested in accordance with the participant's
instructions in shares of common stock and such shares are credited to the
participant's account. If the Authorization Form is received by the Plan
Administrator after such record date, that dividend is paid in cash and
reinvestment begins with the next dividend. The record dates for the
payment of dividends on common and preferred stock are customarily three
weeks prior to the dividend payment dates. Common and preferred stock
dividend payment dates usually are the first days of February, May, August
and November.
For example, in the case of a common stock dividend paid by the Company
on May 1, for which the record date was April 10, if the Authorization
Form directing reinvestment is received by the Plan Administrator on or
prior to April 10, the May 1 dividend will be reinvested in shares of
common stock which will have been credited to the participant's account as
of May 1. Optional cash payments received as late as April 27 also will
be invested in shares of common stock which will be credited to the
participant's account as of May 1. However, if the Authorization Form
will be received by the Plan Administrator after April 10, the May 1
dividend will be paid in cash and reinvestment will not begin until the
next dividend. Likewise, if an optional cash payment was received by the
Plan Administrator after April 27, it will be held and invested with May
optional cash payments and credited to the participant's account as of
June 1.
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A participant may, without withdrawing from the Plan, have any optional
cash payment returned upon written request received by the Plan
Administrator prior to the twenty-eighth day of the month preceding the
investment of that payment.
NUMBER OF COMMON SHARES PURCHASED FOR PARTICIPANTS
The number of shares purchased for each participant during any Purchase
Period depends on (a) the amount of the participant's dividends to be
reinvested and optional cash payments to be invested, and (b) the price of
the shares of common stock purchased, including, in the case of purchases
made through the Broker, the brokerage commissions. Each participant's
account is credited with that number of shares, including any fractional
share computed to three decimal places, equal to the total amount of
dividends reinvested or optional cash payments invested on such
participant's behalf divided by the applicable price per share. THE
MANNER IN WHICH THE PLAN OPERATES DOES NOT PERMIT THE PLAN ADMINISTRATOR
TO HONOR A REQUEST THAT A SPECIFIC NUMBER OF SHARES BE PURCHASED.
CASH PAYMENTS
Optional Cash Payments
A Plan participant may choose to make an optional cash payment by
enclosing a check or money order payable to The Montana Power Company,
together with a Cash Payment Form. Payments may vary in amount, but may
not be less than $10 nor more than $60,000 per year. Cash Payment Forms
are a part of the Authorization Form and, in addition, are included with
each statement sent by the Plan Administrator.
Optional cash payments received by the Company are transmitted
promptly to an escrow bank account. Any interest earned on the escrow
account will be used to defray costs of administering the Plan.
Automatic Cash Payments
A participant may elect to have monthly cash payments in a designated
amount automatically charged against his or her bank account by completing
and sending to the Plan Administrator, Investor Services, the Automatic
Cash Payment Form. The Plan Administrator will make the necessary
arrangements with the participant's bank so that, on or about the twenty-
seventh day of each month, the participant's bank account will be charged
with the designated amount. A participant will not be required to write
any checks or mail any additional forms. A participant may discontinue
this arrangement at any time by notifying the Plan Administrator, Investor
Services in writing by the tenth day of any month. A participant may
change the amount of the automatic cash payment by completing a new
Automatic Cash Payment Form and providing it to the Plan Administrator,
Investor Services, by the tenth day of any month.
Employee Payroll Deduction
An employee participant may choose to have payroll deductions in an
even dollar amount, not less than $10 per deduction, nor more than $60,000
per year. However, if an employee participant who has chosen payroll
deductions receives a hardship withdrawal under the Company's Deferred
Savings and Employee Stock Ownership Plan, such deductions will be
suspended for twelve months. An employee participant may initiate payroll
deductions or change the amount of the deductions at any time by executing
the Payroll Deduction Form and forwarding it to the Plan Administrator,
Investor Services.
PER SHARE PRICE
Purchases from the Company
The per share price of shares purchased from the Company during any
Purchase Period is the average of the high and low prices of the common
stock as reported on the consolidated tape on the first day of the month
(or the dividend payment date with respect to reinvested dividends if
other than the first day of the month) with respect to such Purchase
Period or, if the common stock is not traded on such day, on the preceding
day on which it is traded.
Market Purchases
The per share price of shares purchased by the Broker during any
Purchase Period is the weighted average of the cost of all purchases of
common stock (including brokerage commissions) during such Period. The
Broker determines the prices paid for all shares purchased. Because the
Purchase Period for shares purchased
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with reinvested dividends differs from the Period for shares purchased
with optional cash payments, the per share price is calculated separately
for shares purchased with reinvested dividends and for those purchased
with optional cash payments.
COSTS
At present, there are no service charges for participating in the Plan.
All costs of administration of the Plan are paid by the Company. However,
the Company reserves the right at any time to charge an initial setup fee
and quarterly handling fees. Should the Company determine to charge such
fees, participants will be notified ninety days prior to their effective
date.
For so long as the Plan continues to purchase shares from the Company,
participants will not pay any commissions on shares purchased through the
Plan. However, should the Plan purchase shares through the Broker,
participants would pay commissions on those shares. Because of the volume
of shares purchased through the Plan, commissions should be less than
those which participants would otherwise pay should they purchase,
individually, a like number of shares.
If a participant requests the Plan Administrator to sell his or her
shares, the participant will pay any related brokerage commission and
applicable taxes.
DIVIDENDS ON FRACTIONAL SHARES
Participants (other than beneficial owners) are credited with dividends
on fractions of shares of common stock held in their Plan accounts.
CERTIFICATES FOR SHARES; DEPOSITS AND WITHDRAWALS
Shares of common stock purchased under the Plan by a participant and
shares of common and/or preferred stock represented by certificates
deposited by a participant for safekeeping in the Plan will be credited to
that participant's account under the Plan.
Upon written request of a participant to the Plan Administrator, any
number of whole shares credited to that participant's account may be
withdrawn and a certificate for such shares issued to the participant.
Any remaining full shares and fraction of a share will continue to be
credited to the participant's account. Certificates for shares issued to a
participant will be registered in the same name or names in which that
participant's account is maintained. Certificates for fractions of shares
are not issued under any circumstances.
Each broker and other nominee shareholder of record participating in
the Plan on behalf of a beneficial owner receives quarterly from the Plan
Administrator, along with the statement showing transactions for each of
its designated accounts, one stock certificate registered in the name of
such nominee shareholder for the total number of shares purchased for all
such accounts and a check for the total of the uninvested dividends for
all such accounts.
Beneficial owner participants who want to obtain certificates for
shares of common stock purchased on their behalves through the Plan must
obtain them from their brokers or other nominee shareholders of record.
SALE OF SHARES
Upon the written request of a participant to the Plan Administrator,
the Plan Administrator will instruct the Broker to sell any number of
whole shares of common stock credited to the participant's account;
provided, however, that (a) no shares of common stock will be sold during
each period beginning on the common stock ex-dividend date and ending on
the related dividend record date; and (b) the Plan Administrator, in its
discretion, may refuse to sell shares of common stock deposited in the
Plan for safekeeping or purchased with optional cash payments which have
been in a participant's account for less than 90 days. The participant
will pay any related brokerage commissions and applicable taxes and will
receive the proceeds of the sale less these amounts. SHARES OF PREFERRED
STOCK HELD IN THE PLAN WILL NOT BE SOLD FOR PARTICIPANTS.
Beneficial owner participants who want to sell shares of common stock
purchased on their behalves through the Plan must effect such sales
through their brokers or other nominee shareholders of record.
WITHDRAWAL FROM THE PLAN
In order to withdraw from the Plan, a participant must notify the Plan
Administrator in writing that he or she wishes to withdraw.
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Upon the withdrawal by a participant from the Plan, either (a)
certificates for whole shares of common and preferred stock held in such
participant's account will be issued and a payment will be made for any
fraction of a share of common stock, or (b) if the participant has
requested that all of the whole shares of common stock held in such
participant's account be sold, those shares will be sold in the manner
described under "Sale of Shares," the participant will receive the net
proceeds of the sale, plus payment for any fractional share, and a
certificate for any shares of preferred stock held in such account will be
issued.
If the request to withdraw is received by the Company on or prior to a
dividend record date, that dividend and all subsequent dividends upon
shares registered in the former participant's name will be paid by
electronic funds transfer or check. If the request to withdraw is
received by the Company after a dividend record date, that dividend will
be reinvested for the participant's account and all subsequent dividends
upon shares registered in the former participant's name will be paid by
electronic funds transfer or check.
If the request to withdraw is received by the Company prior to the
twenty-eighth day of any month, any optional cash payment which the
Company is holding will be returned. If the request is received after the
twenty-seventh day of any month, any optional cash payment being held will
be invested during the next Purchase Period.
The sale by a participant of all shares of common and preferred stock
registered in his or her name will not affect that participant's
participation in the Plan.
Beneficial owner participants who wish to withdraw from Plan
participation must do so through their brokers or other nominee
shareholders of record.
RE-ENTRY
Generally, a former participant in the Plan may elect to again
participate at any time. However, the Plan Administrator reserves the
right to reject any such re-entry for any reason whatsoever.
CHANGE IN MANNER OF PARTICIPATION
A participant may change the extent to which dividends are reinvested
by completing a new Authorization Form specifying the change and sending
it to the Plan Administrator, Investor Services. Changes with respect to
dividend reinvestment become effective with respect to the next dividend
payment if the Authorization Form is received by the Plan Administrator on
or prior to the record date for that dividend. Changes with respect to
automatic cash payments may be made in the manner described under "Cash
Payments-Automatic Cash Payments."
Beneficial owner participants who wish to change the extent to which
they participate in the Plan must do so through their broker or other
nominee shareholders of record.
SAFEKEEPING
A participant may deposit certificates representing shares of the
Company's common stock and preferred stock registered in his or her name
into his or her Plan account for safekeeping.
Certificates representing shares to be deposited for safekeeping should
be sent, together with a completed Safekeeping Authorization Form, by
registered mail to the Plan Administrator, Investor Services, The Montana
Power Company, 40 E Broadway, Butte, Montana 59701-9394. Certificates
should not be endorsed. A Safekeeping Authorization Form may be obtained
at any time by request to the Plan Administrator.
It is suggested that participants use registered mail when sending
stock certificates, declaring a value equal to 2% of the market value of
the shares on the date of mailing. This amount would be the approximate
cost of replacing the certificates should they be lost in the mail.
It is the responsibility of the participant to retain his or her
records relative to the cost of any shares represented by certificates
deposited for safekeeping.
PARTICIPANTS' ACCOUNTS AND REPORTS
The Plan Administrator maintains an account for each participant. All
shares purchased for a participant under the Plan or delivered by a
participant for safe-keeping are credited to, and held in, such
participant's account. When certificates for shares are issued to, or
shares are sold for, a participant pursuant to the Plan, these shares are
withdrawn from such participant's account.
8
<PAGE>
In addition to a quarterly statement of his or her account, each
participant receives a statement following each purchase of additional
shares with optional cash payments, each sale of shares and each
withdrawal of certificates for shares and upon withdrawal from the Plan.
THESE STATEMENTS ARE A PARTICIPANT'S CONTINUING RECORD OF THE COST OF
SHARES PURCHASED, THEIR BASIS FOR FEDERAL INCOME TAX PURPOSES, THE
PROCEEDS OF SALES AND THE AMOUNT OF DIVIDENDS REPORTABLE FOR FEDERAL
INCOME TAX PURPOSES, AND SHOULD BE RETAINED FOR INCOME TAX PURPOSES. In
addition, each participant receives each revised Prospectus for the Plan
and copies of the same communications sent to all holders of common and
preferred stock, including the Company's Annual Report and any Quarterly
Reports to Shareholders, Notice of Annual Meeting and Proxy Statement and
tax information for reporting dividends paid.
Brokers and other nominee shareholders of record participating in the
Plan receive from the Company, shortly after each dividend payment date, a
statement identifying each account designated for reinvestment and showing
for each such account the number of shares with respect to which dividends
were to be reinvested, the total dividends paid, the number of shares
purchased, the total cost of the shares, the amount of uninvested
dividends remaining, the fair market (taxable) value of the shares and the
total dividends reportable for Federal income tax purposes. With the
statement, the broker or other nominee receives one certificate registered
in its name for the total number of shares purchased for all of the
designated accounts and a check for the total amount of uninvested
dividends.
Beneficial owner participants must look to their broker or other
nominee for accounts and records of their participation in the Plan.
SHARES PLEDGED
Shares held in a participant's account may not be pledged.
SHAREHOLDER VOTING
Participants receive proxy cards covering total shares held, including
shares held directly and shares held under the Plan. If a proxy card is
returned properly signed and marked for voting, the shares covered are
voted as marked. If a proxy card is returned properly signed, but without
instructions as to the manner shares are to be voted with respect to any
item thereon, the shares covered are voted in accordance with the
recommendations of the Company's Board of Directors. If the proxy card is
not returned, or if it is returned unexecuted or improperly executed, the
shares covered are not voted.
RESPONSIBILITY OF THE PLAN ADMINISTRATOR, THE CUSTODIAN AND THE BROKER
The Broker shall not have any responsibility with respect to this
Prospectus or the administration of the Plan. The Broker, in acting as
agent for participants, the Plan Administrator, in administering the Plan,
and the Custodian, in holding shares under the Plan, are not liable for
any act done in good faith or for any good faith omission to act,
including, without limitation, any claim of liability (a) arising out of
failure to terminate a participant's Plan participation upon such
participant's death prior to receipt of legally sufficient instructions
with respect thereto, and (b) with respect to the prices at which shares
are purchased or sold for participants' accounts and the times at which
such purchases or sales are made.
PARTICIPANTS SHOULD RECOGNIZE THAT THE COMPANY CANNOT ASSURE
PARTICIPANTS OF PROFITS, OR PROTECT PARTICIPANTS AGAINST LOSSES, ON THE
SHARES PURCHASED UNDER THE PLAN, OR ASSURE PARTICIPANTS OF FUTURE
DIVIDENDS.
MODIFICATION OR TERMINATION OF PLAN; TERMINATION OF PARTICIPANTS
The Company reserves the right to suspend, modify or terminate the Plan
at any time and to interpret and regulate the Plan as it deems necessary
or desirable in connection with the operation of the Plan. The Company
also reserves the right, at its discretion, to terminate participants who
no longer actively participate in the Plan and whose Plan account contains
less than one hundred shares. All affected participants will receive
notice of any such suspension, modification or termination. In the event
of any such termination, affected participants' shares held under the Plan
will be delivered or sold in the manner described under "Withdrawal."
PARTICIPATION BY FOREIGN AND OTHER HOLDERS SUBJECT TO WITHHOLDING
Dividends reinvested by foreign persons, such as foreign corporations,
trusts and estates and individuals who are not citizens or residents of
the United States, whose dividends are subject to United States income tax
withholding or other holders of common stock whose dividends are subject
to United States back-up withholding, will be reinvested in an amount
equal to the dividends less the amount of tax required to be withheld.
Statements
9
<PAGE>
confirming purchases made for such participants will indicate the net
dividend reinvested and amount of tax withheld.
COMMUNICATIONS
All communications concerning the Plan should be directed to the Plan
Administrator as follows:
Plan Administrator, Investor Services
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9394
Telephone: (out of Montana) 1-800-245-6767 or (in Montana)
1-800-325-6767
Fax: (406) 497-2149
TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN
The current Federal income tax consequences to a participant in the
Plan will be as follows:
With respect to reinvested cash dividends used to purchase authorized
but unissued shares from the Company, a participant is treated for Federal
income tax purposes as having received a distribution in an amount equal
to the fair market value on the dividend payment date of the full number
of shares and any fractional share purchased with reinvested dividends.
The fair market value of such shares on the dividend payment date will be
treated as dividend income to the participant to the extent of current or
accumulated earnings and profits of the Company, as determined for Federal
income tax purposes. The basis of the shares so purchased is equal to the
fair market value of such shares on the dividend payment date.
With respect to reinvested cash dividends used to purchase shares in
the open market or through negotiated transactions, a participant is
treated for Federal income tax purposes as having received a distribution
in an amount equal to the cash used to purchase the shares and to pay the
brokerage commissions to obtain the shares. Such distribution will be
treated as dividend income to the participant to the extent of current or
accumulated earnings and profits of the Company, as determined for Federal
income tax purposes. The basis of the shares so purchased is equal to the
amount of this distribution.
A participant who purchases shares with optional cash payments
recognizes no taxable income upon such purchases. The basis of shares
purchased in this manner is the amount of the optional cash payment.
A participant is not in receipt of taxable income upon the distribution
to such participant of certificates for shares purchased under the Plan.
Upon the subsequent sale of these shares, or upon the sale by the Company
of shares held for his or her account, the participant recognizes capital
gain or loss on the sale measured by the difference between the amount the
participant receives and his or her tax basis for the shares sold.
The foregoing is a general statement of Federal income tax consequences
only. Each participant should consult his or her own tax advisor as to
the specific application of the tax rules governing the Plan as they
relate to such participant. The statements of account sent to
participants should be retained for this purpose.
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 March 15, 1995,
1,919,589 shares of the preferred stock and 53,819,717 shares of the
common stock were issued and outstanding. In addition, options to
purchase 474,864 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 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
fourteen
10
<PAGE>
members, approximately one-third 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 (1) 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 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 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 preemptive
rights.
Change of Control: The Company's Restated Articles of 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).
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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 Bank
Montana, National Association, Butte, Montana.
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, 1994, 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. The
statements made as to matters of law and legal conclusions under "Tax
Consequences of Participation in the Plan" herein have been reviewed by
Reid & Priest LLP, tax counsel, and are set forth herein upon the
authority of such counsel, as expert. As of March 15, 1995, Mr. Zimmerman
owned approximately 2,059 shares through the Company's Deferred Savings
and Employee Stock Ownership Plan and has 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 $268,157
on that date.
12
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==========================================================================
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 BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY OR AN OFFER TO
SELL OR 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 HEREUNDER, UNDER ANY
CIRCUMSTANCES, SHALL CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY OR ITS SUBSID- IARIES SINCE THE DATE HEREOF
OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SINCE ITS DATE.
____________
TABLE OF CONTENTS
PAGE
----
Available Information . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Advantages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Enrollment and Optional Cash Payment Deadlines . . . . . . . . . . 5
Number of Common Shares Purchased for Participants . . . . . . . . 6
Cash Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Per Share Price . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Dividends on Fractional Shares . . . . . . . . . . . . . . . . . . 7
Certificates for Shares; Deposits and Withdrawals . . . . . . . . . 7
Sale of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Withdrawal from the Plan . . . . . . . . . . . . . . . . . . . . . 7
Re-entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Change in Manner of Participation . . . . . . . . . . . . . . . . . 8
Safekeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Participants' Accounts and Reports . . . . . . . . . . . . . . . . 8
Shares Pledged . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Shareholder Voting . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsibility of the Plan Administrator,
the Custodian and the Broker . . . . . . . . . . . . . . . . . . 9
Modification or Plan Termination . . . . . . . . . . . . . . . . . 9
Participation by Foreign and Other Holders Subject to Withholding . 9
Communications . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tax Consequences of Participation in the Plan . . . . . . . . . . . 10
Description of Common Stock . . . . . . . . . . . . . . . . . . . . 10
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
==========================================================================
THE MONTANA POWER COMPANY
____________________
P R O S P E C T U S
____________________
DIVIDEND REINVESTMENT
AND
STOCK PURCHASE PLAN
, 1995
==========================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
*Filing fee-Securities and Exchange Commission . . . . . . . . . $15,647
Stock exchange listing fees . . . . . . . . . . . . . . . . . . . 17,250
Legal fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Auditor's fees . . . . . . . . . . . . . . . . . . . . . . . . . 2,000
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 6,103
------
Total expenses . . . . . . . . . . . . . . . . . . . . . . . . $85,000
=======
_________________
*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.
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(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 (1)(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 indemnify 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.
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<PAGE>
(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 (1)(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.
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<PAGE>
(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, by-laws, general or specific action of its board of
directors, or contract.
* * * * * *
The by-laws 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.
II-4
<PAGE>
ITEM 16. LIST OF EXHIBITS.
Incorporated by Reference
-------------------------
PREVIOUS EXHIBIT
EXHIBIT NO. FILING DESIGNATION
----------- -------- -----------
4(a) Restated Articles of 33-56739 4(a)
Incorporation, as amended.
4(b) By-laws, as amended.
4(c) Rights Agreement dated as of 33-42882 4(d)
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) and 8 Opinion of Reid & Priest LLP.
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 LLP
(included in Exhibit 5(b)).
24 Power of Attorney (See page II-6).
II-5
<PAGE>
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 Section 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 Section 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 or her attorney-in-fact to sign in his or
her name and behalf,
II-6
<PAGE>
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.
II-7
<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 28th day of March, 1995.
THE MONTANA POWER COMPANY
By D. 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/ D. T. Berube
------------------------------ Chairman of March 28, 1995
D. T. Berube the Board,
(Principal Executive Officer) Chief Executive
Officer
/s/ J. P. Pederson
------------------------------ Vice President March 28, 1995
J. P. Pederson and Chief
(Principal Financial and Financial
Accounting Officer) Officer
/s/ D. T. Berube
------------------------------ Director March 28, 1995
D. T. Berube
/s/ A. F. Cain
------------------------------ Director March 28, 1995
A. F. Cain
/s/ R. D. Corette
------------------------------ Director March 28, 1995
R. D. Corette
/s/ K. Foster
------------------------------ Director March 28, 1995
K. Foster
/s/ R. P. Gannon
------------------------------ Director March 28, 1995
R. P. Gannon
/s/ B. D. Harris
------------------------------ Director March 28, 1995
B. D. Harris
/s/ C. T. Hibbard
------------------------------ Director March 28, 1995
C. T. Hibbard
II-8
<PAGE>
Signature Title Date
--------- ----- ----
/s/ D. P. Lambros
------------------------------ Director March 28, 1995
D. P. Lambros
/s/ C. Lehrkind, III
------------------------------ Director March 28, 1995
C. Lehrkind, III
/s/ J. P. Lucas
------------------------------ Director March 28, 1995
J. P. Lucas
/s/ A. K. Neill
------------------------------ Director March 28, 1995
A. K. Neill
/s/ J. P. Pederson
------------------------------ Director March 28, 1995
J. P. Pederson
/s/ G. H. Selover
------------------------------ Director March 28, 1995
G. H. Selover
/s/ N. E. Vosburg
------------------------------ Director March 28, 1995
N. E. Vosburg
II-9
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
------- ----
4(b) By-laws, as amended.
5(a) Opinion of Michael E.
Zimmerman, Esq.
5(b) and 8 Opinion of Reid & Priest LLP.
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 LLP
(included in Exhibit 5(b)).
24 Power of Attorney (See page II-6).
EXHIBIT 4(b)
BYLAWS
OF
THE MONTANA POWER COMPANY
Adopted on : September 22, 1992
As Amended on : December 13, 1994
January 24, 1995
March 28, 1995
<PAGE>
THE MONTANA POWER COMPANY
AMENDMENTS TO BYLAWS
Article Amendment Date of Amendment
------- --------- -----------------
11 Establishment of the December 13, 1994
number of Directors as
fourteen (14).
(See Attachment A hereto.)
11 The Directors shall be divided January 24, 1995
into three groups, each as
nearly equal as possible.
Each group of Directors shall
stand for election upon
expiration of their terms.
Directors shall hold
office for a term of three (3)
years or until a successor is
duly elected and qualified.
(See Attached B hereto).
2. Establishment of notification March 28, 1995
procedure in order for
shareholder proposals and
nominations to be eligible
to be made at the meeting of
shareholders.
(See Attachment C).
<PAGE>
ATTACHMENT A
------------
THE MONTANA POWER COMPANY
CERTIFICATION OF RESOLUTION
I, R. M. Ralph, Assistant Secretary of The Montana
Power Company, a corporation, hereby certify that the
following is a full, true and correct copy of Resolution
duly adopted by the Board of Directors of The Montana Power
Company at a meeting duly called and held December 13, 1994
and that said Resolution is in full force and effect as of
the date of this certificate.
RESOLVED, that effective January 1, 1995, the
first sentence of Section 11 of the Bylaws of The
Montana Power Company is hereby amended to reduce the
number of Directors to fourteen (14) as follows:
SECTION 11. The affairs of the Corporation shall
be managed by a Board of fourteen (14) Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and the
Seal of said Corporation this 6th day of January 1995.
/s/ R. M. Ralph
--------------------------------
R. M. Ralph, Assistant Secretary
(SEAL)
<PAGE>
ATTACHMENT B
------------
THE MONTANA POWER COMPANY
CERTIFICATION OF RESOLUTION
I, R. M. Ralph, Assistant Secretary of The Montana
Power Company, a corporation, hereby certify that the
following is a full, true and correct copy of Resolution
duly adopted by the Board of Directors of The Montana Power
Company at a meeting duly called and held January 24, 1995
and that said Resolution is in full force and effect as of
the date of this certificate.
RESOLVED, that the Board of Directors hereby finds
it to be advisable and in the best interest of the
Corporation that the first paragraph of Section 11 of
the Corporation's Bylaws, as amended, be amended to
read as follows:
"The affairs of the Corporation shall be
managed by a Board of fourteen (14) Directors.
The Directors shall be divided into three groups,
each as nearly equal in number as possible. Each
group of Directors shall stand for election upon
expiration of their terms. Directors shall hold
office for a term of three (3) years or until a
successor is duly elected and qualified."
IN WITNESS WHEREOF, I have hereunto set my hand and the
Seal of said Corporation this 14th day of March 1995.
/s/ R. M. Ralph
--------------------------------
R. M. Ralph, Assistant Secretary
(SEAL)
<PAGE>
ATTACHMENT C
------------
THE MONTANA POWER COMPANY
CERTIFICATION OF RESOLUTION
I, R. M. Ralph, Assistant Secretary of The Montana
Power Company, a corporation, hereby certify that the
following is a full, true and correct copy of Resolution
duly adopted by the Board of Directors of The Montana Power
Company at a meeting duly called and held March 28, 1995 and
that said Resolution is in full force and effect as of the
date of this certificate.
RESOLVED, that the Board of Directors hereby finds
it to be advisable and in the best interest of the
Corporation that Section 3 of the Corporation's Bylaws,
as amended, be amended to read in its entirety as
follows:
"Section 3. (A) Annual Meeting of Shareholders.
-------------------------------
(1) The annual meeting of the shareholders of the
Corporation for the election of Directors and such
other business as shall properly come before such
meeting shall be held on (a) the second Tuesday in May
in each year, unless that date is a legal holiday, in
which case such meeting shall be held on the first day
thereafter which is not a legal holiday, or (b) at such
other date and/or time as may be fixed by resolution of
the Board of Directors. Nominations of persons for
election to the Board of Directors of the Corporation
and the proposal of business to be considered by the
shareholders may be made at an annual meeting of
shareholders (a) pursuant to the Corporation's notice
of meeting delivered pursuant to Section 5 of these
Bylaws, (b) by the Board of Directors pursuant to a
resolution duly adopted or (c) by any shareholder of
the Corporation who is entitled to vote at the meeting,
who complied with the notice procedures set forth in
clauses (2) and (3) of paragraph (A) of this Bylaw and
who was a shareholder of record at the time such notice
is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be
properly brought before an annual meeting by a
shareholder pursuant to clause (c) of paragraph (A) (1)
of this Bylaw, the shareholder must have given timely
notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 120
days in advance of the anniversary date of the release
of the Corporation's proxy statement made in connection
with the previous annual meeting; provided, however,
that in the event that the date of the annual meeting
is advanced by more than twenty days, or delayed by
more than seventy days, from the anniversary date of
the previous annual meeting, notice by the shareholder
to be timely must be so delivered not later than the
close of business on the later of the 120th day prior
to such annual meeting or the tenth day following the
day on which public announcement of the date of such
meeting is first made. Such shareholder's notice shall
set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a
Director all information relating to such person that
is required to be disclosed in solicitations of proxies
for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written
consent to being named in the proxy statement of the
nominator as a nominee and to serving as a Director if
elected; (b) as to any other business that the
shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought
before the meeting, the reasons for conducting such
business at the meeting and any material interest in
such business of such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made;
and (c) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address
of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and
(ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (A) (2) of this Bylaw to the
contrary, in the event that the number of Directors to
be elected to the Board of Directors is increased and
the public announcement naming all of the nominees for
Director or specifying the size of the increased Board
of Directors is not made by the Corporation at least
ten days prior to the date by which shareholders
proposals and nominations must be received by the
Corporation, a shareholder's notice required by this
Bylaw shall also be considered timely, but only with
respect to nominees for any new positions created by
such increase, if it shall be delivered to the
Secretary at the principal executive offices of the
Corporation not later than the close of business on the
tenth day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meeting of Shareholders. Only such
--------------------------------
business shall be conducted at a special meeting of
shareholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting
pursuant to Section 5 of these Bylaws. Nominations of
persons for election to the Board of Directors may be
made at a special meeting of shareholders at which
Directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any
shareholder of the Corporation who is entitled to vote
at the meeting, who complies with the notice procedures
set forth in this Bylaw and who is a shareholder of
record at the time such notice is delivered to the
Secretary of the Corporation. Nominations by
shareholders of persons for election to the Board of
Directors may be made at such a special meeting of
shareholders if a shareholder's notice as described in
the third sentence of paragraph (A) (2) of this Section
3 of the Bylaws shall be delivered to the Secretary at
the principal executive offices of the Corporation not
later than the close of business on the later of the
seventieth day prior to such special meeting or the
tenth day following the day on which public
announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated
--------
in accordance with the procedures set forth in this
Bylaw shall be eligible to serve as Directors and only
such business shall be conducted at a meeting of
shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in
this Bylaw. Except as otherwise provided by the laws
of the State of Montana, the Restated Articles of
Incorporation of the Corporation or these Bylaws, the
chairman of the meeting shall have the power and duty
to determine whether a nomination or any business
proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Bylaw
and, if any proposed nomination or business is not in
compliance with this Bylaw, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a
document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of
this Bylaws, a shareholder shall also comply with all
applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the
matters set forth in this Bylaws. Nothing in this
Bylaw shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act."
IN WITNESS WHEREOF, I have hereunto set my hand and the
Seal of said Corporation this 29th day of March 1995.
/s/ R. M. Ralph
--------------------------------
R. M. Ralph, Assistant Secretary
(SEAL)
<PAGE>
1.02
As Amended September 22, 1992
BYLAWS
OF
THE MONTANA POWER COMPANY
SECTION 1. The principal office of the corporation is
40 East Broadway, Butte, State of Montana. The Corporation
may also have offices at such other places within or without
the State of Montana as the Board of Directors shall from
time to time determine.
SECTION 2. Meetings of the shareholders and meetings
of the Board of Directors shall be held in Butte, Montana,
or, upon resolution by the Board of Directors, may be held
at another place, within or without the State of Montana.
SECTION 3. The annual meeting of the shareholders of
the Corporation for the election of Directors and such other
business as shall properly come before such meeting shall be
held on the second Tuesday in May in each year, unless that
date is a legal holiday, in which case such meeting shall be
held on the first day thereafter which is not a legal
holiday.
Any holder of shares of the Voting Stock may nominate
one or more persons for election as directors at a
shareholders meeting but only if written notice of such
shareholder's intent to make such nomination or nominations
has been given to the Corporate Secretary not later than the
date fixed for the submission of proposals by shareholders.
The notice shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the
person or persons to be nominated; (b) a representation that
such shareholder is a holder of record of shares of the
Corporation and intends to appear in person or by proxy at
the meeting to nominate the person or persons identified in
the notice; (c) a description of all arrangements or
understandings between such shareholder and each nominee and
any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be
made by such shareholder; (d) such other information
regarding each nominee as would be required to be included
in a proxy statement under the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
if the nominee(s) had been nominated, or were intended to be
nominated, by the Board of Directors; and (e) the consent of
each nominee to serve as a Director of the Corporation if so
elected. The Chairman of the meeting may refuse to
acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
SECTION 4. Special meetings of the shareholders of the
Corporation may be held upon the call of the Board of
Directors, Chairman of the Board, Vice Chairman of the
Board, Chief Executive Officer, President, or holders of at
least ten percent (10%) of the number of shares outstanding
and entitled to vote thereat, in Butte, Montana.
SECTION 5. Notice of every meeting of shareholders
shall be mailed by the Secretary at least ten (10) days
before the meeting, to each holder of record of shares
entitled to vote thereat, at the last known post office
address appearing upon the records of the Corporation
(unless there is provided under the laws of the State of
Montana a different provision for notice of meeting)
provided, however, that if a shareholder waives notice
thereof in writing before or after the meeting, notice of
the meeting to such shareholder is unnecessary.
SECTION 6. The holders of a majority of the number of
shares of the Corporation entitled to vote, present in
person or by proxy, shall constitute a quorum, but less than
a quorum shall have power to adjourn any meeting from time
to time, or to a day certain.
SECTION 7. At every meeting of shareholders, each
holder of shares entitled to vote thereat shall be entitled
to one vote for each share held and may vote and otherwise
act in person or by proxy.
SECTION 8. Not less than two (2) business days after
notice has been given of a meeting of the shareholders, a
full list of the holders of shares entitled to vote at such
meeting, arranged in alphabetical order, with the residence
of each and the number of such shares held by each, shall be
prepared by the Secretary or Officer designated by the Board
of Directors and filed in the principal office of the
Corporation, which shall, at all times during the usual
hours of business and during the meeting or vote, be kept
open to the examination of any shareholder.
SECTION 9. Share certificates shall be of such form and
device as the Board of Directors may determine, and shall be
signed by the Chairman of the Board of Directors, Vice Chairman,
Chief Executive Officer, President or a Vice President and the
Secretary or an Assistant Secretary, and sealed with the
seal of the Corporation, but where such certificates are
signed by a transfer agent or an assistant transfer agent
and a registrar, the signatures of the Chairman of the Board
of Directors, Vice Chairman of the Board, the Chief
Executive Officer, President, Vice President, Secretary or
Assistant Secretary and the seal of the Corporation may be
facsimiles.
SECTION 10. The shares of the Corporation shall be
transferable or assignable on the books of the Corporation
by the holders in person or by attorney on the surrender of
the certificates therefor. The Board of Directors may
appoint one or more transfer agents and registrars of the
shares. The Books for the transfer of the shares may be
closed for such period before and during any meeting of
shareholders, the payment of any dividend, the allotment of
rights or the date when any change or conversion or exchange
of shares shall go into effect, not to exceed seventy (70)
days at any one time, as the Board of Directors may from
time to time determine.
SECTION 11. The affairs of the Corporation shall be
managed by a Board of fifteen (15) Directors. Each shall
hold office for a term of three (3) years or until a
successor is duly elected and qualified.
The number of Directors may be increased or decreased
from time to time by amendment to these Bylaws duly adopted
by the Directors, but no increase or decrease shall exceed
thirty percent (30%) of the number provided for immediately
before the change if that number was fixed by the
shareholders. No decrease in the number of Directors shall
have the effect of shortening the term of any incumbent
Director. The classification and term of Directors may be
changed from time to time by amendment to the Bylaws duly
adopted by the Directors, but no such change shall affect
the term of any incumbent director.
The shareholders at any meeting, by the vote of two-
thirds of the number of shares outstanding and entitled to
vote for the election of Directors, may remove any Director
and fill the vacancy. If less than the entire Board is to
be removed, no Director may be removed if the votes cast
against his removal would be sufficient to elect him if then
cumulatively voted at an election of the class of Directors
of which he is a part.
Vacancies in the Board of Directors may be filled by
the Board at any meeting at which a quorum is present. If
the Directors remaining in office are fewer than a quorum,
the vacancy may be filled by the vote of a majority of the
Directors remaining in office. Any Director appointed by
the Board to fill a vacancy created in the Board of
Directors by virtue of an increase in the number of
Directors shall hold office until the next regular annual
meeting of the shareholders at which time the shareholders
shall elect a person to fill such office.
The Company shall indemnify each present or future
Director and Officer of the Company in the manner provided
in Sections 35-1-451 through 35-1-459, M.C.A. 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.
SECTION 12. Meetings of the Board of Directors shall
be held at the times fixed by resolution of the Board or
upon call of the Chairman of the Board, Vice Chairman of the
Board, the Chief Executive Officer, the President or any two
Directors. The Secretary shall give reasonable notice
(which need not exceed two days) of all meetings of
Directors, provided that a meeting may be held without
notice immediately after the annual election, and notice
need not be given of regular meetings held at times fixed by
resolution of the Board. Meetings may be held at any time
without notice if all the Directors are present or if those
not present waive notice in writing either before or after
the meeting. Notice by mail, facsimile or telegraph to the
usual business or residence address of the Director not less
than the time above specified before the meeting shall be
sufficient. A majority of the Board shall constitute a
quorum, but any number less than a quorum may adjourn the
meeting from time to time, or to a day certain.
SECTION 13. The Board of Directors, as soon as may be
convenient after the election of Directors in each year,
shall elect one of their number Chairman of the Board and
may elect one of their number as Vice Chairman of the Board.
The Board shall also elect a President. The Board shall
either designate any one of these Officers as Chief
Executive Officer of the Corporation, or elect a Chief
Executive Officer separately.
The Board shall also elect a Secretary, a Treasurer, a
Controller, one or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, one
or more Assistant Controllers, and such other Officers as
they deem proper.
Any two or more offices may be held by the same person.
The term of office of all Officers shall be until the next
election of Directors and until their respective successors
are chosen and qualified, but any Officer may be removed
from office and any office may be abolished at any time by
the Board of Directors. Vacancies in the offices shall be
filled by the Board of Directors, save that the Chairman of
the Board, the Chief Executive Officer or the President may
from time to time appoint one or more Assistant Secretaries
and one or more Assistant Treasurers, or may remove such
officers; provided that the Board shall be notified of such
appointments or removals at the next following meeting of
the Board.
SECTION 14. The powers and duties of the Officers of
the Corporation shall be as follows:
The person designated by the Board to be the Chief
Executive Officer of the Corporation, under the direction of
the Board of Directors, shall have general authority over
all the affairs of the Corporation, and over all other
Officers, agents and employees of the Company. In the event
of the absence or disability of the Chief Executive Officer;
a) if the Chief Executive Officer is also Chairman of the
Board, then the provision made for that office shall govern,
and b) if the Chief Executive Officer is separately elected,
then the Chairman of the Board shall perform the duties of
that office until the absence ceases, the disability is
removed or the Board of Directors has named a successor.
The Chairman of the Board shall preside at all meetings
of the shareholders and at all meetings of the Board of
Directors, and shall also have authority to call special
meetings of the Board of Directors, of the Executive
Committee, and of any other standing or special committee
appointed by or upon the authority of the Board of
Directors. The Chairman of the Board shall call meetings of
the Executive Committee when requested by two of its
members, and shall do and perform all acts and things
incident to the position of Chairman. At the request of the
Chairman, in the case of absence, or upon a determination of
temporary disability of the Chairman by the Board of
Directors, the duties of that office will be performed by
the following officers, selected in the following order:
1) Chief Executive Officer, 2) Vice Chairman of the Board,
and 3) President.
A Vice Chairman of the Board shall have such duties and
authority as may be assigned by the Board of Directors or
the Chief Executive Officer.
The President shall have such duties and authority as
may be assigned by the Board of Directors or the Chief
Executive Officer.
Each Vice President shall have such authority and shall
perform such duties as shall from time to time be assigned
by the Board of Directors or the Chief Executive Officer.
The Treasurer shall have custody of all moneys and
funds of the Corporation, and shall cause to be kept full
and accurate records of receipts and disbursements of the
Corporation. The Treasurer shall deposit all moneys and
other valuables of the Corporation in the name and to the
credit of the Corporation in such depositaries as may be
designated by the Board of Directors, and shall disburse
such funds of the Corporation as have been duly approved for
disbursement. The Treasurer shall perform such other duties
as may from time to time be prescribed by the Board of
Directors or the Chief Executive Officer.
The Assistant Treasurers shall perform such duties as
may be assigned from time to time by the Chief Executive
Officer or by the Treasurer. In the absence or disability
of the Treasurer, the duties of that office shall be
performed by the Assistant Treasurer designated by the Chief
Executive Officer.
The Controller shall be the Administrative Officer in
charge of accounting functions of the Corporation. The Con-
troller shall perform such other duties as may from time to
time be prescribed by the Board of Directors, or by the
Chief Executive Officer.
The Assistant Controllers shall perform such duties as
may be assigned from time to time by the Chief Executive
Officer or by the Controller. In the absence or disability
of the Controller, the duties of that office shall be
performed by the Assistant Controller designated by the
Chief Executive Officer.
The Secretary shall attend all meetings of the Board of
Directors and of the Executive Committee and all meetings of
the shareholders, and shall record the minutes of all
proceedings in books to be kept for that purpose. The
Secretary shall be responsible for maintaining a proper
share register and stock transfer books for all classes of
shares issued by the Corporation and shall give, or cause to
be given, all notices required either by law or by the
Bylaws. The Secretary shall keep the seal of the
Corporation in safe custody and shall affix the seal of the
Corporation to any instrument requiring it and shall attest
the same. The Secretary shall have such other duties as may
be prescribed by the Board of Directors or the Chief
Executive Officer.
The Assistant Secretaries shall perform such duties as
may be assigned from time to time by the Chief Executive
Officer or by the Secretary. In the absence or disability
of the Secretary, the duties of that office shall be
performed by the Assistant Secretary designated by the Chief
Executive Officer.
Such other Officers as may from time to time be
appointed by the Board of Directors shall have such duties
and authority as may be assigned to them from time to time
by the Board or by the Chief Executive Officer.
SECTION 15. The Board of Directors, as soon as may be
convenient after the election of Directors in each year, may
by a resolution passed by a majority of the whole Board
appoint three or more of their number to constitute an
Executive Committee which, subject to the provisions of the
charter of the Corporation and of the Bylaws, shall have and
may exercise during the intervals between the meetings of
the Board all of the powers vested in the Board in the
management of the business, affairs and property of the
Corporation, except as limited by these Bylaws, the Articles
of Incorporation, the laws of the State of Montana, or a
resolution of the Board of Directors. The Board shall have
the power at any time to change the membership of such
Committee and to fill vacancies in it. The Executive
Committee may make rules for the conduct of its business and
may appoint such committees and assistants as it may deem
necessary. A majority of the members of said Committee
shall constitute a quorum.
The Board of Directors, by resolution adopted by a
majority of the full Board of Directors, may designate, from
time to time, from among its members one or more committees,
in addition to the Executive Committee, each of which, to
the extent provided by resolution adopted by a majority of
the full Board of Directors, shall have and may exercise all
of the authority of the Board of Directors, except to the
extent that the authority of any such committee expressly
shall be limited by the provisions of these Bylaws, of the
Articles of Incorporation or of the laws of the State of
Montana.
SECTION 16. The Board of Directors is authorized:
(a) To select such depositaries as they shall deem
proper for the funds of the Corporation. All checks, drafts
or orders for the payment of money against such deposited
funds and all notes and acceptances shall be signed and
countersigned by persons to be specified by the Board of
Directors or the Executive Committee.
(b) To authorize the payment of compensation to the
Directors for services to the Corporation, including fees
for attendance at meetings of the Board of Directors and of
the Executive Committee and all other committees and to
determine the amount or basis of such compensation and fees;
(c) To fix (in lieu of closing the stock transfer
books, as authorized by Section 10) in advance a date, not
exceeding seventy (70) days before and during any meetings
of shareholders, the payment of any dividend, the allotment
of rights, or the date when any change or conversion or
exchange of shares shall go into effect, as a record date
for the determination of the shareholders entitled to notice
of and to vote at any such meeting, or entitled to receive
payment of any such dividend, or any such allotment of
rights, or exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of
the Corporation after any such record date fixed as
aforesaid.
SECTION 17. The corporate seal of the corporation
shall be in such form as the Board of Directors shall
prescribe.
SECTION 18. Either the Board of Directors or the
shareholders entitled to vote for the election of Directors
may alter or amend these Bylaws at any meeting duly held as
above provided, the notice of which includes notice of the
proposed amendment. Any such alteration or amendment shall
be made in accordance with Section 35-1-234, M.C.A.
SECTION 19. The Board of Directors shall have
authority to sell, lease, exchange or otherwise dispose of,
the whole or any part of the property and assets of every
kind and description of the Corporation in the ordinary and
usual course of business, for property, cash, or for the
whole or any part of the capital stock of any other corpora-
tion, whether domestic or foreign, or otherwise, as the
Board may determine, and upon such terms and conditions as
the Board may determine. Said Board shall have plenary
powers in carrying out the authority herein granted.
The Board may mortgage or pledge any or all the
property and assets of the Corporation, whether or not in
the usual and regular course of business, upon such terms
and conditions, and for such consideration, which may
consist in whole or in part of money or property, real or
personal, including shares of any other corporation,
domestic or foreign, as shall be authorized by the Board of
Directors.
The Board may, by resolution, recommend the sale,
lease, exchange or other disposition of all or substantially
all the property and assets of the Corporation, and direct
the submission of the resolution to a vote of the
shareholders at either a regular or special meeting.
Written notice shall be given each shareholder, whether or
not entitled to vote at such meeting, at least thirty
(30) days before such meeting, and shall state that the
purpose, or one of the purposes, is to consider the proposed
sale, lease, exchange, or other disposition. At such
meeting, the affirmative vote of holders of two-thirds (2/3)
of the shares entitled to vote thereat is required to
authorize such sale, lease, exchange or other disposition.
Nevertheless, the Board may thereafter abandon such sale,
lease, exchange or other disposition without further
shareholder action.
SECTION 20. There is an administrative organization
within the corporation called the Office of the Corporation,
consisting of such persons as the Chief Executive Officer
may designate. The function of the Office of the
Corporation is to provide supervision, policy direction and
corporate services for all branches of the business of the
Company and its subsidiaries.
MONTANA POWER COMPANY, 40 East Broadway, Butte, Montana 59701
Exhibit 5(a)
March 30, 1995
The Montana Power Company
40 East Broadway
Butte, Montana 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 by The Montana Power Company of 2,000,000 shares of its
Common Stock pursuant to the Company's Dividend Reinvestment and
Stock Purchase Plan, 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. All of the outstanding shares of the Company's Common Stock
have been legally and validly issued, and are fully paid and
nonassessable.
3. All action necessary to make any authorized but unissued
shares of the Stock which may be purchased from the Company
pursuant to the Plan legally and validly issued, fully paid
and nonassessable will have been taken when:
a. the Registration Statement shall have become effective;
b. the issuance and sale of the stock shall have been
authorized by an appropriate order or orders of the
Public Service Commission of Montana;
c. appropriate action shall have been taken by the
Company's Board of Directors with respect to the
issuance and sale of the stock; and
d. the Stock shall have been issued and delivered for the
consideration contemplated in the Registration
Statement.
I am a member of the Bar of the State of Montana, but not of the
States of Idaho and Wyoming. In rendering this opinion, I have
made such review of the laws of the States of Idaho and Wyoming
and have had such consultations with counsel qualified to
practice in such States as I believe to be necessary to render
this opinion.
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
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 W. 57th Street
New York, NY 10019-4097
(212) 603-2000
Exhibits 5(b) and 8
March 31, 1995
The Montana Power Company
40 East Broadway
Butte, Montana 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 by The Montana Power
Company of 2,000,000 shares of its Common Stock pursuant to
the Company's Dividend Reinvestment and Stock Purchase
Plan, 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. All action necessary to make any authorized
but unissued shares of the Stock which may be purchased
from the Company pursuant to the Plan legally and validly
issued, fully paid and nonassessable will have been taken
when:
(a) the Registration Statement shall have
become effective;
(b) the issuance and sale of the Stock
shall have been authorized by an appropriate
order or orders of the Public Service Commission
of Montana; and
(c) the Stock shall have been issued and
delivered for the consideration contemplated in
the Registration Statement.
3. The Statements made in the Registration
Statement under the heading, "Tax Consequences of
Participation in the Plan", constitute an accurate general
description of the Federal income tax consequences to
participants of participation in the Plan.
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, Idaho and Wyoming law upon the
opinion addressed to you, of even date herewith, of Michael
E. Zimmerman, Esq., Vice President and General Counsel of
the Company.
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 LLP
REID & PRIEST LLP
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, 1995 which appears on
page 43 of the Montana Power Company's Annual Report on Form 10-K
for the year ended December 31, 1994. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Portland, Oregon
March 30, 1995
