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
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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
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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.
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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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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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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