EXHIBIT 99
August 8, 2000
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
242,822 shares of the Company's Common Stock (the "Shares") for an
aggregate purchase price of $5,445,825, 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 333-48647, including the 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 Securities and
Exchange 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, 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 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 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
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performance of this Agreement by Purchaser 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.
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
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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/Xxxxxxx X.X. Xxxxx Xxxxxx
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Name: Xxxxxxx X.X. Xxxxx Xxxxxx
Title: Director
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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, 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 Statement relating to
Shares being sold to the Purchaser (including the prospectus dated May
24, 2000 the ("Prospectus"), the prospectus supplement dated August 8,
2000 (the "Prospectus Supplement") which are 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 that 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 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 a copy 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 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 Purchaser's authorization on the
Purchaser's behalf expressly for use in any registration statement or
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prospectus relating to the Shares, or any amendment or supplement
thereto.
(c) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of
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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
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this 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 party with respect to the statements or
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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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