<PAGE>
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED AUGUST 16, 1995)
1,200,000 SHARES
NORTHWESTERN PUBLIC SERVICE COMPANY
COMMON STOCK, $3.50 PAR VALUE
------------
ALL OF THE SHARES OF COMMON STOCK OFFERED HEREBY ARE BEING SOLD BY THE COMPANY.
THE COMPANY'S COMMON STOCK IS LISTED ON THE
NEW YORK STOCK EXCHANGE. ON AUGUST 16, 1995, IMMEDIATELY PRIOR TO
THE DETERMINATION OF THE PUBLIC OFFERING PRICE OF THE
SHARES OFFERED HEREBY, THE LAST REPORTED SALE PRICE
OF THE COMMON STOCK ON THE NEW YORK
STOCK EXCHANGE WAS $26 1/8 PER
SHARE.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OF ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------
PRICE $26 1/8 A SHARE
-------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS
PUBLIC COMMISSIONS (1) TO COMPANY (2)
--------------------- --------------------- ---------------------
<S> <C> <C> <C>
PER SHARE................................. $26.125 $1.00 $25.125
TOTAL (3)................................. $31,350,000 $1,200,000 $30,150,000
<FN>
---------
(1) THE COMPANY HAS AGREED TO INDEMNIFY THE UNDERWRITERS AGAINST CERTAIN
LIABILITIES, INCLUDING LIABILITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
(2) BEFORE DEDUCTING EXPENSES PAYABLE BY THE COMPANY, ESTIMATED AT
$700,000.
(3) THE COMPANY HAS GRANTED TO THE UNDERWRITERS AN OPTION, EXERCISABLE
WITHIN 30 DAYS OF THE DATE HEREOF, TO PURCHASE UP TO AN AGGREGATE OF
180,000 ADDITIONAL SHARES OF COMMON STOCK AT THE PRICE TO PUBLIC LESS
UNDERWRITING DISCOUNTS AND COMMISSIONS FOR THE PURPOSE OF COVERING
OVER-ALLOTMENTS, IF ANY. IF THE UNDERWRITERS EXERCISE SUCH OPTION IN
FULL, THE TOTAL PRICE TO PUBLIC, UNDERWRITING DISCOUNTS AND COMMISSIONS
AND PROCEEDS TO COMPANY WILL BE $36,052,500, $1,380,000 AND
$34,672,500, RESPECTIVELY. SEE "UNDERWRITING."
</TABLE>
-------------------
THE COMMON STOCK IS OFFERED, SUBJECT TO PRIOR SALE, WHEN, AS AND IF ACCEPTED
BY THE UNDERWRITERS AND SUBJECT TO APPROVAL OF CERTAIN LEGAL MATTERS BY
WINTHROP, STIMSON, PUTNAM & ROBERTS, COUNSEL FOR THE UNDERWRITERS. IT IS
EXPECTED THAT DELIVERY OF THE COMMON STOCK WILL BE MADE ON OR ABOUT AUGUST 21,
1995 AT THE OFFICE OF MORGAN STANLEY & CO. INCORPORATED, NEW YORK, N.Y., AGAINST
PAYMENT THEREFOR IN NEW YORK FUNDS.
-------------------
MORGAN STANLEY & CO. PAINEWEBBER INCORPORATED
INCORPORATED
AUGUST 16, 1995
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS, IN CONNECTION WITH THE OFFERING MADE BY THIS PROSPECTUS SUPPLEMENT
AND THE ACCOMPANYING 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 SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS
DO NOT CONSTITUTE AN OFFER OR A SOLICITATION BY ANY PERSON IN ANY JURISDICTION
IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH AN OFFER OR SOLICITATION.
THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS AT
ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF THE PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PROSPECTUS SUPPLEMENT
Prospectus Supplement Summary.............................................................................. S-3
The Company................................................................................................ S-3
The Offering............................................................................................... S-4
Summary Financial Information.............................................................................. S-5
Use of Proceeds............................................................................................ S-6
Supplemental Description of the Common Stock............................................................... S-6
Underwriting............................................................................................... S-6
PROSPECTUS
Available Information...................................................................................... 1
Documents Incorporated by Reference........................................................................ 1
The Company................................................................................................ 2
Acquisition of Synergy Group Incorporated.................................................................. 5
Northwestern Public Service Company and Synergy Group Incorporated Pro Forma Financial Information......... 10
The NWPS Trusts............................................................................................ 18
Use of Proceeds............................................................................................ 19
Ratio of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Dividends.......... 19
Description of the Mortgage Bonds.......................................................................... 20
Description of the Subordinated Debt Securities............................................................ 31
Description of the Preferred Securities.................................................................... 39
Description of the Guarantees.............................................................................. 40
Description of the Common Stock............................................................................ 42
Legal Opinions............................................................................................. 44
Experts.................................................................................................... 45
Plan of Distribution....................................................................................... 45
</TABLE>
S-2
<PAGE>
PROSPECTUS SUPPLEMENT SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE
CONSIDERED IN CONJUNCTION WITH, THE INFORMATION AND FINANCIAL STATEMENTS
APPEARING ELSEWHERE IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS AND THE DOCUMENTS INCORPORATED THEREIN BY REFERENCE.
THE COMPANY
The principal business of Northwestern Public Service Company (the
"Company") is energy distribution. The Company is engaged in providing regulated
electric and natural gas service in South Dakota and natural gas service in
Nebraska. The Company serves approximately 54,900 electric customers and 75,000
gas customers representing a diverse mix of residential, commercial and
industrial customers. In addition, the Company has investments in nonutility
businesses and has recently acquired Synergy Group Incorporated ("Synergy"), a
major propane distribution company. See "The Company" and "Acquisition of
Synergy Group Incorporated" in the accompanying Prospectus.
The Company's electric business generates, transmits and distributes
electricity to over 100 communities in eastern South Dakota. In 1994, 46% of the
Company's total operating revenues were from the sale of electric energy. At
December 31, 1994, the aggregate capacity of all Company-owned electric
generating units was 309,000 kilowatts ("kw"), consisting of 202,000 kw from
jointly-owned baseload plants and 107,000 kw from internal combustion turbine
and diesel units used primarily for peaking purposes. All of the Company's
baseload plants are fueled by coal. The Company has maintained competitive
electric rates when compared to neighboring utilities and has a competitive
electric baseload generating production cost, which includes fuel and plant
operating expenses, of less than 1.5 CENTS per kilowatt hour.
The Company's natural gas business purchases, transports and distributes
natural gas to over 50 communities in eastern South Dakota and 4 communities in
central Nebraska. In 1994, 40% of the Company's total operating revenues were
from the sale of natural gas. The Company purchases gas supply from more than 20
domestic and Canadian suppliers and transports natural gas supply through five
pipelines. Gas agreements provide for firm deliverable pipeline capacity of
approximately 98,900 million british thermal units ("MMBTU") per day. To
supplement firm gas supplies, the Company owns six propane-air plants and has
contracts for underground natural gas storage services. Over the last five years
the Company has expanded its gas distribution operations to serve 29 new
communities in South Dakota.
The Company's business strategy is summarized by three primary objectives:
- To enhance the Company's competitive position in its energy distribution
businesses;
- To expand energy sales and markets with value-added services for
customers; and
- To provide earnings and dividend growth and increased shareholder value
through its energy distribution businesses and investment and acquisition
activities.
By enhancing the competitive position of its core electric and gas distribution
businesses and expanding its energy sales and markets, the Company believes it
will position itself to be successful in the increasingly competitive electric
and gas distribution businesses anticipated over the next several years. To
supplement growth strategies in its electric and natural gas businesses, the
Company also plans to seek new investment and acquisition opportunities that
have demonstrable growth potential. The primary focus of these investment and
acquisition activities is targeted in energy distribution businesses. The
Company also plans to pursue opportunities in non-energy businesses that
complement its existing operations and provide the capability to enhance
shareholder value.
On August 15, 1995, the Company acquired Synergy, a retail propane
distributor serving over 200,000 customers from 152 locations in 23 states in
the eastern and south central regions of the U.S. See "Acquisition of Synergy
Group Incorporated" in the accompanying Prospectus. In accordance
S-3
<PAGE>
with its strategic plan, the Company believes that the Synergy propane
distribution operations are complementary to the Company's electric and natural
gas businesses. Propane is the nation's fourth largest energy source after
electricity, natural gas and fuel oil. The acquisition price paid for Synergy
was $137.5 million cash (subject to certain post-closing adjustments) and
certain securities of the Company's acquisition subsidiary. The Company sold
certain Synergy properties to an unrelated third party which reduced the cash
portion of the acquisition price to approximately $100 million. The Company has
executed a management agreement with Empire Gas Corporation ("Empire Gas") for
the joint management of the properties after the acquisition. Empire Gas is the
nation's eleventh largest retail propane distributor. As a result of the
acquisition and the third party sale, the Company's total assets consist of
approximately 65% electric and gas distribution, 25% propane distribution and
10% marketable securities and other diversified investments.
The Company's principal executive offices are located at 33 Third Street
S.E., Huron, South Dakota 57350. The Company's telephone number is (605)
352-8411.
THE OFFERING
<TABLE>
<S> <C>
Common Shares offered.................. 1,200,000 shares (1)
Common Shares to be outstanding after
the offering........................... Approximately 8,877,232 shares (1)
Price Range (January 1, 1995 through
August 15, 1995)....................... $25-28 1/4
Current Indicated Annual Dividend...... $1.70 per share
Use of Proceeds........................ The net proceeds will be used to repay short-term
debt incurred in connection with a portion of the
financing for the Company's acquisition of a
propane distribution company.
NYSE Symbol............................ NPS
<FN>
------------------------
(1) Does not include the Underwriters' option to purchase up to an aggregate of
180,000 additional shares.
</TABLE>
S-4
<PAGE>
SUMMARY FINANCIAL INFORMATION
(in thousands, except percentages and per share amounts)
The financial information presented below should be read in conjunction with
the Company's historical financial statements and the notes thereto which are
incorporated by reference herein and the pro forma financial statements and the
notes thereto included in the accompanying Prospectus. The pro forma financial
information contained in the right column, reflecting the acquisition of Synergy
and related matters, was prepared solely to comply with Regulation S-X of the
Securities and Exchange Commission. The pro forma financial information is based
on the assumptions and adjustments set forth under "Northwestern Public Service
Company and Synergy Group Incorporated Pro Forma Financial Information" in the
accompanying Prospectus.
<TABLE>
<CAPTION>
PRO FORMA (1)
------------------------
SIX SIX
MONTHS MONTHS
YEAR ENDED DECEMBER 31, ENDED YEAR ENDED ENDED
---------------------------- JUNE 30, DECEMBER 31, JUNE 30,
1992 1993 1994 1995 1994 1995 (2)
-------- -------- -------- --------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Revenues..................................................... $119,197 $153,257 $157,266 $90,862 $256,634 $140,374
Operating income............................................. 24,809 27,246 30,368 19,438 37,985 27,313
Net income................................................... 13,721 15,191 15,440 10,151 17,463 16,220
Net income available for common stock........................ 13,578 15,070 15,320 10,092 15,300 15,139
Earnings per share........................................... 1.77 1.96 2.00 1.31 1.74 1.72
Dividends paid per common share.............................. 1.59 1.63 1.67 0.85 1.67 0.85
Weighted average shares outstanding.......................... 7,677 7,677 7,677 7,677 8,805 8,805
</TABLE>
<TABLE>
<CAPTION>
AS OF JUNE 30, 1995
-----------------------------------
PRO
ACTUAL FORMA
-------- --------
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Assets.................................................................................... $366,148 $492,448
-------- --------
-------- --------
Capitalization Summary
Long-term debt (including current maturities)........................................... $129,195 51.1% $182,899 50.6%
Company-Obligated Mandatorily Redeemable Preferred Securities of Subsidiary Trust (3)... -- -- 24,212 6.7%
Cumulative preferred stock (including portion to be redeemed within one year)........... 2,610 1.0 2,610 0.7%
Common Stock Equity
Common stock............................................................................ 26,870 -- 31,179 --
Additional paid-in capital.............................................................. 29,923 -- 56,398 --
Retained earnings....................................................................... 58,939 -- 58,939 --
Unrealized gain on investments, net..................................................... 5,110 -- 5,110 --
-------- --------
$120,842 47.9 $151,626 42.0
-------- ------ -------- ------
Total................................................................................. $252,647 100.0% $361,347 100.0%
-------- ------ -------- ------
-------- ------ -------- ------
<FN>
------------------------
(1) The pro forma financial information does not purport to present the
financial position or results of operations of the Company had the
acquisition of Synergy actually been completed as of the dates indicated.
In addition, the pro forma financial information is not necessarily
indicative of future results of operations.
(2) The results of operations of Synergy for the six months ended June 30, 1995
are not indicative of a full year's results of operations.
(3) As described in the accompanying Prospectus, all of the assets of NWPS
Capital, the subsidiary trust, are approximately $33.5 million of
Subordinated Debt Securities of the Company which bear interest at a rate
of 8 1/8% per annum, based on the issuance of 1.3 million Preferred
Securities. Pro Forma amounts shown in the table reflect the portion of the
estimated net proceeds of the offering of Preferred Securities assumed for
purposes of preparing the Pro Forma Financial Information used to fund the
acquisition of Synergy.
</TABLE>
S-5
<PAGE>
USE OF PROCEEDS
The net proceeds from the sale of the Common Stock will be used to repay
short-term debt incurred in connection with a portion of the financing obtained
to fund the acquisition of Synergy, including certain transaction costs. See
"Use of Proceeds" in the accompanying Prospectus.
SUPPLEMENTAL DESCRIPTION OF THE COMMON STOCK
PRICE RANGE OF COMMON STOCK AND DIVIDEND INFORMATION
The Common Stock of the Company is listed on the New York Stock Exchange
(NYSE). The ticker symbol is "NPS", although it is frequently presented as
"NowestPS" or "NWPS" in various financial publications. The following table sets
forth, for the indicated periods, the price range of the Common Stock as
reported on the NYSE Composite Tape. As of August 14, 1995, there were
approximately 8,500 record holders of the Company's Common Stock (7,677,232
Shares of Common Stock outstanding).
<TABLE>
<CAPTION>
PRICE PER SHARE CASH
--------------- DIVIDENDS
HIGH LOW PER SHARE
------- ---- ---------
<S> <C> <C> <C>
1993
-----------------------------------------------------------
First Quarter............................................ $29 1/2 $26 1/4 $ .405
Second Quarter........................................... 31 1/2 28 3/4 .405
Third Quarter............................................ 33 1/2 29 1/4 .405
Fourth Quarter........................................... 32 1/2 28 1/2 .415
1994
-----------------------------------------------------------
First Quarter............................................ $29 $26 .415
Second Quarter........................................... 29 5/8 26 .415
Third Quarter............................................ 29 3/8 27 1/2 .415
Fourth Quarter........................................... 28 7/8 24 1/2 .425
1995
-----------------------------------------------------------
First Quarter............................................ 27 3/8 25 1/4 .425
Second Quarter........................................... 28 3/8 25 .425
Third Quarter (through August 15, 1995).................. 26 7/8 25 1/4
</TABLE>
The last reported sale price of the Common Stock on the NYSE on August 15,
1995 was $26 1/8 per share.
The Company has paid cash dividends on its Common Stock in each fiscal
quarter since 1947. The payment of dividends in the future is subject to the
Company's earnings and financial condition and such other factors as the
Company's Board of Directors may deem relevant. In addition, certain covenants
in the debt instruments of the Company's subsidiaries limit the amounts
available for dividends. See "Description of the Common Stock" in the
accompanying Prospectus.
UNDERWRITING
Under the terms and subject to the conditions contained in the Underwriting
Agreement dated the date hereof (the Underwriting Agreement), each of the
Underwriters named below, for whom Morgan Stanley & Co. Incorporated and
PaineWebber Incorporated are acting as representatives (the
S-6
<PAGE>
"Representatives"), have severally agreed to purchase, and the Company has
agreed to sell to them, severally, the respective number of shares of Common
Stock set forth opposite their respective names below:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES
----------------------------------------------------------------------------------- -----------
<S> <C>
Morgan Stanley & Co. Incorporated.................................................. 450,000
PaineWebber Incorporated........................................................... 450,000
Dain Bosworth Incorporated......................................................... 50,000
Dean Witter Reynolds Inc........................................................... 50,000
First of Michigan Corporation...................................................... 50,000
NatWest Securities Limited......................................................... 50,000
Piper Jaffray Inc.................................................................. 50,000
Prudential Securities Incorporated................................................. 50,000
-----------
Total.......................................................................... 1,200,000
-----------
-----------
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the Common Stock offered hereby
are subject to the approval of certain legal matters by its counsel and to
certain other conditions. The Underwriters are committed to take and pay for all
of the Common Stock offered hereby (other than those covered by the
Underwriters' over-allotment option described below) if any such shares are
taken.
The Underwriters propose to offer part of the Common Stock directly to the
public at the public offering price set forth on the cover page hereof and part
to certain dealers at a price that represents a concession not in excess of $.60
per share of Common Stock. The Underwriters may allow, and such dealers may
reallow, a concession of $.10 per share of Common Stock to certain other
dealers.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
The Company has granted to the Underwriters an option, exercisable for 30
days from the date of this Prospectus Supplement, to purchase up to an
additional 180,000 shares of Common Stock at the public offering price set forth
on the cover page hereof (minus, if such additional shares of Common Stock are
sold after the date fixed for the determination of stockholders entitled to
receive the next dividend payable on shares of Common Stock, an amount equal to
such dividend per share of such additional shares), less underwriting discounts
and commissions. The Underwriters may exercise such option solely for the
purpose of covering over-allotments, if any, incurred in the sale of the Common
Stock.
The Company has agreed in the Underwriting Agreement not to directly or
indirectly (1) offer, pledge, sell, contract or otherwise dispose of any Common
Stock or any securities convertible into or exchangeable for Common Stock or (2)
enter into any swap or similar agreement that transfers, in whole or in part,
the economic risk of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, for a period of 90 days after the date
of this Prospectus Supplement, without the prior written consent of Morgan
Stanley & Co. Incorporated, provided that the Company may during such 90 day
period issue shares under its dividend reinvestment, customer stock purchase and
other plans.
Certain of the Underwriters engage in (or in the future may engage in)
transactions with, and provide services for, the Company or its affiliates in
the ordinary course of business. Morgan Stanley & Co. Incorporated represented
Synergy in connection with the acquisition of Synergy by the Company described
under "Acquisition of Synergy Group Incorporated" included in the accompanying
Prospectus.
S-7
<PAGE>
NatWest Securities Limited ("NatWest"), a United Kingdom broker-dealer and a
member of the Securities Futures Authority Limited, has agreed that, as part of
the distribution of the Common Stock and subject to certain exceptions, it will
not offer or sell any Common Stock within the United States, its territories or
possessions or to persons who are citizens thereof or residents therein. The
Underwriting Agreement does not limit sale of the Common Stock offered hereby
outside the United States.
NatWest has further represented and agreed that (i) it has not offered or
sold and will not offer or sell any Common Stock offered hereby 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 which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning 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 Common Stock in, from or otherwise involving the United Kingdom, and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the Common
Stock to a person who is of the kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a
person to whom such document may otherwise lawfully be issued or passed on.
S-8
<PAGE>
PROSPECTUS
$200,000,000
NORTHWESTERN PUBLIC SERVICE COMPANY
MORTGAGE BONDS
SUBORDINATED DEBT SECURITIES
COMMON STOCK
NWPS CAPITAL FINANCING I
NWPS CAPITAL FINANCING II
NWPS CAPITAL FINANCING III
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
NORTHWESTERN PUBLIC SERVICE COMPANY
-----------------
NORTHWESTERN PUBLIC SERVICE COMPANY, A DELAWARE CORPORATION (THE "COMPANY"),
MAY OFFER FROM TIME TO TIME, TOGETHER OR SEPARATELY, (I) MORTGAGE BONDS
("MORTGAGE BONDS"); (II) SUBORDINATED DEBT SECURITIES ("SUBORDINATED DEBT
SECURITIES"); AND (III) COMMON STOCK, PAR VALUE $3.50 PER SHARE ("COMMON
STOCK").
NWPS CAPITAL FINANCING I, NWPS CAPITAL FINANCING II AND NWPS CAPITAL
FINANCING III (EACH, A "NWPS TRUST"), EACH A STATUTORY BUSINESS TRUST FORMED
UNDER THE LAWS OF THE STATE OF DELAWARE, MAY OFFER, FROM TIME TO TIME, PREFERRED
SECURITIES REPRESENTING UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS OF THE
RESPECTIVE NWPS TRUSTS ("PREFERRED SECURITIES"). THE PAYMENT OF PERIODIC CASH
DISTRIBUTIONS ("DISTRIBUTIONS") WITH RESPECT TO PREFERRED SECURITIES OF A
PARTICULAR NWPS TRUST OUT OF MONEYS HELD BY THAT NWPS TRUST, AND PAYMENTS ON
LIQUIDATION, REDEMPTION OR OTHERWISE WITH RESPECT TO SUCH PREFERRED SECURITIES,
WILL BE GUARANTEED BY THE COMPANY TO THE EXTENT DESCRIBED HEREIN ("GUARANTEE").
SEE "DESCRIPTION OF THE GUARANTEES" BELOW. THE COMPANY'S OBLIGATIONS UNDER EACH
GUARANTEE ARE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ALL OTHER
LIABILITIES OF THE COMPANY AND RANK PARI PASSU WITH THE MOST SENIOR PREFERRED
STOCK ISSUED FROM TIME TO TIME BY THE COMPANY. THE SUBORDINATED DEBT SECURITIES
MAY BE ISSUED AND SOLD FROM TIME TO TIME IN ONE OR MORE SERIES BY THE COMPANY TO
A NWPS TRUST, OR A TRUSTEE OF SUCH TRUST, IN CONNECTION WITH THE INVESTMENT OF
THE PROCEEDS FROM THE OFFERING OF PREFERRED SECURITIES AND COMMON SECURITIES (AS
DEFINED HEREIN) OF SUCH NWPS TRUST. THE SUBORDINATED DEBT SECURITIES PURCHASED
BY A NWPS TRUST MAY BE SUBSEQUENTLY DISTRIBUTED PRO RATA TO HOLDERS OF PREFERRED
SECURITIES AND COMMON SECURITIES IN CONNECTION WITH THE DISSOLUTION OF SUCH NWPS
TRUST UPON THE OCCURRENCE OF CERTAIN EVENTS AS MAY BE DESCRIBED IN AN
ACCOMPANYING PROSPECTUS SUPPLEMENT. THE SUBORDINATED DEBT SECURITIES WILL BE
UNSECURED AND SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO CERTAIN OTHER
INDEBTEDNESS OF THE COMPANY AS MAY BE DESCRIBED IN THE ACCOMPANYING PROSPECTUS
SUPPLEMENT.
THE MORTGAGE BONDS, SUBORDINATED DEBT SECURITIES AND COMMON STOCK OF THE
COMPANY, AND THE PREFERRED SECURITIES OF ANY NWPS TRUST, ARE COLLECTIVELY
REFERRED TO HEREIN AS THE "OFFERED SECURITIES."
THE OFFERED SECURITIES MAY BE ISSUED IN ONE OR MORE SERIES OR ISSUANCES IN
AN AMOUNT NOT TO EXCEED IN THE AGGREGATE $200,000,000, BASED ON THE INITIAL
OFFERING PRICE, WITH THE AMOUNTS, PRICES AND TERMS TO BE DETERMINED AT OR PRIOR
TO THE TIME OF SALE AND SET FORTH IN ONE OR MORE SUPPLEMENTS TO THIS PROSPECTUS
(EACH, A "PROSPECTUS SUPPLEMENT").
(CONTINUED ON FOLLOWING PAGE)
------------------------
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.
-------------------
THE OFFERED SECURITIES WILL BE SOLD DIRECTLY, THROUGH AGENTS, UNDERWRITERS
AND DEALERS, INCLUDING MORGAN STANLEY & CO. INCORPORATED, AS DESIGNATED FROM
TIME TO TIME, OR THROUGH A COMBINATION OF SUCH METHODS. SEE "PLAN OF
DISTRIBUTION." THE NAMES OF SUCH AGENTS, UNDERWRITERS OR DEALERS AND ANY
APPLICABLE COMMISSIONS OR DISCOUNTS WILL BE SET FORTH IN, OR MAY BE CALCULATED
FROM, THE PROSPECTUS SUPPLEMENT. SEE "PLAN OF DISTRIBUTION" FOR A DESCRIPTION OF
ANY INDEMNIFICATION ARRANGEMENTS BETWEEN THE COMPANY, EACH OF THE NWPS TRUSTS
AND ANY UNDERWRITERS, DEALERS OR AGENTS.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
MORGAN STANLEY & CO.
INCORPORATED
AUGUST 16, 1995
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
CERTAIN SPECIFIC TERMS OF THE PARTICULAR OFFERED SECURITIES IN RESPECT OF
WHICH THIS PROSPECTUS IS BEING DELIVERED WILL BE SET FORTH IN AN ACCOMPANYING
PROSPECTUS SUPPLEMENT, INCLUDING, WHERE APPLICABLE, THE INITIAL PUBLIC OFFERING
PRICE OF THE OFFERED SECURITIES, THE NET PROCEEDS THEREOF TO THE COMPANY OR A
NWPS TRUST, AS APPLICABLE, ANY LISTING OF SUCH OFFERED SECURITIES ON A
SECURITIES EXCHANGE AND ANY OTHER SPECIAL TERMS. THE PROSPECTUS SUPPLEMENT WILL
ALSO SET FORTH CERTAIN OTHER INFORMATION WITH REGARD TO OFFERED SECURITIES BEING
OFFERED, INCLUDING WITHOUT LIMITATION, THE FOLLOWING: (I) IN THE CASE OF
MORTGAGE BONDS, THE SERIES DESIGNATION, AGGREGATE PRINCIPAL AMOUNT, AUTHORIZED
DENOMINATIONS, MATURITY, INTEREST RATE (WHICH MAY BE FIXED OR VARIABLE) OR
METHOD OF CALCULATION OF INTEREST AND DATE OF PAYMENT OF ANY INTEREST, AND ANY
EXCHANGE, CONVERSION, REDEMPTION, SINKING FUND, OR CREDIT ENHANCEMENT PROVISIONS
AND OTHER SPECIAL TERMS OF EACH SERIES; (II) IN THE CASE OF SUBORDINATED DEBT
SECURITIES, THE SPECIFIC DESIGNATION, AGGREGATE PRINCIPAL AMOUNT, AUTHORIZED
DENOMINATION, MATURITY, INTEREST RATE (WHICH MAY BE FIXED OR VARIABLE) OR METHOD
OF CALCULATION OF INTEREST, DATE OF PAYMENT OF ANY INTEREST, ANY PREMIUM, THE
PLACE OR PLACES WHERE PRINCIPAL OF, PREMIUM, IF ANY, AND ANY INTEREST ON SUCH
SUBORDINATED DEBT SECURITIES WILL BE PAYABLE, THE RIGHT OF THE COMPANY, IF ANY,
TO DEFER PAYMENT OF INTEREST ON THE SUBORDINATED DEBT SECURITIES AND THE MAXIMUM
LENGTH OF SUCH DEFERRAL PERIOD, ANY EXCHANGE, CONVERSION, REDEMPTION OR SINKING
FUND PROVISIONS, AND ANY SECURITY, SUBORDINATION OR OTHER TERMS IN CONNECTION
WITH THE OFFERING AND SALE OF THE SUBORDINATED DEBT SECURITIES IN RESPECT OF
WHICH THIS PROSPECTUS IS DELIVERED; (III) IN THE CASE OF COMMON STOCK, THE
NUMBER OF SHARES AND THE TERMS OF OFFERING THEREOF; AND (IV) IN THE CASE OF
PREFERRED SECURITIES, THE DESIGNATION, NUMBER OF SECURITIES, LIQUIDATION
PREFERENCE PER SECURITY, DISTRIBUTION RATE (OR METHOD OF CALCULATION THEREOF),
DATES ON WHICH DISTRIBUTIONS SHALL BE PAYABLE AND DATES FROM WHICH DISTRIBUTIONS
SHALL ACCRUE, ANY VOTING RIGHTS, ANY EXCHANGE, CONVERSION, REDEMPTION OR SINKING
FUND PROVISIONS, ANY OTHER RIGHTS, PREFERENCES, PRIVILEGES, LIMITATIONS OR
RESTRICTIONS RELATING TO THE PREFERRED SECURITIES AND THE TERMS UPON WHICH THE
PROCEEDS OF THE SALE OF THE PREFERRED SECURITIES SHALL BE USED TO PURCHASE A
SPECIFIC SERIES OF SUBORDINATED DEBT SECURITIES OF THE COMPANY. IF SO SPECIFIED
IN THE APPLICABLE PROSPECTUS SUPPLEMENT, OFFERED SECURITIES MAY BE ISSUED IN
WHOLE OR IN PART IN THE FORM OF ONE OR MORE TEMPORARY OR GLOBAL SECURITIES.
THE PROSPECTUS SUPPLEMENT WILL ALSO CONTAIN INFORMATION, WHERE APPLICABLE,
ABOUT CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS RELATING TO THE
OFFERED SECURITIES COVERED BY THE PROSPECTUS SUPPLEMENT.
<PAGE>
AVAILABLE INFORMATION
The Company and the NWPS Trusts have filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (including
any amendments thereto, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Offered
Securities. This Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules thereto, certain
portions of which have been omitted pursuant to the rules of the Commission.
Statements made in this Prospectus as to the contents of any contract, agreement
or other document are not necessarily complete. With respect to each such
contract, agreement or other document filed or incorporated by reference as an
exhibit to the Registration Statement, reference is made to such exhibit for a
more complete description of the matter involved, and each such statement is
qualified in its entirety by such reference.
The Company and Synergy Group Incorporated ("Synergy"), a corporation which
the Company acquired (see "Acquisition of Synergy Group Incorporated"), are
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith file reports
and other information with the Commission, including proxy statements in the
case of the Company, but not Synergy. Reports, proxy statements and other
information filed by the Company and Synergy with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661 and at Seven World
Trade Center, 13th Floor, New York, New York 10048. Copies of such materials may
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Such reports, proxy
statements and other information concerning the Company may also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, on which exchange certain of the Company's securities are listed.
Information in this Prospectus concerning Synergy has been obtained from reports
and other information filed by Synergy with the Commission.
No separate financial statements of any of the NWPS Trusts have been
included herein. The Company and the NWPS Trusts do not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the common securities of the NWPS Trusts will be owned,
directly or indirectly, by the Company, a reporting company under the Exchange
Act, (ii) each of the NWPS Trusts is a newly organized special purpose entity,
has no operating history and has no independent operations but exists for the
sole purpose of issuing securities representing undivided beneficial interests
in the assets of such NWPS Trust, investing the proceeds thereof in Subordinated
Debt Securities issued by the Company and engaging in activities necessary or
incidental thereto, and (iii) the obligations of each of the NWPS Trusts under
the Trust Securities (as defined herein) are fully and unconditionally
guaranteed by the Company to the extent that such NWPS Trust has funds legally
available to meet such obligations. See "Description of the Subordinated Debt
Securities" and "Description of the Guarantees."
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1994;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
(d) The Company's Current Report on Form 8-K filed May 26, 1995;
(e) The Company's Current Report on Form 8-K filed June 21, 1995; and
(f) The Company's Current Report on Form 8-K filed July 27, 1995.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), or 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from
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the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, or in the
Prospectus Supplement for the offering of the particular Offered Securities,
modifies or supersedes such statement. Any such 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, ON THE
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS
REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY
INCORPORATED BY REFERENCE INTO THE INFORMATION THAT THE PROSPECTUS INCORPORATES.
REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO MS. ROGENE THADEN, TREASURER,
NORTHWESTERN PUBLIC SERVICE COMPANY, 33 THIRD STREET S.E., HURON, SOUTH DAKOTA
57350-1318, TELEPHONE NUMBER 605-353-8320.
THE COMPANY
The Company's principal business is energy distribution. The Company is
engaged as an electric and gas utility in generating, transmitting,
distributing, and selling electric energy in eastern South Dakota, where it
furnishes electric service to approximately 54,900 customers in more than 100
communities and adjacent rural areas and in purchasing, distributing, selling,
and transporting natural gas to approximately 75,000 customers in four
communities in Nebraska and 56 communities in eastern South Dakota. The Company,
through its subsidiaries, is also engaged in certain nonutility operations as
more fully discussed under the caption "Nonutility Operations" and has recently
acquired Synergy Group Incorporated, a major propane distribution company. See
"Acquisition of Synergy Group Incorporated." The Company was incorporated under
the laws of the State of Delaware in 1923 and has its principal office at 33
Third Street S.E., Huron, South Dakota 57350-1318. Its telephone number is
605-352-8411.
ELECTRIC BUSINESS
On a fully consolidated basis, 46% of the Company's 1994 operating revenues
were from the sale of electric energy. All of the Company's electric revenues
are derived from customers in South Dakota.
By customer category, 33% of 1994 total electric sales were from residential
sales, 50% were from commercial and industrial sales, 2% was from street
lighting and sales to public authorities, and 15% were from sales for resale.
The Company has relatively few large customers in its service territory.
Sales for resale primarily include power pool sales to other utilities.
Power pool sales fluctuate from year to year depending on a number of factors
including the Company's availability of excess short-term generation and the
ability to sell the excess power to other utilities in the power pool. The
Company also sells power and energy at wholesale to certain municipalities for
resale and to various governmental agencies.
The Company shares in the ownership of the Big Stone Generating Plant ("Big
Stone"), located near Big Stone City in northeastern South Dakota, the Coyote I
Electric Generating Plant ("Coyote"), located near Beulah, North Dakota, and the
Neal Electric Generating Unit #4 ("Neal"), located near Sioux City.
At December 31, 1994, the aggregate net summer peaking capacity of all
Company owned electric generating units was 309,480 kw, consisting of 105,711 kw
from Big Stone (the Company's 23.4% share), 42,600 kw from Coyote (the Company's
10.0% share), 54,169 kw from Neal (the Company's 8.7% share), and 107,000 kw
from internal combustion turbine units and small diesel units, used primarily
for peaking purposes.
The Company is a summer peaking utility. The 1994 peak demand of 229,922 kw
occurred on July 18, 1994. Total system capability at the time of peak was
309,480 kw. The reserve margin for 1994 was 35%. The minimum reserve margin
requirement as determined by the members of the Mid-Continent Area Power Pool,
of which the Company is a member, is 15%.
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The Company has an integrated resource plan to identify how to meet the
energy needs of its customers. The plan includes estimates of customer usage and
programs to provide for economic, reliable, and timely supplies of energy. The
plan does not anticipate the need for additional baseload generating capacity
for the Company for at least the next 10 years.
All of the Company's baseload plants are fueled by coal. The Company has
maintained competitive electric rates when compared to neighboring utilities and
has a competitive electric baseload generating production cost, which includes
fuel and plant operating expenses, of less than 1.5 CENTS per kilowatt hour.
Lignite and sub-bituminous coal were utilized by the Company as fuel for
virtually all of the electric energy generated during 1994. The continued
delivery of lignite and sub-bituminous coal to the three large steam generating
units in which the Company is part owner is reasonably assured by contracts
covering various periods of the operating lives of these units.
GAS BUSINESS
On a fully consolidated basis, 40% of the Company's 1994 operating revenues
were from the sale of gas energy. During 1994, the Company derived 56% of its
gas revenues from South Dakota and 44% from Nebraska. The Company's peak daily
sendout was 128,700 MMBTU.
For the year ended December 1994, 44% of the Company's gas sales were from
residential customers and 56% of sales were from commercial and industrial
sales. During the last five years the Company has expanded its gas distribution
operations to serve 29 new communities in South Dakota.
The Company owns and operates natural gas distribution systems serving
approximately 36,000 customers in eastern South Dakota, for which it purchases
gas from various gas marketing firms under gas transportation service agreements
with various gas marketing firms. These agreements provide for firm deliverable
pipeline capacity of approximately 49,300 MMBTU per day in South Dakota. The
Company has service agreements with Northern Natural Gas Company ("NNG")
providing for firm transportation of natural gas. While NNG has eliminated
nearly all of its gas supply activities, the Company has supply contracts in
place and peak shaving capacity to meet its peak day system needs.
In Nebraska, the Company owns and operates natural gas distribution systems
serving approximately 39,000 retail customers in the village of Alda and the
cities of Grand Island, Kearney, and North Platte, Nebraska. The Company
purchases much of its natural gas for these systems from KN Gas Supply Co. under
a seven-year service agreement entered into in 1993. The Company also purchases
certain quantities of gas for its Nebraska customers from various gas marketing
firms. These agreements provide for firm deliverable pipeline capacity of
approximately 49,600 MMBTU per day in Nebraska.
To supplement firm gas supplies, the Company has contracts for underground
natural gas storage services to meet the heating season and peak day
requirements of its gas customers. In addition, the Company owns and operates
six propane-air plants with a total rated capacity of 18,000 MMBTU per day, or
approximately 14% of peak day requirements. The propane-air plants provide an
economic alternative to pipeline transportation charges to meet the extreme
peaks caused by customer demand on extremely cold days.
A few of the Company's industrial customers purchase their natural gas
requirements directly from gas marketing firms for transportation and delivery
through the Company's distribution system. The transportation rates have been
designed to make the Company economically indifferent as to whether the Company
sells and transports gas or only transports gas.
COMPETITION
Although the Company's electric service territory is assigned according to
the South Dakota Public Utilities Act, and the Company has the right to provide
electric service to present and future electric customers in its assigned
service area for so long as the service provided is deemed adequate, the energy
industry in general has become increasingly competitive. Electric service also
competes with other forms of energy and the degree of competition may vary from
time to time depending on relative costs and supplies of other forms of energy.
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The National Energy Policy Act of 1992 was designed to promote energy
efficiency and increased competition in the electric wholesale markets. Such Act
also allows the Federal Energy Regulatory Commission ("FERC") to order wholesale
wheeling by public utilities to provide utility and nonutility generators access
to public utility transmission facilitates. The FERC is currently investigating
a restructuring of the electric utility industry. Many states are currently
considering retail wheeling, which aims to provide all customers with the right
to choose their electricity supplier. No regulatory proposals have yet been
formally introduced in South Dakota.
FERC Order 636 requires, among other provisions, that all companies with
natural gas pipelines separate natural gas supply or production services from
transportation service and storage businesses. This allows gas distribution
companies, such as the Company, and individual customers to purchase gas
directly from producers, third parties, and various gas marketing entities and
transport it through the suppliers' pipelines. While Order 636 had positive
aspects by providing for more diversified supply and storage options, it also
required the Company to assume responsibility for the procurement,
transportation, and storage of natural gas. The alternatives now available under
Order 636 create additional pressure on all distribution companies to keep gas
supply and transportation pricing competitive, particularly for large customers.
WEATHER
Weather fluctuations in the Company's service area have the greatest
influence on the Company's revenues from year to year. Typically gas sales peak
when colder winter weather patterns create increased winter heating needs while
sales decline during warmer winter periods. Electric sales peak during warmer
summer periods due to increased air conditioning sales while cooler summer
weather patterns produce less sales of electric energy.
REGULATION
The Company is a "public utility" within the meaning of the Federal Power
Act and the South Dakota Public Utilities Act and, as such, is subject to the
jurisdiction of, and regulation by, FERC with respect to issuance of securities,
the South Dakota Public Utilities Commission ("PUC") with respect to electric
service territories, and both FERC and the PUC with respect to rates, service,
accounting records, and in other respects. The State of Nebraska has no
centralized regulatory agency which has jurisdiction over the Company's
operations in that state; however, the Company's natural gas rates are subject
to regulation by the municipalities in which it operates.
Under the South Dakota Public Utilities Act, enacted in 1975, a requested
rate increase may be implemented by the Company 30 days after the date of its
filing unless its effectiveness is suspended by the PUC and, in such event, can
be implemented subject to refund with interest six months after the date of
filing, unless sooner authorized by the PUC. The Company's electric rate
schedules provide that it may pass along to all classes of customers qualified
increases or decreases in the cost of fuel used in its generating stations and
in the cost of fuel included in purchased power. A purchased gas adjustment
provision in its gas rate schedules permits the company to pass along to gas
customers increases or decreases in the cost of purchased gas.
The Company's last electric rate increase amounted to less than 1% in May,
1985. On May 26, 1994, the Company filed for a $2.4 million increase in South
Dakota natural gas revenues. As a result of a negotiated settlement with the PUC
on November 15, 1994, the Company implemented rates which will produce
additional annual natural gas revenues of $2.1 million, assuming normal weather,
representing an overall increase of 6.2%. On December 30, 1994, the Company
filed for a $2.7 million increase in rates applicable to its Nebraska natural
gas service area. Following a negotiated settlement, an annual increase of
$2.275 million has been implemented, effective July 1, 1995, an overall increase
of 8.7%.
CAPITAL SPENDING AND FINANCING
The Company's primary capital requirements include the funding of its
utility construction and expansion programs, the funding of debt and preferred
stock retirements and sinking fund requirements, and the funding of its
corporate development and investment activities.
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Expenditures for regulated utility construction activities for 1994, 1993,
and 1992 were $22.7 million, $20.0 million, and $18.5 million. Construction
expenditures during the last three years included expenditures related to the
installation of an additional 43 mw of internal electric peaking capacity, the
expansion of the Company's natural gas system into 29 additional communities in
eastern South Dakota, and to construction of an operations center which will
provide future cost savings and operating efficiencies through consolidation of
activities. Construction expenditures for the Company's regulated utility
businesses are estimated to be $19.3 million in 1995. The majority of these
projected expenditures will be spent on enhancements of the electric and gas
distribution systems and completion of the operations center. Estimated
construction expenditures for the Company's regulated utility businesses for the
years 1995 through 1999 are expected to be approximately $69 million.
Capital requirements for the mandatory retirement of long-term debt and the
mandatory preferred stock sinking fund redemption totaled $600,000, $180,000,
and $513,000, for the years ended 1994, 1993, and 1992. It is expected that such
mandatory retirements will be $600,000 in 1995, $1,080,000 in 1996, $570,000 in
1997, $20.6 million in 1998, and $13.5 million in 1999.
NONUTILITY OPERATIONS
NORTHWESTERN GROWTH CORPORATION ("NGC"). NGC was incorporated under the laws
of South Dakota in 1994 to pursue and manage nonutility investments and
development activities. Although the primary focus of NGC's investment program
will be to seek growth opportunities in the energy, energy equipment, and energy
services industries, NGC is also pursuing opportunities in existing and emerging
growth entities in nonenergy industries that meet return and capital gain
requirements. Along with a portfolio of marketable securities, NGC's assets
include the investments of three subsidiaries: Northwestern Networks, Inc.,
Northwestern Systems, Inc., and SYN Inc.
NORTHWESTERN NETWORKS, INC. ("NNI"). NNI was incorporated in South Dakota in
1986. NNI holds a common stock investment in LodgeNet Entertainment Corporation,
a provider of television entertainment and information systems to hotels and
motels.
NORTHWESTERN SYSTEMS, INC. ("NSI"). NSI was incorporated in South Dakota in
1986. NSI owns all of the common stock of Lucht, Inc., a firm that develops,
manufactures, and markets multi-image photographic printers and other related
equipment.
SYN INC. ("SYN"). SYN, a Delaware corporation, owns all of the common stock
of Synergy Group Incorporated, a major propane distributor. See "Acquisition of
Synergy Group Incorporated."
GRANT, INC. Grant, Inc., which holds title to property not used in the
Company's utility business, was incorporated in South Dakota in 1972.
ACQUISITION OF SYNERGY GROUP INCORPORATED
GENERAL
On August 15, 1995, SYN acquired Synergy Group Incorporated, a Delaware
corporation ("Synergy") and its subsidiaries and certain operating equipment
which Synergy has been leasing from S&J Investments (the "Acquisition"),
pursuant to the Purchase and Sale Agreement dated May 17, 1995 (the "Acquisition
Agreement") among SYN, Synergy, S&J Investments and the stockholders of Synergy
(the "Synergy Stockholders").
The Acquisition expanded the Company's energy distribution business, which
previously was primarily regulated electric and gas utility distribution. See
"The Company". Two of the Company's corporate objectives are intended to be
accomplished through the Acquisition. The immediate objective is to expand the
Company's energy distribution business. The second objective is to use the
business acquired from Synergy as a base for additional acquisitions in the
propane distribution industry which, unlike the Company's electric and gas
public utility business, is not regulated as to rates or territory served. The
Company is currently considering the acquisition of a small propane distributor.
The propane distribution industry
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currently consists of approximately 8,000 retail propane marketing companies in
the continental United States, with propane being the fourth largest source of
energy marketed at retail in the United States, following electricity, natural
gas and fuel oil.
As a result of the factors affecting Synergy's business, see "Business of
Synergy", the Company expects that its consolidated revenues and earnings may be
subject to increased variability following the Acquisition.
BUSINESS OF SYNERGY
Synergy, headquartered in Farmingdale, New York, is a multi-state marketer
principally engaged in the retail distribution of propane and other fuels for
residential, commercial, industrial, agricultural and other uses. Synergy's
propane sales during the past three fiscal years represented approximately 83%
of its annual revenues, of which the major portion (approximately 50% of propane
sales in the fiscal year ending March 31, 1995) resulted from sales to customers
who utilize propane for residential purposes, primarily for home heating, water
heating and cooking. The balance of propane sales are primarily for commercial,
industrial and agricultural use. Synergy also sells propane for use as engine
fuel for forklifts and over-the-road vehicles. Synergy currently maintains 152
retail branches which service approximately 200,000 customers in 23 states,
primarily in rural and suburban areas of the Northeast, Mid-Atlantic, Southeast
and Southcentral regions of the United States. According to available industry
data, Synergy is, based upon volume sold, one of the nation's 10 largest
retailers of propane.
Synergy also sells gasoline, diesel and aviation fuel, and appliances and
equipment which use propane, and is engaged in the sale, repair and leasing of
forklift trucks.
Synergy purchases propane from major domestic oil companies as well as
independent oil and liquid gas producers. These producers ship the propane via
pipeline to immediate supply terminals at which Synergy's large transport trucks
take delivery and transport the propane to bulk storage tanks. Synergy's fleet
of approximately 500 tank trucks delivers the propane from these bulk storage
facilities to approximately 193,000 propane storage tanks or cylinders which it
leases to its customers and which are located at customer premises. These tanks
are used exclusively to hold propane purchased from Synergy, thereby promoting
the stability of Synergy's customer base. While the cost and inconvenience of
switching tanks tends to minimize switching by customers among suppliers on the
basis of minimal price variations, it also makes it more difficult to obtain new
customers, other than through acquisitions, in areas where there are existing
relationships between potential customers and other distributors.
The retail propane industry is mature, with only limited growth in total
demand for the product foreseen. The Company expects the overall demand for
propane to remain relatively constant over the next several years, with
year-to-year industry volumes being impacted primarily by weather patterns.
Therefore, Synergy's ability to grow within the industry will be dependent on
its ability to acquire other retail distributors, on the success of opening new
district locations and on the success of its marketing efforts to acquire new
customers.
Synergy competes with other distributors of propane, including several major
companies and several thousand small independent operators. Synergy's ability to
compete effectively depends on the reliability of its service, its
responsiveness to customers and its ability to maintain competitive retail
prices.
Synergy competes for customers against suppliers of electricity, fuel oil
and natural gas. In the last two decades, many new homes were built, and older
homes converted to use electrical heating systems and appliances. Electricity is
a major competitor of propane, but propane generally enjoys a substantial
competitive price advantage over electricity. The Company believes that fuel oil
does not present a significant competitive threat in Synergy's primary service
areas because: (i) propane is a residue-free, cleaner energy source, (ii)
environmental concerns make fuel oil relatively unattractive, and (iii) fuel oil
appliances generally are not as efficient as propane appliances. Furnaces and
appliances that burn propane will not operate on fuel oil, and therefore a
conversion from one fuel to the other requires the installation of new
equipment. Synergy's customers will have an incentive to switch to fuel oil only
if fuel oil becomes significantly less expensive than propane. Synergy generally
does not attempt to sell propane in areas served by natural gas distribution
systems, except sales for specialized industrial applications because the price
per equivalent
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energy unit of propane is, and has historically been, higher than that of
natural gas. To use natural gas, however, a retail customer must be connected to
a distribution system provided by a local utility. Natural gas is not expected
by management of the Company to create significant competition for Synergy in
areas that are not currently served by natural gas distribution systems because
of the costs involved in building or connecting to a natural gas distribution
system.
The propane gas distribution business is affected by economic and other
factors, some of which are beyond the control of the Synergy, such as weather
conditions. Synergy's business is highly seasonal, with a substantial portion of
its revenues customarily being generated during the six month winter period
ending in March. Synergy's business was adversely affected by unusually warm
winter conditions in fiscal 1995. Warm winter conditions in the future periods
may adversely affect Synergy's revenues, operating income and cash flow in such
years.
The retail propane business is a "margin-based" business in which gross
profits are dependent upon the excess of the sales price over the propane supply
costs. Propane is a commodity, and, as such, its unit price is subject to
changes in response to changes in supply or other market conditions.
Consequently, the unit price of propane purchased by Synergy, as well as other
marketers, can change rapidly over a short period. In general, product supply
contracts permit suppliers to charge posted prices at the time of delivery or
the current prices established at major storage points. If rapid increases in
the wholesale cost of propane cannot be immediately passed on to retail
customers, such increases may reduce margins on retail sales. Consequently,
Synergy's profitability will be sensitive to changes in wholesale propane
prices.
According to public reports filed by Synergy with the Commission, Synergy
incurred substantial net losses in each of its last five fiscal years. As a
result of such net losses, Synergy has been in default under certain of its debt
covenants and the audit report prepared by Synergy's independent accountants
relating to Synergy's financial statements for the last two fiscal years noted
that Synergy's recurring losses from operations, net capital deficiency and
default on certain of its debt "raise substantial doubt about the entity's
ability to continue as a going concern." Although Synergy has recorded net
losses during each of the last five years, its operating income for the years
ended March 31, 1995 and 1994 was approximately $6,492,000 and $4,090,000,
respectively. See "Management of Synergy" for a description of the Company's
financing plans and anticipated operating efficiencies which the Company
believes will substantially improve Synergy's results of operations following
the Acquisition.
ACQUISITION CONSIDERATION
The consideration paid by SYN for the Acquisition, in addition to assuming
various liabilities of Synergy and its subsidiaries, consisted of (i) cash in
the amount of $137,500,000, which amount will be subject to adjustment upward or
downward based upon the working capital of Synergy (as specifically defined in
the Acquisition Agreement), which adjustment was estimated to be an upward
adjustment of $3,358,000 at the time of closing of the Acquisition, (ii) a
promissory note payable by SYN in the principal amount of $1,250,000, and (iii)
the issuance to the Synergy Stockholders of 17,500 shares of the Common Stock of
SYN (17.5% of the total outstanding) and 2,500 shares of the 15% Series A
Cumulative Preferred Stock of SYN (valued at $2,500,000), such shares of
preferred stock being part of a series of preferred stock of SYN for which the
remaining 50,000 shares were issued to the Company in exchange for a $50,000,000
portion of the long-term financing which the Company provided to SYN.
Substantially all of Synergy's loan indebtedness ($88.2 million) was paid from
the cash portion of the consideration for the Acquisition.
MANAGEMENT OF SYNERGY
The Acquisition was made in association with Empire Gas Corporation ("Empire
Gas"), a large propane distribution company headquartered in Lebanon, Missouri,
which has a management experienced in the retail propane distribution business.
NGC and SYN have entered into a management agreement (the "Management
Agreement") with Empire Gas, pursuant to which Empire Gas has been engaged to
perform the planning and management of the assets and business operations of SYN
and its subsidiaries, subject to the direction of the Board of Directors of SYN,
following the Acquisition (the "Management Services").
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It is planned that substantial changes will be made in the management and
operation of the acquired business in order to achieve improvement in the
results of operations of the business. NGC and Empire Gas will implement
significant cost efficiency measures to reduce Synergy's operating, selling and
general and administrative expenses. These measures include the elimination of
employee positions, corporate overhead and field location operating expenses.
The Synergy headquarters office operations will be consolidated with the Empire
Gas corporate offices in Lebanon, Missouri, resulting in substantial expense
savings. Another significant portion of the expense reductions is represented by
the elimination of compensation and vehicle lease expenses previously paid to
the Synergy Stockholders. In addition to operating cost reductions, the
Company's post acquisition financing and capitalization plan for Synergy will
reduce overall financing expenses and provide capital for growth that was not
available prior to the acquisition. See "Northwestern Public Service Company and
Synergy Group Incorporated Pro Forma Financial Information."
As compensation for the Management Services, SYN will pay Empire Gas a Fixed
Fee and a Management Fee. The Fixed Fee is intended to cover Empire Gas'
operating overhead in performing the Management Services and initially will be
$3,250,000 per annum, subject to adjustment annually based upon increases in the
Consumer Price Index. The Management Fee will be at the rate of $500,000 per
annum plus 10% of the amount by which the earnings before interest, taxes,
depreciation and amortization of SYN and its subsidiaries, on a consolidated
basis, exceed certain threshold amounts.
Empire Gas purchased 10% of the common stock of SYN for $10,000 and will
have an ongoing option to purchase from NGC an additional 20% of the common
stock of SYN for $20,000. However, according to the formula stated in another
agreement among SYN, Empire Gas and NGC, NGC will be allowed to reacquire from
Empire Gas up to 7,500 shares of such common stock of SYN, without payment, if
Empire Gas fails to achieve certain cumulative results from the management of
SYN and its subsidiaries while the Management Agreement remains in effect.
The term of the Management Agreement extends to June 30, 2000 and continues
year to year thereafter unless terminated earlier by SYN or Empire Gas. The
Management Agreement may be terminated by either party prior to the expiration
of the term on any one of several grounds specified in the Agreement. The
Management Agreement includes a right of termination by SYN if its operating
results do not exceed prescribed thresholds which increase annually as specified
therein. In the event the Company receives notice that the Management Agreement
will be terminated by Empire Gas, SYN has the right to the use of the personnel
and facilities of Empire Gas for a period of up to 18 months following such
notice by Empire Gas, while developing an alternative for Empire Gas' services.
THIRD PARTY SALE
NGC and SYN have sold certain of the retail branches acquired by SYN from
Synergy to an unrelated third party (the "Third Party Sale"). The purchase price
for the Third Party Sale was cash in the amount of approximately $38 million,
which amount will be subject to adjustment upward or downward based upon certain
closing date financial information relating to the retail branches acquired.
8
<PAGE>
CAPITALIZATION OF SYN
The capitalization of SYN, taking into account the financing provided to SYN
by the Company and NGC from the net proceeds of certain of the securities being
offered pursuant to this Prospectus (see "Use of Proceeds"), is as follows:
<TABLE>
<S> <C>
Common Stock (100,000 shares outstanding):
NGC (72,500 shares) (1)............................................ $ 72,500
Empire Gas (10,000 shares) (1)...................................... 10,000
Former Synergy Stockholders (17,500 shares) (2)..................... 17,500
$ 100,000
15% Series A Cumulative Preferred Stock (52,500 shares outstanding):
Company (50,000 shares)............................................. $ 50,000,000
Former Synergy Stockholders (2,500 shares) (2)...................... 2,500,000
$ 52,500,000
Long Term Debt:
Secured Term Loan from NGC (3)...................................... $ 54,500,000
Total Capitalization.............................................. $107,100,000
<FN>
------------------------
(1) Empire Gas has an option to purchase 20,000 of the shares owned by NGC for
a price of $1 per share.
(2) Issued to Former Synergy Stockholders as part of Acquisition consideration.
(3) The Company anticipates that SYN will obtain a bank borrowing facility to
fund SYN's working capital needs.
</TABLE>
9
<PAGE>
NORTHWESTERN PUBLIC SERVICE COMPANY AND
SYNERGY GROUP INCORPORATED
PRO FORMA FINANCIAL INFORMATION
Set forth below are summary financial data extracted from the audited
consolidated statement of operations of the Company for the year ended December
31, 1994, the unaudited consolidated financial statements of the Company as of
June 30, 1995, and for the six months then ended; the summary financial data
extracted from the unaudited statement of operations of Synergy for the 12
months ended December 31, 1994 and for the six months ended June 30, 1995, and
balance sheet information as of June 30, 1995; and the pro forma financial
information for the Company ("the Pro Forma Financial Information") for the year
ended December 31, 1994, for the six months ended June 30, 1995, and as of June
30, 1995, based on such historical financial statements, to illustrate the
effects of the Acquisition. The Pro Forma Financial Information illustrates the
effects of the Acquisition as adjusted to give effect to the Third Party Sale.
(See "Acquisition of Synergy Group Incorporated.")
The Acquisition will be accounted for using the purchase method of
accounting. The total purchase price of the Acquisition will be allocated to
Synergy's tangible and intangible assets and liabilities based upon their
respective fair values. The allocation of the aggregate purchase price included
in the Pro Forma Financial Information is preliminary, but the final allocation
of the purchase price is not expected to differ materially from the preliminary
allocation. The financing plan to be executed for the funding of the Acquisition
is expected to be as presented in the Pro Forma Financial Information. Although
market conditions may impact certain financing options and assumptions as to
interest and dividend rates, the overall financing plan is not expected to vary
materially from that presented.
The pro forma statements of operations for the year ended December 31, 1994
and for the six months ended June 30, 1995, give effect to the Acquisition, and
the related transactions as if they had occurred on January 1, 1994. The pro
forma balance sheet as of June 30, 1995 has been prepared as if the transaction
had occurred on that date. The pro forma financial information does not purport
to present the financial position or results of operations of the Company had
the Acquisition actually been completed as of the dates indicated. In addition,
the pro forma financial information is not necessarily indicative of future
results of operations and should be read in conjunction with the historical
consolidated financial statements of the Company incorporated by reference
herein.
10
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ESTIMATED
EFFECTS OF
PARTIAL SALE
OF ASSETS TO
NPS SYNERGY UNRELATED PRO FORMA
HISTORICAL HISTORICAL THIRD PARTY(A) SUBTOTAL ADJUSTMENT PRO FORMA
---------- ---------- -------------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Operating Revenue............................ $ 157,266 $ 128,182 $(28,814) $256,634 -- $256,634
Cost of Product Sold......................... 80,457 62,242 (14,748) 127,951 -- 127,951
---------- ---------- -------------- -------- ----------- ---------
Gross Profit................................. 76,809 65,940 (14,066) 128,683 -- 128,683
---------- ---------- -------------- -------- ----------- ---------
Operating Costs and Expenses
Operating and maintenance expenses......... 18,191 44,663 (10,046) 52,808 $(4,181)(B) 48,627
General and administrative................. 9,707 14,239 -- 23,946 (4,944)(B) 19,002
Depreciation and amortization.............. 12,439 4,983 (905) 16,517 448(C) 16,965
Property and other taxes................... 6,104 -- -- 6,104 -- 6,104
---------- ---------- -------------- -------- ----------- ---------
46,441 63,885 (10,951) 99,375 (8,677) 90,698
---------- ---------- -------------- -------- ----------- ---------
Operating Income............................. 30,368 2,055 (3,115) 29,308 8,677 37,985
---------- ---------- -------------- -------- ----------- ---------
Other Income (Expense)
Investment income and other................ 2,611 1,185 -- 3,796 -- 3,796
Interest expense........................... (9,670) (11,994) -- (21,664) 7,504(D) (14,160)
Debt restructuring costs................... -- (2,976)(G) -- (2,976) -- (2,976)
---------- ---------- -------------- -------- ----------- ---------
(7,059) (13,785) -- (20,844) 7,504 (13,340)
---------- ---------- -------------- -------- ----------- ---------
Income (Loss) Before Income Taxes............ 23,309 (11,730) (3,115) 8,464 16,181 24,645
Provision (Credit) for Income Taxes.......... 7,869 (324) (94) 7,451 (269)(E) 7,182
---------- ---------- -------------- -------- ----------- ---------
Net Income................................. 15,440 (11,406) (3,021) 1,013 16,450 17,463
Dividends on Preferred Stock................. (120) -- -- (120) (2,043)(F) (2,163)
---------- ---------- -------------- -------- ----------- ---------
Net Income Available for Common............ $ 15,320 $ (11,406) $ (3,021) $ 893 $14,407 $ 15,300(G)
---------- ---------- -------------- -------- ----------- ---------
---------- ---------- -------------- -------- ----------- ---------
Net Income per Share......................... $ 2.00 $ 1.74(G)
---------- ---------
---------- ---------
Weighted Average Shares Outstanding.......... 7,677 8,805
---------- ---------
---------- ---------
Selected Financial Ratios
Interest coverage.......................... 5.14(H) 4.65
---------- ---------
---------- ---------
Ratio of earnings to fixed charges......... 3.39(H) 2.73(G)
---------- ---------
---------- ---------
Ratio of earnings to fixed charges,
including preferred dividends............. 3.33(H) 2.25(G)
---------- ---------
---------- ---------
</TABLE>
11
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1995
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ESTIMATED
EFFECTS OF
PARTIAL SALE
OF ASSETS TO
NPS SYNERGY UNRELATED PRO FORMA
HISTORICAL HISTORICAL THIRD PARTY(A) SUBTOTAL ADJUSTMENT PRO FORMA
---------- ---------- -------------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Operating Revenue............................ $ 90,862 $ 65,178 $(15,666) $140,374 $-- $140,374
Cost of Product Sold......................... 47,393 30,577 (8,011) 69,959 -- 69,959
---------- ---------- -------------- -------- ----------- ---------
43,469 34,601 (7,655) 70,415 -- 70,415
---------- ---------- -------------- -------- ----------- ---------
Operating Costs and Expenses
Operating and maintenance expenses......... 9,005 21,423 (4,949) 25,479 (403)(B) 25,076
General and administrative................. 5,253 1,808(G) -- 7,061 (1,259)(B) 5,802
Depreciation and amortization.............. 6,433 2,719 (450) 8,702 182(C) 8,884
Property and other taxes................... 3,340 -- -- 3,340 -- 3,340
---------- ---------- -------------- -------- ----------- ---------
24,031 25,950 (5,399) 44,582 (1,480) 43,102
---------- ---------- -------------- -------- ----------- ---------
Operating Income............................. 19,438 8,651 (2,256) 25,833 1,480 27,313
---------- ---------- -------------- -------- ----------- ---------
Other Income (Expense)
Investment income and other................ 1,314 575 -- 1,889 -- 1,889
Interest expense........................... (5,082) (4,795) -- (9,877) 2,483(D) (7,394)
Debt restructuring costs................... -- (24) -- (24) -- (24)
---------- ---------- -------------- -------- ----------- ---------
(3,768) (4,244) -- (8,012) 2,483 (5,529)
---------- ---------- -------------- -------- ----------- ---------
Income (Loss) Before Income Taxes............ 15,670 4,407 (2,256) 17,821 3,963 21,784
Provision (Credit) for Income Taxes.......... 5,519 (216) -- 5,303 261(E) 5,564
---------- ---------- -------------- -------- ----------- ---------
Net Income................................... 10,151 4,623 (2,256) 12,518 3,702 16,220
Dividends on Preferred Stock................. (59) -- -- (59) (1,022)(F) (1,081)
---------- ---------- -------------- -------- ----------- ---------
Net Income Available for Common.............. $ 10,092 $ 4,623 $ (2,256) $ 12,459 $ 2,680 $ 15,139(G)
---------- ---------- -------------- -------- ----------- ---------
---------- ---------- -------------- -------- ----------- ---------
Net Income per Share......................... $ 1.31 $ 1.72(G)
---------- ---------
---------- ---------
Weighted Average Shares Outstanding.......... 7,677 8,805
---------- ---------
---------- ---------
Selected Financial Ratios
Interest coverage.......................... 6.15(H) 5.30
---------- ---------
---------- ---------
Ratio of earnings to fixed charges......... 4.00(H) 3.89(G)
---------- ---------
---------- ---------
Ratio of earnings to fixed charges,
including preferred dividends............. 3.93(H) 3.26(G)
---------- ---------
---------- ---------
<FN>
------------------------
Note: The results of operations for Synergy for the six months ended June 30,
1995 are not indicative of a full year's results of operations.
</TABLE>
12
<PAGE>
UNAUDITED PRO FORMA BALANCE SHEET
JUNE 30, 1995
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ESTIMATED
EFFECTS OF
PARTIAL SALE
OF ASSETS TO
NPS SYNERGY UNRELATED PRO FORMA
HISTORICAL HISTORICAL THIRD PARTY(I) SUBTOTAL ADJUSTMENT PRO FORMA
---------- ---------- -------------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Current Assets
Cash....................................... $ 1,991 $ 5,323 $ 38,000 $ 45,314 ($38,000)(J) $ 7,314
Trade receivables.......................... 11,727 13,089 (3,352) 21,464 (1,858)(K) 19,606
Inventories................................ 13,066 11,137 (2,513) 21,690 (1,500)(K) 20,190
Prepaid expenses........................... -- 1,535 -- 1,535 -- 1,535
Other...................................... 5,163 -- -- 5,163 -- 5,163
---------- ---------- -------------- -------- ----------- ---------
31,947 31,084 32,135 95,166 (41,358) 53,808
---------- ---------- -------------- -------- ----------- ---------
Property and Equipment
At cost, net of accumulated depreciation... 255,268 69,070 (13,685) 310,653 8,115(K) 318,768
---------- ---------- -------------- -------- ----------- ---------
Other Assets (net)
Goodwill and other intangibles............. -- 2,327 (18,450) (16,123) 57,062(K) 40,939
Other...................................... 78,933 817 -- 79,750 (817)(K) 78,933
---------- ---------- -------------- -------- ----------- ---------
78,933 3,144 (18,450) 63,627 56,245 119,872
---------- ---------- -------------- -------- ----------- ---------
Total Assets............................... $ 366,148 $ 103,298 $-- $469,446 $ 23,002 $492,448
---------- ---------- -------------- -------- ----------- ---------
---------- ---------- -------------- -------- ----------- ---------
Current Liabilities
Commercial paper........................... $ 10,000 $ -- $-- $ 10,000 $ -- $ 10,000
Current maturities of long-term debt....... 570 87,342 -- 87,912 (87,342)(L) 570
Accounts payable and accrued expenses...... 25,880 11,156 -- 37,036 5,455(K) 42,491
---------- ---------- -------------- -------- ----------- ---------
36,450 98,498 -- 134,948 (81,887) 53,061
---------- ---------- -------------- -------- ----------- ---------
Other Liabilities
Deferred income taxes...................... 38,909 2,093 -- 41,002 (1,720)(L) 39,282
Unamortized investment tax credits......... 10,302 -- -- 10,302 -- 10,302
Deferred interest payable.................. -- 1,214 -- 1,214 (1,214)(L) --
Other...................................... 28,410 616 -- 29,026 -- 29,026
---------- ---------- -------------- -------- ----------- ---------
77,621 3,923 -- 81,544 (2,934) 78,610
---------- ---------- -------------- -------- ----------- ---------
Long Term Debt............................... 128,625 4,309 -- 132,934 49,395(M) 182,329
---------- ---------- -------------- -------- ----------- ---------
Company-Obligated Mandatorily Redeemable
Preferred Securities of Subsidiary Trust.... -- -- -- -- 24,212(N) 24,212
---------- ---------- -------------- -------- ----------- ---------
Cumulative Preferred Stock................... 2,610 41,700 -- 44,310 (41,700)(Q) 2,610
---------- ---------- -------------- -------- ----------- ---------
Common Stock Equity (Deficit)
Common stock............................... 26,870 41 -- 26,911 4,268(O) 31,179
Additional paid-in capital................. 29,923 5,284 -- 35,207 21,191(P) 56,398
Retained earnings.......................... 58,939 (50,457) -- 8,482 50,457(Q) 58,939
Unrealized gain on investments, net........ 5,110 -- -- 5,110 -- 5,110
---------- ---------- -------------- -------- ----------- ---------
120,842 (45,132) -- 75,710 75,916 151,626
---------- ---------- -------------- -------- ----------- ---------
Total Liabilities & Stockholders Equity.... $ 366,148 $ 103,298 -- $469,446 $ 23,002 $492,448
---------- ---------- -------------- -------- ----------- ---------
---------- ---------- -------------- -------- ----------- ---------
</TABLE>
13
<PAGE>
NOTES TO PRO FORMA FINANCIAL INFORMATION
A) Represents all relevant statement of operations effects, net of income taxes,
generated by the Third Party Sale.
B) Represents the following breakdown of reductions in operating costs and
expenses principally related to employee positions, corporate administrative
expenses and certain other specifically identified cost savings (in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS
12/31/94 ENDED
----------- 6/30/95
INCREASE -----------
(DECREASE)
<S> <C> <C>
Operating expenses --
1) Employee related expenses................................................... $ (1,834) $ (916)
2) Vehicle lease expenses...................................................... (2,047) 663
3) Store consolidations........................................................ (300) (150)
----------- -----------
Total..................................................................... $ (4,181) $ (403)
----------- -----------
----------- -----------
General and administrative expenses --
1) Employee related expenses................................................... $ (7,863) $ (2,670)
2) Occupancy costs............................................................. (643) (388)
3) Bank account charges........................................................ (188) (76)
4) Empire Gas general and administrative charge................................ 3,250 1,625
5) Empire Gas management fee................................................... 500 250
----------- -----------
Total..................................................................... $ (4,944) $ (1,259)
----------- -----------
----------- -----------
</TABLE>
All general and administrative functions previously performed at Synergy
headquarters would be undertaken by Empire Gas, Inc. under a management
agreement governing the operation of the Synergy properties. (See
"Acquisition of Synergy Group Incorporated.") Under the terms of the
management agreement, Empire Gas is compensated through a general and
administrative charge and a management fee arrangement.
The vehicle lease expenses are primarily attributable to property owned by
affiliates of existing Synergy shareholders. Such property was purchased as
a part of the acquisition transaction. The increase in lease expense for the
six months ended June 30, 1995 reflects the net effect of the elimination of
such lease expense and a reversal of the credit to expense created by a
$1,328,000 forgiveness by these same affiliates of accrued rental
obligations. In addition, general and administrative expense savings include
shareholder compensation.
C) Represents additional depreciation and amortization of fixed assets and
intangibles related to the adjustment of assets to fair market value in
accordance with the purchase method of accounting.
D) Represents interest expense savings associated with the retirement of
Synergy's debt as a result of the Acquisition net of additional interest
expense related to the Company issuing new debt securities.
14
<PAGE>
NOTES TO PRO FORMA FINANCIAL INFORMATION
The following table presents a reconciliation of the pro forma interest
expense to the historical interest expense for the year ended December 31,
1994, and the six months ended June 30, 1995 (in thousands):
<TABLE>
<CAPTION>
SIX
MONTHS
YEAR ENDED ENDED
12/31/94 6/30/95
---------- ---------
<S> <C> <C>
Historical interest expense --
The Company............................................................................... $ 9,670 $ 5,082
Synergy................................................................................... 11,994 4,795
---------- ---------
21,664 9,877
---------- ---------
Add: Interest on short-term bridge financing at an assumed rate of 7.5%.................... 649 321
Interest on new debt securities issued for permanent financing at an assumed rate of
7.5%.................................................................................. 3,639 1,892
Less: Interest on retired long-term debt of Synergy.................................. (11,792) (4,696)
---------- ---------
Pro forma adjustment........................................................................ (7,504) (2,483)
---------- ---------
Pro forma interest expense.................................................................. $ 14,160 $ 7,394
---------- ---------
---------- ---------
</TABLE>
E) Represents income tax effect of all pro forma adjustments. Such adjustments
assume Synergy will be a separate income tax filing and reporting entity.
F) Represents preferred stock dividend requirements related to the issuance of
new securities as part of the permanent financing. This dividend requirement
is based on an 8.5% pretax rate.
G) The net income of Synergy for the year ended December 31, 1994 includes a
nonrecurring charge of $2,976,000 for debt restructing costs. Had the debt
restructuring not occurred, pro forma net income available for common would
have been $18,276,000; pro forma net income per common share would have been
$2.08; ratio of earnings to fixed charges would have been 2.94x; and ratio
of fixed charges, including preferred dividends would have been 2.42x for
the year ended December 31, 1994.
The net income of Synergy for the six months ended June 30, 1995 includes a
nonrecurring credit to general and administrative expense of $4,326,000 for
the reversal of previously accrued shareholders' compensation. Had this
compensation adjustment not been made, pro forma net income available for
common would have been $10,813,000; pro forma net income per common share
would have been $1.23; ratio of earnings to fixed charges would have been
3.32x and ratio of earnings to fixed charges, including preferred dividends
would have been 2.74x for the six months ended June 30, 1995.
In accordance with the current guidelines of the Commission, no minority
interest has been recognized even though the Company will initially own
72.5% of the common stock of SYN.
H) The Company has calculated the interest coverage ratio pursuant to the
Company's general mortgage indenture and has calculated the ratio of
earnings to fixed charges pursuant to Item 503 of the Commission's
Regulation S-K.
I) Represents the sale of certain assets to an unrelated third party in a
separate transaction.
J) Represents cash purchase price from the unrelated third party sale proceeds.
K) Represents various purchase accounting adjustments to be accounted for in
accordance with the purchase method of accounting.
15
<PAGE>
NOTES TO PRO FORMA FINANCIAL INFORMATION
The following is a detailed allocation of the purchase price and source of
funds, net of underwriting fees, related to the acquisition transaction (in
thousands):
<TABLE>
<S> <C>
Purchase price.......................................................... $ 140,000
Add: Debt, acquisition, and transition costs........................... 5,000
---------
Total............................................................... 145,000
Less: Sale to an unrelated third party................................. (38,000)
---------
Adjusted purchase price................................................. $ 107,000
---------
---------
Allocation of purchase price --
Cash.................................................................. $ 5,323
Trade receivables..................................................... 7,879
Inventories........................................................... 7,124
Prepaid expenses and other............................................ 1,535
Property, plant, and equipment........................................ 63,500
Goodwill and other intangibles........................................ 40,939
Accounts payable and accrued expenses................................. (16,611)
Customer deposits..................................................... (616)
Deferred income tax................................................... (373)
Long-term debt........................................................ (1,700)
---------
Net assets acquired................................................. $ 107,000
---------
---------
Source of funds, net --
Long-term debt........................................................ $ 52,004
Company-Obligated Mandatorily Redeemable Preferred Securities of Trust
Subsidiary........................................................... 24,212
Common stock.......................................................... 30,784
---------
Total............................................................... $ 107,000
---------
---------
</TABLE>
L) Represents liabilities and other deferred credits that would be paid with
proceeds of the transaction.
M) Represents the following debt restructuring of the combined companies (in
thousands):
<TABLE>
<S> <C>
Historical long-term debt --
NPS................................................................... $ 128,625
Synergy............................................................... 4,309
---------
Total............................................................... 132,934
---------
Add: New debt offering................................................. 52,004
Less: Retirement of Synergy long-term debt............................. (2,609)
---------
Pro forma adjustment.................................................. 49,395
---------
Pro forma long-term debt.............................................. $ 182,329
---------
---------
</TABLE>
N) Represents the net proceeds expected to be generated by a Company-Obligated
Mandatorily Redeemable Preferred Securities of Trust Subsidiary offering
that is part of the permanent financing. All of the assets of NWPS Capital,
the subsidiary trust, are approximately $33.5 million of Subordinated Debt
Securities of the Company which bear interest at a rate of 8 1/8% per annum,
based on the issuance of 1.3 million Preferred Securities. Pro Forma amounts
shown in the table reflect the portion of the estimated net proceeds of the
offering of Preferred Securities assumed for purposes of preparing the Pro
Forma Financial Information used to fund the Acquisition.
O) Represents the combination of purchase accounting adjustments eliminating
Synergy's common stock investment of $41,000 against the par value of shares
expected to be sold in a common stock offering that is part of the permanent
financing.
16
<PAGE>
NOTES TO PRO FORMA FINANCIAL INFORMATION
The following provides a summary of the net adjustment (in thousands):
<TABLE>
<S> <C>
Par value of shares generated from Company common stock offering.......... $ 4,309
Less: elimination of Synergy common stock................................ (41)
---------
Net..................................................................... $ 4,268
---------
---------
</TABLE>
P) Represents the combination of purchase accounting adjustments eliminating
Synergy's additional paid-in capital of $5,284,000 against the net proceeds
expected to be allocated to Company additional paid-in capital as a result
of the common stock offering that is part of the permanent financing.
The following provides a summary of the net adjustment (in thousands):
<TABLE>
<S> <C>
Net allocation to additional paid-in capital from Company common stock
offering................................................................ $ 26,475
Less: elimination of Synergy additional paid-in capital................. (5,284)
---------
Net.................................................................... $ 21,191
---------
---------
</TABLE>
Q) Represents the elimination of Synergy's remaining equity accounts.
17
<PAGE>
THE NWPS TRUSTS
Each of NWPS Capital Financing I, NWPS Capital Financing II and NWPS Capital
Financing III is a statutory business trust formed under Delaware law pursuant
to (i) a separate declaration of trust ( each, a "Declaration") executed by the
Company, as sponsor for such trust (the "Sponsor"), and the NWPS Trustees (as
defined below) of such trust and (ii) the filing of a separate certificate of
trust with the Secretary of State of the State of Delaware on June 19, 1995.
Each NWPS Trust exists for the exclusive purposes of (i) issuing the Preferred
Securities and common securities representing undivided beneficial interests in
the assets of such NWPS Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities"), (ii) investing the gross proceeds
from the sale of the Trust Securities in the Subordinated Debt Securities of the
Company and (iii) engaging in only those other activities necessary or
incidental thereto. All of the Common Securities will be directly or indirectly
owned by the Company. The Common Securities will rank pari passu, and payments
will be made thereon pro rata, with the Preferred Securities, except that, upon
an event of default under the Declaration, the rights of the holders of the
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Preferred Securities. The Company will directly or indirectly
acquire Common Securities in an aggregate liquidation amount equal to 3% of the
total capital of each NWPS Trust. Each NWPS Trust has a term of approximately 55
years but may terminate earlier, as provided in each Declaration. The business
and affairs of each NWPS Trust will be conducted by the trustees (the "NWPS
Trustees") appointed by the Company as the direct or indirect holder of all the
Common Securities. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the NWPS
Trustees of a NWPS Trust. The duties and obligations of the NWPS Trustees for
each NWPS Trust shall be governed by the Declaration for such trust. A majority
of the NWPS Trustees will be persons who are employees or officers of or who are
affiliated with the Company (the "Regular Trustees"). In certain limited
circumstances set forth in the Prospectus Supplement for the Preferred
Securities, the holders of a majority in liquidation amount of the Preferred
Securities will be entitled to appoint one additional Regular Trustee who need
not be an employee or officer of or otherwise affiliated with the Company. One
NWPS Trustee of each NWPS Trust will be a financial institution that is not
affiliated with the Company and has a specified minimum amount of aggregate
capital, surplus, and undivided profits of not less than $50,000,000, which
shall act as property trustee and as indenture trustee for the purposes of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), pursuant to
the terms set forth in the Prospectus Supplement for the Preferred Securities
(the "Property Trustee"). In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, one NWPS Trustee of each NWPS Trust will have a
principal place of business or reside in the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the NWPS Trusts
and the offering of the Trust Securities, the payment of which will be
guaranteed by the Company as described under "Description of the Guarantees"
herein. The Delaware Trustee for each NWPS Trust is Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890. The
principal place of business of each NWPS Trust is c/o the Company, 33 Third
Street S.E., Huron, South Dakota, 57350-1318, telephone (605) 352-8411.
18
<PAGE>
USE OF PROCEEDS
The net proceeds from the sale of $104.5 million of the Offered Securities
will be applied to fund the Acquisition, including certain transaction expenses.
The Company will use $50 million of the net proceeds to purchase 50,000 shares
of the 15% Series A Cumulative Preferred Stock of SYN, the subsidiary of the
Company formed to effect the Acquisition, and $54.5 million of the net proceeds
will be loaned by the Company to SYN.
Each NWPS Trust will use all of the proceeds received from the sale of its
Preferred Securities to purchase Subordinated Debt Securities from the Company.
The Company intends to add the net proceeds from the sale of the Subordinated
Debt Securities to its general funds, to be used to fund the Acquisition, as
described above, and for other general corporate purposes, as described below.
The net proceeds from the sale of any other Offered Securities will be used
for general corporate purposes, which may include the repayment of indebtedness,
working capital expenditures and other investments in, or acquisitions of,
businesses and assets. Pending application of such net proceeds for specific
purposes, such proceeds may be invested in short-term or marketable securities.
Specific allocations of proceeds to a particular purpose that have been made at
the date of any Prospectus Supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends for the Company on an
historical basis for the fiscal years ended December 31, 1994, 1993, 1992, 1991
and 1990, and for the six-month period ended June 30, 1995. Such ratios are also
presented on a pro forma basis for the year ended December 31, 1994 and the
six-month period ended June 30, 1995. For the purpose of calculating such
ratios, "earnings" consist of income from continuing operations before income
taxes, "fixed charges" consist of interest on all indebtedness, amortization of
debt expense and the percentage of rental expense on operating leases deemed
representative of the interest factor and "preferred dividends" represent
dividends paid on all preferred shares outstanding during the periods. See
"Northwestern Public Service Company and Synergy Group Incorporated Pro Forma
Financial Information" for the assumptions upon which the pro forma ratios are
based.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE
--------------------------------------------------------------- 30,
1990 1991 1992 1993 1994 1995
----- ----- ----- ----- ----- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges....... 4.61 4.09 3.42 3.52 3.39 4.00
Ratio of Earnings to Combined Fixed
Charges and Preferred Dividends......... 4.28 3.79 3.33 3.45 3.33 3.93
<CAPTION>
PRO FORMA
--------------------------------
SIX MONTHS
YEAR ENDED ENDED JUNE
DECEMBER 31, 30,
1994 1995
----------------- -------------
<S> <C> <C>
Ratio of Earnings to Fixed Charges....... 2.73 3.89
Ratio of Earnings to Combined Fixed
Charges and Preferred Dividends......... 2.25 3.26
</TABLE>
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<PAGE>
DESCRIPTION OF THE MORTGAGE BONDS
GENERAL
The Mortgage Bonds will be bonds, notes or other evidences of indebtedness
authenticated and delivered under a General Mortgage Indenture and Deed of
Trust, between the Company and The Chase Manhattan Bank (N.A.) (the "New
Mortgage Trustee"), dated as of August 1, 1993. The New Mortgage Trustee shall
act as indenture trustee for the purposes of the Trust Indenture Act of 1939, as
amended. Such General Mortgage and Deed of Trust, as supplemented by various
supplemental indentures, including one or more supplemental indentures relating
to the Mortgage Bonds, is hereinafter referred to as the "New Mortgage." The
summaries under this heading do not purport to be complete and are subject to
the detailed provisions of the New Mortgage. Capitalized terms used under this
heading which are not otherwise defined in this Prospectus shall have the
meanings ascribed thereto in the New Mortgage. Wherever particular provisions of
the New Mortgage or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as a part of the statements made
herein and such statements are qualified in their entirety by such reference.
References to article and section numbers in this description of the Mortgage
Bonds, unless otherwise indicated, are references to article and section numbers
of the New Mortgage.
The New Mortgage provides that additional bonds may be issued thereunder on
the basis of Pledged Bonds (as hereinafter defined), property additions, retired
bonds and cash. (See "Issuance of Additional Mortgage Bonds" below.) The
Mortgage Bonds and all other bonds heretofore or hereafter issued under the New
Mortgage are collectively referred to herein as the "Mortgage Bonds."
Reference is made to the Prospectus Supplement for the Mortgage Bonds for a
description of the following terms of the series of Mortgage Bonds in respect of
which this Prospectus is being delivered: (i) the title (series designation) of
such Mortgage Bonds; (ii) the limit, if any, upon the aggregate principal amount
of such Mortgage Bonds, (iii) the date or dates on which the principal of such
Mortgage Bonds is payable; (iv) the rate or rates at which such Mortgage Bonds
will bear interest, if any; the date or dates from which such interest will
accrue; the dates on which such interest will be payable ("Interest Payment
Dates") and the regular record dates for the interest payable on such Interest
Payment Dates; (v) the bases on which the Mortgage Bonds will be issued; (vi)
the option, if any, of the Company to redeem such Mortgage Bonds and the periods
within which or the dates on which, the prices at which and the terms and
conditions upon which, such Mortgage Bonds may be redeemed, in whole or in part,
upon the exercise of such option; (vii) the obligation, if any, of the Company
to redeem or purchase such Mortgage Bonds pursuant to any sinking fund or
analogous provisions or at the option of the Holder and the periods within which
or the dates on which, the prices at which and the terms and conditions upon
which such Mortgage Bonds will be redeemed, in whole or in part, pursuant to
such obligation; (viii) the denominations in which such Mortgage Bonds will be
issuable; and (ix) any other terms of such Mortgage Bonds not inconsistent with
the provisions of the New Mortgage.
While the New Mortgage contains provisions for the maintenance of the
Mortgaged Property, it does not contain any provisions for a maintenance or
sinking fund and, except as may be provided in a Supplemental Indenture (and
described in the applicable Prospectus Supplement), there will be no provisions
for any such funds for the Mortgage Bonds.
REDEMPTION OF THE MORTGAGE BONDS
Any terms for the optional or mandatory redemption of Mortgage Bonds will be
set forth in the Prospectus Supplement. Except as shall otherwise be provided in
the applicable Prospectus Supplement with respect to Mortgage Bonds redeemable
at the option of the Holder, Mortgage Bonds will be redeemable only upon notice
by mail not less than 30 days prior to the date fixed for redemption, and, if
less than all the Mortgage Bonds of a series, or any tranche thereof, are to be
redeemed, the particular Mortgage Bonds to be redeemed will be selected by such
method as shall be provided for the particular series or tranche, or in the
absence of any such provision, by such method as the Bond Registrar deems fair
and appropriate. (See Sections 5.03 and 5.04.)
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<PAGE>
Any notice of redemption at the option of the Company may state that such
redemption shall be conditioned upon receipt by the New Mortgage Trustee, on or
prior to the dated fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Mortgage Bonds
and that if such money has not been so received, such notice will be of no force
and effect and the Company will not be required to redeem such Mortgage Bonds.
(See Section 5.04.)
SECURITY
GENERAL. Except as discussed below, Mortgage Bonds now or hereafter issued
under the New Mortgage will be secured primarily by:
(a) bonds ("First Mortgage Bonds") issued under the Company's Indenture
dated August 1, 1940 (the "First Mortgage"), to The Chase Manhattan Bank
(N.A.), successor by merger to The Chase National Bank of the City of New
York, as trustee (the "First Mortgage Trustee"), and C. J. Heinzelmann,
successor to Carl E. Buckley, as individual trustee, and delivered to the
New Mortgage Trustee under the New Mortgage, which First Mortgage Bonds will
be secured, equally and ratably with all other bonds issued under the First
Mortgage, by a valid first lien on substantially all of the fixed property,
franchises and rights of the Company of a character not expressly excepted
from the lien (which excepted property consists principally of cash,
securities, receivables, personal property held for sale or lease or
consumable in operations, and certain real estate held for resale and not
used or useful in the public utility business of the Company), subject to
permitted encumbrances and liens as defined in the First Mortgage; and
(b) the lien of the New Mortgage on the Company's properties used in the
generation, production, transmission or distribution of electricity or the
distribution of gas in any form and for any purpose in the States of South
Dakota or Nebraska, together with the properties owned by the Company as of
August 1, 1993 located in the States of North Dakota and Iowa which consist
principally of shared ownership interests in electric generating facilities
(the Company does not serve customers in the States of North Dakota and
Iowa), but not, unless the Company otherwise elects, any future acquired
properties in the States of North Dakota and Iowa, which lien is junior to
the lien of the First Mortgage.
As discussed below under "Pledged Bonds," following a merger or
consolidation of another corporation into the Company, the Company could deliver
to the New Mortgage Trustee bonds issued under an existing mortgage on the
properties of such other corporation in lieu of or in addition to bonds issued
under the First Mortgage. In such event, the Mortgage Bonds would be secured,
additionally, by such bonds and by the lien of the New Mortgage on the
properties of such other corporation, which would be junior to the liens of such
existing mortgage and the First Mortgage. The First Mortgage and all such other
mortgages are hereinafter, collectively, called the "Class "A" Mortgages," and
all bonds issued under the Class "A" Mortgages and delivered to the New Mortgage
Trustee are hereinafter collectively called the "Pledged Bonds." If and when no
Class "A" Mortgages are in effect, the New Mortgage will constitute a first
mortgage lien on all property of the Company subject thereto.
PLEDGED BONDS. The Pledged Bonds will be issued and delivered to, and
registered in the name of, the New Mortgage Trustee or its nominee and will be
owned and held by the New Mortgage Trustee, subject to the provisions of the New
Mortgage, for the benefit of the Holders of all Mortgage Bonds Outstanding from
time to time, and the Company will have no interest in such Pledged Bonds.
Except as may be otherwise set forth in the supplemental indenture pursuant to
which any Mortgage Bonds are to be issued, Pledged Bonds issued as the basis for
the authentication and delivery of such Mortgage Bonds (a) will mature on the
same dates, and in the same principal amounts, as such Mortgage Bonds, and (b)
will contain, in addition to any mandatory redemption provisions applicable to
all Pledged Bonds Outstanding under the related Class "A" Mortgage, mandatory
redemption provisions correlative to provisions for mandatory redemption, or for
redemption at the option of the Holder, of such Mortgage Bonds. Pledged Bonds
issued as the basis for authentication and delivery of a series or tranche of
Mortgage Bonds (x) may, but need not, bear interest, any such interest to be
payable at the same times as interest on the Mortgage Bonds of such series or
tranche,
21
<PAGE>
and (y) may, but need not, contain provisions for the redemption thereof at the
option of the Company, any such redemption to be made at a redemption price or
prices not less than the principal amount of such Pledged Bonds. (See Sections
4.02 and 7.01.)
Any payment by the Company of principal of or premium or interest on the
Pledged Bonds held by the New Mortgage Trustee will be applied by the New
Mortgage Trustee to the payment of any principal, premium or interest, as the
case may be, in respect of the Mortgage Bonds which is then due, and, to the
extent of such application, the obligation of the Company under the New Mortgage
to make such payment in respect of the Mortgage Bonds will be deemed satisfied
and discharged. If, at the time of any such payment of principal of Pledged
Bonds, there shall be no principal then due in respect to the Mortgage Bonds,
the proceeds of such payment will be deemed to constitute Funded Cash and will
be held by the New Mortgage Trustee as part of the New Mortgaged Property, to be
withdrawn, used or applied as provided in the New Mortgage. If, at the time of
any such payment of premium or interest on Pledged Bonds, there shall be no
premium or interest, as the case may be, then due in respect of the Mortgage
Bonds, the proceeds of such payment will be remitted to the Company at its
request. (See Section 7.02 and "Withdrawal of Cash" below.) Any payment by the
Company of principal of or premium or interest on Mortgage Bonds authenticated
and delivered on the basis of the deposit with the New Mortgage Trustee of
Pledged Bonds (other than by application of the proceeds in respect of such
Pledged Bonds) will, to the extent thereof, be deemed to satisfy and discharge
the obligation of the Company, if any, to make a payment of principal, premium
or interest, as the case may be, in respect of such Pledged Bonds which is then
due.
The New Mortgage Trustee may not sell, assign or otherwise transfer any
Pledged Bonds except to a successor trustee under the New Mortgage. (See Section
7.04.) At the time any Mortgage Bonds of any series or tranche which have been
authenticated and delivered upon the basis of Pledged Bonds cease to be
Outstanding (other than as a result of the application of the proceeds of the
payment or redemption of such Pledged Bonds), the New Mortgage Trustee shall
surrender to or upon the order of the Company an equal principal amount of such
Pledged Bonds having the same Stated Maturity and mandatory redemption
provisions as such Mortgage Bonds. (See Section 7.03.)
At the date of this Prospectus, the only Class "A" Mortgage is the First
Mortgage and the only Pledged Bonds issuable at this time are First Mortgage
Bonds issuable thereunder. The New Mortgage provides that in the event of the
merger or consolidation of another company with or into the Company, an existing
mortgage constituting a lien on properties of such other company prior to the
lien of the New Mortgage may be designated by the Company as an additional Class
"A" Mortgage. Bonds thereafter issued under such additional mortgage would be
Pledged Bonds and could provide the basis for the authentication and delivery of
Mortgage Bonds under the New Mortgage. (See Section 7.06.) When no Pledged Bonds
are Outstanding under a Class "A" Mortgage except for Pledged Bonds held by the
New Mortgage Trustee, then, at the request of the Company and subject to
satisfaction of certain conditions, the New Mortgage Trustee will surrender such
Pledged Bonds for cancellation, and the related Class "A" Mortgage will be
satisfied and discharged, the lien of such Class "A" Mortgage on the Company's
property will cease to exist and the priority of the lien of the New Mortgage
will be increased. (See Section 7.07.)
The New Mortgage contains no restrictions on the issuance of bonds under
Class "A" Mortgages in addition to Pledged Bonds issued to the New Mortgage
Trustee as the basis for the authentication and delivery of Mortgage Bonds.
First Mortgage Bonds may currently be issued under the First Mortgage on the
basis of property additions, retirements of bonds previously issued under the
First Mortgage and cash deposited with the First Mortgage Trustee. As of August
3, 1995, $47,500,000 of First Mortgage Bonds (other than Pledged Bonds) were
outstanding.
LIEN OF THE NEW MORTGAGE. The properties of the Company used in the
generation, production, transmission and distribution of electricity and the
distribution of gas in any form and for any purpose in the States of South
Dakota or Nebraska together with properties owned by the Company as of August 1,
1993 located in the States of North Dakota and Iowa (but not, unless the Company
otherwise elects, any future acquired properties in the States of North Dakota
and Iowa) are subject to the lien of the New Mortgage. Substantially all of such
property, while subject to the lien of the New Mortgage, will be also subject to
the
22
<PAGE>
prior lien of the First Mortgage. The Mortgage Bonds will have the benefit of
the prior lien of the First Mortgage on such property, and the benefit of the
prior lien of any additional Class "A" Mortgage on any property subject thereto,
to the extent of the aggregate principal amount of Pledged Bonds, issued under
the respective Class "A" Mortgages, held by the New Mortgage Trustee.
The lien of the New Mortgage is subject to Permitted Liens which include tax
liens and other governmental charges which are not delinquent and which are
being contested, construction and materialmen's liens, certain judgment liens,
easements, reservations and rights of others (including governmental entities)
in, and defects of title in, certain property of the Company, certain leasehold
interests, liens on the Company's pollution control and sewage and solid waste
facilities and certain other liens and encumbrances. (See Section 1.01.)
There are excepted from the lien of the New Mortgage, among other things,
cash and securities not paid to, deposited with or held by the New Mortgage
Trustee under the New Mortgage; contracts, leases and other agreements of all
kinds, contract rights, bills, notes and other instruments, accounts receivable,
claims, certain intellectual property rights and other general intangibles;
permits, licenses and franchises; automobiles, other vehicles, movable
equipment, aircraft and vessels; all goods, wares and merchandise held for sale
in the ordinary course of business or for use by or for the benefit of the
Company; fuel, materials, supplies and other personal property consumable in the
operations of the Company's business; computers, machinery and equipment; coal,
ore, gas, oil, minerals and timber mined or extracted from the land; gas
transmission lines connecting wells with main or branch trunk lines or field
gathering lines connecting wells with main or branch trunk lines; electric
energy, gas, steam, water and other products generated, produced or purchased;
leasehold interests; and all books and records. (See Granting Clauses.) The
First Mortgage contains similar, but not identical, exceptions.
Without the consent of the Holders, the Company and the New Mortgage Trustee
may enter into supplemental indentures to subject to the lien of the New
Mortgage additional property, whether or not used in the electric or gas utility
businesses (including property which would otherwise be excepted from such
lien). (See Section 14.01.) Such property, so long as the same would otherwise
constitute Property Additions (as described below), would thereupon constitute
Property Additions and be available as a basis for the issuance of Mortgage
Bonds. (See "Issuance of Additional Mortgage Bonds" below.)
The New Mortgage contains provisions subjecting after-acquired property to
the lien thereof, subject to the prior lien of the First Mortgage. These
provisions are limited in the case of consolidation or merger (whether or not
the Company is the surviving corporation) or sale of substantially all of the
Company's assets. In the event of consolidation or merger or the transfer of all
the mortgaged property as or substantially as an entirety, the New Mortgage will
not be required to be a lien upon any of the properties then owned or thereafter
acquired by the successor corporation, except properties acquired from the
Company in or as a result of such transaction and improvements, extensions and
additions to such properties and renewals, replacements and substitutions of or
for any part or parts of such properties. (See Article Thirteen and
"Consolidation, Merger, Conveyance, Transfer or Lease" below.) In addition,
after-acquired property may be subject to vendors' liens, purchase money
mortgages and other liens thereon at the time of acquisition thereof, including
the lien of any Class "A" Mortgage.
The New Mortgage provides that the New Mortgage Trustee will have a lien,
prior to the lien on behalf of the holders of Mortgage Bonds, upon Mortgaged
Property and any money collected by the New Mortgage Trustee as proceeds of the
Mortgaged Property, for the payment of its reasonable compensation and expenses
and for indemnity against certain liabilities. (See Section 11.07.)
ISSUANCE OF ADDITIONAL MORTGAGE BONDS
The maximum principal amount of Mortgage Bonds which may be issued under the
New Mortgage is limited to $500,000,000, provided that, without the consent of
the Holders, the Company and the New
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<PAGE>
Mortgage Trustee may enter into supplemental indentures to increase such amount.
(See Sections 3.01 and 14.01.) Mortgage Bonds of any series may be issued from
time to time under Article Four of the New Mortgage on the basis of, and in an
aggregate principal amount not exceeding:
(1) the aggregate principal amount of Pledged Bonds issued and delivered
to the Trustee;
(2) 75% of the Cost or Fair Value (whichever is less) of Property
Additions (as described below) which do not constitute Bonded Property
Additions (being, generally, Property Additions which have been made the
basis of the authentication and delivery of Mortgage Bonds, the release of
mortgaged property or cash withdrawals) after certain deductions and
additions, primarily including adjustments to offset property retirements;
(3) the aggregate principal amount of Retired Bonds (which consist of
Mortgage Bonds no longer Outstanding under the New Mortgage (including
Mortgage Bonds deposited under any sinking or analogous funds) which have
not been used for certain other purposes under the New Mortgage and which
are not to be paid, redeemed or otherwise retired by the application of
Funded Cash), but if Pledged Bonds have been made the basis for the
authentication and delivery of such Retired Bonds, only if the related Class
"A" Mortgage has been discharged; and
(4) an amount of cash deposited with the Trustee.
In general, the issuance of Mortgage Bonds is subject to Adjusted New
Earnings of the Company for 12 consecutive months within the preceding 18 months
being at least one and three-fourths the Annual Interest Requirements on all
Mortgage Bonds at the time Outstanding, Mortgage Bonds then applied for, all
outstanding Pledged Bonds other than Pledged Bonds held by the New Mortgage
Trustee under the New Mortgage, and all other indebtedness (with certain
exceptions) secured by a lien prior to the lien of the New Mortgage, except that
no such net earnings requirement need be met if the additional Mortgage Bonds to
be issued are to have no Stated Interest Rate prior to Maturity. The Company is
not required to satisfy the net earnings requirement prior to issuance of
Mortgage Bonds as provided in (1) above if the Pledged Bonds issued and
delivered to the New Mortgage Trustee as the basis for such issuance have been
authenticated and delivered under the related Class "A" Mortgage on the basis of
retired Pledged Bonds unless (a) the Stated Maturity of such retired Pledged
Bonds is a date more than five years after the date of the Company Order
requesting the authentication and delivery of such Mortgage Bonds and (b) the
Stated Interest Rate, if any, on such retired Pledged Bonds immediately prior to
Maturity is less than the Stated Interest Rate, if any, on such Mortgage Bonds
to be in effect upon the initial authentication and delivery thereof. In
addition, the Company is not required to satisfy the net earnings requirement
prior to issuance of Mortgage Bonds as provided in (3) above unless (a) the
Stated Maturity of the Retired Bonds is a date more than five years after the
date of the Company Order requesting the authentication and delivery of such
Mortgage Bonds and (b) the Stated Interest Rate, if any, on such Retired Bonds
immediately prior to Maturity is less than the Stated Interest Rate, if any, on
such Mortgage Bonds to be in effect upon the initial authentication and delivery
of such Mortgage Bonds. In general, the interest requirement with respect to
variable interest rate indebtedness, if any, is determined with reference to the
rate or rates in effect on the date immediately preceding such determination or
the rate to be in effect upon initial authentication. (See Section 1.03 and
Article Four).
Adjusted Net Earnings are calculated before, among other things, provisions
for income taxes; depreciation or amortization of property; interest on any
indebtedness and amortization of debt discount and expense; any non-recurring
charge to income of whatever kind or nature (including without limitation the
recognition of expense or impairment due to the non-recoverability of assets or
expense), whether or not recorded as a non-recurring item in the Company's books
of account; and any refund of revenues previously collected or accrued by the
Company subject to possible refund. With respect to Mortgage Bonds of a series
subject to a Periodic Offering (such as a medium-term note program), the New
Mortgage Trustee will be entitled to receive a certificate evidencing compliance
with the net earnings requirements only once, at or prior to the time of the
first authentication and delivery of the Mortgage Bonds of such series (unless
the Company Order requesting the authentication and delivery of such Mortgage
Bonds is delivered on or after the date which is two years after the most recent
Net Earnings Certificate was delivered, in which case an updated certificate
would be required to be delivered). (See Sections 1.03 and 4.01.)
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<PAGE>
Property Additions generally include any property which is owned by the
Company and is subject to the lien of the New Mortgage, except any property the
cost of acquisition or construction of which is properly chargeable to an
operating expense account of the Company. (See Section 1.04.)
Unless otherwise provided in the applicable Prospectus Supplement, the
Company will issue the Mortgage Bonds on the basis of Pledged Bonds (I.E., First
Mortgage Bonds) issued under its First Mortgage.
RELEASE OF PROPERTY
The Company may obtain the release from the lien of the New Mortgage of any
Mortgaged Property if the Fair Value of all of the Mortgaged Property (excluding
the Mortgaged Property to be released but including any Mortgaged Property to be
acquired by the Company with the proceeds of, or otherwise in connection with,
such release) equals or exceeds an amount equal to twenty-fifteenths (20/15ths)
of the aggregate principal amount of Mortgage Bonds Outstanding and bonds issued
under Class "A" Mortgages outstanding (other than Pledged Bonds).
The New Mortgage provides simplified procedures for the release of property
which has been released from the lien of a Class "A" Mortgage, minor properties
and property taken by eminent domain, and provides for dispositions of certain
obsolete property and grants or surrender of certain rights without any release
or consent by the New Mortgage Trustee.
If any property released from the lien of the New Mortgage continues to be
owned by the Company after such release, the New Mortgage will not become a lien
on any improvement, extension or addition to such property or renewals,
replacements or substitutions of or for any part or parts of such property. (See
Article Eight.)
WITHDRAWAL OF CASH
Subject to certain limitations, cash held by the New Trustee may (1) be
withdrawn by the Company (a) to the extent of the Cost or Fair Value (whichever
is less) of Unbonded Property Additions, after certain deductions and additions
primarily including adjustments to offset retirements, or (b) in an amount equal
to twenty-fifteenths (20/15ths) of the aggregate principal amount of Mortgage
Bonds that the Company would be entitled to issue on the basis of Retired Bonds
(with the entitlement to such issuance being waived by operation of such
withdrawal), or (c) in an amount equal to twenty-fifteenths (20/15ths) of the
aggregate principal amount of any Outstanding Mortgage Bonds delivered to the
New Trustee, or (2) upon the request of the Company, be applied to (a) the
purchase of Mortgage Bonds (at prices not exceeding twenty-fifteenths (20/15ths)
of the principal amount thereof) or (b) the redemption or payment at Stated
Maturity of Mortgage Bonds (with any Mortgage Bonds received by the New Trustee
pursuant to these provisions being canceled by the New Trustee) (see Section
8.06); provided, however, that cash deposited with the New Mortgage Trustee as
the basis for the authentication and delivery of Mortgage Bonds, as well as cash
representing a payment of principal of Pledged Bonds, may only be withdrawn in
an amount equal to the aggregate principal amount of Mortgage Bonds the Company
would be entitled to issue on any basis (with the entitlement to such issuance
being waived by operation of such withdrawal), or may, upon the request of the
Company, be applied to the purchase, redemption or payment of Mortgage Bonds at
prices not exceeding, in the aggregate, the principal amount thereof (See
Sections 4.05 and 7.02).
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company may not consolidate with or merge into any other corporation or
convey, transfer or lease the Mortgaged Property as or substantially as an
entirety to any person unless (a) such transaction is on such terms as will
fully preserve the lien and security of the New Mortgage and the rights and
powers of the New Mortgage Trustee and Holders, (b) the corporation formed by
such consolidation or into which the Company is merged or the person which
acquires by conveyance or transfer, or which leases, the Mortgaged Property as
or substantially as an entirety is a corporation organized and existing under
the laws of the United States of America or any state or territory thereof or
the District of Columbia, and such corporation executes and delivers to the New
Mortgage Trustee a supplemental indenture, which contains an assumption by such
corporation of the due and punctual payment of the principal of and premium, if
any, and interest, if any, on the Mortgage Bonds and the performance of all of
the covenants of the Company under the New Mortgage and which contains a grant,
conveyance, transfer and mortgage by the corporation confirming the lien of the
New Mortgage on the Mortgaged Property and subjecting to such lien all property
thereafter acquired by the
25
<PAGE>
corporation which shall constitute an improvement, extension or addition to the
Mortgaged Property or a renewal, replacement or substitution of or for any part
thereof, and, at the election of the corporation, subjecting to the lien of the
New Mortgage such other property then owned or thereafter acquired by the
corporation as the corporation shall specify, and (c) in the case of a lease,
such lease will be made expressly subject to termination by the Company or the
New Mortgage Trustee at any time during the continuance of an Event of Default.
(See Section 13.01.)
Other than the security afforded by the lien of the First Mortgage and the
New Mortgage and the restrictions on the issuance of additional First Mortgage
Bonds and New Mortgage Bonds, there are no provisions of the First Mortgage or
the New Mortgage which afford the holders of the Offered Bonds protection in the
event of a highly leveraged transaction, reorganization, restructuring, merger
or similar transaction involving the Company. Neither the First Mortgage nor the
New Mortgage contain provisions requiring the repurchase of the Offered Bonds
upon a change in control of the Company.
MODIFICATION OF NEW MORTGAGE
Without the consent of any Holders, the Company and the New Mortgage Trustee
may enter into one or more supplemental indentures for any of the following
purposes:
(a) to evidence the succession of another person to the Company and the
assumption by any such successor of the covenants of the Company in the New
Mortgage and in the Mortgage Bonds; or
(b) to add one or more covenants of the Company or other provisions for
the benefit of all Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be Outstanding, Mortgage Bonds
of one or more specified series, or one or more tranches thereof, or to
surrender any right or power conferred upon the Company by the New Mortgage;
or
(c) to correct or amplify the description of any property at any time
subject to the lien of the New Mortgage, or better to assure, convey and
confirm to the New Mortgage Trustee any property subject or required to be
subjected to the lien of the New Mortgage, or to subject to the lien of the
New Mortgage additional property; or
(d) to convey, transfer and assign to the New Mortgage Trustee and to
subject to the lien of the New Mortgage with the same force and effect as if
included in the New Mortgage, property of subsidiaries of the Company used
or to be used for one or more purposes which if owned by the Company would
constitute property used or to be used for one or more of the Primary
Purposes of the Company's Business, which property shall for all purposes of
the New Mortgage be deemed to be property of the Company, together with such
other provisions as may be appropriate to express the respective rights of
the New Mortgage Trustee and the Company in regard thereto; or
(e) to change or eliminate any provision of the New Mortgage or to add
any new provision to the New Mortgage, provided that if such change,
elimination or addition adversely affects the interests of the Holders of
the Mortgage Bonds of any series or tranche in any material respect, such
change, elimination or addition will become effective with respect to such
series or tranche only when no Mortgage Bond of such series or tranche
remains outstanding under the New Mortgage; or
(f) to establish the form or terms of the Mortgage Bonds of any series
or tranche as permitted by the New Mortgage; or
(g) to provide for the authentication and delivery of bearer securities
and coupons appertaining thereto representing interest, if any, thereon and
for the procedures for the registration, exchange and replacement thereof
and for the giving of notice to, and the solicitation of the vote or consent
of, the holders thereof, and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the acceptance of appointment by a
successor trustee or by a co-trustee or separate trustee; or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a noncertificated system of registration for all, or
any series or tranche of, the Mortgage Bonds; or
(j) to change any place where (1) the principal of and premium, if any,
and interest, if any, on the Mortgage Bonds of any series, or any tranche
thereof, will be payable, (2) any Mortgage Bonds of any series, or any
tranche thereof, may be surrendered for registration of transfer, (3) any
Mortgage Bonds
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of any series, or any tranche thereof, may be surrendered for exchange, and
(4) notices and demands to or upon the Company in respect of the Mortgage
Bonds of any series, or any tranche thereof, and the New Mortgage may be
served; or
(k) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other provision
therein, or to make any changes to the provisions thereof or to add other
provisions with respect to matters and questions arising under the New
Mortgage, so long as such other changes or additions do not adversely affect
the interests of the Holders of Mortgage Bonds of any series or tranche in
any material respect; or
(l) to reflect changes in Generally Accepted Accounting Principles; or
(m) to provide the terms and conditions of the exchange or conversion,
at the option of the holders of Mortgage Bonds of any series, of the
Mortgage Bonds of such series for or into Mortgage Bonds of other series or
stock or other securities of the Company or any other corporation; or
(n) to change the words "Mortgage Bonds" to "First Mortgage Bonds" in
the descriptive title of all Outstanding Bonds at any time after the
discharge of the First Mortgage; or
(o) to comply with the rules or regulations of any national securities
exchange on which any of the Mortgage Bonds may be listed; or
(p) to modify Section 3.01(a) to increase the aggregate principal amount
of Mortgage Bonds which may be authenticated and delivered under the New
Mortgage. (See Section 14.01.)
Without limiting the generality of the foregoing, if the Trust Indenture Act
is amended after the date of the New Mortgage in such a way as to require
changes to the New Mortgage or the incorporation therein of additional
provisions or so as to permit changes to, or the elimination of, provisions
which, at the date of the New Mortgage or at any time thereafter, were required
by the Trust Indenture Act to be contained in the New Mortgage, the Company and
the New Mortgage Trustee may, without the consent of any Holders, enter into one
or more supplemental indentures to evidence or effect such amendment. (See
Section 14.01.)
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the Mortgage Bonds of all series then
Outstanding, considered as one class, is required for the purpose of adding any
provisions to, or changing in any manner, or eliminating any of the provisions
of, the New Mortgage pursuant to one or more supplemental indentures; provided,
however, if less than all of the series of Mortgage Bonds Outstanding are
directly affected by a proposed supplemental indenture, then the consent only of
the Holders of a majority in aggregate principal amount of Outstanding Mortgage
Bonds of all series so directly affected, considered as one class, will be
required; and provided, further, that if the Mortgage Bonds of any series have
been issued in more than one tranche and if the proposed supplemental indenture
directly affects the rights of the Holders of one or more, but less than all,
such tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Mortgage Bonds of all tranches so directly
affected, considered as one class, will be required; and provided, further, that
no such amendment or modification may, without the consent of each Holder of the
Outstanding New Mortgage of each series or tranche directly affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Mortgage Bond, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or reduce the amount of the
principal of a Discount Bond that would be due and payable upon a declaration of
acceleration of maturity or change the coin or currency (or other property) in
which any Mortgage Bond or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the redemption date), (b) permit the creation of any lien ranking prior to the
lien of the New Mortgage with respect to all or substantially all of the
Mortgaged Property or terminate the lien of the New Mortgage on all or
substantially all of the Mortgaged Property, or deprive such Holder of the
benefit of the security of the lien of the New Mortgage, (c) reduce the
percentage in principal amount of the Outstanding Mortgage Bonds of such series
or tranche, the consent of the Holders of which is required for any such
supplemental
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indenture, or the consent of the Holder of which is required for any waiver of
compliance with any provision of the New Mortgage or any default thereunder and
its consequences, or reduce the requirements for quorum or voting, or (d) modify
certain of the provisions of the New Mortgage relating to supplemental
indentures, waiver of certain covenants and waivers of past defaults. A
supplemental indenture which changes or eliminates any covenant or other
provision of the New Mortgage which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding Mortgage Bonds of one or more specified series, or one or
more tranches thereof, or modifies the rights of the Holders of Mortgage Bonds
of such series or tranches with respect to such covenant or other provision,
will be deemed not to affect the rights under the New Mortgage of the Holders of
the Mortgage Bonds of any other series or tranche. (See Section 14.02.)
WAIVER
The Holders of at least a majority in aggregate principal amount of all
Mortgage Bonds may waive the Company's obligations to comply with certain
covenants, including the Company's obligation to maintain its corporate
existence and properties, pay taxes and discharge liens, maintain certain
insurance and to make such recordings and filings as are necessary to protect
the security of the Holders and the rights of the New Mortgage Trustee, provided
that such waiver occurs before the time such compliance is required. The Holders
of at least a majority of the aggregate principal amount of Outstanding Mortgage
Bonds of all affected series or tranches, considered as one class, may waive,
before the time for such compliance, compliance with the Company's obligation to
maintain an office or agency where the Mortgage Bonds of such series or tranches
may be surrendered for payment, registration, transfer or exchange, and
compliance with any other covenant specified in a supplemental indenture
respecting such series or tranches. (See Section 6.09.)
EVENTS OF DEFAULT
Each of the following events constitutes an Event of Default under the New
Mortgage:
(1) failure to pay interest on any Mortgage Bond within 60 days after
the same becomes due;
(2) failure to pay principal or premium, if any, on any Mortgage Bond
within 15 days after its Maturity;
(3) failure to perform or breach of any covenant or warranty of the
Company in the New Mortgage (other than a covenant or a warranty a default
in the performance of which or breach of which is dealt with elsewhere under
this paragraph) for a period of 60 days after there has been given to the
Company by the New Mortgage Trustee, or to the Company and the New Mortgage
Trustee by the Holders of at least 50% in principal amount of Outstanding
Mortgage Bonds, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default," unless the New Mortgage Trustee, or the New Mortgage Trustee and
the Holders of a principal amount of Mortgage Bonds not less than the
principal amount of Mortgage Bonds the Holders of which gave such notice, as
the case may be, agree in writing to an extension of such period prior to
its expiration; provided, however, that the New Mortgage Trustee, or the New
Mortgage Trustee and such Holders, as the case may be, will be deemed to
have agreed to an extension of such period if corrective action has been
initiated by the Company within such period and is being diligently pursued;
(4) certain events relating to reorganization, bankruptcy and insolvency
of the Company and appointment of a receiver or trustee for its property; or
(5) the occurrence of a Matured Event of Default under any Class "A"
Mortgage; provided that the waiver or cure of any such Matured Event of
Default and the rescission and annulment of the consequences thereof shall
constitute a waiver of the corresponding Event of Default under the New
Mortgage and a rescission and annulment of the consequences thereof. (See
Section 10.01.)
REMEDIES
If an Event of Default occurs and is continuing, then the New Mortgage
Trustee or the Holders of not less than a majority in principal amount of
Mortgage Bonds then Outstanding may declare the principal
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amount (or if the Mortgage Bonds are Discount Bonds, such portion of the
principal amount as may be provided for such Discount Bonds pursuant to the
terms of the New Mortgage) of all of the Mortgage Bonds together with premium,
if any, and interest accrued, if any, thereon to be immediately due and payable.
At any time after such declaration of the maturity of the Mortgage Bonds then
Outstanding, but before the sale of any of the Mortgaged Property and before a
judgment or decree for payment of money shall have been obtained by the New
Mortgage Trustee as provided in the New Mortgage, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the New Mortgage Trustee a
sum sufficient to pay:
(1) all overdue interest, if any, on all Mortgage Bonds then
Outstanding;
(2) the principal of and premium, if any, on any Mortgage Bonds then
Outstanding which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Mortgage Bonds; and
(3) all amounts due to the New Mortgage Trustee as compensation and
reimbursement as provided in the New Mortgage; and
(b) any other Event or Events of Default other than the non-payment of
the principal of Mortgage Bonds which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided in
the New Mortgage. (See Sections 10.02 and 10.17.)
The New Mortgage provides that, under certain circumstances and to the
extent permitted by law, if an Event of Default occurs and is continuing, the
New Mortgage Trustee has the power to take possession of, and to hold, operate
and manage, the Mortgaged Property, or with or without entry, sell the Mortgaged
Property. If the Mortgaged Property is sold, whether by the New Mortgage Trustee
or pursuant to judicial proceedings, the principal of the Outstanding Mortgage
Bonds, if not previously due, will become immediately due, together with
premium, if any, and any accrued interest. (See Sections 10.03, 10.04 and
10.05.)
If an Event of Default occurs and is continuing, the Holders of a majority
in principal amount of the Mortgage Bonds then Outstanding will have the right
to direct the time, method and place of conducting any proceedings for any
remedy available to the New Mortgage Trustee or exercising any trust or power
conferred on the New Mortgage Trustee, provided that (a) such direction does not
conflict with any rule of law or with the New Mortgage, and could not involve
the New Mortgage Trustee in personal liability in circumstances where indemnity
would not, in the New Mortgage Trustee's sole discretion, be adequate, (b) such
direction is not unduly prejudicial to the rights of the nonassenting Holders,
and (c) the New Mortgage Trustee may take any other action deemed proper by the
New Mortgage Trustee which is not inconsistent with such discretion. (See
Section 10.16.)
The New Mortgage provides that no Holder of any Mortgage Bond will have any
right to institute any proceeding, judicial or otherwise, with respect to the
New Mortgage, or for the appointment of a receiver or trustee, or for any other
remedy thereunder, unless (a) such Holder has previously given to the New
Mortgage Trustee written notice of a continuing Event of Default; (b) the
Holders of not less than a majority in aggregate principal amount of the
Mortgage Bonds then Outstanding have made written request to the New Mortgage
Trustee to institute proceedings in respect of such Event of Default and have
offered the New Mortgage Trustee reasonable indemnity against cost and
liabilities incurred in complying with such request; and (c) for 60 days after
receipt of such notice, the New Mortgage Trustee has failed to institute any
such proceeding and no direction inconsistent with such request has been given
to the New Mortgage Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of Mortgage Bonds then Outstanding.
Furthermore, no Holder will be entitled to institute any such action if and to
the extent that such action would disturb or prejudice the rights of other
Holders. (See Section 10.11.) Notwithstanding that the right of a Holder to
institute a proceeding with respect to the New Mortgage is subject to certain
conditions precedent, each Holder of a Mortgage Bond has the right, which is
absolute and unconditional, to receive payment of the principal of and premium,
if any, and interest, if any, on such Mortgage Bond when
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due and to institute suit for the enforcement of any such payment, and such
rights may not be impaired without the consent of such Holder. (See Section
10.12.) The New Mortgage provides that the New Mortgage Trustee give the Holders
notice of any default under the New Mortgage to the extent required by the Trust
Indenture Act, unless such default shall have been cured or waived, except that
no such notice to Holders of a default of the character described in paragraph
(3) under "Events of Default" shall be given until at least 45 days after the
occurrence thereof. (See Section 11.02.) The Trust Indenture Act currently
permits the New Mortgage Trustee to withhold notice of default (except for
certain payment defaults) if the New Mortgage Trustee in good faith determines
the withholding of such notice to be in the interests of the Holders.
As a condition precedent to certain actions by the New Mortgage Trustee in
the enforcement of the lien of the New Mortgage and institution of action on the
Mortgage Bonds, the New Mortgage Trustee may require adequate indemnity against
costs, expense and liabilities to be incurred in connection therewith. (See
Sections 10.11 and 11.01.)
In addition to every other right and remedy provided in the New Mortgage,
the New Mortgage Trustee may exercise any right or remedy available to the New
Mortgage Trustee in its capacity as owner and holder of Pledged Bonds which
arises as a result of a default or Matured Event of Default under any Class "A"
Mortgage, whether or not an Event of Default under the New Mortgage has then
occurred and is continuing. (See Section 10.20.)
DEFEASANCE
Any Mortgage Bond or Bonds, or any portion of the principal amount thereof,
will be deemed to have been paid for purposes of the New Mortgage, and the
entire indebtedness of the Company in respect thereof will be deemed to have
been satisfied and discharged, if there has been irrevocably deposited with the
New Mortgage Trustee, in trust: (a) money (including Funded Cash) in the amount
which will be sufficient, or (b) Eligible Obligations (as described below),
which do not contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, the principal of and the interest
on which when due, without any regard to reinvestment thereof, will provide
monies which will be sufficient, or (c) a combination of (a) and (b) which will
be sufficient, to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Mortgage Bond or Bonds or
portions thereof. (See Section 9.01.) For this purpose, Eligible Obligations
include direct obligations of, or obligations unconditionally guaranteed by, the
United States of America, entitled to the benefit of the full faith and credit
thereof, and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof.
While there is no legal precedent directly on point, it is possible that,
for federal income tax purposes, any deposit contemplated in the preceding
paragraph could be treated as a taxable exchange of the related Mortgage Bonds
for an issue of obligations of the trust or a direct interest in the cash and
securities held in the trust. In that case, Holders of such Mortgage Bonds would
recognize gain or loss as if the trust obligations or the cash or securities
deposited, as the case may be, had actually been received by them in exchange
for their Mortgage Bonds. Such Holders thereafter would be required to include
in income a share of the income, gain or loss of the trust. The amount so
required to be included in income could be different from the amount that would
be includible in the absence of such deposit. Prospective investors are urged to
consult their own tax advisors as to the specific consequences to them of such
deposit.
RESIGNATION OF THE NEW MORTGAGE TRUSTEE
The New Mortgage Trustee may resign at any time by giving written notice
thereof to the Company or may be removed at any time by Act of the Holders of a
majority in principal amount of Mortgage Bonds then Outstanding delivered to the
New Mortgage Trustee and the Company. No resignation or removal of the New
Mortgage Trustee and no appointment of a successor trustee will become effective
until the acceptance of appointment by a successor trustee in accordance with
the requirements of the New Mortgage. In addition, so long as no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing, under certain circumstances, if
the Company has delivered to the New Mortgage Trustee a resolution of its Board
of Directors appointing a successor trustee
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and such successor has accepted such appointment in accordance with the terms of
the New Mortgage, the New Mortgage Trustee will be deemed to have resigned and
the successor will be deemed to have been appointed as trustee in accordance
with the New Mortgage. (See Section 11.10.)
CONCERNING THE NEW MORTGAGE TRUSTEE
The Chase Manhattan Bank (N.A.), the Trustee under the New Mortgage, has
been a regular depositary of funds of the Company. As trustee under both the New
Mortgage and the First Mortgage, The Chase Manhattan Bank (N.A.) would have a
conflicting interest for purposes of the Trust Indenture Act if an Event of
Default were to occur under either mortgage. In that case, the New Mortgage
Trustee may be required to eliminate such conflicting interest by resigning
either as New Mortgage Trustee or as First Mortgage Trustee. There are other
instances under the Trust Indenture Act which would require the resignation of
the New Mortgage Trustee, such as an affiliate of the New Mortgage Trustee
acting as underwriter with respect to any of the Mortgage Bonds.
TRANSFER
The transfer of the Mortgage Bonds may be registered, and Mortgage Bonds may
be exchanged for other Mortgage Bonds of the same series and tranche, of
authorized denominations and of like tenor and aggregate principal amount, at
the office of The Chase Manhattan Bank (N.A.), as Bond Registrar for the
Mortgage Bonds, in Brooklyn, New York. The Company may change the place for
registration of transfer of the Mortgage Bonds, may appoint one or more
additional Bond Registrars (including the Company) and may remove any Bond
Registrar, all at its discretion. (See Section 6.02.) The applicable Prospectus
Supplement will identify any new place for registration of transfer and
additional Bond Registrar appointed, and will disclose the removal of any Bond
Registrar effected, prior to the date of such Prospectus Supplement. Except as
otherwise provided in the applicable Prospectus Supplement, no service charge
will be made for any transfer or exchange of the Mortgage Bonds, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of the Mortgage Bonds. The Company will not be required to issue, and
no Bond Registrar will be required to register, the transfer of or to exchange
(a) Mortgage Bonds of any series (including the Mortgage Bonds) during a period
of 15 days prior to giving any notice of redemption, or (b) any Mortgage Bond
selected for redemption in whole or in part, except the unredeemed portion of
any Mortgage Bond being redeemed in part. (See Section 3.05.)
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Subordinated Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Subordinated Debt Securities offered by any
Prospectus Supplement and the extent, if any, to which such general terms and
provisions may apply to the Subordinated Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Subordinated Debt Securities may be issued, in one or more series, from
time to time under an Indenture dated as of August 1, 1995 (the "Indenture"),
between the Company and The Chase Manhattan Bank (N.A.), as trustee (the
"Indenture Trustee"), which shall act as indenture trustee for the purposes of
the Trust Indenture Act of 1939, as amended. The form of the Indenture is filed
as an exhibit to the Registration Statement. Capitalized terms used in this
section which are not otherwise defined in this Prospectus shall have the
meanings set forth in the Indenture.
The following summaries of certain provisions of the Subordinated Debt
Securities and the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by express reference to all the provisions
of the Indenture, including the definitions therein of certain terms.
GENERAL
The Subordinated Debt Securities will be direct, unsecured, subordinated
obligations of the Company.
The Indenture does not limit the aggregate principal amount of Subordinated
Debt Securities that may be issued thereunder and provides that Subordinated
Debt Securities may be issued thereunder from time to
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time in one or more series. The Subordinated Debt Securities are issuable in one
or more series pursuant to an indenture supplement to the Indenture or a
resolution of the Company's Board of Directors or a special committee thereof
(each, a "Supplemental Indenture").
The Restated Certificate of Incorporation of the Company limits, subject to
certain exceptions, the amount of unsecured indebtedness that the Company may
issue or assume, without the consent of the holders of a majority of the total
number of shares of preferred stock then outstanding, to 25% of the aggregate of
(i) the total principal amount of all outstanding bonds or other securities
representing secured indebtedness of the Company, and (ii) the total of the
capital stocks and premiums thereon and the surplus of the Company as then
stated on the Company's books. At June 30, 1995, the Company could have issued
approximately $64 million of unsecured indebtedness (such as the Subordinated
Debt Securities) without violating this provision.
Reference is made to the Prospectus Supplement relating to any Subordinated
Debt Securities being offered for, among other things, the following terms
thereof: (1) the title of the Subordinated Debt Securities; (2) any limit on the
aggregate principal amount of such Subordinated Debt Securities; (3) the
percentage of the principal amount at which such Subordinated Debt Securities
will be issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon acceleration of the maturity thereof,
or the method by which such portion shall be determined; (4) the date or dates
on which the principal of such Subordinated Debt Securities will be payable; (5)
the rights, if any, to defer payments of interest on the Subordinated Debt
Securities by extending the interest payment period, and the duration of such
extensions; (6) the subordination terms of the Subordinated Debt Securities of
such series; (7) the rate or rates at which such Subordinated Debt Securities
will bear interest, or the method by which such rate or rates shall be
determined, and the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined; (8) the dates on which
such interest will be payable and the Regular Record Dates for any Interest
Payment Dates and the basis on which interest shall be calculated; (9) the
dates, if any, on which, the price or prices at which the Subordinated Debt
Securities may, pursuant to any mandatory or optional sinking fund provisions,
be redeemed by the Company and other detailed terms and provisions of such
sinking funds; (10) the date, if any, after which, and the price or prices at
which, the Subordinated Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Company or of the Holder thereof,
and other detailed terms and provisions of such optional redemption; (11)
whether and under what circumstances the Company will pay Additional Amounts as
contemplated by Section 1005 of the Indenture on such Subordinated Debt
Securities to any Holder who is not a United States person (including any
modification to the definition of such term as provided for in the Indenture as
originally executed) in respect to any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such Subordinated
Debt Securities rather than pay such Additional Amounts (and the terms of any
such option); (12) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to such Subordinated
Debt Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein; (13) any
security for such Subordinated Debt Securities; and (14) any other terms of such
Subordinated Debt Securities. For a description of the terms of any series of
the Subordinated Debt Securities, reference must be made to both the Prospectus
Supplement relating thereto and to the description of Subordinated Debt
Securities set forth herein.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Subordinated Debt Securities will be issued in United States dollars in
fully registered form, without coupons, in denominations of $25 or any integral
multiple thereof. No service charge will be made for any transfer or exchange of
the Subordinated Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the principal of, and any premium or interest on, the Subordinated Debt
Securities will be payable, and the Subordinated Debt Securities will be
exchangeable and transfers thereof will be registrable, at the Place of Payment;
provided that, at the option of the Company, payment of interest may be made by
check mailed to the address of the person entitled thereto as it appears in the
Security Register.
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The Indenture does not contain any provisions that may afford the Holders of
Subordinated Debt Securities protection in the event of a highly leveraged
transaction or other transaction involving the Company that may occur in
connection with a takeover attempt resulting in a decline in the credit rating
of the Subordinated Debt Securities. The Indenture also does not contain any
provisions that would limit the ability of the Company to incur indebtedness.
REGISTRATION AND TRANSFER
Subordinated Debt Securities will be issued as Registered Securities and
either will be in certificated form or will be represented by Global Securities.
Registered Securities will be issuable in denominations of $25 and integral
multiples of $25 or in such other denominations as may be in the terms of the
Subordinated Debt Securities.
Registered Securities will be exchangeable for other Registered Securities
of the same series and of a like aggregate principal amount and tenor of
different authorized denominations. Registered Securities may be presented for
registration of transfer (duly endorsed or accompanied by a written instrument
of transfer), at the corporate trust office of the Indenture Trustee in New
York, New York, or at the office of any transfer agent designated by the Company
for such purpose with respect to any series of Subordinated Debt Securities and
referred to in any Prospectus Supplement. No service charge will be made for any
transfer or exchange of Subordinated Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If any Prospectus Supplement refers to
any transfer agent (in addition to the Indenture Trustee) initially designated
by the Company with respect to any series of Subordinated Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location at which any such transfer agent acts, except
that, if Subordinated Debt Securities of a series are issuable solely as
Registered Securities, the Company will be required to maintain a transfer agent
in each Place of Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Subordinated Debt
Securities.
In the event of any redemption of any Subordinated Debt Securities, the
Company shall not be required to: (i) issue, register the transfer of or
exchange any Subordinated Debt Securities during a period beginning at the
opening of business 15 days before any selection of Subordinated Debt Securities
of that series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption; (ii) register the transfer of or
exchange any Subordinated Debt Securities, or portion thereof, called for
redemption, except the unredeemed portion of any Subordinated Debt Security
being redeemed in part; or (iii) issue, register the transfer of or exchange any
Subordinated Debt Securities that has been surrendered for repayment at the
option of the Holder, except the portion if any, thereof not to be so repaid.
GLOBAL SECURITIES
The Subordinated Debt Securities of a series may be issued in whole or in
part in the form of one or more Global Securities (as such term is defined
below), which will be deposited with, or on behalf of, a depositary (the
"Depositary") or its nominee identified in the applicable Prospectus Supplement.
In such case, one or more Global Securities will be issued in a denomination or
aggregate denomination equal to the portion of the aggregate principal amount of
outstanding Subordinated Debt Securities of the series to be represented by such
Global Security or Global Securities. Unless and until it is exchanged in whole
or in part for Subordinated Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as (i) a whole by
the Depositary for such Global Security to a nominee of such Depositary, by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary, or by any nominee to a successor Depositary or
a nominee of such successor Depositary, and (ii) in the circumstances described
in the applicable Prospectus Supplement. The term "Global Security," when used
with respect to any series of Subordinated Debt Securities, means a Debt
Security that is executed by the Company and authenticated and delivered by the
Indenture Trustee to the Depositary or pursuant to the Depositary's instruction,
which shall be registered in the name of the Depositary or its nominee and which
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all
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of the Outstanding Subordinated Debt Securities of such series or any portion
thereof, in either case having the same terms, including, without limitation,
the same original issue date, date or dates on which principal is due, and
interest rate or method of determining the interest rate.
The specific terms of the depositary arrangement with respect to any portion
of a series of Subordinated Debt Securities to be represented by a Global
Security will be described in the applicable Prospectus Supplement. The Company
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Subordinated Debt Securities that are to be represented by a Global Security to
be deposited with or on behalf of a Depositary will be represented by a Global
Security registered in the name of such Depositary or its nominee. Upon the
issuance of such Global Security, and the deposit of such Global Security with
or on behalf of the Depositary for such Global Security, the Depositary will
credit on its book-entry registration and transfer system the respective
principal amounts of the Subordinated Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such Depositary
or its nominee ("participants"). The accounts to be credited will be designated
by the underwriters or agents of such Subordinated Debt Securities or, if such
Subordinated Debt Securities are offered and sold directly by the Company, by
the Company. Ownership of beneficial interests in such Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Global Security will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by the Depositary or its nominee for such Global
Security. Ownership of beneficial interests in such Global Security by persons
that hold through participants will be shown on, and the transfer of that
ownership interest within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Subordinated
Debt Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Subordinated Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Subordinated Debt Securities of such series in certificated
form and will not be considered the Holders thereof for any purposes under the
Indenture. Accordingly, each person owning a beneficial interest in such Global
Security must rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest to exercise any rights of a Holder under the Indenture.
The Company understands that under existing industry practices, if the Company
requests any action of Holders or an owner of a beneficial interest in such
Global Security desires to give any notice or take any action a Holder is
entitled to give or take under the Indenture, then the Depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE
The Indenture does not contain any covenant which restricts the Company's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions.
EVENTS OF DEFAULT
The Indenture provides, with respect to any series of Subordinated Debt
Securities outstanding thereunder, that any one or more of the following events
that has occurred and is continuing shall constitute an
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Event of Default: (i) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Subordinated Debt Security of that
series, or of any coupon appertaining thereto, when the same becomes due and
payable and continues for 30 days; provided, however, that, a valid extension of
the interest payment period by the Company for the Subordinated Debt Securities
shall not constitute a default in the payment of interest for this purpose, and
provided further that, if Subordinated Debt Securities are issued to a NWPS
Trust, or a trustee of such trust, in connection with the issuance of Trust
Securities by such NWPS Trust, said 30-day period will be replaced by a ten-day
period; (ii) default in the payment of the principal of or any premium on any
Subordinated Debt Security of that series when due, whether at maturity, upon
redemption, by declaration or otherwise; provided, however, that, a valid
extension of the maturity of the Subordinated Debt Securities shall not
constitute a default for this purpose; (iii) default in the deposit of any
sinking fund payment, when and as due by the terms of any Subordinated Debt
Securities of that series; (iv) default in the performance or breach of any
covenant or agreement of the Company in the Indenture with respect to any
Subordinated Debt Security of that series, continued for 60 days after written
notice to the Company from the Indenture Trustee or from the holders of at least
25% of the outstanding Subordinated Debt Securities of that series; (v) certain
events in bankruptcy, insolvency or reorganization of the Company; (vi) the
voluntary or involuntary dissolution, winding-up or termination of a NWPS Trust
to which (or to a trustee of such trust to which) Subordinated Debt Securities
were issued in connection with the issuance of Trust Securities by such NWPS
Trust, except in connection with the distribution of Subordinated Debt
Securities to the holders of Trust Securities in liquidation of such NWPS Trust,
the redemption of all of the Trust Securities of such NWPS Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such NWPS Trust; and (vii) any other Event of Default provided with respect
to Subordinated Debt Securities of that series. The Company is required to file
annually with the Indenture Trustee an officer's certificate as to the Company's
compliance with all conditions and covenants under the Indenture. The Indenture
provides that the Indenture Trustee may withhold notice to the Holders of
Subordinated Debt Securities of any default, except in the case of a default on
the payment of the principal of (or premium), if any, or interest on any
Subordinated Debt Securities or the payment of any sinking fund installment with
respect to such Subordinated Debt Securities if it considers it in the interest
of the Holders of Subordinated Debt Securities to do so.
If an Event of Default, other than certain events with respect to
bankruptcy, insolvency and reorganization of the Company or any Significant
Subsidiary, occurs and is continuing with respect to Subordinated Debt
Securities of a particular series, the Indenture Trustee or the Holders of not
less than 25% in principal amount of Outstanding Subordinated Debt Securities of
that series may declare the Outstanding Subordinated Debt Securities of that
series due and payable immediately. If an Event of Default with respect to
certain events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary with respect to Subordinated Debt Securities of a
particular series shall occur and be continuing, then the principal of all the
Outstanding Subordinated Debt Securities of that series, and accrued and unpaid
interest thereon, shall automatically be due and payable without any act on the
part of the Indenture Trustee or any Holder.
Subject to the provisions relating to the duties of the Indenture Trustee,
if an Event of Default with respect to Subordinated Debt Securities of a
particular series occurs and is continuing, the Indenture Trustee shall be under
no obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders of Subordinated Debt Securities of
such series, unless such Holders shall have offered to the Indenture Trustee
reasonable indemnity and security against the costs, expenses and liabilities
that might be incurred by it in compliance with such request. Subject to such
provisions for the indemnification of the Indenture Trustee, the Holders of a
majority in principal amount of the Outstanding Subordinated Debt Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee
under the Indenture, or exercising any trust or power conferred on the Indenture
Trustee with respect to the Subordinated Debt Securities of that series. The
Indenture Trustee may refuse to follow directions in conflict with law or the
Indenture that may involve the Indenture Trustee in personal liability or may be
unduly prejudicial to Holders not joining therein.
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The Holders of not less than a majority in principal amount of the
Outstanding Subordinated Debt Securities of any series may, on behalf of the
Holders of all the Subordinated Debt Securities of such series and any related
coupons, waive any past default under the Indenture with respect to such series
and its consequences, except a default (i) in the payment of the principal of
(or premium, if any) or interest on or Additional Amounts payable in respect of
any Subordinated Debt Security of such series unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration and any applicable premium has been deposited
with the Indenture Trustee or (ii) in respect of a covenant or provision that
cannot be modified or amended without the consent of the Holder of each
Outstanding Subordinated Debt Security of such series affected thereby.
MODIFICATION OR WAIVER
Modification and amendment of the Indenture may be made by the Company and
the Indenture Trustee with the consent of the Holders of not less than a
majority in principal amount of all Outstanding Subordinated Debt Securities or
any series that are affected by such modification or amendment; provided that,
no such modification or amendment may, without the consent of the Holder of each
Outstanding Subordinated Debt Security of such series, among other things, (i)
change the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any Subordinated Debt Security of
such series, (ii) reduce the principal amount or the rate of interest on or any
Additional Amounts payable in respect of, or any premium payable upon the
redemption of, any Subordinated Debt Security of such series, or change the
redemption provisions of any Subordinated Debt Securities (iii) change any
obligation of the Company to pay Additional Amounts in respect of any
Subordinated Debt Security of such series, (iv) reduce the amount of principal
of a Subordinated Debt Security of such series that is an Original Issue
Discount Security and would be due and payable upon a declaration of
acceleration of the Maturity thereof, (v) adversely affect any right of
repayment at the option of the Holder of any Subordinated Debt Security of such
series, (vi) change the place or currency of payment of principal of, or any
premium or interest on, any Subordinated Debt Security of such series, (vii)
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof or any Redemption Date or Repayment Date
therefor, (viii) reduce the above-stated percentage of Holders of Outstanding
Subordinated Debt Securities of such series necessary to modify or amend the
Indenture or to consent to any waiver thereunder or reduce the requirements for
voting or quorum described below, (ix) modify the change of control provisions,
if any, or (x) modify the foregoing requirements or reduce the percentage of
Outstanding Subordinated Debt Securities of such series necessary to waive any
past default.
Modification and amendment of the Indenture may be made by the Company and
the Indenture Trustee without the consent of any Holder, for any of the
following purposes: (i) to evidence the succession of another person to the
Company as obligor under the Indenture; (ii) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Subordinated Debt
Securities; (iii) to add Events of Default for the benefit of the Holders of all
or any series of Subordinated Debt Securities; (iv) to change or eliminate any
provisions of the Indenture, provided that any such change or elimination shall
become effective only when there are no Outstanding Subordinated Debt Securities
of any series created prior thereto that are entitled to the benefit of such
provision; (v) to establish the form or terms of Subordinated Debt Securities of
any series; (vi) to secure the Subordinated Debt Securities; (vii) to provide
for the acceptance of appointment by a successor Indenture Trustee or facilitate
the administration of the trusts under the Indenture by more than one Indenture
Trustee; and (viii) to close the Indenture with respect to the authentication
and delivery of additional series of Subordinated Debt Securities, or to cure
any ambiguity, defect or inconsistency in the Indenture, provided such action
does not adversely affect the interest of Holders of Subordinated Debt
Securities of any series.
CERTAIN COVENANTS
If Subordinated Debt Securities are issued to a NWPS Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such NWPS
Trust and (i) there shall have occurred any event that would constitute an Event
of Default or (ii) the Company shall be in default with respect to its payment
of any obligations under the related Guarantee or Common Securities Guarantee,
then (a) the Company shall not declare or pay dividends on, or make a
distribution with respect to or redeem, purchase or acquire, or make a
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liquidation payment with respect to, any of its capital stock, and (b) the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Company that
rank pari passu with or junior to such Subordinated Debt Securities; provided,
however, that, restriction (a) above does not apply to any stock dividends paid
by the Company where the dividend stock is the same stock as that on which the
dividend is being paid.
If Subordinated Debt Securities are issued to a NWPS Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such NWPS
Trust, and the Company shall have given notice of its election to defer payments
of interest on such Subordinated Debt Securities by extending the interest
payment period as provided in the Indenture and such period, or any extension
thereof, shall be continuing then (a) the Company shall not declare or pay
dividends on, or make a distribution with respect to or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock, and (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Company that rank pari passu with or junior to such Subordinated Debt
Securities; provided, however, that, the restriction (a) above does not apply to
any stock dividends paid by the Company, where the dividend stock is the same as
that on which the dividend is being paid.
If Subordinated Debt Securities are issued to a NWPS Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such NWPS
Trust, for so long as such Trust Securities remain outstanding, the Company will
covenant (i) to directly or indirectly maintain 100% ownership of the Common
Securities of such NWPS Trust; provided, however, that any permitted successor
of the Company under the Indenture may succeed to the Company's ownership of
such Common Securities and (ii) to use its reasonable efforts to cause such NWPS
Trust (a) to remain a statutory business trust, except in connection with the
distribution of Subordinated Debt Securities to the holders of Trust Securities
in liquidation of such NWPS Trust, the redemption of all of the Trust Securities
of such NWPS Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of such NWPS Trust, and (b) to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes.
SECURITY AND SUBORDINATION
Any security for the Subordinated Debt Securities will be described in the
Prospectus Supplement that will accompany this Prospectus. The Subordinated Debt
Securities will be subordinated and junior in right of payment to certain other
indebtedness of the Company to the extent set forth in the Prospectus Supplement
that will accompany this Prospectus.
GOVERNING LAW
The Indenture and the Subordinated Debt Securities will be governed by, and
construed in accordance with, the internal laws of the State of New York.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee, prior to default, undertakes to perform only such
duties as are specifically set forth in the Indenture and, after default, shall
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision, the Indenture
Trustee is under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Subordinated Debt Securities, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities that might be incurred thereby. The Indenture Trustee is not
required to expand or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Indenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
DEFEASANCE
The Indenture provides that, except as may be provided in respect of any
series of Subordinated Debt Securities, the provisions of Article Fourteen shall
apply to the Subordinated Debt Securities of any series and the Company may
elect either to (a) except in respect of any Subordinated Debt Securities to
which a NWPS Trust or a trustee of such trust is the holder, defease and be
discharged from any and all obligations with respect to such Subordinated Debt
Securities (except for the obligation to pay Additional Amounts, if any, to a
holder who is not a United States person upon the occurrence of certain events
of tax, assessment or
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governmental charge with respect to payments on such Subordinated Debt
Securities and the obligations to register the transfer or exchange of such
Subordinated Debt Securities, to replace temporary or mutilated, destroyed, lost
or stolen Subordinated Debt Securities, to maintain an office or agency in
respect of such Subordinated Debt Securities, and to hold moneys for payment in
trust) ("Defeasance") or (b) be released from its obligations with respect to
such Subordinated Debt Securities under Section 1402 or, if provided pursuant to
Section 1403 of the Indenture, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event of Default with respect to such Subordinated Debt
Securities ("covenant defeasance"), in either case, upon the irrevocable deposit
by the Company with the Indenture Trustee (or other qualifying trustee), in
trust, of an amount, in such Currency in which such Subordinated Debt Securities
are then specified as payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such Subordinated Debt Securities (with
such applicability being determined on the basis of the currency, currency unit
or composite currency in which such Subordinated Debt Securities are then
specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and interest, if
any, on such Subordinated Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company has
delivered to the Indenture Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the Holders of such Subordinated Debt Securities
will not recognize income, gain or loss for United States federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance or
covenant defeasance had not occurred; provided that, such Opinion of Counsel, in
the case of defeasance under clause (a) above, must refer to and be based upon a
revenue ruling of the Internal Revenue Service or a change in applicable United
States federal income tax law occurring after the date of the Indenture.
"Government Obligations" means securities that are (i) direct obligations of
the government that issued the Currency in which the Subordinated Debt
Securities of a particular series are payable, for the payment of which its full
faith and credit is pledged, or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the government that
issued the Currency in which the Subordinated Debt Securities of such series are
payable, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest in or principal of the Government
Obligation evidenced by such depository receipt.
Unless otherwise provided in the Prospectus Supplement, if, after the
Company has deposited funds and/or Government Obligations to effect defeasance
or covenant defeasance relating thereto with respect to Subordinated Debt
Securities of any series, (a) the Holder of a Subordinated Debt Security of such
series is entitled to and does elect, pursuant to the terms of such Subordinated
Debt Security, to receive payment in a currency other than that in which such
deposit has been made in respect of such Subordinated Debt Security or (b) the
currency in which such deposit has been made in respect of any Subordinated Debt
Security of such series ceases to be used by its government of issuance, then
the indebtedness represented by such Subordinated Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment of
the principal of (and premium, if any) and interest, if any, on such
Subordinated Debt Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Subordinated Debt Security
into the Currency in which such Subordinated Debt Security becomes
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payable as a result of such election or such cessation of usage based on the
applicable Market Exchange Rate. Unless otherwise provided in the Prospectus
Supplement, all payments of principal of (and premium, if any) and interest, if
any, and Additional Amounts, if any, on any Subordinated Debt Security that is
payable in a Foreign Currency that ceases to be used by its government of
issuance shall be made in U. S. Dollars.
In the event the Company effects covenant defeasance with respect to (i) any
Subordinated Debt Securities and any related coupons and (ii) such Subordinated
Debt Securities are declared due and payable because of the occurrence of any
Event of Default, other than the Event of Default described in clause (iii) or
(v) under "Events of Default," with respect to any covenant for which there has
been defeasance, the Currency and/or Government Obligations on deposit with the
Indenture Trustee will be sufficient to pay amounts due on such Subordinated
Debt Securities at the time of their Stated Maturity but may not be sufficient
to pay amounts due on such Subordinated Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Subordinated Debt
Securities of or within a particular series and any related coupons.
MISCELLANEOUS
The Company will have the right at all times to assign any of its respective
rights or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided, that, in the event of any such assignment,
the Company will remain liable for all of their respective obligations. Subject
to the foregoing, the Indenture will be binding upon and inure to the benefit of
the parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto.
DESCRIPTION OF THE PREFERRED SECURITIES
Each NWPS Trust may issue, from time to time, only one series of Preferred
Securities having terms described in the Prospectus Supplement relating thereto.
The Declaration of each NWPS Trust authorizes the Regular Trustees of such NWPS
Trust to issue on behalf of such NWPS Trust one series of Preferred Securities.
The Declaration will be qualified as an indenture under the Trust Indenture Act.
The Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions as shall be set forth in the
Declaration or made part of the Declaration by the Trust Indenture Act.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of a NWPS Trust for specific terms, including (i) the distinctive
designation of such Preferred Securities, (ii) the number of Preferred
Securities issued by such NWPS Trust, (iii) the annual distribution rate (or
method of determining such rate) for Preferred Securities issued by such NWPS
Trust and the date or dates upon which such distributions shall be payable
(provided, however, that, distributions on such Preferred Securities shall be
payable on a quarterly basis to holders of such Preferred Securities as of a
record date in each quarter during which such Preferred Securities are
outstanding), (iv) whether distributions on Preferred Securities issued by such
NWPS Trust shall be cumulative, and, in the case of Preferred Securities having
such cumulative distribution rights, the date or dates or method of determining
the date or dates from which distributions on Preferred Securities issued by
such NWPS Trust shall be cumulative, (v) the amount or amounts which shall be
paid out of the assets of such NWPS Trust to the holders of Preferred Securities
of such NWPS Trust upon voluntary or involuntary dissolution, winding-up or
termination of such NWPS Trust, (vi) the obligation, if any, of such NWPS Trust
to purchase or redeem Preferred Securities issued by such NWPS Trust and the
price or prices at which, the period or periods within which and the terms and
conditions upon which Preferred Securities issued by such NWPS Trust shall be
purchased or redeemed, in whole or in part, pursuant to such obligation, (vii)
the voting rights, if any, of Preferred Securities issued by such NWPS Trust in
addition to those required by law, including the number of votes per Preferred
Security and any
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requirement for the approval by the holders of Preferred Securities, or of
Preferred Securities issued by one or more NWPS Trusts or of both, as a
condition to specified action or amendments to the Declaration of such NWPS
Trust, and (viii) any other relevant rights, preferences, privileges,
limitations or restrictions of Preferred Securities issued by such NWPS Trust
consistent with the Declaration of such NWPS Trust, or with applicable law. All
Preferred Securities offered hereby will be guaranteed by the Company to the
extent set forth below under "Description of the Guarantees." Certain United
States federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each NWPS Trust
will issue one series of Common Securities. The Declaration of each NWPS Trust
authorizes the Regular Trustees of each trust to issue on behalf of such NWPS
Trust one series of Common Securities having such terms including distributions,
redemption, voting, liquidation rights or such restrictions as shall be set
forth therein. The terms of the Common Securities issued by a NWPS Trust will be
substantially identical to the terms of the Preferred Securities issued by such
NWPS Trust and the Common Securities will rank pari passu, and payments will be
made thereon pro rata with the Preferred Securities except that, upon an event
of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote and to appoint, remove or replace
any of the NWPS Trustees of a NWPS Trust. All of the Common Securities of a NWPS
Trust will be directly or indirectly owned by the Company.
DESCRIPTION OF THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees that
will be executed and delivered by the Company for the benefit of the holders,
from time to time, of Preferred Securities. Each Guarantee will be qualified as
an indenture under the Trust Indenture Act. Wilmington Trust Company will act as
indenture trustee under each Guarantee (the "Guarantee Trustee"). The terms of
each Guarantee will be those set forth in each Guarantee and those made part of
each Guarantee by the Trust Indenture Act. The summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the form of Guarantee, which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, and
the Trust Indenture Act. Each Guarantee will be held by the Guarantee Trustee
for the benefit of the holders of the Preferred Securities of the applicable
NWPS Trust.
GENERAL
Pursuant to each Guarantee, the Company will irrevocably and unconditionally
agree, to the extent set forth herein, to pay in full to the holders of the
Preferred Securities issued by a NWPS Trust, the Guarantee Payments (as defined
herein) (except to the extent paid by such NWPS Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which such NWPS
Trust may have or assert. The following payments with respect to Preferred
Securities issued by a NWPS Trust (the "Guarantee Payments"), to the extent not
paid by such NWPS Trust will be subject to the Guarantee (without duplication):
(i) any accrued and unpaid distributions that are required to be paid on such
Preferred Securities, to the extent the Company has made a payment of interest
or principal on the Subordinated Debt Securities, (ii) the redemption price,
including all accrued and unpaid distributions to the date of redemption (the
"Redemption Price"), to the extent the Company has made a payment of interest or
principal on the Subordinated Debt Securities, with respect to any Preferred
Securities called for redemption by such NWPS Trust, and (iii) upon a voluntary
or involuntary dissolution, winding-up or termination of such NWPS Trust (other
than in connection with the distribution of Subordinated Debt Securities to the
holders of Preferred Securities or the redemption of all of the Preferred
Securities upon the maturity or redemption of the Subordinated Debt Securities)
the lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Preferred Securities to the date of payment to the
extent such NWPS Trust has funds legally available therefor and (b) the amount
of assets of such NWPS Trust remaining available for distribution to
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holders of such Preferred Securities in liquidation of such NWPS Trust. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of Preferred
Securities or by causing such NWPS Trust to pay such amounts to such holders.
Each Guarantee will be a full and unconditional guarantee with respect to
the Preferred Securities issued by the applicable NWPS Trust from the time of
issuance of such Preferred Securities but will not apply to any payment of
distributions due to the extent such NWPS Trust shall lack funds legally
available therefor as a result of a failure by the Company to make payments of
interest or principal on the Subordinated Debt Securities. If the Company does
not make interest payments on the Subordinated Debt Securities purchased by such
NWPS Trust, such NWPS Trust will not pay distributions on the Preferred
Securities issued by a NWPS Trust and will not have funds legally available
therefor. See "Description of the Subordinated Debt Securities."
The Company and NWPS Capital believe that the rights of the holders of the
Preferred Securities and the obligations of the Company under the Declaration,
the Guarantees, the Preferred Securities, the Common Securities, the Indenture,
the Supplemental Indenture and the Subordinated Debt Securities collectively
provide the substantial equivalent of a full and unconditional guarantee by the
Company of payments due on the Preferred Securities.
The Company has also agreed to irrevocably and unconditionally guarantee the
obligations of the NWPS Trusts with respect to the Common Securities (the
"Common Securities Guarantee") to the same extent as the Guarantees, except
that, upon an event of default under the Indenture, holders of Preferred
Securities under the Guarantees shall have priority over holders of Common
Securities under the Common Securities Guarantees with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Guarantee, the Company will covenant that, so long as any Preferred
Securities issued by the applicable NWPS Trust remain outstanding, if there
shall have occurred any event that would constitute an event of default under
such Guarantee or the Declaration of such NWPS Trust, then (a) the Company shall
not declare or pay any dividend on, or make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or junior to such
Subordinated Debt Securities. However, each Guarantee will except from the
foregoing any stock dividends paid by the Company where the dividend stock is of
the same as that on which the dividend is being paid.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of Preferred Securities (in which case no vote will be
required), each Guarantee may be amended only with the prior approval of the
holders of not less than 66 2/3% in liquidation amount of the outstanding
Preferred Securities issued by the applicable NWPS Trust. The manner of
obtaining any such approval of holders of such Preferred Securities will be set
forth in an accompanying Prospectus Supplement. All guarantees and agreements
contained in a Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the holders of the Preferred Securities of the applicable NWPS Trust then
outstanding.
EVENTS OF DEFAULT
An Event of Default under the Guarantee will occur upon the failure of the
Company to perform any of its payments or other obligations thereunder. The
holders of a majority in liquidation amount of the Preferred Securities to which
a Guarantee relates have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce such Guarantee, any holder of
Preferred Securities relating to such Guarantee may, after such holder's written
request to the Guarantee Trustee to enforce the Guarantee,
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institute a legal proceeding directly against the Company to enforce the
Guarantee Trustee's rights under such Guarantee without first instituting a
legal proceeding against the relevant NWPS Trust, the Guarantee Trustee or any
other person or entity.
The Company will be required to provide annually to the Guarantee Trustee a
statement as to the performance by the Company of certain of its obligations
under each of the Guarantees and as to any default in such performance.
The Company is required to file annually with the Guarantee Trustee an
officer's certificate as to the Company's compliance with all conditions under
each of the Guarantees.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after default with respect to a Guarantee, shall exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provision, the Guarantee Trustee is under no obligation
to exercise any of the powers vested in it by a Guarantee Agreement at the
request of any holder of Preferred Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate as to the Preferred Securities issued by the
applicable NWPS Trust upon full payment of the Redemption Price of all Preferred
Securities of the NWPS Trust, upon distribution of the Subordinated Debt
Securities held by the NWPS Trust to the holders of the Preferred Securities of
such NWPS Trust, or upon full payment of the amounts payable in accordance with
the Declaration of such NWPS Trust upon liquidation of such NWPS Trust. Each
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Preferred Securities issued by the applicable
NWPS Trust must restore payment of any sums paid under such Preferred Securities
or such Guarantee.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company and
will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by the Company in respect of any preferred or
preference stock of any affiliate of the Company, and (iii) senior to the
Company's common stock. The terms of the Preferred Securities provide that each
holder of Preferred Securities issued by a NWPS Trust by acceptance thereof
agrees to the subordination provisions and other terms of the applicable
Guarantee.
Each Guarantee will constitute a guarantee of payment and not of collection
(allowing the guaranteed party to institute a legal proceeding directly against
the guarantor to enforce its rights under a Guarantee without instituting a
legal proceeding against any other person or entity).
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the
internal laws of the State of New York.
DESCRIPTION OF THE COMMON STOCK
GENERAL
Under the Company's Restated Certificate of Incorporation, as amended (the
"Charter"), the Company is authorized to issue three classes of capital stock:
300,000 shares of Cumulative Preferred Stock, par value $100 per share, of which
26,000 shares of 4 1/2% Cumulative Preferred Stock and 40,000 shares of 5 1/4%
Cumulative Preferred Stock are outstanding; 200,000 shares of Preference Stock,
par value $50 per share, none of which are outstanding; and 20,000,000 shares of
Common Stock, par value $3.50 per share, 7,677,232 of which were outstanding as
of August 14, 1995. The Cumulative Preferred Stock and the Preference Stock may
be issued at any time by the Board of Directors in such series with such terms
as it may fix in resolutions providing for the issuance thereof.
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The following statements are summaries of certain provisions relating to the
Common Stock contained in the Charter, the Company's First Mortgage Bond
Indenture, as supplemented to date (the "1940 Indenture"), and the Company's New
Mortgage (the 1940 Indenture and the New Mortgage Indenture are referred to
together as the "Bond Indentures"). Such summaries are not complete descriptions
of the provisions of the Charter and the Bond Indentures and are qualified in
their entirety by reference thereto. The Charter and the Bond Indentures are
contained in exhibits to reports and registration statements which have been
filed with the Commission (see "Available Information").
DIVIDEND RIGHTS
Subject to the limitations described in the following three paragraphs,
dividends may be paid on the Common Stock out of funds legally available for
that purpose, when and as declared by the Company's Board of Directors.
The Company may not declare or pay cash dividends on the Common Stock unless
full dividends on all Cumulative Preferred Stock and on any Preference Stock
then outstanding for the current and all past quarterly dividend periods have
been paid or provided for. Also, dividends on the Common Stock may not be paid
unless the Company has complied with all sinking fund requirements for those
series of the Cumulative Preferred Stock and any Preference Stock which have
such requirements.
Under the terms of the Charter, for so long as shares of Cumulative
Preferred Stock are outstanding, the following dividend limitations may not be
exceeded unless authorized by the holders of two-thirds of the outstanding
shares of such stock: dividends (other than dividends payable in Common Stock)
and other distributions on, or acquisitions by the Company for value of, Common
Stock (a) may not exceed 50% of the Company's Net Income Available for Common
Stock for the preceding 12-months' period if the "common stock equity" of the
Company is less than 20% of "total capitalization" (each calculated as required
by the Charter) and (b) may not exceed 75% of such Net Income if such
capitalization ratio is 20% or more but less than 25%. If such capitalization
ratio is 25% or more, no such dividend, distribution or acquisition shall be
declared, paid or effected which would reduce such ratio to less than 25%,
except to the extent permitted by clauses (a) and (b). Pursuant to these
provisions, at June 30, 1995, retained earnings were not restricted as to
availability for cash dividends on the Common Stock and the Company's "common
stock equity" was 48% of its "total capitalization".
The Bond Indentures and certain purchase agreements relating to presently
outstanding Cumulative Preferred Stock contain covenants limiting the funds
available for payment of cash dividends and other distributions on the Common
Stock (for payment as well as purchases of Common Stock by the Company). Under
the most restrictive of existing covenants in the Bond Indentures or in such
purchase agreements, at June 30, 1995, a total of approximately $46,027,000 was
available for cash dividends on the Common Stock. In addition, under the 1940
Indenture cash dividends on the Common Stock and purchases of Common Stock may
be made only if the aggregate amount expended for maintenance and provided for
depreciation by the Company subsequent to January 1, 1946, plus Net Income
Available for Common Stock earned after December 31, 1945, which remains after
such dividend (or purchase) is equal to not less than the total of 3 1/2% of the
fixed tangible property, plant and equipment of the Company for each full year,
and a proportionate percentage for any fractional year, which shall have elapsed
between January 1, 1946, and the date of such proposed action.
VOTING RIGHTS
Of the three classes of the Company's authorized capital stock, the Common
Stock is the general voting stock. Holders of Common Stock are entitled to one
vote for each share held. Except in the case of certain dividend arrearages on
the Cumulative Preferred Stock or Preference Stock, the Common Stock is the only
class of stock entitled to be voted for the election of directors.
LIQUIDATION RIGHTS
In the event of a liquidation (whether voluntary or involuntary) or
reduction in the Company's capital resulting in any distribution of assets to
its stockholders, the holders of the Common Stock are entitled to
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receive, pro rata according to the number of shares held by each, all of the
assets of the Company remaining for distribution after payment to the holders of
the Cumulative Preferred Stock and Preference Stock of the full preferential
amounts to which they are entitled.
CERTAIN OTHER FEATURES
Holders of Common Stock do not have any preemptive right to subscribe to or
acquire any additional stock or other securities issued by the Company.
TRANSFER AGENTS AND REGISTRARS
The Transfer Agent and Registrars for the Common Stock are Norwest Bank,
Minnesota, and the Company.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The Company's Charter currently provides for the classification of the Board
of Directors into three classes. The Charter limits the number of directors that
may be elected to not less than nine nor more than twelve (exclusive of such
number of Directors as may be elected by any class of shares of the Company
other than the Common Stock on account of specified dividend arrearages in
accordance with the Charter) and provides that vacancies on the Board of
Directors are to be filled by a majority vote of directors and that directors so
chosen shall hold office until the end of the full term of the class in which
the vacancy occurred. A vote of the holders of 75% of the Company's outstanding
voting stock is required to amend these provisions. In addition, under the
Charter and the Delaware General Corporation Law, directors of the Company may
only be removed for cause. Removal for cause must be approved by either a
majority vote of directors (excluding the director or directors subject to
removal) or by a vote of the holders of at least a majority of the Company's
outstanding voting stock.
In addition, the "fair price provisions" of Charter require that certain
proposed business combinations between the Company and any person who is the
beneficial owner of more than 10% of the outstanding voting shares of the
Company (an "interested party") must be approved by the holders of 75% of the
voting shares, unless certain fair price and procedural requirements are met or
the business combination is approved by a majority of "Continuing Directors,"
those directors who were elected prior to the time a person became an interested
person and any other director so designated by such directors. A vote of the
holders of 75% of the Company's outstanding voting stock is required to amend
the fair price provisions.
LEGAL OPINIONS
The validity of the Offered Securities offered hereby will be passed upon
for the Company and the NWPS Trusts by Schiff Hardin & Waite, 7200 Sears Tower,
233 South Wacker Drive, Chicago, Illinois 60606. Certain legal matters will be
passed upon for any underwriters, dealers or agents by Winthrop, Stimson, Putnam
& Roberts, One Battery Park Plaza, New York, New York 10004. Certain matters of
Delaware law relating to the validity of the Preferred Securities will be passed
upon by Richards, Layton & Finger, Wilmington, Delaware, special Delaware
counsel to the Company and the NWPS Trusts. Schiff Hardin & Waite may rely on
the opinion of Richards, Layton & Finger as to certain matters of Delaware law.
Legal opinions relating to the Company's franchises, titles to its properties,
the lien of the New Mortgage and the lien of the First Mortgage (and certain
other matters) will be given as to South Dakota law by Churchill, Manolis,
Freeman, Kludt & Kaufman, Huron, South Dakota, local counsel for the Company, as
to Nebraska law by Shamberg, Wolf, McDermott & Depue, Grand Island, Nebraska,
local counsel for the Company, as to North Dakota law by Pearce and Durick,
Bismarck, North Dakota, local counsel for the Company, and as to Iowa law by
Nymann & Kohl, Sioux City, Iowa, local counsel for the Company.
The statements made in this Prospectus as to matters of law and legal
conclusions under the captions "The NWPS Trusts", "Description of the Mortgage
Bonds", "Description of the Subordinated Debt Securities", "Description of the
Preferred Securities", "Description of the Guarantees" and "Description of the
Common Stock" have been prepared under the supervision of, and reviewed by,
Schiff Hardin & Waite, counsel for the Company, and such statements are made on
the authority of that firm.
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EXPERTS
The audited financial statements of the Company incorporated by reference in
this Prospectus have been audited by Arthur Andersen LLP, independent public
accountants as indicated in their report with respect thereto and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in auditing and accounting in giving such report.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in any of the following ways:
(i) through underwriters, dealers or agents, including Morgan Stanley & Co.
Incorporated; (ii) directly to a limited number of purchasers or to a single
purchaser; (iii) through agents; or (iv) through any combination of the above.
The Prospectus Supplement, with respect to the respective Offered Securities
will set forth the terms of the offering of the Offered Securities, including
the name or names of any underwriters, dealers or agents, the price to the
public of the Offered Securities and the proceeds to the Company from such sale,
any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Offered Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating hereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to certain conditions precedent
and the underwriters will be obligated to purchase all the Offered Securities if
any are purchased.
If dealers are utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealers as principals. The dealers may then resell such
Offered Securities to the public at varying prices to be determined by such
dealers at the time of resale. The names of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
The Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect to which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth in the Prospectus Supplement relating thereto. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
reasonable efforts basis for the period of its appointment.
The Offered Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
Each series of Offered Securities will be a new issue of securities and,
unless listed on a national securities exchange, will have no established
trading market. Any underwriter to whom Offered Securities of
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any series are sold for public offering and sale may make a market in such
series of Offered Securities, but such underwriters will not be obligated to do
so and may discontinue any market making at any time without notice. If so
indicated in the Prospectus Supplement for any series of Offered Securities, the
Offered Securities of such series may be listed on a national securities
exchange. No assurance can be given as to the liquidity of, or the trading
market for, any Offered Securities.
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