SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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 (IRS Employer
of incorporation or organization) Identification No.)
40 East Broadway
Butte, Montana 59701
(address of principal executive offices) (Zip Code)
The Montana Power Company
1998 Long-Term Incentive Plan
(full title of the plan)
R.P. GANNON, Chairman of the Board JOHN T. HOOD, ESQ.
and Chief Executive Officer Thelen Reid & Priest LLP
40 West 57th Street
J.P. PEDERSON, Vice President and Chief New York, New York 10019
Financial & Information Officer 212-603-2000
The Montana Power Company
40 East Broadway
Butte, Montana 59701
406-723-5421
(Names, addresses and telephone numbers,
including area codes, of agents for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Each Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
Being to be Price Offering Registration
Registered Registered(1) Per Unit(2) Price(2) Fee
Common Stock, 2,000,000 $33.88 $67,760,000 $19,989.20(3)
without par value shares
Preferred Share 2,000,000
Purchase Rights rights (3)
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of
1933, as amended (the "Act"), this Registration Statement also
covers any additional securities to be offered or issued in
connection with a stock split, stock dividend or similar
transaction.
(2) Estimated solely for purposes of calculating the registration fee
in accordance with Rule 457(h) under the Act.
(3) The Preferred Share Purchase Rights (the "Rights") are appurtenant
to and will trade with the Common Stock. The value attributable
to the Rights, if any, is reflected in the market price of the
Common Stock. Since no separate consideration is paid for the
rights, the registration fee for such securities is included in
the registration fee for the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Company hereby incorporates herein by reference the
following documents previously filed by the Company with the
Securities and Exchange Commission: the Annual Report on Form 10-
K405 for the year ended December 31, 1997, the Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998, and the
Current Reports on Form 8-K dated January 27, 1998 and April 23,
1998.
All documents subsequently filed by the Company under
Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference and to be a part hereof
from the date of filing of such documents. Any statement
contained in an incorporated document shall be deemed to be
modified or superseded to the extent that a statement contained
herein or in any subsequently filed incorporated document
modifies or supersedes such statement.
Item 4. Description of Common Stock
The following 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, Bylaws, as amended, and Rights
Agreement, which are exhibits to the Registration Statement, for
complete statements. The following statements are qualified in
their entirety by such references.
Authorized and Outstanding Stock: The Company has 125,000,000
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authorized shares, without par value, divided into 5,000,000
shares of Preferred Stock and 120,000,000 shares of Common Stock.
On July 30, 1998, 580,389 shares of the Preferred Stock and
54,999,879 shares of the Common Stock were issued and
outstanding. In addition, options to purchase 415,146 shares of
Common Stock under the previous Long Term Incentive Plan and Key
Employees Stock Ownership 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 Stock or Common
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Stock of the Company is entitled to vote cumulatively for the
election of Directors, and otherwise to one vote for each share
held. The Board of Directors has 13 members, four or five of
whom are elected at each annual meeting for a term of three
years. In general, the presence of a majority of the outstanding
shares of the Preferred Stock 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 Stock 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, as amended, 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 and
the $6.875 Series; and (2) the affirmative vote of a majority of
the outstanding shares of Preferred Stock and Common Stock to
create a new class of stock, or for shareholder amendment of the
Bylaws. The Restated Articles of Incorporation, as amended, also
require the affirmative vote of two thirds of the shares of the
Preferred Stock voting at a meeting called for that purpose 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.
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Dividend Rights: Each series of the Preferred Stock is
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entitled, in preference to the Common Stock, to (a) cumulative
dividends at the annual rates established for that series and (b)
mandatory redemption payments if provided for that series. After
full provision for Preferred Stock dividends and mandatory
redemption payments, if any, the Common Stock is entitled to
dividends declared out of any remaining funds available therefor.
Liquidation Rights: In liquidation, the Preferred Stock is
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entitled, in preference to the Common Stock, to the amount per
share fixed by the Board of Directors in the resolutions
providing for the issuance of each particular series plus
accumulated unpaid dividends. Thereafter, the Common Stock is
entitled to all remaining assets.
Preemptive Rights: Holders of the Common Stock do not have
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preemptive rights.
Change of Control: The Company's Restated Articles of
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Incorporation, as amended, 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 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 shall be mailed-to holders of outstanding Voting
Shares 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
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Stock have one Preferred Share Purchase Right (each a "Right")
entitles for each share of Common Stock. Each Right, evidenced
by and traded with the shares of Common Stock, entities the
shareholder to purchase one one-hundredth of a share of
Participating Preferred Shares, A Series, at an exercise price of
$120.00, subject to certain adjustments. The Rights will be
exercisable only if a person or group acquires 20% or more of the
Company's Voting Shares or announces a tender offer, the
consummation of which would result in the beneficial ownership by
a person or group of 20% or more of the Company's Voting Shares.
If any person or group acquires 20% or more of the
outstanding Voting Shares of the Company, each Right will entitle
its holder (other than such person or members of such group) to
purchase a number of shares of Common Stock or Participating
Preferred Shares, A Series, having a market value of twice the
Right's exercise price. If any person or group acquires between
20% and 50% of the outstanding Voting Shares of the Company, the
Board of Directors of the Company may, subject to requisite
regulatory approval, if any, require each outstanding Right to be
exchanged for one share of Common Stock or one one-hundredth of a
Participating Preferred Share, A Series (or assets in lieu
thereof).
In addition, after any person or group has acquired 20% or
more of the outstanding Voting Shares of the Company, the Company
may not consolidate or merge with, or sell 50% or more of its
assets or earning power to, any person or group, or engage in
certain "self-dealing" transactions with any person or group
owning 20% or more of the outstanding Voting Shares of the
Company, unless proper provision is made so that each Right would
thereafter entitle its holder to purchase a number of the
acquiring company's common shares having a market value at that
time of twice the Right's exercise price.
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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 Montana Power Company and First Chicago
Trust Company of New York. The Registrars are First Chicago
Trust Company of New York and U.S. Bank National Association
Montana N.A., Butte, Montana.
Item 5. Interests of Named Experts and Counsel
As of June 30, 1998, Mr. Zimmerman owned approximately 3,593
shares through the Company's Employee Retirement Savings Plan and
500 shares of the Company's Common Stock. Additionally, he has
been granted options to purchase 7,100 shares at $22.625 per
share, the market price existing on the date of such grant,
September 16, 1994; 7,100 shares at $22.50 per share, the market
price existing on the date of such grant, May 22, 1995; 5,500
shares at $21.625 per share, the market price existing on the
date of such grant, September 9, 1996; and 12,000 shares at
$36.00 per share, the market price existing on the date of such
grant, April 6, 1998. Mr. Zimmerman's shares, including the
underlying shares subject to options granted to him, have a
current fair market value of approximately $1,216,292.
Item 6. 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 Business Corporation Act 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 attorney fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, or fine, including an excise tax assessed
with respect to an employee benefit plan, or to pay reasonable
expenses incurred with respect to a proceeding.
(5) (a) "Official capacity" means:
(i) when used with respect to a director, the office of
director in a corporation; or
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(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 proceeding, 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 contenders 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.
(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
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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.
(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;
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(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 a director;
(2) the corporation may indemnify and advance expenses
under 35-1-451 through 35-1-459 to an officer, employee, or agent
of the corporation who is not a director to the same extent as to
a director: and
(3) a corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided by
its articles of incorporation, bylaws, general or specific action
of its board of directors, or contract.
* * *
The Bylaws of the Company further provide that the foregoing
right of indemnification shall not exclude or restrict any other
rights or actions which any director or officer may have, and
shall be available whether or not the director or officer
continues to hold such office at the time of incurring such
expense or discharging such liability.
The Company has insurance covering its expenditures which
might arise in connection with the lawful indemnification of its
directors and officers for their liabilities and expenses and
insuring officers and directors of the Company against certain
other liabilities and expenses.
Item 7. Exemption from Registration Claimed
Not Applicable
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Item 8. Exhibits
Exhibit
No.
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4(a) * Restated Articles of Incorporation filed with
the Secretary of State of Montana on April 6,
1998.
4(b) * Bylaws, as amended.
4(c) Fourteenth Supplemental Indenture, dated as of
January 1, 1993, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 4(c) to the Company's
Registration Statement on Form S-8 (File No.
33-64576) filed with the Commission on June 17,
1993 and incorporated herein by reference
thereto).
4(d) Fifteenth Supplemental Indenture dated March 1,
1993, to the Company's Mortgage and Deed of
Trust, dated as of October 1, 1945, securing
the Company's First Mortgage Bonds (filed as
Exhibit 4(d) to the Company's Registration
Statement on Form S-8 (File No. 33-64576) filed
with the Commission on June 17, 1993 and
incorporated herein by reference thereto).
4(e) Sixteenth Supplemental Indenture dated as of
May 1, 1993, to the Company's Mortgage and Deed
of Trust, dated as of October 1, 1945, securing
the Company's First Mortgage Bonds (filed as
Exhibit 99(a) to the Company's Registration
Statement on Form S-3 (File No. 33-50235) filed
with the Commission on September 13, 1993 and
incorporated herein by reference thereto).
4(f) Seventeenth Supplemental Indenture dated as of
December 1, 1993, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 99(a) to the Company's
Registration Statement on Form S-3 (File No.
33-56739) filed with the Commission on December
5, 1994 and incorporated herein by reference
thereto).
4(g) Eighteenth Supplemental Indenture dated as of
August 5, 1994, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 99(b) to the Company's
Registration Statement on Form S-3 (File No.
33-56739) filed with the Commission on December
5, 1994 and incorporated herein by reference
thereto).
4(h) Rights Agreement, dated as of June 6, 1989,
between The Montana Power Company and First
Chicago Trust Company of New York, as Rights
Agent (filed as Exhibit 4(d), to the Company's
Registration Statement on Form S-8 (File No.
33-42882) filed with the Commission on
September 20, 1991 and incorporated herein by
reference thereto).
5(a) * Opinion of Michael E. Zimmerman, Esq.
5(b) * Opinion of Thelen Reid & Priest LLP
23(a) * Consent of Independent Accountants
23(b) Consent of Michael E. Zimmerman Esq. (contained
in exhibit 5(a))
23(c) Consent of Thelen Reid & Priest LLP (contained
in Exhibit 5(b))
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24 Power of Attorney (Page 9)
_____________________________
* filed herewith
Item 9. Undertakings
(a) Rule 415 Offering.
The Company 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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the 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; and
(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 the registrant need not file a post-
effective amendment to include the information required to be
included in subsection (a) (1) (i) or (a) (1) (ii) if such
information is contained in periodic reports filed by the
registrant under Section 13 or Section 15 (d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
(b) Filings Incorporating Subsequent Exchange Act Documents
by Reference.
The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Company's annual report under Section 13(a) or Section
15(d) of the Exchange Act 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 securities at that time shall be deemed
to be the initial bona fide offering thereof.
(h) Indemnification
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
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indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or 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 Securities Act and will be governed by
the final adjudication of such issue.
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POWER OF ATTORNEY
Each director and/or officer of the registrant whose
signature appears below hereby appoints each of the Agents for
Service named in this registration statement as his attorney-in-
fact to sign in his name and behalf, in any and all capacities
stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective
amendments, to this registration statement, and the registrant
hereby also appoints each such Agent for Service as their
attorney-in-fact with like authority to sign and file any such
amendments in their name and behalf.
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-8 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
July 20, 1998.
THE MONTANA POWER COMPANY
By /s/ R.P. Gannon, Chairman
---------------------------
R.P. Gannon, 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/ R.P. Gannon
-------------------------
R.P. Gannon Chairman of the Board, July 20, 1998
(Principal Executive Chief Executive Officer
Officer)
/s/ J.P. Pederson
-------------------------
J.P. Pederson Vice President and July 20, 1998
(Principal Financial and Chief Financial
Accounting Officer) Information Officer &
Director
/s/ T.H. Adams
-------------------------
T.H. Adams Director July 20, 1998
/s/ A.F. Cain
------------------------
A.F. Cain Director July 20, 1998
/s/ R.D. Corette
------------------------
R.D. Corette Director July 20, 1998
/s/ K. Foster
------------------------
K. Foster Director July 20, 1998
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Signature Title Date
--------- ----- ----
/s/ B.D. Harris
------------------------
B.D. Harris Director July 20, 1998
/s/ C.T. Hibbard
------------------------
C.T. Hibbard Director July 20, 1998
/s/ J.R. Jester
------------------------
J.R. Jester Director July 20, 1998
/s/ C. Lehrkind, III
------------------------
C. Lehrkind, III Director July 20, 1998
/s/ A.K. Neill
------------------------
A.K. Neill Director July 20, 1998
/s/ N.E. Vosburg
------------------------
N.E. Vosburg Director July 20, 1998
/s/ J.G. Connors
------------------------
J.G. Connors Director July 20, 1998
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Exhibit Index
Exhibit No. Exhibit
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4(a)* Restated Articles of Incorporation filed with the
Secretary of State of Montana on April 6, 1998.
4(b)* Bylaws, as amended.
4(c) Fourteenth Supplemental Indenture, dated as of
January 1, 1993, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 4(c) to the Company's
Registration Statement on Form S-8 (File No. 33-
64576) filed with the Commission on June 17, 1993
and incorporated herein by reference thereto).
4(d) Fifteenth Supplemental Indenture dated March 1,
1993, to the Company's Mortgage and Deed of
Trust, dated as of October 1, 1945, securing the
Company's First Mortgage Bonds (filed as Exhibit
4(d) to the Company's Registration Statement on
Form S-8 (File No. 33-64576) filed with the
Commission on June 17, 1993 and incorporated
herein by reference thereto).
4(e) Sixteenth Supplemental Indenture dated as of May
2, 1993, to the Company's Mortgage and Deed of
Trust, dated as of October 1, 1945, securing the
Company's First Mortgage Bonds (filed as Exhibit
99(a) to the Company's Registration Statement on
Form S-3 (File No. 33-50235) filed with the
Commission on September 13, 1993 and incorporated
herein by reference thereto).
4(f) Seventeenth Supplemental Indenture dated as of
December 1, 1993, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 99(a) to the Company's
Registration Statement on Form S-3 (File No. 33-
56739) filed with the Commission on December 5,
1994 and incorporated herein by reference
thereto).
4(g) Eighteenth Supplemental Indenture dated as of
August 5, 1994, to the Company's Mortgage and
Deed of Trust, dated as of October 1, 1945,
securing the Company's First Mortgage Bonds
(filed as Exhibit 99(b) to the Company's
Registration Statement on Form S-3 (File No. 33-
56739) filed with the Commission on December 5,
1994 and incorporated herein by reference
thereto).
4(h) Rights Agreement, dated as of June 6, 1989,
between The Montana Power Company and First
Chicago Trust Company of New York, as Rights
Agent (filed as Exhibit 4(d), to the Company's
Registration Statement on Form S-8 (File No. 33-
42882) filed with the Commission on September 20,
1991 and incorporated herein by reference
thereto).
5(a)* Opinion of Michael E. Zimmerman, Esq.
5(b)* Opinion of Thelen Reid & Priest LLP
23(a)* Consent of Independent Accountants
23(b) Consent of Michael E. Zimmerman Esq. (contained
in exhibit 5(a))
23(c) Consent of Thelen Reid & Priest LLP (contained in
Exhibit 5(b))
24 Power of Attorney (Page 9)
-------------------------
* Filed herewith.
EXHIBIT 4(a)
03/24/98
RESTATED ARTICLES OF INCORPORATION
OF
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 58 of the Montana
Business Corporation Act, the undersigned Corporation adopts the
following Restated Articles of Incorporation:
ARTICLE I. The name of the Corporation is The Montana
Power Company.
ARTICLE II. The objects and purposes for which The
Montana Power Company is formed are as follows:
To manufacture, produce, generate, store, acquire, purchase,
sell, control, use, dispose of, transmit, distribute and supply
electricity and electrical energy or any other power or force in
any form and for any purpose whatsoever;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease, or otherwise dispose of machinery, generators,
motors, plants, apparatus, devices and supplies of every kind
pertaining to or otherwise connected with the production, use,
transmission, distribution, regulation, control or application of
electricity or electrical energy;
To transform power generated by hydraulic or other plants
into electrical or other energy for any and all purposes;
To purchase, mine, produce, process, sell, distribute, use,
lease, or otherwise acquire, use, or dispose of coal, coal mines,
coal properties, machinery, appliances, and equipment of every
kind and nature whatsoever used or useful in connection with the
mining, production, transportation, use, sale or disposition of
coal, coal mines or coal properties;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease or otherwise dispose of all water rights, water
powers and water privileges;
To construct, purchase or otherwise acquire, hold, use,
operate, sell, lease or otherwise dispose of hydraulic, electric
and other works, plants, buildings, machinery, equipment, pipe
lines, distributing systems, transmission lines, dams, flumes,
ditches, canals, apparatus, devices or processes for use in
connection with such works;
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, transmit, distribute, deal in, use, manufacture, produce,
furnish and supply bus service, natural or artificial gas, light,
heat, ice, refrigeration, water and steam in any form and for any
purposes whatsoever, and any power or force or energy in any form
and for any purposes whatsoever;
To construct, purchase, lease or otherwise acquire, hold,
use, operate, sell, lease or otherwise dispose of natural gas,
manufactured gas, gas works, gas plants, gas transmission
systems, distributing systems, gas reserves, gas rights, gas
storage fields and facilities and all properties of any kind
whatsoever used or useful in the gas business, together with
licenses, permits, authorizations or consents of every kind and
nature whatsoever which may be used or useful in connection with
any or all of the foregoing;
To purchase or otherwise acquire, hold, use, operate, sell,
lease or otherwise dispose of machinery, engines, mechanical
devices and articles of every character and description;
To acquire, build, construct, equip, own and operate street
railways and other railway properties of all kinds and
descriptions and with any kind of motive power, and to sell and
lease the same, but the powers in this paragraph set forth shall
be exercised only in connection with and as part of the other
objects and purposes referred to in this Article;
To purchase or otherwise acquire, hold, use, operate, sell,
lease, or otherwise dispose of such real and personal estate,
property rights, rights-of-way, easements, privileges, grants,
consents and franchises, individually or in association with
others, as may be necessary for or appropriate to or useful in
connection with the business and purposes of the company;
To apply for, purchase or otherwise acquire, and to hold,
use, own, operate and to sell, assign or otherwise dispose of,
and to grant or receive licenses in respect of or otherwise to
turn to account any and all inventions, improvements, patents,
patent rights, processes, trademarks and trade names, secured by
or issued under the laws of the United States of America or of
any other government or country;
To acquire by purchase or otherwise, and to hold, invest in,
sell, or otherwise dispose of the shares, bonds, debentures and
other evidences of indebtedness of any persons, firms,
associations and corporations, including the Corporation created
by these Articles; and when owner of any such shares, bonds,
debentures, securities or other obligations, to exercise all the
rights, powers and privileges of ownership, including the right
to vote thereon for any and all purposes; to aid in any manner
any corporation whose shares, bonds, debentures or other
obligations are owned or held by it, or in the shares, bonds,
debentures, securities or other obligations of which it is in any
way interested; and to guarantee the shares, bonds, debentures,
securities or other act or thing for the preservation,
protection, improvement or enhancement of the value of any such
shares, bonds, debentures, securities or obligations;
To construct, operate and maintain facilities for the
service of water to the public;
Without limitation to hold, purchase, mortgage and convey
real and personal property of every kind and description in any
state or territory of the United States or elsewhere;
In general, to do all such things as are incidental or
conducive to the accomplishment of the foregoing purposes, and to
engage in any and all lawful business whatever necessary or
convenient therefor, with all rights, privileges and powers now
or hereafter granted by the State of Montana to corporations.
ARTICLE III. Unless and until changed in the manner
provided by law, the address of the registered office of the
Corporation in the State of Montana is 40 East Broadway, Butte,
and the name of its registered agent at such address is R. M.
Ralph.
ARTICLE IV. The period of duration of this Corporation
shall be perpetual.
ARTICLE V. The number of Directors of this Corporation
shall be fixed by the Bylaws, but shall be not less than
three (3) nor more than eighteen (18). In the absence of a Bylaw
fixing the number of directors, the number of Directors shall be
eleven (11). Notwithstanding anything contained in these
Articles (including Article VIII hereof) or in the Bylaws of the
Corporation to the contrary (and notwithstanding the fact that a
lesser percentage may be specified by law, these Articles or the
Bylaws of the Corporation), any amendment, alteration, change or
repeal of, or the adoption of any provision inconsistent with,
this Article V or Section 11 of the Bylaws of the Corporation by
shareholders shall require the affirmative vote of the holders of
at least two-thirds of the shares of the Corporation entitled to
vote thereon.
ARTICLE VI. No Director of the Corporation shall be
personally liable to the Corporation or its shareholders for
money damages for any actions taken or any failure to take any
action, as a Director, except liability for: (a) the amount of a
financial benefit received by a Director to which the Director is
not entitled; (b) an intentional infliction of harm on the
corporation or its shareholders; (c) a violation of 35-1-713 of
the Montana Code Annotated; or, (d) an intentional violation of
criminal law. No amendment to or repeal of this Article VI shall
apply to or have any effect on the liability or alleged liability
of any Director of the Corporation for or with respect to any
acts or omissions of such Director occurring prior to such
amendment or repeal.
ARTICLE VII. The aggregate number of shares which the
Corporation has authority to issue is 125,000,000 shares without
nominal or par value, consisting of 5,000,000 Preferred shares
and 120,000,000 Common shares.
(a) The Preferred shares shall be issued from time to time
in one or more series. The shares of any such series shall bear
such distinctive serial designation as shall be stated and
expressed in the resolution or resolutions providing for the
issue of such shares from time to time adopted by the Board of
Directors; and in such resolution or resolutions providing for
the issue of shares of each particular series, the Board of
Directors is expressly empowered to fix:
1. The dividend rate for the particular series, and
the date or dates from which dividends on shares of such
series shall be cumulative;
2. The terms on which the shares of the particular
series may be redeemed;
3. The amount which shall be paid to the holders of
shares of the particular series in the case of dissolution
or any distribution of assets; and
4. The terms or amount of any sinking fund provided
for the purchase or redemption of the shares of the
particular series.
All of the Preferred shares of any one series shall be
identical in all respects, except as to the dates from which
dividends thereon shall be cumulative; and all of the Preferred
shares shall be of equal rank, regardless of series, and shall be
identical in all respects except as herein otherwise provided.
Fourth Series
-------------
The Fourth Series of Preferred Stock of the Company (the
"Fourth Series"), consists of 500,000 shares designated as
"Preferred Stock, $6.875 Series," and has the relative rights,
preferences and limitations as set fourth in these Restated
Articles of Incorporation, and as follows:
(A) The dividend rate for the Fourth Series shall be $6.875
per share per annum; quarterly periods ending January 31, April
30, July 31 and October 31 of each year hereby are established as
the regular dividend periods for the shares of such Series and
dividends for such periods shall be payable, in arrears, on
February 1, May 1, August 1, and November 1 of each year;
provided, however, the first dividend shall be payable, in
arrears, on February 1, 1994, for the period from the date of the
original issue through January 31, 1994; and dividends on shares
of the Fourth Series shall be cumulative from the date of
original issue;
(B) The shares of the Fourth Series shall not be redeemable
prior to November 1, 2003; the shares shall be redeemable, at the
option of the Company, in whole or in part, at any time upon not
less than thirty (30) days' notice, on and after November 1,
2003, at the redemption prices per share set forth below, plus,
in each case, accumulated but unpaid dividends to the date of
redemption:
Redemption Period Price
November 1, 2003 to October 31, 2004 $103.438
November 1, 2004 to October 31, 2005 $103.094
November 1, 2005 to October 31, 2006 $102.750
November 1, 2006 to October 31, 2007 $102.406
November 1, 2007 to October 31, 2008 $102.063
November 1, 2008 to October 31, 2009 $101.719
November 1, 2009 to October 31, 2010 $101.375
November 1, 2010 to October 31, 2011 $101.031
November 1, 2011 to October 31, 2012 $100.688
November 1, 2012 to October 31, 2013 $100.344
November 1, 2013 and thereafter $100.000
(C) The amount which shall be paid to the holders of shares
of the Fourth Series in the event of any liquidation, dissolution
or winding up of the affairs of the Company or any distribution
of its capital, whether voluntary or involuntary, before any
distribution or payment shall be made to the holders of Common
Stock, shall be $100 per share, plus accumulated but unpaid
dividends.
(b) The holders of Preferred shares at the time outstanding
shall be entitled to receive dividends when and as declared by
the Board of Directors, out of the surplus or net profits of the
Corporation, payable in the case of each series at the annual
dividend rate for that particular series theretofore fixed by the
Board of Directors as hereinbefore provided. Such dividends on
Preferred shares shall be cumulative from the date or dates
theretofore fixed for the purpose by the Board of Directors, as
hereinbefore provided, so that if dividends on all outstanding
shares of each particular series of the Preferred shares, at the
annual dividend rate fixed by the Board of Directors, as
hereinbefore provided, shall not have been paid or declared and
set apart for payment for all past dividend periods and for the
current dividend periods, the deficiency shall be fully paid or
dividends equal thereto declared and set apart for payment at
said rate, but without interest, before any dividends on the
Common shares shall be paid or declared and set apart for
payment. No dividends shall be paid or declared and set apart
for payment on any series of Preferred shares for any particular
dividend period unless at the same time all unpaid dividends, if
any, on all the outstanding Preferred shares for all dividend
periods terminating prior to or concurrently with the termination
of such particular dividend period shall be paid or declared and
set apart for payment thereon. Dividends may be paid upon the
Common shares only when dividends at the respective annual
dividend rates fixed by the Board of Directors, as hereinbefore
provided, upon all the outstanding Preferred shares shall have
been paid or declared and set apart for payment for all past
dividend periods and for the then current dividend periods, but
whenever there shall have been paid or declared and set apart for
payment all such dividend upon the Preferred shares, as
aforesaid, then dividends upon the Common shares may be declared
payable then or thereafter out of any surplus or net profits then
remaining. The holders of shares of each series of the Preferred
shares shall not be entitled to receive any dividends thereon
other than the aforesaid dividends at the annual dividend rate
for the particular series fixed by the Board of Directors, as
hereinbefore provided.
Dividends may also be declared and paid in cash out of
depletion reserves in the manner and to the extent provided by
law.
(c) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation or any distribution
of capital, whether voluntary or involuntary, the holders of
Preferred shares at the time outstanding shall be entitled to be
paid the amount fixed by the Board of Directors, as hereinbefore
provided, before any distribution or payment shall be made to the
holders of Common shares. The holders of the Preferred shares
shall not be entitled to receive any distributive amounts upon
the liquidation, dissolution or winding up of the affairs of the
Corporation or upon any distribution of capital other than the
distributive amounts at the rates for the respective series fixed
by the Board of Directors, as hereinbefore provided, but, after
such payment to the holders of the Preferred shares, the
remaining assets and funds of the Corporation (subject to the
rights of any class of shares hereafter authorized) shall be
divided and distributed among the holders of the Common shares
alone according to their respective shares.
(d) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any of the provisions hereof.
(e) Except as hereinafter otherwise provided, each holder
of record of Preferred or Common shares shall be entitled to one
vote for each share of stock held by him, except that holders of
Preferred shares shall not be entitled to notice of or to vote at
any annual or special meeting of shareholders called for the
purpose of redeeming the whole or any part of the Preferred
shares at the time outstanding, and except that at all elections
for Directors, each holder of Preferred or Common shares shall be
entitled to as many votes as shall equal the number of his
Preferred or Common shares multiplied by the number of Directors
to be elected, and may cast all of such votes in person or by
proxy for a single Director, or may distribute them among the
number to be voted for, or any two or more of them as he may see
fit.
(f) No holder of Preferred shares shall be entitled as
such, as a matter of right, to subscribe for or purchase any part
of any new or additional issue of stock of any class whatsoever,
or of securities convertible into stock of any class whatsoever,
whether now or hereafter authorized or whether issued for cash,
for a consideration other than cash or by way or dividend.
(g) Upon any issue for money or other consideration of any
shares of the Corporation that may be authorized from time to
time, no holder of shares, irrespective of the kind of such
shares, shall have any preemptive or other right to subscribe
for, purchase or receive any proportionate or other share of the
shares so issued, but the Board of Directors may dispose of all
or any portion of such shares as and when it may determine free
of any such rights, whether by offering the same to shareholders
or by sale of other disposition, as said Board may deem
advisable.
(h) The Corporation may redeem the whole or any part of the
Preferred shares at the time outstanding, or the whole or any
part of any series thereof, at any time or from time to time,
upon the terms fixed by the Board of Directors as hereinbefore
provided for the redemption of the Preferred shares to be
redeemed; provided, however, that no Preferred shares of the
$6 Series, the $4.20 Series or the $2.15 Series shall be redeemed
without either the written consent, or the affirmative vote at
any annual meeting or at any special meeting called for that
purpose, of the holders of record of a majority of the Common
shares issued and outstanding. If less than all of the shares of
any particular series of the Preferred shares are to be redeemed,
the shares of such series to be redeemed shall be selected in
such manner as the Board of Directors or the Executive Committee
shall determine. The Board of Directors by the vote or consent
of two-thirds (2/3) of all of the members thereof shall have the
power to select for redemption any particular share or shares of
the Preferred shares to be redeemed, designating the share or
shares of such Preferred shares so selected by the number or
numbers appearing on the then outstanding certificate or
certificates representing the shares so selected. Notice of
intention of the Corporation to redeem Preferred shares and of
the date and place of redemption shall be mailed not less than
thirty (30) days (or in case the Board of Directors shall have
fixed a longer period as hereinbefore provided, then not less
than such longer period) before the date of redemption to each
holder of record of the shares to be redeemed, at his last known
post office address as shown by the records of the Corporation.
The holders of any Preferred shares so called for redemption
shall, on the redemption date specified in such notice, cease to
be shareholders of the Corporation with respect to such shares
and all rights with respect to such Preferred shares so called
for redemption shall, on such redemption date, cease and
terminate except only the right of the holders thereof to receive
the redemption price therefor without interest.
At any time after such notice of redemption of any Preferred
shares has been mailed or otherwise given, the Corporation may
deposit, or may cause its nominee to deposit, the aggregate
redemption price (or the portion thereof not already paid in the
redemption of shares so to be redeemed) with any bank or trust
company in the State of Montana having a capital and undivided
surplus of not less than $500,000 named in a notice mailed to
holders of the shares called for redemption and represented by
certificates not theretofore surrendered, payable in the proper
amounts to the respective orders of the record holders of such
shares to be redeemed on endorsement, if required, and surrender
of their certificates for said shares, and from and after the
making of such deposit said holders shall have no interest in or
claim against the Corporation or its nominee, with respect to
said shares, but shall be entitled only to receive said moneys
from said bank or trust company, without interest, on
endorsement, if required, and surrender of their certificates as
aforesaid. The Corporation shall be entitled to receive from any
such bank or trust company the interest, if any, allowed by said
bank or trust company on any moneys deposited as in this
paragraph provided, and the holders of any shares so redeemed
shall have no claim to any such interest. Any moneys so
deposited and remaining unclaimed at the end of six years from
the date fixed for redemption shall, if thereafter requested by
resolution of the Board of Directors or of the Executive
Committee, be repaid to the Corporation, and in the event of such
repayment to the Corporation, such holders of record of the
shares so redeemed as shall not have made claim against such
moneys prior to such repayment to the Corporation, shall be
deemed to be unsecured creditors of the Corporation for an amount
equivalent to the amount deposited as above-stated for the
redemption of such shares and so repaid to the Corporation, but
shall in no event be entitled to any interest. If such deposit
shall be made by the nominee of the Corporation, as aforesaid,
such nominee shall upon such deposit become the owner of the
shares with respect to which such deposit is made, and
certificates for shares may be issued to such nominee in evidence
of such ownership.
The Corporation may require any shares so called for
redemption to be delivered, duly assigned to a nominee of the
Corporation upon payment by such nominee in the manner
hereinabove provided of all amounts payable on such redemption
with respect to said shares. Any shares delivered to or acquired
by the nominee of the Corporation under the provisions hereof
shall be converted into or exchanged for such other securities of
the Corporation and on such terms as on or before such delivery
or acquisition may have been provided by the Corporation in
accordance with the next three paragraphs hereof.
The Corporation from time to time may resell any of its own
shares purchased or otherwise acquired by it as herein provided
for at such price as may be fixed by its Board of Directors or
Executive Committee.
The Corporation, in order to acquire funds with which to
redeem any Preferred shares of any class, may issue and sell
shares of any class then authorized but unissued, bonds, notes,
evidences of indebtedness or other securities.
The Board of Directors of the Corporation may at any time
authorize the conversion or exchange of the whole or any
particular share or shares of the outstanding Preferred shares of
any class, with the consent of the holder or holders thereof,
into or for shares of any other class at the time of such consent
authorized but unissued and may fix the terms and conditions upon
which such conversion or exchange may be made; provided that
without the consent of the holders of record of two-thirds (2/3)
of the Common shares outstanding given at a meeting of the
holders of the Common shares called and held as provided by the
Bylaws or given in writing without a meeting, the Board of
Directors shall not authorize the conversion or exchange of any
Preferred shares of any class into or for Common shares or
authorize the conversion or exchange of any Preferred shares of
any class into or for Preferred shares of any other class, if by
such conversion or exchange the amount which the holders of the
shares so converted or exchanged would be entitled to receive
either as dividends or shares in distribution of assets in
preference to the Common shares would be increased.
The Board of Directors shall have full power and authority,
subject to the limitations and provisions herein contained, to
prescribe the manner in which and the terms and conditions upon
which Preferred shares shall be redeemed from time to time.
(i) Except as herein otherwise provided, upon the vote of a
majority of all of the Directors of the Corporation and of the
holders of record of a majority of the total number of shares
then issued and outstanding and entitled to vote on such question
as herein stipulated, irrespective of class (or if the vote of a
larger number or different proportion of shares is required by
the laws of the State of Montana, notwithstanding the above
agreement of the shareholders of the Corporation to the contrary,
then upon the vote of the larger number or different proportion
of shares so required), the Corporation may from time to time
create or authorize one or more other classes of shares with such
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications as may be determined
by said vote, which may be the same as or different from the
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications of the classes of
shares of the Corporation then authorized. Any vote authorizing
the creation of a new class of shares may provide that all moneys
payable by the Corporation with respect to any class of shares
thereby authorized shall be paid in the money of any foreign
country named therein or designated by the Board of Directors
pursuant to authority therein granted. Any such vote may
authorize any shares of any class then authorized but unissued to
be issued as shares of such new class or classes.
So long as any of the Preferred shares are outstanding, the
Corporation shall not, without the consent (given by a vote at a
meeting called for that purpose) of the holders of at least two-
thirds of the total number of the Preferred shares then
outstanding.
1. Create or authorize any new shares ranking prior
to the Preferred shares as to dividends, in liquidation,
dissolution, winding up or distribution, or create or
authorize any security convertible into such shares; or
2. Amend, alter, change or repeal any of the express
terms of the Preferred shares then outstanding in a manner
substantially prejudicial to the holders thereof.
(j) All shares of the Corporation without nominal or par
value, whether authorized by these Articles or by subsequent
increase of capital or pursuant to any amendment hereof, may be
issued from time to time for such consideration as may be fixed
from time to time by the Board of Directors, and authority to the
Board of Directors so to fix such consideration is hereby granted
by the shareholders; and any and all shares so issued, the full
consideration for which shall have been paid or delivered, shall
be conclusively deemed to be fully paid and nonassessable and the
holders thereof shall not be liable to the Corporation or its
creditors in respect thereof.
At the time of the issue of any shares without nominal or
par value, the Board of Directors may determine conclusively in
the exercise of their reasonable discretion what capital
valuation shall be placed upon any property (other than money)
acquired by the Corporation in payment upon original issue of any
of its shares without nominal or par value.
(k) The Corporation may issue securities, notes, bonds,
debentures or other obligations convertible into shares of any
class, in the amounts and on such terms as may be provided by
resolution of the Board of Directors; provided, however, that the
shares issued upon conversion thereof shall not have prior or
superior rights and preferences to the shares of any class
outstanding at the time the convertible securities, notes, bonds,
debentures or other obligations are issued, and the issuance of
such shares shall not substantially prejudice the holders of
shares of any class outstanding at the time such convertible
securities, notes, bonds, debentures or other obligations are
issued.
1. The Corporation may issue notes, bonds, debentures
and other obligations of the Corporation in such amounts and
upon such terms and conditions as may be authorized by
resolution of the Board of Directors.
ARTICLE VIII. Unless the laws of the State of Montana
otherwise provide, any action which at any meeting of
shareholders requires the vote, assent or consent of two-
thirds (2/3) in interest of all the shareholders or of two-
thirds (2/3) in interest of each class of shareholders
having voting powers, or which requires such assent or
consent in writing to be filed, may be taken upon the assent
of and the assent given and filed of two-thirds (2/3) in
interest of the shareholders present and voting at such
meeting in person or by proxy; provided that where assent by
classes is required, such assent shall be given by two-
thirds (2/3) in interest of each class so present and
voting.
ARTICLE IX. The Board of Directors may appoint from the
Directors an Executive Committee, of which a majority shall
constitute a quorum, and to such extent as shall be provided in
the Bylaws, such Executive Committee shall have and may exercise
all of the delegable powers of the Board of Directors, including
power to cause the seal of the Corporation to be affixed to all
papers that may require it.
The power of appointment of committees (other than the
Executive Committee) and of Officers (other than the President,
the Vice Presidents, the Secretary and the Treasurer) and other
persons employed by the Company may to the extent permitted by
the Bylaws be delegated by the Board of Directors to the
President or to the Executive Committee.
The Board of Directors shall have the power from time to
time to fix and to determine and to vary the amount of the
working capital of the Corporation, and to direct and determine
the use and disposition of any surplus or net profits over and
above the capital paid in.
The Board of Directors from time to time shall determine
whether and to what extent, and at what times and places and
under what conditions and regulations, the accounts and books of
the Corporation, or any of them, shall be open to the inspection
of the shareholders, and no shareholder shall have any right to
inspect any account or book or document of the Corporation,
except as conferred by Statute or authorized by the Board of
Directors, or by a resolution of the shareholders.
ARTICLE X. The shareholders may alter or amend the
Bylaws of the Corporation by a majority vote (or if required by
the laws of the State of Montana, a larger number or different
proportion of the shares outstanding) of all the outstanding
shares of the Corporation entitled to vote given at any meeting
duly held as provided in the Bylaws, the notice of which includes
notice of the proposed alterations or amendment. The Board of
Directors may also alter or amend the Bylaws at any time by
affirmative vote of a majority (or if required by the laws of the
State of Montana, a larger number or different proportion of the
members of the Board of Directors) of the Board of Directors
given at a duly convened meeting of the Board of Directors, the
notice of which includes notice of the proposed alterations or
amendments, subject to the power of shareholders to change or
repeal such Bylaws; provided that the Board of Directors shall
not make or alter any Bylaw fixing their qualifications or
changing the number of shares required to constitute a quorum for
a shareholders' meeting.
ARTICLE XI. A. In addition to any affirmative vote
required by law or under any other provision of these Restated
Articles of Incorporation, and except as otherwise expressly
provided in paragraph B., a Business Combination (as hereinafter
defined) shall require the affirmative vote of the holders of at
least 70 percent of the outstanding shares of Capital Stock (as
hereinafter defined) of the Corporation entitled to vote
generally in the election of Directors ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
B. The provisions of paragraph A. of this Article shall
not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative
vote as is required by law and any other provision of these
Restated Articles of Incorporation, if all of the conditions
specified in subparagraphs 1. or 2. shall have been satisfied:
1. The Business Combination shall have been approved by
two-thirds (whether such approval is made prior to or
subsequent to the acquisition of beneficial ownership of the
Voting Shares that caused the 10% Shareholder [as
hereinafter defined] to become a 10% Shareholder) of the
Continuing Directors (as hereinafter defined); or
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of
Common shares in such Business Combination shall be at least
equal to the highest amount determined under clauses (i) and
(ii) below:
(i) (if applicable) The highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the 10% Shareholder for any Common shares in
connection with the acquisition by the 10% Shareholder
of beneficial ownership of Common shares (A) within the
two-year period immediately prior to the first public
announcement of the proposed Business Combination (the
"Announcement Date") or (B) in the transaction in which
it became a 10% Shareholder, whichever is higher; and
(ii) The Fair Market Value per Common share on the
Announcement Date or on the date on which the
10% Shareholder became a 10% Shareholder (such latter
date referred to in this Article as the "Determination
Date"), whichever is higher.
All per share prices and Fair Market Values
shall be adjusted to reflect any intervening stock
splits, stock dividends and reverse stock splits.
(b) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any class or
series of outstanding Capital Stock, other than Common
shares, shall be at least equal to the highest amount
determined under clauses (i), (ii) and (iii) below:
(i) (if applicable) The highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the 10% Shareholder for any share of such
class or series of Capital Stock in connection with the
acquisition by the 10% Shareholder of beneficial
ownership of shares of such class or series of Capital
Stock (A) within the two-year period immediately prior
to the Announcement Date or (B) in the transaction in
which it became a 10% Shareholder, whichever is higher.
(ii) The Fair Market Value per share of such class
or series of Capital Stock on the Announcement Date or
on the Determination Date, whichever is higher; and
(iii) (if applicable) The highest preferential
amount per share to which the holders of shares of such
class or series of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation,
regardless of whether the Business Combination to be
consummated constitutes such an event.
All per share prices and Fair Market Values
shall be adjusted for intervening stock splits, stock
dividends and reverse stock splits.
The provisions of this subparagraph (b) shall
be required to be met with respect to every class or
series of outstanding Capital Stock, whether or not the
10% Shareholder has previously acquired beneficial
ownership of any shares of a particular class or series
of Capital Stock.
(c) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock
(including Common shares) shall be cash or in the same form
as previously has been paid by or on behalf of the
10% Shareholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class
or series of Capital Stock. If the consideration so paid
for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series
of Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares
of such class or series of Capital Stock previously acquired
by the 10% Shareholder.
(d) After such 10% Shareholder has become a
10% Shareholder and prior to the consummation of such
Business Combination:
(i) except as approved by two-thirds of the
Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) in
accordance with the terms of the outstanding Preferred
shares;
(ii) there shall have been (A) no reduction in the
annual rate of dividend paid on the Common shares
(except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Shares), except
as shall have been approved by two-thirds of the
Continuing Directors, and (B) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding Common shares, unless the failure so to
increase such annual rate shall have been approved by
two-thirds of the Continuing Directors; and
(iii) such 10% Shareholder shall have not
become the beneficial owner of any additional Voting
Shares except as part of the transaction which results
in such 10% Shareholder becoming a 10% Shareholder and
except in a transaction that, after giving effect
thereto, would not result in any increase in the
10% Shareholder's percentage beneficial ownership of
any class or series of Capital Stock.
(e) After such 10% Shareholder has become a
10% Shareholder, such 10% Shareholder shall not have:
(i) received the benefit, directly or indirectly
(except proportionately as a shareholder), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or
otherwise; or
(ii) made any major change in the Corporation's
business or equity capital structure without the
approval of two-thirds of the Continuing Directors.
(f) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
have been mailed to holders of outstanding Voting Shares of
the Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions). The proxy
or information statement shall contain on the first page
thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Combination
that the Continuing Directors, or any of them, may choose to
make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking
firm selected by a majority of the Continuing Directors as
to the fairness (or lack thereof) of the terms of the
Business Combination from a financial point of view to the
holders of the outstanding Voting Shares other than the
10% Shareholder and its Affiliates or Associates (as
hereinafter defined).
C. For the purposes of this Article:
1. The term "Business Combination" shall mean:
(a) any merger, consolidation or share exchanges of the
Corporation or any Subsidiary (as hereinafter defined) with:
(i) any 10% Shareholder, or
(ii) any other company (whether or not such other
company is a 10% Shareholder) which is, or after such
merger or consolidation would be, an Affiliate or
Associate of a 10% Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a
series of transactions) with or for the benefit of any
10% Shareholder or any Affiliate or Associate of any
10% Shareholder involving any assets, securities or
commitments of the Corporation or any Subsidiary having an
aggregate Fair Market Value and/or involving aggregate
commitments of five million dollars ($5,000,000) or more;
(c) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of five million
dollars ($5,000,000) or more;
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder;
(e) any reclassification of any securities of the
Corporation (including any reverse stock split),
recapitalization or reorganization of the Corporation,
merger or consolidation of the Corporation with any
Subsidiary, or any other transaction (whether or not with or
otherwise involving a 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder) that has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
that is beneficially owned by any 10% Shareholder or any
Affiliate or Associate of any 10% Shareholder; or
(f) any other transaction or series of transactions
that is similar in purpose or effect to, or any agreement,
contract or other arrangement providing for any one or more
of the actions specified in the foregoing subparagraphs (a)
through (e).
2. A "person" shall mean any individual, firm, corporation
or other entity and shall include any group comprised of any
person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital
Stock.
3. "10% Shareholder" shall mean, in respect of any
Business Combination, any person or Affiliate or Associate (other
than the Corporation or any Subsidiary and other than any profit
sharing, employee stock ownership or other employee benefit plan
of the Corporation or any Subsidiary or any trustee or fiduciary
of any such plan when acting in such capacity) who or which, as
of the record date for the determination of shareholders entitled
to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction:
(a) is the beneficial owner, directly or indirectly,
of not less than ten percent of the Voting Shares; or
(b) is an Affiliate or Associate of the Corporation
and at any time within three (3) years prior thereto was the
beneficial owner, directly or indirectly, of not less than
ten percent of the then outstanding Voting Shares; or
(c) is an assignee or has otherwise succeeded to
control of any Voting Shares of the Corporation which were
at any time within three (3) years prior thereto
beneficially owned by any 10% Shareholder, if such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
4. A person shall be the "beneficial owner" of any Voting
Shares:
(a) which such person or any of its Affiliates and
Associates beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or
Associates has, directly or indirectly
(i) the right to acquire (whether such right is
exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion
rights, exchange rights, warrants, options, or
otherwise, or
(ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any Voting
Shares.
5. Voting Shares shall include shares deemed beneficially
owned through application of subparagraph 4 above but shall not
include any Voting Shares which may be issuable pursuant to any
agreement, arrangement or understanding or upon exercise of
conversion rights, warrants, options, or otherwise.
6. "Continuing Director" shall mean any member of the
Board of Directors who is not an Affiliate or Associate or
representative of the 10% Shareholder and who was a member of the
Board of Directors of the Corporation prior to the date as of
which any 10% Shareholder acquired in excess of five percent of
the then outstanding Voting Shares, or a person designated
(before his initial election as a Director) as a Continuing
Director by a majority of the then Continuing Directors.
7. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash
to be received" shall mean Common shares and/or the shares of any
other class of outstanding Voting Shares of the Corporation
retained by the holders of such shares.
8. "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule l2b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1986.
9. "Subsidiary" means any company of which a majority of
any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the
definition of 10% Shareholder set forth in subparagraph 3 of this
paragraph C., the term "Subsidiary" shall mean only a company of
which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
10. The term "Capital Stock" shall mean all capital stock
of this Corporation authorized to be issued from time to time
under these Articles of Incorporation as amended from time to
time.
11. The term "Fair Market Value" means:
(a) in the case of shares, the highest closing sale
price during the 30-day period immediately preceding the
date in question of such a share on the New York Stock
Exchange; and
(b) in the case of property other than cash or shares,
the fair market value of such property on the date in
question as determined by a majority of Continuing Directors
then on the Board.
D. A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article on
the basis of information known to them:
1. The number of Voting Shares beneficially owned by
any person,
2. Whether a person is an Affiliate or Associate of
another,
3. Whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in
subparagraph 4 of paragraph C. of this Article,
4. Whether the assets which are the subject of any
Business Combination have an aggregate Fair Market Value of
five million dollars ($5,000,000) or more, and
5. Any other matters with respect to which a
determination is required under this Article. Any such
determinations made in good faith shall be binding and
conclusive on all parties.
E. Consideration for shares to be paid to any shareholder
pursuant to this Article shall be the minimum consideration
payable to the shareholder and shall not limit a shareholder's
right under any provision of law or otherwise to receive greater
consideration for any shares of the Corporation.
F. The fact that any Business Combination complies with
the provisions of subparagraph B.2. of this Article shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner
the Board, or any member thereof, with respect to evaluations of
or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding any other provisions of these Restated
Articles of Incorporation or the Bylaws of the Corporation any
amendment, alteration, change or repeal of this Article shall
require the affirmative vote of the holders of at least
70 percent of the then outstanding Voting Shares; provided that
this paragraph G. shall not apply to, and such 70 percent vote
shall not be required for, any amendment, alteration, change or
repeal recommended to the shareholders by two-thirds of the
Continuing Directors. H. Nothing contained in this Article
shall be construed to relieve any 10% Shareholder from any
fiduciary obligation imposed by law.
<PAGE>
ARTICLE XII. These Restated Articles of Incorporation
correctly set forth without change the corresponding provisions
of the Articles of Incorporation as heretofore amended and hereby
amended, and supersede the original articles of incorporation and
all amendments thereto.
Dated March 24, 1998
/s/ P.K. Merrell
-----------------------------
Vice President
/s/ R.M. Ralph
------------------------------
Assistant Secretary
<PAGE>
CERTIFICATE OF ADOPTION OF
RESTATED ARTICLES OF INCORPORATION OF
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 35-1-231, Montana Code
Annotated, the undersigned corporation makes the following
statements:
FIRST: The name of the corporation is The Montana Power
Company.
SECOND: The annexed Restated Articles of Incorporation of
The Montana Power Company were approved by the Board of Directors
on March 24, 1998. The Restated Articles contain the amendments
described below, which were previously approved by the
shareholders or the Board of Directors and filed with the
Secretary of the States Office on the dates noted.
A. The following amendment to the corporation's Restated
Articles of Incorporation was adopted by the shareholders of the
corporation on May 14, 1996 and filed with the Secretary of the
State on June 14, 1996, in the manner prescribed by the Montana
Business Corporation Act.
Article VI of the Restated Articles of Incorporation of
the corporation is amended to read as follows:
No Director of the Corporation shall be personally
liable to the Corporation or its shareholders for money
damages for any actions taken or any failure to take
any action, as a Director, except liability for: (a)
the amount of a financial benefit received by a
Director to which the Director is not entitled; (b) an
intentional infliction of harm on the corporation or
its shareholders; (c) a violation of 35-1-713 of the
Montana Code Annotated; or, (d) an intentional
violation of criminal law. No amendment to or repeal
of this Article VI shall apply to or have any effect on
the liability or alleged liability of any Director of
the Corporation for or with respect to any acts or
omissions of such Director occurring prior to such
amendment or repeal.
B. The following amendment to the corporation's Restated
Articles of Incorporation was adopted by the shareholders of the
corporation on May 30, 1995 and filed with the Secretary of the
State on June 12, 1995, in the manner prescribed by the Montana
Business Corporation Act.
Article V of the Restated Articles of Incorporation of
the corporation is amended so that the following paragraph
is added at the end thereof:
Notwithstanding anything contained in these
Articles (including Article VIII hereof) or in the
Bylaws of the Corporation to the contrary (and
notwithstanding the fact that a lesser percentage may
be specified by law, these Articles or the Bylaws of
the Corporation), any amendment, alteration, change or
repeal of, or the adoption of any provision
inconsistent with, this Article V or Section 11 of the
Bylaws of the Corporation by shareholders shall require
the affirmative vote of the holders of at least two-
thirds of the shares of the Corporation entitled to
vote thereon.
C. On August 24, 1993 and October 26, 1993, the Board of
Directors of the corporation established and designated a Fourth
Series of Preferred Stock, determining with respect to such
Series the dividend rate, periods and payment dates, the
redemption prices and the amount to be paid in the event of
liquidation, dissolution or winding up of the affairs of the
corporation or any distribution of its capital, and authorized
the amendment to the Restated Articles of Incorporation and was
filed with the Secretary of the State on October 29, 1993. The
text of the amendment so authorized is as follows, and has been
inserted as a new, undesignated subparagraph at the end of
Section (a) of Article VII of the Restated Articles of
Incorporation:
Fourth Series
-------------
The Fourth Series of Preferred Stock of the Company
(the "Fourth Series"), consists of 500,000 shares designated
as "Preferred Stock, $6.875 Series," and has the relative
rights, preferences and limitations as set fourth in these
Restated Articles of Incorporation, and as follows:
(A) The dividend rate for the Fourth Series shall be
$6.875 per share per annum; quarterly periods ending January
31, April 30, July 31 and October 31 of each year hereby are
established as the regular dividend periods for the shares
of such Series and dividends for such periods shall be
payable, in arrears, on February 1, May 1, August 1, and
November 1 of each year; provided, however, the first
dividend shall be payable, in arrears, on February 1, 1994,
for the period from the date of the original issue through
January 31, 1994; and dividends on shares of the Fourth
Series shall be cumulative from the date of original issue;
(B) The shares of the Fourth Series shall not be
redeemable prior to November 1, 2003; the shares shall be
redeemable, at the option of the Company, in whole or in
part, at any time upon not less than thirty (30) days'
notice, on and after November 1, 2003, at the redemption
prices per share set forth below, plus, in each case,
accumulated but unpaid dividends to the date of redemption:
Redemption Period Price
November 1, 2003 to October 31, 2004 $103.438
November 1, 2004 to October 31, 2005 $103.094
November 1, 2005 to October 31, 2006 $102.750
November 1, 2006 to October 31, 2007 $102.406
November 1, 2007 to October 31, 2008 $102.063
November 1, 2008 to October 31, 2009 $101.719
November 1, 2009 to October 31, 2010 $101.375
November 1, 2010 to October 31, 2011 $101.031
November 1, 2011 to October 31, 2012 $100.688
November 1, 2012 to October 31, 2013 $100.344
November 1, 2013 and thereafter $100.000
(C) The amount which shall be paid to the holders of
shares of the Fourth Series in the event of any liquidation,
dissolution or winding up of the affairs of the Company or
any distribution of its capital, whether voluntary or
involuntary, before any distribution or payment shall be
made to the holders of Common Stock, shall be $100 per
share, plus accumulated but unpaid dividends.
D. The following amendment to its Articles of
Incorporation was adopted by the shareholders of the corporation
on May 8, 1990 and filed with the Secretary of the State on May
24, 1990, in the manner prescribed by the Montana Business
Corporation Act. When this amendment was filed with the
Secretary of the State the Article referenced as Article VI
should have been referenced as Article VII. This was clerical
error, the amendment approved by shareholders did reference
Article VII, and is so referenced in the Restated Articles of
Incorporation. Article VII was also addressed on March 24, 1998,
at The Montana Power Company Board of Directors meeting,
clarifying the intention concerning this amendment as follows:
RESOLVED further, that the language in the first
paragraph of Section VII of the Articles of Incorporation,
when amended by shareholders in 1990 was intended to replace
both the first and second sentences of that section and the
attached Restated Articles of Incorporation have so replaced
both sentences so that the following two sentences contained
in the Restated Articles of 1988 are;
ARTICLE VII. The aggregate number of shares
which the Corporation has authority to issue is
65,000,000 shares without nominal or par value,
consisting of 5,000,000 Preferred shares and 60,000,000
Common shares.
At the date hereof, the aggregate number of
shares, issued and unissued, itemized by class and
series, if any, within each class is as follows:
Issued Unissued Total
--------- ---------- ----------
Common 23,750,936 36,249,064 60,000,000
Preferred:
$6.00 Series 159,589
$4.20 Series 60,000
$2.15 Series 1,200,000
Undesignated 3,580,411 5,000,000
And, the following sentence replaces the above two
sentences in the attached Restated Articles of
Incorporation:
ARTICLE VII. The aggregate number of
shares which the Corporation has authority to issue is
125,000,000 shares without nominal or par value,
consisting of 5,000,000 Preferred shares and
120,000,000 Common shares.
THIRD: Shareholder approval of these Restated Articles of
Incorporation is not required.
FOURTH: The adopted Restated Articles of Incorporation
supersede the original Articles of Incorporation and all
amendments to them and all prior restatements.
DATED: March 24, 1998
THE MONTANA POWER COMPANY
/s/ Pamela K. Merrell
------------------------------
Vice President and Secretary
(SEAL)
/s/ R.M. Ralph
------------------------------
Assistant Secretary
STATE OF MONTANA )
) ss.
County of Silver Bow )
I, the undersigned, Notary Public, do hereby certify that on
this 26th day of March 1998, personally appeared before me P. K.
Merrell, who, being by me first sworn, declared that she is Vice
President and Secretary of The Montana Power Company, that she
signed the foregoing document as Vice President and Secretary of
the corporation, and that the statements therein contained are
true.
(SEAL)
Notary Signature
---------------------------------------
Notary Public for the State of Montana
Residing at Butte, Montana
My Commission expires ___________________.
[Notarial Seal]
EXHIBIT 4(b)
THE MONTANA POWER COMPANY
BYLAWS
TABLE OF CONTENTS
SECTION 1. Principal Office Page 1
SECTION 2. Location of Shareholders Meetings Page 1
SECTION 3. Shareholders Meetings Page 1
A. Annual Meeting of Shareholders Page 1-3
B. Special Meeting of Shareholders Page 3
C. General Page 3-4
SECTION 4. Call of Special Meetings of Shareholders Page 4
SECTION 5. Notice of Shareholders Meetings Page 4-5
SECTION 6. Shareholder Meeting Quorum Page 5
SECTION 7. Shareholder Voting Page 5
SECTION 8. List of Shareholders Page 5
SECTION 9. Form of Certificates Page 5
SECTION 10. Share Transfer Page 5-6
SECTION 11. Directors Page 6
A. Number and Terms Page 6
B. Removal by Shareholders Page 6
C. Vacancies Page 6-7
D. Indemnification Page 7
SECTION 12. Directors Meetings Page 7
SECTION 13. Designation Officers Page 7-8
SECTION 14. Duties of Officers Page 8
A. Chief Executive Officer Page 8
B. Chairman of the Board Page 8
C. Vice Chairman Page 9
D. President Page 9
E. Vice President Page 9
F. Treasurer Page 9
G. Assistant Treasurer Page 9
H. Controller Page 9
I. Assistant Controller Page 9
J. Secretary Page 9-10
K. Assistant Secretary Page 10
L. Other Page 10
SECTION 15. Board Committee Page 10
A. Executive Committee Page 10
B. Other Committees Page 10-11
SECTION 16. Miscellaneous Board Authority Page 11
A. Banking Page 11
B. Director Compensation Page 11
C. Record Dates Page 11
SECTION 17. Corporate Seal Page 11
SECTION 18. Amendment of Bylaws Page 11
SECTION 19. Disposition of Assets Page 12
A. Disposition in Ordinary Course of Business Page 12
B. Mortgage or Pledge Page 12
C. Disposition of All or Substantially All Assets Page 12
SECTION 20. Office of the Corporation Page 12
SECTION 21. Corporate Acquisition of Own Shares Page 13
<PAGE>
As Adopted August 22, 1995
As Amended on January 1, 1998, May 12, 1997 & August 27, 1996
BYLAWS
OF
THE MONTANA POWER COMPANY
SECTION 1. Principal Office. 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. Location of Shareholders Meetings. 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. Shareholder Meetings.
(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 Bylaw,
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 Bylaw.
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.
SECTION 4. Call of Special Meetings of Shareholders. 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 Shareholders Meetings. 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, to 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 and that notice to employee shareholders may be sent
to their work addresses through intercompany mail.
SECTION 6. Shareholder Meeting Quorum. 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. Shareholder Voting. 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. List of Shareholders. 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. Form of Certificates. 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. Share Transfer. 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. Directors.
---------
(A) Number and Terms. The affairs of the Corporation shall be
---------------------
managed by a Board of thirteen (13) Directors.
(1) 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; provided,
however, that at the annual meeting of shareholders to be held in
May 1996, seven (7) Directors shall be elected with six Directors
serving a term of three (3) years and one (1) Director serving a
term of two (2) years.
(2) 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.
B. Removal by Shareholders. 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 the Director's removal would be sufficient to elect the
Director if then cumulatively voted at an election of the class
of Directors of which the Director is a part.
C. Vacancies. 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.
D. Indemnification. 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. Director Meetings. 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. Designation of Officers. 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. Duties of Officers. The powers and duties of the
------------------
Officers of the Corporation shall be as follows:
A. Chief Executive Officer. 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.
B. Chairman of the Board. 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.
C. Vice Chairman. 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.
D. President. The President shall have such duties and
----------
authority as may be assigned by the Board of Directors or the
Chief Executive Officer.
E. Vice President. 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.
F. Treasurer. 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.
G. Assistant Treasurer. 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.
H. Controller. The Controller shall be the Administrative
----------
Officer in charge of accounting functions of the Corporation.
The Controller shall perform such other duties as may from time
to time be prescribed by the Board of Directors, or by the Chief
Executive Officer.
I. Assistant Controller. 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.
J. Secretary. 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.
K. Assistant Secretary. 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.
L. Other. 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. Board Committees.
----------------
A. Executive Committee. 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.
B. Other Committees. 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. Miscellaneous Board Authority. The Board of
------------------------------
Directors is authorized:
(A) Banking. 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) Director Compensation. 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) Record Dates. 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. Corporate Seal. The corporate seal of the
--------------
corporation shall be in such form as the Board of Directors shall
prescribe.
SECTION 18. Amendment of Bylaws. 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. Disposition of Assets.
---------------------
A. Disposition in Ordinary Course of Business. 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.
B. Mortgage or Pledge. 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.
C. Disposition of All or Substantially All Assets. 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. Office of the Corporation. 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.
SECTION 21. Corporate Acquisition of its Own Shares.
---------------------------------------
The Company may acquire its own shares, and shares so
acquired shall constitute authorized and issued shares.
[The Montana Power Company Legal Department Letterhead]
Exhibit 5(a)
July 21, 1998
The Montana Power Company
40 East Broadway
Butte, Montana 59701
Dear Sirs:
With respect to the Registration Statement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, on or about the date hereof,
contemplating the sale by The Montana Power Company of 2,000,000
additional shares of its Common Stock ("Stock") and Preferred
Share Purchase Rights ("Rights") pursuant to the Company's 1998
Long-Term Incentive 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 Stock are
legally issued, fully paid and nonassessable and the Rights
appurtenant to the Stock are legally issued.
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 issued, fully paid and
nonassessable and the Rights appurtenant to the Stock legally
issued will have been taken when:
(a) the Registration Statement shall have become
effective;
(b) an appropriate order or orders of the Public
Service Commission of Montana shall have authorized the
issuance and sale of the Stock;
(c) appropriate action shall have been taken by
the Company's Board of Directors with respect to the
issuance and sale of the Stock;
(d) the Stock shall have been issued and
delivered for the consideration contemplated in the
Registration Statement; and
(e) the Rights appurtenant to the Stock shall
have been issued in accordance with the terms of the
Rights Agreement, dated as of June 6, 1989, between The
Montana Power Company and First Chicago Trust Company
of New York, as Rights Agent.
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
[Thelen Reid & Priest Letterhead]
Exhibit 5(b)
July 21, 1998
The Montana Power Company
40 East Broadway
Butte, Montana 59701
Dear Sirs:
With respect to the Registration Statement to be filed
with the Securities and Exchange Commission (the "SEC") pursuant
to the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof, contemplating the sale by The Montana
Power Company of 2,000,000 additional shares of its Common Stock
("Stock") and Preferred Share Purchase Rights ("Rights") pursuant
to the Company's 1998 Long-Term Incentive 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.
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 issued, fully paid and
nonassessable and the Rights appurtenant to the Stock legally
issued 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) the Stock shall have been issued and
delivered for the consideration contemplated in the
Registration Statement;
(d) the Company's Board of Directors or a duly
authorized committee thereof shall have taken
appropriate action with respect to the issuance and
sale of the Stock, and
(e) the Rights appurtenant to the Stock shall
have been issued in accordance with the terms of the
Rights Agreement, dated as of June 6, 1989, between The
Montana Power Company and First Chicago Trust Company
of New York, as Rights Agent.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts on the laws of any other
state. In giving this opinion, we have relied as to matters of
Montana law upon the opinion addressed to you, of even date
herewith, of Michael E. Zimmerman, Esq., Vice President and
General Counsel of the Company and a member of the Bar of the
State of Montana.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement, and the use of our name,
as counsel, therein. In giving the foregoing consent, we do not
thereby admit that we belong to the category of persons whose
consent is required under Section 7 of the Act or the rules and
regulations promulgated by the SEC thereunder.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit 23(a)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February
5, 1998, which appears on page 46 of The Montana Power Company's
Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Portland, Oregon
July 21, 1998
