As filed with the Securities and Exchange Commission on September 23, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Northwestern Delaware 46-0172280
Corporation (State or other (I.R.S.
(Exact name of jurisdiction of Employer
registrant as incorporation or Identification
specified in its organization) No.)
charter)
33 Third St. SE
Huron, South Dakota 57350-1605
(605) 352-8411
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
Alan D. Dietrich
Vice President - Law & Corporate Secretary
Northwestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
(605) 978-2907
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Robert J. Minkus
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [x]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item
11(a)(1) of this form, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
Calculation of Registration Fee
<S> <C> <C> <C> <C>
Proposed
maximum Proposed maximum
offering aggregate Amount of
Title of each class of Amount to be price per offering registration
securities to be registered registered unit (1) price (1) fee (2)
--------------------------- ----------------- ---------- ------------- ------------
Warrants to purchase shares of Common 1,231,770 shares $25.28125 $31,140,685.3125 $9,187
Stock
Common Stock, $1.75 par value and related 1,231,770 shares -------- ------- ------
Common Stock Purchase Rights (3)
(1) Estimated solely for the purpose of calculating the registration
fee.
(2) Calculated pursuant to Rule 457(c) of the rules and regulations
under the Securities Act of 1933, as amended, based on the average
of the high and low price per share of the common stock reported
In the consolidated reporting system on September 17, 1998.
(3) Issuable upon exercise of the Warrants. No additional
registration fee is payable.
</TABLE>
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1993 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
ii<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
Subject to Completion
Dated September 23, 1998
1,231,770 Shares
NORTHWESTERN CORPORATION
WARRANTS TO PURCHASE COMMON STOCK
(including Common Stock Purchase Rights)
OFFERED BY CERTAIN SELLING WARRANTHOLDERS
______________________
INVESTING IN WARRANTS TO PURCHASE COMMON STOCK INVOLVES RISKS.
SEE "RISK FACTOR" ON PAGE 3.
______________________
The Selling Warrantholders identified below may from time to time offer
Warrants (the "Warrants") to purchase up to an aggregate of 1,231,770 shares
of Common Stock, $1.75 par value (including related Common Stock Purchase
Rights) ("Common Stock"), of Northwestern Corporation, a Delaware
corporation formerly named Northwestern Public Service Company (the
"Company"), at prices and on terms to be determined at the time of sale and
set forth in one or more supplements to this Prospectus (each, a "Prospectus
Supplement").
Each Prospectus Supplement relating to the Warrants being offered by one
or more Selling Warrantholders will set forth the identity of each offering
Selling Warrantholder, the number of Warrants being offered and the terms of
the offering.
There is no established trading market for the Warrants, and none is
expected to develop. The Common Stock is listed on the New York Stock
Exchange under the symbol "NOR." The shares of Common Stock issuable upon
exercise of the Warrants will be approved for listing, subject to notice of
issuance, on such exchange.
The Selling Warrantholders may sell Warrants to or through underwriters,
directly to other purchasers or through agents. The accompanying Prospectus
Supplement sets forth the names of any underwriters or agents involved in the
sale of the Warrants, the number of Warrants, if any, to be purchased by each
underwriter and the compensation, if any, of such underwriters or agents.
See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Warrants unless
accompanied by a Prospectus Supplement.
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE
NOT APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is ______________________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). You may read and copy any such reports, statements or
other information that the Company files at the Commission's Public Reference
Room at 450 Fifth Street, N.W., in Washington, D.C. Please call the
Commission at 1-800-SEC-0330 for further information on the Public Reference
Room. The Company's filings with the Commission are also available from the
New York Stock Exchange, from commercial document retrieval services and from
the Internet site maintained by the Commission at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on
Form S-2 (including any amendments thereto, the "Registration Statement")
under the Securities Act of 1933 (the "Securities Act") with respect to the
Warrants and Common Stock offered hereby. This Prospectus, which constitutes
a part of the Registration Statement, does not contain all of the information
set forth in the Registration Statement. For further information about the
Company and the Warrants, reference is made to the Registration Statement and
the exhibits thereto, which may be inspected at the Public Reference Room
maintained by the Commission at the address set forth above or through the
Commission's Web site.
DOCUMENTS INCORPORATED BY REFERENCE
The Commission allows the Company to "incorporate by reference" into
this Prospectus the information it files with the Commission. This means
that important disclosures contained in the Company's filings with the
Commission, although not repeated in this Prospectus, are treated as being
included in this Prospectus, because the filings are listed below. As more
recent information is filed with the Commission, it will update and supersede
the information in the documents listed below. These more recent filings
also will be treated as being included in this Prospectus. The documents
that are incorporated by reference include the following:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
4. The Company's Annual Report to Stockholders for the year ended
December 31, 1997, furnished to stockholders of record March 9,
1998.
5. The description of the Common Stock contained in the Company's
registration statement on Form S-3 (registration no. 33-60423),
and any document filed which updates such description.
2<PAGE>
6. The description of the Company's Common Stock Purchase Rights
contained in the Company's registration statement on Form 8-A,
dated December 11, 1996, and any document filed which updates such
description.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering made by this
Prospectus also shall be deemed to be incorporated herein by reference and
to be a part hereof from 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 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.
This Prospectus is accompanied by a copy of the Company's (i) most
recent Annual Report on Form 10-K, and (ii) most recent quarterly report on
Form 10-Q.
RISK FACTOR
NO ESTABLISHED MARKET. There is no established trading market for the
Warrants, and none is expected to develop. The Warrantholders have no right
to cause the Company to list the Warrants on any exchange, and the Company
does not intend to do so. Accordingly, a Warrantholder may have difficulty
finding a buyer for the Warrants and may find it necessary to exercise the
Warrants for shares of Common Stock in order to sell them. The value of the
Warrants will depend upon, and is expected to fluctuate with, changes in the
market price of the Common Stock, changes in prevailing interest, market
conditions and other factors that generally influence securities prices.
THE COMPANY
The Company is a nationwide diversified energy, telecommunications and
related services provider. It generates and distributes electric energy to
approximately 56,000 customers in eastern South Dakota. The Company also
purchases, distributes, sells and transports natural gas to approximately
79,000 customers in central Nebraska and eastern South Dakota. The Company,
through its majority-owned subsidiaries, also owns approximately 35% of
Cornerstone Propane Partners, L.P., a publicly traded master limited
partnership for which a subsidiary of the Company serves as managing general
partner. Cornerstone serves more than 380,000 propane customers in 26
states. The Company, through its consolidated and unconsolidated
subsidiaries, is also engaged in certain non-energy manufacturing industries
and owns companies engaged in heating, ventilation and air conditioning and
telecommunications services. The Company was incorporated under the laws of
the State of Delaware in 1923. The Company has its principal office at 33
Third Street SE, Huron, South Dakota 57350-1605. Its telephone number is
(605) 352-8411.
3<PAGE>
SELLING WARRANTHOLDERS
Warrants to purchase up to 1,231,770 shares of Common Stock may be
offered by or for the accounts of the Selling Warrantholders listed in the
table below. The Selling Warrantholders were stockholders of Empire Energy
Corporation ("Empire Energy"), which merged with a wholly owned subsidiary
of the Company in 1996. In connection with that merger, the Company and the
Selling Stockholders entered into a Warrant Issuance and Exchange Agreement,
pursuant to which the Company issued the Warrants to the former stockholders
of Empire Energy, including the Selling Warrantholders. Except as a result
of their ownership of the Warrants, their stock ownership of Empire Energy
prior to its acquisition by the Company and their positions with Empire
Energy, none of the Selling Warrantholders or any of their affiliates, other
than Charles Jones and Link Young, has had within the past three years any
material relationship with the Company or any of its affiliates. Messrs.
Jones and Young are currently employees of Cornerstone Propane, L.P., an
affiliate of the Company.
The Selling Warrantholders beneficially own an aggregate of 1,231,770
shares of Common Stock, all of which represent shares that may be acquired
upon exercise of Warrants held by such persons.
The following table sets forth certain information as of September 21,
1998 with respect to the Common Stock beneficially owned by each Selling
Warrantholder:
Shares
Beneficially
Name Owned(1)
----- --------
Bill Byrne 39,730
Luther Gill 72,936
Charles Jones 50,896
Earl L. Noe 79,896
Stephen R. Plaster Trust 593,764
Floyd J. Waterman 71,776
Larry A. Weis 73,516
Robert W. Woolridge 225,476
Link Young 23,780
(1) Issuable upon exercise of Warrants held by such person.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Warrants
offered hereby. The Company will receive the exercise price of $18.225 per
share if and when such Warrants are exercised, which amount would be used by
the Company for working capital and general corporate purposes.
4<PAGE>
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Company's Common Stock is listed on the New York Stock Exchange
under the symbol "NOR." The following table sets forth, for the calendar
quarters shown, the range of high and low composite prices of the Common
Stock on the New York Stock Exchange and the cash dividends declared on
the Common Stock, in each case as adjusted for the two-for-one stock split
in May 1997.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Dividends
High Low Declared
---- --- ---------
1996
First quarter . . . . . . . . . . . . . $15-1/8 $13-3/4 $ .22
Second quarter . . . . . . . . . . . . 14-13/16 13-5/8 .22
Third quarter . . . . . . . . . . . . . 15-9/16 16-7/16 .22
Fourth quarter . . . . . . . . . . . . 18-1/4 15 .23
1997
First quarter . . . . . . . . . . . . . 19-3/4 16-15/16 .23
Second quarter . . . . . . . . . . . . 22-1/4 18-5/16 .23
Third quarter . . . . . . . . . . . . . 21-1/4 17-3/4 .23
Fourth quarter . . . . . . . . . . . . 23-1/2 18-7/16 .2425
1998
First quarter . . . . . . . . . . . . . 24 21-15/16 .2425
Second quarter . . . . . . . . . . . . . 25-1/4 20-1/4 .2425
Third Quarter (through .2425
September 22, 1998). . . . . . . . 27-3/8 23-5/16
</TABLE>
There is no established trading market for the Warrants, and none is
expected to develop. See "Risk Factor."
DESCRIPTION OF WARRANTS
The following is a description of certain terms of the Warrants, as
adjusted for the two-for-one Common Stock split in May 1997. This
description does not purport to be complete and is subject to, and qualified
in its entirety by, reference to the Form of Warrant and Amendment to Warrant
filed as exhibits to the Registration Statement.
GENERAL
The Warrants are exercisable in whole at any time or in part from time
to time on or before January 3, 2002 for whole shares of Common Stock at an
exercise price of $18.225 per share (the "Exercise Price"), subject to
adjustment pursuant to certain antidilution provisions described below.
Payment of the Exercise Price in cash is due upon the exercise of the
Warrants.
5<PAGE>
ADJUSTMENTS
The Exercise Price is subject to adjustment in the event that the Company
(i) declares a dividend or makes a distribution on the Common Stock payable
in shares of its capital stock (whether shares of Common Stock or of capital
stock of any other class); (ii) subdivides, reclassifies or recapitalizes
its outstanding Common Stock into a greater number of shares; (iii) combines,
reclassifies or recapitalizes its outstanding Common Stock into a smaller
number of shares, or (iv) issues any shares of its capital stock by
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or a merger in which the Company is the
continuing corporation). The Exercise Price in effect at the time of the
record date of such dividend, distribution, subdivision, combination,
reclassification or recapitalization and the number and kind of shares
subject to each Warrant shall be adjusted so that the Warrantholder shall
be entitled to receive the aggregate number and kind of shares which, if the
Warrant had been exercised in full immediately prior to such event, the
Warrantholder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, distribution, subdivision, combination,
reclassification or recapitalization.
If the Company fixes a record date for the issuance of subscription
rights, options or warrants to all holders of Common Stock entitling them to
subscribe for or purchase Common Stock at a price (or having an exercise or
conversion price per share) less than the then current market price of the
Common Stock, the Exercise Price shall be adjusted so that the Exercise
Price shall equal the price determined by multiplying (i) the Exercise Price
in effect immediately prior to the record date set by the Company to
determine stockholders entitled to participate in such distribution by (ii) a
fraction, the numerator of which shall be the sum of (A) the number of shares
of Common Stock outstanding immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which the aggregate consideration
received by the Company upon such issuance (plus the aggregate of any
additional amount to be received by the Company upon the exercise of such
subscription rights, options or warrants) would purchase at the then current
market price per share of the Common Stock, and the denominator of which
shall be the sum of (X) the number of shares of Common Stock outstanding on
the date of such issuance, plus (Y) the number of additional shares of Common
Stock offered for subscription or purchase.
If the Company fixes a record date for the issuance or making of a
distribution to all holders of the Common Stock (including any such
distribution to be made in connection with a consolidation or merger in which
the Company is to be the continuing corporation) of evidences of its
indebtedness, any other securities of the Company or any cash, property or
other assets (excluding a combination, reclassification or recapitalization
referred to above), regular cash dividends or cash distributions paid out of
net profits legally available therefor or subscription rights, options or
warrants for Common Stock (excluding those referred to above), (i) the
Exercise Price shall be decreased immediately after the record date for such
distribution to a price determined by multiplying (A) the Exercise Price in
effect immediately prior to such record date by (B) a fraction, the numerator
6<PAGE>
of which shall be the current market price of the Common Stock immediately
prior to such record date less the fair market value (as determined by the
Company's Board of Directors) of the evidences of indebtedness, securities,
property or other assets issued or distributed in such distribution
applicable to one share of Common Stock or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator of
which shall be such then current market price per share of Common Stock,
and (ii) the number of shares of Common Stock subject to purchase upon
exercise of any Warrant shall be increased to a number determined by
multiplying (A) the number of shares of Common Stock subject to purchase
immediately before such distribution record date by (B) a fraction, the
numerator of which shall be the Exercise Price in effect immediately before
such record date, and the denominator of which shall be the Exercise Price
in effect immediately after such record date.
If the Company makes a distribution to all holders of the Common Stock of
stock of a subsidiary or securities convertible into or exercisable for such
Common Stock, then in lieu of an adjustment in the Exercise Price or the
number of shares of Common Stock purchasable upon the exercise of each
Warrant, each Warrantholder, upon the exercise thereof at any time after
such distribution, shall be entitled to receive from the Company, such
subsidiary or both, as the Company shall determine, the stock or other
securities to which such Selling Warrantholder would have been entitled if
such Selling Warrantholder had exercised the Warrant immediately prior
thereto; PROVIDED, HOWEVER, that no adjustment in respect of dividends or
interest on such stock or other securities shall be made during the term of
each Warrant or upon its exercise.
RIGHT OF FIRST REFUSAL
In the event any Warrantholder or group of Warrantholders acting in
concert desires to sell, assign, transfer, grant an option with respect to
or otherwise dispose of any interest in Warrants to a third party in a
privately negotiated sale or in a block sale in a brokerage transaction (or
in a series of related transactions) the Warrantholder must provide written
notice of such proposed sale to the Company. The Company has the right for
two business days after receiving notice from any Warrantholder to purchase
all, but not less than all the Warrants (or shares as Common Stock) on the
same terms as offered to the third party. If the Company does not exercise
such right, such Warrantholder may complete the sale to such third party.
DESCRIPTION OF COMMON STOCK
The following is a description of certain terms of the Common Stock.
This description does not purport to be complete and is subject to, and
qualified in its entirety by, reference to the Company's Restated Certificate
of Incorporation, as amended (the "Charter"), which is incorporated by
reference as an exhibit to the Registration Statement.
GENERAL
The Company is authorized to issue up to 50,000,000 shares of Common
Stock. As of August 31, 1998, there were 17,862,390 shares of Common Stock
7<PAGE>
outstanding held by approximately 8,900 stockholders of record. Subject to
the limitations described below and the prior rights of the Company's
Cumulative Preferred Stock, $100 par value (the "Preferred Stock"), and
Preference Stock, par value $50 par value (the "Preference Stock"), the
Common Stock is entitled to dividends when, as and if declared by the Board
of Directors out of funds legally available therefor. Holders of Common
Stock are entitled to one vote per share. There is no provision for
cumulative voting or preemptive rights. he holders of Preferred Stock and
the holders of Preference Stock are each entitled to elect a certain number
of directors of the Company in the event of a default in the payment of four
quarterly dividends on any series of such stock and have voting rights with
respect to amendments of the Charter affecting certain of their rights and
in the case of certain mergers, consolidations and dispositions of
substantially all the Company's assets. Upon any liquidation, voluntary or
involuntary, of the Company, holders of Common Stock are entitled ratably to
all the assets of the Company after payment of the Company's liabilities and
satisfaction of the liquidation preferences of any outstanding Preferred
Stock and Preference Stock. The outstanding shares of Common Stock are, and
any shares of Common Stock issued upon exercise of the Warrants (upon full
payment of the applicable Exercise Price) will be, fully paid and
nonassessable.
The Common Stock is listed on the New York Stock Exchange. The transfer
agents and registrars for the Common Stock are Norwest Bank Minnesota, N.A.
and the Company.
LIMITATIONS ON DIVIDENDS
The Company may not declare or pay cash dividends on the Common Stock
unless full dividends on all shares of Preferred Stock and 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 Preferred Stock and Preference Stock which have such
requirements.
RIGHTS
The Company has a Stockholder Rights Plan, which it first adopted in
1996, pursuant to which each share of Common Stock has associated with it
one Common Stock Purchase Right ("Right"). Each Right, when exercisable,
entitles the registered holder to purchase from the Company one share of
Common Stock at a price of $50.00 per share (as adjusted for the two-for-one
Common Stock split in May 1997), subject to further adjustments. The Rights
are evidenced by the Common Stock certificates and may not be exercised or
transferred separately from the Common Stock until ten days after a person
or group acquires, or announces a tender offer which would result in its
acquiring, beneficial ownership of securities having 15% or more of the
voting power of all outstanding voting securities of the Company.
In the event that a person or group acquires 15% or more or the Company's
voting power, or if the Company merges or engages in certain self-dealing
transactions with a 15% or more stockholder, each Right will entitle the
holder (other than the 15% or more stockholder) to purchase a number of
8<PAGE>
shares of Common Stock (or, if the Company is not the surviving corporation,
shares of common stock of the surviving corporation), having a market value
of two times the exercise price of the Right.
The Rights do not have voting rights and are redeemable at the option of
the Company at a price of $.005 per Right at any time before the Rights
become exercisable. Unless earlier redeemed, the Rights will expire on
December 10, 2006.
RESTRICTIONS ON CHANGE OF CONTROL
The Company's Charter contains certain provisions which will make it
difficult for any party to obtain control of the Company through transactions
not approved by the Board of Directors of the Company, including the
following:
(i) The Board of Directors is divided into three classes, only one
of which stands for election each year for a three year term of office,
thereby requiring two successive annual elections for a party or group
acquiring control to replace a majority of the incumbent directors.
(ii) Directors may be removed from office before their terms expire
only for cause.
(iii) To authorize certain "business combinations" between the
Company and any person or entity which owns 10% or more of the outstanding
Common Stock, or an affiliate of such a person or entity, the approving
vote of the holders of at least 75% of the outstanding Common Stock must
be obtained, unless certain "fair price" and other financial and
procedural conditions are satisfied, coupled with approval of the
transaction by a majority of "Continuing Directors."
(iv) Amendment of the foregoing Charter provisions must be approved
by the holders of at least 75% of the outstanding shares of the Company's
Common Stock.
In addition, the Company is subject to the "business combination" statute
of the Delaware General Corporation Law (Section 203). In general, this
statute prohibits a publicly held Delaware corporation from engaging in a
"business combination" with any "interested stockholder" for a period of
three years after the date of the transaction in which the person became an
interested stockholder, unless (i) the transaction is approved by the board
of directors prior to the date the interested stockholder obtains such
status, (ii) upon consummation of the transaction in which the interested
stockholder obtains such status, the interested stockholder beneficially
owned at least 85% of the outstanding shares of the corporation's voting
stock owned by stockholders other than (a) persons who are directors and also
officers and (b) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer, or (iii) the "business
combination" is approved by the board of directors and authorized at an
annual or special meeting of stockholders by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the "interested
stockholder."
9<PAGE>
"Business combination" includes mergers, asset sales and other transactions
resulting in financial benefit to the "interested stockholder." An
"interested stockholder" is a person who, together with affiliates and
associates, owns beneficially 15% or more of a corporation's voting stock.
The overall effect of the above provisions may be to render more
difficult or to discourage a merger, tender offer or proxy contest, the
assumption of control of the Company by a holder of a large block of the
Company's stock or other person, or the removal of incumbent management,
even if such actions may be beneficial to the Company's stockholders
generally.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
The Company's authorized but unissued shares of Common Stock, Preferred
Stock and Preference Stock may be issued without additional stockholder
approval and may be utilized for a variety of corporate purposes, including
future offerings to raise additional capital or to facilitate corporate
acquisitions. The issuance of Preferred Stock or Preference Stock could
have the effect of delaying or preventing a change in control of the
Company. The issuance of Preferred Stock or Preference Stock could decrease
the amount of earnings and assets available for distribution to the holders
of Common Stock or could adversely affect the rights and powers, including
voting rights, of the holders of the Common Stock. In certain
circumstances, such issuance could have the effect of decreasing the market
price of the Common Stock.
One of the effects of the existence of unissued and unreserved Common
Stock, Preferred Stock or Preference Stock may be to enable the Board to
issue shares to persons friendly to current management which could render
more difficult or discourage an attempt to obtain control of the Company
by means of a merger, tender offer, proxy contest or otherwise, and thereby
protect the continuity of management. Such additional shares also could be
used to dilute the stock ownership of persons seeking to obtain control of
the Company.
LIMITATION OF DIRECTOR LIABILITY
The Charter contains a provision that limits the liability of the
Company's directors for monetary damages for breach of fiduciary duty as a
director to the fullest extent permitted by the Delaware General Corporation
Law. Such limitation does not, however, affect the liability of a director
(i) for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or purchases and
(iv) for any transaction from which the director derives an improper
personal benefit. The effect of this provision is to eliminate the rights
of the Company and its stockholders (through stockholders' derivative suits
on behalf of the Company) to recover monetary damages against a director for
breach of the fiduciary duty of care as a director (including breaches
resulting from negligent or grossly negligent behavior) except in the
situations described in clauses (i) through (iv) above. This provision does
not limit or eliminate the rights of the Company or any stockholder to seek
non-monetary relief such as an injunction or rescission in the event of a
breach of a director's duty of care.
10<PAGE>
PLAN OF DISTRIBUTION
The Selling Warrantholders may sell Warrants to one or more underwriters
for public offering and sale by them or may sell Warrants to investors
directly or through agents. Any such underwriter or agent involved in the
offer and sale of Warrants will be named in the applicable Prospectus
Supplement.
The Selling Warrantholders have advised the Company that the distribution
of Warrants may be effected from time to time in one or more transactions at
a fixed price or prices, which may be changed, or from time to time at
prices related to market prices for the Common Stock prevailing at the time
of sale or at negotiated prices. Each Prospectus Supplement will describe
the method of distribution of the offered Warrants.
In connection with the sale of Warrants, underwriters or agents acting
on behalf of the Selling Warrantholders may be deemed to have received
compensation from the Selling Warrantholders in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
Warrants for whom they may act as agent. Underwriters may sell Warrants to
or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid to underwriters or agents in
connection with the offering of Warrants, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set
forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of Warrants may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of Warrants may be deemed to be
underwriting discounts and commissions under the Warrants. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Company and the Selling Warrantholders, to indemnification against and
contribution toward certain civil liabilities, including liabilities under
the Securities Act.
EXPERTS AND LEGAL OPINIONS
The financial statements and schedules included in Form 10-K and
incorporated by reference in this Registration Statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are included herein in reliance
upon the authority of said firm as experts in giving said reports.
The legality of the Warrants offered hereby and the shares of Common
Stock issuable upon the exercise of the Warrants has been passed upon for
the Company Schiff Hardin & Waite, Chicago, Illinois.
11<PAGE>
We have not authorized anyone
to provide you with
information that is different
from what is contained in this
Prospectus. This Prospectus NORTHWESTERN CORPORATION
does not constitute an offer
to sell or a solicitation of WARRANTS TO PURCHASE
an offer to buy any securities COMMON STOCK
in any jurisdiction in which,
or to any person to whom, it
is unlawful to make any such
offer or solicitation.
CONTENTS
Page
----
PROSPECTUS
Available Information . . . 2
Documents Incorporated by
Reference . . . . . . 2
Risk Factor . . . . . . . 3
The Company . . . . . . . 4
Selling Warrantholders . . 4
_______, 1998
Use of Proceeds . . . . . 4
Price Range of Common Stock
and Dividends . . . . 5
Description of Warrants . 5
Description of Common Stock 5
Plan of Distribution . . . 8
Experts and Legal Opinions 10
Until _______, all dealers that
effect transactions in these
securities, whether or not
participating in this offering,
may be required to deliver a
prospectus. This is in addition
to the dealer's obligation to
deliver a prospectus when
acting as underwriters and with
respect to their unsold
allotments or subscriptions.<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities covered hereby are estimated to be as follows:
Securities and Exchange Commission filing fee . . . . . . . . $9,187
Exchange listing fees . . . . . . . . . . . . . . . . .. 4,300
Legal fees and expenses . . . . . . . . . . . . . . . . .. 12,000
Accounting fees . . . . . . . . . . . . . . . . .. . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . .. . . . . 2,513
-------------
Total $ 33,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of Northwestern Corporation (the "Company") provide for
indemnification by the Company of each of its directors and officers to the
fullest extent permitted by Delaware law for liability (including liability
arising under the Securities Act of 1933) of such director or officer arising
by reason of his or her status as a director or officer of the Company,
provided that he or she met the standards established in the By-Laws, which
include requirements that he or she acted in good faith and in a manner he or
she reasonably believed to be in the Company's best interest. The Company
will also advance expenses prior to final disposition of an action, suit or
proceeding upon receipt of an undertaking by the director or officer to repay
such amount if the director or officer is not entitled to indemnification.
All rights to indemnification and advancement of expenses are deemed to be a
contract between the Company and its directors and officers. The
determination that a director or officer has met the standards established
in the By-Laws may be made by a majority vote of a quorum consisting of
disinterested directors, an opinion of counsel (if no such quorum is
available, or even if attainable, a quorum of disinterested directors so
directs), a majority vote of stockholders, or a court (which may also
overturn any of the preceding determinations).
The directors and officers of the Company are covered by insurance
policies indemnifying against certain liabilities, including certain
liabilities arising under the Securities Act of 1933, which might
be incurred by them in such capacities and against which they cannot be
indemnifed by the Company.
1<PAGE>
ITEM 16. EXHIBITS.
Reference is made to information contained in the Exhibit Index
filed as a part of this Registration Statement.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
II-2<PAGE>
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-2 and has duly caused this
registration statement to be signed on its behalf of the undersigned,
thereunto duly authorized, in the City of Huron, State of South Dakota,
on the 11th day of September, 1998.
NORTHWESTERN CORPORATION
(Registrant)
By /s/ Merle D. Lewis
-----------------------------------------
Merle D. Lewis
Chairman and Chief Executive Officer
________________________
POWER OF ATTORNEY
Each director and officer of the Company whose signature appears below
hereby authorizes the agent for service named in the registration statement
to execute in the name of such person, and to file, any amendment to the
registration statement necessary or advisable to enable the registrant to
comply with the Securities Act of 1933, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof,
which amendment may make such other changes in the registration statement as
the agent for service deems appropriate.
________________________
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Date Signature and Title
September 11, 1998 /s/ Merle D. Lewis
-----------------------------------------
M.D. Lewis, Chairman and Chief Executive
Officer
September 11, 1998 /s/ R. R. Hylland
-----------------------------------------
R.R. Hylland, President, Chief Operating
Officer and Director
September 11, 1998 /s/ D. K. Newell
-----------------------------------------
D. K. Newell, Vice President-Finance and
Chief Financial Officer
(Principal Financial Officer)
II-4<PAGE>
September 11, 1998 /s/ David A. Monaghan
-----------------------------------------
David A. Monaghan, Controller and
Treasurer (Principal Accounting Officer)
September 11, 1998 /s/ Randy G. Darcy
-----------------------------------------
Randy G. Darcy, Director
September 11, 1998 /s/ Gary G. Drook
-----------------------------------------
Gary G. Drook, Director
September 11, 1998 /s/ Jerry W. Johnson
-----------------------------------------
Jerry W. Johnson, Director
September 11, 1998 /s/ Aelred J. Kurtenbach
-----------------------------------------
Aelred J. Kurtenbach, Director
September 11, 1998 /s/ Larry F. Ness
-----------------------------------------
Larry F. Ness, Director
September 11, 1998 /s/ Gary Olson
-----------------------------------------
Gary Olson, Director
September 11, 1998 /s/ Raymond M. Schultz
-----------------------------------------
Raymond M. Schutz, Director
September 11, 1998 /s/ Bruce I. Smith
-----------------------------------------
Bruce I. Smith, Director
II-5<PAGE>
EXHIBIT INDEX
The following documents are filed as part of the Registration Statement
or are incorporated by reference.
4(a)* Form of Warrant.
4(b)* Form of Amendment to Warrant.
4(c) Rights Agreement, dated as of December 11, 1996,
between the Company and Norwest Bank Minnesota, N.A., as Rights
Agent, is incorporated by reference to Exhibit I to Form 8-A dated
December 13, 1996, Commission File No. 0-692.
5(a)* Opinion of Schiff Hardin & Waite re legality of securities being
registered.
10(a)(1) Supplemental Income Security (Retirement) Plan for Directors,
Officers and Managers, as amended January 1, 1997, is incorporated
by reference to Exhibit 10(a)(1) to Form 10-K for the year ended
December 31, 1996, Commission File No. 0-692.
10(a)(2) Deferred Compensation Plan for Non-employee Directors adopted
November 6, 1985, is incorporated by reference to Exhibit 10(g)(2)
to Form 10-K for the year ended December 31, 1988,
Commission File No. 0-692.
10(a)(3) Pension Equalization Plan, dated August 5, 1987, is incorporated
by reference to Exhibit 10(g)(4) to Form 10-K for the year ended
December 31, 1988, Commission File No. 0-692.
10(a)(5) Long-term Incentive Compensation Plan (Phantom Stock Unit Plan)
for Directors and Officers, dated February 1, 1989, as amended
May 7, 1997, is incorporated by reference to Exhibit (10(a)(i) to
Form 10-Q for the quarter ended March 31, 1997, Commission
File No. 0-692.
10(a)(7) Annual Performance Incentive Plan (NorthSTAR Plan) for all eligible
employees, as amended February 4, 1998, is incorporated by
reference to Exhibit 10(a)(7) to Annual Report on Form 10-K for
the year ended December 31, 1997.
13(a)* Annual Report to Stockholders for the year ended December 31, 1997,
furnished to stockholders of record March 9, 1998, other than the
Management's Discussion and Analysis and audited Financial
statements.
13(b) Management's Discussion and Analysis and audited Financial
statements contained in the Annual Report to Stockholders are
incorporated by reference to Exhibit 13(a) to the Annual Report on
Form 10-K for the year ended December 31, 1995.
23(a)* Consent of Arthur Andersen LLP.
23(b) Consent of Schiff Hardin & Waite (included in the opinion filed as
Exhibit 5(a)).
24 Powers of Attorney contained in signature page of Registration
Statement.
__________
* Filed herewith.
II-6
Exhibit 4(a)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR
SALE, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
VOID AFTER 5:00 P.M., CENTRAL STANDARD TIME, ON JANUARY 3, 2002 OR IF
NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M., CENTRAL STANDARD
TIME, ON THE NEXT FOLLOWING BUSINESS DAY.
WARRANT TO PURCHASE
[]
SHARES OF COMMON STOCK
OF
NORTHWESTERN PUBLIC SERVICE COMPANY
NO. []
TRANSFER RESTRICTED--SEE SECTION 5.2
This certifies that, for good and valuable consideration, [] and
his registered, permitted assigns (collectively, the "Warrantholder"),
is entitled to purchase from NORTHWESTERN PUBLIC SERVICE COMPANY, a
corporation incorporated under the laws of the State of Delaware (the
"Company"), subject to the terms and conditions hereof, at any time on
or after 9:00 a.m., local time in Huron, South Dakota, on January 3,
1998 and before 5:00 p.m., local time in Huron, South Dakota, on
January 3, 2002 (or, if such day is not a Business Day, at or before
5:00 p.m., local time in Huron, South Dakota, on the next following
Business Day) (such period of time being hereinafter referred to as
the "Exercise Period"), the number of fully paid and non-assessable
shares of Common Stock of the Company stated above at the Exercise
Price (as defined herein). The Exercise Price and the number of
shares purchasable hereunder are subject to adjustment from time to
time as provided in Article 3 hereof.
ARTICLE 1
DEFINITIONS
1.1 DEFINITION OF TERMS. As used in this Warrant, the following
capitalized terms shall have the following respective meanings:
(a) BUSINESS DAY: A day other than a Saturday, Sunday or
other day on which banks in the State of South Dakota are
authorized by law to remain closed.
(b) COMMON STOCK: Common stock, $3.50 par value, of the
Company.
(c) COMMON STOCK EQUIVALENTS: Securities that are
convertible into or exercisable for shares of Common Stock.
(d) COMPANY: See the initial paragraph hereof.
<PAGE>
(e) DEMAND REGISTRATION: See Section 6.2.
(f) EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
(g) EXERCISE PERIOD: See the initial paragraph hereof.
(h) EXERCISE PRICE: $36.45 per Warrant Share, as such price
may be adjusted from time to time pursuant to Article 3 hereof.
(i) EXPIRATION DATE: 5:00 p.m., local time in Huron, South
Dakota, on January 3, 2002, or if such day is not a Business Day,
the next succeeding day which is a Business Day.
(j) 50% HOLDERS: At any time as to which a Demand
Registration is requested, the Warrantholder(s) and/or the Holder
or Holders of Warrant Shares who have the right to acquire or
hold, as the case may be, in the aggregate, not less than 50% of
the combined total of Warrant Shares issuable and Warrant Shares
outstanding at the time such Demand Registration is requested.
(k) HOLDER: A Holder of Registrable Securities and/or
Warrants.
(l) NASD: National Association of Securities Dealers, Inc.
(m) NASDAQ: NASD Automated Quotation System.
(n) NYSE: New York Stock Exchange, Inc.
(o) PERSON: An individual, partnership, joint venture,
corporation, trust, unincorporated organization or
government or any department or agency thereof.
(p) PIGGYBACK REGISTRATION: See Section 6.1.
(q) PROSPECTUS: Any prospectus included in any Registration
Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such
Registration Statement, including all material incorporated by
reference in such prospectus.
(r) PUBLIC OFFERING: A public offering of the Company's
Common Stock pursuant to a registration statement under the
Securities Act.
(s) REGISTRABLE SECURITIES: Any Warrant Shares issued to
Warrantholders, and/or their respective designees or transferees
as permitted under Section 5.2 and/or other securities that may
be or are issued by the Company upon exercise of any Warrants,
including those which may thereafter be issued by the Company in
respect of any such securities by means of any stock splits,
-2-
<PAGE>
stock dividends, recapitalizations, reclassifications or the
like, and as adjusted pursuant to Article 3 hereof; PROVIDED,
HOWEVER, that as to any particular security contained in
Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a Registration Statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have
been disposed of in accordance with such Registration Statement;
(ii) they shall have been sold to the public pursuant to Rule 144
(or any successor provision) under the Securities Act; (iii) they
shall have been sold, assigned or otherwise transferred to any
person other than those persons specified in Section 5.2 below
("5.2 Persons") and other than to any spouses, lineal descendants
or adopted children of a 5.2 Person to whom such securities are
transferred upon the death of any 5.2 Person by operation of law
or by bequest; or (iv) three years after the date such Warrant
Shares are issued (provided that such securities may then be sold
under paragraph (k) of Rule 144 under the Securities Act).
(t) REGISTRATION EXPENSES: Any and all expenses incurred in
connection with any registration or action incident to
performance of or compliance by the Company with Article 6,
including, without limitation, (i) all SEC, national securities
exchange and NASD registration and filing fees; all listing fees
and all transfer agent fees; (ii) all fees and expenses of
complying with state securities or blue sky laws (including the
fees and disbursements of counsel of the underwriters in
connection with blue sky qualifications of the Registrable
Securities); (iii) all printing, mailing, messenger and delivery
expenses, (iv) all fees and disbursements of counsel for the
Company and of its accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, and (v) any
disbursements of underwriters customarily paid by issuers or
sellers of securities, including underwriting discounts and
commissions, but excluding brokerage fees and transfer taxes, if
any, and fees of counsel or accountants retained by the holders
of Registrable Securities to advise them in their capacity as
Holders of Registrable Securities.
(u) REGISTRATION STATEMENT: Any registration statement of
the Company filed or to be filed with the SEC which covers any of
the Warrants and/or Registrable Securities pursuant to the
provisions of this Agreement, including all amendments (including
post-effective amendments) and supplements thereto, all exhibits
thereto and all material incorporated therein by reference.
(v) SEC: The Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act
or the Exchange Act.
(w) SECURITIES ACT The Securities Act of 1933, as amended.
-3-
<PAGE>
(x) TRANSFERS: See Section 5.2.
(y) WARRANTS: This warrant, all other warrants issued on
the date hereof pursuant to Section 8.8 of the Agreement and Plan
of Merger by and among Northwestern Growth Corporation, EEC Co.,
Empire Energy Corporation and the stockholders of Empire Energy
Corporation, and all other warrants that may be issued in its or
their place (together evidencing the right to purchase an
aggregate of not to exceed 725,000 shares of Common Stock)
(subject to adjustment as provided herein).
(z) WARRANTHOLDERS: The Person(s) to whom the Warrants are
originally issued (including the Warrantholder identified in the
initial paragraph hereof), or any successors in interest thereto,
or any assignees or transferees thereof, in whose names the
Warrants are registered upon the books to be maintained by the
Company for that purpose.
(aa) WARRANT SHARES: Common Stock, Common Stock Equivalents
and other securities purchased or purchasable upon exercise of
the Warrants.
ARTICLE 2
DURATION AND EXERCISE OF WARRANT
2.1 DURATION OF WARRANT. The Warrantholder may exercise this
Warrant at any time and from time to time after 9:00 a.m., local time
in Huron, South Dakota, on January 3, 1998, and before 5:00 p.m.,
local time in Huron, South Dakota, on the Expiration Date. If this
Warrant is not exercised on the Expiration Date, it shall become void,
and all rights hereunder shall thereupon cease.
2.2 EXERCISE OF WARRANT.
(a) The Warrantholder may exercise this Warrant, in whole
or in part, by presentation and surrender of this Warrant to the
Company at its Operations Center at 600 Market Street, Huron,
South Dakota 57350 or at the office of the stock transfer agent,
if any, for the Common Stock with the Subscription Form annexed
hereto duly executed and accompanied by payment of the full
Exercise Price for each Warrant Share to be purchased.
(b) Upon receipt of this Warrant with the Subscription Form
fully executed and accompanied by payment of the aggregate
Exercise Price for the Warrant Shares for which this Warrant is
then being exercised, (i) the Company shall cause to be issued
certificates for the total number of whole shares of Common Stock
for which this Warrant is being exercised in such denominations
as are requested for delivery to the Warrantholder, and the
Company shall thereupon deliver such certificates to the
Warrantholder, and (ii) the Warrantholder shall be deemed to be
the holder of record of the shares of Common Stock issuable upon
-4-
<PAGE>
such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be
actually delivered to the Warrantholder. If at the time this
Warrant is exercised, a Registration Statement is not in effect
to register under the Securities Act the Warrant Shares issuable
upon exercise of this Warrant, the Company may require the
Warrantholder to make such representations, and may place such
legends on certificates representing the Warrant Shares, as may
be reasonably required in the opinion of counsel to the Company
to permit the Warrant Shares to be issued without such
registration.
(c) In case the Warrantholder shall exercise this Warrant
with respect to less than all of the Warrant Shares that may be
purchased under this Warrant, the Company shall execute a new
Warrant for the balance of such Warrant Shares and deliver such
new Warrant to the Warrantholder.
(d) The Warrantholder shall be responsible for the payment
of federal or state withholding taxes, if any, required to be
paid by the Warrantholder in connection with any exercise of this
Warrant.
2.3 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon
exercise of this Warrant such number of Warrant Shares as are from
time to time issuable upon exercise of this Warrant. All such Warrant
Shares shall be duly authorized, and when issued upon such exercise,
shall be validly issued, fully paid and nonassessable, free and clear
of all liens, security interests, charges and other encumbrances of
any kind and free and clear of all preemptive rights.
2.4 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with
the exercise of this Warrant (including pursuant to the Conversion
Right), and in any case where the Warrantholder would, except for the
provisions of this Section 2.5, be entitled under the terms of this
Warrant to receive a fraction of a share upon the exercise of this
Warrant, the Company shall, upon the exercise of this Warrant and
receipt of the Exercise Price, issue the largest number of whole
shares purchasable upon exercise of this Warrant. The Company shall
make a cash payment to the Holder in an amount equal to the fair
market value (determined as provided in Section 3.1(e)) of such
fraction of a share to which the Warrantholder would otherwise be
entitled.
2.5 LISTING. Prior to the issuance of any shares of Common
Stock upon exercise of this Warrant, the Company shall use its best
efforts to cause such shares of Common Stock to be listed upon each
national securities exchange or included in each automated quotation
system, if any, upon which shares of Common Stock are then listed or
-5-
<PAGE>
quoted (subject to official notice of issuance upon exercise of this
Warrant) and shall maintain, so long as any other shares of Common
Stock shall be so listed or quoted, such listing or quotation of all
shares of Common Stock from time to time issuable upon the exercise of
this Warrant; and the Company shall use its best efforts to cause to
be listed or quoted on each national securities exchange or automated
quotation system, and shall maintain such listing or quotation of, any
other shares of capital stock of the Company issuable upon the
exercise of this Warrant if and so long as any shares of the same
class shall be listed or quoted on such national securities exchange
or automated quotation system.
ARTICLE 3
ADJUSTMENT OF SHARES OF COMMON STOCK
PURCHASABLE AND OF EXERCISE PRICE
The Exercise Price and the number and kind of Warrant Shares
shall be subject to adjustment from time to time upon the happening of
certain events as provided in this Article 3.
3.1 MECHANICAL ADJUSTMENTS.
(a) If at any time prior to the exercise of this Warrant in
full, the Company shall (i) declare a dividend or make a
distribution on the Common Stock payable in shares of its capital
stock (whether shares of Common Stock or of capital stock of any
other class); (ii) subdivide, reclassify or recapitalize its
outstanding Common Stock into a greater number of shares; (iii)
combine, reclassify or recapitalize its outstanding Common Stock
into a smaller number of shares, or (iv) issue any shares of its
capital stock by reclassification of its Common Stock (including
any such reclassification in connection with a consolidation or a
merger in which the Company is the continuing corporation), the
Exercise Price in effect at the time of the record date of such
dividend, distribution, subdivision, combination,
reclassification or recapitalization and the number and kind of
shares subject to this Warrant shall be adjusted so that the
Warrantholder shall be entitled to receive the aggregate number
and kind of shares which, if this Warrant had been exercised in
full immediately prior to such event, he, she or it would have
owned upon such exercise and been entitled to receive by virtue
of such dividend, distribution, subdivision, combination,
reclassification or recapitalization. Any adjustment required by
this Section 3.1(a) shall be made successively immediately after
the record date, in the case of a dividend or distribution, or
the effective date, in the case of a subdivision, combination,
reclassification or recapitalization, to allow the purchase of
such aggregate number and kind of shares.
(b) If at any time prior to the exercise of this Warrant in
full, the Company shall fix a record date for the issuance of
subscription rights, options or warrants to all holders of Common
-6-
<PAGE>
Stock entitling them to subscribe for or purchase Common Stock
(or Common Stock Equivalents) at a price (or having an exercise
or conversion price per share) less than the current market price
of the Common Stock (as determined pursuant to Section 3.1(e) on
the record date described below, the Exercise Price shall be
adjusted so that the Exercise Price shall equal the price
determined by multiplying the Exercise Price in effect
immediately prior to the date of such issuance (which date shall
be deemed to be the record date set by the Company to determine
stockholders entitled to participate in such distribution) by a
fraction, the numerator of which shall be (A) the number of
shares of Common Stock outstanding immediately prior to such
issuance, plus (B) the number of additional shares of Common
Stock which the aggregate consideration received by the Company
upon such issuance (plus the aggregate of any additional amount
to be received by the Company upon the exercise of such
subscription rights, options or warrants) would purchase at the
then current market price per share of the Common Stock; and the
denominator of which shall be (X) the number of shares of Common
Stock outstanding on the date of such issuance, plus (Y) the
number of additional shares of Common Stock offered for
subscription or purchase (or into which the Common Stock
Equivalents so offered are exercisable or convertible). Whenever
the Exercise Price is adjusted pursuant to this Section 3.1(b),
the Warrant Shares shall simultaneously be adjusted by
multiplying the number of Warrant Shares initially issuable upon
exercise of each Warrant by the Exercise Price in effect on the
date thereof and dividing the product so obtained by the Exercise
Price, as adjusted. Any adjustments required by this Section
3.1(b) shall be made immediately after such record date. Such
adjustments shall be made successively whenever such event shall
occur. To the extent that shares of Common Stock (or Common
Stock Equivalents) are not delivered after the expiration of such
subscription rights, options or warrants, the Exercise Price and
number of shares subject to this Warrant shall be readjusted to
the Exercise Price which would then be in effect had the
adjustments made upon the issuance of such rights, options or
warrants been made upon the basis of delivery of only the number
of shares of Common Stock (or Common Stock Equivalents) actually
delivered. Notwithstanding the foregoing, no adjustment in the
Exercise Price shall be made with respect to (i) the issuance or
sale of shares of Common Stock issued upon exercise or conversion
of (A) any stock options outstanding as of the date of this
Warrant or (B) any Common Stock Equivalent the issuance of which
did not require an adjustment hereunder or (ii) any shares of
Common Stock or Common Stock Equivalent issued or sold in
exchange for securities of another issuer.
(c) If at any time prior to the exercise of this Warrant in
full the Company shall fix a record date for the issuance or
making of a distribution to all holders of the Common Stock
(including any such distribution to be made in connection with a
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consolidation or merger in which the Company is to be the
continuing corporation) of evidences of its indebtedness, any
other securities of the Company or any cash, property or other
assets (excluding a combination, reclassification or
recapitalization referred to in Section 3.1(a), regular cash
dividends or cash distributions paid out of net profits legally
available therefor or subscription rights, options or warrants
for Common Stock or Common Stock Equivalents (excluding those
referred to in Section 3.1(b)) (any such nonexcluded event being
herein called a "Special Dividend")), (i) the Exercise Price
shall be decreased immediately after the record date for such
Special Dividend to a price determined by multiplying the
Exercise Price in effect immediately prior to such record date by
a fraction, the numerator of which shall be the current market
price of the Common Stock immediately prior to such record date
less the fair market value (as determined by the Company's Board
of Directors) of the evidences of indebtedness, securities or
property, or other assets issued or distributed in such Special
Dividend, applicable to one share of Common Stock or of such
subscription rights or warrants applicable to one share of Common
Stock and the denominator of which shall be such then current
market price per share of Common Stock, and (ii) the number of
shares of Common Stock subject to purchase upon exercise of this
Warrant shall be increased to a number determined by multiplying
the number of shares of Common Stock subject to purchase
immediately before such Special Dividend record date by a
fraction, the numerator of which shall be the Exercise Price in
effect immediately before such record date and the denominator of
which shall be the Exercise Price in effect immediately after
such record date. Any adjustment required by this Section 3.1(c)
shall be made successively whenever such a record date is fixed
and in the event that such distribution is not so made, the
Exercise Price and number of shares subject to this Warrant shall
again be adjusted to be as in effect immediately prior to such
record date.
(d) If at any time prior to the exercise of this Warrant in
full, the Company shall make a distribution to all holders of the
Common Stock of stock of a subsidiary or securities convertible
into or exercisable for such Stock, then in lieu of an adjustment
in the Exercise Price or the number of Warrant Shares purchasable
upon the exercise of this Warrant, each Warrantholder, upon the
exercise hereof at any time after such distribution, shall be
entitled to receive from the Company, such subsidiary or both, as
the Company shall determine, the stock or other securities to
which such Warrantholder would have been entitled if such
Warrantholder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in this
Article 3, and the Company shall reserve, for the life of this
Warrant, such securities of such subsidiary or other corporation;
PROVIDED, HOWEVER, that no adjustment in respect of dividends or
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interest on such stock or other securities shall be made during
the term of this Warrant or upon its exercise.
(e) For the purpose of any computation under this
Agreement, the "current market price" or the "fair market value"
per share of Common Stock at any date shall be deemed to be the
average of the daily closing prices over the 30-day period prior
to such date. The closing price for each day shall be the last
sale price regular way or, in case no such reported sales take
place on such day, the average of the last reported bid and asked
prices regular way, in either case on the NYSE or if not the
NYSE, the principal national securities exchange on which the
Common Stock is admitted to trading or listed, or if not listed
or admitted to trading on any exchange, the representative
closing bid price as reported by NASDAQ, or other similar
organization if NASDAQ is no longer reporting such information,
or if not so available, the fair market price as determined in
good faith by the mutual agreement of the Warrantholder and the
Company, and if the Warrantholder and the Company are unable to
so agree, by an investment banker of national reputation selected
by the Company and reasonably acceptable to the Warrantholder
(the fees and costs of such investment banker to be shared
equally by the Company and the Warrantholder).
(f) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of
at least five cents ($.05) in such price; PROVIDED, HOWEVER, that
any adjustments which by reason of this Section 3.1(f) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. No adjustment in the
number of Warrant Shares shall be made where there is no
adjustment in the Exercise Price. All calculations under this
Section 3.1 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. Notwithstanding
anything in this Section 3.1 to the contrary, the Exercise Price
shall not be reduced to less than the then existing par value of
the Common Stock as a result of any adjustment made hereunder.
(g) In the event that at any time, as a result of any
adjustment made pursuant to Section 3.1(a), the Warrantholder
shall become entitled to receive any shares of the Company other
than Common Stock, thereafter the number of such other shares so
receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Common Stock contained in Section 3.1(a).
(h) In the case of an issue of additional Common Stock or
Common Stock Equivalents for cash, the consideration received by
the Company therefor, before deducting therefrom any discount or
commission or other expenses paid by the Company for any
underwriting of, or otherwise in connection with, the issuance
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thereof, shall be deemed to be the amount received by the Company
therefor. The term "issue" shall include the sale or other
disposition of shares held by or on account of the Company or in
the treasury of the Company but until so sold or otherwise
disposed of such shares shall not be deemed outstanding.
3.2 NOTICES OF ADJUSTMENT. Whenever the number of Warrant
Shares or the Exercise Price is adjusted as herein provided, the
Company shall prepare and deliver forthwith to the Warrantholder a
certificate signed by its Chairman of the Board or President, or by
any Vice President, Treasurer or Corporate Secretary, setting forth
the adjusted number of shares purchasable upon the exercise of this
Warrant and the Exercise Price of such shares after such adjustment,
setting forth a brief statement of the facts requiring such adjustment
and setting forth the computation by which adjustment was made.
3.3 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section
3.1(c) of this Agreement, no adjustment in respect of any cash
dividends shall be made to this Warrant.
3.4 PRESERVATION OF PURCHASE RIGHTS IN CERTAIN TRANSACTIONS. In
case of any reclassification, capital reorganization or other change
of outstanding shares of Common Stock (other than a reclassification
or recapitalization subject to Section 3.1(a), and other than a change
in the par value of the Common Stock) or in case of any consolidation
or merger of the Company with or into another corporation (other than
a merger with a subsidiary in which the Company is the continuing
corporation) or in the case of any sale, lease, transfer or conveyance
to another corporation of the property and assets of the Company as an
entirety or substantially as an entirety, the Company shall, as a
condition precedent to such transaction cause such successor or
purchasing corporation, as the case may be, to execute with the
Warrantholder an agreement granting the Warrantholder the right
thereafter, upon payment of the Exercise Price in effect immediately
prior to such action, to receive upon exercise of this Warrant the
kind and amount of shares and other securities and property which he
would have owned or have been entitled to receive as a result of the
happening of such reclassification, change, consolidation, merger,
sale or conveyance had this Warrant been exercised immediately prior
to such action. In the event that in connection with any such
reclassification, capital reorganization, change, consolidation,
merger, sale or conveyance, additional shares of Common Stock shall be
issued in exchange, conversion, substitution or payment, in whole or
in part, for, or of, a security of the Company other than Common
Stock, any such issue shall be treated as an issue of Common Stock
covered by the provisions of Article 3. The provisions of this
Section 3.4 shall similarly apply to successive reclassifications,
capital reorganizations, consolidations, mergers, sales or
conveyances.
3.5 FORM OF WARRANT AFTER ADJUSTMENTS. The form of this Warrant
need not be changed because of any adjustments in the Exercise Price
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or the number or kind of Warrant Shares, and Warrants theretofore
issued continue to express the same price and number and kind of
shares as are stated in this Warrant, as initially issued, until
surrendered in connection with an exercise thereof.
3.6 TREATMENT OF WARRANTHOLDER. Prior to due presentment for
registration of transfer of this Warrant, the Company may deem and
treat the Warrantholder as the absolute owner of this Warrant
(notwithstanding any notation of ownership or other writing hereon)
for all purposes and shall not be affected by any notice to the
contrary.
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDER
4.1 NO RIGHTS AS STOCKHOLDERS; NOTICE TO WARRANTHOLDERS.
Nothing contained in this Warrant shall be construed as conferring
upon the Warrantholder or his, her or its transferees the right to
vote or to receive dividends or to consent or to receive notice as a
stockholder in respect of any meeting of stockholders for the election
of directors of the Company or of any other matter, or any rights
whatsoever as stockholders of the Company. The Company shall give
notice to the Warrantholder in accordance with Section 7.10 hereof if
at any time prior to the expiration or exercise in full of the
Warrants, any of the following events shall occur:
(a) The Company shall authorize the payment of any dividend
payable in any securities upon shares of Common Stock or
authorize the making of any distribution (other than a cash
dividend or distribution subject to the parenthetical exclusions
set forth in Section 3.1(c)) to all holders of Common Stock;
(b) The Company shall authorize the issuance to all holders
of Common Stock of any additional shares of Common Stock or
Common Stock Equivalents or of rights, options or warrants to
subscribe for or purchase Common Stock or Common Stock
Equivalents or of any other subscription rights, options or
warrants;
(c) A dissolution, liquidation or winding up of the Company
shall be proposed; or
(d) A capital reorganization or reclassification of the
Common Stock (other than a reorganization or reclassification
subject to Section 3.1(a) and other than a change in the par
value of the Common Stock) or any consolidation or merger of the
Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing
corporation) or in the case of any sale or conveyance to another
corporation of the property of the Company as an entirety or
substantially as an entirety. Such giving of notice shall be
initiated (i) at least 10 days prior to the date fixed as a
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record date or effective date or the date of closing of the
Company's stock transfer books for the determination of the
shareholders entitled to such dividend, distribution or
subscription rights, or for the determination of the shareholders
entitled to vote on such proposed merger, consolidation, sale,
conveyance, dissolution, liquidation or winding up. Such notice
shall specify such record date or the date of closing the stock
transfer books, as the case may be. Failure to provide such
notice shall not affect the validity of any action taken in
connection with such dividend, distribution or subscription
rights, or proposed merger, consolidation, sale, conveyance,
dissolution, liquidation or winding up.
4.2 LOST, STOLEN, MUTILATED OR DESTROYED WARRANTS. If this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on
such terms as to indemnity or otherwise as it may in its reasonable
discretion impose (which shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like
denomination and tenor as, and in substitution for, this Warrant.
ARTICLE 5
SPLIT-UP, COMBINATION
EXCHANGE AND TRANSFER OF WARRANTS
5.1 SPLIT-UP, COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS.
Subject to the provisions of Section 5.2 hereof, this Warrant may be
split up, combined or exchanged for another Warrant or Warrants
containing the same terms to purchase a like aggregate number of
Warrant Shares. If the Warrantholder desires to split up, combine or
exchange this Warrant, he shall make such request in writing delivered
to the Company and shall surrender to the Company this Warrant and any
other Warrants to be so split-up, combined or exchanged. Upon any
such surrender for a split-up, combination or exchange, the Company
shall execute and deliver to the Person entitled thereto a Warrant or
Warrants, as the case may be, as so requested. The Company shall not
be required to effect any split-up, combination or exchange which will
result in the issuance of a Warrant entitling the Warrantholder to
purchase upon exercise a fraction of a share of Common Stock. The
Company may require such Warrantholder to pay a sum sufficient to
cover any tax or governmental charge that may be imposed in connection
with any split-up, combination or exchange of Warrants.
5.2 RESTRICTIONS ON TRANSFER. This Warrant may be exercised,
sold, transferred, assigned or hypothecated (any such action, a
"Transfer") only in accordance with and subject to the provisions of
the Securities Act and the rules and regulations promulgated
thereunder. If at the time of a Transfer, a Registration Statement is
not in effect to register this Warrant, the Company may require the
Warrantholder to make such representations, and may place such legends
on certificates representing this Warrant, as may be reasonably
required in the opinion of counsel to the Company to permit a Transfer
without such registration. If this Warrant bears a legend on the
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first page hereof indicating that this Warrant is subject to what is
defined as the Restriction Agreement, then this Warrant, and the
Warrant Shares issuable upon exercise of this Warrant, are subject to
the terms and conditions, including restrictions on transfer, of such
Restriction Agreement.
ARTICLE 6
REGISTRATION UNDER THE SECURITIES ACT OF 1933
6.1 PIGGYBACK REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any
time or from time to time after January 3, 1998 and prior to
January 3, 2004, the Company proposes to register any of its
securities under the Securities Act on any form for the
registration of securities under such Act, whether or not for its
own account (other than by a registration statement on Form S-8
or S-4 or other form which does not include substantially the
same information as would be required in a form for the general
registration of securities or would not be available for the
Warrants and/or the Registrable Securities) (a "Piggyback
Registration"), it shall as expeditiously as possible give
written notice to all Holders of its intention to do so and of
such Holders' rights under this Section 6.1. Such rights are
referred to hereinafter as "Piggyback Registration Rights." Upon
the written request of any such Holder made within 20 days after
receipt of any such notice (which request shall specify the
Warrants and/or the Registrable Securities intended to be
disposed of by such Holder), the Company shall include in the
Registration Statement the Warrants and/or the Registrable
Securities which the Company has been so requested to register by
the Holders thereof and the Company shall keep such registration
statement in effect and maintain compliance with each Federal and
state law or regulation for the period necessary for such Holder
to effect the proposed sale or other disposition (but in no event
for a period greater than 120 days). The Company's obligations
under this Section 6.1 shall terminate upon completion of the
third Piggyback Registration that is not withdrawn pursuant to
Section 6.1(b) or cut-back pursuant to Section 6.1(e).
(b) WITHDRAWAL OF PIGGYBACK REGISTRATION BY COMPANY. If,
at any time after giving written notice of its intention to
register any securities in a Piggyback Registration but prior to
the effective date of the related Registration Statement, the
Company shall determine for any reason not to register such
securities, the Company shall give notice of such determination
to each Holder and, thereupon, shall be relieved of its
obligation to register any Warrants and/or Registrable Securities
in connection with such Piggyback Registration. All best efforts
obligations of the Company pursuant to Section 6.4 shall cease if
the Company determines to terminate prior to such effective date
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any registration where Warrants and/or Registrable Securities are
being registered pursuant to this Section 6.1.
(c) PIGGYBACK REGISTRATION OF UNDERWRITTEN PUBLIC
OFFERINGS. If a Piggyback Registration involves an offering by
or through underwriters, then (i) all Holders requesting to have
their Warrants and/or Registrable Securities included in the
Company's Registration Statement must sell their Warrants and/or
Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to other
selling shareholders, and (ii) any Holder requesting to have his,
her or its Warrants and/or Registrable Securities included in
such Registration Statement may elect in writing, not later than
three Business Days prior to the effectiveness of the
Registration Statement filed in connection with such
registration, not to have his, her or its Warrants and/or
Registrable Securities so included in connection with such
registration.
(d) PAYMENT OF REGISTRATION EXPENSES FOR PIGGYBACK
REGISTRATION. The Company shall pay all Registration Expenses in
connection with each registration of Warrants and/or Registrable
Securities requested pursuant to a Piggyback Registration Right
contained in this Section 6.1.
(e) PRIORITY IN PIGGYBACK REGISTRATION. If a Piggyback
Registration involves an offering by or through underwriters, the
Company shall not be required to include Warrants and/or
Registrable Securities therein if and to the extent the
underwriter managing the offering reasonably believes in good
faith and advises each Holder requesting to have Registrable
Securities included in the Company's Registration Statement that
such inclusion would materially adversely affect such offering;
PROVIDED, HOWEVER, that if other selling shareholders (other than
shareholders whose demand caused the filing of the Registration
Statement) have requested registration of securities in the
proposed offering, the Company will reduce or eliminate such
other selling shareholders' securities pro rata in proportion to
the respective number of shares they have requested to be
registered.
6.2 DEMAND REGISTRATION.
(a) REQUEST FOR REGISTRATION. If, at any time subsequent
to January 3, 1998 and prior to the Expiration Date, any 50%
Holders request that the Company file a registration statement
under the Securities Act to sell all or any portion of their
Warrants and/or Warrant Shares (a "Demand Registration"), as soon
as practicable thereafter the Company shall use its best efforts
to file a registration statement with respect to all Warrants
and/or Warrant Shares that it has been so requested to include
and obtain the effectiveness thereof, and to take all other
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action necessary under any Federal or state law or regulation to
permit the Warrants and/or Warrant Shares that are held and/or
(in the case of Warrant Shares) that may be acquired upon the
exercise of the Warrants specified in the notices of the 50%
Holders to be sold or otherwise disposed of, and the Company
shall maintain such compliance with each such Federal and state
law and regulation for the period necessary for such 50% Holders
to effect the proposed sale or other disposition; PROVIDED,
HOWEVER, the Company shall be entitled to defer such registration
for a period of up to 90 days if and to the extent that its Board
of Directors shall determine that such registration would
interfere with a pending corporate transaction. The Company
shall also promptly give written notice to any other
Warrantholders and/or the holders of any Warrant Shares who are
not included in the 50% Holders making the request pursuant to
the provisions of this Section 6.2(a) of its intention to effect
any required registration or qualification, and shall use its
best efforts to effect as expeditiously as possible such
registration or qualification of all such other Warrants and/or
Warrant Shares that are then held and/or (in the case of Warrant
Shares) that may be acquired upon the exercise of the Warrants,
the Holder or holders of which have requested such registration
or qualification, within 15 days after such notice has been given
by the Company, as provided in the preceding sentence. The
Company shall be required to effect a registration or
qualification pursuant to this Section 6.2(a) of this and all
other Warrants and/or Warrant Shares on one occasion only.
(b) PAYMENT OF REGISTRATION EXPENSES FOR DEMAND
REGISTRATION. The Company shall pay all Registration Expenses in
connection with the Demand Registration.
(c) SELECTION OF UNDERWRITERS. If any Demand Registration
is requested to be in the form of an underwritten offering, the
managing underwriter shall be Morgan Stanley & Co. Incorporated
and the co-manager (if any) and the independent pricer required
under the rules of the NASD (if any) shall be selected and
obtained by the Holders of a majority of the Warrant Shares to be
registered, such selection shall be subject to the Company's
consent, which consent shall not be unreasonably withheld. All
fees and expenses (other than Registration Expenses otherwise
required to be paid) of any managing underwriter, any co-manager
or any independent underwriter or other independent pricer
required under the rules of the NASD shall be paid for by such
underwriters or by the Holders or holders whose shares are being
registered. If Morgan Stanley & Co. Incorporated should decline
to serve as managing underwriter, the Holders of a majority of
the Warrant Shares to be registered may select and obtain one or
more managing underwriters. Such selection shall be subject to
the Company's consent, which shall not be unreasonably withheld.
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(d) PROCEDURE FOR REQUESTING DEMAND REGISTRATION. Any
request for a Demand Registration shall specify the aggregate
number of the Warrants and/or Registrable Securities proposed to
be sold and the intended method of disposition. Within ten (10)
days after receipt of such a request the Company will give
written notice of such registration request to all Holders, and,
subject to the limitations of Section 6.2(a), the Company will
include in such registration all Warrants and/or Registrable
Securities with respect to which the Company has received written
requests for inclusion therein within 15 Business Days after the
date on which such notice is given. Each such request shall also
specify the aggregate number of Registrable Securities to be
registered and the intended method of disposition thereof.
6.3 BUY-OUTS OF REGISTRATION DEMAND. In lieu of carrying out
its obligations to effect a Piggyback Registration or Demand
Registration of any Warrants and/or Registrable Securities pursuant to
this Article 6, the Company may offer to purchase and purchase such
Warrants and/or Registrable Securities requested to be registered at
an amount in cash equal to the difference between (a) the current
market price (determined in accordance with Section 3.1(e) of the
Common Stock on the day the request for registration is made and (b)
the Exercise Price in effect on such day; PROVIDED, HOWEVER, that the
Holder or Holders may withdraw such request for registration rather
than accept such offer by the Company.
6.4 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to take action pursuant to any
Federal or state law or regulation to effect or cause the registration
of any Warrants and/or Registrable Securities under the Securities Act
as provided in this Article 6, the Company shall, as expeditiously as
practicable:
(a) Prepare and file with the SEC, as soon as practicable
within ninety (90) days after the end of the period within which
requests for registration may be given to the Company (but
subject to the provision for deferral contained in Section 6.2(a)
and the provision for reduction or elimination contained in
Section 6.1(e)) a Registration Statement or Registration
Statements relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the
sale of the Warrants and/or Registrable Securities in accordance
with the intended method or methods of distribution thereof and
use its best efforts to cause such Registration Statements to
become effective; provided that before filing a Registration
Statement or Prospectus or any amendment or supplements thereto,
including documents incorporated by reference after the initial
filing of any Registration Statement, the Company will furnish to
the Holders of the Warrants and/or Registrable Securities covered
by such Registration Statement and the underwriters, if any,
copies of all such documents to be filed, which documents will be
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subject to the reasonable review of such Holders and
underwriters;
(b) Prepare and file with the SEC such amendments and post-
effective amendments to a Registration Statement as may be
necessary to keep such Registration Statement effective for a
reasonable period not to exceed 90 days; cause the related
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement or
supplement to such Prospectus;
(c) Notify the selling Holders of Warrants and/or
Registrable Securities and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such
advice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any
request by the SEC for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information; (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose; (iv) if at any
time the representations and warranties of the Company
contemplated by Section 6.4(m) cease to be true and correct in
all material respects; (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of any of the Warrants and/or Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and (vi) of the happening of any
event that makes any statement of a material fact made in the
Registration Statement, the Prospectus or any document
incorporated therein by reference untrue or which requires the
making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(d) Use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as
soon as possible;
(e) If reasonably requested by the managing underwriters,
incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters believe
(on advice of counsel) should be included therein as required by
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applicable law relating to such sale of Warrants and/or
Registrable Securities, including, without limitation,
information with respect to the purchase price being paid for the
Warrants and/or Registrable Securities by such underwriters and
with respect to any other terms of the underwritten (or "best-
efforts" underwritten) offering; and make all required filings of
such Prospectus supplement or post-effective amendment;
(f) Furnish to each selling Holder of Warrants and/or
Registrable Securities and each managing underwriter, without
charge, at least one signed copy of the Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by
reference and all exhibits to the Registration Statement
(including those incorporated by reference);
(g) Deliver to each selling Holder of Warrants and/or
Registrable Securities and the underwriters, if any, without
charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to
the use of such Prospectus or any amendment or supplement thereto
by each of the selling Holders of Warrants and/or Registrable
Securities and the underwriters, if any, in connection with the
offering and sale of the Warrants and/or Registrable Securities
covered by such Prospectus or any amendment or supplement
thereto;
(h) Prior to any public offering of Warrants and/or
Registrable Securities, cooperate with the selling Holders of
Warrants and/or Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration
or qualification of such Warrants and/or Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder or
underwriter reasonably requests in writing, use its best efforts
to keep each such registration or qualification effective during
the period such Registration Statement is required to be kept
effective and use its best efforts to do any and all other acts
or things necessary or advisable to enable the disposition in
such jurisdictions of the Warrants and/or Registrable Securities
covered by the applicable Registration Statement; provided that
the Company will not be required to qualify to do business in any
jurisdiction where it is not then so qualified or to take any
action which would subject the Company to general service of
process in any jurisdiction where it is not at the time so
subject;
(i) Cooperate with the selling Holders of Warrants and/or
Registrable Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Warrants and/or Registrable Securities to be sold
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and, unless counsel advises otherwise in a written opinion, not
bearing any restrictive legends; and enable such Warrants and/or
Registrable Securities to be in such denominations and registered
in such names as the managing underwriters may request at least
two Business Days prior to any sale of Warrants and/or
Registrable Securities to the underwriters;
(j) Use its best efforts to cause the Warrants and/or
Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other
governmental agencies or authorities within the United States as
may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such
Warrants and/or Registrable Securities;
(k) Upon the occurrence of any event contemplated by
Section 6.4(c)(vi) above, prepare a supplement or post-effective
amendment to the applicable Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of the Warrants and/or Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(l) With respect to each issue or class of Registrable
Securities, use its best efforts to cause all Registrable
Securities covered by the Registration Statements to be listed on
each securities exchange, if any, on which similar securities
issued by the Company are then listed if requested by the Holders
of a majority of such issue or class of Registrable Securities;
(m) Enter into such agreements (including an underwriting
agreement in customary form, scope and substance) and take all
such other action reasonably required in connection therewith in
order to expedite or facilitate the disposition of such Warrants
and/or Registrable Securities and in such connection, if the
registration is in connection with an underwritten offering (i)
make such representations and warranties to the underwriters, in
such form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if
and when requested; (ii) use its best efforts to obtain opinions
of counsel to the Company and updates thereof (which counsel and
opinions in form, scope and substance shall be reasonably
satisfactory to the underwriters) addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings; (iii) use its best efforts to obtain
"cold comfort" letters and updates thereof from the Company's
accountants addressed to the underwriters, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters by underwriters in connection
with underwritten offerings; (iv) set forth in full in any
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<PAGE>
underwriting agreement entered into the indemnification
provisions and procedures of Section 6.5 hereof with respect to
all parties to be indemnified pursuant to said Section; and (v)
deliver such documents and certificates as may be reasonably
requested by the underwriters to evidence compliance with clause
(i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company; the above shall be done at each closing under such
underwriting or similar agreement or as and to the extent
required hereunder;
(n) Make available for inspection by one or more
representatives of the Holders of Warrants and/or Registrable
Securities being sold, any underwriter participating in any
disposition pursuant to such registration, and any attorney or
accountant retained by such Holders or underwriter, all financial
and other records, pertinent corporate documents and properties
of the Company, and authorize the Company's officers, directors
and employees to supply all information reasonably requested by
any such representatives, in connection with such; and
(o) Otherwise use its best efforts to comply with all
applicable Federal and state regulations; and take such other
action as may be reasonably necessary to or advisable to enable
each such Holder and each such underwriter to consummate the sale
or disposition in such jurisdiction or jurisdictions in which any
such Holder or underwriter shall have requested that the Warrants
and/or Registrable Securities be sold.
Except as otherwise provided herein, the Company shall have sole
control in connection with the preparation, filing, withdrawal,
amendment or supplementing of each Registration Statement, the
selection of underwriters, and the distribution of any preliminary
prospectus included in the Registration Statement, and may include
within the coverage thereof additional shares of Common Stock or other
securities for its own account or for the account of one or more of
its other security holders.
The Company may require each Seller of Warrants and/or
Registrable Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution
of such securities and such other information as may otherwise be
required by the Securities Act to be included in such Registration
Statement, and in connection with an underwritten public offering, to
execute an underwriting agreement in customary form with respect to
such Warrants and/or Registrable Securities.
6.5 INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. In connection with each
Registration Statement relating to disposition of Warrants and/or
Registrable Securities, the Company shall indemnify and hold
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harmless each Holder and each underwriter of Warrants and/or
Registrable Securities and each Person, if any, who controls such
Holder or underwriter (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) against any and
all losses, claims, damages and liabilities, joint or several
(including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of
any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities
Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that such indemnity shall not
inure to the benefit of any Holder or underwriter (or any person
controlling such Holder or underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act) on account of any losses, claims, damages or liabilities
arising from the sale of the Warrants and/or Registrable
Securities if such untrue statement or omission or alleged untrue
statement or omission was made in such Registration Statement,
Prospectus or preliminary prospectus or such amendment or
supplement, in reliance upon and in conformity with information
furnished in writing to the Company by the Holder or underwriter
specifically for use therein.
(b) INDEMNIFICATION BY HOLDER. In connection with each
Registration Statement, each Holder shall indemnify, to the same
extent as the indemnification provided by the Company in Section
6.5(a), the Company, its directors and each officer who signs the
Registration Statement, and each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act) but only insofar as such losses,
claims, damages and liabilities arise out of or are based upon
any untrue Statement or omission or alleged untrue statement or
omission which was made in the Registration Statement, the
Prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, in reliance upon and in conformity with
information furnished in writing by such Holder to the Company
specifically for use therein. In no event shall the liability of
any selling Holder of Warrants and/or Registrable Securities
hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder upon the sale of the Warrants
and/or Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive customary
indemnities from underwriters with respect to information so
furnished in writing by such Persons specifically for inclusion
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in any Prospectus, Registration Statement or preliminary
prospectus or any amendment thereof or supplement thereto.
(c) CONDUCT OF INDEMNIFICATION PROCEDURE. Any party that
proposes to assert the right to be indemnified hereunder will,
promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim
is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement
of such action, suit or proceeding, enclosing a copy of all
papers served. No indemnification provided for in Section 6.5(a)
or Section 6.5(b) shall be available to any party who shall fail
to give notice as provided in this Section 6.5(c) if the party to
whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure
to give such notice, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall
not relieve it from any liability that it may have to any
indemnified party for contribution otherwise than under this
Section. In case any such action, suit or proceeding shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall
have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the
indemnifying parties, (ii) counsel for the indemnified party
shall have reasonably concluded that there may be a conflict of
interest between the indemnifying parties and the indemnified
party in the conduct of the defense of such action (in which case
the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party but
will be responsible for the reasonable fees of only one
additional counsel for all of the indemnified parties) or (iii)
the indemnifying parties shall not have employed counsel to
assume the defense of such action within a reasonable time after
notice of the commencement thereof, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense
of the indemnifying parties. An indemnifying party shall not be
liable for any settlement of any action, suit, proceeding or
claim effected without its written consent.
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<PAGE>
(d) CONTRIBUTION. In connection with each Registration
Statement relating to the disposition of Warrants and/or
Registrable Securities, if the indemnification provided for in
Section 6.5(a) or Section 6.5(b) hereof is unavailable to an
indemnified party in respect to any losses, claims, damages or
liabilities referred to therein, then the Company and each Holder
shall, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect (i) if the Company has
included its own securities in such Registration Statement, the
relative benefits received by the Company, on the one hand, and
each such Holder, on the other hand, from the public offering of
such securities and the Warrants and/or Registrable Securities,
or (ii) if the Company has not included any of its securities in
such Registration Statement, the relative fault of the Company,
on the one hand, and each such Holder, on the other hand, in
connection with the facts which resulted in such loss, claim,
damage or liability. The relative fault, in the case of an
untrue statement, alleged untrue statement, omission or alleged
omission, shall be determined by, among other things, whether
such statement, alleged statement, omission or alleged omission
relates to information furnished by the Company or such Holder
and the parties' relative intent, knowledge, access to
information and their relative opportunities to correct or
prevent such statement, alleged statement, omission or alleged
omission. In no event shall the liability of any selling Holder
of Warrants and/or Registrable Securities hereunder be greater in
amount than the dollar amount of the net proceeds received by
such Holder upon the sale of the Warrants and/or Registrable
Securities giving rise to such contribution obligation.
ARTICLE 7
OTHER MATTERS
7.1 SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Warrant by or for the benefit of the Company or the Holder shall
bind and inure to the benefit of their respective successors and
assigns hereunder.
7.2 NO INCONSISTENT AGREEMENTS. The Company will not on or
after the date of this Warrant enter into any agreement with respect
to its securities which is inconsistent with the rights granted to the
Holders in this Warrant or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
holders of the Company's securities under any other agreements.
7.3 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action outside the ordinary course of business, or
permit any change within its control to occur outside the ordinary
course of business, which is intended to interfere with the ability of
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<PAGE>
the Holders of Warrants and/or Registrable Securities to include such
Warrants and/or Registrable Securities in a registration undertaken
pursuant to this Agreement.
7.4 INTEGRATION/ENTIRE AGREEMENT. This Warrant is intended by
the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with
respect to the registration rights granted by the Company with respect
to the Warrants and/or Registrable Securities.
7.5 AMENDMENTS AND WAIVERS. The provisions of this Warrant,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waiver or consents to departures from
the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of at least a majority of the
outstanding Registrable Securities. Warrantholders and Holders shall
be bound by any consent authorized by this Section whether or not
certificates representing such Warrants and/or Registrable Securities
have been marked to indicate such consent
7.6 GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Delaware.
7.7 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provisions in every
other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
7.8 ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provisions of this Warrant, or where any provision hereof
is validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees and disbursements in
addition to its costs and expenses and any other available remedy.
7.9 COMPUTATIONS OF CONSENT. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (other than the Warrantholder or Holders, if they are
deemed to be such affiliates solely by reason of their holdings of
Warrants or Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders
of such required percentage.
7.10 NOTICE. Any notices or certificates by the Company to a
Holder and by a Holder to the Company shall be deemed delivered if in
writing and delivered in person or by registered mail (return receipt
requested) to the Holder addressed to it at the address provided to
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<PAGE>
the Company of such Holder at the time a Warrant was first issued to
him, her or it, or, if the Holder has designated by notice in writing
to the Company any other address, to such other address, and if to the
Company, addressed to it at its Operations Center, 600 Market Street,
Huron, South Dakota, 57350, Attention: President, or if the Company
has designated by notice in writing to the Holder any other address,
to such other address. The Company may change its address by written
notice to the Holders and the Holders may change their respective
addresses by written notice to the Company.
IN WITNESS WHEREOF, this Warrant has been duly executed by the
Company under its corporate seal as of the 3rd day of January, 1997.
NORTHWESTERN PUBLIC SERVICE COMPANY
(Corporate Seal) By:________________________________
President
Attest: _____________________________
Corporate Secretary
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<PAGE>
ASSIGNMENT
(TO BE EXECUTED ONLY UPON ASSIGNMENT OF WARRANT CERTIFICATE)
For value received, ____________________ hereby sells, assigns
and transfers unto ____________________ the within Warrant
Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ____________________
attorney, to transfer said Warrant Certificate on the books of the
within-named Company with respect to the number of Warrants set forth
below, with full power of substitution in the premises:
FEDERAL INCOME
TAX IDENTIFICATION
NAME(S) OF NUMBER OR SOCIAL NO. OF
ASSIGNEE(S) ADDRESS SECURITY NUMBER WARRANTS
----------- ------- ----------------- --------
And if said number of Warrants shall not be all the warrants
represented by said Warrant Certificate, a new Warrant Certificate is
to be issued in the name of said undersigned for the balance remaining
of the Warrants registered by said Warrant Certificate.
Signature_______________________________
Note: The above signature should
correspond exactly with the
name on the face of this
Warrant Certificate
Dated:_______________, 19___
<PAGE>
SUBSCRIPTION FORM
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
NORTHWESTERN PUBLIC SERVICE CORPORATION
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the within Warrant Certificate for, and to
purchase thereunder, ______ shares of Common Stock, as provided for
therein, and tenders herewith payment of the purchase price in full in
the form of cash or a certified or official bank check in the amount
of $__________.
Please issue a certificate or certificates for such Common Stock
in the name of, and pay any cash for any fractional share to:
Name ___________________________________
___________________________________
___________________________________
(Please print Name, Address and
Federal Income Tax Identification
Number or Social Security Number)
If said number of shares shall not be all the shares purchasable
under the within Warrant Certificate, a new Warrant Certificate is to
be issued in the name of said undersigned for the balance remaining of
the shares purchasable thereunder rounded up to the next higher number
of shares.
Signature_______________________________
Note: The above signature should
correspond exactly with the name on
the first page of this Warrant
Certificate (or, if applicable,
with the name of the assignee
appearing in the assignment form
presented herewith).
EXHIBIT 4(B)
[Form of Amendment to Warrant]
AMENDMENT TO WARRANT
This Amendment to Warrant (this "Amendment") is entered into as
of this _____ day of __________, 199__ by and between Northwestern
Public Service Company ("NPS") and the person identified on the
signature page hereto (the "Warrantholder").
RECITALS
--------
WHEREAS, NPS has previously issued to the Warrantholder a warrant
to purchase ______ shares of common stock of NPS at an exercise price
of $36.45 per share (the "Original Warrant"); and
WHEREAS, by virtue of a 2 for 1 stock split that occurred in
1997, the Original Warrant now represents the right to purchase ______
shares of common stock of NPS at an exercise price of $18.225 per
share; and
WHEREAS, Section 6.3 of the Original Warrant permits NPS to offer
to purchase and purchase the Original Warrant or the "Registrable
Securities" (as defined in the Original Warrant) in the event that the
Warrantholder elects to effect a "Piggyback Registration" or "Demand
Registration" (as defined in the Original Warrant); and
WHEREAS, the Warrantholder has requested NPS to agree not to
exercise its rights under Section 6.3 of the Original Warrant; and
WHEREAS, NPS is willing to so agree on the condition that the
Warrantholder agree to the provisions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
AGREEMENT
---------
1. DEFINITIONS. Capitalized terms not defined herein shall
have the meanings set forth in the Original Warrant.
2. AMENDMENTS TO ORIGINAL WARRANT. The Original Warrant is
hereby amended by deleting Section 6.3 thereof in its entirety.
<PAGE>
3. RESTRICTION ON TRANSFER; RIGHT OF FIRST REFUSAL. In
consideration of the foregoing amendment, the Warrantholder agrees as
follows:
(a) Prior to January 3, 2002, the Warrantholder agrees that
he will not sell, assign, transfer, grant an option with respect
to or otherwise dispose of any interest in (or enter into an
agreement, arrangement or understanding with respect to the
foregoing) (individually and collectively, "Sell") any Warrants
or Registrable Securities (collectively, the "NPS Voting
Securities") to a single person or "group" (as such term is used
in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended) in a privately negotiated sale or in a block sale in a
brokerage transaction (as distinguished from an open market
transaction or a sale in connection with a tender offer) that
involves at least 50,000 shares of NPS Voting Securities owned by
the Warrantholder and the other holders of Warrants ("Other
Holders") that were issued pursuant to the Agreement and Plan of
Merger dated as of September 6, 1996 entered into by Empire
Energy Corporation and the other parties thereto (whether such
sale involves an individual sale by the Warrantholder or a series
of substantially concurrent sales by the Warrantholder and one or
more Other Holders) (a "Prohibited Transaction") without first
complying with the provisions of subsection (b) below.
(b) In the event that the Warrantholder desires to Sell all
or part of his holdings of NPS Voting Securities (the "Shares")
in a Prohibited Transaction, NPS shall first be given the
opportunity, in the following manner, to purchase (or cause an
entity, person or group designated by NPS to purchase) all, but
not less than all, of such Shares:
(i) The Warrantholder shall deliver a written notice
(the "Notice") to NPS of such intention, describing the
specific offer to purchase the Shares, identifying the
offeror and the proposed price of the Shares, and setting
forth the other terms and conditions of such offer and, if
in writing, a copy of such offer shall be attached to the
Notice.
(ii) NPS shall have the right for 2 business days after
receipt of the Notice, exercisable by written notice given
to the Warrantholder, to elect to purchase (or to designate
an entity, person or group to purchase) all, but not less
than all, of the Shares specified in the Notice for cash at
the price set forth therein and upon any terms and
conditions contained in any offer attached to the Notice.
If the purchase price specified in the Notice includes any
property other than cash, the purchase price shall be deemed
to be the amount of any cash included in the purchase price
plus the value (as may be mutually agreed by the
Warrantholder and NPS, or, if they are unable to agree, as
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<PAGE>
determined by an independent, nationally recognized
investment banking firm mutually selected by the
Warrantholder and NPS, the fees and expenses of which firm
shall be borne equally by the Warrantholder and NPS) of the
other property included in the price; and in such event NPS'
notice of exercise of the right to elect to purchase
provided for herein shall set forth the purchase price so
determined and such notice of exercise shall not be due
until 2 business days after such determination is made.
(iii) If NPS does not exercise its right to elect
to purchase within 2 business days from the receipt of the
Notice (or 2 business days after the determination of the
value of property, if applicable), the Warrantholder shall
be free to sell or agree to sell the Shares specified in the
Notice to the third party making the offer described in the
Notice, at the price specified therein or at any price in
excess thereof and on the other terms and conditions
specified in the Notice. If the Warrantholder shall not so
sell all of the Shares within 10 business days from the
receipt of the Notice, the provisions of this Amendment
(including, without limitation, this SECTION 2) shall
thereafter apply to the Shares not so sold.
(iv) If NPS exercises its right to purchase specified
in SECTION 2(B), the closing of the purchase of the Shares
shall take place within 5 business days after receipt by the
Warrantholder of the notice of exercise at a place, time and
date specified by NPS in such notice. At the closing, NPS
shall deliver to the Warrantholder cash or immediately
available funds in an amount equal to the purchase price set
forth in the Notice, and the Warrantholder shall deliver to
NPS certificates representing the Shares, duly endorsed in
blank or accompanied by stock powers duly executed, in
either case with signatures guaranteed, and otherwise in
form acceptable for transfer of the Shares on the books of
the issuer of the Shares, together with all necessary stock
transfer stamps.
4. AGREEMENT IN EFFECT. Except as specifically amended above,
the Original Warrant shall remain in full force and effect.
5. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
6. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the day and year first above written.
NORTHWESTERN PUBLIC SERVICE COMPANY
By:_____________________________ _____________________________
Name: [Warrantholder]
Title:
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EXHIBIT 5(A)
September 23, 1998
Northwestern Corporation
600 Market Street West
Huron, South Dakota 57350-1500
Ladies and Gentlemen:
We have acted as counsel to Northwestern Corporation, a Delaware
corporation (the "Company"), and are rendering this opinion in
connection with the Registration Statement on Form S-2 (the
"Registration Statement") being filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to Warrants to
purchase up to 1,231,770 shares of Common Stock of the Company (the
"Warrants"), which were issued to certain former stockholders of
Empire Energy Corporation pursuant to a Warrant Issuance and Exchange
Agreement, and the 1,231,770 shares of Common Stock, par value $1.75
per share, of the Company issuable upon exercise of the Warrants (the
"Common Stock").
In connection with our opinion, we have examined the Registration
Statement, including the exhibits thereto, and such other documents,
corporate records and instruments, and have examined such laws and
regulations, as we have deemed necessary for the purposes of this
opinion. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of
such latter documents. Based upon such examination, and subject to
the limitations, qualifications and assumptions contained herein, we
are of the following opinions:
1. The Warrants have been duly authorized and validly issued
and are fully paid and nonassessable.
2. The Common Stock has been duly authorized and, when the
Registration Statement has become effective and the Common Stock
is issued upon exercise of the Warrants in accordance with the
terms of the Warrants, the Common Stock will be validly issued,
fully paid and nonassessable.
We express opinions herein with respect to the applicability of
the United States Federal laws and the General Corporation Law of
Delaware, and we express no opinion as to the laws of any other
jurisdiction.
<PAGE>
Northwestern Corporation
September 23, 1998
Page 2
We hereby consent to the use of this opinion for filing with the
Registration Statement as Exhibit 5(a) thereto and the reference to us
under the caption Experts and Legal Opinions in the Prospectus
contained in the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By:
--------------------------
Robert J. Minkus
Exhibit 13(a)
NORTHWESTERN
1997 ANNUAL REPORT
SHAPING THE MARKETPLACE OF TOMORROW
[LOGO]
NW
-------------
NORTHWESTERN
1997
OUR BEST YEAR EVER
* Revenues rose to a record $918 million, up 167% from
$344 million in 1996.
* Earnings per share from ongoing operations increased 10% to
a record $1.31, the fifth consecutive year of record growth.
* Total return to shareholders in 1997 was 40% after a 29%
return in 1996.
* Quarterly dividends increased 5.4%, our 14th consecutive
annual increase.
* The Board of Directors approved a 2-for-1 common stock split
in May 1997.
<PAGE>
<TABLE>
<CAPTION>
CONTENTS FINANCIAL HIGHLIGHTS
-------- --------------------
<S> <C> <C> <C> <C>
To Our Shareholders (IN THOUSANDS EXCEPT 1997 1996 Increase
1-2 PER SHARE AMOUNTS)
The Companies of
Northwestern Total Revenue $ 918,070 $ 344,009 167%
3-4
A Trillion Dollar
Opportunity
Net Income 26,264 24,361* 8%
5
A Strategy For Growth
6-11
Earnings on Common Stock 23,411 21,170* 11%
Board of Directors
12-13
Officers Earnings per Common Stock 1.31 1.19* 10%
14
Management's Discussion
and
Annual Dividend Rate, YE .97 .92 5%
Analysis
15-19
Statements and Notes
20-33 Earnings Before Interest,
Taxes, Depreciation and
Financial and Operating Amortization (EBITDA) 90,232 69,832 29%
Statistics
34
*FROM ONGOING OPERATIONS WHICH EXCLUDES
Shareholder Information A ONE-TIME GAIN OF $1.7 MILLION OF
35 $.09 PER SHARE
/TABLE
<PAGE>
[Photo of Merle Lewis]
Northwestern provides energy, telecommunications and related services
to customers across America. Our mission is to be the leader in
integrating products and services to the marketplace of tomorrow.
TO OUR SHAREHOLDERS
-------------------
Three years ago we began a visionary journey. Anticipating the
competitive forces changing the energy, telecommunications and related
services industries, and recognizing the consumer's growing demand for
integrated, value-added products and services, we began a series of
strategic steps to position Northwestern as a growth-oriented leader
in the marketplace of tomorrow.
In 1997, we demonstrated the resources, discipline and market savvy
necessary to make our vision reality and to surpass even our most
optimistic projections of future performance. Our vision is founded
upon a clear strategic plan which 1) buildings on the historic success
of our distribution and service businesses, 2) leverages our core
competencies to gain competitive advantages in energy,
telecommunications and service-related industries, 3) increases access
to a national customer base and 4) capitalizes upon our opportunities
to integrate products and service offerings to meet customer
expectations in tomorrow's marketplace.
TOMORROW'S MARKETPLACE
----------------------
Customers want the simplicity, convenience and savings inherent when a
variety of products and services are combined in custom-tailored
packages that meet their individual needs. Our strategic vision
centers upon the development and acquisition of operations offering
consumer-desired products which can be integrated with proven products
from other Northwestern companies in a way which gives us an edge in
the competitive marketplace.
For customers, it will mean more convenience, better service, lower
cost and access to innovative and value-added products and services.
For Northwestern, it will mean additional revenue per customer,
increased market share and opportunity for enhanced customer loyalty.
In the marketplace of tomorrow, companies capitalizing on existing
customer relationship will have greater opportunities for growth and
future success.
Another key element of our strategy is the development and expansion
of a broad nationwide customer base. We have more than tripled our
existing customer base over the last two years, while expanding the
geographical reach of our operations across the U.S.
SHAPING THE MARKETPLACE OF TOMORROW 1
<PAGE>
THE FOUNDATIONS ARE IN PLACE
---------------------------
Our vision as a leading national provided of integrated services is
aggressive, challenging, fast-paced and achievable. Three years ago
our annual revenues were $157 million. In 1997, our revenues grew to
$918 million. This is only the beginning. Today we have in place the
foundation for our long-term growth strategy.
To sustain this growth in an increasingly competitive environment,
Northwestern is seeking to strengthen its market identity.
Northwestern shareholders will receive a proxy statement in March
discussing a proposal to change our name to Northwestern Corporation
and to adopt a new stock symbol, NOR. The name change is another
initial step in our transformation to a nationwide, consumer-preferred
integrator of products and services for the marketplace.
PEOPLE: OUR MOST PRECIOUS RESOURCE
-----------------------------------
Northwestern's accomplishments in 1997 reflect the contributions of a
talented group of team members who possess an incredible level of
energy. Time after time, Northwestern's people have proven they are
the best in the business. They believe in Northwestern. In fact, our
employees are also shareholders and our officers and managers
demonstrate their commitment by purchasing shares every pay period.
Our Directors also deserve special thanks for another year of
outstanding guidance. We want to especially acknowledge and thank
Herman Lerdal, who is retiring from his Director's position in April.
We appreciate his 23 years of advice and counsel.
OUR LOYAL SHAREHOLDERS
----------------------
Northwestern is committed to building long-term value for you. We
have set our sights on an achievable vision and the creation of
extraordinary shareholder value. We thank you for the trust you have
shown in us and for your investment in the Northwestern family of
companies.
/s/ Merle D. Lewis
------------------------------
Merle D. Lewis
CHAIRMAN, PRESIDENT & CHIEF
EXECUTIVE OFFICER SHAREHOLDER
February 13, 1998
SHAPING THE MARKETPLACE OF TOMORROW 2
<PAGE>
THE COMPANIES OF NORTHWESTERN
[From left to right]
[logo]
NORTHWESTERN
Public
Service
Provider of competitive, reliable electric and natural gas service to
Midwestern customers.
[photo]
[photo]
[logo]
NORTHWESTERN
Services
The catalyst for integrating products and services throughout the
Northwestern companies, offering customers value and convenience
through custom-tailored packages of products and services for homes
and businesses.
[photo]
[logo]
CORNERSTONE{TM}
Propane Partners
The fifth largest retail propane marketer in the U.S. serving over
380,000 customers. Coast Energy Group is a national wholesale and
energy marketing entity of Cornerstone.
SHAPING THE MARKETPLACE OF TOMORROW 3
<PAGE>
[photo]
[logo]
SERVICENTERUSA{TM}
Premier nationwide provider of heating, ventilating, air conditioning,
plumbing and related services for residential and business customers.
[photo]
[logo]
SYSTEMSUSA{TM}
Provider of sophisticated voice, video and data solutions for
customers across America. Formed in lat 1997, Communication Systems
USA is expected to be one of our fastest-growing entities.
[logo]
NW
-------------------
NORTHWESTERN
The companies of Northwestern provide an ever-expanding menu of
consumer-preferred and advantageously priced products and services.
SHAPING THE MARKETPLACE OF TOMORROW 4
<PAGE>
A TRILLION DOLLAR OPPORTUNITY
-----------------------------
The domestic energy, telecommunications and related services industry
and marketplace is over $1 trillion and growing. We are achieving our
vision by positioning Northwestern as a major player in this enormous
marketplace where speed, customer innovation, resources and savvy make
bold visions a reality.
WATCH NORTHWESTERN.
-------------------
Our vision is unlimited, our strategies are sound, our performance
affirming.
SHAPING THE MARKETPLACE OF TOMORROW 5
<PAGE>
THE COMPANIES OF NORTHWESTERN
INTEGRATING PRODUCTS AND SERVICES FOR THE MARKETPLACE OF TOMORROW
[logo]
NW
-------------------
NORTHWESTERN
SERVICES
[photos]
Northwestern Services integrates the marketing and delivery of value-
added products and services across the companies of Northwestern --
offering more products to more of our customers while earning their
long-term loyalty. Our residential line includes a portfolio of
products to provide safety, comfort and convenience such as home
monitoring systems, carbon monoxide detectors and appliance
maintenance contracts. Northwestern Services also has a complete line
of commercial and industrial products and services designed to make
customers more competitive and successful.
A nationally recognized opinion poll recently identified what American
consumers what most: LIFE SIMPLIFICATION. Simplification is the
essence of integration: it combines multiple services for the home or
business into cost saving and convenience enhancing packages.
Northwestern is creating and packaging its own products and services
to meet this demand. Advantages to the consumer are obvious -- one
bill, one source, one purchase decisions, from one trusted service
provider. For those entities who package services attractively and
cost-effectively, the opportunity is unparalleled -- A TRILLION DOLLAR
OPPORTUNITY in which Northwestern's vision and strategic plan finds
fulfillment.
SHAPING THE MARKETPLACE OF TOMORROW 6
<PAGE>
The Companies of
Northwestern
PROPANE: ONE OF AMERICA'S BEST VALUES
[logo]
CORNERSTONE{TM}
Propane Partners
Cornerstone, the fifth largest retail propane and related services
marketer in the U.S., operates an extensive distribution network to
transport propane to 300 customer service centers. Over 2000
employees deliver propane locally to Cornerstone customers in 27
states. Cornerstone's operations are managed by its General Partner,
Cornerstone Propane GP, Inc., a wholly owned subsidiary of
Northwestern. Cornerstone Propane Partners, L.P. (NYSE: CNO) is a
publicly traded master limited partnership.
[photos]
SHAPING THE MARKETPLACE OF TOMORROW 7
<PAGE>
[photos]
COMPETITIVE ELECTRIC AND NATURAL GAS SERVICES
[logo]
NW
-------------------
NORTHWESTERN
PUBLIC
SERVICE
Northwestern's energy companies serve electric customers in eastern
South Dakota and natural gas to customers in eastern South Dakota and
central Nebraska. The combination of internal cost-efficiencies and
advantageous long-term supply sources has resulted in stable and
competitive prices for customers.
Energy -- one of the major access routes to a customer's home or
business -- provides extensive opportunities for integration and sales
of other value-added products and services to our customers.
SHAPING THE MARKETPLACE OF TOMORROW 8
<PAGE>
The Companies of
Northwestern
ONE OF THE NATION'S PREMIER HVAC AND RELATED SERVICES PROVIDERS
[logo] SERVICENTERUSA{TM}
ServiCenter USA was formed in 1997 to become a leading national
provider of value-added heating, ventilating, air conditioning (HVAC),
plumbing and related services for residential and business customers
in the U.S. Through the acquisition and development of the industry's
best entrepreneurial companies, ServiCenter USA brings a new dimension
of professional service and value creation to the HVAC and related
services industry. Consistent, guaranteed, world-class service;
highly skilled technicians; fair pricing and the integration of
additional products and services differentiate ServiCenter USA in the
marketplace. HVAC and related services operations are a natural
complement to Northwestern's other companies and provide delivery
capability and another national customer base to expand product and
service offerings.
SHAPING THE MARKETPLACE OF TOMORROW 9
<PAGE>
UNPARALLELED OPPORTUNITY IN COMMUNICATIONS & DATA SOLUTIONS
[photos]
[logo]
COMMUNICATION
SYSTEMS USA{TM}
Created in late 1997, Communication Systems USA is anticipated to be
one of our fastest-growing operations. Communication Systems USA is
executing a national acquisition and development platform to build a
premier provider of communications and data services in the U.S. The
communication systems and data services industry is experiencing
robust expansion, with double-digit annual growth rates.
Increasingly, customers want more sophisticated voice, video and data
solutions provided from a reliable national market leader.
Communication Systems USA is well on its way to achieving substantial
revenue growth in 1998. With the many parallels between
communications and the Northwestern companies, this new entity opens
many possibilities for extraordinary long-term growth along with
product and service expansion.
SHAPING THE MARKETPLACE OF TOMORROW 10
<PAGE>
BOARD OF DIRECTORS
MERLE D. LEWIS (1)
Chairman, President & CEO
Northwestern
Huron, S.D. - Elected 1993
[photo]
RANDY G. DARCY
Senior Vice President - Operations
General Mills, Inc.
Minneapolis, Minn. - Elected 1998
[photo]
RICHARD R. HYLLAND
Executive Vice President,
Northwestern
Sioux Falls, S.D. - Elected 1995
[photo]
JERRY W. JOHNSON (2)(3)
Dean of the School of Business,
University of South Dakota
Vermillion, S.D. - Elected 1994
[photo]
AELRED J. KURTENBACH (1)(3)
President & CEO,
Daktronics, Inc.
Brookings, S.D. - Elected 1994
[photo]
HERMAN LERDAL (2)
Banking Consultant, Former Banker
and College Development Officer
Sioux Falls, S.D. - Elected 1975
[photo]
LARRY F. NESS (1)(2)
Chairman & CEO, First Dakota Financial Corp.;
Chairman & CEO, First Dakota National Bank
Yankton, S.D. - Elected 1991
[photo]
GARY OLSON (1)
President & CEO,
Norwest Bank South Dakota, N.A.;
Regional President, Norwest Corporation
Sioux Falls, S.D. - Elected 1997
[photo]
SHAPING THE MARKETPLACE OF TOMORROW 11
<PAGE>
RAYMOND M. SCHUTZ (1)
Attorney and Partner,
Siegel, Barnett & Schutz
Aberdeen, S.D. - Elected 1990
[photo]
BRUCE J. SMITH (2)(3)
Attorney and Partner,
Luebs, Leininger, Smith, Busick & Johnson
Grand Island, Neb. - Elected 1989
[photo]
_________________________________________
(1) Audit Committee
(2) Nominating & Compensation Committee
(3) Corporate Governance Committee
SHAPING THE MARKETPLACE OF TOMORROW 12
<PAGE>
BOARD DEVELOPMENTS
The Board elected two new members effective in 1998, Randy Darcy is
senior vice president-operations of General Mills, Inc. in
Minneapolis, Minnesota. He has an extensive background in
manufacturing, engineering and purchasing. Gary Drook is president
and chief executive officer of Ruppman Marketing Technologies, Inc. in
Peoria, Illinois. Mr. Drook's professional career includes executive
positions with large telecommunications and network services firms.
On April 30, 1998, Herman Lerdal will retire after serving 23 years as
a Director. Northwestern appreciates his many contributions to the
company's Board of Directors.
SHAPING THE MARKETPLACE OF TOMORROW 13
<PAGE>
OFFICERS
NORTHWESTERN NORTHWESTERN COMPANIES
Merle D. Lewis
Chairman, President & Chief NORTHWESTERN GROWTH CORPORATION
Executive Officer Richard R. Hylland
Chief Executive Officer
Richard R. Hylland
Executive Vice President Daniel K. Newell
President & Chief
Alan D. Dietrich Operating Officer
Vice President -
Administration & Corporate NORTHWESTERN SERVICES
Secretary CORPORATION
Thomas A. Gulbranson
Arthur R. Donnell President & Chief
Vice President - Energy Operating Officer
Operations
CORNERSTONE PROPANE GP, INC.
Thomas A. Gulbranson Keith G. Baxter
Vice President - Customer President & Chief
Services Executive Officer
Rodney F. Leyendecker SERVICENTER USA
Vice President - Market Patrick L. Johnson
Development President & Chief
Executive Officer
Warren K. Lotsberg
Vice President - Public COAST ENERGY GROUP
Affairs Vincent J. Di Cosimo
President
Daniel K. Newell
Vice President - Finance & NORTHWESTERN ENERGY CORPORATION
Chief Financial Officer Rodney F. Leyendecker
President & Chief
Rogene A. Thaden Operating Officer
Vice President -
Communications
David A. Monaghan
Controller & Treasurer
SHAPING THE MARKETPLACE OF TOMORROW 14
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 30,
1998 included in or incorporated by reference in Northwestern Corporation's
(formerly Northwestern Public Service Company) Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Minneapolis, Minnesota
September 22, 1998
