As filed with the Securities and Exchange Commission on November 6, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________
NORTHERN BORDER PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
Delaware 93-1120873
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
organization)
1400 Smith Street
Houston, Texas 77002-7361
(Address of principal executive offices, including zip code)
____________________
Northern Plains Natural Gas Company
Phantom Unit Plan
(Full title of the plans)
____________________
Copy to:
Larry L. DeRoin Janet K. Place
Chief Executive Officer Vice President and General
Northern Border Partners, L.P. Counsel
1400 Smith Street Northern Plains Natural Gas
Houston, Texas 77002-7361 Company
(Name and address of 1400 Smith Street
agent for service) Houston, Texas 77002-7361
(713) 853-6161
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of
securities Proposed maximum Proposed maximum Amount of
to be Amount to be offering price per aggregate offering registration
registered registered share (1) price fee
<S> <C> <C> <C> <C>
Common Units 40,000 Units 34 15/16 $1,397,500.00 $424.00
<FN>
(1) Estimated solely for purposes of calculating the registration fee,
in accordance with Rule 457(h), on the basis of the price of
securities of the same class, as determined in accordance with Rule
457(c), using the average of the high and low prices reported on the
New York Stock Exchange for the Common Units on November 3, 1998.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the
Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), by Northern Border Partners, L.P. (Exchange Act
Registration No. 1-12202), a Delaware limited partnership (the
"Registrant"), are incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
(c) The description of the Common Units contained in the
Registration Statement on Form 8-A declared effective
in September of 1993, including any amendment or report
filed to update such description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
effective date of this Registration Statement, prior to the
filing of a post-effective amendment to this Registration
Statement indicating that all securities offered hereby have been
sold or deregistering all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents. Any statement
contained herein or in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that 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 to constitute a part of this Registration
Statement, except as so modified or superseded.
The consolidated financial statements and schedule included in
the Registrant's Annual Report on Form 10-K incorporated herein
by reference 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 accounting and auditing
in giving said reports.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Amended and Restated Agreement of Limited Partnership
contains the following provisions relating to indemnification of
Officers, General Partners and Partnership Policy Committee
Members:
6.8 Indemnification.
(a) To the fullest extent permitted by law but subject to the
limitations expressly provided in this Agreement, each General
Partner, the members of the Partnership Policy Committee, any
Departing Partner, any Person who is or was an officer or
director of the Partnership, a General Partner or any Departing
Partner and all other Indemnitees shall be indemnified and held
harmless by the Partnership from and against any and all losses,
claims, damages, liabilities, joint or several, expenses
(including, without limitation, legal fees and expenses),
judgments, fines, penalties, interest, settlements and other
amounts arising from any and all claims, demands, actions, suits
or proceedings, whether civil, criminal, administrative or
investigative, in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, by reason of
its status as (i) a General Partner, a member of the Partnership
Policy Committee, a Departing Partner or any of their Affiliates,
(ii) an officer, director, employee, partner, agent or trustee of
the Partnership, a General Partner, any Departing Partner or any
of their Affiliates or (iii) a Person serving at the request of
the Partnership in another entity in a similar capacity,
provided, that in each case the Indemnitee acted in good faith
and in a manner which such Indemnitee believed to be in, or not
opposed to, the best interests of the Partnership and, with
respect to any criminal proceeding, had no reasonable cause to
believe its conduct was unlawful; provided, further, no
indemnification pursuant to this Section 6.8 shall be available
to the General Partners with respect to their obligations
incurred pursuant to the Indemnity Agreement, the Underwriting
Agreement or the Conveyance Agreement (other than obligations
incurred by the General Partners on behalf of the Partnership or
the Intermediate Partnership). The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the Indemnitee acted in a manner
contrary to that specified above. Any indemnification pursuant to
this Section 6.8 shall be made only out of the assets of the
Partnership, it being agreed that the General Partners shall not
be personally liable for such indemnification and shall have no
obligation to contribute or loan any monies or property to the
Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including,
without limitation, legal fees and expenses) incurred by an
Indemnitee who is indemnified pursuant to Section 6.8(a) in
defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Partnership prior to the
final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Partnership of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be
indemnified as authorized in this Section 6.8.
(c) The indemnification provided by this Section 6.8 shall be in
addition to any other rights to which an Indemnitee may be
entitled under any agreement, pursuant to any vote of the holders
of Outstanding Units, as a matter of law or otherwise, both as to
actions in the Indemnitee's capacity as (i) a General Partner, a
member of the Partnership Policy Committee, a Departing Partner
or an Affiliate thereof, (ii) an officer, director, employee,
partner, agent or trustee of the Partnership, a General Partner,
any Departing Partner or an Affiliate thereof or (iii) a Person
serving at the request of the Partnership in another entity in a
similar capacity, and as to actions in any other capacity
(including, without limitation, any capacity under the
Underwriting Agreement), and shall continue as to an Indemnitee
who has ceased to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and administrators of
the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse the
General Partners or their Affiliates for the cost of) insurance,
on behalf of the General Partners, the members of the Partnership
Policy Committee and such other Persons as the Partnership Policy
Committee shall determine, against any liability that may be
asserted against or expense that may be incurred by such Person
in connection with the Partnership's activities, regardless of
whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this
Agreement.
(e) For purposes of this Section 6.8, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of
an employee benefit plan whenever the performance by it of its
duties to the Partnership also imposes duties on, or otherwise
involves services by, it to the plan or participants or
beneficiaries of the plan; excise taxes assessed on an Indemnitee
with respect to an employee benefit plan pursuant to applicable
law shall constitute "fines" within the meaning of Section
6.8(a); and action taken or omitted by it with respect to an
employee benefit plan in the performance of its duties for a
purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose which is in, or not opposed to, the best interests
of the Partnership.
(f) In no event may an Indemnitee subject the Limited Partners
to personal liability by reason of the indemnification provisions
set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole
or in part under this Section 6.8 because the Indemnitee had an
interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise
permitted by the terms of this Agreement.
(h) The provisions of this Section 6.8 are for the benefit of
the Indemnitees, their heirs, successors, assigns and
administrators and shall not be deemed to create any rights for
the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 6.8 or
any provision hereof shall in any manner terminate, reduce or
impair the right of any past, present or future Indemnitee to be
indemnified by the Partnership, nor the obligation of the
Partnership to indemnity any such Indemnitee under and in
accordance with the provisions of this Section 6.8 as in effect
immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring,
in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted.
The preceding discussion of the Registrant's Amended and
Restated Agreement of Limited Partnership is not intended to be
exhaustive and is qualified by the Amended and Restated Agreement
of Limited Partnership.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Registrant with the
Commission, each of the following exhibits is filed herewith:
4.1 Form of Amended and Restated Agreement of Limited
Partnership of Northern Border Partners, L.P. (Exhibit 3.1 No. 2
to the Partnership's Form S-1 Registration Statement,
Registration No. 33-66158 ("Form S-1")).
5.1 Opinion of Janet K. Place, Vice President and General
Counsel of Northern Plains Natural Gas Company.
23.1 Consent of Arthur Andersen LLP.
99.1 Northern Plains Natural Gas Company Phantom Unit Plan.
UNDERTAKINGS
The 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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(b) To reflect in the prospectus any facts or
events arising after the effective date of this
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 this Registration Statement;
(c) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for the purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this 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.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement or amendment to be
signed on its behalf by the undersigned, thereunto duly
authorized, on the 6th day of November, 1998.
Northern Border Partners, L.P.
By: LARRY L. DEROIN
Larry L. DeRoin
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement or amendment has been signed below by
the following persons in the capacities indicated and on the 6th
day of November, 1998.
Signature Title
LARRY L. DEROIN Chief Executive Officer and Chairman
Larry L. DeRoin of Partnership Policy Committee
(Principal Executive Officer)
STEVEN M. ROVERUD Member of Partnership Policy Committee
for George L. Mazanec
BRIAN E. O'NEILL Member of Partnership Policy Committee
Brian E. O'Neill
JERRY L. PETERS Chief Financial and Accounting Officer
Jerry L. Peters
EXHIBIT INDEX
Exhibit
Number Description
4.1 Form of Amended and Restated
Agreement of Limited Partnership of Northern
Border Partners, L.P.(Exhibit 3.1 No. 2 to
the Partnership's Form S-1 Registration
Statement, Registration No. 33-66158 ("Form S-1").
5.1 Opinion of Janet K. Place, Vice President and
General Counsel of Northern Plains Natural
Gas Company.
23.1 Consent of Arthur Andersen LLP.
99.1 Northern Plains Natural Gas Company Phantom
Unit Plan.
EXHIBIT 5.1
November 6, 1998
Northern Plains Natural Gas Company
1400 Smith Street
Houston, Texas 77002-7361
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
I am the Vice President and General Counsel of Northern
Plains Natural Gas Company, a Delaware Corporation, (the
"Company") and have participated in the preparation of the
Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933
of the offer and sale of an aggregate of 40,000 units of Northern
Border Partners, L.P., a Delaware Limited Partnership, (the
"Partnership") Common Units, par value $.01 per unit, (the
"Units"), that may be transferred from time to time pursuant to
grants made under the Northern Plains Natural Gas Company Phantom
Unit Plan (the "Plan").
In reaching the opinion set forth herein, I have examined
such agreements, certificates of public officials and officers of
the Partnership, records, documents, and matters as I have deemed
relevant.
Based on the foregoing and subject further to the
assumptions, exceptions, and qualifications hereinafter stated, I
am of the opinion that the Units, when transferred in the manner
contemplated by the Registration Statement and in accordance with
the terms of the Plan and the relevant grant agreements, will be
legally transferred, fully paid and nonassessable.
In rendering the opinion set forth herein, I have assumed
that the Partnership will receive the full amount and type of
consideration (as specified in the Plan and each applicable grant
agreement) for each of the Units or will have received that
consideration upon the transfer of the Units pursuant to the
applicable grant agreement, that such consideration will be paid
in cash, personal property, or services already performed, that
such consideration will equal or exceed the par value per unit of
the Units, that appropriate certificates evidencing the Units
will be properly executed upon each such transfer and that each
grant of a phantom unit pursuant to the Plan will be duly
authorized.
The opinion expressed above is limited to the laws of the
State of Nebraska, the laws of the state of Delaware, and the
federal laws of the United States of America. In giving this
consent, I do not hereby admit that I come into the category of
persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Sincerely,
JANET K. PLACE
Janet K. Place
Vice President and General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-8 of our reports dated January 26, 1998, included in Northern
Border Partners, L.P.'s Annual Report on Form 10-K for the year
ended December 31, 1997, and to all references to our Firm
included in this Registration Statement.
Arthur Andersen LLP
Omaha, Nebraska
November 3, 1998
EXHIBIT 99.1
NORTHERN PLAINS NATURAL GAS COMPANY
PHANTOM UNIT PLAN
Section 1. Purposes of the Plan. The purposes of this
Northern Plains Natural Gas Company Phantom Unit Plan (the
"Plan") are to provide employees of Northern Plains Natural Gas
Company an increased incentive to contribute to the future
success and prosperity of Northern Border Pipeline Company and
Northern Border Partners, L.P., thus enhancing the value of the
partnerships for the benefit of their owners, and to enhance the
ability of Northern Plains Natural Gas Company to attract and
retain employees who are essential to the progress, growth and
profitability of the partnerships.
Section 2. Administration of the Plan.
2.1. The Committee. The Plan shall be administered by the
Board of Directors of Northern Plains Natural Gas Company (the
"Board") acting as an administrative committee of the whole or by
another administrative committee appointed from time to time by
the Board (in each case the "Committee"). Members of any such
Committee need not be directors of Northern Plains Natural Gas
Company. The Committee shall have all of the powers and duties
specified for it under the Plan, including, without limitation,
the selection of Participants and the determination of Grants of
Phantom Units to be granted to each Participant. The Committee
may from time to time establish rules and procedures for the
administration of the Plan which are not inconsistent with the
provisions of the Plan, and any such rules and procedures shall
be effective as if included in the Plan.
2.2. Meetings. A majority of the members of the Committee
shall constitute a quorum for the transaction of business. All
action taken by the Committee at a meeting shall be by the vote
of a majority of those present at such meeting, but any action
may be taken by the Committee without a meeting upon written
consent signed by all of the members of the Committee. Members
of the Committee may participate in a meeting by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear or see
the comments of one another. No member of the Committee shall
vote on any matter directly affecting the amounts payable under
the Plan to such member.
2.3. Committee Determinations. All determinations of the
Committee shall be final, binding and conclusive upon all
persons.
Section 3. Eligibility and Participation.
3.1. Eligible Employees. Employees of Northern Plains
Natural Gas Company are eligible to be selected by the Committee
for participation in the Plan. Participation in the Plan and the
Grant of Phantom Units to such eligible employees shall be in the
discretion of the Committee, and the Committee may from time to
time establish further eligibility requirements for participation
in the Plan. Subject to provisions of the Plan, Phantom Units
granted to each Participant shall be determined in the sole
discretion of the Committee.
3.2. Grant Agreements. The terms and provisions of each
Grant of Phantom Units, as determined by the Committee in its
sole discretion, shall be set forth in a written Grant Agreement,
which shall incorporate by reference, and be subject to, the
terms and provisions of the Plan. Each Grant Agreement shall
contain such provisions not inconsistent with the Plan as the
Committee deems appropriate. The terms and provisions set forth
in Grant Agreements may vary among Participants. Phantom Units
and all rights attendant thereto are transferable only by will or
the laws of descent and distribution, and are only redeemable
while the Participant remains an employee of Northern Plains
Natural Gas Company, or dies while an employee thereof unless
otherwise provided by a provision of the Plan or of the
Participant's Grant Agreement. Subject to the foregoing, the
Committee has complete authority to determine the identity of
participants, the time of grant, time and provisions for
redemption and duration of a Grant of Phantom Units and any other
conditions or limitations applicable to the Grant and redemption
of a Grant of Phantom Units.
3.3. Limit On Phantom Units. The number of Grants of
Phantom Units, including Grants of Phantom Units which have been
redeemed, shall not exceed forty thousand (40,000). If a Grant
of Phantom Units is forfeited before its redemption, then the
number of Phantom Units attributable to such forfeited Grant is
available for Grants of Phantom Units subsequent to such
forfeiture.
Section 4. Plan Accounts. A bookkeeping account shall
be established for each Participant on books kept by Northern
Plains Natural Gas Company. Such account shall be unfunded and
shall set forth the initial Grant of Phantom Units to a
Participant, the Phantom Units Value of such Phantom Units at the
time of such Grant and such other information as may be necessary
for administration of such Grant.
Section 5. Provisions Regarding Phantom Units.
5.1. Grant of Phantom Units. Phantom Units may be granted
by the Committee on such terms and conditions as the Committee
may determine. A Phantom Unit shall be a bookkeeping credit
equal in value to the Phantom Unit Value at the time of grant.
5.2. Redemption. A Grant of Phantom Units shall be
redeemed according to the provisions of the Grant Agreement.
5.3. Redemption Payment. Upon redemption of a Grant of
Phantom Units, Northern Plains Natural Gas Company will pay or
cause to be paid to the Participant a Redemption Payment in
Common Units of the Partnership or in cash, or a combination
thereof, as determined in the sole discretion of the Committee.
The Committee shall have final discretion in determining the
method and form of the Redemption Payment. The number of Common
Units of the Partnership paid pursuant to a redemption shall be
determined using the value of a Redemption Payment attributable
to the number of Phantom Units redeemed and the closing price of
a Common Unit as reported on the New York Stock Exchange on the
Redemption Date. Subject to applicable law, such Common Units of
the Partnership shall be unrestricted and freely transferable,
without limitation.
5.4. Participants Not Shareholders or Unitholders.
(1) The existence of the Plan and Grants of Phantom
Units do not restrict the right or power of the Partnership
or Northern Plains Natural Gas Company to effect any
organizational actions, including, but not limited to,
issuance of securities, changes of capital structure, and
mergers or other reorganizations. Participants will not
have any rights of equity or ownership in either the
Partnership or Northern Plains Natural Gas Company as a
result of receiving or holding Grants of Phantom Units.
(2) If an event occurs which results in the withdrawal
of Northern Plains Natural Gas Company pursuant to the
provisions of the Partnership Agreement (an "Event of
Withdrawal"), then within thirty (30) days of an Event of
Withdrawal all unpaid Grants of Phantom Units shall become
fully redeemable and surrendered to Northern Plains Natural
Gas Company by each Participant, and shall be canceled;
provided, however, each Participant (or the Participant's
estate in the event of death) shall receive a Redemption
Payment for such Phantom Units from Northern Plains Natural
Gas Company pursuant to the provisions of the underlying
Grant Agreement, using as the Determination Date the date of
Event of Withdrawal as determined by the Committee.
Section 6. No Right of Employment. Neither the
adoption of the Plan nor a Grant of Phantom Units or crediting of
amounts with respect thereto shall confer on any person the right
to continued employment by Northern Plains Natural Gas Company,
or affect in any way the right of Northern Plains Natural Gas
Company to terminate its employment of a person at any time.
Section 7. Prohibition Against Assignment or
Encumbrance. No right, title, interest or benefit hereunder
shall ever be transferable or liable for or charged with any of
the torts or obligations of a Participant or any person claiming
under a Participant, or be subject to seizure by any creditor of
a Participant or any person claiming under a Participant. No
Participant or any person claiming under a Participant shall have
the power to anticipate or dispose of any right, title, interest
or benefit hereunder in any manner until the same shall have been
actually distributed free and clear of the terms of the Plan.
Section 8. Amendment and Termination of Plan.
8.1. Amendment of Plan. The Board shall have the right to
alter or amend the Plan or any part thereof from time to time,
except that the Board shall not make any alteration or amendment
which would impair the rights of a Participant without that
Participant's consent with respect to amounts, rights or
provisions theretofore granted.
8.2. Termination of Plan. Notwithstanding any other
provision of the Plan to the contrary, the Board may, in its sole
discretion, terminate the Plan at any time, except that
termination of the Plan shall not impair the rights of a
Participant without the Participant's consent. If not earlier
terminated under the provisions of this Section 8, the Plan shall
terminate as of the Plan Termination Date.
Section 9. Source of Payments. The Plan shall constitute
an unfunded, unsecured obligation of Northern Plains Natural Gas
Company to make Redemption Payments according to the provisions
of the Plan from its general assets. Neither the establishment
of the Plan nor the allocation of Phantom Units or making
bookkeeping credits to Participant accounts with respect thereto
shall be deemed to create a trust. By virtue of being a
Participant in the Plan, no Participant shall have any security
or other interest in any assets or equity of the Partnership or
Northern Plains Natural Gas Company. A Participant, his or her
beneficiary and any other person or persons having or claiming a
right to payments hereunder or to any interest in Phantom Units
or this Plan shall rely solely on the unsecured promise of
Northern Plains Natural Gas Company set forth herein, and nothing
in this Plan shall be construed to give a Participant,
beneficiary or any other person or persons any right, title,
interest or claim in or to any specific asset, fund, reserve,
account or property of any kind whatsoever owned by the
Partnership or Northern Plains Natural Gas Company, or in which
either of them may have any right, title or interest now or in
the future; but a Participant shall have the right to enforce a
claim arising under the Plan against Northern Plains Natural Gas
Company in the same manner as any unsecured creditor.
Section 10. Plan Binding. This Plan shall be binding upon
Northern Plains Natural Gas Company, its successors and assigns.
Northern Plains Natural Gas Company shall not be a party to any
merger, consolidation or reorganization, unless and until the
Plan and Northern Plains Natural Gas Company's obligations
hereunder shall be expressly assumed by its successor or
successors.
Section 11. Administration of Plan.
11.1. Committee Powers and Duties. The Committee, in good
faith, shall supervise the administration and enforcement of the
Plan according to the terms and provisions hereof and shall have
the sole discretionary authority and all powers necessary to
accomplish these purposes, including, but not by way of
limitation, the right, power, authority and duty:
1) to make rules, regulations and procedures for the
administration of the Plan which are not inconsistent with
the terms and provisions hereof, provided such rules,
regulations and procedures are evidenced in writing and
copies thereof are delivered to Northern Plains Natural Gas
Company;
2) to construe and interpret all terms, provisions,
conditions and limitations of the Plan;
3) to correct any defect, supply any omission, construe any
ambiguous or uncertain provisions, or reconcile any
inconsistency that may appear in the Plan, in such manner
and to such extent as it shall deem expedient to carry the
Plan into effect;
4) to employ and compensate and delegate responsibilities
to such accountants, attorneys, investment advisors and
other agents and persons as the Committee may deem necessary
or advisable in the proper and efficient administration of
the Plan;
5) to determine all questions and issues relating to
eligibility;
6) to determine the amount, manner and time or payment of
any benefits under the Plan and to prescribe procedures to
be followed by Participants in obtaining benefits;
7) to cause to be prepared, filed and distributed, in such
manner as the Committee determines to be appropriate, such
information and material as is required by the reporting and
disclosure requirements of applicable statute or regulation;
and
8) to make a determination as to the right of any person to
receive an amount payable under the Plan.
11.2. Northern Plains Natural Gas Company to Supply
Information. Northern Plains Natural Gas Company shall supply or
cause to be supplied full and timely information to the Committee
relating to Participants and such pertinent facts as the
Committee may require. When making a determination in connection
with the Plan, the Committee shall be entitled to rely upon the
aforesaid information furnished by Northern Plains Natural Gas
Company.
11.3. Reliance. The Committee and the Board shall not
be liable for any decision or action taken in good faith in
connection with the administration of the Plan. Without limiting
the generality of the foregoing, any such decision or action
taken by the Board or the Committee in reliance upon any
information supplied to them by Northern Plains Natural Gas
Company, Northern Plains Natural Gas Company's legal counsel, or
by Northern Plains Natural Gas Company's independent accountants
in connection with the administration of the Plan shall be deemed
to have been taken in good faith.
Section 12. Governing Law. This Plan shall be subject to,
and governed by, the laws of the State of Nebraska without regard
to conflict of law principles.
Section 13. Construction. In the event any parts of this
Plan are found to be void, the remaining provisions of this Plan
shall nevertheless be binding with the same effect as though the
void parts were deleted.
Section 14. Withholding. Any payment provided for under
the Plan shall be made by Northern Plains Natural Gas Company as
provided herein and shall be reduced by any amount required to be
withheld by Northern Plains Natural Gas Company under applicable
local, state or federal withholding requirements.
Section 15. Definitions. For the purposes of this Plan,
the terms defined below shall have the following meanings:
"Common Units" or a " Common Unit" of the Partnership shall
have the same meaning as "Common Unit" is defined in the
Partnership Agreement.
"Determination Date" means the date as of which a 1) Phantom
Unit Value, 2) a value equal to the closing price of a Common
Unit on the New York Stock Exchange (NYSE), or 3) other values
specified by the Committee for administration of the Plan, is
calculated.
"GP Distribution Rate" means the indicated annual
distribution to the general partners of the Partnership based on
the most recently declared distribution to limited partners of
the Partnership divided by the number of equivalent units
represented by such general partners' interest in the
Partnership, as determined by the Committee.
"Distribution Yield" means the indicated annual Common Unit
distribution rate divided by the closing price of a Common Unit
as reported on the New York Stock Exchange on a Determination
Date, as determined by the Committee.
"Grant" means an award of Phantom Units pursuant to a Grant
Agreement.
"Grant Agreement" means a written agreement making a Grant
of Phantom Units to a Participant.
"Phantom Unit" shall mean the interest granted to a
Participant pursuant to a Grant made by the Committee pursuant to
the provisions of the Plan.
"Phantom Unit Value" for a single Phantom Unit is the GP
Distribution Rate divided by the Distribution Yield.
"Participant" shall mean an eligible employee of Northern
Plains Natural Gas Company who has been selected by the Committee
to participate in the Plan and who, with Northern Plains Natural
Gas Company, has entered into a Grant Agreement.
"Partnership" shall mean the limited partnership formed and
continued pursuant to the Partnership Agreement; presently, as of
the effective date of this Plan, Northern Border Partners, L.P.
"Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership Of Northern Border Partners,
L.P., as may be amended from time to time.
"Permanent Disability" shall mean an injury or illness to or
of a Participant for which the Committee makes a determination
that the Participant is permanently and totally unable to perform
his or her duties for the Participant's employer as a result of
any medically determinable physical or mental impairment as
supported by a written medical opinion satisfactory to the
Committee by a physician selected by the Committee, or if
earlier, the date the Participant becomes entitled to receive
long term disability benefits under the long term disability plan
maintained or provided by the Participant's employer for its
employees generally.
"Plan Termination Date" shall mean the earlier date of a
termination of the Plan subject to the provisions of Section 8.2
of the Plan or December 31, 2004.
"Redemption Date" shall mean the date specified in a Grant
Agreement for redemption of the Grant of Phantom Units.
"Redemption Payment" shall mean a payment equal to the
product of the Phantom Unit Value as of the Determination Date
multiplied by the number of the Phantom Units being redeemed plus
the amount of cash distributions credited to a Participant's
account pursuant to the applicable provisions of the underlying
Grant Agreement or according to the provisions of the Plan.
