EXHIBIT 99(B)
December 31, 2001
Xxxxxxx Capital, L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Dear Sirs:
This letter sets forth the agreement of Xxxxxxx Capital, L.P., acting on
behalf of the funds listed in Schedule "A" attached hereto (the "Purchasers"),
and MDU Resources Group, Inc. (the "Company") regarding the purchase by the
Purchasers 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 Purchasers of an aggregate of
379,376 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. The Shares will be issued pursuant to
and in compliance with the resolutions, adopted August 15, 2001, of the
Finance Committee of the Board of Directors of the Company, copies of which
were previously delivered to the Purchasers.
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, 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, 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 Purchasers of (a) any stop order or
other suspension of the effectiveness of either or both 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 Purchasers, which
shall not be unreasonably withheld.
9. The Company and the Purchasers will indemnify the other party(ies) as
provided in Schedule "B" attached hereto. For purposes of said Schedule B,
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 Purchasers have 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
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the Purchasers and the consummation by them 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 Purchasers by a duly authorized signatory.
12. Each of the Purchasers 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 Purchasers 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.
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Please execute a copy of this letter which, when executed by the
Purchasers, will constitute an Agreement between the Company and the Purchasers.
Very truly yours,
MDU RESOURCES GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President, Controller
and Chief Accounting Officer
AGREED TO:
PURCHASERS:
XXXXXXX CAPITAL, L.P.
On behalf of the funds listed in
Schedule "A" attached hereto
By: /s/Xxxxx Xxxxxxx
---------------------------
Authorized Signatory
SCHEDULE "A"
PURCHASERS
Xxxxxxx Capital, L.P., acting on behalf of the following funds:
NUMBER OF SHARES PURCHASE
NAME OF FUND TO BE PURCHASED PRICE
------------ --------------- -----
Black Diamond Offshore Ltd. 45,117 $1,189,242.33
Double Black Diamond Offshore LDC 234,265 6,175,008.44
Black Diamond Energy Offshore LDC 37,934 999,905.11
Black Diamond Relative Value Offshore LDC 32,943 868,346.97
Black Diamond Capital I, Ltd. 12,256 323,056.81
Worldwide Transactions Ltd. 16,861 444,440.34
Total 379,376 $10,000,000.00
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SCHEDULE "B"
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
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harmless the Purchasers and each person, if any, who controls the
Purchasers 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 Purchasers and each person, if
any, who controls the Purchasers 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 Purchasers (including the prospectus
dated November 17, 2000, the ("Prospectus"), the prospectus supplement
dated December 31, 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 Purchasers or on the
Purchasers' 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 Purchasers sold Shares to a person to whom the Purchasers
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 PURCHASERS. The Purchasers agree 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 Purchasers, but only with
respect to information furnished in writing by the Purchasers or with the
Purchasers' authorization on the Purchasers' 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 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
party with respect to the statements or omissions which are the subject of
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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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