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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
Investors in NorthWestern Corporation can access reports of earnings and dividend growth: SEC Filings... Page 1 of 73 Case 1:07-cv-00114-JJF Document 21-6 Filed 04/09/2007 Page 2 of 74
NORTHWESTERN CORP filed this 8-K on 04/26/2006.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 25, 2006
NorthWestern Corporation
(Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation) 0-692 (Commission File Number) 46-0172280 (IRS Employer Identification No.) 57104 (Zip Code)
125 South Dakota Avenue Sioux Falls, South Dakota (Address of principal executive offices) (605) 978-2908 (Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Investors in NorthWestern Corporation can access reports of earnings and dividend growth: SEC Filings... Page 2 of 73 Case 1:07-cv-00114-JJF Document 21-6 Filed 04/09/2007 Page 3 of 74
Item 1.01 Entry into a Material Definitive Agreement. Northwestern Corporation (the "Company"), a Delaware corporation, announced that it has entered into an Agreement and Plan of Merger, dated as of April 25, 2006 (the "Merger Agreement"), with Babcock & Brown Infrastructure Limited, an Australian public company ("Parent"), BBI US Holdings Pty Ltd., an Australian company and a direct wholly-owned subsidiary of Parent ("Holding Company"), BBI US Holdings II Corp., a Delaware corporation and direct wholly-owned direct subsidiary of Holding Company ("Holdings"), BBI Glacier Corp., a Delaware corporation and direct wholly-owned subsidiary of Holdings ("Sub"), pursuant to which Sub will merge with and into the Company (the "Merger"), with the Company continuing as the surviving corporation. Pursuant to the Merger Agreement, at the effective time of the Merger, each outstanding share of common stock, par value $.01 per share, of the Company (the "Shares"), other than any Shares owned by the Company, Parent, Holding Company, Holdings or Sub or any of their respective subsidiaries, or by any stockholders who are entitled to and who properly exercise appraisal rights under Delaware law, shall be canceled and shall be converted automatically into the right to receive $37.00 in cash, without interest. The consummation of the Merger is subject to the satisfaction or waiver of closing conditions applicable to both Parent and the Company, including the termination or expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the receipt of required regulatory approvals and the approval of the transaction by the stockholders of the Company. The Merger Agreement also contains customary representations, warranties and covenants of both Parent and the Company. Immediately prior to the execution of the Merger Agreement, the Company and LaSalle Bank National Association, a national banking association, as rights agent (the "Rights Agent"), entered into an amendment (the "Rights Agreement Amendment") to the Rights Agreement, dated as of December 5, 2005 (the "Rights Agreement"), which provides that neither the execution of the Merger Agreement nor the consummation of the Merger will trigger the provisions of the Rights Agreement. The Rights Agreement Amendment is further described in Item 3.03 below. The foregoing descriptions of the Merger Agreement and Rights Agreement Amendment do not purport to be complete and are qualified in their entirety by reference to the Merger Agreement and the Rights Agreement Amendment, which are filed as exhibits hereto, and are incorporated herein by reference. 2
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Item 3.03 Material Modification to Rights of Security Holders Immediately prior to the execution of the Merger Agreement, the Company and the Rights Agent entered into the Rights Agreement Amendment, which provides that neither the execution of the Merger Agreement nor the consummation of the Merger will trigger the provisions of the Rights Agreement. In particular, the Rights Agreement Amendment provides the following: (i) neither Parent, Holding Company, Holdings, Sub, nor any of their respective affiliates or associates, shall be deemed to be an "Acquiring Person," (ii) neither a Flip-In Event, an event described in clauses (a) (i), (ii), or (iii) of Section 13 of the Rights Agreement, a Distribution Date, nor a Stock Acquisition Date shall be deemed to have occurred and (iii) no holder of any Rights shall be entitled to exercise such Rights under, or be entitled to any rights pursuant to, Sections 3(a), 7(a), 11(a) or 13 of the Rights Agreement, in each of (i), (ii) and (iii) above, by reason of the approval, execution or delivery of the Merger Agreement or any amendments thereof or the commencement or, prior to termination of the Merger Agreement, the consummation, of any of the transactions contemplated by the Merger Agreement, including the Merger. The Rights Agreement Amendment also redefines "Expiration Date" to include the time immediately prior to the effective time of the Merger. The foregoing description of the Rights Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement Amendment, which is filed as an exhibit hereto, and is incorporated herein by reference. Item 8.01 Other Events On April 25, 2006, the Company issued a press release announcing the execution of the Merger Agreement, which is filed as an exhibit hereto and is incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (c) Exhibits 2.1 4.1 99.1 Agreement and Plan of Merger, dated as of April 25, 2006, among Babcock & Brown Infrastructure Limited, BBI US Holdings Pty Ltd., BBI US Holdings II Corp., BBI Glacier Corp. and Northwestern Corporation. Amendment No.1, dated as of April 25, 2006, to the Rights Agreement, dated as of December 5, 2005, between Northwestern Corporation and LaSalle National Bank. Press Release, dated April 25, 2006, of Northwestern Corporation, announcing the Agreement and Plan of Merger. 3
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Investors in NorthWestern Corporation can access reports of earnings and dividend growth: SEC Filings... Page 4 of 73 Case 1:07-cv-00114-JJF Document 21-6 Filed 04/09/2007 Page 5 of 74
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. NorthWestern Corporation
By:
/s/ Thomas J. Knapp Vice President, General Counsel and Corporate Secretary
Date: April 26, 2006 4
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Investors in NorthWestern Corporation can access reports of earnings and dividend growth: SEC Filings... Page 5 of 73 Case 1:07-cv-00114-JJF Document 21-6 Filed 04/09/2007 Page 6 of 74
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF DOCUMENT
2.1 4.1 99.1
Agreement and Plan of Merger, dated as of April 25, 2006, among Babcock & Brown Infrastructure Limited, BBI US Holdings Pty Ltd., BBI US Holdings II Corp., BBI Glacier Corp. and Northwestern Corporation. Amendment No.1, dated as of April 25, 2006, to the Rights Agreement, dated as of December 5, 2005, between Northwestern Corporation and LaSalle National Bank. Press Release, dated April 25, 2006, of Northwestern Corporation, announcing the Agreement and Plan of Merger. 5 Exhibit 2.1
EXECUTION COPY AGREEMENT AND PLAN OF MERGER among BABCOCK & BROWN INFRASTRUCTURE LIMITED, BBI US HOLDINGS PTY LTD., BBI US HOLDINGS II CORP., BBI GLACIER CORP. and NORTHWESTERN CORPORATION Dated as of April 25, 2006
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER Certain Definitions The Merger Closing Effective Time Effects of the Merger Certificate of Incorporation and Bylaws Directors Officers
1 1 8 9 9 9 9 10 10 10 10 12 14 15 15 26 30 30 33 34 34 35 37 37 39 39 41 41
SECTION 1.01 SECTION 1.02 SECTION 1.03 SECTION 1.04 SECTION 1.05 SECTION 1.06 SECTION 1.07 SECTION 1.08 ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES Effect on Capital Stock Exchange of Certificates Disputed Claims Reserve
SECTION 2.01 SECTION 2.02 SECTION 2.03 ARTICLE III
REPRESENTATIONS AND WARRANTIES Representations and Warranties of the Company Representations and Warranties of Parent Group
SECTION 3.01 SECTION 3.02 ARTICLE IV
COVENANTS Conduct of Business of the Company Control of Other Party's Business
SECTION 4.01 SECTION 4.02 ARTICLE V
ADDITIONAL AGREEMENTS Preparation of Proxy Statement; Stockholders' Meeting No Solicitation Access to Information; Confidentiality Regulatory Matters; Reasonable Best Efforts Fees and Expenses Indemnification; Directors' and Officers' Insurance Public Announcements Transfer Taxes
SECTION 5.01 SECTION 5.02 SECTION 5.03 SECTION 5.04 SECTION 5.05 SECTION 5.06 SECTION 5.07 SECTION 5.08
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SECTION 5.09
State Takeover Laws i
41
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Page
SECTION 5.10 SECTION 5.11 SECTION 5.12 SECTION 5.13 SECTION 5.14 SECTION 5.15 SECTION 5.16 ARTICLE VI
Notification of Certain Matters Employees Delisting Rule 16b-3 Financing No Agreements with Company Stockholders Letter of Credit
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CONDITIONS Conditions to Each Party's Obligation to Effect the Merger Additional Conditions to Obligations of Parent Group Additional Conditions to Obligations of the Company
SECTION 6.01 SECTION 6.02 SECTION 6.03 ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER Termination Effect of Termination Amendment Extension; Waiver
SECTION 7.01 SECTION 7.02 SECTION 7.03 SECTION 7.04 ARTICLE VIII
GENERAL PROVISIONS Nonsurvival of Representations and Warranties Notices Interpretation Counterparts Entire Agreement; Third Party Beneficiaries Governing Law Severability Assignment Submission To Jurisdiction; Waivers Enforcement
SECTION 8.01 SECTION 8.02 SECTION 8.03 SECTION 8.04 SECTION 8.05 SECTION 8.06 SECTION 8.07 SECTION 8.08 SECTION 8.09 SECTION 8.10 Exhibit A
Letter of Credit ii
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of April 25, 2006, is among Babcock & Brown Infrastructure Limited, an Australian public company with company number ACN 100 364 234 ("Parent"), BBI US Holdings Pty Ltd., an Australian Company with company number ACN 119 325 950 and a direct wholly-owned subsidiary of Parent ("Holding Company"), BBI US Holdings II Corp., a Delaware corporation and direct wholly-owned subsidiary of Holding Company ("Holdings"), BBI Glacier Corp., a Delaware corporation and direct wholly-owned subsidiary of Holdings ("Sub"), and Glacier Corporation, a Delaware corporation (the "Company"). WHEREAS, the respective boards of directors of each of Parent, Holding Company, Holdings, Sub and the Company have (i) approved and declared advisable this Agreement, the merger of Sub with and into the Company on the terms and subject to the conditions set forth in this Agreement (the "Merger") and the other transactions contemplated hereby and (ii) determined that the Merger and the other transactions contemplated by this Agreement are fair to, and in the best interest of, their respective corporations and stockholders. WHEREAS, each of Parent, Holding Company, Holdings, Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound hereby, Parent, Holding Company, Holdings, Sub and the Company hereby agree as follows: ARTICLE I THE MERGER SECTION 1.01 below. (a) "1935 Act" means the Public Utility Holding Company Act of 1935, as amended, including the rules and regulations promulgated thereunder. (b) "affiliate" of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person. For purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) "Affiliate Group" means any affiliated group with the meaning of Section 1504(a) of the Code filing a consolidated federal income tax Return, or any similar group filing a consolidated, combined, or unitary tax Return under a comparable provision of state, local or foreign law. Certain Definitions. As used in this Agreement, the following terms shall have the meanings indicated
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(d) (e)
"BEA" means the Bureau of Economic Analysis of the U.S. Department of Commerce. "beneficial ownership" or "beneficially own" shall have the meaning under Section 13(d) of the Exchange Act.
(f) "Benefit Plans" means, with respect to any person, each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan," as defined in Section 3(3) of ERISA and any bonus, deferred compensation, stock bonus, stock purchase, restricted stock, stock option, employment, termination, stay agreement or bonus, retiree medical or life insurance, change-in-control and severance plan, program, policy, arrangement and contract (whether written or unwritten) in effect on the date of this Agreement to which such person or its Subsidiary is a party, which is maintained or contributed to by such person, or with respect to which such person could incur material liability under Section 4069, 4201 or 4212(c) of ERISA or otherwise. (g) (h) (i) (j) time to time. (k) (l) (m) "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. "Code" means the Internal Revenue Service Code of 1986, as amended. "Company Board" means the board of directors of the Company and any committees thereof. "Blackstone" means The Blackstone Group L.P. "Business" means the businesses of the Company or its Subsidiaries. "Business Day" means any day on which banks are not required or authorized to close in the City of New York. "Charter Documents" means the Company's certificate of incorporation and bylaws, as such may be amended from
(n) "Company Common Stock" means the common stock, par value US$.01 per share, of the Company, together with the associated Company Rights. (o) "Company Credit Facility" means the Company's unsecured senior revolving credit facility in an aggregate principal amount of US$200 million pursuant to the Amended and Restated Credit Agreement, dated June 30, 2005, between the Company and the several lenders from time to time parties thereto. (p) "Company Preferred Stock" means the preferred stock, par value US$.01 per share, of the Company.
(q) "Company Rate Review" means the requirement set forth in the Consent Order and Section 4(a) of the Settlement Agreement, pursuant to which not later than September 2
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30, 2006, based on a 2005 test year, the Company shall file complete documents complying with the minimum electric and gas rate filing standards provided in ARM 38.5.106 through 38.5.195. (r) "Company Rights" means the rights distributed to the holders of Company Common Stock pursuant to the Company Rights Agreement. (s) "Company Rights Agreement" means the Rights Agreement, dated as of December 5, 2005, between the Company and LaSalle Bank National Association, as Rights Agent. (t) "Company Stockholders" means the holders of the outstanding shares of Company Common Stock.
(u) "Company Stockholder Approval" means the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock required to adopt this Agreement. (v) Company. (w) (x) (y) "Credit Suisse" means Credit Suisse Securities (USA) LLC. "Deferred Director Plan" means the Company's 2005 Deferred Compensation Plan for Non-Employee Directors. "DGCL" means the Delaware General Corporation Law. "Confidentiality Agreement" means the letter agreement, dated December 16, 2005 between Parent and the
(z) "Disputed Claims Reserve" has the meaning assigned to such term in the Reorganization Plan. Such Disputed Claim Reserve is held by LaSalle Bank National Association. (aa) "Disputed Claims Reserve Shares" means, collectively, shares of Company Common Stock held immediately prior to the Effect Time in the Disputed Claims Reserve. (bb) "Dissenting Shares" means any shares of Company Common Stock that are outstanding immediately prior to the Effective Time, the holders of which shall have properly delivered a written demand for payment of the fair cash value of such shares of Company Common Stock in accordance with Section 262 of the DGCL. (cc) "DSUs" means deferred stock units entitling the holder thereof to shares of Company Common Stock.
(dd) "Electronic Data Room" means the electronic data room maintained on IntraLinks as of 4:30 P.M. EST on April 24, 2006. An index of the contents of such Electronic Data Room is disclosed in Section 1.01(dd) of the Company Disclosure Letter. 3
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(ee)
"Employee Restricted Stock Plan" means the Company's 2005 Employee Restricted Stock Grant Plan.
(ff) "Environmental Laws" means all Laws as in effect on or prior to the date hereof relating to the protection of human health, safety, or welfare or the environment, including any emission, discharge, generation, storage, treatment, disposal, abatement, Release, threatened Release, reporting, licensing, permitting, investigation, cleanup, mitigation, remediation, transportation, or other handling of any Hazardous Materials, including the following federal Laws as amended and their state counterparts: (i) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq.; the Clean Water Act, 33 U.S.C. §§ 1251, et seq.; the Clean Air Act, 42 U.S.C. §§ 7401, et seq.; and the Toxic Substances Control Act, 15 U.S.C. §§ 2601, et. seq.; and (ii) all other requirements pertaining to protection of air, surface water, groundwater or land and subsurface, natural resources, and related human health, safety, or welfare. (gg) "Environmental Liabilities and Costs" means all damages, natural resource damages, claims, losses, expenses, costs, obligations, and liabilities (collectively, "Environmental Losses") imposed by, under or pursuant to Environmental Laws, including all Environmental Losses related to Remedial Actions, and all fees, compliance costs, disbursements, penalties, fines and expenditures necessary to cause property, the Company, any Significant Subsidiary or the Business to be in compliance with the requirements of Environmental Laws. (hh) "Environmental Permits" means any federal, state or local permit, license, registration, consent, order, administrative consent order, certificate, approval, waiver or other authorization necessary for the conduct of the Business as currently conducted under any applicable Environmental Law. (ii) (jj) promulgated thereunder. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" means the Securities Exchange Act of 1934, as amended, including the rules and regulations
(kk) "Expenses" means all out-of-pocket expenses (including, without limitation, all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including (i) the preparation, printing, filing and mailing of the Proxy Statement and the solicitation of the Company Stockholder Approval, (ii) the preparation and filing of all applications, notices, registrations, declarations, petitions and filings with any Governmental Entity in connection with the Required Statutory Approvals and (iii) all other matters related to the transactions contemplated hereby. (ll) "FERC" means the Federal Energy Regulatory Commission. 4
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"Final Order" means any action by a relevant Governmental Entity that has not been reversed, stayed, enjoined, set (mm) aside, annulled or suspended, with respect to which any waiting period (a "Final Order Waiting Period") prescribed by Law before the transactions contemplated hereby may be consummated has expired, and as to which all conditions to the consummation of such transactions prescribed by Law have been satisfied. (nn) "GAAP" means generally accepted accounting principles of the United States.
(oo) "Governmental Entity" means any national, state, municipal, local or foreign government, any instrumentality, subdivision, court, administrative agency or commission or other authority thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority. (pp) "Hazardous Materials" means any substance that (a) is defined, listed, identified or otherwise regulated under any Law, as in effect on or prior to the date hereof, relating to the protection of the environment (including "hazardous" and "toxic" substances and wastes, radioactive substances including radon gas, polychlorinated-biphenyls, asbestos and petroleum), or (b) requires investigation, remediation, or other protective measures under such Law. (qq) "HSR Act" means the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, and the rules and regulations promulgated thereunder. (rr) "IISA" means the International Investment Survey Act of 1976, now known as the International Investment and Trade Services Survey Act. (ss) "Intellectual Property Right" means any trademark, service mark, trade name, copyright, patent, software license, other database, invention, trade secret, know-how (including any registrations or applications for registration of any of the foregoing) or any other similar type of proprietary intellectual property right. (tt) "IRS" means the Internal Revenue Service.
(uu) "known," "knowingly" or "Knowledge" means, with respect to the Company, the actual knowledge of the persons listed on Schedule 1.01(uu). (vv) "known," "knowingly" or "Knowledge" means, with respect to Parent Group, the actual knowledge of the following persons: Steven Boulton, Jeffrey Kendrew, Michael Ryan and Michael Garland. (ww) "Laws" mean all (A) statutes, laws, rules, regulations, ordinances or codes of any Governmental Entity and (B) orders, decisions, injunctions, judgments, awards and decrees of any Governmental Entity. (xx) "Liens" means all mortgages, liens, pledges, encumbrances, charges and security interests. 5
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"Material Adverse Effect" means, with respect to the Company, an effect, event, development or change (i) which (yy) is materially adverse to the business, assets, properties, financial condition, or results of operations of the Company and its Subsidiaries, taken as a whole, other than any effect, event, development or change arising out of or resulting from (A) changes or conditions in the U.S. or global economy or capital or financial markets generally, including changes in interest or exchange rates, (B) general changes to or developments in the industries in which the Company and its Subsidiaries operate (except to the extent that such changes or developments have had a disproportionate effect on the Company and its Subsidiaries, taken as a whole, as compared to other persons in the industries in which the Companies and its Subsidiaries operate), (C) changes in general legal, tax, regulatory, political or economic conditions affecting companies in general, (D) changes in GAAP (or any interpretation thereof) or Regulation S-X of the SEC, (E) the execution, announcement or performance of, or compliance with, this Agreement or the consummation of the transactions contemplated herein, including the impact thereof on relationships, contractual or otherwise, with Governmental Entities, customers, suppliers, licensors, distributors, partners or employees, (F) the commencement, occurrence, continuation or intensification of any war, sabotage, armed hostilities or acts of terrorism that does not directly affect the assets or properties of, or the communities served by, the Company and its Subsidiaries, taken as a whole, (G) any change in the Company's stock price or trading volume on the NASDAQ National Market or (H) any matter disclosed in (x) the Company SEC Documents prior to the date of this Agreement, (y) the Company Disclosure Letter, including in each case, any adverse effect or adverse event, development or change that occurs after the date of this Agreement but that arises out of or results from any such matter or (z) the Electronic Data Room (provided, that in the case of (x), (y) and (z), the extent that the magnitude and significance of such adverse effect or adverse event, development or change was reasonably discernable to Parent prior to the date hereof based on the disclosure made to Parent in the Company SEC Documents, the Company Disclosure Letter or the Electronic Data Room, as the case may be), or (ii) that prevents or materially delays (to a date beyond the Final Date) the consummation of the Merger and the other transactions contemplated hereby, or prevents or materially delays (to a date beyond the Final Date) the ability of the Company to perform its obligations hereunder. (zz) (aaa) (bbb) (ccc) "MPSC" means the Montana Public Service Commission. "NASDAQ" means the National Association of Securities Dealers Automated Quotations. "NLRB" means the National Labor Relations Board. "NPSC" means the Nebraska Public Service Commission.
(ddd) "other party" means, with respect to the Company, Parent Group, and with respect to Parent Group, the Company, unless the context otherwise requires. (eee) "Parent Group" means collectively Parent, Holding Company, Holdings and Sub. 6
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"Parent Material Adverse Effect" means an effect, event, development or change which prevents or materially (fff) delays (to a date beyond the Final Date) the consummation of the Merger and the other transactions contemplated hereby or prevents or materially delays the ability of Parent Group to perform their respective obligations hereunder. (ggg) "person" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in the Exchange Act). (hhh) "Proxy Statement" means, collectively, the preliminary and definitive proxy statements (as amended or supplemented from time to time) relating to the Company Stockholder Approval. (iii) "Release" means any releasing, spilling, disposing or other discharging of Hazardous Materials into the environment (including air, soil, subsurface, surface water and groundwater). (jjj) "Remedial Action" means all actions required by any Governmental Entity pursuant to the Environmental Laws to investigate, monitor, clean up, remove, treat or in any other way remediate any Release. (kkk) "Reorganization Plan" means the Company's Second Amended and Restated Plan of Reorganization under Chapter 11 of the Bankruptcy Code, dated August 18, 2004, affirmed by the United States Bankruptcy Court for the District of Delaware on October 19, 2004. (lll) "Representatives" means with respect to any party, any director, officer or employee of, or any investment banker, attorney or other advisor or representative of such party. (mmm) "Restricted Shares" means each share of Company Common Stock that is subject to restrictions on ownership, transferability, or vesting or other lapse restrictions pursuant to the Special Recognition Plan or the Employee Restricted Stock Plan. (nnn) to Taxes. (ooo) (ppp) (qqq) thereunder. (rrr) "Senior Notes" means the Senior Secured Notes, 5.875% Series A due 2014, limited in aggregate principal amount of US$225 million and the Senior Secured Notes, 5.875% Exchange Series A due 2014, limited in aggregate principal amount of US$225 million, issued pursuant to the Senior Note Indenture, dated as of November 1, 2004, between the 7 "SDPUC" means the South Dakota Public Utilities Commission. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended, including the rules and regulations promulgated "Returns" means all federal, state, local and foreign returns, estimates, information statements and reports relating
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Company and U.S. National Bank Association, as trustee, as supplemented and amended by Supplemental Indenture No. 1 dated as of November 1, 2004. (sss) "Settlement Agreement" means that certain Stipulation and Settlement Agreement, dated as of July 8, 2004, by and among the Company, the MPSC and the Montana Consumer Counsel. (ttt) "Special Recognition Plan" means the Company's 2004 Special Recognition Grant Restricted Stock Plan.
(uuu) "Statement of Factors" means that certain Statement of Factors for Evaluating Proposals to Acquire Northwestern Energy issued by the MPSC as of October 18, 2004. (vvv) "Stockholders' Meeting" means a meeting of Company Stockholders (which may be the regular annual meeting) for the purposes of obtaining the Company Stockholder Approval. (www) "Subsidiary," when used with respect to any party, means any corporation or other organization, whether incorporated or unincorporated, (i) of which such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interests in such partnership) or (ii) at least a majority of the securities or other interests of which, having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization, is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries. (xxx) "Supplemental Dividend" means an amount in cash equal to the product of: (A) the total number of days between the eighteen (18) month anniversary of the date of this Agreement and the date on which such dividend is declared by the Company Board and (B) the product of (i) $1,369,324,350 and (ii) the quotient of 3.50% and 360. (yyy) "Taxes" means any and all federal, state, local and foreign taxes, including, without limitation, gross receipts, income, profits, sales, use, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, assessments, governmental charges and duties together with all interest, penalties and additions imposed with respect to any such amounts. (zzz) "Transfer Taxes" means all stock transfer, real estate transfer, property, documentary, stamp, recording and other similar Taxes incurred in connection with the transactions contemplated by this Agreement. Other capitalized terms defined elsewhere in this Agreement and not defined in this Section 1.01 shall have the meanings assigned to such terms in this Agreement. SECTION 1.02 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, Sub shall be merged with and 8
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into the Company at the Effective Time (as defined below). Following the Effective Time, the separate corporate existence of Sub shall cease and the Company shall continue as the surviving corporation (the "Surviving Corporation") and shall continue its corporate existence under the laws of the State of Delaware and shall succeed to and assume all of the rights and obligations of the Company and Sub in accordance with the DGCL. As a result of the Merger, the Surviving Corporation shall become a wholly-owned indirect subsidiary of Parent. The effects and consequences of the Merger shall be as set forth in Section 1.05. SECTION 1.03 Closing. The closing of the Merger (the "Closing") shall take place at 8:00 a.m. local time on a date to be specified by the parties hereto, which shall be no later than the second Business Day after satisfaction or, to the extent permitted by this Agreement and applicable Law, waiver of the conditions set forth in Article VI of this Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by this Agreement and applicable Law, waiver of those conditions), at the offices of LeBoeuf, Lamb, Greene & MacRae LLP, 125 West 55th Street, New York, NY 10019, unless another time, date or place is agreed to in writing by Parent and the Company. The date on which the Closing occurs is referred to in this Agreement as the "Closing Date." SECTION 1.04 Effective Time. Subject to the provisions of this Agreement, the parties shall prepare, and on the Closing Date the parties shall file with the Delaware Secretary of State, a certificate of merger or other appropriate documents as provided in Section 251 of the DGCL (in any such case, the "Certificate of Merger") executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL to effectuate the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Delaware Secretary of State, or at such later time as the parties hereto may agree and specify in the Certificate of Merger (the time and date the Merger becomes effective being hereinafter referred to as the "Effective Time"). SECTION 1.05 Effects of the Merger. The Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, immunities, powers, franchises and authority of the Company and Sub will be vested in the Surviving Corporation, and all debts, liabilities and duties of the Company and Sub will become the debts, liabilities and duties of the Surviving Corporation. SECTION 1.06 Certificate of Incorporation and Bylaws.
(a) Subject to Section 5.06, the certificate of incorporation of Sub, as in effect immediately prior to the Effective Time, shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law. (b) Subject to Section 5.06, the bylaws of Sub as in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation, until thereafter changed or amended as provided therein or by applicable Law. 9
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Directors. From and after the Effective Time, the directors of Sub shall become the directors of the SECTION 1.07 Surviving Corporation and shall serve on the Surviving Corporation's board of directors until the earlier of their resignation or removal or until their respective successors are duly elected and qualified. SECTION 1.08 Officers. The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected or appointed or qualified. ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES SECTION 2.01 Effect on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent Group or the holders of any of the following securities: (a) Capital Stock of Sub. Each issued and outstanding share of capital stock of Sub shall be converted into and become one fully paid and nonassessable share of common stock, par value US$.01 per share, of the Surviving Corporation. (b) Cancellation of Treasury Stock and Parent Owned Stock. Each share of Company Common Stock that is owned by the Company as treasury stock and each share of Company Common Stock that is owned by Parent, Holding Company, Holdings or Sub, or any other Subsidiary of Parent, Holding Company or Holdings (collectively, the "Canceled Shares") shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor. (c) Conversion of Company Common Stock. Each share of Company Common Stock issued and outstanding (other than the Canceled Shares, Dissenting Shares (except as provided in paragraph (d) below), Disputed Claims Reserve Shares and Restricted Shares) shall be converted into the right to receive US$37.00 in cash, without interest (the "Merger Consideration"), less any required withholding taxes. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and declared but unpaid dividends, without interest, upon surrender of such certificate in accordance with, or as otherwise contemplated by, Section 2.02 of this Agreement. (d) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, Dissenting Shares shall not be converted into or represent the right to receive the Merger Consideration as provided in this Section 2.01. As of the Effective Time, the Dissenting Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of any Dissenting Shares shall be entitled only to such rights as 10
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are granted under Section 262 of the DGCL, except that all Dissenting Shares held by persons who fail to perfect or who effectively waive, withdraw or lose their rights as a dissenting shareholder in respect of such shares of Company Common Stock under Section 262 of the DGCL shall thereupon be deemed converted as of the Effective Time into the right to receive the Merger Consideration as provided in this Article II. (e) Warrants. Each holder (each, a "Warrantholder") of a warrant (each, a "Warrant") to purchase Company Common Stock shall be entitled to receive an amount (the "Warrant Consideration") in cash, without interest, equal to the product obtained by multiplying (x) the total number of shares of Company Common Stock issuable upon the exercise in full of such Warrant held by such Warrantholder by (y) the excess, if any, of the amount of the Merger Consideration over the exercise price per share of Company Common Stock under such Warrant (with the aggregate amount of such payment round up to the nearest cent), less any required withholding taxes. As of the Effective Time, all such Warrants shall no longer be outstanding and shall automatically be canceled and retired and shall expire and cease to exist and each Warrantholder shall cease to have any rights with respect thereto, except the right to receive the Warrant Consideration, without interest, upon the surrender of an original copy of the Warrant to the Paying Agent in accordance with Section 2.02(j). (f) Restricted Stock. Each Restricted Share that is issued and outstanding immediately prior to the Effective Time shall vest in full, become free of restrictions and shall be converted into the right to receive the Merger Consideration, less any required withholding taxes. As of the Effective Time, all such Restricted Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such Restricted Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest, upon surrender of such certificate in accordance with, or as otherwise contemplated by, Section 2.02 of this Agreement. (g) Deferred Stock Units. Each DSU which is outstanding immediately prior to the Effective Time shall automatically be converted into the right to receive from the Company or the Surviving Corporation (as applicable), at the time previously selected by the holder thereof pursuant to the terms of any deferral election made with respect to such DSU, an amount in cash equal to the product of (i) the number of shares of Company Common Stock subject to such DSU (including, without limitation, those shares corresponding to previously declared and paid dividends that resulted in an increase in the number of shares of Company Common Stock subject to DSUs) and (ii) the Merger Consideration, less any required withholding taxes, subject to the terms and conditions set forth in the Deferred Director Plan, including the terms and conditions with respect to distributions and timing of payment thereunder and in compliance with Section 409A of the Code. (h) Deferred Director Plan. All account balances under the Deferred Director Plan will be paid out in cash, less any required withholding taxes, by the Company or the Surviving Corporation (as applicable) to participants therein, at the time previously selected by the holder thereof pursuant to the terms of any deferral election made with respect to such account balance, subject to the terms and conditions set forth in the Deferred Director Plan, including the terms and conditions with respect to distributions and timing of payment thereunder and in compliance with Section 409A of the Code. 11
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Disputed Claim Reserve Shares. Each Disputed Claims Reserve Share shall be converted into the right to receive (i) the Merger Consideration (the aggregate amount of such consideration, the "Disputed Claims Merger Consideration"). As of the Effective Time, all Disputed Claims Reserve Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and all persons that, pursuant to the Reorganization Plan, would have been entitled to receive distribution of any Disputed Claims Reserve Shares shall instead be entitled to receive, from the Disputed Claims Reserve, the Merger Consideration therefore. SECTION 2.02 Exchange of Certificates.
(a) Paying Agent. Prior to the Effective Time, Parent Group shall designate a federally insured bank or trust company, reasonably acceptable to the Company, to act as paying agent in the Merger (the "Paying Agent") and, prior to the Effective Time, Parent Group shall enter into an agreement with Paying Agent, which agreement shall provide that Parent Group shall deposit with the Paying Agent, prior to the Effective Time, for the benefit of the holders of shares of Company Common Stock (other than the Disputed Claims Reserve Shares) and the Warrantholders, immediately available funds in an aggregate amount necessary for the payment of (i) the Merger Consideration (excluding the Disputed Claims Merger Consideration), (ii) the aggregate amount of cash dividends, if any, that (A) were declared after the date hereof and are expressly permitted hereunder to have been so declared, (B) have a record date prior to the Effective Time and (C) are unpaid at the Effective Time (such dividends, the "Outstanding Dividends") and (iii) the Warrant Consideration, upon surrender of certificates representing shares of Company Common Stock or an original copy of a Warrant, as the case may be, pursuant to this Section 2.02 (it being understood that any and all interest earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to Parent). Any cash deposited with the Paying Agent shall hereinafter be referred to as the "Exchange Fund." The agreement with the Paying Agent shall identify specific time limits by when the transmittal materials and cash are to be mailed to holders of Certificates (as defined below) as specified in paragraph (b) of this Section 2.02. (b) Exchange Procedures for Certificates. As of or promptly following the Effective Time, Parent, Holding Company and Holdings shall cause the Paying Agent to mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented shares of Company Common Stock (the "Certificates") whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.01, (i) a letter of transmittal in a form mutually agreed upon by Parent Group and the Company, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and (ii) instructions for effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Paying Agent, Parent, Holding Company, Holdings and the Surviving Corporation shall cause the Paying Agent to promptly pay, to the holder of such Certificate in exchange therefor the amount of cash into which the shares of Company Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 2.01 and the amount of Outstanding Dividends due thereon, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer 12
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of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, payment may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer. Until surrendered as contemplated by this Section 2.02, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the amount of cash, without interest, into which the shares of Company Common Stock theretofore represented by such Certificate shall have been converted pursuant to Section 2.01 and the amount of Outstanding Dividends due thereon. No interest will be paid or will accrue on the cash payable upon the surrender of any Certificate. (c) No Further Ownership Rights in Company Common Stock. All cash paid upon the surrender of Certificates in accordance with the terms of this Section 2.02 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article II. (d) Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to holders of Certificates for twelve (12) months after the Effective
Free Affidavit - District Court of Delaware - Delaware
| File Size: | 10,442.3 kB |
| Pages: | 378 |
| Date: | September 8, 2008 |
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| State: | Delaware |
| Category: | District Court of Delaware |
| Author: | unknown |
| Word Count: | 10,608 Words, 65,547 Characters |
| Page Size: | Letter (8 1/2" x 11") |
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