<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
NORTHERN STATES POWER COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MINNESOTA 41-0448030
(State or other jurisdiction (I.R.S. Employer
of Identification Number)
incorporation or
organization)
</TABLE>
414 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55401
(612) 330-5500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
E.J. MCINTYRE JOHN P. MOORE, JR.
Vice President and Chief Financial Corporate Secretary
Officer Northern States Power Company
Northern States Power Company 414 Nicollet Mall
414 Nicollet Mall Minneapolis, Minnesota 55401
Minneapolis, Minnesota 55401 (612) 330-7550
(612) 330-7712
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPY TO
PETER D. CLARKE
Gardner, Carton & Douglas
321 North Clark Street
Chicago, Illinois 60610
(312) 245-8685
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. / /
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
4,600,000
Common Stock (par value $2.50 per share).... shares(1) $49.875(2) $229,425,000(2) $69,523
</TABLE>
(1) Includes 600,000 shares of Common Stock issuable upon exercise of the
Underwriters' over allotment option.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low sale
prices of the Common Stock of the Registrant reported by THE WALL STREET
JOURNAL as New York Stock Exchange-- Corporate Transactions for August 8,
1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The Registration Statement contains a Prospectus relating to a public
offering in the United States and Canada (the "Offering") of an aggregate of
3,200,000 shares of Common Stock, par value $2.50 per share (the "Common
Stock"), of Northern States Power Company, together with separate Prospectus
pages relating to a concurrent offering outside the United States and Canada of
an aggregate of 800,000 shares of Common Stock (the "International Offering").
The complete Prospectus for the Offering follows immediately. After such
Prospectus are the following alternate pages for the International Offering: a
front cover page, an inside front cover page, an "Underwriting" section and a
back cover page. All other pages of the Prospectus for the Offering are to be
used for both the Offering and the International Offering.
Copies of the complete Prospectus for each of the Offering and the
International Offering in the exact forms in which they are to be used after
effectiveness will be filed with the Securities and Exchange Commission pursuant
to Rule 424(b).
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 15, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
<PAGE>
P_R_O_S_P_E_C_T_U_S
4,000,000 SHARES
NORTHERN STATES POWER COMPANY
(A MINNESOTA CORPORATION)
COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
-------------------
Of the 4,000,000 shares of Common Stock, par value $2.50 per share (the
"Common Stock"), of Northern States Power Company (the "Company") offered
hereby, 3,200,000 shares are being offered initially in the United States and
Canada by the U.S. Underwriters (the "U.S. Offering") and the remaining 800,000
shares of Common Stock are being offered initially in a concurrent offering
outside the United States and Canada by the International Managers (the
"International Offering" and, together with the U.S. Offering, the "Offerings").
The outstanding shares of Common Stock are, and the shares of Common Stock
offered hereby will be, listed on the New York Stock Exchange, the Chicago Stock
Exchange and the Pacific Exchange under the symbol "NSP." The last reported sale
price of the Common Stock on August 13, 1997 on the New York Stock Exchange
Composite Tape was $49.50 per share. See "Common Stock Dividends and Price
Information."
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE
CONTRARY IS A CRIMINAL
OFFENSE.
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT (1) COMPANY (2)
<S> <C> <C> <C>
Per Share...................................... $ $ $
Total (3)...................................... $ $ $
</TABLE>
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(2) Before deducting expenses payable by the Company estimated at $175,000.
(3) The Company has granted the U.S. Underwriters and the International Managers
options to purchase up to an additional 480,000 shares and 120,000 shares,
respectively, of Common Stock to cover over-allotments, if any. If all such
shares are purchased, the total Price to Public, Underwriting Discount and
Proceeds to Company will be $ , $ and $ , respectively. See
"Underwriting."
-------------------
The Common Stock offered hereby is offered by the Underwriters subject to
prior sale, when, as and if issued to and accepted by the Underwriters, and
subject to approval of certain legal matters by counsel for the Underwriters and
certain other conditions. The Underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. It is expected
that delivery of the Common Stock offered hereby will be made in New York, New
York, on or about , 1997.
-------------------
MERRILL LYNCH & CO. GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
DAIN BOSWORTH PIPER JAFFRAY INC.
INCORPORATED
-------------------
The date of this Prospectus is , 1997.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK,
INCLUDING STABILIZING AND SYNDICATE COVERING TRANSACTIONS AND THE IMPOSITION OF
A PENALTY BID. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information on file can be inspected at the public
reference offices of the Commission currently at 450 Fifth Street, N.W.,
Washington, D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
In addition, reports, proxy material and other information concerning the
Company may be inspected at the Library of the New York Stock Exchange, 20 Broad
Street, New York, New York, at the office of the Chicago Stock Exchange, 440
South LaSalle Street, Chicago, Illinois, and at the office of the Pacific
Exchange, 301 Pine Street, San Francisco, California, on which exchanges the
Company's Common Stock is listed. In addition, electronically filed documents,
including reports, proxy statements and other information regarding the Company
can be obtained from the Commission's website at http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is made to the Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997; and
3. The Company's Current Reports on Form 8-K dated January 8, 1997, January
21, 1997, January 24, 1997, January 31, 1997, April 22, 1997, May 19,
1997, May 30, 1997 and July 30, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this Prospectus or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference in the Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON (INCLUDING ANY
BENEFICIAL OWNER) TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN INCORPORATED IN THIS PROSPECTUS BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO THE CORPORATE SECRETARY, NORTHERN STATES POWER COMPANY,
414 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55401 (612-330-7550).
2
<PAGE>
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
Certain statements under the captions "NSP", "Capital Spending and
Financing", "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business" included or incorporated by reference in
this Prospectus constitute "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995 ("Reform Act"). Such
forward-looking statements are intended to be identified by the words
"anticipate", "estimate", "expect", "objective", "possible", "potential" and
similar expressions. Actual results may vary materially. Factors that could
cause actual results to differ materially include, but are not limited to:
general economic conditions, including their impact on capital expenditures;
business conditions in the energy industry; competitive factors; unusual
weather; changes in federal or state legislation; the higher degree of risk
associated with the Company's non-regulated businesses as compared to the
Company's regulated businesses; and the other factors listed from time to time
by the Company in reports filed with the Commission, including Exhibit 99.01 to
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the
detailed information and financial statements included elsewhere in this
Prospectus, including the information contained in the documents incorporated
herein by reference.
THE OFFERING
<TABLE>
<S> <C>
Securities Offered....................... 4,000,000 shares of Common Stock (1)
U.S. Offering.......................... 3,200,000 shares
International Offering................. 800,000 shares
Number of Shares of Common Stock to be
Outstanding............................ Approximately 73,292,619(1)
Price Range of Common Stock
(8/13/96-8/13/97)...................... $44 1/2 to $52 15/16
NYSE Listing Symbol...................... NSP
Current Indicated Annual Dividend Rate... $2.82
Book Value Per Common Share at 6/30/97... $30.46
Use of Proceeds.......................... General corporate purposes, including retirement
of $100 million of first mortgage bonds,
construction program and repayment of short-term
borrowings
Principal Business....................... Electric and Gas Utility
Service Area............................. Portions of Minnesota, North Dakota and South
Dakota. Wholly-owned Wisconsin subsidiary serves
customers in Wisconsin and Michigan. Majority of
customers are concentrated in the
Minneapolis-St. Paul metropolitan area. In 1996
approximately 62% of retail electric revenues
and 56% of retail gas revenues were derived from
sales in this area.
Estimated Population of Service Area..... 3,000,000
Approximate Number of Customers at
12/31/96............................... Electric--1,415,325; Gas--438,997
Estimated Net 1997 Summer Electric
Capability............................. 8,826 MW
Sources of Electric Energy in 1996....... Coal -- 47%; Nuclear -- 28%; Purchase and
interchange -- 21%; Hydro and other fuels -- 4%
</TABLE>
- ------------------------
(1) Assumes the U.S. Underwriters' and International Managers' over-allotment
options are not exercised. See "Underwriting."
4
<PAGE>
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(MILLIONS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
12 MONTHS ENDED ----------------------------------------
JUNE 30, 1997 1996 1995 1994
---------------- ------------ ------------ ------------
(UNAUDITED) (FROM AUDITED AMOUNTS IN FORM 10-K)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Electric Revenues.................................. $ 2,144.9 $ 2,127.4 $ 2,142.8 $ 2,066.6
Gas Revenues....................................... 535.2 526.8 425.8 419.9
Net Income......................................... 248.0(1) 274.5 275.8(2) 243.5
Earnings Available for Common Stock................ 235.5(1) 262.3 263.3(2) 231.1
Average Number of Common and Equivalent Shares
Outstanding (000's).............................. 68,859 68,679 67,416 66,845
Earnings per Average Common Share.................. $ 3.42(1) $ 3.82 $ 3.91(2) $ 3.46
Dividends Declared per Common Share................ $ 2.775 $ 2.745 $ 2.685 $ 2.625
</TABLE>
<TABLE>
<CAPTION>
JUNE 30, 1997
------------------------------------------------
PERCENT OF ADJUSTED
ACTUAL AS ADJUSTED(3) CAPITALIZATION
--------- -------------- ---------------------
(UNAUDITED)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Short-term Debt (including current maturities).................... $ 563.0 $ %
Long-term Debt, due after one year................................ $ 1,839.7
Manditorily Redeemable Preferred Securities of Subsidiary Trust... 200.0
Cumulative Preferred Stock (including premium).................... 200.3
Common Stockholders' Equity (including premium)................... 2,104.3
--------- -------------- ---
Total Capitalization.......................................... $ 4,907.3 $ 100%
--------- -------------- ---
--------- -------------- ---
Total Assets...................................................... $ 6,869.0
</TABLE>
- ------------------------
(1) 1997 results include a non-recurring charge of $17.1 million (after-tax), or
$0.25 per share, due to merger-related costs. On May 16, 1997, NSP and
Wisconsin Energy Corporation mutually agreed to terminate their plans to
merge the two companies. As a result, NSP charged to expense its share of
deferred merger-related costs.
(2) 1995 results include non-recurring income of $14.7 million, or $0.22 per
share.
(3) Adjusted to give effect to the sale of 4,000,000 shares of Common Stock
(based on net proceeds to the Company of $ million and assuming the
Underwriters' over-allotment option is not exercised).
5
<PAGE>
NORTHERN STATES POWER COMPANY
REGULATED OPERATIONS
[MAP]
NON-REGULATED OPERATIONS
[MAP]
6
<PAGE>
NSP
OVERVIEW
Northern States Power Company, a Minnesota corporation (the "Company"), is
an operating public utility engaged in the generation, transmission and
distribution of electricity in Minnesota, North Dakota and South Dakota, and the
distribution of natural gas in Minnesota and North Dakota. Through its wholly-
owned subsidiary, Northern States Power Company, a Wisconsin corporation, NSP
also is engaged in the generation, transmission and distribution of electricity
and the distribution of natural gas in Wisconsin and Michigan.
The Company's other primary subsidiaries include NRG Energy, Inc. ("NRG"),
which operates and has ownership interests in independent, non-regulated power
and energy businesses in the United States and other countries; Viking Gas
Transmission Company ("Viking"), which owns and operates a 500-mile interstate
natural gas pipeline providing gas transportation services to customers in the
Upper Midwest from connections with three major pipelines in the United States
and Canada; Eloigne Company ("Eloigne") which has ownership interests in
affordable housing projects, principally within the Company's service territory;
and Cenerprise, Inc. ("Cenerprise"), which delivers natural gas and electric
products and services to commercial and industrial customers, utilities,
municipalities and energy marketers, and offers performance contracting to
customers nationwide. The Company and its subsidiaries collectively are referred
to herein as NSP.
For the twelve months ended June 30, 1997, NSP reported assets of $6.87
billion, revenues of approximately $2.68 billion, after tax income from ongoing
operations of $265 million (excluding merger costs) and earnings per common
share from ongoing operations of $3.67 (excluding merger costs). For this same
period, the earnings contributions of NRG, Eloigne and Cenerprise were $0.37,
$0.05 and $(0.10) per share, respectively.
The Company was incorporated in 1909 under the laws of Minnesota. The
Company's executive offices are located at 414 Nicollet Mall, Minneapolis,
Minnesota 55401 (Phone 612-330-5500).
REGULATED UTILITY ACTIVITIES
NSP generates, transmits and distributes electricity throughout a 49,000
square mile service area encompassing portions of Minnesota, Wisconsin, North
Dakota, South Dakota and Michigan, and transports and distributes gas in 152
communities within this area. Net utility plant for the year ended December 31,
1996, was $4.34 billion, operating utility revenues were $2.65 billion and the
portion of NSP's net income related to utility activities was approximately
$258.2 million. NSP derived approximately 80% of its gross utility operating
revenues from its electric business and 20% from its gas business. Approximately
89% of NSP's utility operating income before taxes was attributable to its
electric business and the balance was attributable to its gas business.
Of the approximately 3 million people in NSP's service area, the majority is
concentrated in the Minneapolis-St. Paul metropolitan area. For 1996,
approximately 62% of NSP's retail electric revenues were derived from sales in
the Minneapolis-St. Paul metropolitan area and approximately 56% of retail gas
revenues came from sales in the St. Paul area.
7
<PAGE>
NSP has a residential, diversified commercial and industrial, and
agricultural customer base. During 1996, NSP's electric and gas operating
revenues were derived from the following types of customers:
<TABLE>
<CAPTION>
ELECTRIC
<S> <C>
Residential.................................. 34%
Small commercial and industrial.............. 18%
Medium commercial and industrial............. 19%
Large commercial and industrial.............. 21%
Other retail................................. 1%
Sales for resale............................. 5%
Miscellaneous................................ 2%
GAS
Residential.................................. 51%
Firm commercial and industrial............... 28%
Interruptible commercial and industrial...... 12%
Other........................................ 9%
</TABLE>
NSP is not dependent on any one customer or group of customers. NSP's
largest electric customer accounts for less than 2% of electric revenue. The
largest 10 electric customers account for about 7% of electric revenue. NSP's
largest retail gas customer accounts for about 1% of gas revenue and the largest
10 customers account for less than 5% of gas revenue.
NSP's electric capability for the summer of 1997 is estimated to be 8,826
megawatts ("MW") (net of contract sales), of which 7,096 MW is Company-owned
capability. The remainder of the capability consists of 903 MW of contracted
purchases from the Manitoba Hydro-Electric Board, a Canadian Crown Corporation,
and 827 MW of other contracted purchases. The Company-owned electric generating
capability includes 3,841 MW of coal-fired generation and 1,571 MW of nuclear
generation. NSP currently owns and operates three nuclear units that were placed
in service in 1971, 1973 and 1974. NSP has no additional nuclear units under
construction. NSP's nuclear plants currently hold the Institute of Nuclear Power
Operations' (INPO) top rating for plant operations and training. In addition,
INPO has awarded NSP's plants the INPO Excellence Award, which is a rigorous
peer review process that recognizes plants with the highest levels of excellence
in operational safety and reliability and which have no significant weaknesses.
For the year ended December 31, 1996, 47% of all electric energy sold by NSP was
coal fueled, 28% was nuclear fueled, 21% was purchased and 4% was generated from
other sources, including hydro.
NSP provides retail gas service in portions of the St. Paul metropolitan
area, portions of eastern North Dakota and northwestern Minnesota, and other
regional centers in Minnesota (Mankato, St. Cloud and Winona) and Wisconsin (Eau
Claire, LaCrosse and Ashland). NSP is directly connected to four interstate
natural gas pipelines serving these regions: Northern Natural Gas Company
("Northern"), Viking, Williston Basin Interstate Pipeline Company and Great
Lakes Transmission Limited Partnership. Approximately 81 percent of NSP's retail
gas customers are served from the Northern pipeline system.
NSP's wholly-owned pipeline subsidiary, Viking, owns and operates a 500 mile
interstate natural gas pipeline serving portions of Minnesota, Wisconsin and
North Dakota with a capacity of approximately 420 million cubic feet per day.
The Viking pipeline currently serves 10 percent of NSP's gas distribution system
needs. Viking operates exclusively as a transporter of natural gas for
third-party shippers under authority granted by the Federal Energy Regulatory
Commission ("FERC"). Rates for Viking's transportation services are regulated by
FERC.
In January 1997, NSP entered into a non-binding letter of intent with
TransCanada PipeLines Limited ("TransCanada") regarding a potential natural gas
pipeline expansion and extension project to serve the Upper Midwest U.S. gas
market, and the potential purchase by TransCanada of a 50% interest in Viking.
The proposed project, called Viking Voyageur, would involve installing a new
pipeline parallel to the existing Viking pipeline, and extending the new
pipeline to the Chicago area. If constructed, the new pipeline could transport
between 1.2 billion and 2.0 billion cubic feet of natural gas per day to markets
in Minnesota, Wisconsin, North Dakota and Illinois. The anticipated project cost
is approximately $1.0 billion (U.S. currency), and the new pipeline is proposed
to be placed in service in late 1999. The project would be constructed only if
sufficient market demand exists, and would be subject to extensive
pre-construction
8
<PAGE>
regulatory and environmental reviews by the FERC and other appropriate
government agencies. In July 1997, Viking Voyageur and NICOR Inc., the parent
company of Northern Illinois Gas, signed a letter of intent to make NICOR a 20%
owner of Viking Voyageur and extend the proposed pipeline by approximately 60
miles. Under this proposal, NSP and TransCanada would each own 40% of Viking
Voyageur.
NON-REGULATED ACTIVITIES
Total non-regulated assets of NSP as of December 31, 1996 were approximately
$808 million. In 1996, operating revenues and sales from non-regulated
activities were approximately $304 million, equity income from unconsolidated
non-regulated projects was approximately $31 million and the portion of NSP's
net income related to non-regulated activities was approximately $16.3 million.
NSP's equity investment in its largest wholly-owned non-regulated subsidiary,
NRG, as of June 30, 1997 was approximately $496 million. One of NSP's objectives
is to increase the earnings contribution from NRG to 20% of NSP's earnings by
the year 2000. NSP expects to meet this goal through the growing profitability
of existing NRG businesses and the addition of new NRG businesses. NRG's goal is
for its operations to be split evenly between domestic and international
projects.
NRG, is principally engaged in the acquisition, development and operation
of, and ownership of interests in, independent power production and cogeneration
facilities, thermal energy production and transmission facilities and resource
recovery facilities. The power generation facilities in which NRG had interests
as of August 1, 1997 (including those under construction) had a total design
capacity of 7,010 MW, of which NRG had or will have operational responsibility
for 4,582 MW and net ownership of or leasehold interests in 2,097 MW. In
addition, NRG has substantial interests in district heating and cooling systems
and steam generation and transmission operations; at December 31, 1996, these
businesses had a thermal capacity of more than 900 MW equivalents. NRG's
refuse-derived fuel ("RDF") plants processed more than 808,000 tons of municipal
solid waste into approximately 644,000 tons of RDF in 1996.
As of August 1, 1997, NRG had interests in 26 power generation facilities
worldwide (not including those facilities in which NEO Corporation ("NEO") has
an interest), including projects under construction. The location of these
projects, along with their design capacity and NRG ownership are as follows:
<TABLE>
<CAPTION>
NUMBER OF FACILITIES DESIGN CAPACITY NRG NET OWNERSHIP
----------------------- --------------- -------------------
<S> <C> <C> <C>
United States...................... 11 531 MW 176 MW
Germany............................ 4 1,160 MW 267 MW
Australia.......................... 4 4,039 MW 1,244 MW
Colombia........................... 2 299 MW 16 MW
Czech Republic..................... 1 382 MW 214 MW
Jamaica............................ 1 74 MW 7 MW
Peru............................... 1 155 MW 5.5 MW
Honduras........................... 1 80 MW 6 MW
Bolivia............................ 1 218 MW 126.5 MW
</TABLE>
In addition, through its wholly-owned project subsidiary, NEO, NRG had
interests on August 1, 1997 in 28 small hydroelectric and landfill gas-fired
power generation facilities located in the United States with total design
capacity of 72 MW, of which NRG has net ownership of 35 MW.
At any time, NRG has a number of projects under consideration or in
development and is in various stages of negotiations regarding other potential
projects in the United States and abroad. NRG is currently developing a number
of significant domestic and international projects. These potential projects
include a 45% interest in the West Java Project, a 400 MW coal-fired project in
Indonesia in partnership with Ansaldo Energia and P.T. Kiani Metra; a 27.75%
interest in the 390 MW Alto Cachapoal greenfield hydroelectric complex in
central Chile in partnership with Nordic Power Invest AB and Construtora
9
<PAGE>
Andrade Gutierrez S.A.; and a 50% interest in the Enfield Energy Centre, a 350
MW power project under development in Enfield, England. In addition, NRG and
representatives of the Estonian Government and the state-owned Eesti Energia
signed a Development and Cooperation Agreement under which the parties are to
establish a plan to develop and refurbish two power plants. A business plan for
the joint project was submitted in June 1997. NRG and two partners have filed a
plan in federal bankruptcy court to acquire the fossil-fueled generating assets
of Cajun Electric Power Cooperative of Baton Rouge, Louisiana. Because of the
many complexities inherent in the development, financing and acquisition of such
projects, there can be no assurance that any of these transactions will be
consummated.
NSP's non-regulated wholly-owned subsidiary, Cenerprise, markets natural gas
and electricity to end-use customers and provides customized value-added energy
services to customers, both inside NSP's service territory and on a national
basis. In response to increased market volatility and an increased focus on
end-use customers, Cenerprise discontinued its gas trading operations during
1996. Losses associated with this discontinued business line reduced NSP's 1996
earnings by approximately $0.06 per share. Cenerprise continues to seek to
expand its energy products and services and recently completed the acquisition
of two energy services firms.
Through its non-regulated subsidiary, Eloigne, NSP has investments in
various domestic affordable housing. As of December 31, 1996, approximately $48
million had been invested in Eloigne projects, including $15 million in
wholly-owned properties (at net book value) and $33 million in equity interests
in jointly-owned projects.
10
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the shares offered hereby, after deducting an
underwriting discount and expenses of the offering payable by the Company, are
estimated to be $ million ($ million if the Underwriters' over-allotment
option is exercised in full). These proceeds will be added to the general funds
of the Company and used for general corporate purposes, including the retirement
at maturity of $100 million principal amount of the Company's 5 7/8% First
Mortgage Bonds, Series due October 1, 1997, expenditures for the Company's
construction program and the repayment of a portion of outstanding short-term
borrowings. Short-term borrowings of the Company are expected to exceed $260
million immediately prior to the sale of the shares offered hereby. See "Capital
Spending and Financing" and "Underwriting".
CAPITAL SPENDING AND FINANCING
NSP's utility capital expenditures (including allowance for funds used
during construction) are currently estimated to be $420 million for 1997 and
$2.0 billion for the five years ending December 31, 2001. These estimates do not
include potential capital expenditures for the proposed Viking Voyageur natural
gas pipeline project. Included in NSP's projected utility capital expenditures
is $50 million in 1997 and $280 million during the five years ending December
31, 2001 for nuclear fuel for the Company's three existing nuclear units. The
remaining capital expenditures through 2001 are for many utility projects, none
of which are extraordinarily large relative to the total capital expenditure
program. Approximately 90% of the 1997 utility capital expenditures and
approximately 95% of the 1997-2001 utility capital expenditures are expected to
be provided by internally generated funds. Internally generated funds from all
operations are expected to equal approximately 42% and 75%, respectively, of
NSP's total capital requirements (including equity investments in non-regulated
projects) anticipated for 1997 and the five-year period 1997-2001. The foregoing
estimates of utility capital expenditures and internally generated funds may be
subject to substantial changes due to unforeseen factors, such as changed
economic conditions, competitive conditions, resource planning requirements, new
government regulations, changed tax laws and rate regulation.
Although they may vary depending on the success, timing, level of
involvement in planned and future projects and other unforeseen factors,
potential capital requirements for investments in existing and additional
non-regulated projects are estimated to be $500 million in 1997 and $940 million
for the five year period 1997-2001. The majority of these non-regulated capital
requirements relate to equity investments (excluding costs financed by project
debt) in NRG's projects. The remainder consists mainly of affordable housing
investments by Eloigne Company. Equity investments by NRG and Eloigne would be
funded through their own internally generated funds, equity investments by the
Company, or long-term debt issued by the non-regulated subsidiary. Such equity
investments by the Company are expected to be financed on a long-term basis
through the Company's internally generated funds.
NSP continues to evaluate opportunities to enhance its competitive position
and shareholder returns through strategic acquisitions of existing businesses.
Long-term non-regulated financing may be required for any such future
acquisitions that NSP consummates.
11
<PAGE>
COMMON STOCK DIVIDENDS AND PRICE INFORMATION
The Company has increased the annual dividend for 23 consecutive years. The
following tabulation shows cash dividends declared per share of Common Stock and
the high and low sale prices thereof, as reported on the New York Stock Exchange
Composite Tape, during the periods indicated:
<TABLE>
<CAPTION>
DIVIDENDS
HIGH LOW DECLARED
------- ------- ------
<S> <C> <C> <C>
1994.................................... $47 $38 3/4 $2.625
1995.................................... 49 1/2 42 1/2 2.685
First Quarter......................... 46 3/4 42 1/2 .660
Second Quarter........................ 47 3/8 42 7/8 .675
Third Quarter......................... 46 7/8 42 1/2 .675
Fourth Quarter........................ 49 1/2 45 1/8 .675
<CAPTION>
DIVIDENDS
HIGH LOW DECLARED
------- ------- ------
<S> <C> <C> <C>
1996.................................... $53 3/8 $44 1/2 $2.745
First Quarter......................... 53 3/8 47 5/8 .675
Second Quarter........................ 49 5/8 45 1/2 .690
Third Quarter......................... 49 3/4 44 1/2 .690
Fourth Quarter........................ 49 1/8 45 1/2 .690
1997
First Quarter......................... 49 1/8 45 1/2 .690
Second Quarter........................ 52 44 1/2 .705
Third Quarter (through 8/13/97)....... 52 15/16 49 5/16
</TABLE>
The reported last sale price on the New York Stock Exchange Composite Tape
on August 13, 1997 was $49 1/2 per share. As of June 30, 1997 there were 84,797
shareholders of record of the Common Stock.
The next quarterly dividend is expected to be paid on October 20, 1997 to
shareholders of record on October 1, 1997.
Future dividends will depend upon the future earnings and financial
condition of the Company and other factors affecting dividend policy that are
not currently determinable. Reference is made to "Description of Common Stock --
Dividend Rights" for information concerning certain restrictions upon the
payment of dividends on the Common Stock.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The Company's Dividend Reinvestment and Stock Purchase Plan (the "Plan")
permits participants to reinvest their dividends paid by the Company in
additional shares of the Company's Common Stock and to make optional cash
payments (not exceeding $10,000 per calendar quarter). The shares purchased
under the Plan may be authorized but unissued shares of Common Stock or Common
Stock purchased on the open market. During the remainder of 1997, the shares
purchased under the Plan are expected to come from the Company's authorized but
unissued common stock.
12
<PAGE>
DESCRIPTION OF COMMON STOCK
GENERAL
The capital stock of the Company consists of two classes: Common Stock, par
value $2.50 per share (160,000,000 shares authorized of which 69,292,619 shares
were outstanding as of July 31, 1997); and Preferred Stock, par value $100 per
share (the "Cumulative Preferred Stock") (7,000,000 shares authorized, of which
the following series were outstanding as of July 31, 1997: $3.60 Series --
275,000 shares; $4.08 Series -- 150,000 shares; $4.10 Series -- 175,000 shares;
$4.11 Series -- 200,000 shares; $4.16 Series -- 100,000 shares; $4.56 Series --
150,000 shares; Variable Rate Series A -- 300,000 shares; and Variable Rate
Series B -- 650,000 shares). The Board of Directors of the Company is authorized
to provide for the issue from time to time of Cumulative Preferred Stock in
series and, as to each series, to fix the designation, dividend rates and times
of payment, redemption price, and liquidation price or preference as to assets
in voluntary liquidation. Cumulative dividends, redemption provisions and
sinking fund requirements, to the extent that some or all of these features are
or may be present when Cumulative Preferred Stock is issued, could have an
adverse effect on the availability of earnings for distribution to the holders
of the Common Stock or for other corporate purposes.
The statements under this caption, except as otherwise indicated, are
summaries of certain provisions of the Restated Articles of Incorporation of the
Company as amended, and are subject to the detailed provisions thereof.
DIVIDEND RIGHTS
Before any dividends may be paid on the Common Stock, the holders of each
series of the Company's Cumulative Preferred Stock are entitled to receive their
dividends at the respective rates provided for the shares of the respective
series. In addition, the Company may not, except in certain limited
circumstances, declare or pay any dividends on its Common Stock if the Company
has deferred payment of interest on its Junior Subordinated Debentures that were
issued in connection with the Trust Originated Preferred Securities (TOPrS)
issued and sold by its subsidiary trust, NSP Financing I.
LIMITATIONS ON PAYMENT OF DIVIDENDS ON AND ACQUISITIONS OF COMMON STOCK
So long as any shares of Cumulative Preferred Stock are outstanding,
dividends (other than dividends payable in Common Stock) or distributions on, or
acquisitions for value of, Common Stock (i) may not exceed 50% of net income of
the Company for a preceding twelve-month period, after deducting dividends
accruing on any Cumulative Preferred Stock during the period, if the sum of the
capital represented by the Common Stock, premiums on capital stock (restricted
to premiums on Common Stock only by Commission Orders), and surplus accounts is
less than 20% of the sum of the total capital, premiums on capital stock,
surplus accounts and debt maturing more than one year after date of issue, (ii)
may not exceed 75% of net income for such preceding twelve-month period, as
adjusted, if such capitalization ratio is 20% or more but less than 25%, and
(iii) if such capitalization ratio exceeds 25%, such dividends, distributions or
acquisitions may not reduce such ratio to less than 25% except to the extent
permitted by clauses (i) and (ii) above.
In the Company's Trust Indenture dated February 1, 1937, as supplemented
(the "Trust Indenture"), securing its First Mortgage Bonds, the Company has
covenanted that the sum of (i) all dividends and distributions on the Common
Stock of the Company after September 30, 1954 (other than in Common Stock), and
(ii) the cost of all shares of its Common Stock acquired by it after that date
shall not exceed the sum of (a) the earned surplus of the Company and certain of
its former subsidiary companies, consolidated, at September 30, 1954, and (b) an
amount equal to the net income of the Company and certain of its former
subsidiary companies, consolidated, earned after September 30, 1954, after
making provisions for all dividends accruing after that date on preferred stock
of the Company and after taking into consideration all proper charges and
credits to earned surplus made after that date. In computing net
13
<PAGE>
income for the purpose of this covenant, there will be deducted an amount, if
any, by which 15% of the consolidated gross operating revenues of such
companies, as defined in the Trust Indenture, after certain deductions, exceeds
the aggregate of the amounts expended for maintenance and provided for
depreciation. None of the foregoing provisions are expected to impair the
Company's ability to pay dividends in the foreseeable future.
The Company's Supplemental and Restated Trust Indenture dated May 1, 1988
(the "Restated Indenture") amends and restates the Trust Indenture. The Restated
Indenture will not become effective and operative until all First Mortgage Bonds
of each series issued under the Trust Indenture prior to July 1989 shall have
been retired through payment or redemption or, subject to certain limitations,
until the holders of the requisite principal amount of such First Mortgage Bonds
shall have consented to the amendments contained in the Restated Indenture (the
"Effective Date"). The Restated Indenture will replace the dividend restriction
described in the preceding paragraph with the requirement that (a) the sum of:
(i) all dividends and distributions on the Company's Common Stock after the
Effective Date (other than in Common Stock) and (ii) the amount, if any, by
which the considerations given by the Company for the purchase or other
acquisition of its Common Stock after the Effective Date exceeds the
considerations received by it after the Effective Date from the sale of Common
Stock, shall not exceed (b) the sum of: (i) the retained earnings of the Company
at the Effective Date, and (ii) an amount equal to the net income of the Company
earned after the Effective Date, after deducting all dividends accruing after
the Effective Date on all classes and series of preferred stock of the Company.
In computing net income for the purpose of this amended covenant, there will be
deducted the amount, if any, by which, after the date commencing 365 days prior
to the Effective Date, the actual expenditures or charges for ordinary repairs
and maintenance and the charges for reserves, renewals, replacements,
retirements, depreciation and depletion are less than 2.50% of the Company's
completed depreciable property, as defined in the Restated Indenture.
VOTING RIGHTS
The holders of shares of Cumulative Preferred Stock of the $3.60 Series are
entitled to three votes for each share held, and the holders of shares of Common
Stock and shares of Cumulative Preferred Stock of all other series are entitled
to one vote for each share held on all matters submitted to a vote of the
Company's stockholders; provided that when dividends payable on the Cumulative
Preferred Stock of any series outstanding are in default in an amount equivalent
to the amount payable thereon during the immediately preceding twelve-month
period, and until such default shall have been remedied, the holders of shares
of Cumulative Preferred Stock, voting as a class and without regard to series,
are entitled to elect the smallest number of directors necessary to constitute a
majority of the Board of Directors and the holders of shares of Common Stock,
voting as a class, are entitled to elect the remaining directors of the Company.
The affirmative vote or consent of the holders of various specified
percentages of Cumulative Preferred Stock is required to effect certain changes
in the capital structure of the Company and certain other transactions that
might affect their rights. Except to the extent required by law, holders of
Common Stock do not vote as a class in case of any modification of their rights.
CHANGE OF CONTROL
The Company's By-laws and the Minnesota Business Corporation Act, as amended
(the "Minnesota BCA"), contain provisions that could discourage or make more
difficult a change of control of the Company. Such provisions are designed to
protect the Company's shareholders against coercive, unfair or inadequate tender
offers and other abusive takeover tactics and to encourage any person
contemplating a business combination with the Company to negotiate with its
Board of Directors for the fair and equitable treatment of all of the Company's
shareholders.
14
<PAGE>
ELECTION OF DIRECTORS. In electing directors, shareholders may cumulate
their votes in the manner provided in the Minnesota BCA. The Board of Directors
is divided into three classes as nearly equal in number as possible with
staggered terms of office so that only approximately one-third of the directors
are elected at each annual meeting of shareholders. The existence of a
classified Board along with cumulative voting rights may make it more difficult
for a group owning a significant amount of the Company's voting securities to
effect a change in the majority of the Board than would be the case if
cumulative voting did not exist.
BY-LAW PROVISIONS. The Company's By-laws require advance notice of the
introduction by shareholders of business at annual or special meetings of
shareholders of the Company. For any such proposal to be properly brought before
an annual or special meeting, a shareholder must comply with the shareholder
proposal requirements under the federal proxy rules or deliver a written notice
to the Secretary of the Company not less than 20 days nor more than 90 days
prior to the scheduled annual or special meeting, as the case may be; provided
that if the date of such meeting is not disclosed at least 30 days in advance, a
shareholder notice will be timely delivered if received by the close of business
on the tenth day following the earlier of the day on which notice of the date of
the scheduled meeting was mailed or the day on which public disclosure of the
meeting date occurred. The required notice from a shareholder must contain (i) a
description of the proposed business and the reasons for conducting such
business, (ii) the name and address of each shareholder supporting the proposal
as it appears on the Company' s books, (iii) the class and number of shares
beneficially owned by each such shareholder, and (iv) a description of any
financial or other interest of each such shareholder in the proposal.
MINNESOTA BCA. Section 302A.671 of the Minnesota BCA applies to potential
acquirers of 20% or more of the Company's voting shares. Section 302A.671
provides in substance that shares acquired by such acquirer will not have any
voting rights unless (a) the acquisition is approved by (i) a majority of the
voting power of all shares of the Company entitled to vote and (ii) a majority
of the voting power of all shares of the Company entitled to vote excluding all
shares owned by the acquirer or by any officer of the Company, or (b) the
acquisition (i) is pursuant to an all-cash tender offer for all of the voting
shares of the Company, (ii) results in the acquirer becoming the owner of at
least a majority of the outstanding voting shares of the Company, and (iii) has
been approved by a committee of disinterested directors.
Section 302A.673 of the Minnesota BCA generally prohibits public Minnesota
corporations, including the Company, from engaging in any business combination
with a person or entity owning 10% or more of the Company's voting shares for a
period of four years after the date of the transaction in which such person or
entity became a 10% shareholder unless the business combination or the
acquisition resulting in 10% ownership was approved by a committee of
disinterested directors prior to the date such person or entity became a 10%
shareholder.
Section 302A.675 of the Minnesota BCA provides in substance that a person or
entity making a takeover offer (an "offeror") for the Company is prohibited from
acquiring any additional Company shares within two years following the last
purchase of shares pursuant to a takeover offer with respect to that class
unless (i) the acquisition is approved by a committee of disinterested directors
before the purchase of any shares by the offeror pursuant to a takeover offer or
(ii) shareholders of the Company are afforded, at the time of the acquisition, a
reasonable opportunity to dispose of their shares to the offeror upon
substantially equivalent terms as those provided in the earlier takeover offer.
LIQUIDATION RIGHTS
In the event of liquidation, after the holders of all series of Cumulative
Preferred Stock have received $100 per share in the case of involuntary
liquidation, and the then applicable redemption prices in the case of voluntary
liquidation, plus in either case an amount equal to all accumulated and unpaid
dividends, the holders of the Common Stock are entitled to the remaining assets.
15
<PAGE>
PREEMPTIVE AND SUBSCRIPTION RIGHTS
No holder of stock of the Company has the preemptive right to purchase or
subscribe for any additional capital stock of the Company.
The Company's Common Stock is listed on the New York Stock Exchange, the
Chicago Stock Exchange and the Pacific Exchange. The Transfer Agent for the
Common Stock is the Company and the Registrar is Norwest Bank Minnesota, N.A.
LEGAL OPINIONS
Legal opinions relating to the Common Stock will be rendered by John P.
Moore, Jr., 414 Nicollet Mall, Minneapolis, Minnesota, counsel for the Company,
and by Gardner, Carton & Douglas, 321 North Clark Street, Chicago, Illinois,
counsel for the Underwriters. John P. Moore, Jr., Corporate Secretary of the
Company, is the beneficial owner of 3,728 shares of Company Common Stock.
Matters pertaining to local laws will be passed upon by counsel for the Company
and as to these matters Gardner, Carton & Douglas will rely on their opinions.
Gardner, Carton & Douglas from time to time acts as special counsel for NSP in
connection with certain matters.
EXPERTS
The consolidated historical financial statements of the Company as of and
for the years ended December 31, 1996 and 1995 and the consolidated historical
financial statements of Wisconsin Energy Corporation incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, and the consolidated financial statements of NRG as of
and for the years ended December 31, 1996 and 1995 incorporated in this
Prospectus by reference to the Company's Current Report on Form 8-K dated May
30, 1997, have been so incorporated in reliance upon the reports of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The consolidated historical financial statements for the Company for the
year ended December 31, 1994 incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1996
have been audited by Deloitte and Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
16
<PAGE>
CERTAIN UNITED STATES TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS
The following is a general discussion of certain United States federal
income and estate tax consequences of the ownership and disposition of Common
Stock by a person who is not a "U.S. person" (a "Non-U.S. Holder"). For this
purpose, a "U.S. person" is any person who is, for United States federal income
tax purposes, (i) a citizen or resident of the United States, (ii) a corporation
or partnership created or organized in or under the laws of the United States or
of any State, (iii) an estate the income of which is subject to U.S. federal
income tax, regardless of its source, or (iv) a trust if (a) a court within the
United States is able to exercise primary supervision over the administration of
the trust and (b) one or more United States fiduciaries have the authority to
control all substantial decisions of the trust. This discussion does not address
all aspects of United States federal income and estate taxes and does not deal
with foreign, state and local consequences that may be relevant to such Non-U.S.
Holders in light of their personal circumstances. Furthermore, this discussion
is based on provisions of the United States Internal Revenue Code of 1986, as
amended, existing and proposed regulations promulgated thereunder and
administrative and judicial interpretations thereof, as of the date hereof, all
of which are subject to change (possibly with retroactive effect).
An individual may, subject to certain exceptions, be deemed to be a resident
alien (as opposed to a non-resident alien) by virtue of being present in the
United States on at least 31 days in the calendar year and for an aggregate of
at least 183 days during a three-year period ending in the current calendar year
(counting for such purposes all of the days present in the current year,
one-third of the days present in the immediately preceding year, and one-sixth
of the days present in the second preceding year). Resident aliens are generally
subject to U.S. federal tax as if they were U.S. citizens and, thus, are not
Non-U.S. Holders for purposes of this discussion.
THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY. EACH PROSPECTIVE
PURCHASER OF COMMON STOCK IS ADVISED TO CONSULT A TAX ADVISOR WITH RESPECT TO
CURRENT AND POSSIBLE FUTURE TAX CONSEQUENCES OF ACQUIRING, HOLDING AND DISPOSING
OF COMMON STOCK AS WELL AS ANY TAX CONSEQUENCES THAT MAY ARISE UNDER THE LAWS OF
ANY FOREIGN, STATE, LOCAL OR OTHER TAXING JURISDICTION.
DIVIDENDS
Dividends paid to a Non-U.S. Holder of Common Stock generally will be
subject to withholding of United States federal income tax either at a rate of
30% of the gross amount of the dividends or at such lower rate as may be
specified by an applicable income tax treaty. However, dividends that are
effectively connected with the conduct of a trade or business by the Non-U.S.
Holder within the United States and, where a tax treaty applies, are
attributable to a United States permanent establishment of the Non-U.S. Holder,
are not subject to the withholding tax (provided the Non-U.S. Holder files
appropriate documentation, including, under current law, Form 4224, with the
payor of the dividend), but instead are subject to United States federal income
tax on a net income basis at applicable graduated income tax rates. Any such
effectively connected dividends received by a Non-U.S. Holder that is a
corporation may, under certain circumstances, be subject to an additional
"branch profits tax" at a 30% rate or such lower rate as may be specified by an
applicable income tax treaty.
In order to claim the benefit of an applicable tax treaty, a Non-U.S. Holder
of Common Stock may have to file with the Company or its dividend paying agent
an exemption or reduced treaty rate certificate or letter in accordance with the
terms of the treaty. Under current law, dividends paid to an address outside the
United States are presumed to be paid to a resident of such country (unless the
payor has knowledge to the contrary) for purposes of the withholding discussed
above and for purposes of determining the applicability of a tax treaty rate.
However, under proposed Treasury regulations not currently in
17
<PAGE>
effect, in the case of dividends paid after December 31, 1997 (December 31, 1999
in the case of dividends paid to accounts in existence on or before the date
that is 60 days after the proposed regulations are published as final
regulations), a Non-U.S. Holder of Common Stock who wishes to claim the benefit
of an applicable treaty rate would be required to satisfy applicable
certification and other requirements either directly or through an intermediary.
In addition, backup withholding, as discussed below, may apply in certain
circumstances if applicable certification and other requirements are not met.
A Non-U.S. Holder of Common Stock eligible for a reduced rate of United
States withholding tax pursuant to an income tax treaty may obtain a refund of
any excess amounts withheld by filing an appropriate claim for refund with the
Internal Revenue Service (the "IRS").
GAIN ON DISPOSITION OF COMMON STOCK
A Non-U.S. Holder will generally not be subject to United States federal
income tax with respect to gain recognized on a sale or other disposition of
Common Stock unless (i) the gain is effectively connected with a trade or
business of the Non-U.S. Holder in the United States, and, where a tax treaty
applies, is attributable to a United States permanent establishment of the
Non-U.S. Holder, (ii) in the case of a Non-U.S. Holder who is an individual and
holds the Common Stock as a capital asset, such holder is present in the United
States for 183 or more days in the taxable year of the sale or other disposition
and certain other conditions are met, or (iii) the Company is or has been a
"U.S. real property holding corporation" for United States federal income tax
purposes. The Company believes it is not and does not anticipate becoming a
"U.S. real property holding corporation" for United States federal income tax
purposes. Further, an exemption to the U.S. real property holding corporation
rules applies for persons holding 5 percent or less of the class of stock, such
ownership to be determined using constructive ownership rules.
If an individual Non-U.S. Holder falls under clause (i) in the preceding
paragraph, he will, unless an applicable treaty provides otherwise, be taxed on
his net gain derived from the sale under regular graduated United States federal
income tax rates. If an individual Non-U.S. Holder falls under clause (ii) in
the preceding paragraph, he will be subject to a flat 30% tax on the gain
derived from the sale, which may be offset by certain United States-source
capital losses. Certain individual Non-U.S. Holders who were once United States
citizens may be subject to special rules applicable to United States
expatriates.
If a Non-U.S. Holder that is a corporation falls under clause (i) in the
next preceding paragraph, it will be taxed on its gain under regular graduated
United States federal income tax rates and may be subject to an additional
branch profits tax at a 30% rate, unless it qualifies for a lower rate under an
applicable income tax treaty.
FEDERAL ESTATE TAX
Common Stock held by an individual who is not a citizen or resident (as
specifically defined for United States federal estate tax purposes) of the
United States at the time of death will be included in such holder's gross
estate for United States federal estate tax purposes, unless an applicable
estate tax treaty provides otherwise.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
The Company must report annually to the IRS and to each Non-U.S. Holder the
amount of dividends paid to such holder and the tax withheld with respect to
such dividends, regardless of whether withholding was required. Copies of the
information returns reporting such dividends and withholding may also be made
available to the tax authorities in the country in which the Non-U.S. Holder
resides under the provisions of an applicable income tax treaty.
United States backup withholding tax is imposed at the rate of 31% on
certain payments to persons not otherwise exempt that fail to furnish certain
identifying information to the payor. Under current law,
18
<PAGE>
backup withholding generally will not apply to dividends paid to a Non-U.S.
Holder at an address outside the United States (unless the payer has knowledge
that the payee is a U.S. person), but generally will apply to dividends paid on
Common Stock at addresses inside the United States to Non-U.S. Holders that fail
to provide certain identifying information in the manner required. However,
under proposed Treasury regulations not currently in effect, in the case of
dividends paid after December 31, 1997 (December 31, 1999 in the case of
dividends paid to accounts in existence on or before the date that is 60 days
after the proposed regulations are published as final regulations), a Non-U.S.
Holder generally would be subject to backup withholding at a 31% rate, unless
certain certification procedures (or, in the case of payments made outside the
United States with respect to an offshore account, certain documentary evidence
procedures) are complied with, directly or through an intermediary, or a
Non-U.S. Holder otherwise establishes an exemption from backup withholding.
Payment of the proceeds of a sale of Common Stock by or through a United
States office of a broker is subject to both backup withholding and information
reporting unless the beneficial owner provides the payor with its name and
address and certifies under penalties of perjury that it is a Non-U.S. Holder,
or otherwise establishes an exemption. In general, backup withholding and
information reporting will not apply to a payment of the proceeds of a sale of
Common Stock by or through a foreign office of a broker. If, however, such
broker is, for United States federal income tax purposes a U.S. person, a
controlled foreign corporation, or a non-United States person that derives 50%
or more of its gross income for certain periods from the conduct of a trade or
business in the United States, such payments will not be subject to backup
withholding but will be subject to information reporting, unless (i) such broker
has documentary evidence in its records that the beneficial owner is a Non-U.S.
Holder and certain other conditions are met, or (ii) the beneficial owner
otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules generally will be
allowed as a refund or a credit against such holder's U.S. federal income tax
liability provided the required information is furnished in a timely manner to
the IRS.
19
<PAGE>
UNDERWRITING
The Underwriters named below (the "U.S. Underwriters"), acting through their
Representatives, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman,
Sachs & Co., Salomon Brothers Inc, Dain Bosworth Incorporated and Piper Jaffray
Inc. (the "Representatives") have severally agreed, subject to the terms and
conditions of the purchase agreement relating to the Common Stock (the "U.S.
Purchase Agreement") and concurrently with the sale of 800,000 shares of Common
Stock to certain underwriters outside the United States and Canada (the
"International Managers" and, together with the U.S. Underwriters, the
"Underwriters"), to purchase from the Company the number of shares of Common
Stock offered hereby set forth below opposite their respective names. Under
certain circumstances, the commitments of non-defaulting U.S. Underwriters or
International Managers may be increased.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
- --------------------------------------------------------------------------------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...........................................................
Goldman, Sachs & Co..............................................................
Salomon Brothers Inc.............................................................
Dain Bosworth Incorporated.......................................................
Piper Jaffray Inc................................................................
----------
Total.................................................................. 3,200,000
----------
----------
</TABLE>
The Company has also entered into a purchase agreement (the "International
Purchase Agreement") with the International Managers. Subject to the terms and
conditions set forth in the International Purchase Agreement, and concurrently
with the sale of 3,200,000 shares of Common Stock to the U.S. Underwriters
pursuant to the U.S. Purchase Agreement, the Company has agreed to sell to the
International Managers, and the International Managers have severally agreed to
purchase from the Company, an aggregate of 800,000 shares of Common Stock. The
initial public offering price per share of the Common Stock and the total
underwriting discount per share of the Common Stock are identical under the
International Purchase Agreement and the U.S. Purchase Agreement.
In the U.S. Purchase Agreement and the International Purchase Agreement, the
U.S. Underwriters and the International Managers, respectively, have agreed,
subject to the terms and conditions set forth therein, to purchase all of the
shares of Common Stock being sold pursuant to each such Purchase Agreement if
any of such shares of Common Stock being sold pursuant to each such Purchase
Agreement are purchased. The closings with respect to the sale of the shares to
be purchased by the U.S. Underwriters and the International Managers are
conditioned upon one another.
The International Managers and the U.S. Underwriters have entered into an
intersyndicate agreement (the "Intersyndicate Agreement") that provides for the
coordination of their activities. Under the terms of the Intersyndicate
Agreement, the U.S. Underwriters and the International Managers are permitted to
sell shares of Common Stock to each other for purposes of resale at the initial
public offering price, less an amount not greater than the selling concession.
Under the terms of the Intersyndicate Agreement, the U.S. Underwriters and any
dealer to whom they sell shares of Common Stock will not offer to sell or sell
shares of Common Stock to persons who are non-United States or non-Canadian
persons or to persons they believe intend to resell to persons who are
non-United States or non-Canadian persons, and the International Managers and
any dealer to whom they sell shares of Common Stock will not offer to sell or
sell shares of Common Stock to United States or Canadian persons or to persons
they believe intend to resell to persons who are United States or Canadian
persons, except in each case for transactions pursuant to the Intersyndicate
Agreement.
The U.S. Representatives have advised the Company that the several U.S.
Underwriters propose initially to offer the shares of Common Stock to the public
at the public offering price set forth on the cover page of this Prospectus, and
to certain dealers (who may include International Managers) at such
20
<PAGE>
price less a concession not in excess of $ per share. The U.S.
Underwriters may allow, and such dealers may reallow, a discount not in excess
of $ per share on sales to certain other dealers. After the initial public
offering, the public offering price, concession and discount may be changed.
The Company has granted the U.S. Underwriters an option, exercisable within
thirty days after the date the U.S. Purchase Agreement is executed, to purchase
up to 480,000 additional shares of Common Stock to cover over-allotments, if
any, at the initial public offering price, less the underwriting discount. If
the U.S. Underwriters exercise this option, each of the U.S. Underwriters will
have a firm commitment, subject to certain conditions, to purchase approximately
the same percentage of such additional shares that the number of shares to be
purchased by it shown in the foregoing table bears to the 3,200,000 shares of
Common Stock initially offered hereby.
The Company has agreed that for a period of 120 days after the date of this
Prospectus it will not, without the prior written consent of Merrill Lynch,
directly or indirectly issue, pledge, sell, offer to sell, grant any option for
the sale of, or otherwise transfer or dispose of any share of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
except for (i) the Common Stock to be sold in the Offerings, (ii) any shares of
Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company and its subsidiaries or (iii) any
shares of Common Stock issued pursuant to dividend reinvestment and stock
purchase plans of the Company.
Until the distribution of the Common Stock is completed, rules of the
Commission may limit the ability of the Underwriters and certain selling group
members to bid for and purchase the Common Stock. As an exception to these
rules, the Representatives are permitted to engage in certain transactions that
stabilize the price of the Common Stock. Such transactions consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Common Stock.
If the Underwriters create a short position in the Common Stock in
connection with the Offerings (i.e., if they sell more shares of Common Stock
than are set forth on the cover page of this Prospectus), the Representatives
may reduce that short position by purchasing Common Stock in the open market.
The Representatives may also elect to reduce any short position through the
exercise of all or part of the over-allotment option described above.
The Representatives may also impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representatives purchase
shares of Common Stock in the open market to reduce the Underwriters' short
position or to stabilize the price of the Common Stock, they may reclaim the
amount of the selling concession from the Underwriters and selling group members
who sold those shares as part of the Offerings.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Common Stock. In addition, neither
that Company nor any of the Underwriters makes any representation that the
Representatives will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
In the Purchase Agreements, the Company has agreed to indemnify the
Underwriters against certain liabilities under the Act or to contribute to
payments the Underwriters may be required to make in respect thereof.
From time to time, in the ordinary course of their respective businesses,
the Underwriters and their affiliates have engaged and may engage in commercial
and investment banking transactions with the Company and its affiliates.
21
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Documents Incorporated by Reference....................................... 2
Special Note Regarding Forward Looking Statements......................... 3
Prospectus Summary........................................................ 4
Northern States Power Company............................................. 6
NSP....................................................................... 7
Use of Proceeds........................................................... 11
Capital Spending and Financing............................................ 11
Common Stock Dividends and Price Information.............................. 12
Description of Common Stock............................................... 13
Legal Opinions............................................................ 16
Experts................................................................... 16
Certain United States Tax Consequences to Non-United States Holders....... 17
Underwriting.............................................................. 20
</TABLE>
4,000,000 SHARES
NORTHERN STATES
POWER COMPANY
COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
NSP
---------------------
PROSPECTUS
---------------------
MERRILL LYNCH & CO.
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
DAIN BOSWORTH
INCORPORATED
PIPER JAFFRAY INC.
, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
[Alternate page for International Prospectus]
SUBJECT TO COMPLETION, DATED AUGUST 15, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
<PAGE>
[Alternate page for International Prospectus]
P_R_O_S_P_E_C_T_U_S
4,000,000 SHARES
NORTHERN STATES POWER COMPANY
(A MINNESOTA CORPORATION)
COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
-------------------
Of the 4,000,000 shares of Common Stock, par value $2.50 per share (the
"Common Stock"), of Northern States Power Company (the "Company") offered
hereby, 800,000 shares are being offered initially outside the United States and
Canada by the International Managers (the "International Offering") and the
remaining 3,200,000 shares of Common Stock are being offered initially in a
concurrent offering in the United States and Canada by the U.S. Underwriters
(the "U.S. Offering" and, together with the International Offering, the
"Offerings"). The outstanding shares of Common Stock are, and the shares of
Common Stock offered hereby will be, listed on the New York Stock Exchange, the
Chicago Stock Exchange and the Pacific Exchange under the symbol "NSP". The last
reported sale price of the Common Stock on August 13, 1997 on the New York Stock
Exchange Composite Tape was $49.50 per share. See "Common Stock Dividends and
Price Information."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION, NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE
CONTRARY IS A CRIMINAL
OFFENSE.
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT (1) COMPANY (2)
<S> <C> <C> <C>
Per Share...................................... $ $ $
Total (3)...................................... $ $ $
</TABLE>
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(2) Before deducting expenses payable by the Company estimated at $175,000.
(3) The Company has granted the International Managers and the U.S. Underwriters
options to purchase up to an additional 120,000 and 480,000 shares,
respectively, of Common Stock to cover over-allotments, if any. If all such
shares are purchased, the total Price to Public, Underwriting Discount and
Proceeds to Company will be $ , $ and $ , respectively. See
"Underwriting."
-------------------
The Common Stock offered hereby is offered by the Underwriters subject to
prior sale, when, as and if issued to and accepted by the Underwriters, and
subject to approval of certain legal matters by counsel for the Underwriters and
certain other conditions. The Underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. It is expected
that delivery of the Common Stock offered hereby will be made in New York, New
York, on or about , 1997.
-------------------
MERRILL LYNCH INTERNATIONAL GOLDMAN, SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
DAIN BOSWORTH PIPER JAFFRAY INC.
INCORPORATED
-------------------
The date of this Prospectus is , 1997.
<PAGE>
[Alternate page for International Prospectus]
CERTAIN PERSONS PARTICIPATING IN THESE OFFERINGS MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE SHARES OF COMMON
STOCK. SUCH TRANSACTIONS MAY INCLUDE STABILIZING, THE PURCHASE OF COMMON STOCK
TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF A PENALTY BID. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. THERE ARE RESTRICTIONS ON THE OFFER AND SALE OF SECURITIES IN THE
UNITED KINGDOM. ALL APPLICABLE PROVISIONS OF THE FINANCIAL SERVICES ACT 1986 AND
THE PUBLIC OFFERS OF SECURITIES REGULATIONS 1995 WITH RESPECT TO ANYTHING DONE
BY ANY PERSON IN RELATION TO ANY SECURITIES IN, FROM OR OTHERWISE INVOLVING THE
UNITED KINGDOM MUST BE COMPLIED WITH. SEE "UNDERWRITING."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information on file can be inspected at the public
reference offices of the Commission currently at 450 Fifth Street, N.W.,
Washington, D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
In addition, reports, proxy material and other information concerning the
Company may be inspected at the Library of the New York Stock Exchange, 20 Broad
Street, New York, New York, at the office of the Chicago Stock Exchange, 440
South LaSalle Street, Chicago, Illinois, and at the office of the Pacific
Exchange, 301 Pine Street, San Francisco, California, on which exchanges the
Company's Common Stock is listed. In addition, electronically filed documents,
including reports, proxy statements and other information regarding the Company
can be obtained from the Commission's website at http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is made to the Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997; and
3. The Company's Current Reports on Form 8-K dated January 8, 1997, January
21, 1997, January 24, 1997, January 31, 1997, April 22, 1997, May 19,
1997, May 30, 1997 and July 30, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this Prospectus or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference in the Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON (INCLUDING ANY
BENEFICIAL OWNER) TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN INCORPORATED IN THIS PROSPECTUS BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO THE CORPORATE SECRETARY, NORTHERN STATES POWER COMPANY,
414 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55401 (612-330-7550).
2
<PAGE>
[Alternate page for International Prospectus]
UNDERWRITING
The underwriters named below (the "International Managers"), acting through
their respective representatives, Merrill Lynch International, Goldman, Sachs
International, Salomon Brothers International Limited, Dain Bosworth
Incorporated and Piper Jaffray Inc. (collectively, the "International
Representatives" and, together with the U.S. Representatives, the
"Representatives"), have severally agreed, subject to the terms and conditions
contained in a purchase agreement relating to the Common Stock (the
"International Purchase Agreement") and concurrently with the sale of 3,200,000
shares of Common Stock to certain underwriters in the United States and Canada
(the "U.S. Underwriters" and, together with the International Managers, the
"Underwriters"), to purchase from the Company the number of shares of Common
Stock set forth opposite their respective names below. Under certain
circumstances, the commitments of certain non-defaulting International Managers
or U.S. Underwriters may be increased.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
- ----------------------------------------------------------------------------------- -----------
<S> <C>
Merrill Lynch International........................................................
Goldman, Sachs International.......................................................
Salomon Brothers International Limited.............................................
Dain Bosworth Incorporated.........................................................
Piper Jaffray Inc..................................................................
-----------
Total.................................................................... 800,000
-----------
-----------
</TABLE>
The Company has also entered into a purchase agreement (the "U.S. Purchase
Agreement") with the U.S. Underwriters. Subject to the terms and conditions set
forth in the U.S. Purchase Agreement, and concurrently with the sale of 800,000
shares of Common Stock to the International Managers pursuant to the
International Purchase Agreement, the Company has agreed to sell to the U.S.
Underwriters, and the U.S. Underwriters have severally agreed to purchase from
the Company, an aggregate of 3,200,000 shares of Common Stock. The initial
public offering price per share of the Common Stock and the total underwriting
discount per share of the Common Stock are identical under the International
Purchase Agreement and the U.S. Purchase Agreement.
In the International Purchase Agreement and the U.S. Purchase Agreement, the
International Managers and the U.S. Underwriters, respectively, have agreed,
subject to the terms and conditions set forth therein, to purchase all of the
shares of Common Stock being sold pursuant to each such Purchase Agreement if
any of such shares of Common Stock being sold pursuant to each such Purchase
Agreement are purchased. The closings with respect to the sale of the shares to
be purchased by the International Managers and the U.S. Underwriters are
conditioned upon one another.
The International Managers and the U.S. Underwriters have entered into an
intersyndicate agreement (the "Intersyndicate Agreement") that provides for the
coordination of their activities. Under the terms of the Intersyndicate
Agreement, the U.S. Underwriters and the International Managers are permitted to
sell shares of Common Stock to each other for purposes of resale at the initial
offering price, less an amount not greater than the selling concession. Under
the terms of the Intersyndicate Agreement, the International Managers and any
dealer to whom they sell shares of Common Stock will not offer to sell or sell
shares of Common Stock to United States or Canadian persons or to persons they
believe intend to resell to United States or Canadian persons, and the U.S.
Underwriters and any dealer to whom they sell shares of Common Stock will not
offer to sell or sell shares of Common Stock to non-United States or non-
Canadian persons or to persons they believe intend to resell to non-United
States or non-Canadian persons, except in each case for transactions pursuant to
the Intersyndicate Agreement.
The International Representatives have advised the Company that the
International Managers propose initially to offer the shares of Common Stock to
the public at the public offering price set forth on the cover page of this
Prospectus, and to certain dealers (who may include International Managers) at
such price less a concession not in excess of $ per share of Common
Stock. The International Managers may allow, and such dealers may reallow, a
discount not in excess of $ per share on sales to certain other dealers.
After the initial public offering, the public offering price, concession and
discount may be changed.
20
<PAGE>
[Alternate page for International Prospectus]
The Company has granted to the International Managers an option exercisable
within thirty days after the International Purchase Agreement is executed to
purchase up to an additional 120,000 shares of Common Stock to cover
over-allotments, if any, at the initial public offering price, less the
underwriting discount. If the International Managers exercise this option, each
International Manager will have a firm commitment, subject to certain
conditions, to purchase approximately the same percentage of such additional
shares that the number of shares of Common Stock to be purchased by it shown in
the foregoing table bears to the shares of Common Stock initially offered
hereby.
Each International Manager has represented and agreed that (i) it has not
offered or sold, and will not for a period of six months following consummation
of the Offerings offer or sell any shares of Common Stock to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances that do not
constitute an offer to the public in the United Kingdom for the purposes of the
Public Offers of Securities Regulations 1995, (ii) it has complied with and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the shares of Common Stock in,
from, or otherwise involving the United Kingdom and (iii) it has only issued or
passed on and will only issued or pass on in the United Kingdom any document
received by it in connection with the issue or sale of the shares of Common
Stock to a person who is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom the document may otherwise lawfully be issued or passed on.
The Company has agreed that for a period of 120 days after the date of this
Prospectus it will not, without the prior written consent of Merrill Lynch,
Pierce, Fenner & Smith Incorporated, directly or indirectly issue, pledge, sell,
offer to sell, grant any option for the sale of, or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, except for (i) the Common Stock to
be sold in the Offerings, (ii) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the
Company and its subsidiaries or (iii) any shares of Common Stock issued pursuant
to dividend reinvestment and stock purchase plans of the Company.
Until the distribution of the Common Stock is completed, rules of the
Commission may limit the ability of the Underwriters and certain selling group
members to bid for and purchase the Common Stock. As an exception to these
rules, the Representatives are permitted to engage in certain transactions that
stabilize the price of the Common Stock. Such transactions consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Common Stock.
If the Underwriters create a short position in the Common Stock in
connection with the Offerings, (i.e., if they sell more shares of Common Stock
than are set forth on the cover page of this Prospectus), the Representatives
may reduce that short position by purchasing Common Stock in the open market.
The Representatives may also elect to reduce any short position by exercising
all or part of the over-allotment options described above.
The Representatives may also impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representatives purchase
shares of Common Stock in the open market to reduce the Underwriters' short
position or to stabilize the price of the Common Stock, they may reclaim the
amount of the selling concession from the Underwriters and selling group members
who sold those shares as part of the Offerings.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Common Stock. In addition, neither
the Company nor any of the Underwriters makes any representation that the
Representatives will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
In the Purchase Agreements, the Company has agreed to indemnify the several
Underwriters against certain liabilities under the Act or to contribute to
payments the Underwriters may be required to make in respect thereof.
From time to time, in the ordinary course of their respective businesses,
the Underwriters and their affiliates have engaged and may engage in commercial
and investment banking transactions with the Company and its affiliates.
21
<PAGE>
[Alternate page for International Prospectus]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Documents Incorporated by Reference....................................... 2
Special Note Regarding Forward Looking Statements......................... 3
Prospectus Summary........................................................ 4
Northern States Power Company............................................. 6
NSP....................................................................... 7
Use of Proceeds........................................................... 11
Capital Spending and Financing............................................ 11
Common Stock Dividends and Price Information.............................. 12
Description of Common Stock............................................... 13
Legal Opinions............................................................ 16
Experts................................................................... 16
Certain United States Tax Consequences to Non-United States Holders....... 17
Underwriting.............................................................. 20
</TABLE>
4,000,000 SHARES
NORTHERN STATES
POWER COMPANY
COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
NSP
---------------------
PROSPECTUS
---------------------
MERRILL LYNCH INTERNATIONAL
GOLDMAN, SACHS INTERNATIONAL
SALOMON BROTHERS
INTERNATIONAL LIMITED
DAIN BOSWORTH
INCORPORATED
PIPER JAFFRAY INC.
, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of fees and
expenses payable by the Registrant (other than underwriting discounts and
commissions) in connection with the issuance of the Shares:
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933................. $ 69,523
Stock Exchange listing fees....................................... 35,100
Printing and engraving............................................ 35,000
Accounting services............................................... 15,000
Transfer Agents and Registrar fees and expenses................... 2,500
Miscellaneous, including traveling, telephone, copying, shipping
and other out-of-pocket expenses................................. 17,877
---------
Total......................................................... $ 175,000
---------
---------
</TABLE>
- ------------------------
All items are estimated except the first.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes permits indemnification of
officers and directors of domestic or foreign corporations under certain
circumstances and subject to certain limitations. Pursuant to authorization
contained in the Restated Articles of Incorporation, as amended, Article 4 of
the Bylaws of the Company contains provisions for of its directors and officers
consistent with the provisions of Section 302A.521 of the Minnesota Statutes.
The Company has obtained insurance policies indemnifying the Company and the
Company's directors and officers against certain civil liabilities and related
expenses.
II-1
<PAGE>
ITEM 16. EXHIBITS.
Certain Exhibits listed below were filed with the Securities and Exchange
Commission as Exhibits to certain Registration Statements under the Exhibit
number indicated after each such Exhibit and are incorporated herein by this
reference. These Registration Statements are identified as follows:
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
No. No.
(a) No. 2-5290. (h) 2-14156. (o) No. 2-27117. (v) 2-46434.
No. No.
(b) No. 2-5924. (1) 2-15220. (p) No. 2-28447. (w) 2-53235.
No. No. No.
(c) No. 2-7549. (m) 2-18355. (q) 2-342250. (x) 2-71259.
No. No.
(d) No. 2-8047. (k) 2-20282. (r) No. 2-36693. (y) 2-83364.
No. No.
(e) No. 2-9631. (i) 2-21601. (s) No. 2-39144. (z) 2-97667.
No. No.
(f) 2-12216. (m) 2-22476. (t) No.2-39815.
No. No.
(g) 2-13463. (n) 2-26338. (u) No. 2-42598.
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT
- --------------
<S> <C>
1.01 U.S. Purchase Agreement.
1.02 International Purchase Agreement.
4.01 Restated Articles of Incorporation and Amendments, filed as Exhibit 3.01 to Form 10-Q for the
quarter ended March 31, 1992, File No. 1-3034 and incorporated herein by reference.
4.02 Bylaws of the Registrant as amended January 22, 1992, filed as Exhibit 3.02 to Form 10-K for the
year ended December 31, 1991, File No. 1-3034 and incorporated herein by reference.
4.03 Specimen share certificate
4.04A(a) Copy of Trust Indenture, dated February 1, 1937, from the Company to Harris Trust and Savings
Bank, Trustee. (B-7)
4.04B(a) Copy of Supplemental Trust Indenture. dated June 1, 1942, being a supplemental instrument to
Exhibit 4.04A hereto. (B-8)
4.04C(a) Copy of Supplemental Trust Indenture, dated February 1, 1944, being a supplemental instrument to
Exhibit 4.04A hereto. (B-9 (Revised))
4.04D(b) Copy of Supplemental Trust Indenture, dated October 1, 1945, being a supplemental instrument to
Exhibit 4.04A hereto. (7.09)
4.04E(c) Copy of Supplemental Trust Indenture, dated July 1, 1948, being a supplemental instrument to
Exhibit 4.04A hereto. (7.05)
4.04F(d) Copy of Supplemental Trust Indenture, dated August 1, 1949, being a supplemental instrument to
Exhibit 4.04A hereto. (7.06)
4.04G(e) Copy of Supplemental Trust Indenture, dated June 1, 1952, being a supplemental instrument to
Exhibit 4.04A hereto. (4.08)
4.04H(f) Copy of Supplemental Trust Indenture, dated October 1, 1954, being a supplemental instrument to
Exhibit 4.04A hereto. (4.10)
4.04I(g) Copy of Supplemental Trust Indenture, dated September 1, 1956, being a supplemental instrument to
Exhibit 4.04A hereto. (2.09)
4.04J(h) Copy of Supplemental Trust Indenture, dated August 1, 1957, being a supplemental instrument to
Exhibit 4.04A hereto. (2.10)
4.04K(i) Copy of Supplemental Trust Indenture, dated July 1, 1958, being a supplemental instrument to
Exhibit 4.04A hereto. (4.12)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- --------------
<S> <C>
4.04L(j) Copy of Supplemental Trust Indenture, dated December 1, 1960, being a supplemental instrument to
Exhibit 4.04A hereto. (2.12)
4.04M(k) Copy of Supplemental Trust Indenture, dated August 1, 1961, being a supplemental instrument to
Exhibit 4.04A hereto. (2.13)
4.04N(l) Copy of Supplemental Trust Indenture, dated June 1, 1962, being a supplemental instrument to
Exhibit 4.04A hereto. (2.14)
4.04O(m) Copy of Supplemental Trust Indenture, dated September 1, 1963, being a supplemental instrument to
Exhibit 4.04A hereto. (4.16)
4.04P(n) Copy of Supplemental Trust Indenture, dated August 1, 1966, being a supplemental instrument to
Exhibit 4.04A hereto. (2.16)
4.04Q(o) Copy of Supplemental Trust Indenture, dated June 1, 1967, being a supplemental instrument to
Exhibit 4.04A hereto. (2.17)
4.04R(p) Copy of Supplemental Trust Indenture, dated October 1, 1967, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01R)
4.04S(q) Copy of Supplemental Trust Indenture, dated May 1, 1968, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01S)
4.04T(r) Copy of Supplemental Trust Indenture, dated October 1, 1969, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01T)
4.04U(s) Copy of Supplemental Trust Indenture, dated February 1, 1971, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01U)
4.04V(t) Copy of Supplemental Trust Indenture, dated May 1, 1971, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01V)
4.04W(u) Copy of Supplemental Trust Indenture, dated February 1, 1972, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01W)
4.04X(v) Copy of Supplemental Trust Indenture, dated January 1, 1973, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01X)
4.04Y(w) Copy of Supplemental Trust Indenture, dated January 1, 1974, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01Y)
4.04Z(w) Copy of Supplemental Trust Indenture, dated September 1, 1974, being a supplemental instrument to
Exhibit 4.04A hereto. (2.01Z)
4.04AA(x) Copy of Supplemental Trust Indenture, dated April 1, 1975, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01AA)
4.04BB(x) Copy of Supplemental Trust Indenture, dated May 1, 1975, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01BB)
4.04CC(x) Copy of Supplemental Trust Indenture, dated March 1, 1976, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01CC)
4.04DD(x) Copy of Supplemental Trust Indenture, dated June 1, 1981, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01DD)
4.04EE(y) Copy of Supplemental Trust Indenture, dated December 1, 1981, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01EE)
4.04FF(z) Copy of Supplemental Trust Indenture, dated May 1, 1983, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01FF)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- --------------
<S> <C>
4.04GG(z) Copy of Supplemental Trust Indenture, dated December 1, 1983, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01GG)
4.04HH(z) Copy of Supplemental Trust Indenture, dated September 1, 1984, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01HH)
4.04II(z) Copy of Supplemental Trust Indenture, dated December 1, 1984, being a supplemental instrument to
Exhibit 4.04A hereto. (4.01II)
4.04JJ Copy of Supplemental Trust Indenture, dated May 1, 1985, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.36 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1985, File No. 1-3-34 and incorporated herein by reference.
4.04KK Copy of Supplemental Trust Indenture, dated September 1, 1985, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.37 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1985, File No. 1-3034 and incorporated herein by reference.
4.04LL Copy of Supplemental and Restated Trust Indenture, dated May 1, 1988, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.02 to the Company's Annual Report on Form
10-K for the year ended December 31, 1988, File No. 1-3034 and incorporated herein by reference.
4.04MM Copy of Supplemental Trust Indenture, dated July 1, 1989, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
July 2, 1989, File No. 1-3034 and incorporated herein by reference.
4.04NN Copy of Supplemental Trust Indenture, dated June 1, 1990, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
June 6, 1990, File No. 1-3034 and incorporated herein by reference.
4.04OO Copy of Supplemental Trust Indenture, dated October 1, 1992, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
October 13, 1992, File No. 1-3034 and incorporated herein by reference.
4.04PP Copy of Supplemental Trust Indenture, dated April 1, 1993, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
March 30, 1993, File No. 1-3034 and incorporated by reference.
4.04QQ Copy of Supplemental Trust Indenture, dated December 1, 1993, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
December 7, 1993, File No. 1-3034, and incorporated herein by reference.
4.04RR Copy of Supplemental Trust Indenture, dated February 1, 1994, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
February 10, 1994, File No. 1-3034, and incorporated herein by reference.
4.04SS Copy of Supplemental Trust Indenture, dated October 1, 1994, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
October 5, 1994, File No. 1-3034, and incorporated herein by reference.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- --------------
<S> <C>
4.04TT Copy of Supplemental Trust Indenture, dated June 1, 1995, being a supplemental instrument to
Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current Report on Form 8-K dated
June 28, 1995, File No. 1-3034, and incorporated herein by reference.
4.04UU Copy of Supplemental Trust Indenture, dated April 1, 1997, being a supplemental instrument to
Exhibit 4.04A hereto
5.01 Opinion of John P. Moore, Jr. as to legality of the Shares.
23.01 Consents of Independent Accountants.
23.02 Independent Auditors' Consent
23.03 Consent of Legal Counsel (included in Exhibit 5.01).
24.01 Powers of Attorney.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, (1) each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof, (2)
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and (3) each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
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 of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, and State of Minnesota, on the 15th day
of August, 1997.
<TABLE>
<S> <C> <C>
NORTHERN STATES POWER COMPANY
By: /s/ PAUL E. PENDER
-----------------------------------------
Paul E. Pender
VICE PRESIDENT-FINANCE AND TREASURER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ JAMES J. HOWARD*
- ------------------------------ Principal Executive
James J. Howard Officer and Director
/s/ EDWARD J. MCINTYRE*
- ------------------------------ Principal Financial
Edward J. McIntyre Officer
/s/ ROGER D. SANDEEN*
- ------------------------------ Principal Accounting
Roger D. Sandeen Officer
/s/ H. LYMAN BRETTING*
- ------------------------------ Director
H. Lyman Bretting
/s/ DAVID A. CHRISTENSEN*
- ------------------------------ Director
David A. Christensen
/s/ W. JOHN DRISCOLL*
- ------------------------------ Director
W. John Driscoll
/s/ DALE L. HAAKENSTAD*
- ------------------------------ Director
Dale L. Haakenstad
/s/ RICHARD M. KOVACEVICH*
- ------------------------------ Director
Richard M. Kovacevich
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ DOUGLAS W. LEATHERDALE*
- ------------------------------ Director
Douglas W. Leatherdale
/s/ MARGARET R. PRESKA*
- ------------------------------ Director
Margaret R. Preska
/s/ A. PATRICIA SAMPSON*
- ------------------------------ Director
A. Patricia Sampson
</TABLE>
*By: /s/ PAUL E. PENDER
-------------------------
Paul E. Pender August 15, 1997
ATTORNEY-IN-FACT
II-7
<PAGE>
INDEX TO EXHIBITS
Certain Exhibits listed below were filed with the Securities and Exchange
Commission as Exhibits to certain Registration Statements under the Exhibit
number indicated after each such Exhibit and are incorporated herein by this
reference. These Registration Statements are identified as follows:
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
No. No.
(a) No. 2-5290. (h) 2-14156. (o) No. 2-27117. (v) 2-46434.
No. No.
(b) No. 2-5924. (i) 2-15220. (p) No. 2-28447. (w) 2-53235.
No. No.
(c) No. 2-7549. (j) 2-18355. (q) No. 2-34250. (x) 2-71259.
No. No.
(d) No. 2-8048. (k) 2-20282. (r) No. 3-36693. (y) 2-83364.
No. No.
(e) No. 2-9631. (l) 2-21601. (s) No. 2-39144. (z) 2-97667.
No. No.
(f) 2-12216. (m) 2-22476. (t) No. 2-39815.
No. No.
(g) 2-13463. (n) 2-26338. (u) No. 2-42598.
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- --------------- ---------------------------------------------------------------------------------------- ---------
<S> <C> <C>
1.01 U.S. Purchase Agreement
1.02 International Purchase Agreement
4.01 Restated Articles of Incorporation and Amendments, filed as Exhibit 3.01 to Form 10-Q
for the quarter ended March 31, 1996 *
4.02 Bylaws of the Registrant as amended January 22, 1996, filed as Exhibit 3.02 to Form 10-K
for the year ended December 31, 1991 *
4.03 Specimen share certificate *
4.04A(a) Copy of Trust Indenture, dated February 1, 1937, from the Company to Harris Trust and
Savings Bank, Trustee. (B-7) *
4.04B(a) Copy of Supplemental Trust Indenture, dated June 1, 1942, being a supplemental
instrument to Exhibit 4.04A hereto. (B-8) *
4.04C(a) Copy of Supplemental Trust Indenture, dated February 1, 1944, being a supplemental
instrument to Exhibit 4.04A hereto. (B-9 (Revised)) *
4.04D(b) Copy of Supplemental Trust Indenture, dated October 1, 1945, being asupplemental
instrument to Exhibit 4.04A hereto. (7.09) *
4.04E(c) Copy of Supplemental Trust Indenture, dated July 1, 1948, being a supplemental
instrument to Exhibit 4.04A hereto. (7.05) *
4.04F(d) Copy of Supplemental Trust Indenture, dated August 1, 1949, being a supplemental
instrument to Exhibit 4.04A hereto. (7.06) *
4.04G(e) Copy of Supplemental Trust Indenture, dated June 1, 1952, being a supplemental
instrument to Exhibit 4.04A hereto. (4.08) *
4.04H(f) Copy of Supplemental Trust Indenture, dated October 1, 1954, being a supplemental
instrument to Exhibit 4.04A hereto. (4. 1 0) *
4.04I(g) Copy of Supplemental Trust Indenture, dated September 1, 1956, being a supplemental
instrument to Exhibit 4.04A hereto. (2.09) *
4.04J(h) Copy of Supplemental Trust Indenture, dated August 1, 1957, being a supplemental
instrument to Exhibit 4.04A hereto. (2. 1 0) *
4.04K(i) Copy of Supplemental Trust Indenture, dated July 1, 1958, being a supplemental
instrument to Exhibit 4.04A hereto. (4.12) *
4.04L(j) Copy of Supplemental Trust Indenture, dated December 1, 1960, being a supplemental
instrument to Exhibit 4.04A hereto. (2.12) *
4.04M(k) Copy of Supplemental Trust Indenture, dated August 1, 1961, being a supplemental
instrument to Exhibit 4.04A hereto. (2.13) *
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- --------------- ---------------------------------------------------------------------------------------- ---------
<S> <C> <C>
4.04N(l) Copy of Supplemental Trust Indenture, dated June 1, 1962, being a supplemental
instrument to Exhibit 4.04A hereto. (2.14) *
4.04O(m) Copy of Supplemental Trust Indenture, dated September 1, 1963, being a supplemental
instrument to Exhibit 4.04A hereto. (4.16) *
4.04P(n) Copy of Supplemental Trust Indenture, dated August 1, 1966, being a supplemental
instrument to Exhibit 4.04A hereto. (2.16) *
4.04Q(o) Copy of Supplemental Trust Indenture, dated June 1, 1967, being a supplemental
instrument to Exhibit 4.04A hereto. (2.17) *
4.04R(p) Copy of Supplemental Trust Indenture, dated October 1, 1967, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01R) *
4.04S(q) Copy of Supplemental Trust Indenture, dated May 1, 1968, being a supplemental instrument
to Exhibit 4.04A hereto. (2.01S) *
4.04T(r) Copy of Supplemental Trust Indenture, dated October 1, 1969, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01T) *
4.04U(s) Copy of Supplemental Trust Indenture, dated February 1, 1971, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01U) *
4.04V(t) Copy of Supplemental Trust Indenture, dated May 1, 1971, being a supplemental instrument
to Exhibit 4.04A hereto. (2.01V) *
4.04W(u) Copy of Supplemental Trust Indenture, dated February 1, 1972, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01W) *
4.04X(v) Copy of Supplemental Trust Indenture, dated January 1, 1973, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01X) *
4.04Y(w) Copy of Supplemental Trust Indenture, dated January 1, 1974, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01Y) *
4.04Z(w) Copy of Supplemental Trust Indenture, dated September 1, 1974, being a supplemental
instrument to Exhibit 4.04A hereto. (2.01Z) *
4.04AA(x) Copy of Supplemental Trust Indenture, dated April 1, 1975, being a supplemental
instrument to Exhibit 4.04A hereto. (4.01AA) *
4.04BB(x) Copy of Supplemental Trust Indenture, dated May 1, 1975, being a supplemental instrument
to Exhibit 4.04A hereto. (4.01BB) *
4.04CC(x) Copy of Supplemental Trust Indenture, dated March 1, 1976, being a supplemental
instrument to Exhibit 4.04A hereto. (4.01CC) *
4.04DD(x) Copy of Supplemental Trust Indenture, dated June 1, 1981, being a supplemental
instrument to Exhibit 4.04A hereto. (4.01DD) *
4.04EE(y) Copy of Supplemental Trust Indenture, dated December 1, 1981, being a supplemental
instrument to Exhibit 4.04A hereto. (4.01EE) *
4.04FF(z) Copy of Supplemental Trust Indenture, dated May 1, 1983, being a supplemental instrument
to Exhibit 4.04A hereto. *
4.04GG(z) Copy of Supplemental Trust Indenture, dated December 1, 1983, being a supplemental
instrument to Exhibit 4.04A hereto. *
4.04HH(z) Copy of Supplemental Trust Indenture, dated September 1, 1984, being a supplemental
instrument to Exhibit 4.04A hereto. *
4.04II(z) Copy of Supplemental Trust Indenture, dated December 1, 1984, being a supplemental
instrument to Exhibit 4.04A hereto. *
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- --------------- ---------------------------------------------------------------------------------------- ---------
<S> <C> <C>
4.04JJ Copy of Supplemental Trust Indenture, dated May 1, 1985, being a supplemental instrument
to Exhibit 4.04A hereto, filed as Exhibit 4.36 to the Company's Annual Report on Form
10-K for the year ended December 31, 1985 and incorporated herein by reference *
4.04KK Copy of Supplemental Trust Indenture, dated September 1, 1985, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.37 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1985 and incorporated herein by
reference *
4.04LL Copy of Supplemental and Restated Trust Indenture, dated May 1, 1988, being a
supplemental instrument to Exhibit 4.04A hereto, filed as Exhibit 4.02 to the
Company's Annual Report on Form 10-K for the year ended December 31, 1988 and
incorporated herein by reference *
4.04MM Copy of Supplemental Trust Indenture, dated July 1, 1989, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated July 2, 1989, and incorporated herein by reference *
4.04NN Copy of Supplemental Trust Indenture, dated June 1, 1990, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated June 6, 1990, and incorporated herein by reference *
4.04OO Copy of Supplemental Trust Indenture, dated October 1, 1992, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated October 13, 1992, and incorporated herein by reference *
4.04PP Copy of Supplemental Trust Indenture, dated April 1, 1993, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated March 30, 1993, and incorporated by reference *
4.04QQ Copy of Supplemental Trust Indenture, dated December 1, 1993, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated December 7, 1993, File No. 1-3034, and incorporated herein by
reference. *
4.04RR Copy of Supplemental Trust Indenture, dated February 1, 1994, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated February 10, 1994, File No. 1-3034, and incorporated herein
by reference. *
4.04SS Copy of Supplemental Trust Indenture, dated October 1, 1994, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated October 5, 1994, File No. 1-3034, and incorporated herein by
reference. *
4.04TT Copy of Supplemental Trust Indenture, dated June 1, 1995, being a supplemental
instrument to Exhibit 4.04A hereto, filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated June 28, 1995, File No. 1-3034, and incorporated herein by
reference. *
4.04UU Copy of Supplemental Trust Indenture, dated April 1, 1997, being a supplemental
instrument to Exhibit 4.04A hereto
5.01 Opinion of John P. Moore, Jr. as to legality of the Shares
23.01 Consents of Independent Accountants
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- --------------- ---------------------------------------------------------------------------------------- ---------
<S> <C> <C>
23.02 Independent Auditors' Consent
23.03 Consent of Legal Counsel (included in Exhibit 5.01)
24.01 Powers of Attorney
</TABLE>
- ------------------------
* Indicates incorporation by reference.
<PAGE>
Draft of 8/13/97
EXHIBIT 1.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
3,200,0000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: , 1997
----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
SECTION 1. Representations and Warranties. . . . . . . . . . . . . . . . . .4
(a) Representations and Warranties by the Company . . . . . . . . . .4
(i) Compliance with Registration Requirements . . . . . . . .4
(ii) Incorporated Documents. . . . . . . . . . . . . . . . . .4
(iii) Independent Accountants . . . . . . . . . . . . . . . . .5
(iv) Financial Statements. . . . . . . . . . . . . . . . . . .5
(v) No Material Adverse Change in Business. . . . . . . . . .5
(vi) Good Standing of the Company. . . . . . . . . . . . . . .5
(vii) Good Standing of Subsidiaries . . . . . . . . . . . . . .6
(viii) Capitalization. . . . . . . . . . . . . . . . . . . . . .6
(ix) Authorization of Agreement. . . . . . . . . . . . . . . .6
(x) Authorization and Description of Securities . . . . . . .6
(xi) Absence of Defaults and Conflicts . . . . . . . . . . . .7
(xii) Absence of Labor Dispute. . . . . . . . . . . . . . . . .7
(xiii) Absence of Proceedings. . . . . . . . . . . . . . . . . .7
(xiv) Accuracy of Exhibits. . . . . . . . . . . . . . . . . . .8
(xv) Possession of Intellectual Property . . . . . . . . . . .8
(xvi) Absence of Further Requirements . . . . . . . . . . . . .8
(xvii) Possession of Licenses and Permits. . . . . . . . . . . .8
(xviii) Title to Property . . . . . . . . . . . . . . . . . . . .9
(xix) Compliance with Cuba Act. . . . . . . . . . . . . . . . .9
(xx) Investment Company Act. . . . . . . . . . . . . . . . . .9
(xxi) Environmental Laws. . . . . . . . . . . . . . . . . . . .9
(b) Officer's Certificates. . . . . . . . . . . . . . . . . . . . . 10
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing . . . . . . . . 10
(a) U.S. Initial Securities . . . . . . . . . . . . . . . . . . . . 10
(b) U.S. Option Securities. . . . . . . . . . . . . . . . . . . . . 10
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Denominations; Registration . . . . . . . . . . . . . . . . . . 11
SECTION 3. Covenants of the Company. . . . . . . . . . . . . . . . . . . . 11
(a) Compliance with Securities Regulations and Commission Requests. 11
(b) Filing of Amendments. . . . . . . . . . . . . . . . . . . . . . 12
(c) Delivery of Registration Statements . . . . . . . . . . . . . . 12
(d) Delivery of Prospectuses. . . . . . . . . . . . . . . . . . . . 12
(e) Continued Compliance with Securities Laws . . . . . . . . . . . 12
(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . . 13
(g) Rule 158. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 13
(i) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(j) Restriction on Sale of Securities . . . . . . . . . . . . . . . 13
(k) Reporting Requirements. . . . . . . . . . . . . . . . . . . . . 14
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . 14
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(a) Expenses.... . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Termination of Agreement . . . . . . . . . . . . . . . . . . . 14
SECTION 5. Conditions of U.S. Underwriters' Obligations . . . . . . . . . 15
(a) Effectiveness of Registration Statement. . . . . . . . . . . . 15
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . . . 15
(c) Opinion of Counsel for U.S. Underwriters . . . . . . . . . . . 15
(d) Officers' Certificate. . . . . . . . . . . . . . . . . . . . . 15
(e) Accountant's Comfort Letter. . . . . . . . . . . . . . . . . . 16
(f) Bring-down Comfort Letter. . . . . . . . . . . . . . . . . . . 16
(g) Approval of Listing. . . . . . . . . . . . . . . . . . . . . . 16
(i) Conditions to Purchase of U.S. Option Securities . . . . . . . 16
(i) Officers' Certificate . . . . . . . . . . . . . . . . . 16
(ii) Opinion of Counsel for Company. . . . . . . . . . . . . 17
(iii) Opinion of Counsel for U.S. Underwriters. . . . . . . . 17
(iv) Bring-down Comfort Letter . . . . . . . . . . . . . . . 17
(j) Additional Documents . . . . . . . . . . . . . . . . . . . . . 17
(k) Termination of Agreement . . . . . . . . . . . . . . . . . . . 17
SECTION 6. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Indemnification of Underwriters. . . . . . . . . . . . . . . . 17
(b) Indemnification of Company, Directors and Officers . . . . . . 18
(c) Actions against Parties; Notification. . . . . . . . . . . . . 19
(d) Settlement without Consent if Failure to Reimburse . . . . . . 19
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.21
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . . . 21
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . 21
(b) Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10. Default by One or More of the U.S. Underwriters. . . . . . . . 21
SECTION 11. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 12. Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 13. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . . . . . 23
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . 23
ii
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Draft of 8/13/97
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
3,200,0000 Shares of Common Stock
(Par Value $2.50 Per Share)
U.S. PURCHASE AGREEMENT
, 1997
----------
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
DAIN BOSWORTH INCORPORATED
PIPER JAFFRAY INC.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Northern States Power Company, a Minnesota corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch, Goldman, Sachs & Co., Salomon
Brothers Inc, Dain Bosworth Incorporated and Piper Jaffray Inc. are acting as
representatives (in such capacity, the "U.S. Representatives"), with respect to
(i) the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $2.50 per share, of the Company ("Common Stock") set forth in Schedule
A hereto and (ii) the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 480,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 3,200,0000 shares of Common Stock (the
"U.S. Initial Securities") to be
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<PAGE>
purchased by the U.S. Underwriters and all or any part of the 480,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "U.S.
Option Securities") are hereinafter called, collectively, the "U.S.
Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 800,000 shares of
Common Stock (the "International Initial Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Managers") for which Merrill Lynch International, Goldman, Sachs International,
Salomon Brothers International Limited, Dain Bosworth and Piper Jaffray are
acting as lead managers (the "Lead Managers") and the grant by the Company to
the International Managers, acting severally and not jointly, of an option to
purchase all or any part of the 800,000 additional shares of Common Stock solely
to cover overallotments, if any (the "International Option Securities" and,
together with the U.S. Option Securities, the "Option Securities"). The
International Initial Securities and the International Option Securities are
hereinafter called the "International Securities". It is understood that the
Company is not obligated to sell, and the U.S. Underwriters are not obligated to
purchase, any U.S. Initial Securities unless all of the International Initial
Securities are contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the U.S. Initial Securities and the
International Initial Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch.
The Company understands that the U.S. Underwriters propose to make a public
offering of the Securities as soon as the U.S. Representatives deem advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333---) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses. Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus will be
identical to the Form of U.S. Prospectus, except for the front cover, inside
front cover and back cover page and the information under the caption
"Underwriting." Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a Form of U.S. Prospectus and a Form of
International Prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company
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<PAGE>
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file term sheets (a "Term Sheet") in accordance with the provisions
of Rule 434 and Rule 424(b). The information included in each such prospectus
or in each such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each prospectus used before such registration statement became effective, and
any prospectus that omitted, as applicable, the Rule 430A Information or the
Rule 434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of
International Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with the offering of the
Securities is herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses" "Prospectus."
If Rule 434 is relied on, the term terms "U.S. Prospectus" and "International
Prospectus" shall refer to the preliminary U.S. Prospectus dated ----------,
1997 and preliminary International Prospectus dated ----------, 1997,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectuses or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
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<PAGE>
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each U.S. Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agrees with each U.S. Underwriter,
as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither the
Prospectuses nor any amendments or supplements thereto, at the time the
Prospectuses or any such amendment or supplement was issued and at the Closing
Time (and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
U.S. Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through Merrill
Lynch expressly for use in the Registration Statement or U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectuses delivered to the Underwriters for use in connection with
the offering of the Securities was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectuses, at
the time they
4
<PAGE>
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses were was
issued and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information included in
the Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for regular
dividends on the Common Stock and the Company's preferred stock in amounts per
share that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Minnesota and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement
and the International Purchase Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing or property
5
<PAGE>
or the conduct of business, except where the failure so to qualify or be in good
standing would not result in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the Company
named in Exhibit 21.01 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 ("Significant Subsidiary") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Significant Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are (a) the subsidiaries listed on Exhibit
21.01 to the Company's Annual Report on Form 10-K for the year ended December
31, 1996 and (b) certain other subsidiaries which, considered in the aggregate
as a single Subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the Prospectuses).
The shares of issued and outstanding capital stock have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement and the International
Purchase Agreement have has been duly authorized, executed and delivered by the
Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities have
been duly authorized for issuance and sale to the U.S. Underwriters pursuant to
this Agreement and to the International Managers pursuant to the International
Purchase Agreement and, when issued and delivered by the Company pursuant to
this Agreement and the International Purchase Agreement, respectively, against
payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectuses and such description conforms to the
rights set forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
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<PAGE>
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or, except as
disclosed in the Registration Statement, in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the International Purchase
Agreement and the consummation of the transactions contemplated herein and
therein and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any subsidiary
or any of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially or adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not described in
the
7
<PAGE>
Registration Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required in the Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. The Minnesota Public Utilities
Commission has issued its order approving capital structure which order
authorizes the issuance of the Securities, and no other filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations under this
Agreement and the International Purchase Agreement, in connection with the
offering, issuance or sale of the Securities hereunder and thereunder or the
consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or foreign or
state securities laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
8
<PAGE>
(xviii) TITLE TO PROPERTY. The Company has good and valid title to all
real and fixed property and leasehold rights owned by it, subject only to taxes
and assessments not yet delinquent; the lien of the Company's Trust Indenture,
dated as of February 1, 1937, as supplemented and amended (the "Indenture"); as
to parts of the Company's property, certain easements, conditions, restrictions,
leases, and similar encumbrances which do not affect the Company's use of such
property in the usual course of its business. and certain minor defects in
titles which are not material, and defects in titles to certain properties which
are not essential to the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or discharge of which
adequate provision has been made by the Company pursuant to the Indenture; and
any real property and buildings held under lease by the Company is held by it
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company.
(xix) COMPLIANCE WITH CUBA ACT. The Company has complied with, and is
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(xx) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxi) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceeding relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental
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body or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the U.S. Representatives or
to counsel for the U.S. Underwriters shall be deemed a representation and
warranty by the Company to each U.S. Underwriter as to the matters covered
thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING.
a. U.S. INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter and each U.S.
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule B, the number of U.S. Initial
Securities set forth in Schedule A opposite the name of such U.S. Underwriter,
plus any additional number of U.S. Initial Securities which such U.S.
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject to such adjustments among the U.S. Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
b. U.S. OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the U.S.
Underwriters, severally and not jointly, to purchase up to an additional 480,000
shares of Common Stock, at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the U.S. Initial Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the U.S. Initial Securities upon notice by the U.S.
Representatives to the Company setting forth the number of U.S. Option
Securities as to which the several U.S. Underwriters are then exercising the
option and the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by the U.S. Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the U.S. Option Securities, each of the U.S. Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
U.S. Option Securities then being purchased which the number of U.S. Initial
Securities set forth in Schedule A opposite the name of such U.S. Underwriter
bears to the total number of U.S. Initial Securities, subject in each case to
such adjustments as the U.S. Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
c. PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the U.S. Initial Securities shall be made at the offices of
Gardner, Carton & Douglas, 321 N. Clark Street, Chicago, Illinois 60610, or at
such other place as shall be agreed upon by the U.S.
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Representatives and the Company at 9:00 A.M. (Central time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the U.S. Representatives and the
Company (such time and date of payment and delivery being herein called "Closing
Time."
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
U.S. Representatives and the Company, on each Date of Delivery as specified in
the notice from the U.S. Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the U.S. Initial Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the U.S. Initial Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
d. DENOMINATIONS; REGISTRATION. Certificates for the U.S. Initial
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the U.S.
Initial Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Representatives in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each U.S.
Underwriter as follows:
a. COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the U.S. Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of
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any stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
b. FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectuses included in the
Registration Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the U.S. Representatives or counsel for the
Underwriters shall object.
c. DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
d. DELIVERY OF PROSPECTUSES. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
Prospectuses are is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectuses (as amended or supplemented) as such
U.S. Underwriter may reasonably request. The Prospectuses and any amendments or
supplements thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
e. CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and
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the International Purchase Agreement and in the Prospectuses. If at any time
when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the U.S.
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Prospectuses in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectuses in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the U.S.
Underwriters such number of copies of such amendment or supplement as the U.S.
Underwriters may reasonably request.
f. BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the U.S. Representatives may designate
and to maintain such qualifications in effect for a period of not less than one
year from the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement.
g. RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
h. USE OF PROCEEDS. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
i. LISTING. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange, Chicago Stock Exchange and
Pacific Exchange.
j. RESTRICTION ON SALE OF SECURITIES. During a period of 120 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of Merrill Lynch, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or
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otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the International Purchase
Agreement, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and referred to in the Prospectuses, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectuses or (D) any
shares of Common Stock issued pursuant to any non-employee director stock plan
or dividend reinvestment plan.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay or cause to
be paid all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, any Intersyndicate Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the U.S. Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities and (ix) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange,
Chicago Stock Exchange and Pacific Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5,
Section 9(a)(i) or Section 11 hereof, the Company shall reimburse the U.S.
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the U.S. Underwriters.
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SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The obligations of the
several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Gary R. Johnson, Vice President and General Counsel of the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Gardner, Carton & Douglas, counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters with respect to the matters set forth in clauses (i), (ii), (v),
(vi) (solely as to preemptive or other similar rights arising by operation of
law or under the charter or by-laws of the Company), (viii) through (x),
inclusive, (xiii), (xv) (solely as to the information in the Prospectuses under
"Description of Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of the jurisdictions other than the federal law of the
United States, upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall have not been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
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whether or not arising in the ordinary course of business, and the U.S.
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from Price Waterhouse
LLP a letter dated such date, in form and substance satisfactory to the U.S.
Representatives, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the U.S. Representatives
shall have received from Price Waterhouse LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(h) Contemporaneously with the purchase by the U.S. Underwriters of the
U.S. Initial Securities under this Agreement, the International Managers shall
have purchased the International Initial Securities under the International
Purchase Agreement.
(i) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company and any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the U.S. Representatives shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
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(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion of Gary R.
Johnson, Vice President and General Counsel of the Company in
form and substance satisfactory to counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b) hereof.
(iii) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. The favorable opinion
of Gardner, Carton & Douglas, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(c)
hereof.
(iv) BRING-DOWN COMFORT LETTER. A letter from Price Waterhouse LLP,
in form and substance satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the U.S. Representatives
pursuant to Section 5(e) hereof, except that the "specified date"
in the letter furnished pursuant to this paragraph shall be a
date not more than five days prior to such Date of Delivery.
(j) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery counsel for the U.S. Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the U.S.
Representatives and counsel for the U.S. Underwriters.
(k) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant U.S.
Option Securities, may be terminated by the U.S. Representatives by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6 INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each U.S. Underwriter and each person, if any, who controls
any U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
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(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
U.S. Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
U.S. Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any
18
<PAGE>
amendment thereto) or such preliminary prospectus or the U.S. Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnifying party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages or expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the
19
<PAGE>
other hand from the offering of the U.S. Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the U.S. Underwriters on the other hand in
connection with the statements of omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S. Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if the contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the U.S. Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages or expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
20
<PAGE>
For purposes of this Section 7, each person, if any, who controls an a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriter's respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of U.S. Initial Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement
(a) TERMINATION; GENERAL. The U.S. Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectuses, any
material adverse change, or any development which could reasonably be expected
to result in a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the U.S.
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, of (iv) if a banking
moratorium has been declared by either Federal, Minnesota or New York
authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
21
<PAGE>
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. If one or more
of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangement for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period; then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of U.S. Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the U.S. Underwriters to purchase and of the Company to sell
the U.S. Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the party of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectuses or in any other
documents or arrangements. As used herein, the term "U.S. Underwriter" includes
any person substituted for an U.S. Underwriter under this Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the U.S. Underwriters
shall be directed to the U.S. Representatives at North Tower, World Financial
Center, New York, New York 10281-1201, attention of Richard A. Vaccari, Managing
Director; with a copy to Gardner, Carton & Douglas, 321 N. Clark Street,
Chicago, Illinois 60610, attention of Robert J. Joseph, Esq.; and notices to the
Company shall be directed to it at Northern States Power Company, 414 Nicollet
Mall, Minneapolis, Minnesota 55401, attention of Corporate Secretary.
22
<PAGE>
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the U.S. Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO MINNEAPOLIS TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
23
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
By:
-----------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
DAIN BOSWORTH INCORPORATED
PIPER JAFFRAY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
24
<PAGE>
SCHEDULE A
Number of
U.S. Initial
Name of U.S. Underwriters Securities
------------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................
Goldman, Sachs & Co.............................
Salomon Brothers Inc............................
Dain Bosworth Incorporated......................
Piper Jaffray Inc...............................
----------
Total ........................................ 3,200,0000
----------
----------
25
<PAGE>
SCHEDULE B
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
3,200,0000 Shares of Common Stock
(Par Value $2.50 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $__________.
2. The purchase price per share for the U.S. Securities to be paid by the
several U.S. Underwriters shall be $__________, being an amount equal to the
initial public offering price set forth above less $__________ per share;
provided that the purchase price per share for any U.S. Option Securities
purchased upon the exercise of the over-allotment option described in Section
2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the U.S. Initial Securities
but not payable on the U.S. Option Securities.
26
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
Re: 3,200,0000 Shares of Common Stock, par value $2.50
per share, of Northern States Power Company,
a Minnesota corporation
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of 3,200,0000
shares of Common Stock, par value $2.50 per share, herein called the
"Securities." In connection therewith I have participated in the preparation of
the proceedings for the issuance and sale of the Securities including (i) the
U.S. Purchase Agreement dated ________________, between you and the Company
relating to your purchase of the U.S. Securities, herein called the "Agreement."
and (ii) the International Purchase Agreement dated ______ between _______ and
the Company relating to the issue and sale of the International Securities,
herein called the "International Purchase Agreement." I also have participated
in the preparation of or examined the registration statement and any amendments
thereto and the accompanying prospectuses and any supplements thereto, as filed
under the Securities Act of 1933, as amended (the "Act"), with respect to the
Securities. Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement. My examination has extended to
all statutes, records, instruments, and documents which I have deemed necessary
to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the Agreement
and the International Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant to
the Agreement and the International Purchase Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or options
referred to
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in the Prospectuses); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
5. The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the U.S. Underwriters and the International Managers pursuant to the
Agreement and the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to the Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth in the Agreement and the International Purchase
Agreement, respectively, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
6. The issuance and sale of the Securities by the Company is not subject
to the preemptive or other similar rights of any securityholder of the Company.
7. Each Significant Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best of my knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary.
8. The Agreement and the International Purchase Agreement have has been
duly authorized, executed and delivered by the Company.
9. The Registration Statement, including any Rule 462(b) Registration
Statement has been declared effective under the 1933 Act; any required filing of
the Prospectuses pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of my knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
10. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses,
A-2
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excluding the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectuses, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which I need express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
11. The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which I need express no opinion), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder.
12. If Rule 434 has been relied upon, the Prospectus was not "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it became effective.
13. The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the New York Stock Exchange.
14. To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably by expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Agreement and the International Purchase
Agreement or the performance by the Company of its obligations thereunder.
15. The information in the Prospectus under "Description of Common Stock",
and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's charter
and bylaws or legal proceedings, or legal conclusions, has been reviewed by me
and is correct in all material respects.
16. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
17. All Descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of my knowledge, there are no franchises,
contracts, indentures, mortgage, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
A-3
<PAGE>
18. To the best of my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
19. The Minnesota Public Utilities Commission has issued its order
approving the Company's capital structure which order authorizes the issuance of
the Securities, and no other filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the 1933
Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as to
which I need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the Agreement and the International
Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
20. The execution, delivery and performance of the Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated in the Agreement and the International Purchase Agreement and in
the Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by the Company
with its obligations under the Agreement and the International Purchase
Agreement do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xi) of the Purchase Agreement) under
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
21. The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
22. The Company has good and valid title to all real and fixed property
and leasehold rights owned by it, subject only to: (a) taxes and assessments not
yet delinquent; (b) the lien of the Indenture (as defined in the Agreement); (c)
as to parts of the Company's property, certain easements, conditions,
restrictions, leases, and similar encumbrances which do not affect the
A-4
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Company's use of such property in the usual course of its business, certain
minor defects in titles which are not material, defects in titles to certain
properties which are not essential to the Company's business; and mechanics'
lien claims being contested or not of record or for the satisfaction or
discharge of which adequate provision has been made by the Company pursuant to
the Indenture.
23. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the customers in
the jurisdictions where it provides electric and gas service, except in certain
instances that are not material to the Company.
These opinions do not cover title to easements for water flowage purposes
or rights of way for electric and gas transmission and distribution facilities,
steam mains, and telephone lines. However, the Company has the power of eminent
domain in the states in which it operates.
In the course of my participation in the preparation of the Registration
Statement and Prospectuses I made investigations as to the accuracy of certain
of the statements of fact contained therein, I discussed other matters with
officers, employees, and representatives of the Company, and I examined various
corporate records and data. While I do not pass upon or assume responsibility
for, and shall not be deemed to have independently verified, the accuracy and
completeness of the statements contained in the Registration Statement or
Prospectuses (except as to matters set forth in paragraphs 4,15 and 17 above)
nothing has come to my attention that would lead me to believe that the
Registration Statement (including the Rule 430A Information) at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectuses as of the date of the
Agreement or at the date hereof contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made. not
misleading.
In giving my opinion under paragraph 22 above. I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts which
would adversely affect the titles shown on the abstracts. In giving opinions as
to conformity to the laws of States other than Minnesota and as to the franchise
and titles to property of the Company, I have in certain instances relied upon
the opinion of other counsel employed or retained by the Company to render
opinions in respect thereto.
A-5
<PAGE>
Respectfully submitted,
By:
-----------------------------------
Gary R. Johnson
VICE PRESIDENT AND GENERAL COUNSEL
NORTHERN STATES POWER COMPANY
A-6
<PAGE>
Draft of 8/13/97
EXHIBIT 1.02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
800,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: __________, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . 3
(a) Representations and Warranties by the Company. . . . . . . . 3
(i) Compliance with Registration Requirements. . . . . . . . . . 4
(ii) Incorporated Documents . . . . . . . . . . . . . . . . . . . 4
(iii) Independent Accountants. . . . . . . . . . . . . . . . . . . 5
(iv) Financial Statements . . . . . . . . . . . . . . . . . . . . 5
(v) No Material Adverse Change in Business . . . . . . . . . . . 5
(vi) Good Standing of the Company . . . . . . . . . . . . . . . . 5
(vii) Good Standing of Subsidiaries. . . . . . . . . . . . . . . . 6
(viii) Capitalization . . . . . . . . . . . . . . . . . . . . . . . 6
(ix) Authorization of Agreement . . . . . . . . . . . . . . . . . 6
(x) Authorization and Description of Securities. . . . . . . . . 7
(xi) Absence of Defaults and Conflicts. . . . . . . . . . . . . . 7
(xii) Absence of Labor Dispute . . . . . . . . . . . . . . . . . . 8
(xiii) Absence of Proceedings . . . . . . . . . . . . . . . . . . . 8
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . . . . . . 8
(xv) Possession of Intellectual Property. . . . . . . . . . . . . 8
(xvi) Absence of Further Requirements. . . . . . . . . . . . . . . 9
(xvii) Possession of Licenses and Permits . . . . . . . . . . . . . 9
(xviii) Title to Property. . . . . . . . . . . . . . . . . . . . . . 9
(xix) Compliance with Cuba Act . . . . . . . . . . . . . . . . . .10
(xx) Investment Company Act . . . . . . . . . . . . . . . . . . .10
(xxi) Environmental Laws . . . . . . . . . . . . . . . . . . . . .10
(b) Officer's Certificates . . . . . . . . . . . . . . . . . . .10
SECTION 2. Sale and Delivery to International Managers; Closing . . . .11
(a) International Initial Securities . . . . . . . . . . . . . .11
(b) International Option Securities. . . . . . . . . . . . . . .11
(c) Payment. . . . . . . . . . . . . . . . . . . . . . . . . . .11
(d) Denominations; Registration. . . . . . . . . . . . . . . . .12
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . . .12
(a) Compliance with Securities Regulations and
Commission Requests . . . . . . . . . . . . . . . . . . . .12
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . .13
(c) Delivery of Registration Statements. . . . . . . . . . . . .13
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . .13
(e) Continued Compliance with Securities Laws. . . . . . . . . .14
(f) Blue Sky Qualifications. . . . . . . . . . . . . . . . . . .14
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . .14
(h) Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . .15
(i) Listing. . . . . . . . . . . . . . . . . . . . . . . . . . .15
(j) Restriction on Sale of Securities. . . . . . . . . . . . . .15
(k) Reporting Requirements . . . . . . . . . . . . . . . . . . .15
SECTION 4. Payment of Expenses. . . . . . . . . . . . . . . . . . . . .15
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(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . .15
(b) Termination of Agreement . . . . . . . . . . . . . . . . . .16
SECTION 5. Conditions of International Managers' Obligations. . . . . .16
(a) Effectiveness of Registration Statement. . . . . . . . . . .16
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . .16
(c) Opinion of Counsel for International Managers. . . . . . . .16
(d) Officers' Certificate. . . . . . . . . . . . . . . . . . . .17
(e) Accountant's Comfort Letter. . . . . . . . . . . . . . . . .17
(f) Bring-down Comfort Letter. . . . . . . . . . . . . . . . . .17
(g) Approval of Listing. . . . . . . . . . . . . . . . . . . . .18
(h) Purchase of U.S. Initial Securities. . . . . . . . . . . . .18
(i) Conditions to Purchase of International Option Securities. .18
(i) Officers' Certificate. . . . . . . . . . . . . . . . . . . .18
(ii) Opinion of Counsel for Company . . . . . . . . . . . . . . .18
(iii) Opinion of Counsel for International Managers. . . . . . . .18
(iv) Bring-down Comfort Letter. . . . . . . . . . . . . . . . . .18
(j) Additional Documents . . . . . . . . . . . . . . . . . . . .18
(k) Termination of Agreement . . . . . . . . . . . . . . . . . .19
SECTION 6. Indemnification. . . . . . . . . . . . . . . . . . . . . . .19
(a) Indemnification of International Managers. . . . . . . . . .19
(b) Indemnification of Company, Directors and Officers . . . . .20
(c) Actions against Parties; Notification. . . . . . . . . . . .20
(d) Settlement without Consent if Failure to Reimburse . . . . .21
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . .21
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . .23
(a) Termination; General . . . . . . . . . . . . . . . . . . . .23
(b) Liabilities. . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 10. Default by One or More of the International Managers . . . .23
SECTION 11. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 12. Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 13. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . . . .25
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . . .26
ii
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Draft of 8/13/97
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
800,000 Shares of Common Stock
(Par Value $2.50 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
__________, 1997
MERRILL LYNCH INTERNATIONAL
GOLDMAN, SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
DAIN BOSWORTH INCORPORATED
PIPER JAFFRAY INC.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Northern States Power Company, a Minnesota corporation (the "Company"),
confirms its agreement with Merrill Lynch International and each of the other
International Managers named in Schedule A hereto (collectively, the
"International Managers," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch International, Goldman, Sachs International, Salomon Brothers
International Limited, Dain Bosworth Incorporated and Piper Jaffray Inc. are
acting as representatives (in such capacity, the "Lead Managers"), with respect
to (i) the sale by the Company and the purchase by the International Managers,
acting severally and not jointly, of the respective numbers of shares of Common
Stock, par value $2.50 per share, of the Company ("Common Stock") set forth in
Schedule A hereto and (ii) the grant by the Company to the International
Managers, acting severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of 120,000 additional shares of Common
Stock to cover over-allotments, if any. The aforesaid 800,000 shares of Common
Stock (the "International Initial Securities") to be purchased by the
International Managers and all or any part of the 120,000 shares of Common Stock
subject to the option described in Section 2(b) hereof (the "International
Option Securities") are hereinafter called, collectively, the "International
Securities."
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It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 3,200,000 shares of Common Stock
(the "U.S. Initial Securities") through arrangements with certain underwriters
in the United States and Canada (the "U.S. Underwriters") for which Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon
Brothers Inc., Goldman, Sachs International, Dain Bosworth and Piper Jaffray are
acting as representatives (the "Lead Managers") and the grant by the Company to
the U.S. Underwriters, acting severally and not jointly, of an option to
purchase all or any part of the 480,000 additional shares of Common Stock solely
to cover overallotments, if any (the "U.S. Option Securities" and, together with
the International Option Securities, the "Option Securities"). The U.S. Initial
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Company is not obligated to sell, and the
International Managers are not obligated to purchase, any International Initial
Securities unless all of the U.S. Initial Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the International Managers are hereinafter
collectively called the "Underwriters", the U.S. Initial Securities and the
International Initial Securities are hereinafter collectively called the
"Initial Securities", and the International Securities and the International
Securities are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch.& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-__) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses. Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus will be
identical to the Form of U.S. Prospectus, except for the front cover, inside
front cover and back cover page and the information under the caption
"Underwriting." Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a Form of U.S. Prospectus and a Form of
International Prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file term sheets (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule
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<PAGE>
424(b). The information included in each such prospectus or in each such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the "U.S. Prospectus" and the "International Prospectus," respectively,
and collectively, the "Prospectuses" "Prospectus." If Rule 434 is relied on, the
term terms "U.S. Prospectus" and "International Prospectus" shall refer to the
preliminary U.S. Prospectus dated __________, 1997 and preliminary International
Prospectus dated __________, 1997, respectively, each together with the
applicable Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus, the U.S. Prospectus, the International Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectuses or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
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<PAGE>
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option Securities
are purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Neither the Prospectuses nor any amendments or supplements thereto, at the time
the Prospectuses or any such amendment or supplement was issued and at the
Closing Time (and, if any International Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
U.S. Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any International Manager through Merrill
Lynch International expressly for use in the Registration Statement or
International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectuses delivered to the Underwriters for use in connection with
the offering of the Securities was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
4
<PAGE>
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectuses, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of
Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectuses, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C)
except for regular dividends on the Common Stock and the Company's
preferred stock in amounts per share that are consistent
5
<PAGE>
with past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Minnesota and has corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectuses and to enter into and perform its
obligations under this Agreement and the U.S. Purchase Agreement; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing or property or the conduct of business, except where the
failure so to qualify or be in good standing would not result in a
Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the Company
named in Exhibit 21.01 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1996 ("Significant Subsidiary") has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21.01 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996 and (b) certain other
subsidiaries which, considered in the aggregate as a single
Subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding
6
<PAGE>
capital stock have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the
Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities have
been duly authorized for issuance and sale to the U.S. Underwriters
pursuant to this Agreement and to the International Managers pursuant
to the U.S. Purchase Agreement and, when issued and delivered by the
Company pursuant to this Agreement and the U.S. Purchase Agreement,
respectively, against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the Common
Stock conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or,
except as disclosed in the Registration Statement, in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S.
Purchase Agreement and the consummation of the transactions
contemplated herein and therein and in the Registration Statement
(including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by
the Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any
7
<PAGE>
violation of the provisions of the charter or by-laws of the Company
or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially or adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required in the Registration Statement, the Prospectuses or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on
8
<PAGE>
the business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. The Minnesota Public Utilities
Commission has issued its order approving capital structure which
order authorizes the issuance of the Securities, and no other filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by
the Company of its obligations under this Agreement and the U.S.
Purchase Agreement, in connection with the offering, issuance or sale
of the Securities hereunder and thereunder or the consummation of the
transactions contemplated by this Agreement and the U.S. Purchase
Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or foreign or
state securities laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company has good and valid title to all
real and fixed property and leasehold rights owned by it, subject only
to taxes and assessments not yet delinquent; the lien of the Company's
Trust Indenture, dated as of February 1, 1937, as supplemented and
amended (the "Indenture"); as to parts of the Company's property,
certain easements, conditions, restrictions,
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leases, and similar encumbrances which do not affect the Company's use
of such property in the usual course of its business. and certain
minor defects in titles which are not material, and defects in titles
to certain properties which are not essential to the Company's
business; and mechanics' lien claims being contested or not of record
or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the Indenture; and any real
property and buildings held under lease by the Company is held by it
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company.
(xix) COMPLIANCE WITH CUBA ACT. The Company has complied with, and is
and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xx) INVESTMENT COMPANY ACT. The Company is not, and upon the issuance
and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not
be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxi) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceeding
relating to any
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Environmental Law against the Company or any of its subsidiaries and
(D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the International
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as
to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) INTERNATIONAL INITIAL SECURITIES. On the basis of the representations
and warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each International Manager
and each International Manager, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B,
the number of International Initial Securities set forth in Schedule A
opposite the name of such International Manager, plus any additional number
of International Initial Securities which such International Manager may
become obligated to purchase pursuant to the provisions of Section 10
hereof, subject to such adjustments among the International Managers as the
representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) INTERNATIONAL OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 120,000 shares of Common Stock, at the price per share set forth
in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the International
Initial Securities but not payable on the International Option Securities.
The option hereby granted will expire 30 days after the date hereof and may
be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering
and distribution of the International Initial Securities upon notice by he
Global Coordinator to the Company setting forth the number of International
Option Securities as to which the several International Managers are then
exercising the option and the time and date of payment and delivery for
such International Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Global Coordinator, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the International
Option Securities, each of the International Managers, acting severally and
not jointly, will purchase that proportion
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of the total number of International Option Securities then being purchased
which the number of International Initial Securities set forth in Schedule
A opposite the name of such International Manager bears to the total number
of International Initial Securities, subject in each case to such
adjustments as the Lead Managers in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the International Initial Securities shall be made at the
offices of Gardner, Carton & Douglas, 321 N. Clark Street, Chicago,
Illinois 60610, or at such other place as shall be agreed upon by the
Global Coordinator and the Company at 9:00 A.M. (Central time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Global
Coordinator and the Company (such time and date of payment and delivery
being herein called "Closing Time."
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Lead Managers and the Company, on each Date of
Delivery as specified in the notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the International Initial Securities and the International
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the International Manager, may (but
shall not be obligated to) make payment of the purchase price for the
International Initial Securities or the International Option Securities, if any,
to be purchased by any International Manager whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such International Manager from its obligations
hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the International
Initial Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers
may request in writing at least one full business day before the Closing
Time or the relevant Date of Delivery, as the case may be. The
certificates for the International Initial Securities and the International
Option Securities, if any, will be made available for examination and
packaging by the Lead Managers in The City of New York not later than 10:00
A.M. (Eastern time) on the
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business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
International Manager as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Lead Managers
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectuses or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Lead Managers notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectuses included in
the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish the Lead Managers with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Lead
Managers or counsel for the International Managers shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will
deliver to the Lead Managers and counsel for the International Mangers,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Lead Managers,
without
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charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the Prospectuses are required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectuses (as amended or supplemented) as such International Manager may
reasonably request. The Prospectuses and any amendments or supplements
thereto furnished to the International Managers will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and the U.S. Purchase
Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the International
Managers or for the Company, to amend the Registration Statement or amend
or supplement the Prospectuses in order that the Prospectuses will not
include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectuses in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectuses comply with such
requirements, and the Company will furnish to the International Managers
such number of copies of such amendment or supplement as the International
Managers may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Lead Managers may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
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Statement and any Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) LISTING. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange, Chicago Stock Exchange
and Pacific Exchange.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 120 days from
the date of the Prospectuses, the Company will not, without the prior
written consent of Merrill Lynch International (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the U.S. Purchase
Agreement, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in
the Prospectuses or (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan.
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(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, any Intersyndicate Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the International Managers and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the International
Managers in connection therewith and in connection with the preparation of the
Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheets and
of the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities and (ix) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange,
Chicago Stock Exchange and Pacific Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company shall reimburse the International Managers
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the International Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and
at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
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Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the International Managers. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in accordance
with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Lead Managers
shall have received the favorable opinion, dated as of Closing Time, of
Gary R. Johnson, Vice President and General Counsel of the Company, in form
and substance satisfactory to counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the
other International Managers to the effect set forth in Exhibit A hereto
and to such further effect as counsel to the International Managers may
reasonably request.
(c) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Gardner, Carton & Douglas, counsel for the International
Managers, together with signed or reproduced copies of such letter for each
of the other International Managers with respect to the matters set forth
in clauses (i), (ii), (v), (vi) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (viii) through (x), inclusive, (xiii), (xv) (solely as to the
information in the Prospectuses under "Description of Common Stock") and
the penultimate paragraph of Exhibit A hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of the
jurisdictions other than the federal law of the United States, upon the
opinions of counsel satisfactory to the Lead Managers. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall have not been,
since the date hereof or since the respective dates as of which information
is given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Lead
Managers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations
and warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time, (iii)
the Company has complied with all agreements and satisfied all conditions
on its part to be
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performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Lead Managers shall have received from Price Waterhouse LLP
a letter dated such date, in form and substance satisfactory to the Lead
Managers, together with signed or reproduced copies of such letter for each
of the other International Managers containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectuses.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers shall
have received from Price Waterhouse LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(h) PURCHASE OF U.S. INITIAL SECURITIES. Contemporaneously with the
purchase by the International Managers of the International Initial
Securities under this Agreement, the U.S. Underwriters shall have purchased
the U.S. Initial Securities under the U.S. Purchase Agreement.
(i) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES. In the
event that the International Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the
Company and any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery,
the Lead Managers shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
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(ii) OPINION OF COUNSEL FOR COMPANY. . The favorable opinion of Gary
R. Johnson, Vice President and General Counsel of the Company in form
and substance satisfactory to counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iii) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. . The favorable
opinion of Gardner, Carton & Douglas, counsel for the International
Managers, dated such Date of Delivery, relating to the International
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(iv) BRING-DOWN COMFORT LETTER. . A letter from Price Waterhouse LLP,
in form and substance satisfactory to the Lead Managers and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Lead Managers pursuant to Section 5(e) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(j) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery
counsel for the International Managers shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Lead Managers and counsel for
the International Managers.
(k) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of
International Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to
purchase the relevant International Option Securities, may be terminated by
the Lead Managers by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
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SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS. The Company agrees to
indemnify and hold harmless each International Manager and each person, if
any, who controls any International Manager within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch
International), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through Merrill Lynch International expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
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(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each International
Manager severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including
the Rule 430A Information and the Rule 434 Information, if applicable, or
any preliminary prospectus or the International Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such International Manager
through Merrill Lynch International expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
International Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch International, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnifying
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
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(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages or expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
International Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
International Managers on the other hand in connection with the statements of
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be just
and equitable if the contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages or
22
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expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an a
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Manager's respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of International Initial
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. The Lead Managers may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectuses, any
material adverse change, or any development which could reasonably be
expected to result in a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial
markets in the United States, any
23
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outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Lead
Managers, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required,
by any of said exchanges or by such system or by order of Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, of (iv) if a banking moratorium has been declared by either
Federal, Minnesota or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If one or
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangement for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period;
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the non-defaulting International Managers shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the International Managers to purchase and of the Company
to sell the International Option Securities to be purchased and sold on
such Date of Delivery shall terminate without liability on the party of any
non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
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In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers or
the Company shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectuses or
in any other documents or arrangements. As used herein, the term "International
Manager" includes any person substituted for an International Manager under this
Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the International Managers
shall be directed to the Lead Managers at: Merrill Lynch International,
Ropemaker Place, 25 Ropemaker Street, London EC2Y 9LY, England, attention of
Equity Capital Markets; with a copy to Gardner, Carton & Douglas, 321 N. Clark
Street, Chicago, Illinois 60610, attention of Robert J. Joseph, Esq.; and
notices to the Company shall be directed to it at Northern States Power Company,
414 Nicollet Mall, Minneapolis, Minnesota 55401, attention of Corporate
Secretary.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the International Managers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
International Managers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO MINNEAPOLIS TIME.
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SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the International Managers and the Company in accordance with its terms.
Very truly yours,
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
By:
-----------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
GOLDMAN, SACHS INTERNATIONAL
SALOMON BROTHERS
INTERNATIONAL LIMITED
DAIN BOSWORTH INCORPORATED
PIPER JAFFRAY INC.
By: MERRILL LYNCH INTERNATIONAL
By:
-------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
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SCHEDULE A
Number of
International
Name of International Managers Initial Securities
------------------------------ ------------------
Merrill Lynch International
Goldman, Sachs International. . . . . . . . . . . . . . .
Salomon Brothers International Limited. . . . . . . . . .
Dain Bosworth Incorporated. . . . . . . . . . . . . . . .
Piper Jaffray Inc.. . . . . . . . . . . . . . . . . . . .
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . 800,000
-------
-------
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SCHEDULE B
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
800,000 Shares of Common Stock
(Par Value $2.50 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $__________.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $__________, being an amount
equal to the initial public offering price set forth above less $__________ per
share; provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over- allotment option described
in Section 2(b) shall be reduced by an amount per share equal to any dividends
or distributions declared by the Company and payable on the International
Initial Securities but not payable on the International Option Securities.
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EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
Re: 800,000 Shares of Common Stock, par value $2.50
per share, of Northern States Power Company,
a Minnesota corporation
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of 800,000
shares of Common Stock, par value $2.50 per share, herein called the
"Securities." In connection therewith I have participated in the preparation of
the proceedings for the issuance and sale of the Securities including (i) the
International Purchase Agreement dated ________________, between you and the
Company relating to your purchase of the International Securities, herein called
the "Agreement" and (ii) the U.S. Purchase Agreement dated ______ between
_______ and the Company relating to the issue and sale of the U.S. Securities,
herein called the "U.S. Purchase Agreement." I also have participated in the
preparation of or examined the registration statement and any amendments thereto
and the accompanying prospectuses and any supplements thereto, as filed under
the Securities Act of 1933, as amended (the "Act"), with respect to the
Securities. Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement. My examination has extended to
all statutes, records, instruments, and documents which I have deemed necessary
to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the Agreement
and the U.S. Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant to
the Agreement and the U.S. Purchase Agreement or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or pursuant
to the exercise of convertible securities or options referred to in the
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Prospectuses); the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
5. The Securities to be purchased by the International Managers and the
U.S. Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers and the U.S. Underwriters pursuant to the
Agreement and the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to the Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration set forth in the
Agreement and the U.S. Purchase Agreement, respectively, will be validly issued
and fully paid and non-assessable and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder.
6. The issuance and sale of the Securities by the Company is not subject
to the preemptive or other similar rights of any securityholder of the Company.
7. Each Significant Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best of my knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary.
8. The Agreement and the U.S. Purchase Agreement have been duly
authorized, executed and delivered by the Company.
9. The Registration Statement, including any Rule 462(b) Registration
Statement has been declared effective under the 1933 Act; any required filing of
the Prospectuses pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of my knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
10. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses,
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excluding the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectuses, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which I need express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
11. The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which I need express no opinion), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder.
12. If Rule 434 has been relied upon, the Prospectus was not "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it became effective.
13. The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the New York Stock Exchange.
14. To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably by expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Agreement and the U.S. Purchase Agreement or
the performance by the Company of its obligations thereunder.
15. The information in the Prospectus under "Description of Common Stock"
and "Certain United States Tax Consequences to Non United States Holders"), and
in the Registration Statement under Item 15, to the extent that it constitutes
matters of law, summaries of legal matters, the Company's charter and bylaws or
legal proceedings, or legal conclusions, has been reviewed by me and is correct
in all material respects.
16. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
17. All Descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of my knowledge, there are no franchises,
contracts, indentures, mortgage, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or
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filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
18. To the best of my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
19. The Minnesota Public Utilities Commission has issued its order
approving the Company's capital structure which order authorizes the issuance of
the Securities, and no other filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the 1933
Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as to
which I need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the Agreement and the U.S. Purchase
Agreement or for the offering, issuance, sale or delivery of the Securities.
20. The execution, delivery and performance of the Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated in the
Agreement and the U.S. Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its obligations
under the Agreement and the U.S. Purchase Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to me, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their respective
properties, assets or operations.
21. The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
22. The Company has good and valid title to all real and fixed property
and leasehold rights owned by it, subject only to: (a) taxes and assessments not
yet delinquent; (b) the lien of
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the Indenture (as defined in the Agreement); (c) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and similar
encumbrances which do not affect the Company's use of such property in the usual
course of its business, certain minor defects in titles which are not material,
defects in titles to certain properties which are not essential to the Company's
business; and mechanics' lien claims being contested or not of record or for the
satisfaction or discharge of which adequate provision has been made by the
Company pursuant to the Indenture.
23. The Company has all necessary power under statutory provisions, franchises
(which expire at various dates), or permits to serve the customers in the
jurisdictions where it provides electric and gas service, except in certain
instances that are not material to the Company.
These opinions do not cover title to easements for water flowage purposes or
rights of way for electric and gas transmission and distribution facilities,
steam mains, and telephone lines. However, the Company has the power of eminent
domain in the states in which it operates.
In the course of my participation in the preparation of the Registration
Statement and Prospectuses I made investigations as to the accuracy of certain
of the statements of fact contained therein, I discussed other matters with
officers, employees, and Lead Managers of the Company, and I examined various
corporate records and data. While I do not pass upon or assume responsibility
for, and shall not be deemed to have independently verified, the accuracy and
completeness of the statements contained in the Registration Statement or
Prospectuses (except as to matters set forth in paragraphs 4,15 and 17 above)
nothing has come to my attention that would lead me to believe that the
Registration Statement (including the Rule 430A Information) at the time it
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectuses as of the date of the
Agreement or at the date hereof contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made. not
misleading.
In giving my opinion under paragraph 22 above. I have relied upon examinations
of abstracts of titles to properties of the Company, said abstracts bearing
various dates, and nothing has come to my attention which would lead me to
believe that anything has occurred since the dates of the abstracts which would
adversely affect the titles shown on the abstracts. In giving opinions as to
conformity to the laws of States other than Minnesota and as to the franchise
and titles to property of the Company, I have in certain instances relied upon
the opinion of other counsel employed or retained by the Company to render
opinions in respect thereto.
A-5
<PAGE>
Respectfully submitted,
By:_________________________________
Gary R. Johnson
VICE PRESIDENT AND GENERAL
COUNSEL NORTHERN STATES POWER COMPANY
A-6
<PAGE>
<PAGE>
Exhibit 4.03
Number [GRAPHIC] Shares
S00000
COMMON STOCK CUSIP________
ORGANIZED UNDER THE LAWS OF MINNESOTA
NORTHERN STATES POWER COMPANY SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK OR MINNEAPOLIS
This Certifies that
SPECIMEN
is the registered holder of
FULLY PAID AND NONASSESSABLE SHARES, OF THE PAR VALUE OF $2.50 EACH, OF THE
COMMON STOCK
of Northern States Power Company transferable on the books of the
corporation by the holder hereof in person or by attorney upon surrender of
this certificate properly endorsed. This certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
In Witness Whereof the corporation has caused this certificate to be
signed in facsimile
by its duly authorized officers and its corporate seal to be hereunto
affixed in facsimile.
Dated: [CORPORATE]
[SEAL]
SECRETARY PRESIDENT
Countersigned: Registered:
NORTHERN STATES POWER COMPANY NORWEST BANK MINNESOTA, N.A., REGISTRAR
(MINNEAPOLIS)
BY: BY:
----------------------------- -----------------------
TRANSFER AGENT AUTHORIZED SIGNATURE
<PAGE>
[Reverse Side]
<TABLE>
<CAPTION>
<S><C>
The following abbreviation, when used in the inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common UNIF TRAN MIN ACT-......Custodian........
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of survivorship under Uniform Transfers to Minors
and not as tenants in common Act...................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
NORTHERN STATES POWER COMPANY
Notice
The shares are subject to rights, references, and restrictions. A full
statement of the rights, preferences, and restrictions granted to or imposed
upon the shares of all classes or series of the corporation and a statement of
the authority to fix the rights of series of shares then unalloted, vested by
the Articles of Incorporation in the Board of Directors of the corporation under
Section 301.04 Clause (5), of the Minnesota Business Corporation Act, will be
furnished without charge to any shareholder upon request made to the Transfer
Agent.
For the Value received,___________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
_______________________________________________________________
_______________________________________________________________
__________________________________________________________shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_______________________
_______________________________________________
Notice: The signature to this assignment must correspond with the
name as written upon the face of the certificate in every
particular, without alteration or enlargement or any change
whatever.
<PAGE>
SUPPLEMENTAL TRUST INDENTURE
FROM
NORTHERN STATES POWER COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE
--------------
DATED APRIL 1, 1997
--------------
SUPPLEMENTAL TO TRUST INDENTURE
DATED FEBRUARY 1, 1937
AND
SUPPLEMENTAL AND RESTATED
TRUST INDENTURE
DATED MAY 1, 1988
<PAGE>
TABLE OF CONTENTS
--------------
<TABLE>
<S> <C> <C>
Parties................................................................................ 1
Recitals............................................................................... 1
Form of Bonds of Pollution Control Series M, N, O and P................................ 5
Form of Trustee's Certificate.......................................................... 8
Further Recitals....................................................................... 8
ARTICLE I SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO THE LIEN OF THE ORIGINAL
INDENTURE.............................................................. 8
Section 1.01 Grant of certain property, including personal property to comply with
the Uniform Commercial Code, subject to permitted liens and other
exceptions contained in 1937 Indenture................................. 8
ARTICLE II PROVISIONS OF BONDS OF POLLUTION CONTROL SERIES M, N, O AND P.......... 9
Section 2.01 Terms of Bonds of Pollution Control Series M........................... 9
Section 2.02 Payment of principal and interest of Bonds of Pollution Control Series
M...................................................................... 10
Section 2.03 Bonds of Pollution Control Series M deemed fully paid upon payment of
Series 1989-A Pollution Control Revenue Bonds.......................... 11
Section 2.04 Terms of Bonds of Pollution Control Series N........................... 11
Section 2.05 Payment of principal and interest of Bonds of Pollution Control Series
N...................................................................... 11
Section 2.06 Bonds of Pollution Control Series N deemed fully paid upon payment of
Series 1992-A Pollution Control Revenue Bonds.......................... 12
Section 2.07 Terms of Bonds of Pollution Control Series O........................... 13
Section 2.08 Payment of principal and interest of Bonds of Pollution Control Series
O...................................................................... 13
Section 2.09 Bonds of Pollution Control Series O deemed fully paid upon payment of
Series 1993-A Pollution Control Revenue Bonds.......................... 14
Section 2.10 Terms of Bonds of Pollution Control Series P........................... 14
Section 2.11 Payment of principal and interest of Bonds of Pollution Control Series
P...................................................................... 14
Section 2.12 Bonds deemed fully paid upon payment of Series 1993-B Pollution Control
Revenue Bonds.......................................................... 15
Section 2.13 Interchangeability of bonds............................................ 16
Section 2.14 Charges upon exchange or transfer of bonds............................. 16
ARTICLE III FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE......... 17
Section 3.01 Names and addresses of debtor and secured party........................ 17
Section 3.02 Property subject to lien............................................... 17
Section 3.03 Maturity dates and principal amounts of obligations secured............ 17
Section 3.04 Financing Statement adopted for all First Mortgage Bonds listed in
Section 3.03........................................................... 17
Section 3.05 Recording data for the 1937 Indenture and prior Supplemental Trust
Indentures............................................................. 17
Section 3.06 Financing Statement covers additional series of First Mortgage Bonds... 18
</TABLE>
<PAGE>
ii
<TABLE>
<S> <C> <C>
ARTICLE IV AMENDMENTS TO INDENTURE................................................ 19
Section 4.01 Consent of holders of Bonds............................................ 19
ARTICLE V MISCELLANEOUS.......................................................... 19
Section 5.01 Recitals of fact, except as stated, are statements of the Company...... 19
Section 5.02 Supplemental Trust Indenture to be construed as a part of the 1937
Indenture, as supplemented............................................. 19
Section Trust Indenture Act to control......................................... 19
5.03(a)
(b) Severability of conditions contained in Supplemental Trust Indenture
and bonds.............................................................. 19
Section 5.04 Word "Indenture" as used herein includes in its meaning the 1937
Indenture and all indentures supplemental thereto...................... 19
Section 5.05 References to either party in Supplemental Trust Indenture include
successors or assigns.................................................. 19
Section Provision for execution in counterparts................................ 20
5.06(a)
(b) Table of Contents and descriptive headings of Articles not to affect
meaning................................................................ 20
Schedule A............................................................................. A-1
</TABLE>
<PAGE>
1
Supplemental Trust Indenture, MADE AS OF THE 1ST DAY OF APRIL, 1997, BY AND
BETWEEN NORTHERN STATES POWER COMPANY, a corporation duly organized and existing
under and by virtue of the laws of the State of Minnesota, having its principal
office in the City of Minneapolis, Minnesota (the "Company"), party of the first
part, and HARRIS TRUST AND SAVINGS BANK, a corporation duly organized and
existing under and by virtue of the laws of the State of Illinois, having its
principal office in the City of Chicago, Illinois, as Trustee (the "Trustee"),
party of the second part;
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
its Trust Indenture (the "1937 Indenture"), made as of February 1, 1937, whereby
the Company granted, bargained, sold, warranted, released, conveyed, assigned,
transferred, mortgaged, pledged, set over and confirmed to the Trustee and to
its respective successors in trust, all property, real, personal and mixed then
owned or thereafter acquired or to be acquired by the Company (except as therein
excepted from the lien thereof) and subject to the rights reserved by the
Company in and by the provisions of the 1937 Indenture, to be held by said
Trustee in trust in accordance with the provisions of the 1937 Indenture for the
equal pro rata benefit and security of all and each of the bonds issued and to
be issued thereunder in accordance with the provisions thereof; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental Trust Indenture, made as of June 1, 1942, whereby the Company
conveyed, assigned, transferred, mortgaged, pledged, set over, and confirmed to
the Trustee, and its respective successors in said trust, additional property
acquired by it subsequent to the date of the 1937 Indenture; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee
the following additional Supplemental Trust Indentures which, in addition to
conveying, assigning, transferring, mortgaging, pledging, setting over, and
confirming to the Trustee, and its respective successors in said trust,
additional property acquired by it subsequent to the preparation of the next
preceding Supplemental Trust Indenture and adding to the covenants, conditions,
and agreements of the 1937 Indenture certain additional covenants, conditions,
and agreements to be observed by the Company, created the following series of
First Mortgage Bonds:
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
February 1, 1944 Series due February 1, 1974 (retired)
October 1, 1945 Series due October 1, 1975 (retired)
July 1, 1948 Series due July 1, 1978 (retired)
August 1, 1949 Series due August 1, 1979 (retired)
June 1, 1952 Series due June 1, 1982 (retired)
October 1, 1954 Series due October 1, 1984 (retired)
September 1, 1956 Series due 1986 (retired)
August 1, 1957 Series due August 1, 1987 (redeemed)
July 1, 1958 Series due July 1, 1988 (retired)
December 1, 1960 Series due December 1, 1990 (retired)
August 1, 1961 Series due August 1, 1991 (retired)
June 1, 1962 Series due June 1, 1992 (retired)
September 1, 1963 Series due September 1, 1993 (retired)
August 1, 1966 Series due August 1, 1996 (redeemed)
June 1, 1967 Series due June 1, 1995 (redeemed)
October 1, 1967 Series due October 1, 1997 (redeemed)
May 1, 1968 Series due May 1, 1998 (redeemed)
October 1, 1969 Series due October 1, 1999 (redeemed)
February 1, 1971 Series due March 1, 2001 (redeemed)
May 1, 1971 Series due June 1, 2001 (redeemed)
February 1, 1972 Series due March 1, 2002
January 1, 1973 Series due February 1, 2003
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
January 1, 1974 Series due January 1, 2004 (redeemed)
September 1, 1974 Pollution Control Series A (redeemed)
April 1, 1975 Pollution Control Series B (redeemed)
May 1, 1975 Series due May 1, 2005 (redeemed)
March 1, 1976 Pollution Control Series C (retired)
June 1, 1981 Pollution Control Series D, E and F (redeemed)
December 1, 1981 Series due December 1, 2011 (redeemed)
May 1, 1983 Series due May 1, 2013 (redeemed)
December 1, 1983 Pollution Control Series G (redeemed)
September 1, 1984 Pollution Control Series H (redeemed)
December 1, 1984 Resource Recovery Series I
May 1, 1985 Series due June 1, 2015 (redeemed)
September 1, 1985 Pollution Control Series J, K and L
July 1, 1989 Series due July 1, 2019 (redeemed)
June 1, 1990 Series due June 1, 2020 (redeemed)
October 1, 1992 Series due October 1, 1997
April 1, 1993 Series due April 1, 2003
December 1, 1993 Series due December 1, 2000, and December 1, 2005
February 1, 1994 Series due February 1, 1999
October 1, 1994 Series due October 1, 2001
June 1, 1995 Series due July 1, 2025
April 1, 1997 Pollution Control Series M, N, O and P; and
</TABLE>
WHEREAS, the 1937 Indenture and all of the foregoing Supplemental Trust
Indentures are referred to herein collectively as the "Original Indenture"; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental and Restated Trust Indenture, dated May 1, 1988 (the "Restated
Indenture"), which, in addition to conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee, and its
respective successors in said trust, additional property acquired by it
subsequent to the preparation of the next preceding Supplemental Trust
Indenture, amended and restated the Original Indenture; and
WHEREAS, the Restated Indenture will not become effective and operative
until all bonds of each series issued under the Original Indenture prior to May
1, 1988 shall have been retired through payment or redemption (including those
bonds "deemed to be paid" within the meaning of that term as used in Article
XVII of the 1937 Indenture) or until, subject to certain exceptions, the holders
of the requisite principal amount of such bonds shall have consented to the
amendments contained in the Restated Indenture (such date being herein called
the "Effective Date"); and
WHEREAS, the Original Indenture and the Restated Indenture are referred to
herein collectively as the "Indenture"; and
WHEREAS, the City of Becker, in the County of Sherburne, a municipal
corporation existing under the Constitution and laws of the State of Minnesota
(the "City") has issued $60,000,000 principal amount of its Pollution Control
Revenue Refunding Bonds (Northern States Power Company--Sherburne County
Generating Station Units 1 and 2 Project), Series 1989-A (the "Series 1989-A
Pollution Control Revenue Bonds") pursuant to the provisions of the Indenture of
Trust, dated as of July 1, 1989, as supplemented by Supplemental Indenture No. 1
dated as of April 1, 1997 (as supplemented, the "Series 1989-A Pollution Control
Indenture"), between the City and First Trust National Association, as Trustee
(said Trustee or any successor trustee under the Series 1989-A Pollution Control
Indenture being hereinafter referred to as the "Series 1989-A Pollution Control
Trustee"); and
<PAGE>
3
WHEREAS, the net proceeds of the Series 1989-A Pollution Control Revenue
Bonds were loaned by the City to the Company pursuant to the provisions of a
Loan Agreement dated as of July 1, 1989 as amended by Amendment No. 1 dated as
of April 1, 1997, between the City and the Company (as amended the "Series
1989-A Agreement"), to provide a portion of the funds to finance the
acquisition, construction and equipping of certain pollution control facilities
relating to the first and second electric generating units located in the City
at the Company's Sherburne County Generating Station, owned jointly by the
Company and Southern Minnesota Municipal Power Agency; and
WHEREAS, payments by the Company under and pursuant to the Series 1989-A
Agreement have been assigned by the City to the Series 1989-A Pollution Control
Trustee in order to secure the payment of the Series 1989-A Pollution Control
Revenue Bonds; and
WHEREAS, in order to further secure the payment of the Series 1989-A
Pollution Control Revenue Bonds, the Company desires to provide for the issuance
under the Indenture to the Series 1989-A Pollution Control Trustee of a new
series of bonds designated "First Mortgage Bonds, Pollution Control Series M"
(sometimes called "Bonds of Pollution Control Series M"), in a principal amount
equal to the principal amount of the Series 1989-A Pollution Control Revenue
Bonds, and with corresponding terms and maturity, the Bonds of Pollution Control
Series M to be issued as registered bonds without coupons in denominations of a
multiple of $5,000; and
WHEREAS, the City has issued $27,900,000 principal amount of its Pollution
Control Revenue Bonds (Northern States Power Company--Sherburne County
Generating Station Unit 3 Project), Series 1992-A (the "Series 1992-A Pollution
Control Revenue Bonds") pursuant to the provisions of the Indenture of Trust,
dated as of March 1, 1992, as supplemented by Supplemental Indenture No. 1 dated
as of April 1, 1997 (as supplemented, the "Series 1992-A Pollution Control
Indenture"), between the City and Norwest Bank Minnesota, National Association,
as Trustee (said Trustee or any successor trustee under the Series 1992-A
Pollution Control Indenture being hereinafter referred to as the "Series 1992-A
Pollution Control Trustee"); and
WHEREAS, the net proceeds of the Series 1992-A Pollution Control Revenue
Bonds were loaned by the City to the Company pursuant to the provisions of a
Loan Agreement dated as of March 1, 1992, as amended by Amendment No. 1 dated as
of April 1, 1997, between the City and the Company (as amended, the "Series
1992-A Agreement"), to provide a portion of the funds to finance the
acquisition, construction and equipping of certain pollution control facilities
relating to the third electric generating unit located in the City at the
Company's Sherburne County Generating Station, owned jointly by the Company and
Southern Minnesota Municipal Power Agency; and
WHEREAS, payments by the Company under and pursuant to the Series 1992-A
Agreement have been assigned by the City to the Series 1992-A Pollution Control
Trustee in order to secure the payment of the Series 1992-A Pollution Control
Revenue Bonds; and
WHEREAS, in order to further secure the payment of the Series 1992-A
Pollution Control Revenue Bonds, the Company desires to provide for the issuance
under the Indenture to the Series 1992-A Pollution Control Trustee of a new
series of bonds designated "First Mortgage Bonds, Pollution Control Series N"
(sometimes called "Bonds of Pollution Control Series N"), in a principal amount
equal to the principal amount of the Series 1992-A Pollution Control Revenue
Bonds, and with corresponding terms and maturity, the Bonds of Pollution Control
Series N to be issued as registered bonds without coupons in denominations of a
multiple of $5,000; and
WHEREAS, the City has issued $50,000,000 principal amount of its Pollution
Control Revenue Bonds (Northern States Power Company--Sherburne County
Generating Station Unit 3 Project), Series 1993-A (the "Series 1993-A Pollution
Control Revenue Bonds") pursuant to the provisions of the Indenture of Trust,
dated as of September 1, 1993, as supplemented by Supplemental Indenture No. 1
dated as of April 1, 1997 (as supplemented, the "Series 1993-A Pollution Control
Indenture"), between the City and Norwest Bank Minnesota, National Association,
as Trustee (said Trustee or any successor trustee under the Series 1993-A
Pollution Control Indenture being hereinafter referred to as the "Series 1993-A
Pollution Control Trustee"); and
<PAGE>
4
WHEREAS, the net proceeds of the Series 1993-A Pollution Control Revenue
Bonds were loaned by the City to the Company pursuant to the provisions of a
Loan Agreement dated as of September 1, 1993, as amended by Amendment No. 1
dated as of April 1, 1997, between the City and the Company (as amended, the
"Series 1993-A Agreement"), to provide a portion of the funds to finance the
acquisition, construction and equipping of certain pollution control facilities
relating to the third electric generating unit located in the City at the
Company's Sherburne County Generating Station, owned jointly by the Company and
Southern Minnesota Municipal Power Agency; and
WHEREAS, payments by the Company under and pursuant to the Series 1993-A
Agreement have been assigned by the City to the Series 1993-A Pollution Control
Trustee in order to secure the payment of the Series 1993-A Pollution Control
Revenue Bonds; and
WHEREAS, in order to further secure the payment of the Series 1993-A
Pollution Control Revenue Bonds, the Company desires to provide for the issuance
under the Indenture to the Series 1993-A Pollution Control Trustee of a new
series of bonds designated "First Mortgage Bonds, Pollution Control Series O"
(sometimes called "Bonds of Pollution Control Series O"), in a principal amount
equal to the principal amount of the Series 1993-A Pollution Control Revenue
Bonds, and with corresponding terms and maturity, the Bonds of Pollution Control
Series O to be issued as registered bonds without coupons in denominations of a
multiple of $5,000; and
WHEREAS, the City has issued $50,000,000 principal amount of its Pollution
Control Revenue Bonds (Northern States Power Company--Sherburne County
Generating Station Unit 3 Project), Series 1993-B (the "Series 1993-B Pollution
Control Revenue Bonds") pursuant to the provisions of the Indenture of Trust,
dated as of September 1, 1993, as supplemented by Supplemental Indenture No. 1
dated as of April 1, 1997 (as supplemented, the "Series 1993-B Pollution Control
Indenture"), between the City and Norwest Bank Minnesota, National Association,
as Trustee (said Trustee or any successor trustee under the Series 1993-B
Pollution Control Indenture being hereinafter referred to as the "Series 1993-B
Pollution Control Trustee"); and
WHEREAS, the net proceeds of the Series 1993-B Pollution Control Revenue
Bonds were loaned by the City to the Company pursuant to the provisions of a
Loan Agreement dated as of September 1, 1993, as amended by Amendment No. 1
dated as of April 1, 1997 between the City and the Company (as amended, the
"Series 1993-B Agreement"), to provide a portion of the funds to finance the
acquisition, construction and equipping of certain pollution control facilities
relating to the third electric generating unit located in the City at the
Company's Sherburne County Generating Station, owned jointly by the Company and
Southern Minnesota Municipal Power Agency; and
WHEREAS, payments by the Company under and pursuant to the Series 1993-B
Agreement have been assigned by the City to the Series 1993-B Pollution Control
Trustee in order to secure the payment of the Series 1993-B Pollution Control
Revenue Bonds; and
WHEREAS, in order to further secure the payment of the Series 1993-B
Pollution Control Revenue Bonds, the Company desires to provide for the issuance
under the Indenture to the Series 1993-B Pollution Control Trustee of a new
series of bonds designated "First Mortgage Bonds, Pollution Control Series P"
(sometimes called "Bonds of Pollution Control Series P"), in a principal amount
equal to the principal amount of the Series 1993-B Pollution Control Revenue
Bonds, and with corresponding terms and maturity, the Bonds of Pollution Control
Series P to be issued as registered bonds without coupons in denominations of a
multiple of $5,000; and
<PAGE>
5
WHEREAS, the Bonds of Pollution Control Series M, the Bonds of Pollution
Control Series N, the Bonds of Pollution Control Series O and the Bonds of
Pollution Control Series P are to be substantially in the form and tenor
following, to-wit:
(Form of Bonds of Pollution Control Series M, N, O and P)
This Bond has not been registered under the Securities Act of 1933, as
amended, and may not be offered or sold in contravention of said Act and is not
transferable except to a successor Trustee under the Indenture of Trust dated as
of from the City of Becker, Minnesota (the "City"), to
, as Trustee.
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
First Mortgage Bond
Pollution Control Series
No. ______________ $ ______________
Northern States Power Company, a corporation organized and existing under
and by virtue of the laws of the State of Minnesota (herein called the
"Company"), for value received, hereby promises to pay to ,
, Minnesota, as Trustee under the Indenture of Trust dated as of
, as supplemented by Supplemental Indenture No. 1 dated as of April 1,
1997 (as supplemented, the "Pollution Control Indenture") from the City of
Becker, Minnesota, to , , Minnesota, or any
successor trustee under the Pollution Control Indenture (the "Pollution Control
Trustee") and at the office of Harris Trust and Savings Bank, Chicago, Illinois
(the "Trustee") the sum of Million Dollars in lawful money of
the United States of America on the Demand Redemption Date, as hereinafter
defined, and to pay on the Demand Redemption Date to the Pollution Control
Trustee, interest hereon from the Initial Interest Accrual Date, as hereinafter
defined, to the Demand Redemption Date at the same rate or rates per annum then
and thereafter from time to time borne by the Pollution Control Revenue
[Refunding] Bonds (Northern States Power Company--Sherburne County Generating
Station Unit Project), Series (the "Pollution Control Revenue
Bonds"), in like money, said interest being payable at the office of the Trustee
in Chicago, Illinois, subject to the provisions hereinafter set forth in the
event of a rescission of a Redemption Demand, as hereinafter defined.
This bond is one of a duly authorized issue of bonds of the Company, known
as its First Mortgage Bonds, unlimited in aggregate principal amount, which
issue of bonds consists, or may consist of several series of varying
denominations, dates and tenors, all issued and to be issued under and equally
secured (except in so far as a sinking fund, or similar fund, established in
accordance with the provisions of the Indenture may afford additional security
for the bonds of any specific series) by a Trust Indenture dated February 1,
1937 (the "1937 Indenture"), as supplemented by 44 supplemental trust indentures
(the "Supplemental Indentures"), a Supplemental and Restated Trust Indenture
dated May 1, 1988 (the "Restated Indenture") and a new supplemental trust
indenture for the bonds of this series (the "New Supplemental Indenture"),
executed by the Company to the Trustee. The 1937 Indenture, as supplemented by
the Supplemental Indentures, the Restated Indenture and the New Supplemental
Indenture, is referred to as the "Indenture". Reference is hereby made to the
Indenture for a description of the property mortgaged and pledged, the nature
and extent of the security, the rights of the holders of the bonds as to such
security, and the terms and conditions upon which the bonds may be issued under
the Indenture and are secured. The principal hereof may be declared or may
become due on the conditions, in the manner and at the time set forth in the
Indenture, upon the happening of a default as in the Indenture provided.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and/or the
holders of the bonds, and/or the terms and provisions of the Indenture and/or of
any instruments supplemental thereto may be modified or altered by affirmative
vote of the holders of at least 80% in principal amount of the bonds then
outstanding under the Indenture and any
<PAGE>
6
instruments supplemental thereto (excluding bonds disqualified from voting by
reason of the Company's interest therein as provided in the Indenture); provided
that without the consent of all holders of all bonds affected no such
modification or alteration shall permit the extension of the maturity of the
principal of any bond or the reduction in the rate of interest thereon or any
other modification in the terms of payment of such principal or interest. The
foregoing 80% requirement will be reduced to 66 2/3% when all bonds of each
series issued under the Indenture prior to May 1, 1985, shall have been retired
or all the holders thereof shall have consented to such reduction.
The Restated Indenture amends and restates the 1937 Indenture and the
Supplemental Indentures. The Restated Indenture will become effective and
operative (the "Effective Date") when all Bonds of each series issued under the
Indenture prior to May 1, 1988 shall have been retired through payment or
redemption (including those bonds "deemed to be paid" within the meaning of that
term as used in Article XVII of the 1937 Indenture) or until, subject to certain
exceptions, the holders of the requisite principal amount of such bonds shall
have consented to the amendments contained in the Restated Indenture. Holders of
the bonds of this series and of each subsequent series of bonds issued under the
Indenture likewise will be bound by the amendments contained in the Restated
Indenture when they become effective and operative. Reference is made to the
Restated Indenture for a complete description of the amendments contained
therein to the 1937 Indenture and to the Supplemental Indentures.
This bond is one of a series of bonds of the Company issued under the
Indenture and designated as First Mortgage Bonds, Pollution Control Series .
The bonds of this Series have been issued to the Pollution Control Trustee under
the Pollution Control Indenture to secure payment of the Pollution Control
Revenue Bonds issued by the City under the Pollution Control Indenture, the
proceeds of which have been or are to be loaned to the Company pursuant to the
provisions of the Loan Agreement dated as of , as amended by Amendment
No. 1 dated as of April 1, 1997 (as amended, the "Agreement") between the
Company and the City. The maturity of the obligation represented by the bonds of
this Series is . The date of maturity of the obligation
represented by the bonds of this Series is hereinafter referred to as the Final
Maturity Date. The bonds of this Series shall bear interest from the Initial
Interest Accrual Date, as hereinafter defined, at the same rate or rates per
annum then and thereafter from time to time borne by the Pollution Control
Revenue Bonds.
Except as provided in the next succeeding paragraph, in the event of a
default under Section 8.01 of the Agreement or in the event of a default in the
payment of the principal of, premium, if any, or interest [(and such default in
the payment of interest continues for the full grace period, if any, permitted
by the Pollution Control Indenture and the Pollution Control Revenue Bonds)] on
the Pollution Control Revenue Bonds, whether at maturity, by acceleration, by
sinking fund, redemption or otherwise, as and when the same becomes due, the
bonds of this Series shall be redeemable in whole upon receipt by the Trustee of
a written demand (hereinafter called a "Redemption Demand") from the Pollution
Control Trustee stating that there has been such a default, stating that it is
acting pursuant to the authorization granted by Section [8.03][8-3] of the
Pollution Control Indenture, specifying the last date to which interest on the
Pollution Control Revenue Bonds has been paid (such date being hereinafter
referred to as the "Initial Interest Accrual Date") and demanding redemption of
the bonds of this Series. The Trustee shall, within 10 days after receiving such
Redemption Demand, mail a copy thereof to the Company marked to indicate the
date of its receipt by the Trustee. Promptly upon receipt by the Company of such
copy of a Redemption Demand, the Company shall fix a date on which it will
redeem the bonds of this Series so demanded to be redeemed (hereinafter called
the "Demand Redemption Date"). Notice of the date fixed as and for the Demand
Redemption Date shall be mailed by the Company to the trustee at least 30 days
prior to such Demand Redemption Date. The date to be fixed by the Company as and
for the Demand Redemption Date may be any date up to and including the earlier
of (i) the 120th day after receipt by the Trustee of the Redemption Demand or
(ii) the Final Maturity Date, PROVIDED that if the Trustee shall not have
received such notice fixing the Demand Redemption Date within 90 days after
receipt by it of the Redemption Demand, the Demand Redemption Date shall be
deemed to be the earlier of (i) the 120th day after receipt by the Trustee of
the Redemption Demand or (ii) the Final Maturity Date. The Trustee shall mail
notice of the Demand Redemption Date (such notice being hereafter called the
"Demand Redemption Notice") to the Pollution
<PAGE>
7
Control Trustee not more than 10 nor less than five days prior to the Demand
Redemption Date. Notwithstanding the foregoing, if a default to which this
paragraph is applicable is existing on the Final Maturity Date, such date shall
be deemed to be the Demand Redemption Date without further action (including
actions specified in this paragraph) by the Pollution Control Trustee, the
Trustee or the Company. The bonds of this Series shall be redeemed by the
Company on the Demand Redemption Date, upon surrender thereof by the Pollution
Control Trustee to the Trustee, at a redemption price equal to the principal
amount thereof, plus accrued interest thereon at the rate per annum set forth in
the first paragraph of this Bond, from the Initial Interest Accrual Date to the
Demand Redemption Date. If a Redemption Demand is rescinded by the Pollution
Control Trustee by written notice to the Trustee prior to the Demand Redemption
Date, no Demand Redemption Notice shall be given, or, if already given, shall be
automatically annulled, and interest on the bonds of this Series shall cease to
accrue, all interest accrued thereon shall be automatically rescinded and
cancelled and the Company shall not be obligated to make any payments of
principal of or interest on the bonds of this Series; but no such rescission
shall extend to or affect any subsequent default or impair any right consequent
thereon.
In the event that all of the bonds outstanding under the Indenture shall
have become immediately due and payable, whether by declaration or otherwise,
and such acceleration shall not have been annulled, the bonds of this Series
shall bear interest at the rate per annum set forth in the first paragraph of
this Bond, from the Initial Interest Accrual Date, as specified in a written
notice to the Trustee from the Pollution Control Trustee, and the principal of
and interest on the bonds of this Series from the Initial Interest Accrual Date
shall be payable in accordance with the provisions of the Indenture.
Upon payment of the principal of and premium, if any, and interest on the
Pollution Control Revenue Bonds, whether at maturity or prior to maturity by
redemption or otherwise, and the surrender thereof to and cancellation thereof
by the Pollution Control Trustee (other than any Pollution Control Revenue Bond
that was cancelled by the Pollution Control Trustee and for which one or more
other Pollution Control Revenue Bonds were delivered and authenticated pursuant
to the Pollution Control Indenture in lieu of or in exchange or substitution for
such cancelled Pollution Control Revenue Bond), or upon provision for the
payment thereof having been made in accordance with the Pollution Control
Indenture, bonds of this Series in a principal amount equal to the principal
amount of the Pollution Control Revenue Bonds so surrendered and cancelled or
for the provision for which payment has been made shall be deemed fully paid and
the obligations of the Company thereunder shall be terminated, and such bonds of
this Series shall be surrendered by the Pollution Control Trustee to the Trustee
and shall be cancelled by the Trustee.
No recourse shall be had for the payment of, or interest, if any, on this
bond, or any part thereof, or of any claim based hereon or in respect hereof or
of the Indenture, against any incorporator, or any past, present or future
stockholder, officer or director of the Company or of any predecessor or
successor corporation, either directly or through the Company, or through any
such predecessor or successor corporation, or through any receiver or a trustee
in bankruptcy, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released, as more fully provided in the Indenture.
The bond shall not be valid or become obligatory for any purpose unless and
until the certificate of authentication hereon shall have been signed by or on
behalf of Harris Trust and Savings Bank, as Trustee under the Indenture, or its
successor thereunder.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this instrument
to be signed in its name by its President or a Vice President, and its corporate
seal, or a facsimile thereof, to be hereto affixed and attested by its Secretary
or an Assistant Secretary.
Dated: ____________________________ NORTHERN STATES POWER COMPANY
Attest: ________________________ By ___________________________________
_________ Secretary _________ President
<PAGE>
8
(Form of Trustee's Certificate)
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee,
By _________________________________
Authorized Officer
and
WHEREAS, the Company is desirous of conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee and to its
respective successors in trust, additional property acquired by it subsequent to
the date of the preparation of the Supplemental Trust Indenture dated June 1,
1995; and
WHEREAS, the Indenture provides in substance that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of creating and setting forth the particulars of any new series of bonds
and of providing the terms and conditions of the issue of the bonds of any
series not expressly provided for in the Indenture and of conveying, assigning,
transferring, mortgaging, pledging, setting over and confirming to the Trustee
additional property of the Company, and for any other purpose not inconsistent
with the terms of the Indenture; and
WHEREAS, the execution and delivery of this Supplemental Trust Indenture
have been duly authorized by a resolution adopted by the Board of Directors of
the Company;
WHEREAS, the Trustee has duly determined to execute this Supplemental Trust
Indenture and to be bound, insofar as it may lawfully do so, by the provisions
hereof;
NOW, THEREFORE, Northern States Power Company, in consideration of the
premises and of one dollar duly paid to it by the Trustee at or before the
ensealing and delivery of these presents, the receipt of which is hereby
acknowledged, and other good and valuable considerations, does hereby covenant
and agree to and with Harris Trust and Savings Bank, as Trustee, and its
successors in the trust under the Indenture for the benefit of those who hold or
shall hold the bonds, or any of them, issued or to be issued thereunder, as
follows:
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO
THE LIEN OF THE ORIGINAL INDENTURE
SECTION 1.01. The Company in order to better secure the payment, of both the
principal and interest, of all bonds of the Company at any time outstanding
under the Indenture according to their tenor and effect and the performance of
and compliance with the covenants and conditions contained in the Indenture, has
granted, bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, and confirmed and by these presents does grant,
bargain, sell, warrant, release, convey, assign, transfer, mortgage, pledge, set
over, and confirm to the Trustee and to its respective successors in said trust
forever, subject to the rights reserved by the Company in and by the provisions
of the Indenture, all of the property described and mentioned or enumerated in a
schedule annexed hereto and marked Schedule A, reference to said schedule being
made hereby with the same force and effect as if the same were incorporated
herein at length; together with all and singular the tenements, hereditaments,
and appurtenances belonging and in any way appertaining to the aforesaid
property or any part thereof with the reversion and reversions, remainder and
remainders, tolls, rents and revenues, issues, income, products, and profits
thereof;
<PAGE>
9
Also, in order to subject the personal property and chattels of the Company
to the lien of the Indenture and to conform with the provisions of the Uniform
Commercial Code, all fossil, nuclear, hydro, and other electric generating
plants, including buildings and other structures, turbines, generators,
exciters, boilers, reactors, nuclear fuel, other boiler plant equipment,
condensing equipment and all other generating equipment; substations; electric
transmission and distribution systems, including structures, poles, towers,
fixtures, conduits, insulators, wires, cables, transformers, services and
meters; steam heating mains and equipment; gas transmission and distribution
systems, including structures, storage facilities, mains, compressor stations,
purifier stations, pressure holders, governors, services, and meters; telephone
plant and related distribution systems; trucks and trailers; office, shop, and
other buildings and structures, furniture and equipment; apparatus and equipment
of all other kinds and descriptions; materials and supplies; all municipal and
other franchises, leaseholds, licenses, permits, privileges, patents and patent
rights; all shares of stock, bonds, evidences of indebtedness, contracts,
claims, accounts receivable, choses in action and other intangibles, all books
of account and other corporate records;
Excluding, however, all merchandise and appliances heretofore or hereafter
acquired for the purpose of sale to customers and others;
All the estate, right, title, interest, and claim, whatsoever, at law as
well as in equity, which the Company now has or hereafter may acquire in and to
the aforesaid property and every part and parcel thereof subject, however, to
the right of the Company, until the happening of a completed default as defined
in Section 1 of Article XIII of the Original Indenture prior to the Effective
Date and upon the occurrence and continuation of a Completed Default as defined
in the Indenture on and after the Effective Date, to retain in its possession
all shares of stock, notes, evidences of indebtedness, other securities and cash
not expressly required by the provisions hereof to be deposited with the
Trustee, to retain in its possession all contracts, bills and accounts
receivable, motor cars, any stock of goods, wares and merchandise, equipment or
supplies acquired for the purpose of consumption in the operation, construction,
or repair of any of the properties of the Company, and to sell, exchange,
pledge, hypothecate, or otherwise dispose of any or all of such property so
retained in its possession free from the lien of the Indenture, without
permission or hindrance on the part of the Trustee, or any of the bondholders.
No person in any dealings with the Company in respect of any such property shall
be charged with any notice or knowledge of any such completed default (prior to
the Effective Date) or Completed Default (after the Effective Date) under the
Indenture while the Company is in possession of such property. Nothing contained
herein or in the Indenture shall be deemed or construed to require the deposit
with, or delivery to, the Trustee of any of such property, except such as is
specifically required to be deposited with the Trustee by some express provision
of the Indenture;
To have and to hold all said property, real, personal, and mixed, granted,
bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, or confirmed by the Company as aforesaid, or
intended so to be, to the Trustee and its successors and assigns forever,
subject, however, to permitted liens as defined in Section 5 of Article I of the
1937 Indenture prior to the Effective Date and to Permitted Encumbrances on and
after the Effective Date and to the further reservations, covenants, conditions,
uses, and trusts set forth in the Indenture; in trust nevertheless for the same
purposes and upon the same conditions as are set forth in the Indenture.
ARTICLE II.
PROVISIONS OF BONDS OF POLLUTION CONTROL SERIES M, N, O AND P
SECTION 2.01. There is hereby created, for issuance under the Indenture, a
series of bonds designated Pollution Control Series M, each of which shall bear
the descriptive title "First Mortgage Bonds, Pollution Control Series M" and the
form thereof shall contain suitable provisions with respect to the matters
specified in this section. The Bonds of Pollution Control Series M shall be
printed, lithographed or typewritten and shall be substantially of the tenor and
purport previously recited. The Bonds of Pollution Control Series M shall be
<PAGE>
10
issued as registered bonds without coupons in denominations of a multiple of
$5,000 and shall be registered in the name of the Series 1989-A Pollution
Control Trustee. The Bonds of Pollution Control Series M shall be dated as of
the date of their authentication.
The Bonds of Pollution Control Series M shall be payable, both as to
principal and interest, at the office of the Trustee in Chicago, Illinois, in
lawful money of the United States of America. The maturity of the obligation
represented by the Bonds of Pollution Control Series M is April 1, 2007. The
date of maturity of the obligation represented by the Bonds of Pollution Control
Series M is hereinafter referred to as the Series M Final Maturity Date. The
Bonds of Pollution Control Series M shall bear interest from the Series M
Initial Interest Accrual Date, as hereinafter defined, at the same rate or rates
then and thereafter from time to time borne by the Series 1989-A Pollution
Control Revenue Bonds.
SECTION 2.02. Except as provided in the next succeeding paragraph of this
Section 2.02, in the event of a default under Section 8.01 of the Series 1989-A
Agreement or in the event of a default in the payment of the principal of,
premium, if any, or interest on the Series 1989-A Pollution Control Revenue
Bonds, whether at maturity, by acceleration, by sinking fund, redemption or
otherwise, as and when the same becomes due, the Bonds of Pollution Control
Series M shall be redeemable in whole upon receipt by the Trustee of a written
demand (hereinafter called a "Series M Redemption Demand") from the Series
1989-A Pollution Control Trustee stating that there has been such a default,
stating that it is acting pursuant to the authorization granted by Section 8-3
of the Series 1989-A Pollution Control Indenture, specifying the last date to
which interest on the Series 1989-A Pollution Control Revenue Bonds has been
paid (such date being hereinafter referred to as the "Series M Initial Interest
Accrual Date") and demanding redemption of the Bonds of Pollution Control Series
M. The Trustee shall, within 10 days after receiving such Series M Redemption
Demand, mail a copy thereof to the Company marked to indicate the date of its
receipt by the Trustee. Promptly upon receipt by the Company of such copy of a
Series M Redemption Demand, the Company shall fix a date on which it will redeem
the Bonds of Pollution Control Series M so demanded to be redeemed (hereinafter
called the "Series M Demand Redemption Date"). Notice of the date fixed as the
Series M Demand Redemption Date shall be mailed by the Company to the Trustee at
least 30 days prior to such Series M Demand Redemption Date. The date to be
fixed by the Company as and for the Series M Demand Redemption Date may be any
date up to and including the earlier of (i) the 120th day after receipt by the
Trustee of the Series M Redemption Demand or (ii) the Series M Final Maturity
Date; PROVIDED that if the Trustee shall not have received such notice fixing
the Series M Demand Redemption Date within 90 days after receipt by it of the
Series M Redemption Demand, the Series M Demand Redemption Date shall be deemed
to be the earlier of (i) the 120th day after receipt by the Trustee of the
Series M Redemption Demand or (ii) the Series M Final Maturity Date. The Trustee
shall mail notice of the Series M Demand Redemption Date (such notice being
hereinafter called the "Series M Demand Redemption Notice") to the Series 1989-A
Pollution Control Trustee not more than 10 nor less than five days prior to the
Series M Demand Redemption Date. Notwithstanding the foregoing, if a default to
which this paragraph is applicable is existing on the Series M Final Maturity
Date, such date shall be deemed to be the Series 1989-A Demand Redemption Date
without further action (including actions specified in this paragraph) by the
Series 1989-A Pollution Control Trustee, the Trustee or the Company. The Bonds
of Pollution Control Series M shall be redeemed by the Company on the Series M
Demand Redemption Date, upon surrender thereof by the Series 1989-A Pollution
Control Trustee to the Trustee, at a redemption price equal to the principal
amount thereof, plus accrued interest thereon at the rate per annum set forth in
Section 2.01 hereof, from the Series M Initial Interest Accrual Date to the
Series M Demand Redemption Date. If a Series M Redemption Demand is rescinded by
the Series 1989-A Pollution Control Trustee by written notice to the Trustee
prior to the Series M Demand Redemption Date, no Series M Demand Redemption
Notice shall be given, or, if already given, shall be automatically annulled,
and interest on the Bonds of Pollution Control Series M shall cease to accrue,
all interest accrued thereon shall be automatically rescinded and cancelled and
the Company shall not be obligated to make any payments of principal of or
interest on the Bonds of Pollution Control Series M; but no such rescission
shall extend to or affect any subsequent default or impair any right consequent
thereon.
<PAGE>
11
In the event that all of the bonds outstanding under the Indenture shall
have become immediately due and payable, whether by declaration or otherwise,
and such acceleration shall not have been annulled, the Bonds of Pollution
Control Series M shall bear interest at the rate per annum set forth in Section
2.01 hereof, from the Series M Initial Interest Accrual Date, as specified in a
written notice to the Trustee from the Series 1989-A Pollution Control Trustee,
and the principal of and interest on the Bonds of Pollution Control Series M
from the Series M Initial Interest Accrual Date shall be payable in accordance
with the provisions of the Indenture.
Anything herein contained to the contrary notwithstanding, the Trustee is
not authorized to take any action pursuant to a Series M Redemption Demand or a
rescission thereof or a written notice required by this Section 2.02, and such
Series M Redemption Demand, rescission or notice shall be of no force or effect,
unless it is executed in the name of the Series 1989-A Pollution Control Trustee
by one of its Vice Presidents.
SECTION 2.03. Upon payment of the principal of and premium, if any, and
interest on the Series 1989-A Pollution Control Revenue Bonds, whether at
maturity or prior to maturity by redemption or otherwise, and the surrender
thereof to and cancellation thereof by the Series 1989-A Pollution Control
Trustee (other than any Series 1989-A Pollution Control Revenue Bond that was
cancelled by the Series 1989-A Pollution Control Trustee and for which one or
more other Series 1989-A Pollution Control Revenue Bonds were delivered and
authenticated pursuant to the Series 1989-A Pollution Control Indenture), or
upon provision for the payment thereof having been made in accordance with the
Series 1989-A Pollution Control Indenture, Bonds of Pollution Control Series M
in a principal amount equal to the principal amount of the Series 1989-A
Pollution Control Revenue Bonds so surrendered and cancelled or for the
provision for which payment has been made shall be deemed fully paid and the
obligations of the Company thereunder shall be terminated, and such Bonds of
Pollution Control Series M shall be surrendered by the Series 1989-A Pollution
Control Trustee to the Trustee and shall be cancelled and destroyed by the
Trustee, and a certificate of such cancellation and destruction shall be
delivered to the Company.
SECTION 2.04. There is hereby created, for issuance under the Indenture, a
series of bonds designated Pollution Control Series N, each of which shall bear
the descriptive title "First Mortgage Bonds, Pollution Control Series N" and the
form thereof shall contain suitable provisions with respect to the matters
specified in this section. The Bonds of Pollution Control Series N shall be
printed, lithographed or typewritten and shall be substantially of the tenor and
purport previously recited. The Bonds of Pollution Control Series N shall be
issued as registered bonds without coupons in denominations of a multiple of
$5,000 and shall be registered in the name of the Series 1992-A Pollution
Control Trustee. The Bonds of Pollution Control Series N shall be dated as of
the date of their authentication.
The Bonds of Pollution Control Series N shall be payable, both as to
principal and interest, at the office of the Trustee in Chicago, Illinois, in
lawful money of the United States of America. The maturity of the obligation
represented by the Bonds of Pollution Control Series N is March 1, 2019. The
date of maturity of the obligation represented by the Bonds of Pollution Control
Series N is hereinafter referred to as the Series N Final Maturity Date. The
Bonds of Pollution Control Series N shall bear interest from the Series N
Initial Interest Accrual Date, as hereinafter defined, at the same rate or rates
then and thereafter from time to time borne by the Series 1992-A Pollution
Control Revenue Bonds.
SECTION 2.05. Except as provided in the next succeeding paragraph of this
Section 2.05, in the event of a default under Section 8.01 of the Series 1992-A
Agreement or in the event of a default in the payment of the principal of,
premium, if any, or interest (and such default in the payment of interest
continues for the full grace period, if any, permitted by the Series 1992-A
Pollution Control Indenture and the Series 1992-A Pollution Control Revenue
Bonds) on the Series 1992-A Pollution Control Revenue Bonds, whether at
maturity, by acceleration, by sinking fund, redemption or otherwise, as and when
the same becomes due, the Bonds of Pollution Control Series N shall be
redeemable in whole upon receipt by the Trustee of a written demand (hereinafter
called a "Series N Redemption Demand") from the Series 1992-A Pollution Control
Trustee stating that there has been such a default, stating that it is acting
pursuant to the authorization granted by Section 8.03 of the Series 1992-A
Pollution Control Indenture, specifying the last date to which interest on the
Series 1992-A Pollution Control Revenue Bonds has been paid (such date being
hereinafter referred to as the "Series N Initial
<PAGE>
12
Interest Accrual Date") and demanding redemption of the Bonds of Pollution
Control Series N. The Trustee shall, within 10 days after receiving such Series
N Redemption Demand, mail a copy thereof to the Company marked to indicate the
date of its receipt by the Trustee. Promptly upon receipt by the Company of such
copy of a Series N Redemption Demand, the Company shall fix a date on which it
will redeem the Bonds of Pollution Control Series N so demanded to be redeemed
(hereinafter called the "Series N Demand Redemption Date"). Notice of the date
fixed as the Series N Demand Redemption Date shall be mailed by the Company to
the Trustee at least 30 days prior to such Series N Demand Redemption Date. The
date to be fixed by the Company as and for the Series N Demand Redemption Date
may be any date up to and including the earlier of (i) the 120th day after
receipt by the Trustee of the Series N Redemption Demand or (ii) the Series N
Final Maturity Date; PROVIDED that if the Trustee shall not have received such
notice fixing the Series N Demand Redemption Date within 90 days after receipt
by it of the Series N Redemption Demand, the Series N Demand Redemption Date
shall be deemed to be the earlier of (i) the 120th day after receipt by the
Trustee of the Series N Redemption Demand or (ii) the Series N Final Maturity
Date. The Trustee shall mail notice of the Series N Demand Redemption Date (such
notice being hereinafter called the "Series N Demand Redemption Notice") to the
Series 1992-A Pollution Control Trustee not more than 10 nor less than five days
prior to the Series N Demand Redemption Date. Notwithstanding the foregoing, if
a default to which this paragraph is applicable is existing on the Series N
Final Maturity Date, such date shall be deemed to be the Series 1992-A Demand
Redemption Date without further action (including actions specified in this
paragraph) by the Series 1992-A Pollution Control Trustee, the Trustee or the
Company. The Bonds of Pollution Control Series N shall be redeemed by the
Company on the Series N Demand Redemption Date, upon surrender thereof by the
Series 1992-A Pollution Control Trustee to the Trustee, at a redemption price
equal to the principal amount thereof, plus accrued interest thereon at the rate
per annum set forth in Section 2.04 hereof, from the Series N Initial Interest
Accrual Date to the Series M Demand Redemption Date. If a Series N Redemption
Demand is rescinded by the Series 1992-A Pollution Control Trustee by written
notice to the Trustee prior to the Series N Demand Redemption Date, no Series N
Demand Redemption Notice shall be given, or, if already given, shall be
automatically annulled, and interest on the Bonds of Pollution Control Series N
shall cease to accrue, all interest accrued thereon shall be automatically
rescinded and cancelled and the Company shall not be obligated to make any
payments of principal of or interest on the Bonds of Pollution Control Series N;
but no such rescission shall extend to or affect any subsequent default or
impair any right consequent thereon.
In the event that all of the bonds outstanding under the Indenture shall
have become immediately due and payable, whether by declaration or otherwise,
and such acceleration shall not have been annulled, the Bonds of Pollution
Control Series N shall bear interest at the rate per annum set forth in Section
2.04 hereof, from the Series N Initial Interest Accrual Date, as specified in a
written notice to the Trustee from the Series 1992-A Pollution Control Trustee,
and the principal of and interest on the Bonds of Pollution Control Series N
from the Series N Initial Interest Accrual Date shall be payable in accordance
with the provisions of the Indenture.
Anything herein contained to the contrary notwithstanding, the Trustee is
not authorized to take any action pursuant to a Series N Redemption Demand or a
rescission thereof or a written notice required by this Section 2.05, and such
Series N Redemption Demand, rescission or notice shall be of no force or effect,
unless it is executed in the name of the Series 1992-A Pollution Control Trustee
by one of its Vice Presidents.
SECTION 2.06. Upon payment of the principal of and premium, if any, and
interest on the Series 1992-A Pollution Control Revenue Bonds, whether at
maturity or prior to maturity by redemption or otherwise, and the surrender
thereof to and cancellation thereof by the Series 1992-A Pollution Control
Trustee (other than any Series 1992-A Pollution Control Revenue Bond that was
cancelled by the Series 1992-A Pollution Control Trustee and for which one or
more other Series 1992-A Pollution Control Revenue Bonds were delivered and
authenticated pursuant to the Series 1992-A Pollution Control Indenture), or
upon provision for the payment thereof having been made in accordance with the
Series 1992-A Pollution Control Indenture, Bonds of Pollution Control Series N
in a principal amount equal to the principal amount of the Series 1992-A
Pollution Control Revenue Bonds so surrendered and cancelled or for the
provision for which payment has been made shall be deemed fully paid and the
obligations of the Company thereunder shall be terminated, and such Bonds of
<PAGE>
13
Pollution Control Series N shall be surrendered by the Series 1992-A Pollution
Control Trustee to the Trustee and shall be cancelled and destroyed by the
Trustee, and a certificate of such cancellation and destruction shall be
delivered to the Company.
SECTION 2.07. There is hereby created, for issuance under the Indenture, a
series of bonds designated Pollution Control Series O, each of which shall bear
the descriptive title "First Mortgage Bonds, Pollution Control Series O" and the
form thereof shall contain suitable provisions with respect to the matters
specified in this section. The Bonds of Pollution Control Series O shall be
printed, lithographed or typewritten and shall be substantially of the tenor and
purport previously recited. The Bonds of Pollution Control Series O shall be
issued as registered bonds without coupons in denominations of a multiple of
$5,000 and shall be registered in the name of the Series 1993-A Pollution
Control Trustee. The Bonds of Pollution Control Series O shall be dated as of
the date of their authentication.
The Bonds of Pollution Control Series O shall be payable, both as to
principal and interest, at the office of the Trustee in Chicago, Illinois, in
lawful money of the United States of America. The maturity of the obligation
represented by the Bonds of Pollution Control Series O is September 1, 2019. The
date of maturity of the obligation represented by the Bonds of Pollution Control
Series O is hereinafter referred to as the Series O Final Maturity Date. The
Bonds of Pollution Control Series O shall bear interest from the Series O
Initial Interest Accrual Date, as hereinafter defined, at the same rate or rates
then and thereafter from time to time borne by the Series 1993-A Pollution
Control Revenue Bonds.
SECTION 2.08. Except as provided in the next succeeding paragraph of this
Section 2.08, in the event of a default under Section 8.01 of the Series 1993-A
Agreement or in the event of a default in the payment of the principal of,
premium, if any, or interest (and such default in the payment of interest
continues for the full grace period, if any, permitted by the Series 1993-A
Pollution Control Indenture and the Series 1993-A Pollution Control Revenue
Bonds) on the Series 1993-A Pollution Control Revenue Bonds, whether at
maturity, by acceleration, by sinking fund, redemption or otherwise, as and when
the same becomes due, the Bonds of Pollution Control Series O shall be
redeemable in whole upon receipt by the Trustee of a written demand (hereinafter
called a "Series O Redemption Demand") from the Series 1993-A Pollution Control
Trustee stating that there has been such a default, stating that it is acting
pursuant to the authorization granted by Section 8.03 of the Series 1993-A
Pollution Control Indenture, specifying the last date to which interest on the
Series 1993-A Pollution Control Revenue Bonds has been paid (such date being
hereinafter referred to as the "Series O Initial Interest Accrual Date") and
demanding redemption of the Bonds of Pollution Control Series O. The Trustee
shall, within 10 days after receiving such Series O Redemption Demand, mail a
copy thereof to the Company marked to indicate the date of its receipt by the
Trustee. Promptly upon receipt by the Company of such copy of a Series O
Redemption Demand, the Company shall fix a date on which it will redeem the
Bonds of Pollution Control Series O so demanded to be redeemed (hereinafter
called the "Series O Demand Redemption Date"). Notice of the date fixed as the
Series O Demand Redemption Date shall be mailed by the Company to the Trustee at
least 30 days prior to such Series O Demand Redemption Date. The date to be
fixed by the Company as and for the Series O Demand Redemption Date may be any
date up to and including the earlier of (i) the 120th day after receipt by the
Trustee of the Series O Redemption Demand or (ii) the Series O Final Maturity
Date; PROVIDED that if the Trustee shall not have received such notice fixing
the Series O Demand Redemption Date within 90 days after receipt by it of the
Series O Redemption Demand, the Series O Demand Redemption Date shall be deemed
to be the earlier of (i) the 120th day after receipt by the Trustee of the
Series O Redemption Demand or (ii) the Series O Final Maturity Date. The Trustee
shall mail notice of the Series O Demand Redemption Date (such notice being
hereinafter called the "Series O Demand Redemption Notice") to the Series 1993-A
Pollution Control Trustee not more than 10 nor less than five days prior to the
Series O Demand Redemption Date. Notwithstanding the foregoing, if a default to
which this paragraph is applicable is existing on the Series O Final Maturity
Date, such date shall be deemed to be the Series 1993-A Demand Redemption Date
without further action (including actions specified in this paragraph) by the
Series 1993-A Pollution Control Trustee, the Trustee or the Company. The Bonds
of Pollution Control Series O shall be redeemed by the Company on the Series O
Demand Redemption Date, upon surrender thereof by the Series 1993-A Pollution
Control Trustee to the Trustee, at a redemption price equal to the principal
amount
<PAGE>
14
thereof, plus accrued interest thereon at the rate per annum set forth in
Section 2.07 hereof, from the Series O Initial Interest Accrual Date to the
Series O Demand Redemption Date. If a Series O Redemption Demand is rescinded by
the Series 1993-A Pollution Control Trustee by written notice to the Trustee
prior to the Series O Demand Redemption Date, no Series O Demand Redemption
Notice shall be given, or, if already given, shall be automatically annulled,
and interest on the Bonds of Pollution Control Series O shall cease to accrue,
all interest accrued thereon shall be automatically rescinded and cancelled and
the Company shall not be obligated to make any payments of principal of or
interest on the Bonds of Pollution Control Series O; but no such rescission
shall extend to or affect any subsequent default or impair any right consequent
thereon.
In the event that all of the bonds outstanding under the Indenture shall
have become immediately due and payable, whether by declaration or otherwise,
and such acceleration shall not have been annulled, the Bonds of Pollution
Control Series O shall bear interest at the rate per annum set forth in Section
2.07 hereof, from the Series O Initial Interest Accrual Date, as specified in a
written notice to the Trustee from the Series 1993-A Pollution Control Trustee,
and the principal of and interest on the Bonds of Pollution Control Series O
from the Series O Initial Interest Accrual Date shall be payable in accordance
with the provisions of the Indenture.
Anything herein contained to the contrary notwithstanding, the Trustee is
not authorized to take any action pursuant to a Series O Redemption Demand or a
rescission thereof or a written notice required by this Section 2.08, and such
Series O Redemption Demand, rescission or notice shall be of no force or effect,
unless it is executed in the name of the Series 1993-A Pollution Control Trustee
by one of its Vice Presidents.
SECTION 2.09. Upon payment of the principal of and premium, if any, and
interest on the Series 1993-A Pollution Control Revenue Bonds, whether at
maturity or prior to maturity by redemption or otherwise, and the surrender
thereof to and cancellation thereof by the Series 1993-A Pollution Control
Trustee (other than any Series 1993-A Pollution Control Revenue Bond that was
cancelled by the Series 1993-A Pollution Control Trustee and for which one or
more other Series 1993-A Pollution Control Revenue Bonds were delivered and
authenticated pursuant to the Series 1993-A Pollution Control Indenture), or
upon provision for the payment thereof having been made in accordance with the
Series 1993-A Pollution Control Indenture, Bonds of Pollution Control Series O
in a principal amount equal to the principal amount of the Series 1993-A
Pollution Control Revenue Bonds so surrendered and cancelled or for the
provision for which payment has been made shall be deemed fully paid and the
obligations of the Company thereunder shall be terminated, and such Bonds of
Pollution Control Series O shall be surrendered by the Series 1993-A Pollution
Control Trustee to the Trustee and shall be cancelled and destroyed by the
Trustee, and a certificate of such cancellation and destruction shall be
delivered to the Company.
SECTION 2.10. There is hereby created, for issuance under the Indenture, a
series of bonds designated Pollution Control Series P, each of which shall bear
the descriptive title "First Mortgage Bonds, Pollution Control Series P" and the
form thereof shall contain suitable provisions with respect to the matters
specified in this section. The Bonds of Pollution Control Series P shall be
printed, lithographed or typewritten and shall be substantially of the tenor and
purport previously recited. The Bonds of Pollution Control Series P shall be
issued as registered bonds without coupons in denominations of a multiple of
$5,000 and shall be registered in the name of the Series 1993-B Pollution
Control Trustee. The Bonds of Pollution Control Series P shall be dated as of
the date of their authentication.
The Bonds of Pollution Control Series P shall be payable, both as to
principal and interest, at the office of the Trustee in Chicago, Illinois, in
lawful money of the United States of America. The maturity of the obligation
represented by the Bonds of Pollution Control Series P is September 1, 2019. The
date of maturity of the obligation represented by the Bonds of Pollution Control
Series P is hereinafter referred to as the Series P Final Maturity Date. The
Bonds of Pollution Control Series P shall bear interest from the Series P
Initial Interest Accrual Date, as hereinafter defined, at the same rate or rates
then and thereafter from time to time borne by the Series 1993-B Pollution
Control Revenue Bonds.
SECTION 2.11. Except as provided in the next succeeding paragraph of this
Section 2.11, in the event of a default under Section 8.01 of the Series 1993-B
Agreement or in the event of a default in the payment of the principal of,
premium, if any, or interest (and such default in the payment of interest
continues for the full grace
<PAGE>
15
period, if any, permitted by the Series 1993-B Pollution Control Indenture and
the Series 1993-B Pollution Control Revenue Bonds) on the Series 1993-B
Pollution Control Revenue Bonds, whether at maturity, by acceleration, by
sinking fund, redemption or otherwise, as and when the same becomes due, the
Bonds of Pollution Control Series P shall be redeemable in whole upon receipt by
the Trustee of a written demand (hereinafter called a "Series P Redemption
Demand") from the Series 1993-B Pollution Control Trustee stating that there has
been such a default, stating that it is acting pursuant to the authorization
granted by Section 8.03 of the Series 1993-B Pollution Control Indenture,
specifying the last date to which interest on the Series 1993-B Pollution
Control Revenue Bonds has been paid (such date being hereinafter referred to as
the "Series P Initial Interest Accrual Date") and demanding redemption of the
Bonds of Pollution Control Series P. The Trustee shall, within 10 days after
receiving such Series P Redemption Demand, mail a copy thereof to the Company
marked to indicate the date of its receipt by the Trustee. Promptly upon receipt
by the Company of such copy of a Series P Redemption Demand, the Company shall
fix a date on which it will redeem the Bonds of Pollution Control Series P so
demanded to be redeemed (hereinafter called the "Series P Demand Redemption
Date"). Notice of the date fixed as the Series P Demand Redemption Date shall be
mailed by the Company to the Trustee at least 30 days prior to such Series P
Demand Redemption Date. The date to be fixed by the Company as and for the
Series P Demand Redemption Date may be any date up to and including the earlier
of (i) the 120th day after receipt by the Trustee of the Series P Redemption
Demand or (ii) the Series P Final Maturity Date; PROVIDED that if the Trustee
shall not have received such notice fixing the Series P Demand Redemption Date
within 90 days after receipt by it of the Series P Redemption Demand, the Series
P Demand Redemption Date shall be deemed to be the earlier of (i) the 120th day
after receipt by the Trustee of the Series P Redemption Demand or (ii) the
Series P Final Maturity Date. The Trustee shall mail notice of the Series P
Demand Redemption Date (such notice being hereinafter called the "Series P
Demand Redemption Notice") to the Series 1993-B Pollution Control Trustee not
more than 10 nor less than five days prior to the Series P Demand Redemption
Date. Notwithstanding the foregoing, if a default to which this paragraph is
applicable is existing on the Series P Final Maturity Date, such date shall be
deemed to be the Series 1993-B Demand Redemption Date without further action
(including actions specified in this paragraph) by the Series 1993-B Pollution
Control Trustee, the Trustee or the Company. The Bonds of Pollution Control
Series P shall be redeemed by the Company on the Series P Demand Redemption
Date, upon surrender thereof by the Series 1993-B Pollution Control Trustee to
the Trustee, at a redemption price equal to the principal amount thereof, plus
accrued interest thereon at the rate per annum set forth in Section 2.10 hereof,
from the Series P Initial Interest Accrual Date to the Series P Demand
Redemption Date. If a Series P Redemption Demand is rescinded by the Series
1993-B Pollution Control Trustee by written notice to the Trustee prior to the
Series P Demand Redemption Date, no Series P Demand Redemption Notice shall be
given, or, if already given, shall be automatically annulled, and interest on
the Bonds of Pollution Control Series P shall cease to accrue, all interest
accrued thereon shall be automatically rescinded and cancelled and the Company
shall not be obligated to make any payments of principal of or interest on the
Bonds of Pollution Control Series P; but no such rescission shall extend to or
affect any subsequent default or impair any right consequent thereon.
In the event that all of the bonds outstanding under the Indenture shall
have become immediately due and payable, whether by declaration or otherwise,
and such acceleration shall not have been annulled, the Bonds of Pollution
Control Series P shall bear interest at the rate per annum set forth in Section
2.10 hereof, from the Series P Initial Interest Accrual Date, as specified in a
written notice to the Trustee from the Series 1993-B Pollution Control Trustee,
and the principal of and interest on the Bonds of Pollution Control Series P
from the Series P Initial Interest Accrual Date shall be payable in accordance
with the provisions of the Indenture.
Anything herein contained to the contrary notwithstanding, the Trustee is
not authorized to take any action pursuant to a Series P Redemption Demand or a
rescission thereof or a written notice required by this Section 2.11, and such
Series P Redemption Demand, rescission or notice shall be of no force or effect,
unless it is executed in the name of the Series 1993-B Pollution Control Trustee
by one of its Vice Presidents.
SECTION 2.12 Upon payment of the principal of and premium, if any, and
interest on the Series 1993-B Pollution Control Revenue Bonds, whether at
maturity or prior to maturity by redemption or otherwise, and the surrender
thereof to and cancellation thereof by the Series 1993-B Pollution Control
Trustee (other than any
<PAGE>
16
Series 1993-B Pollution Control Revenue Bond that was cancelled by the Series
1993-B Pollution Control Trustee and for which one or more other Series 1993-B
Pollution Control Revenue Bonds were delivered and authenticated pursuant to the
Series 1993-B Pollution Control Indenture), or upon provision for the payment
thereof having been made in accordance with the Series 1993-B Pollution Control
Indenture, Bonds of Pollution Control Series P in a principal amount equal to
the principal amount of the Series 1993-B Pollution Control Revenue Bonds so
surrendered and cancelled or for the provision for which payment has been made
shall be deemed fully paid and the obligations of the Company thereunder shall
be terminated, and such Bonds of Pollution Control Series P shall be surrendered
by the Series 1993-B Pollution Control Trustee to the Trustee and shall be
cancelled and destroyed by the Trustee, and a certificate of such cancellation
and destruction shall be delivered to the Company.
SECTION 2.13 The Series 1989-A Pollution Control Trustee, the Series 1992-A
Pollution Control Trustee, the Series 1993-A Pollution Control Trustee and the
Series 1993-B Pollution Control Trustee as the registered holder of the Bonds of
Pollution Control Series M, Bonds of Pollution Control Series N, Bonds of
Pollution Control Series O and Bonds of Pollution Control Series P,
respectively, at its option may surrender the same at the office of the Trustee,
in Chicago, Illinois, or elsewhere, if authorized by the Company, for
cancellation, in exchange for other bonds of the same series of the same
aggregate principal amount. Thereupon, and upon receipt of any payment required
under the provisions of Section 2.14 hereof, the Company shall execute and
deliver to the Trustee and the Trustee shall authenticate and deliver such other
registered bonds to such registered holder at its office or at any other place
specified as aforesaid.
SECTION 2.14 No charge shall be made by the Company for any exchange or
transfer of Bonds of Pollution Control Series M, Bonds of Pollution Control
Series N, Bonds of Pollution Control Series O or Bonds of Pollution Control
Series P other than for taxes or other governmental charges, if any, that may be
imposed in relation thereto.
<PAGE>
17
ARTICLE III.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE
SECTION 3.01 The name and address of the debtor and secured party are set
forth below:
Debtor: Northern States Power Company
414 Nicollet Mall
Minneapolis, Minnesota 55401
Secured Party: Harris Trust and Savings Bank, Trustee
111 West Monroe Street
Chicago, Illinois 60603
NOTE: Northern States Power Company, the debtor above named, is "a
transmitting utility" under the Uniform Commercial Code as adopted in Minnesota,
North Dakota and South Dakota.
SECTION 3.02 Reference to Article I hereof is made for a description of the
property of the debtor covered by this Financing Statement with the same force
and effect as if incorporated in this Section at length.
SECTION 3.03 The maturity dates and respective principal amounts of
obligations of the debtor secured and presently to be secured by the Indenture,
reference to all of which for the terms and conditions thereof is hereby made
with the same force and effect as if incorporated herein at length, are as
follows:
<TABLE>
<CAPTION>
FIRST MORTGAGE BONDS PRINCIPAL AMOUNT
- ---------------------------------------------------------------------------- ----------------
<S> <C>
Series due October 1, 1997.................................................. $ 100,000,000
Series due February 1, 1999................................................. $ 200,000,000
Series due October 1, 2001.................................................. $ 150,000,000
Series due December 1, 2000................................................. $ 100,000,000
Series due March 1, 2002.................................................... $ 50,000,000
Series due February 1, 2003................................................. $ 50,000,000
Series due April 1, 2003.................................................... $ 80,000,000
Series due December 1, 2005................................................. $ 70,000,000
Resource Recovery Series I.................................................. $ 19,800,000
Pollution Control Series J.................................................. $ 5,450,000
Pollution Control Series K.................................................. $ 3,400,000
Pollution Control Series L.................................................. $ 4,850,000
Series due July 1, 2025..................................................... $ 250,000,000
Pollution Control Series M.................................................. $ 60,000,000
Pollution Control Series N.................................................. $ 27,900,000
Pollution Control Series O.................................................. $ 50,000,000
Pollution Control Series P.................................................. $ 50,000,000
</TABLE>
SECTION 3.04 This Financing Statement is hereby adopted for all of the First
Mortgage Bonds of the series mentioned above secured by said Indenture.
SECTION 3.05 The 1937 Indenture and the prior Supplemental Trust Indentures,
as set forth below, have been filed or recorded in each and every office in the
States of Minnesota, North Dakota, and South Dakota designated by law for the
filing or recording thereof in respect of all property of the Company subject
thereto:
Original Indenture
Dated February 1, 1937
Supplemental Indenture
Dated June 1, 1942
Supplemental Indenture
Dated February 1, 1944
Supplemental Indenture
Dated June 1, 1952
Supplemental Indenture
Dated October 1, 1954
Supplemental Indenture
Dated September 1, 1956
<PAGE>
18
Supplemental Indenture
Dated August 1, 1957
Supplemental Indenture
Dated July 1, 1958
Supplemental Indenture
Dated December 1, 1960
Supplemental Indenture
Dated August 1, 1961
Supplemental Indenture
Dated June 1, 1962
Supplemental Indenture
Dated September 1, 1963
Supplemental Indenture
Dated August 1, 1966
Supplemental Indenture
Dated June 1, 1967
Supplemental Indenture
Dated October 1, 1967
Supplemental Indenture
Dated May 1, 1968
Supplemental Indenture
Dated October 1, 1945
Supplemental Indenture
Dated July 1, 1948
Supplemental Indenture
Dated August 1, 1949
Supplemental Indenture
Dated April 1, 1975
Supplemental Indenture
Dated May 1, 1975
Supplemental Indenture
Dated March 1, 1976
Supplemental Indenture
Dated June 1, 1981
Supplemental Indenture
Dated December 1, 1981
Supplemental Indenture
Dated May 1, 1983
Supplemental Indenture
Dated December 1, 1983
Supplemental Indenture
Dated September 1, 1984
Supplemental Indenture
Dated December 1, 1984
Supplemental Indenture
Dated May 1, 1985
Supplemental Indenture
Dated September 1, 1985
Supplemental Indenture
Dated May 1, 1988
Supplemental Indenture
Dated July 1, 1989
Supplemental Indenture
Dated October 1, 1969
Supplemental Indenture
Dated February 1, 1971
Supplemental Indenture
Dated May 1, 1971
Supplemental Indenture
Dated February 1, 1972
Supplemental Indenture
Dated January 1, 1973
Supplemental Indenture
Dated January 1, 1974
Supplemental Indenture
Dated September 1, 1974
Supplemental Indenture
Dated June 1, 1990
Supplemental Indenture
Dated October 1, 1992
Supplemental Indenture
Dated April 1, 1993
Supplemental Indenture
Dated December 1, 1993
Supplemental Indenture
Dated February 1, 1994
Supplemental Indenture
Dated October 1, 1994
Supplemental Indenture
Dated June 1, 1995
SECTION 3.06 The property covered by this Financing Statement also shall
secure additional series of First Mortgage Bonds of the debtor which may be
issued from time to time in the future in accordance with the provisions of the
Indenture.
<PAGE>
19
ARTICLE IV.
AMENDMENTS TO INDENTURE
SECTION 4.01 Each holder or registered owner of a bond of any series
originally authenticated by the Trustee and originally issued by the Company
subsequent to May 1, 1985 and of any coupon pertaining to any such bond, by the
acquisition, holding or ownership of such bond and coupon, thereby consents and
agrees to, and shall be bound by, the provisions of Article VI of the
Supplemental Trust Indenture dated May 1, 1985. Each holder or registered owner
of a bond of any series (including Bonds of Pollution Control Series M, Bonds of
Pollution Control Series N, Bonds of Pollution Control Series O and Bonds of
Pollution Control Series P) originally authenticated by the Trustee and
originally issued by the Company subsequent to May 1, 1988 and of any coupon
pertaining to such bond, by the acquisition, holding or ownership of such bond
and coupon, thereby consents and agrees to, and shall be bound by, the
provisions of the Supplemental and Restated Trust Indenture dated May 1, 1988
upon the Effective Date.
ARTICLE V.
MISCELLANEOUS
SECTION 5.01 The recitals of fact herein, except the recital that the
Trustee has duly determined to execute this Supplemental Trust Indenture and be
bound, insofar as it may lawfully so do, by the provisions hereof and in the
bonds shall be taken as statements of the Company and shall not be construed as
made by the Trustee. The Trustee makes no representations as to the value of any
of the property subject to the lien of the Indenture, or any part thereof, or as
to the title of the Company thereto, or as to the security afforded thereby and
hereby, or as to the validity of this Supplemental Trust Indenture or of the
bonds issued under the Indenture by virtue hereof (except the Trustee's
certificate) and the Trustee shall incur no responsibility in respect of such
matters.
SECTION 5.02 This Supplemental Trust Indenture shall be construed in
connection with and as a part of the 1937 Indenture, as supplemented by the
Supplemental Trust Indentures dated June 1, 1942, February 1, 1944, October 1,
1945, July 1, 1948, August 1, 1949, June 1, 1952, October 1, 1954, September 1,
1956, August 1, 1957, July 1, 1958, December 1, 1960, August 1, 1961, June 1,
1962, September 1, 1963, August 1, 1966, June 1, 1967, October 1, 1967, May 1,
1968, October 1, 1969, February 1, 1971, May 1, 1971, February 1, 1972, January
1, 1973, January 1, 1974, September 1, 1974, April 1, 1975, May 1, 1975, March
1, 1976, June 1, 1981, December 1, 1981, May 1, 1983, December 1, 1983,
September 1, 1984, December 1, 1984, May 1, 1985, September 1, 1985, the
Supplemental and Restated Trust Indenture dated May 1, 1988 and the Supplemental
Trust Indentures dated July 1, 1989, June 1, 1990, October 1, 1992, April 1,
1993, December 1, 1993, February 1, 1994, October 1, 1994, June 1, 1995 and
April 1, 1997.
SECTION 5.03 (a) If any provision of this Supplemental Trust Indenture
limits, qualifies or conflicts with another provision of the Indenture required
to be included in indentures qualified under the Trust Indenture Act of 1939, as
amended (as enacted prior to the date of this Supplemental Trust Indenture) by
any of the provisions of Sections 310 to 317, inclusive, of the said Act, such
required provision shall control.
(b) In case any one or more of the provisions contained in this Supplemental
Indenture or in the bonds issued hereunder shall be invalid, illegal, or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected, impaired, prejudiced or disturbed thereby.
SECTION 5.04 Wherever in this Supplemental Trust Indenture the word
"Indenture" is used without either prefix, "1937", "Original" or "Supplemental",
such word was used intentionally to include in its meaning both the 1937
Indenture and all indentures supplemental thereto.
SECTION 5.05 Wherever in this Supplemental Trust Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and
<PAGE>
20
agreements in this Supplemental Trust Indenture contained by or on behalf of the
Company or by or on behalf of the Trustee shall bind and inure to the benefit of
the respective successors and assigns of such parties, whether so expressed or
not.
SECTION 5.06 (a) This Supplemental Trust Indenture may be simultaneously
executed in several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Trust Indenture were formulated, used and inserted
in this Supplemental Trust Indenture for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
--------------
The amount of obligations to be issued forthwith under the Indenture is
$187,900,000.
--------------
<PAGE>
21
IN WITNESS WHEREOF, on this 10th day of April, A.D. 1997, NORTHERN STATES
POWER COMPANY, a Minnesota corporation, party of the first part, has caused its
corporate name and seal to be hereunto affixed and this Supplemental Trust
Indenture dated April 1, 1997, to be signed by its President or a Vice
President, and attested by its Secretary or an Assistant Secretary, for and in
its behalf, and HARRIS TRUST AND SAVINGS BANK, an Illinois corporation, as
Trustee, party of the second part, to evidence its acceptance of the trust
hereby created, has caused its corporate name and seal to be hereunto affixed,
and this Supplemental Trust Indenture dated April 1, 1997, to be signed by its
President, a Vice President, or an Assistant Vice President, and attested by its
Secretary or an Assistant Secretary, for and in its behalf.
<TABLE>
<S> <C>
NORTHERN STATES POWER COMPANY
BY: EDWARD J. MCINTYRE, VICE PRESIDENT
Attest:
(CORPORATE SEAL)
GARY R. JOHNSON, SECRETARY
Executed by Northern States
Power Company in the presence of:
MARY SCHELL, WITNESS
DEAN SCHAFER, WITNESS
HARRIS TRUST AND SAVINGS BANK,
as Trustee
BY: J. BARTOLINI, VICE PRESIDENT
Attest:
(CORPORATE SEAL)
D.G. DONOVAN, ASSISTANT SECRETARY
Executed by Harris Trust and Savings
Bank in the presence of:
K. RICHARDSON, WITNESS
R. JOHNSON, WITNESS
</TABLE>
<PAGE>
22
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
On this 10th day of April A.D. 1997, before me, FAYE WAHLSTRAND, a Notary
Public in and for said County in the State aforesaid, personally appeared Edward
J. McIntyre, and Gary R. Johnson, to me personally known, and to me known to be
the Vice President and Secretary, respectively, of Northern States Power
Company, one of the corporations described in and which executed the within and
foregoing instrument, and who, being by me severally duly sworn, each for
himself, did say that he, the said Edward J. McIntyre is a Vice President, and
he, the said Gary R. Johnson is the Secretary, of said Northern States Power
Company, a corporation; that the seal affixed to the within and foregoing
instrument is the corporate seal of said corporation, and that said instrument
was executed on behalf of said corporation by authority of its stockholders and
board of directors; and said Edward J. McIntyre and Gary R. Johnson each
acknowledged said instrument to be the free act and deed of said corporation and
that such corporation executed the same.
WITNESS my hand and notarial seal, this 10th day of April, A.D. 1997.
FAYE WAHLSTRAND
NOTARY PUBLIC IN HENNEPIN COUNTY, MINNESOTA.
MY COMMISSION EXPIRES JANUARY 31, 2000
(NOTARY SEAL)
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
Edward J. McIntyre and Gary R. Johnson, being severally duly sworn, each
deposes and says that he, the said Edward J. McIntyre is Vice President, and he,
the said Gary R. Johnson is Secretary, of Northern States Power Company, the
corporation described in and which executed the within and foregoing
Supplemental Trust Indenture, as mortgagor; and each for himself further says
that said Supplemental Trust Indenture was executed in good faith, and not for
the purpose of hindering, delaying, or defrauding any creditor of the said
mortgagor.
<TABLE>
<S> <C>
EDWARD J. MCINTYRE
GARY R. JOHNSON
</TABLE>
Subscribed and sworn to before me this 10th day of April, A.D. 1997.
<TABLE>
<S> <C>
FAYE WAHLSTRAND
NOTARY PUBLIC, HENNEPIN COUNTY, MINN.
MY COMMISSION EXPIRES JANUARY 31, 2000
(NOTARY SEAL)
</TABLE>
<PAGE>
23
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK) ss.:
</TABLE>
On this 10th day of April, A.D. 1997, before me, T. MUZQUIZ, a Notary Public
in and for said County in the State aforesaid, personally appeared J. BARTOLINI
and D.G. DONOVAN to me personally known, and to me known to be the Vice
President and Assistant Secretary, respectively, of Harris Trust and Savings
Bank, one of the corporations described in and which executed the within and
foregoing instrument, and who, being by me severally duly sworn, each, did say
that she, the said J. BARTOLINI is a Vice President, and he, the said D.G.
DONOVAN, is the Assistant Secretary, of said Harris Trust and Savings Bank, a
corporation; that the seal affixed to the within and foregoing instrument is the
corporate seal of said corporation, and that said instrument was executed on
behalf of said corporation by authority of its board of directors; and said J.
BARTOLINI and D.G. DONOVAN each acknowledged said instrument to be the free act
and deed of said corporation and that such corporation executed the same.
WITNESS my hand and notarial seal, this 10th day of April, A.D. 1997.
T. MUZQUIZ
NOTARY PUBLIC, COOK COUNTRY, ILLINOIS.
MY COMMISSION EXPIRES JULY 12, 1997.
(NOTARY SEAL)
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK ss.:
</TABLE>
J. BARTOLINI and D.G. DONOVAN, being severally duly sworn, each for himself
deposes and says that she, the said J. BARTOLINI, is Vice President, and he, the
said D.G. DONOVAN, is Assistant Secretary, of Harris Trust and Savings Bank, the
corporation described in and which executed the within and foregoing
Supplemental Trust Indenture, as mortgagee; and each for himself further says
that said Supplemental Trust Indenture was executed in good faith, and not for
the purpose of hindering, delaying, or defrauding any creditor of the mortgagor.
<TABLE>
<S> <C>
J. BARTOLINI
D.G. DONOVAN
</TABLE>
Subscribed and sworn to before me this 10th day of April, A.D. 1997.
T. MUZQUIZ
NOTARY PUBLIC, COOK COUNTY, ILLINOIS.
MY COMMISSION EXPIRES JULY 12, 1997
(NOTARY SEAL)
<PAGE>
A-1
SCHEDULE A
The property referred to in Article I of the foregoing Supplemental Trust
Indenture from Northern States Power Company to Harris Trust and Savings Bank,
Trustee, made as of April 1, 1997, includes the following property hereafter
more specifically described. Such description, however, is not intended to limit
or impair the scope of intention of the general description contained in the
granting clauses or elsewhere in the Original Indenture.
I. PROPERTIES IN THE STATE OF MINNESOTA
The following described real property, situate, lying and being in the
County of Dakota, to-wit:
(1) That part of the NE1/4 of the SE1/4 of Section 30, Township 115 North,
Range 17 West described as follows: Commencing at the Northeast corner of
said quarter-quarter; thence South along the East line thereof 153.90
feet to the South right-of-way line of Trunk Highway No. 55 and the point
of beginning of the land to be described; thence continuing South along
said East line 603.00 feet; thence deflecting 90 degrees 00 minutes 00
seconds right 495.00 feet; thence deflecting 90 degrees 00 minutes 00
seconds right to said South highway right-of-way line; thence East along
said highway right-of-way line to the point of beginning. Excepting and
reserving unto Seller, their heirs and assigns, the perpetual right,
privilege and easement to construct improve, use, maintain and dedicate
to the public a roadway upon the North 125 feet and the East 40 feet of
the above-described parcel of land provided that said roadways do not
interfere with NSP's electrical facilities, landscaping or right of
access to the land granted herein.
The following described real property; situate, lying and being in the
County of Hennepin, to-wit:
(1) Lot 1, Block 1, Schany 2nd Addition.
The following described real property; situate, lying and being in the
County of Murray, to-wit:
(1) The North 220 feet of the East 200 feet of the West 235 feet of the
NE1/4 of Section 24, Township 106 North, Range 43 West.
The following described real property; situate, lying and being in the
County of Rice, to-wit:
(1) Lot 1, Block 1, Cannon Road Substation.
The following described real property; situate, lying and being in the
County of Sherburne, to-wit:
(1) The SW1/4 of Section 6, Township 33 North, Range 28 West, excepting
therefrom the West 500 feet of the SW1/4 of the SW1/4 of said Section 6.
And
The NE1/4 of the NW1/4 of Section 7, Township 33 North, Range 28 West,
excepting therefrom the East 153 feet of the North 163 feet.
(2) Beginning at the Northwest corner of the NE1/4 of Section 35, Township
34 North, Range 29 West; thence North 89 degrees 07 minutes 33 seconds
East along the North line of said NE1/4 of Section 35 (assumed bearing) a
distance of 495.01 feet; thence South 00 degrees 10 minutes 53 seconds
West a distance of 440.07 feet to the South line of the North 440 feet of
the NW1/4 of the NE1/4; thence South 89 degrees 07 minutes 33 seconds
West a distance of 495.02 feet to the West line of the NE1/4 of Section
35; thence North 00 degrees 10 minutes 53 seconds East along said West
line to the point of beginning, and there terminating.
And
Commencing at the Northwest corner of the NE1/4 of Section 35, Township
34 North, Range 29 West; thence North 89 degrees 07 minutes 33 seconds
East along the North line of said NE1/4 of Section 35 (assumed bearing) a
distance of 819.97 feet to the point of beginning of the land to be
described;
<PAGE>
A-2
thence continuing North 89 degrees 07 minutes 33 seconds East a distance
of 497.96 feet to the East line of the NW1/4 of the NE1/4 of said Section
35; thence South 00 degrees 11 minutes 30 seconds West along the East
line of said NW1/4 of the NE1/4 a distance of 440.07 feet to the South
line of the North 440 feet thereof; thence South 89 degrees 07 minutes 33
seconds West a distance of 495.00 feet; thence North 00 degrees 11
minutes 31 seconds East a distance of 440.07 feet to the point of
beginning and there terminating.
The following described real property; situate, lying and being in the
County of Washington, to-wit:
(1) Lots Nine (9) and Ten (10), Block Eight (8), of OAK PARK.
(2) All that part of the Northwest Quarter of the Northwest Quarter (NW1/4
of the NW1/4) of Section Three (3), in Township Twenty-nine (29) North,
of Range Twenty (20) West of the Fourth Meridian, described as follows,
to-wit:
Beginning at an iron monument set at the intersection of the Southerly
right-of-way line of Minnesota State Highway 212 with a line drawn
parallel to and Three Hundred Seventy-nine and Two-tenths (379.2)
feet East of the West line of said tract, and running thence South
along said parallel line One Hundred (100) feet to an iron monument;
thence Easterly on a straight line to an iron monument; said monument
being set on a line drawn parallel to and Five Hundred Ninety-seven
(597) feet East of said West line of said tract, at a point One
Hundred (100) feet South of the intersection of said parallel line
with said Southerly right-of-way line of said highway; thence North
along said parallel line just described One Hundred (100) feet to an
iron monument set on said Southerly right-of-way line of said
highway; thence Westerly along said right of way line to the point of
beginning, containing Five-tenths (0.5) acres, more or less,
according to the United States Government Survey thereof.
The following described real property; situate, lying and being in the
County of Waseca, to-wit:
(1) Lot Five (5), Block One (1), South Addition to the City of Waseca, and
the West (10) feet of the South Fifty (50) feet of Lot Four (4), in Block
One (1), South Addition to the City of Waseca.
<PAGE>
A-3
--------------
MORTGAGOR'S RECEIPT FOR COPY
The undersigned Northern States Power Company, the Mortgagor described in
the foregoing Mortgage, hereby acknowledges that at the time of the execution of
the Mortgage, Harris Trust and Savings Bank, Trustee, the Mortgagee described
therein, surrendered to it a full, true, complete, and correct copy of said
instrument, with signatures, witnesses, and acknowledgments thereon shown.
NORTHERN STATES POWER COMPANY
BY EDWARD J. MCINTYRE, VICE PRESIDENT
Attest:
GARY R. JOHNSON, SECRETARY
--------------
This instrument was drafted by Northern States Power Company, 414 Nicollet
Mall, Minneapolis, Minnesota 55401.
Tax statements for the real property described in this instrument should be
sent to Northern States Power Company, 414 Nicollet Mall, Minneapolis, Minnesota
55401.
<PAGE>
EXHIBIT 5.01
[NSP LETTERHEAD]
August 15, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: 4,600,000 shares of Common Stock of Northern States Power Company,
a Minnesota corporation
Ladies and Gentlemen:
I am participating in the proceedings incident to the proposed public
offering by Northern States Power Company, a Minnesota corporation (the
"Company"), of up to 4,600,000 shares of its Common Stock, par value $2.50 per
share (the "Shares"). I have examined all records, instruments, and documents
which I have deemed necessary to examine for the purposes of this opinion,
including the Registration Statement on Form S-3 relating to the shares to be
filed by the Company pursuant to the Securities Act of 1933.
Based upon the foregoing and upon my general familiarity with the Company
and its affairs, I am of the opinion:
1. That the Company is a duly organized and validly existing corporation
under the laws of the State of Minnesota and that it is legally qualified and
authorized to operate and conduct business in the State of Minnesota.
2. When, as and if the Registration Statement on Form S-3 to which this
opinion is an exhibit becomes effective pursuant to the provisions of the
Securities Act of 1933, as amended, and the Shares have been duly issued and
delivered, and the consideration for the Shares has been duly received by the
Company, all in the manner contemplated by said
<PAGE>
Securities and Exchange Commission
August 15, 1997
Page 2
Registration Statement, the Shares will be legally issued, fully paid, and
nonassessable shares of stock of the Company.
I hereby consent to the incorporation of this opinion into said
Registration Statement and the reference to me under the heading "Legal
Opinions" in said Registration Statement.
Respectfully submitted,
John P. Moore Jr.
Corporate Secretary
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
- -------------------------------------------------------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of (i) our report
dated February 3, 1997 appearing in the Annual Report on Form 10-K of Northern
States Power Company (Minnesota) for the year ended December 31, 1996, and (ii)
our report on the consolidated financial statements of NRG Energy, Inc. and its
subsidiaries dated April 8, 1997 appearing in Exhibit 99.01 to the Current
Report on Form 8-K of Northern States Power Company (Minnesota) dated May 30,
1997. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
MINNEAPOLIS, MINNESOTA
AUGUST 13, 1997
<PAGE>
EXHIBIT 23.01
(CONT.)
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 29, 1997 appearing in Wisconsin Energy Corporation's Annual Report on
Form 10-K for the year ended December 31, 1996. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
MILWAUKEE, WISCONSIN
AUGUST 13, 1997
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement and
Prospectus of Northern States Power Company (Minnesota) on Form S-3 of our
report dated February 8, 1995 on the consolidated financial statements of the
Company for the year ended December 31, 1994, appearing in the Annual Report on
Form 10-K of Northern States Power Company for the year ended December 31, 1996
and to the reference to us under the heading "Experts" in the Prospectus, which
is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
MINNEAPOLIS, MINNESOTA
AUGUST 13, 1997
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 6th
day of August, 1997.
/s/ H. Lyman Bretting
-------------------------------
H. Lyman Bretting, Director
STATE OF WISCONSIN )
) ss.
COUNTY OF ASHLAND )
On this 6th day of August, 1997, before me, Ruth A. Wosepka, a Notary
Public in and for said County and State, personally appeared H. Lyman Bretting,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same as his own free act
and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Ruth A. Wosepka
-------------------------
My Commission Expires: May 24, 1998 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 2nd
day of August, 1997.
/s/ David A. Christensen
-------------------------------
David A. Christensen, Director
STATE OF SOUTH DAKOTA )
) ss.
COUNTY OF MINNEHAHA )
On this 2nd day of August, 1997, before me, Bonnie L. Steen, a Notary
Public in and for said County and State, personally appeared David A.
Christensen, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same as his
own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Bonnie L. Steen
-------------------------
My Commission Expires: July 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 4th
day of August, 1997.
/s/ W. John Driscoll
-------------------------------
W. John Driscoll, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this 4th day of August, 1997, before me, Cheryl M. McNary, a Notary
Public in and for said County and State, personally appeared W. John Driscoll,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same as his own free act
and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Cheryl M. McNary
-------------------------
My Commission Expires: January 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 4th
day of August, 1997.
/s/ Dale L. Haakenstad
-------------------------------
Dale L. Haakenstad, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF BECKER )
On this 4th day of August, 1997, before me, Vicki A. Gravelle, a
Notary Public in and for said County and State, personally appeared Dale L.
Haakenstad, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same as his
own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Vicki A. Gravelle
-------------------------
My Commission Expires: July 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 1st
day of August, 1997.
/s/ Richard M. Kovacevich
----------------------------------
Richard M. Kovacevich, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 1st day of August, 1997, before me, Corisnne F. Knowles, a
Notary Public in and for said County and State, personally appeared Richard M.
Kovacevich, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same as his
own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Corisnne F. Knowles
-------------------------
My Commission Expires: January 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 4th
day of August, 1997.
/s/ Douglas W. Leatherdale
----------------------------------
Douglas W. Leatherdale, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 4th day of August, 1997, before me, Mary E. Waltz, a Notary
Public in and for said County and State, personally appeared Douglas W.
Leatherdale, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same as his
own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Mary E. Waltz
-------------------------
My Commission Expires: Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, her attorney, with full power to act for her and in her name,
place and stead, to sign her name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 4th
day of August, 1997.
/s/ Margaret R. Preska
---------------------------------
Margaret R. Preska, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this 4th day of August, 1997, before me, Carol A. Zwinger, a Notary
Public in and for said County and State, personally appeared Margaret R. Preska,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same as his own free act
and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Carol A. Zwinger
-------------------------
My Commission Expires: January 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, the undersigned holds the office of director for the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints PAUL
E. PENDER, EDWARD J. McINTYRE AND JOHN P. MOORE, JR., and each of them
individually, her attorney, with full power to act for her and in her name,
place and stead, to sign her name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 4th
day of August, 1997.
/s/ A. Patricia Sampson
---------------------------------
A. Patricia Sampson, Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 4th day of August, 1997, before me, Sutton A. Plombon, a
Notary Public in and for said County and State, personally appeared A. Patricia
Sampson, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same as his own free act
and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Sutton A. Plombon
-------------------------
My Commission Expires: January 31, 2000 Notary Public
<PAGE>
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota corporation (the
Company), is about to file with the Securities and Exchange Commission, under
the provisions of the Securities Act of 1933, as amended, its Registration
Statement relating to the sale of up to 5,000,000 additional shares of the
Company's Common Stock; and
WHEREAS, each of the undersigned holds the office or offices for the
Company herein below set opposite his name, respectively;
NOW, THEREFORE, each of the undersigned hereby constitutes and
appoints PAUL E. PENDER, EDWARD J. McINTYRE and JOHN P. MOORE, JR., and each of
them individually, his attorney, with full power to act for him and in his name,
place and stead, to sign his name in the capacity or capacities set forth below
to the Registration Statement relating to the sale of up to 5,000,000 additional
shares of the Company's Common Stock and to any and all amendments (including
post-effective amendments) to such Registration Statement, and hereby ratifies
and confirms all that said attorney may or shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his hand
this 4th day of August, 1997.
/s/ James J. Howard
----------------------------------
James J. Howard,
Principal Executive Officer & Director
/s/ Edward J. McIntyre
----------------------------------
Edward J. McIntyre,
Chief Financial Officer
/s/ Roger D. Sandeen
----------------------------------
Roger D. Sandeen,
Chief Accounting Officer
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 4th day of August, 1997, before me, Sutton A. Plombon, a
Notary Public in and for said County and State, personally appeared James J.
Howard, Edward J. McIntyre and Roger D. Sandeen, known to me to be the persons
whose names are subscribed to the foregoing instrument, and each person
acknowledged to me that he executed the same as his own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the date above set forth.
/s/ Sutton A. Plombon
-------------------------
My Commission Expires: January 31, 2000 Notary Public
