SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NORTHWESTERN PUBLIC SERVICE COMPANY
(Exact name of registrant as specified in its charter)
Delaware 46-0172280
(State of Incorporation) (IRS Employer Identification No.)
33 Third Street SE
Huron, South Dakota 57350-1318
(Address of Principal Executive Offices) (Zip code)
Variable Investment Plan and Trust Agreement
(Full title of the plan)
Alan D. Dietrich
Vice President - Corporate Services and Corporate Secretary
33 Third Street SE
P. O. Box 1318
Huron, South Dakota 57350-1318
(Name and address of agent for service)
605-352-8411
(Telephone No., including area code, of agent for service)
Calculation of Registration Fee
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee (1)
- ---------- ---------- --------- --------- ------------
Common Stock 500,000 $25.875 $12,937,500 $4,461.24
($3.50 par Shares
value)
Interests (2) (2) (2) (2)
in the Plan
(1) Pursuant to Rule 457(6), the price is computed on the basis of the
average of the high and low prices reported on the New York Stock
Exchange consolidated reporting system for November 7, 1994.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1993,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein
for which no separate fee is required.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
PART II
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this
Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993, Commission File 0-692.
(b) A description of the Registrant's Common Stock, $3.50 par value,
is incorporated by reference to the Registration Statement on
Form S-3 filed with the Commission on May 13, 1994.
All documents subsequently filed by the Registrant and/or the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed
incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained herein or in a document incorporated by
reference or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this registration statement to
the extent that such statement is modified or superseded by any other
subsequently filed document which is incorporated or is deemed to be
incorporated by reference herein. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of Securities
N/A
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Company, being incorporated under the Delaware General
Corporation Law, is empowered by Section 145 of such Law, subject to the
procedures and limitations stated therein, to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in the defense of any
threatened, pending or completed action, suit or proceeding in which such
person is made a party by reason of his being or having been a director or
officer of the Company. The statute provides that indemnification pursuant
to its provisions is not exclusive of other rights of indemnification to
which a person may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise.
Article V of the Company's By-Laws provides that in addition to
all other compensation which they may, respectively, receive from the
Company, the Company will indemnify and save harmless each director and
officer of the Company against all costs and expenses reasonably incurred
by him as the result of the assertion or institution against him at any
time of any claim, suit or proceeding by reason of his being or having been
a director or officer of the Company or by reason of his acts or omissions
as such director or officer of the Company, except in cases where such
director or officer shall be adjudged in any such suit or proceeding to be
liable because of dereliction in the performance of his duty as such
officer or director; such indemnification to be without prejudice to any
and all legal rights of such director or officer.
The Company maintains policies under which its officers and
directors are insured, within the limits and subject to the limitations of
the policies, against claims arising solely by reason of their being
officers or directors of the Company for actual or alleged errors,
misstatements, misleading statements, acts, omissions, neglects or breaches
of duty and certain expenses resulting therefrom, including costs of
investigation and defense of legal actions, claims or proceedings, and
appeals therefrom.
Item 7. Exemption from Registration Claimed
N/A
Item 8. Exhibits
The exhibits filed herewith or incorporated by reference herein
are set forth in the Exhibit Index filed as part of this Registration
Statement.
The Registrant will submit or has submitted the plan and any
amendment thereto to the Internal Revenue Service in a timely manner and
has made or will make all changes required by the IRS in order to qualify
the plan.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (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.
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,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
(The Registrant) Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Huron, State of
South Dakota, on November 2, 1994.
(Registrant) Northwestern Public Service Company
By (Signature and Title) /s/ M. D. Lewis
M. D. Lewis
President & CEO
POWER OF ATTORNEY
Each director and officer of the Company whose signature appears
below hereby authorizes the agent for service named in the registration
statement to execute in the name of such person, and to file, any amendment
to the registration statement unnecessary or advisable to enable the
registrant to comply with the Securities Act of 1933, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendment may make such other changes in the
registration statement as the agent for service deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Date Signature and Title
November 2, 1994 By /s/ R. A. Wilkens
R. A. Wilkens
Chairman of the Board of Directors
November 2, 1994 By /s/ M. D. Lewis
M. D. Lewis, Director and President
and Chief Executive Officer
November 2, 1994 By /s/ R. R. Hylland
R. R. Hylland, Vice President - Finance
& Corporate Development & Treasurer
(Principal Financial and Accounting Officer)
November 2, 1994 By /s/ Aelred J. Kurtenbach
Aelred J. Kurtenbach, Director
November 2, 1994 By /s/ Jerry W. Johnson
Jerry W. Johnson, Director
November 2, 1994 By /s/ Herman Lerdal
Herman Lerdal, Director
November 2, 1994 By /s/ Larry F. Ness
Larry F. Ness, Director
November 2, 1994 By /s/ Raymond M. Schutz
Raymond M. Schutz, Director
November 2, 1994 By /s/ Bruce I. Smith
Bruce I. Smith, Director
November 2, 1994 By /s/ W. W. Wood
W. W. Wood, Director
(The Plan) Pursuant to the requirements of the Securities Act of
1933, the Trustee has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Huron, South Dakota, on November 2, 1994.
(Plan) Northwestern Public Service Company Variable Investment Plan and
Trust Agreement
By /s/ Thomas A. Gulbranson
Thomas A. Gulbranson, Trustee
By /s/ Robert J. Hollibaugh
Robert J. Hollibaugh, Trustee
By /s/ Alan D. Dietrich
Alan D. Dietrich, Trustee
EXHIBIT INDEX
The following documents are filed as part of the Registration
Statement.
3(a)(1)
Registrant's Restated Certificate of Incorporation, dated February 7, 1990,
is incorporated by reference to Exhibit 3(a)(1) to Form 10-K for the year
ended December 31, 1989, Commission File No. 0-692.
3(a)(2)
Certificate of Retirement of Preferred Stocks, dated January 13, 1992, is
incorporated by reference to Exhibit 3(a)(2) to Form 10-K for the year
ended December 31, 1991, Commission File No. 0-692.
3(b)
Registrant's By-Laws, as amended, dated December 1, 1990, are incorporated
by reference to Exhibit 3(b) to Form 10-K for the year ended December 31,
1990, Commission File No. 0-692.
4(a)(1)
Indenture, dated August 1, 1940, executed by the Company to The Chase
Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, and supplemental
and amendatory indentures thereto are incorporated by reference to Exhibit
2 to Form 12-K for the year ended December 31, 1970, Commission File No. 2-
4472.
4(a)(2)
Supplemental Indenture, dated August 1, 1972, executed by the Company to
The Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 2 to Form 8-K for the month of August,
1972, Commission File No. 2-4472.
4(a)(3)
Supplemental Indenture, dated July 1, 1973, executed by the Company to The
Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 1 to Form 8-K for the month of July,
1973, Commission File No. 2-4472.
4(a)(4)
Supplemental Indenture, dated November 14, 1974, executed by the Company to
The Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 1 to Form 8-K for the month of
November, 1974, Commission File No. 2-4472.
4(a)(5)
Supplemental Indenture, dated May 1, 1975, executed by the Company to The
Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 2 to Form 8-K for the month of May,
1975, Commission File No. 2-4472.
4(a)(6)
Supplemental Indenture, dated June 1, 1977, executed by the Company to The
Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 2(a)(34) to Registration Statement on
Form S-7 (Reg. No. 2-58825).
4(a)(7)
Supplemental Indenture, dated July 1, 1978, executed by the Company to The
Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 2(a)(43) to Registration Statement on
Form S-7 (Reg. No. 2-63083).
4(a)(8)
Supplemental Indenture, dated December 1, 1978, executed by the Company to
The Chase Manhattan Bank (N.A.) and J. J. O'Connell, as Trustees, is
incorporated by reference to Exhibit 11 to Form 10-K for the year ended
December 31, 1978, Commission File No. 0-692.
4(a)(9)
Registrant's Supplemental Indenture, dated May 6, 1987, is incorporated by
reference to Exhibit 3(a) to Form 10-Q for the quarter ended September 30,
1987, Commission File No. 0-692.
4(a)(10)
Supplemental Indenture, dated November 1, 1989, executed by the Company to
The Chase Manhattan Bank (N.A.) and Vincent J. Marino, as Trustees, is
incorporated by reference to Exhibit 4(a)(10) to Form 10-K for the year
ended December 31, 1989, Commission File No. 0-692.
4(a)(11)(i)
Supplemental Indenture, dated July 15, 1991, executed by the Company to The
Chase Manhattan Bank (N.A.) and C. J. Heinzelmann, as Trustees, is
incorporated by reference to Exhibit 4(a)(11)(i) to Form 8-K, dated August
1, 1991, Commission File No. 0-692.
4(a)(12)
Supplemental Indenture, dated November 15, 1991, is incorporated by
reference to Exhibit 4(a)(12) to Form 10-K for the year ended December 31,
1991, Commission File No. 0-692.
4(a)(13)
Supplemental Indenture, dated September 1, 1992, executed by the Company to
The Chase Manhattan Bank (N.A.) and C. J. Heinzelmann, as Trustees, is
incorporated by reference to Exhibit 4(a)(11)(i) to Form 8-K, dated
September 18, 1992, Commission File No. 0-692.
4(a)(14)
Underwriting Agreement dated August 16, 1993 among the Company, Morgan
Stanley & Co. Incorporated, Lehman Brothers Inc. and NatWest Capital
Markets Limited, is incorporated by reference to Exhibit 1 of Registrant's
Report on Form 8-K, dated August 16, 1993, Commission File No. 0-692.
4(a)(15)
General Mortgage Indenture and Deed of Trust dated as of August 1, 1993
from the Company to The Chase Manhattan Bank (National Association), as
Trustee, is incorporated by reference to Exhibit 4(a) of Form 8-K, dated
August 16, 1993, Commission File No. 0-692.
4(a)(16)
Supplemental Indenture dated as of August 15, 1993 to the General Mortgage
Indenture and Deed of Trust dated as of August 1, 1993 executed by the
Company to The Chase Manhattan Bank (National Association), as Trustee, is
incorporated by reference to Exhibit 4(b) of Form 8-K, dated August 16,
1993, Commission File No. 0-692.
4(a)(17)
Supplemental Indenture dated August 15, 1993 to the Indenture dated August
1, 1940 from the Company to The Chase Manhattan Bank (National Association)
and C. J. Heinzelmann, as successor Trustees, is incorporated by reference
to Exhibit 4(c) of Form 8-K, dated August 16, 1993, Commission File No. 0-
692.
4(b)(1)
Copy of Sale Agreement between Company and Mercer County, North Dakota,
dated June 1, 1993, related to issuance of Pollution Control Refunding
Revenue Bonds (Northwestern Public Service Company Project) Series 1993, is
incorporated by reference to Exhibit 4(b)(1) of Registrant's report on Form
10-Q for the quarter ending June 30, 1993, Commission File No. 0-692.
4(b)(2)
Copy of Loan Agreement between Company and Grant County, South Dakota,
dated June 1, 1993, related to issuance of Pollution Control Refunding
Revenue Bonds (Northwestern Public Service Company Project) Series 1993A,
is incorporated by reference to Exhibit 4(b)(2) of Registrant's report on
Form 10-Q for the quarter ending June 30, 1993, Commission File No. 0-692.
4(b)(3)
Copy of Loan Agreement between Company and Grant County, South Dakota,
dated June 1, 1993, related to issuance of Pollution Control Refunding
Revenue Bonds (Northwestern Public Service Company Project) Series 1993B,
is incorporated by reference to Exhibit 4(b)(3) of Registrant's report on
Form 10-Q for the quarter ending June 30, 1993, Commission File No. 0-692.
4(b)(4)
Copy of Loan Agreement between Company and City of Salix, Iowa, dated June
1, 1993, related to issuance of Pollution Control Refunding Revenue Bonds
(Northwestern Public Service Company Project) Series 1993, is incorporated
by reference to Exhibit 4(b)(4) of Registrant's report on Form 10-Q for the
quarter ending June 30, 1993, Commission File No. 0-692.
5
Opinion of counsel re legality of securities being registered.
23
Consent of Arthur Andersen LLP
24
Power of Attorney contained in signature page of Registration Statement.
EXHIBIT 5
November 3, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street NW
Washington, DC 20549-1004
RE: Northwestern Public Service Company - Registration of 500,000 shares
of Common Stock, Par Value $3.50 Per Share, on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Northwestern Public Service Company, a
Delaware corporation (the "Company"), in connection with the Company"s
filing of a Registration statement on Form S-8 (the "Registration
Statement") covering 500,000 shares of its Common Stock, $3.50 par value
per share (the "Common Stock"), to be issued pursuant to the Company's
Variable Investment Plan and Trust Agreement (the "Plan"). The
Registration Statement also covers an indeterminate amount of interests to
be offered or sold under the Plan.
We have made such investigation and have examined such documents as we
have deemed necessary in order to enable us to render the opinion contained
herein.
Based upon the foregoing, it is our opinion that those shares of Common
Stock covered by the Registration Statement that are originally issued in
accordance with the terms of the Plan and as contemplated in the
Registration Statement and the Prospectus relating thereto will, when so
issued, be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ James M. Van Vliet, Jr.
-------------------------------
James M. Van Vliet, Jr.
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 1,
1994 incorporated by reference in Northwestern Public Service's Form 10-K
for the year ended December 31, 1993 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
------------------------
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
November 9, 1994
