EXHIBIT 99
February 2, 2001
Acqua Wellington North American Equities Fund Limited
c/o Fortis Fund Services (Bahamas) Ltd.
Xxxxxxxx Xxxxxxxx Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement of Acqua Wellington North American
Equities Fund, 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 528,787
shares of the Company's Common Stock (the "Shares") for an aggregate
purchase price of $14,999,974, 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"), registration statements on Form S-3, Commission File Number
333-48647 and 333-49472, each of which includes a prospectus forming a part
thereof, as amended and supplemented (the "Prospectuses"), (such
registration statements, as amended and supplemented, shall be referred to
hereinafter as the "Registration Statements"); (b) the Company has filed a
prospectus supplement to each of the Registration Statements in connection
with this transaction (the "Prospectus Supplements"); and (c) the Shares
are registered under the Registration Statements. Copies of the
Registration Statements and the Prospectus Supplements, each as filed (and
declared effective, if applicable) by the Commission, are annexed hereto as
Exhibits A, B, C, and D, 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 Statements and the Prospectuses (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 Prospectuses, does 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 either or both of the
Registration Statements and (b) the happening of any event as a result of
which the prospectus included in either or both of the Registration
Statements include an untrue statement of a material fact or omit 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 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.
10. 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.
11. 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
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Agreement has been duly executed and delivered on behalf of the Purchaser
by a duly authorized officer.
12. 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.
13. 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.
14. 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
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Treasurer
and Chief Financial Officer
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH AMERICAN
EQUITIES FUND, LTD.
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Secretary
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SCHEDULE A
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
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harmless the Purchaser and each person, if any, who controls the Purchaser
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 and each person, if any, who controls the
Purchaser 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 prospectuses dated May
24, 2000 and November 17, 2000, the ("Prospectuses"), the prospectus
supplements dated February 1, 2001 (the "Prospectus Supplements"), each of
which is a part of the respective Registration Statement), or any amendment
or supplement to the Registration Statements, or (ii) the omission or
alleged omission to state in the Registration Statements or any document
incorporated by reference in the Registration Statements, 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 on the Purchaser'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 Shares to a person
to whom the Purchaser failed to send or give copies of the Prospectuses or
the Prospectus Supplements (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 agrees to indemnify and hold
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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, but only with
respect to information furnished in writing by the Purchaser or with the
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Purchaser's authorization on the Purchaser'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
--------------------------
claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraph (a), 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
Paragraph (a), 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 Paragraph (a), 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 Paragraph (a), 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
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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.
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