EXHIBIT 99
March 6, 2001
Xxxx Xxxxxx Capital Partners Ltd.
c/o Beacon Corporate Services, Ltd.
P.O. Box 972
Harbour House, 2nd Floor
Waterfront Drive
Road Town, Tortola BVI
Dear Sirs:
This letter sets forth the agreement of Xxxx Xxxxxx Capital Partners Ltd.
(the "Purchaser") and MDU Resources Group, Inc. (the "Company") regarding the
purchase by the Purchaser from the Company of the Company's common stock (the
"Common Stock") on the date hereof. The parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser of 358,429 shares
of the Company's Common Stock (the "Shares") for an aggregate purchase
price of $10,000,000, which purchase is being settled by the parties on the
date hereof.
2. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of Delaware. The Company has the requisite
corporate power and authority to enter into and perform this Agreement and
to issue and sell the Shares in accordance with the terms hereof. The
execution, delivery and performance of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of the
Company. This Agreement has been duly executed and delivered on behalf of
the Company by a duly authorized officer.
3. The Shares to be issued under this Agreement have been duly authorized for
issuance and sale by all necessary corporate action of the Company and,
when issued and delivered in accordance with the terms hereof against
payment of the consideration set forth herein, the Shares shall be validly
issued, fully paid and nonassessable.
4. The Company represents and warrants that (a) the Company has filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-3, Commission File Number 333-49472, which
includes a prospectus forming a part thereof, as amended and supplemented
(the "Prospectus") (such registration statement, as amended and
supplemented, shall be referred to hereinafter as the "Registration
Statement"); (b) the Company has filed a prospectus supplement to the
Registration Statement in connection with this transaction (the "Prospectus
Supplement"); and (c) the Shares are registered under the Registration
Statement. Copies of the Registration Statement and the Prospectus
Supplement, each as filed (and declared effective, if applicable) by the
Commission, are annexed hereto as Exhibits A and B, respectively.
5. The Company will use its best efforts to list the Shares of Common Stock
for trading on the New York Stock Exchange and the Pacific Exchange.
6. As of their respective dates, each of the documents incorporated by
reference in the Registration Statement and the Prospectus (the "Commission
Filings") complied in all material respects with the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission promulgated thereunder, and, as of the date
hereof, the Commission Filings, when read together with the other
information in the Prospectus, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
7. The Company will promptly notify the Purchaser of (a) any stop order or
other suspension of the effectiveness of the Registration Statement and (b)
the happening of any event as a result of which the prospectus included in
the Registration Statement includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
8. Except as otherwise required by applicable law or regulation or
requirements of the New York Stock Exchange or Pacific Exchange, the
Company may not issue a press release or otherwise make a public statement
or announcement with respect to the completion of the transaction
contemplated hereby without the prior consent of the Purchaser, which shall
not be unreasonably withheld.
9. The Company and the Purchaser acknowledge that they were introduced by
Ladenburg Xxxxxxx & Co. Inc. (the "Agent"). Purchaser shall be solely
responsible for all payments, commissions or other compensation payable or
claimed to be payable to such firm in connection with such introduction,
and Purchaser shall indemnify and hold harmless the Company in connection
therewith.
10. The Company and the Purchaser will indemnify the other party as provided in
Schedule A attached hereto. For purposes of said Schedule A, capitalized
terms used therein without definition shall have the same meanings therein
as are ascribed to said terms in this Agreement.
11. This Agreement shall be governed and construed in accordance with the
substantive laws of the State of New York without giving effect to the
conflicts of law principles thereunder. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof. This Agreement may be executed in two or more counterparts,
and by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
12. The Purchaser has the requisite power and authority to enter into and
perform this Agreement and to purchase the Shares in accordance with the
terms hereof. The execution, delivery and performance of this Agreement by
Xxxxxxxxx and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary action. This
Agreement has been duly executed and delivered on behalf of the Purchaser
by a duly authorized officer.
13. The Purchaser represents and warrants that it is not, and will not as a
result of its purchase of the Shares be a "Related Party," as defined in
Section 312 of the New York Stock Exchange's Listed Companies Manual.
14. If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
15. No provision of this Agreement may be amended other than by an instrument
in writing signed by the Company and the Purchaser and no provision hereof
may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought.
Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the Purchaser,
will constitute an Agreement between the Company and the Purchaser.
Very truly yours,
MDU RESOURCES GROUP, INC.
By: /s/Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Treasurer
and Chief Financial Officer
AGREED TO:
PURCHASER:
Xxxx Xxxxxx Capital Partners Ltd.
By: /s/Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Director
AGENT:
Ladenburg Xxxxxxxx & Co. Inc.
By: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Managing Director
SCHEDULE A
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
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harmless the Purchaser, the Agent, and each person, if any, who controls
the Purchaser or the Agent within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "Securities Act"); or Section 20(a)
of the Securities Exchange Act of 1934 , as amended (the "Exchange Act");
from and against any losses, claims, damages, liabilities, costs and
expenses (including, without limitation, reasonable costs of defense and
investigation and all attorneys' fees and expenses) to which the Purchaser
or the Agent and each person, if any, who controls the Purchaser or the
Agent may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages, liabilities and expenses (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated by
reference, in the Registration Statements relating to Shares being sold to
the Purchaser (including the prospectus dated November 17, 2000 (the
"Prospectus"), the prospectus supplement dated March 5, 2001 (the
"Prospectus Supplement"), which is a part of the Registration Statement),
or any amendment or supplement to the Registration Statement, or (ii) the
omission or alleged omission to state in the Registration Statement or any
document incorporated by reference in the Registration Statement, a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were
made, not misleading; provided, that insofar as such losses, claims,
damages, liabilities, costs and expenses are caused by any such untrue
statement or omission or alleged untrue statement or omission of material
fact so made in reliance upon and in conformity with information furnished
in writing to the Company by the Purchaser or the Agent or on the
Purchaser's or the Agent's behalf expressly for inclusion therein; and
provided, further, that the Company shall not be liable to any indemnified
party to the extent that any such loss, claim, damage, liability cost or
expense resulted from the fact that the Purchaser sold, or the Agent
resold, Shares to a person to whom the Purchaser or the Agent, as
applicable, failed to send or give a copies of the Prospectus or the
Prospectus Supplement (an "Indemnifiable Matter").
The indemnifying party will reimburse the indemnified party and each such
controlling person promptly upon demand for any legal or other costs or
expenses reasonably incurred by the indemnified party or the controlling
person in investigating, defending against, or preparing to defend against
any claim relating to the applicable Indemnifiable Matter.
(b) INDEMNIFICATION BY PURCHASER. Purchaser and the Agent, severally and
----------------------------
jointly, agrees to indemnify and hold harmless the Company, its officers,
directors and agents and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Purchaser and the Agent, but only with respect to
information furnished in writing by the Purchaser or the Agent or with the
Purchaser or the Agent's authorization on the Purchaser's or the Agent's
behalf expressly for use in any registration statement or prospectus
relating to the Shares, or any amendment or supplement thereto.
(c) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of a
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claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraphs (a) or (b), the
person will notify the indemnifying party in writing of the claim or
commencement of the action, suit or proceeding, but failure to notify the
indemnifying party will not relieve the indemnifying party from liability
under Paragraphs (a) or (b), except to the extent the indemnifying party
has been materially prejudiced by the failure to give notice. The
indemnifying party will be entitled to participate in the defense of any
claim, action, suit or proceeding as to which indemnification is being
sought, or the indemnifying party may (but will not be required to) assume
the defense against the claim, action, suit or proceeding with legal
counsel chosen by the indemnifying party. After an indemnifying party
notifies an indemnified party that the indemnifying party wishes to assume
the defense of a claim, action, suit or proceeding the indemnifying party
will not be liable for any legal or other expenses incurred by the
indemnified party in connection with the defense against the claim, action,
suit or proceeding, except that if, in the opinion of legal counsel to the
indemnifying party, one or more of the indemnified parties should be
separately represented in connection with a claim, action, suit or
proceeding the indemnifying party will pay the reasonable fees and expenses
of one separate counsel for the indemnified parties. Each indemnified
party, as a condition precedent to receiving indemnification as provided in
Paragraphs (a) or (b), will, at the cost and expense of the indemnifying
party, cooperate in all reasonable respects with the indemnifying party in
the defense of the claim, action, suit or proceeding as to which
indemnification is sought. No indemnifying party will be liable for any
settlement of any claim, action, suit or proceeding effected without its
prior written consent. No indemnifying party will, without the prior
written consent of the indemnified party, effect any settlement of a
pending or threatened claim, action or proceeding with respect which an
indemnified party is, or is informed that it may be, made a party and for
which it would be entitled to indemnification, unless the settlement
includes an unconditional release of the indemnified party from all
liability and claims which are the subject matter of the pending or
threatened action other than financial obligations for which the
indemnified party will be indemnified hereunder.
(d) CONTRIBUTION. If for any reason the indemnification provided for in this
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Agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost or
expense referred to in Paragraphs (a) or (b), each indemnifying party will,
in lieu of indemnifying the indemnified party, contribute to the amount
paid or payable by the indemnified party, as a result of the loss, claim,
damage, liability, cost or expense (i) in the proportion which is
appropriate to reflect the relative benefits received by the indemnifying
party, on the one hand, and by the indemnified party, on the other hand,
from the sale of stock which is the subject of the claim, action, suit or
proceeding which resulted in the loss, claim, liability, cost or expense or
(ii) if that allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits of
the sale of stock, but also the relative fault of the indemnifying party
and the indemnified party with respect to the statements or omissions which
are the subject of the claim, action, suit or proceeding that resulted in
the loss, claim, damage, liability, cost or expense as well as any other
relevant equitable considerations.
