NorthWestern Energy Group, Inc S-3ASR, filed Oct 2, 2023
NorthWestern Energy Group, Inc. (NWE)
S-3ASR
2023-10-02
View Original
Added on
October 18, 2026
As filed with the Securities and Exchange Commission on October 2, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NorthWestern Energy Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 93-2020320 | ||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||
3010 W. 69th Street
Sioux Falls, South Dakota 57108
(605) 978-2900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Shannon M. Heim
Vice President and General Counsel
NorthWestern Energy Group, Inc.
3010 W. 69th Street
Sioux Falls, South Dakota 57108
(605) 978-2900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Robert Joseph, Esq.
Husch Blackwell LLP
120 S Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Tel: 312.526.1536
Fax: 312.655.1501
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large, accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large, accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☒ | Accelerated filer ☐ | |||||||
| Non-accelerated filer ☐ | Smaller reporting company ☐ | |||||||
| (Do not check if a smaller reporting company) | Emerging growth company ☐ | |||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
DIVIDEND REINVESTMENT
AND DIRECT STOCK PURCHASE PLAN
400,000 Shares of Common Stock, $0.01 Par Value
NorthWestern Energy Group, Inc.’s Dividend Reinvestment and Direct Stock Purchase Plan (the “Plan”) provides a simple and convenient way to invest in shares of common stock, par value $0.01 per share (the “Common Stock”), of NorthWestern Energy Group, Inc. (the “Company”) without incurring brokerage commissions or service charges. Participation in the Plan is open to all interested investors, regardless of whether they already are shareholders of the Company.
Participants in the Plan may:
•Buy shares of Common Stock conveniently and economically
•Elect to reinvest cash dividends in additional shares of Common Stock
•Deposit Common Stock certificates with the Plan Administrator for safekeeping
•Sell shares of Common Stock or transfer shares to other Plan participants
Participation in the Plan is strictly voluntary. Shareholders who do not wish to participate in the Plan will continue to receive cash dividends, when, as and if declared. Participants in the Plan may terminate their participation at any time.
The Common Stock is quoted on the Nasdaq Stock Market LLC under the ticker symbol “NWE.” The last reported sale price of the Common Stock on September 29, 2023 was $48.06 per share.
Investing in the Common Stock involves risk. See “Risk Factors” on page 3.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is October 2, 2023.
TABLE OF CONTENTS
| Page | |||||
SUMMARY
ENROLLMENT. To enroll in the Plan, you must complete and sign an Enrollment Form and return it to the Plan Administrator. You may also enroll online at www.computershare.com/investor. If you are not already a record holder of Common Stock, you must become one at the time of enrollment by purchasing at least $250 and no more than $100,000 of Common Stock through the Plan.
PLAN ACCOUNTS. Shares of Common Stock held in the Plan (whether purchased through cash contributions, acquired through dividend reinvestment, deposited for safekeeping or otherwise) will be reflected in book-entry form in an account in the participant’s name (“Plan Account”).
DIVIDEND REINVESTMENT. You may elect to reinvest cash dividends on all, some or none of your shares. Cash dividends paid on shares as to which you elect reinvestment will be used to purchase additional shares of Common Stock, which will be added to your Plan Account. Cash dividends paid on shares as to which you do not elect reinvestment will be paid to you in cash.
SHARE PURCHASES. You may make your initial investment in the Company through the Plan at the time of enrollment, as described under “Enrollment” above. After you have enrolled in the Plan, you may purchase additional shares of Common Stock through the Plan in amounts of at least $100 per transaction. Purchases through the Plan may not exceed $100,000 per year, including any purchases in connection with your enrollment in the Plan. Payment may be made by check or by automatic withdrawal from your bank account. All service fees, per share processing fees, or other service charges for purchases made under the Plan will be paid by the Company. However, such charges paid by the Company on your behalf will be reported to the Internal Revenue Service by the Company as income to you.
SAFEKEEPING. You may send your Common Stock certificates to the Plan Administrator for safekeeping . The shares represented by these certificates will be converted to book-entry shares held in your Plan Account. You may receive stock certificates for these and any other whole shares held in your Plan Account at any time, upon request and payment of a certificate issuance fee.
SELLING SHARES. You may direct the Plan Administrator to sell shares of Common Stock held in your Plan Account. You will be charged certain costs in connection with sales from your Plan Account. You will be charged a transaction fee for the administering of the sale and you will be charged for your share of expenses paid by the Company to third parties, such as broker’s commissions, fees and transfer taxes.
TRANSFERRING SHARES. You may transfer shares from your Plan Account upon completion of a transfer request.
TRANSACTION FEES. You will be charged certain costs in connection with sales of shares from your Plan Account, issuing a certificate for your shares, and obtaining duplicate statements. All other Plan services are free to participants. However, if you invest in the Plan through automatic withdrawals from your bank, your bank may assess fees for electronic funds transfers.
STATEMENTS OF PLAN ACCOUNT. You will receive a quarterly statement showing all activity in your Plan Account, as well as your share balance. In addition, you will receive a transaction advice promptly after each purchase, sale, withdrawal, transfer or deposit of shares for your Plan Account. Each statement will contain a tear-off form that may be used for future Plan transactions.
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THE PLAN ADMINISTRATOR. Computershare Trust Company, N.A. (“Computershare” or the “Plan Administrator”) is the administrator of the Plan. The Plan Administrator may be contacted at:
NorthWestern Energy Group, Inc.
c/o Computershare
P.O. Box 43006
Providence, RI 02940-3006
For overnight delivery services:
NorthWestern Energy Group, Inc.
c/o Computershare
150 Royall St.
Canton, MA 02021
Telephone: 1 (800) 368-5948
Internet: www.computershare.com/investor
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RISK FACTORS
An investment in our shares of Common Stock involves risk. Prior to making a decision about investing in our shares of Common Stock, you should carefully consider the risk factors and cautionary statements under the heading “Risk Factors” in NorthWestern Corporation’s (“Old NWE”) most recently filed Annual Report on Form 10-K and other filings we make from time to time with the Securities and Exchange Commission (the “SEC”). Such factors could affect actual results and cause results to differ materially from those expressed or implied in forward-looking statements made by us or on our behalf. Additional risks and uncertainties not currently known to us or that we currently view as immaterial may also affect our business operations.
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NORTHWESTERN ENERGY GROUP, INC.
On October 2, 2023, NorthWestern Corporation (“Old NWE”) implemented a holding company reorganization (the “Merger”) pursuant to the Agreement and Plan of Merger, dated as of October 2, 2023, by and among Old NWE, NorthWestern Energy Group, Inc., a Delaware corporation (“New NWE”), and NorthWestern Energy Merger Company, a Delaware corporation (“Merger Sub”), which resulted in New NWE owning all of the outstanding capital stock of Old NWE. Pursuant to the Merger, Merger Sub, a direct, wholly-owned subsidiary of New NWE and an indirect, wholly-owned subsidiary of the Old NWE, merged with and into Old NWE, with Old NWE surviving as a direct, wholly-owned subsidiary of New NWE. Each share of Old NWE stock issued and outstanding immediately prior to the Merger automatically converted into an equivalent corresponding share of New NWE stock, having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of Old NWE stock being converted. Accordingly, upon consummation of the Merger, Old NWE’s stockholders immediately prior to the consummation of the Merger became stockholders of New NWE. Shares of Old NWE held in Plan accounts prior to the merger will automatically be deemed to convert to shares of New NWE as a result of the Merger.
NorthWestern Energy Group, Inc., through its wholly-owned subsidiary NorthWestern Corporation, provides electricity and/or natural gas to approximately 764,200 customers in Montana, South Dakota, Nebraska and Yellowstone National Park. We have generated and distributed electricity in South Dakota and distributed natural gas in South Dakota and Nebraska since 1923 and have generated and distributed electricity and distributed natural gas in Montana since 2002.
We were incorporated in Delaware in May 2023. Our predecessor, NorthWestern Corporation, was incorporated in Delaware in 1923. Our principal office is located at 3010 West 69th Street, Sioux Falls, South Dakota 57108, and our telephone number is 605-978-2900. In October 2023, we implemented a holding company reorganization in which we became the successor registrant to our wholly-owned subsidiary, NorthWestern Corporation. We maintain an Internet site at http://www.northwesternenergy.com, which contains information concerning us. Our Internet site and the information contained therein or connected thereto are not intended to be incorporated into this prospectus and should not be considered a part of this prospectus.
Unless the context requires otherwise, references to “we,” “us,” “our,” “NorthWestern Energy Group,” “NorthWestern Energy,” and “NorthWestern” refer specifically to NorthWestern Energy Group, Inc. and its subsidiaries.
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DIVIDEND REINVESTMENT AND DIRECT STOCK PURCHASE PLAN
The Company’s Dividend Reinvestment and Direct Stock Purchase Plan consists in its entirety of the following questions and answers. The use of singular and masculine words in the Plan is for practical purposes only and should be deemed to include the plural and feminine, respectively, unless the context plainly indicates a distinction.
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INTRODUCTION
Purpose
1. What is the purpose of the Plan?
The purpose of the Plan is to provide interested new investors and holders of record of Common Stock with a simple and convenient method of investing in the Company, through both new cash investments in Common Stock and reinvestment of cash dividends in additional shares of Common Stock, without the cost associated with normal brokerage transactions.
Advantages
2. What advantages do I have if I participate in the Plan?
All service fees and per share processing fees in connection with purchases of Common Stock through the Plan are paid by the Company.
If you are not a holder of Common Stock, you may invest in Common Stock and become a Plan participant by making an initial investment through the Plan of at least $250 and no more than $100,000. Payment may be made by sending a personal check, drawn from a U.S. bank in U.S. currency payable to Computershare. You also may make your initial investment online at www.computershare.com/investor.
You may increase your investment in the Company by automatically reinvesting the cash dividends paid on all or part of your shares (whether or not held in your Plan Account) in additional shares of Common Stock.
You may receive cash dividends on all or part of your shares, including those held in your Plan Account.
You may make additional cash payments to purchase additional shares of Common Stock at any time in amounts of at least $100 by check or by automatic withdrawal from your bank account, regardless of whether dividends are being reinvested. Your purchases through the Plan may not exceed $100,000 per year, including any purchases in connection with your enrollment in the Plan.
Shares held in your Plan Account are held in book-entry form, allowing you to avoid the cost and risk associated with the storage, loss, theft, or destruction of stock certificates. Nevertheless, you may receive stock certificates at any time, upon request and payment of a transaction fee in the amount required by Computershare from time to time.
You may use the Plan’s safekeeping feature to hold in book-entry form any shares of Common Stock you own, whether or not purchased through the Plan.
Your recordkeeping is simplified because you will receive a statement of your Plan Account every quarter and a transaction advice after each purchase, sale, withdrawal, transfer, or deposit of shares for your Plan Account.
You may transfer shares by gift to another shareholder’s Plan Account.
ADMINISTRATION
3. How is the Plan administered?
Computershare Trust Company, N.A., will administer the Plan. As Plan Administrator, Computershare will act as agent for participants, process transaction requests, keep a continuing record of their Plan Accounts, send quarterly statements of account to participants, and perform other duties relating to the administration of the Plan. All open market purchases and sales of Common Stock for the Plan will be made through a registered broker-dealer selected by the Plan Administrator and independent of the Company (“Independent Broker”).
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Written requests for address changes, general shareowner inquiries and Plan Transaction Requests should be sent to:
NorthWestern Energy Group, Inc.
c/o Computershare
P.O. Box 43006
Providence, RI 02940-3006
For overnight delivery services:
NorthWestern Energy Group, Inc.
c/o Computershare
150 Royall St.
Canton, MA 02021
Telephone: 1 (800) 368-5948
Internet: www.computershare.com/investor
PARTICIPATION
4. Who is eligible to participate in the Plan?
Any interested investor, whether or not an existing shareholder of record or employee of the Company, is eligible to participate in the Plan.
5. How do I enroll in the Plan?
If you are already a shareholder of record, you may enroll in the Plan by completing and signing an Enrollment Form and returning it to the Plan Administrator. If you are not currently a record holder of Common Stock, you will need to complete and sign an Enrollment Form and make an initial investment in Common Stock by enclosing with your Initial Enrollment Form a personal check, drawn from a U.S. bank in U.S. currency payable to Computershare. You may also enroll in the Plan as a registered shareholder by logging into your account at www.computershare.com/investor. If you are not currently a record holder of Common Stock you can enroll in the Plan and make your initial investment online at www.computershare.com/investor.
By enrolling, you appoint the Plan Administrator as your agent to receive and apply cash dividends on shares held in your Plan Account in accordance with your election (see Question 7) and to effect other transactions in your Plan Account as specified by you. You may access your Plan Account via the internet by logging in to your account at the Plan Administrator’s website (www.computershare.com/investor). If you previously have not established an online account with the Plan Administrator, you may do so by following the instructions for online access at www.computershare.com/investor.
6. May I participate if my shares are held for me in the name of my bank or broker?
If your shares are registered in the name of another person, such as your broker or a bank nominee, you must become a shareholder of record in your own name in order to participate in the Plan. You may become a shareholder of record either (a) by having your broker, bank or other fiduciary transfer the shares they own for your benefit into your own name or (b) by making an initial investment in Common Stock in your own name as described above in Question 5.
7. What are my dividend options?
You have three options regarding cash dividends paid on shares held in your Plan Account:
•Full Dividend Reinvestment. You may elect to automatically reinvest cash dividends paid on all of the shares registered in your name and all shares held in your Plan Account in additional shares of Common Stock.
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•Partial Dividend Reinvestment. You may elect the “Partial Dividend Reinvestment” option when enrolling by selecting the percentage of the total number of shares registered in your name and held in your Plan Account with respect to which you want cash dividends reinvested. The Plan Administrator will reinvest in additional shares of Common Stock all cash dividends paid on the specified percentage of shares, and you will receive cash for the dividends on the remaining shares.
•Cash Dividends. You may elect to receive cash dividends paid on all of your shares registered in your name and held in your Plan Account.
Cash dividends will be paid by check via first class mail to your address of record. Alternatively, you may elect to have these dividends deposited directly in your bank account via electronic funds transfer by completing an “Authorization for Electronic Direct Deposit” form and returning it along with a voided check or deposit slip to the Plan Administrator. You may also elect direct deposit online by logging in to your account at the Plan Administrator’s website www.computershare.com/investor. You may change your bank account at any time by delivering a new, valid Authorization for Electronic Direct Deposit form along with a voided check or deposit slip to the Plan Administrator or you may change it online. If the Plan Administrator is unable for any reason to process your direct deposit authorization, it will mail a check for the subject dividend via first class mail to your address of record.
8. When will dividend reinvestment begin?
Reinvestment of dividends will begin on the dividend payment date following the first dividend record date after the Plan Administrator receives your request for dividend reinvestment. Record dates for dividend payments are usually on or around the middle of the months of March, June, September and December of each year.
OPTIONAL CASH PAYMENTS
9. How can I make optional cash payments?
You may make optional cash payments to purchase additional shares of Common Stock under the Plan at any time by sending to the Plan Administrator an executed Enrollment Form, or the form provided as part of your quarterly account statement, along with your payment. You may elect to make optional cash payments at any time or from time to time, and there is no requirement to make them each month. Optional cash payments may be made by sending a personal check, drawn from a U.S. bank in U.S. currency payable to Computershare in an amount of at least $100. The Plan Administrator will not accept cash, traveler’s checks, money orders or third-party checks. Your purchases through the Plan may not exceed $100,000 per year, including any purchases in connection with your enrollment in the Plan. The Plan administrator will wait up to three business days after receipt of the check or electronic funds transfer to ensure it receives good funds and will then seek to purchase shares from optional cash investments promptly on the investment date. You may also purchase additional shares through a one-time online bank debit (in U.S. dollars) from your U.S. bank account by submitting a request online at www.computershare.com/investor.
Alternatively, you may authorize scheduled automatic deductions from your U.S. bank account by submitting a request online at www.computershare.com/investor or by completing and returning a Direct Debit Authorization form to the Plan Administrator. Shares of Common Stock will be purchased for the Plan at least monthly, usually on the fifteenth day of the month or, if such day is not a business day, on the next business day. If you have authorized automatic withdrawals under the Plan, the Plan Administrator will withdraw the funds pursuant to your authorization on the tenth day of the month or, if such day is not a business day, on the next business day. A request to return any cash payment will be honored if the request is received by the Plan Administrator at least two business days prior to investment. Interest will not be paid on optional cash payments prior to investment by the Plan Administrator.
10. How are payments with “insufficient funds” handled?
If an optional cash payment is made by a check or automatic withdrawal drawn on an account with insufficient funds or incorrect draft information, or the Plan Administrator otherwise does not receive the money, the requested purchase will be deemed void, the Plan Administrator will immediately remove from your account any shares
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already purchased upon the prior credit of such funds, and the Plan Administrator will charge you an insufficient funds fee, currently $35. The Plan Administrator may, at its discretion, sell such shares to satisfy any uncollected amounts, including the insufficient funds fee, or return such shares to the Company. If the net proceeds from any sale of such shares are insufficient to satisfy the balance due, including the insufficient funds fee, the Plan Administrator may sell additional shares from your account as necessary to satisfy the uncollected balance.
EXPENSES RELATED TO PURCHASES
11. Will I have any expenses in connection with the purchase of shares under the Plan?
No. You will not incur any expenses in connection with purchases of shares under the Plan. The Company will pay any and all expenses incurred in connection with such purchases, including per share processing fees and service fees. The only charges under the Plan are if you make a payment with insufficient funds (see Question 10), request a duplicate statement concerning your account (see Question 15), request a certificate concerning your shares (see Question 17), or choose to sell shares held in your Plan Account (see Question 22). We will not receive any of these fees. The Company will pay all other costs of establishing and administering the Plan. However, if you invest in the Plan through automatic withdrawal, your bank may charge a fee in connection with electronic funds transfers. Your bank will be able to tell you about any fees it charges.
PURCHASES AND PURCHASE PRICE
12. How are shares purchased under the Plan?
Shares of Common Stock purchased for Plan participants may consist of shares acquired in the open market or authorized but unissued shares or treasury shares acquired directly from the Company, at the Company’s sole discretion. Open market purchases will be made through an Independent Broker, who will purchase shares on the Nasdaq Stock Market LLC or in privately negotiated transactions. Such purchases will be made in accordance with all applicable requirements of law affecting the timing or manner of such transactions. These requirements may dictate that purchases be spread over several days, in order to invest all funds received with respect to a particular purchase or dividend payment date. No interest will be paid on optional cash payments or cash dividends held by the Plan Administrator or its broker pending investment.
13. How is my purchase price determined?
The price of Common Stock purchased through the Plan will depend on whether the shares are acquired in the open market or directly from the Company. To determine the price per share of shares purchased in the open market (whether for optional cash purchases or dividend reinvestment) the Plan Administrator may combine your purchase requests with other purchase requests received from other participants and will generally batch purchase types (dividend and optional cash investments) for separate execution by the Plan Administrator’s broker. The Plan Administrator may also direct its broker to execute each purchase type in several batches throughout a trading day. Depending on the number of shares being purchased and current trading volume in the shares, the Plan Administrator’s broker may execute purchases for any batch or batches in multiple transactions and over more than one day. If different purchase types are batched, the price per share of the common shares purchased for each participant’s account, whether purchased with reinvested dividends, with initial cash investments, or with optional cash, shall be the weighted average price of the specific batch for such shares purchased by the Agent’s broker on that particular Investment Date. The price of shares acquired directly from the Company with reinvested dividends will be the closing price of the Common Stock on the Nasdaq Stock Market LLC on the dividend payment date.
14. How many shares will be purchased for me?
The number of shares of Common Stock to be purchased for you will depend on the amount of cash dividends being reinvested (if any), the amount of your optional cash payments (if any) and the purchase price per share for the applicable purchase date. Your account will be credited with that number of whole shares and fractional interests (computed up to the sixth decimal place) equal to the total amount to be invested divided by the purchase price, as determined in the manner set forth in Question 13.
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REPORTS TO PARTICIPANTS
15. What reports will I receive?
Whenever you purchase, sell, withdraw, or transfer shares through the Plan or deposit certificates into your Plan Account, you will promptly receive a transaction advice with the details of the transaction.
All shares that you hold or purchase through the Plan are recorded in your Plan Account. After each quarterly dividend reinvestment, you will receive a detailed statement showing the amount of the latest dividend reinvested, the purchase price per share, the number of shares purchased, the total number of book-entry shares in your Plan Account and the number of shares registered in your name (that is, held outside the Plan). The statement also will show all year-to-date account activity, including purchases, sales, certificate deposits, withdrawals, transfers, dividends reinvested and specific cost basis information in accordance with applicable law. This will enable you to review your complete Plan Account book-entry holdings at a glance.
On each quarterly statement and transaction advice, you will find information such as how to buy or sell shares through the Plan and where to call or write for additional information. If you require a duplicate statement, the Plan Administrator will provide you one upon payment of a duplicate statement fee (currently $10 per request for prior years). Statements also are available online by logging into your account at www.computershare.com/investor.
As a Plan participant, you will receive copies of all communications sent to all shareholders generally, including the Company’s annual report to shareholders, notice of annual meeting and proxy statement, and income tax information for reporting dividends paid.
DIVIDENDS PAID ON SHARES HELD IN THE PLAN
16. Will my account be credited with dividends on shares in the Plan?
Yes. The Company pays dividends, when, as, and if declared, to the record holders of all its shares of Common Stock. As the record holder for participants, the Plan Administrator will receive dividends on all shares held in the Plan on the record date. The Plan Administrator will credit those dividends to participants on the basis of full and fractional shares held in their Plan Accounts as of the record date. The Plan Administrator will either reinvest those dividends in additional shares or pay them to you in cash, depending on whether you have elected full dividend reinvestment, partial dividend reinvestment, or cash dividends on the shares in your Plan Account.
CERTIFICATES FOR SHARES
17. Will certificates automatically be issued to me for shares of Common Stock purchased under the Plan?
No. Shares will be held in your Plan Account in book-entry form. This convenience protects against loss, theft, or destruction of your stock certificates. Certificates for shares of the Company’s Common Stock purchased under the Plan will be issued to you only upon written or telephonic request or through the Internet at www.computershare.com/investor. The Plan Administrator will charge a certificate issuance fee (currently $25 per certificate if the request is made in writing, through the internet or by telephone through automated voice response system or $40 if requested through a customer service representative) in connection with each issued stock certificate.
As soon as practicable after receipt of your written request and your payment of the related fee, the Plan Administrator will issue certificates for any number of whole shares of Common Stock, up to the total number of whole shares then credited to your Plan Account. The form for requesting a certificate is included as a part of each quarterly account statement or may be obtained from the Plan Administrator. Any remaining whole shares and fractional interests in shares will continue to be credited to your Plan Account. Issuance of a stock certificate will not affect your dividend reinvestment election.
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18. If I request certificates for shares held in my Plan Account, in whose name will they be registered when issued?
A certificate for shares that had been held in your Plan Account will be registered in the name or names in which the Plan Account is maintained. Upon written request, certificates will be registered and issued in names other than the account name, provided that you meet the applicable legal requirements. The appropriate form for requesting issuance of a certificate in names other than the account names will be provided upon request to the Plan Administrator.
19. May I deposit certificated shares in my account?
Yes. You may add certificated shares to your Plan Account at any time by sending the certificate(s) to the Plan Administrator, accompanied by a signed copy of the form provided as part of your quarterly account statement.
The Company recommends sending your certificates by registered mail, insured for 3% of the current market value of the shares. Do not endorse the certificates or complete the assignment section on the back of the certificates. All persons whose names appear on the certificates being deposited must sign the form. Upon receipt by the Plan Administrator of your certificates and signed form, the share balance in your Plan Account will be increased by the number of shares represented by the certificates, and the certificates will be canceled.
SALES AND SALES PRICE
20. How may I sell shares held in my Plan Account?
You may request at any time that the Plan Administrator sell all or a specified number of the shares held in your Plan Account by one of the following methods.
Batch Order: A batch order is an accumulation of all sale requests by any security holder for a security submitted together as a collective request. Batch orders are submitted on each trading day, to the extent that there are sale requests. Sale instructions for batch orders received by the Plan Administrator will be processed no later than five business days after the date on which the order is received (except where deferral is required under applicable federal or state laws or regulations), assuming the applicable market is open for trading and sufficient market liquidity exists. You may request a batch order sale by writing to the Plan Administrator. All sales requests received in writing will be submitted as batch order sales. The Plan Administrator will cause your shares to be sold in the open market within five business days of its receipt of your request. To maximize cost savings for batch order sale requests, the Plan Administrator will seek to sell shares in round lot transactions. For this purpose the Plan Administrator may combine each selling Plan participant’s shares with those of other selling Plan participants. In every case of a batch order sale, the price to each selling Plan participant will be the weighted average sale price obtained by the Plan Administrator’s broker for each aggregate order placed by the Plan Administrator and executed by the broker, less a service fee of $25 and a processing fee of $0.12 per share sold.
Market Order: A market order is a request to sell shares promptly at the then current market price. You may request a market order sale only online at www.computershare.com/investor or by calling the Plan Administrator directly at 1-800-368-5948. Market order sale requests made in writing will be submitted as batch order sales. Market order sale requests received online or by telephone will be placed promptly upon receipt during normal market hours (9:30 a.m. to 4:00 p.m. Eastern Time). Any orders received after 4:00 p.m. Eastern Time will be placed promptly on the next trading day. The price will be the market price for shares obtained by the Plan Administrator’s broker, less a service fee of $25 and a processing fee of $0.12 per share sold. The Plan Administrator will use commercially reasonable efforts to honor requests by participants to cancel market orders placed outside of market hours. Depending on the number of shares being sold and current trading volume in the shares, a market order may only be partially filled or not filled at all on the trading day in which it is placed, in which case the order, or remainder of the order, as applicable, will be canceled at the end of such day. To determine if your shares were sold, you should check your account online at www.computershare.com/investor or call the Plan Administrator directly at 1-800-368-5948. If your market order sale was not filled and you still want the shares to be sold, you will need to re-enter the sale request.
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Day Limit Order: A day limit order is an order to sell shares of our common stock when and if they reach a specific trading price on a specific day. The order is automatically canceled if the price is not met by the end of that day (or, for orders placed during after-market hours, the next trading day the market is open). Depending on the number of shares of our common stock being sold and the current trading volume in the shares, such an order may only be partially filled, in which case the remainder of the order will be canceled. The order may be canceled by the applicable stock exchange, by the Plan Administrator at its sole discretion or, if the Plan Administrator’s broker has not filled the order, at your request made online at www.computershare.com/investor or by calling the Plan Administrator directly at 1-800-368-5948. There is a service fee of $25 and a processing fee of $0.12 per share sold for each Day Limit Order sale.
Good-Til-Cancelled (“GTC”) Limit Order: A GTC limit order is an order to sell shares of our common stock when and if the shares reach a specific trading price at any time while the order remains open (generally up to 30 days). Depending on the number of shares being sold and current trading volume in the shares, sales may be executed in multiple transactions and over more than one day. If shares trade on more than one day, a separate fee will be charged for each day. The order (or any unexecuted portion thereof) is automatically canceled if the trading price is not met by the end of the order period. The order may be canceled by the applicable stock exchange, by the Plan Administrator at its sole discretion or, if the Plan Administrator’s broker has not filled the order, at your request made online at www.computershare.com/investor or by calling the Plan Administrator directly at 1-800-368-5948. There is a service fee of $25 and a processing fee of $0.12 per share sold for each GTC limit order sale.
General: All sales requests processed over the telephone by a customer service representative entail an additional fee of $15. All per share fees include any brokerage commissions the Plan Administrator is required to pay. Any fractional share will be rounded up to a whole share for purposes of calculating the per share fee. Fees are deducted from the proceeds derived from the sale. The Plan Administrator may, under certain circumstances, require a transaction request to be submitted in writing. Please contact the Plan Administrator to determine if there are any limitations applicable to your particular sale request. Proceeds are normally paid by check, which are distributed within 24 hours after your sale transaction has settled. Instructions sent to the plan administrator to sell shares are binding and may not be rescinded.
The ability to sell shares through the Plan is intended to be a convenience to Plan participants. If you find it more convenient or economical to sell shares through a broker of your choice, you may take your account statement to your broker who can assist you with the transaction.
21. How and at what price will my shares be sold?
Shares sold through the Plan will normally be sold on the Nasdaq Stock Market LLC at the price prevailing in the market at the time of sale. Proceeds from the sale of the shares, less the Plan Administrator service fee and any related per share processing fees and transfer taxes, will be mailed to you as soon as practicable following the sale. Payment will be made by check payable to the name or names in which the Plan Account is registered.
EXPENSES RELATED TO SALES OR TRANSFERS
22. Will I have any expenses in connection with the sale or transfer of shares through the Plan?
Yes. You will be required to pay a service fee (currently $25 per transaction, plus a processing fee of $0.12 per share sold or transferred) to the Plan Administrator in connection with each sales transaction, as well as any transfer taxes related to the transaction. Estimates of such brokerage commissions, fees, transfer taxes and charges may be obtained by contacting the Plan Administrator. There is no fee if you transfer shares from your Plan Account.
TERMINATION OF PARTICIPATION
23. When and how may I close my Plan Account?
Participation in the Plan is entirely voluntary, and you may close your Plan Account at any time by using the form included with your quarterly account statement, by logging into your account at www.computershare.com/
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investor or by calling the Plan Administrator. As with all other requests regarding the Plan, all participants whose names appear on the account registration must sign the request to close the account.
If a termination notice is received near a dividend record date, the Plan Administrator, in its sole discretion, may either distribute such dividends in cash or reinvest them in shares on behalf of the terminating participant. If such dividends are reinvested, the Plan Administrator, will process the withdrawal as soon as practicable, but in no event later than five business days after the reinvestment is completed.
Upon termination of a participant’s participation in the Plan, unless the participant has requested that some or all Plan shares be sold, the Plan Administrator will move the number of full shares in the participant’s Plan account to a book-entry direct registration system account and mail a check, minus any service and processing fees, in the amount of the market value of any fractional share. If a participant so requests, the Plan Administrator will sell some or all Plan shares on behalf of the participant.
24. What happens to my shares if I close my Plan Account?
Upon receipt by the Plan Administrator of your request to close your Plan Account, the Plan Administrator will move the number of full shares in your Plan account to a book-entry direct registration system account and send you a statement showing the number of whole shares then credited to your book-entry account.
The Plan Administrator will liquidate any fractional share in your Plan Account by aggregating it with fractional shares being sold on behalf of other Plan participants and selling the resulting whole shares on the open market and will send you a check for your share of the proceeds, less any related service and processing fees and transfer taxes. Once you close your Plan Account, all future cash dividends paid on shares of Common Stock registered in your name will be paid to you in cash.
If you so request, the Plan Administrator will sell all or some of the shares in your Plan Account on the open market and pay you the proceeds, less any service and processing fees and transfer taxes. The procedure for requesting sales of shares is explained in Questions 20 through 22 above. Sales of shares in the open market will be handled through an Independent Broker engaged for such purpose.
25. May I discontinue dividend reinvestment without closing my Plan Account?
Yes. You may discontinue the reinvestment of your cash dividends on any or all of your shares of Common Stock at any time without closing your Plan Account by filling out an Enrollment Form or logging into your account at www.computershare.com/investor and changing your plan election.
26. What happens if I sell or transfer all of my shares?
If you dispose of all shares of Common Stock registered in your name (that is, held outside the Plan), the Plan Administrator will, unless otherwise instructed, continue to reinvest the dividends on the shares credited to your Plan Account as long as there is at least one full share in your account. If there is less than one full share in your Plan Account, the Plan Administrator will liquidate the fractional share as described in Question 24 and will send you a check for the proceeds, and the account will be closed.
FEDERAL INCOME TAX INFORMATION
27. What are the U.S. federal income tax consequences of participation in the Plan?
The following is a brief summary of certain U.S. federal income tax consequences of participation in the Plan. It is based on the Internal Revenue Code of 1986, as amended, applicable Treasury Regulations issued thereunder, administrative pronouncements and judicial decisions, all as in effect on the date of this prospectus and all subject to change or differing interpretations, possibly with retroactive effect. It does not purport to be a comprehensive description of the U.S. federal income tax consequences of participation in the Plan. This summary does not address all of the tax consequences that may be relevant to a participant in light of the participant’s particular circumstances or to participants that are subject to special rules (including, for example, banks and other financial institutions, insurance companies, partnerships and other pass-through entities and investors therein, tax-exempt organizations,
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U.S. expatriates, brokers, dealers or traders in securities, U.S. participants whose functional currency is not the U.S. dollar, and participants who hold Common Stock as part of a “straddle,” “hedge,” “conversion transaction” or other integrated investment). Additionally, this summary does not apply to foreign participants, except as specifically indicated below in Question 28.
Reinvested Dividends. A participant in the Plan will be treated for U.S. federal income tax purposes as having received, on the related dividend payment date, a distribution in cash an amount equal to the fair market value on that date of the shares of Common Stock acquired with reinvested dividends. In addition, when shares of Common Stock are acquired through open market purchases, the distribution will also include an amount equal to the participant’s allocable portion of any brokerage commissions and fees, if any, paid by Company. The distribution will be treated as a dividend to the extent of our current and accumulated earnings and profits, as determined for U.S. federal income tax purposes. To the extent that such distributions exceed our current and accumulated earnings and profits, the excess will constitute a return of capital that is applied against, and will reduce, your tax basis in our Common Stock, but not below zero, and then will be treated as gain from the sale of such Common Stock. Dividends received by individuals and other non-corporate participants may be eligible for the preferential rates applicable to long-term capital gains if certain holding period and other requirements are met.
Subject to the discussion below regarding the “average basis method,” the tax basis of shares of Common Stock acquired with reinvested dividends will equal the fair market value of the shares on the related dividend payment date, plus, if shares are acquired through an open market purchase, the amount of any brokerage commissions and fees allocable to such shares. The holding period for shares of Common Stock will begin on the day following the related dividend payment date.
Optional Cash Payments. A participant who purchases shares of Common Stock with optional cash payments generally will not recognize any taxable income. However, in the case of shares of Common Stock purchased on the open market, participants will be treated for U.S. federal income tax purposes as having received a distribution from the Company in an amount equal to the participant’s allocable portion of any brokerage commissions and fees paid by the Company. Subject to the discussion below regarding the “average basis method,” the tax basis of such shares generally will be the amount of the optional cash payment, increased by any brokerage commissions and fees treated as dividend income to the participant, and the holding period for such shares generally will begin on the date following the date on which such shares are credited to the participant’s Plan Account.
Transferring Certificates to Plan Administrator. A participant will not realize any taxable income when the participant sends Common Stock certificates to the Plan Administrator to be deposited into the participant's Plan Account. A participant’s tax basis and holding period for shares of Common Stock purchased outside the Plan and deposited in the participant’s Plan Account will be the same as they would have been had the participant continued to hold those shares outside the Plan.
Receipt of Certificates. A participant will not realize any taxable income when the participant receives certificates for whole shares of Common Stock held in the participant’s Plan Account, either upon request for certificates, or upon termination of participation or termination of the Plan by us.
Sale of Shares. A participant generally will recognize gain or loss when shares of Common Stock acquired under the Plan (including fractions of shares) are sold by the Plan Administrator at the participant’s request or are sold after withdrawal from or termination of the Plan. Thus, a participant who receives, upon termination of participation or termination of the Plan by us, a cash adjustment for a fraction of a share credited to the participant’s account may realize gain or loss with respect to such fraction. The amount of the gain or loss will be the difference between the amount which the participant receives for the shares of Common Stock (or fraction of a share) and the participant's tax basis therein. Such gain or loss generally will be capital gain or loss, and will be long-term or short-term depending on the holding period of the shares of Common Stock sold. The capital gain or loss will be long-term if the participant’s holding period for shares of Common Stock is more than one year at the time of sale and will be short-term if the holding period is one year or less. A participant’s holding period for shares of Common Stock acquired pursuant to the Plan generally begins on the day following the date the shares are credited to the participant’s Plan Account. A whole share consisting of fractional shares purchased on different dates will have a split holding period with the holding period for each fractional component beginning on the day following the date
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the fractional share was credited to the participant’s Plan Account. Long-term capital gains of individuals and other non-corporate taxpayers are generally eligible for reduced rates of taxation. The deductibility of capital losses is subject to certain limitations.
Tax Basis Reporting; Average Basis Method. The Internal Revenue Service, pursuant to Treasury Regulations on broker reporting of sales of securities and on the cost basis of securities, now requires administrators of dividend reinvestment plans to retain and accurately report cost basis information to shareholders and to the Internal Revenue Service. Applicable Treasury Regulations generally allow taxpayers to elect to use the “average basis method” with respect to shares of stock acquired in connection with certain dividend reinvestment plans that require the reinvestment of at least 10% of every dividend. Because the Plan requires the reinvestment of at least 10% of dividends, a participant may elect to use the average basis method of determining such tax basis. Absent an election to the contrary, the Plan Administrator intends to use the “FIFO” method (as defined in applicable Treasury Regulations) for shares of our Common Stock acquired by or for you under the Plan. You should consult your own tax advisors regarding the average basis method and the elections that are appropriate for you.
Net Investment Income Tax. Certain U.S. participants that are individuals, estates or trusts will be subject to a 3.8% Net Investment Income tax on, among other things, dividends on and capital gains from the sale or other disposition of stock, subject to certain exceptions. If you are a U.S. participant that is an individual, estate or trust, you are urged to consult your tax advisor regarding the applicability of the Net Investment Income tax to your income and gains in respect of your investment in the shares acquired under the Plan.
28. How are the withholding tax provisions, including backup withholding tax provisions, applied to participants, including foreign participants?
If a participant subject to U.S. federal backup withholding tax fails to provide certain U.S. federal income tax certifications in the manner required by law, distributions on shares of Common Stock and proceeds from the sale of shares (including fractional shares) held in the participant’s Plan account may be subject to U.S. federal backup withholding (currently at a rate of 28%). If backup withholding is required for any reason, the appropriate amount of tax will be deducted and only the remaining amount will be reinvested or paid. Certain participants (including most corporations) are exempt from backup withholding. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will generally be allowed as a credit against a participant’s U.S. federal income tax liability and may entitle a participant to a refund, provided that the required information is furnished to the IRS on a timely basis.
If a foreign participant fails to provide certain U.S. federal income tax certifications establishing an exemption from U.S. federal income tax withholding in the manner required by law, the amount of tax required to be withheld will be deducted from the amount of such foreign participant’s reinvested dividends and only the remaining amount will be invested in Plan shares. Foreign participants should consult their own tax advisors regarding the applicability of U.S. federal income tax withholding to them and all other tax consequences to them under applicable tax laws and any applicable tax treaties.
Additionally, pursuant to the Foreign Account Tax Compliance Act, or “FATCA,” foreign financial institutions (which term includes most foreign hedge funds, private equity funds, mutual funds, securitization vehicles and other investment vehicles) and certain other foreign entities generally must comply with certain new information reporting rules with respect to their U.S. account holders and investors or confront a withholding tax on U.S.-source payments made to them (whether received as a beneficial owner or as an intermediary for another party). A foreign financial institution or such other foreign entity that does not comply with the FATCA reporting requirements will generally be subject to a new 30% withholding tax with respect to any “withholdable payments.” For this purpose, withholdable payments generally include U.S.-source payments otherwise subject to nonresident withholding tax (e.g., U.S.-source dividends) and also include the entire gross proceeds from the sale or other disposition of any stock of U.S. issuers, even if the payment would otherwise not be subject to U.S. nonresident withholding tax (e.g., because it is capital gain). Withholding under FATCA generally will apply to payments of dividends on our Common Stock, although the IRS has issued proposed Treasury regulations to defer withholding on payments of gross proceeds from dispositions of our Common Stock. Taxpayers may rely on these proposed Treasury regulations until final regulations are issued or the proposed Treasury regulations are rescinded. Foreign financial institutions
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located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules. If withholding is required under FATCA, the appropriate amount of tax will be deducted and only the remaining amount will be reinvested or paid. Under certain circumstances, you might be eligible for refunds or credits of such taxes. Prospective participants should consult their tax advisors regarding the implications of FATCA on participation in the Plan.
In the case of any withholding described above, the amount of the tax withheld will be included in the participant’s distribution income for U.S. federal income tax purposes.
29. Will I receive information needed for income tax purposes?
Yes. As a U.S. participant in the Plan, you will receive statements on a regular basis advising you of purchases and sales of shares of Common Stock. In addition, any distribution treated as a dividend (including from brokerage commissions and fees paid by the Company) will be reported on your year-end IRS Form 1099-DIV, which you should retain for income tax purposes. Furthermore, if, at your request, the Plan Administrator sells shares of Common Stock for you, the proceeds from the sale will be reported on IRS Form 1099-B.
30. Should I obtain advice as to the income tax consequences of participation in the Plan?
Yes. The above tax information is provided only as a guide. You are advised to consult your own tax advisor with respect to the U.S. federal, state, local and foreign tax consequences of participation in the Plan.
OTHER INFORMATION
31. What happens if the Company issues a stock dividend or declares a stock split?
If the Company declares a stock dividend or stock split, the number of shares of Common Stock distributable with respect to all the shares of Common Stock that you own as of the record date will be credited to your Plan Account on the date the stock dividend or stock split is payable. This will include the additional shares distributable with respect to the shares credited to your Plan Account, as well as with respect to any shares registered in your name and held outside the Plan.
If a participant sends notice of termination or a request to sell to the Plan Administrator between the record date and the payable date for a stock distribution, the request will not be processed until the stock distribution is credited to the participant’s account.
32. How will the shares in my Plan Account be voted?
The shares you hold as a participant in the Plan will be added to those shares, if any, which you hold of record so that you can vote all your shares. You will be furnished with appropriate forms and customary shareholder information (including proxy solicitation materials) for use in voting shares held under the Plan.
33. What are the Company’s responsibilities under the Plan?
If you choose to participate in the Plan, you should recognize that neither the Company nor the Plan Administrator can assure you of a profit or protect you against a loss on the shares that you purchase under the Plan.
Neither the Company nor the Plan Administrator, in administering the Plan, will be liable for any act done in good faith or for any good faith omission to act, including without limitation any claim of liability arising out of failure to terminate a participant’s Plan Account upon such participant’s death or incompetence, the price at which shares are purchased or sold for the participant’s Plan Account, the times when purchases or sales are made or fluctuations in the market value of Company Common Stock. This limitation of liability will not constitute a waiver by any participant of his or her rights under the federal securities laws.
Although the Plan provides for the reinvestment of dividends, the declaration and payment of dividends will continue to be determined by the Board of Directors of the Company in its discretion, depending upon future
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earnings, the financial condition of the Company and other factors. The amount and timing of dividends may be changed, or the payment of dividends terminated, at any time without notice.
34. Can I pledge shares credited to my account?
No. Shares in a Plan Account may not be pledged or otherwise encumbered unless withdrawn from the account.
35. What personal information will I be required to furnish?
You must file with the Plan Administrator, in writing, or by logging in to your account at the Plan Administrator’s website www.computershare.com/investor, your post office address, Social Security number and such documents, evidence or other information as the Plan Administrator considers necessary or desirable for the purpose of administering the Plan. You should file address changes promptly to insure timely receipt of account statements.
36. Can the Company change or discontinue the Plan in full or for participants with small accounts?
The Company reserves the right to suspend, terminate or modify the Plan at any time. Any such action will be announced to both participating and nonparticipating shareholders. In addition, the Company reserves the right to terminate participation for Plan Accounts less than $250 in value.
37. Who interprets and regulates the Plan?
The Company reserves the right to interpret and regulate the Plan as may be necessary or desirable in connection with the operation of the Plan. The terms and conditions of the Plan, including the Enrollment Form, and the operation of the Plan will be governed by South Dakota law.
38. Who can I contact for more information regarding the Plan?
For information regarding the Plan or your Plan Account, forms used for transactions under the Plan, address changes, general shareowner inquiries and Plan Transaction Requests, you may contact the Plan Administrator as follows:
NorthWestern Energy Group, Inc.
c/o Computershare
P.O. Box 43006
Providence, RI 02940-3006
For overnight delivery services:
NorthWestern Energy Group, Inc.
c/o Computershare
150 Royall St.
Canton, MA 02021
Telephone: 1 (800) 368-5948
Internet: www.computershare.com/investor
Be sure to include a reference to the Plan in your correspondence.
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USE OF PROCEEDS
The Company has no basis for estimating either the number of shares of Common Stock that ultimately will be sold pursuant to the Plan or the prices at which such shares will be sold. Except to the extent shares of Common Stock are purchased directly from the Company, the Company will receive no proceeds from the offering of Common Stock through the Plan. To the extent shares are purchased from the Company, the net proceeds from the sale of such shares will be added to the general funds of the Company and used for its general corporate purposes.
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PLAN OF DISTRIBUTION
The shares of Common Stock being offered by this prospectus may consist of shares acquired in the open market or authorized but unissued shares or treasury shares acquired directly from the Company, at the Company’s sole discretion. Open market purchases will be made through an Independent Broker, who will purchase shares on the Nasdaq Stock Market LLC or in privately negotiated transactions.
As of the date of this prospectus, shares of Common Stock purchased for participants under the Plan are purchased from authorized but unissued shares. The primary consideration in determining the source of shares of Common Stock to be used for purchases under the Plan is expected to be our need to increase equity capital. If we do not need to raise funds externally or if financing needs are satisfied using non-equity sources of funds to maintain our targeted capital structure, shares of Common Stock purchased for participants under the Plan will be purchased in the open market. we may not change our determination regarding the source of purchases of shares under the Plan more than once in any three-month period.
Persons who acquire shares of our Common Stock through the plan and resell them shortly after acquiring them, including coverage of short positions, under certain circumstances, may be participating in a distribution of securities that would require compliance with Regulation M under the Securities Exchange Act of 1934, and may be considered to be underwriters within the meaning of the Securities Act of 1933. We will not extend to any such person any rights or privileges other than those to which it would be entitled as a participant, nor will we enter into any agreement with any such person regarding the resale or distribution by any such person of the shares of our common stock so purchased.
We will pay any and all fees and related expenses incurred in connection with purchases of our Common Stock under the Plan. Participants will have to pay a transaction fee and a per share trading fee (which includes applicable brokerage fees and commissions the Plan administrator is required to pay) in connection with any voluntary sale of shares under the Plan.
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DESCRIPTION OF COMMON STOCK
Our authorized capital stock includes 200 million shares of Common Stock. The description of the Common Stock contained in our filings with the SEC is incorporated by reference into this prospectus. See “Where You Can Find More Information” for information on how to obtain a copy of these descriptions. As of September 29, 2023, there were 61,241,779 shares of our Common Stock outstanding.
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LEGAL MATTERS
The legality of the Common Stock of the Company offered hereby has been passed upon for the Company by Timothy P. Olson, Senior Corporate Counsel and Corporate Secretary, NorthWestern Energy Group, Inc., who owns less than 1% of the outstanding Common Stock.
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EXPERTS
The consolidated financial statements of NorthWestern Corporation as of December 31, 2022 and 2021, and for each of the three years in the period ended December 31, 2022, incorporated by reference in this Prospectus, and the effectiveness of NorthWestern Corporation’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such consolidated financial statements are incorporated by reference in reliance upon the reports of such firm given their authority as experts in accounting and auditing.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
On one or more occasions, we may make statements in this prospectus regarding our assumptions, projections, expectations, targets, intentions or beliefs about future events. All statements other than statements of historical facts, included or incorporated by reference in this prospectus, relating to our current expectations of future financial performance, continued growth, changes in economic conditions or capital markets and changes in customer usage patterns and preferences are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Words or phrases such as “anticipates,” “may,” “will,” “should,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “targets,” “will likely result,” “will continue” or similar expressions identify forward-looking statements. Forward-looking statements involve risks and uncertainties, which could cause actual results or outcomes to differ materially from those expressed. We caution that while we make such statements in good faith and believe such statements are based on reasonable assumptions, including without limitation, our examination of historical operating trends, data contained in records and other data available from third parties, we cannot assure you that we will achieve our projections. Factors that may cause such differences include, but are not limited to:
•adverse determinations by regulators, as well as potential adverse federal, state, or local legislation or regulation, including costs of compliance with existing and future environmental requirements, could have a material effect on our liquidity, results of operations and financial condition;
•the impact of extraordinary external events and natural disasters, such as a wide-spread or global pandemic, geopolitical events, earthquake, flood, drought, lightning, weather, wind, and fire, could have a material effect on our liquidity, results of operations and financial condition;
•acts of terrorism, cybersecurity attacks, data security breaches, or other malicious acts that cause damage to our generation, transmission, or distribution facilities, information technology systems, or result in the release of confidential customer, employee, or Company information;
•supply chain constraints, recent high levels of inflation for product, services and labor costs, and their impact on capital expenditures, operating activities, and/or our ability to safely and reliably serve our customers;
•changes in availability of trade credit, creditworthiness of counterparties, usage, commodity prices, fuel supply costs or availability due to higher demand, shortages, weather conditions, transportation problems or other developments, may reduce revenues or may increase operating costs, each of which could adversely affect our liquidity and results of operations;
•unscheduled generation outages or forced reductions in output, maintenance or repairs, which may reduce revenues and increase operating costs or may require additional capital expenditures or other increased operating costs;
•adverse changes in general economic and competitive conditions in the U.S. financial markets and in our service territories; and
•other risk factors listed from time to time in the reports we file with the SEC.
We have attempted to identify, in context, certain of the factors that we believe may cause actual future experience and results to differ materially from our current expectation regarding the relevant matter or subject area. In addition to the items specifically discussed above, our business and results of operations are subject to the uncertainties described under the caption “Risk Factors” in the Old NWE annual report on Form 10-K for the fiscal year ended December 31, 2022, and subsequent reports filed with the SEC.
From time to time, oral or written forward-looking statements are also included in our reports filed with the SEC on Forms 10-K, 10-Q and 8-K, Proxy Statements on Schedule 14A, press releases, analyst and investor conference calls, and other communications released to the public. We believe that at the time made, the
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expectations reflected in all of these forward-looking statements are and will be reasonable. However, any or all of the forward-looking statements in this prospectus, our reports filed with the SEC on Forms 10-K, 10-Q and 8-K, our Proxy Statements on Schedule 14A and any other public statements that are made by us may prove to be incorrect. This may occur as a result of assumptions, which turn out to be inaccurate, or as a consequence of known or unknown risks and uncertainties. Many factors discussed in this prospectus, certain of which are beyond our control, will be important in determining our future performance. Consequently, actual results may differ materially from those that might be anticipated from forward-looking statements. In light of these and other uncertainties, you should not regard the inclusion of any of our forward-looking statements in this prospectus or other public communications as a representation by us that our plans and objectives will be achieved, and you should not place undue reliance on such forward-looking statements.
Any forward-looking statement speaks only as of the date on which such statement is made, and, except as required by law, we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which such statement is made or to reflect the occurrence of anticipated events. New factors emerge from time to time and it is not possible for management to predict all such factors.
We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. However, your attention is directed to any further disclosures made on related subjects in our reports filed with the SEC on Forms 10-K, 10-Q and 8-K, and Proxy Statements on Schedule 14A.
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WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3 that we have filed with the SEC relating to the Plan. As described below, you may obtain from the SEC a copy of the registration statement and exhibits that we filed with the SEC when we registered the securities. The registration statement may contain additional information that may be important to you. Statements made in this prospectus about legal documents may not necessarily be complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC.
On October 2, 2023, Old NWE implemented a holding company reorganization by and among Old NWE, New NWE, and Merger Sub, which resulted in New NWE owning all of the outstanding capital stock of Old NWE. Pursuant to the Merger, Merger Sub, a direct, wholly-owned subsidiary of New NWE and an indirect, wholly-owned subsidiary of the Old NWE, merged with and into Old NWE, with Old NWE surviving as a direct, wholly-owned subsidiary of New NWE.
Our predecessor, NorthWestern Corporation, filed and we will file reports on Forms 10-K, 10-Q and 8-K, Proxy Statements on Schedule 14A, and other information with the SEC. The SEC filings of our predecessor, NorthWestern Corporation, and our SEC filings are available to the public on the SEC’s website (http://www.sec.gov) or on our website (http://www.northwesternenergy.com). However, the information on our website does not constitute a part of this prospectus.
We “incorporate by reference” into this prospectus certain information of predecessor, NorthWestern Corporation, filed and we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the documents listed below, which we or our predecessor, NorthWestern Corporation, already have filed with the SEC:
•Old NWE’s Annual Report on Form 10-K for the year ended December 31, 2022;
•Old NWE’s Quarterly Reports on Form 10-Q for the quarters ending March 31, 2023, and June 30, 2023;
•Old NWE’s Current Reports on Form 8-K filed on January 5, 2023, January 17, 2023, February 23, 2023, April 5, 2023, April 5, 2023, May 3, 2023, May 5, 2023, June 7, 2023, June 9, 2023, June 15, 2023, July 6, 2023, and October 2, 2023 and our Current Report on Form 8-K filed on October 2, 2023;
•the description of our common stock contained in our Current Report on Form 8-K filed with the SEC on October 2, 2023; and
•Any future filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934; provided that we are not incorporating any information furnished under Item 2.02 or 7.01 of any current report on Form 8-K unless specifically stated otherwise.
For information about the Plan or the Company, you should rely only on the information contained or incorporated by reference in this prospectus. The Company has not authorized anyone else to provide you with different or additional information. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information in this prospectus is accurate as of the date of the prospectus. This prospectus may be updated by means of supplemental or revised prospectuses and will be updated by the future filing of the Company’s reports with the SEC, described above.
The Company will provide, without charge, a copy of any or all of the documents incorporated by reference in this prospectus (but not exhibits to such documents, unless the exhibits themselves are specifically incorporated by reference in such documents) upon written or oral request. Requests should be directed to: Investor Relations, NorthWestern Energy Group, Inc., 3010 W. 69th Street, Sioux Falls, South Dakota 57108, telephone number: 605-978-2900.
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DIVIDEND REINVESTMENT AND
DIRECT STOCK PURCHASE PLAN
COMMON STOCK
$0.01 Par Value
PROSPECTUS
October 2, 2023
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The table below sets forth the costs and expenses to be incurred in connection with the securities being registered. All of the amounts are estimates except for the registration fee of the Securities and Exchange Commission.
| Registration fee | $ | 2,895 | |||
| Printing expenses | 5,000 | ||||
| Legal fees and expenses | 10,000 | ||||
| Accounting fees and expenses | 1,500 | ||||
| Miscellaneous | 605 | ||||
| Total | $ | 20,000 | |||
Item 15. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”), enables a corporation incorporated in the State of Delaware to eliminate or limit, through provisions in its original or amended certificate of incorporation, the personal liability of a director for violations of the director’s fiduciary duties, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) any liability imposed pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit. The Company’s Amended and Restated Certificate of Incorporation does contain provisions limiting the liability of the Company’s officers and directors consistent with Section 102(b)(7) of the DGCL.
Section 145 of the DGCL provides that a corporation incorporated in the State of Delaware may indemnify any person or persons, including officers and directors, who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee, or agent acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, for criminal proceedings, had no reasonable cause to believe that the challenged conduct was unlawful. A corporation incorporated in the State of Delaware may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must provide indemnification against the expenses that such officer or director actually and reasonably incurred.
The Company’s Amended and Restated Certificate of Incorporation and Bylaws provide for indemnification of its directors and officers to the fullest extent permitted by the DGCL.
Indemnification Agreements
The Company currently has no indemnification agreements with any of its current directors or senior executives. In the past, the Company had indemnification agreements with certain of its then current directors and senior executives. The indemnification agreements generally require the Company to indemnify and hold such persons harmless to the greatest extent permitted by law for liabilities arising out of such person’s prior service to
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the Company as a director or manager, if such person acted in good faith and in a manner that the person reasonably believed to be in or not opposed to the Company’s best interests and, with respect to criminal proceedings, if the person had no reasonable cause to believe that his or her conduct was unlawful. In addition, the indemnification agreements provide that the Company will make an advance payment of expenses to such person who has entered into an indemnification agreement, if such person requests such advance payment of expenses related to attorney fees and/or court costs, in connection with any proceeding relating to any fact or occurrence arising from or relating to events or occurrences specified in this paragraph.
Insurance
Section 145(g) of the DGCL authorizes a corporation incorporated in the State of Delaware to provide liability insurance for directors and officers for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers of the corporation. The Company maintains a policy insuring its directors and officers and directors and officers of its subsidiary companies, to the extent they may be required or permitted to indemnify such directors or officers, against certain liabilities arising from acts or omission in the discharge of their duties that they shall become legally obligated to pay.
Item 16. Exhibits
(a) The following are exhibits to this registration statement:
| Exhibit Number | Description of Document | |||||||
3.1(a)** | ||||||||
3.2(a)** | ||||||||
| 5.1** | ||||||||
| 23.1** | ||||||||
| 23.2** | ||||||||
24.1** | ||||||||
107** | ||||||||
__________________
** Filed herewith
Item 17. Undertakings
The undersigned registrant hereby undertakes:
1.To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i.To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
ii.To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
iii.To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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Provided however, That:
A.Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and
B.Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
2.That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3.To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4.That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
i.If the registrant is relying on Rule 430B:
A.Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
B.Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
ii.If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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5.That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
i.Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
ii.Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
iii.The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
iv.Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, NorthWestern Energy Group, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Sioux Falls, South Dakota, on October 2, 2023.
| NORTHWESTERN CORPORATION | |||||
| By: | /s/ Brian B. Bird | ||||
| Brian B. Bird | |||||
| President and Chief Executive Officer | |||||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
/s/ Brian B. Bird | President, Chief Executive Officer and Director | October 2, 2023 | ||||||||||||
| Brian B. Bird | (Principal Executive Officer) | |||||||||||||
| * | Vice President and Chief Financial Officer | October 2, 2023 | ||||||||||||
| Crystal Lail | (Principal Financial Officer) | |||||||||||||
| * | Controller | October 2, 2023 | ||||||||||||
| Jeffrey B. Berzina | (Principal Accounting Officer) | |||||||||||||
| * | Director and Chair of the Board | October 2, 2023 | ||||||||||||
| Dana J. Dykhouse | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Anthony T. Clark | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Sherina Edwards | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Jan R. Horsfall | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Britt E. Ide | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Kent Larson | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Linda G. Sullivan | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Mahvash Yazdi | ||||||||||||||
| * | Director | October 2, 2023 | ||||||||||||
| Jeffrey W. Yingling | ||||||||||||||
| * By | /s/ Brian B. Bird | |||||||
| Brian B. Bird | ||||||||
| Attorney-in-Fact | ||||||||
Exhibit 3.1(a)
Amended and Restated
Certificate of Incorporation
of
NorthWestern Energy Group, Inc.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
NorthWestern Energy Group, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “GCL”),
DOES HEREBY CERTIFY:
1. That the name of this corporation is NorthWestern Energy Group, Inc., and that this corporation was incorporated in Delaware pursuant to the General Corporation Law on May 30, 2023.
2. That the Board of Directors duly adopted resolutions proposing to adopt this Amended and Restated Certificate of Incorporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:
ARTICLE 1
NAME
The name of the Corporation is NorthWestern Energy Group, Inc. (the “Corporation”).
ARTICLE 2
ADDRESS AND AGENT
The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at that address is The Corporation Trust Company.
ARTICLE 3
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the GCL.
ARTICLE 4
STOCK
4.1Authorized Capital Stock. The total number of shares of stock which the Corporation shall have authority to issue is 250,000,000 consisting of (i) 200,000,000 shares of common stock, par value of $.01 per share (the “Common Stock”), and (ii) 50,000,000 shares of preferred stock, par value of $.01 per share (the “Preferred Stock”).
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4.2Common Stock. The designations, powers (including voting powers), preferences and rights, and the qualifications, limitations and restrictions, of the Common Stock are as follows:
(a)Dividends. Subject to the terms of any outstanding series of Preferred Stock and any other provisions of this Amended and Restated Certificate of Incorporation, as it may be amended from time to time (the “Certificate of Incorporation”), holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor.
(b)Liquidation, Dissolution, Winding Up. In the event of any liquidation, dissolution or winding up (either voluntary or involuntary) of the Corporation resulting in any distribution of its assets to its stockholders, subject to the terms of any outstanding series of Preferred Stock, the holders of the Common Stock shall be entitled to receive pro rata the assets of the Company legally available for distribution to its stockholders.
(c)Voting. Except as otherwise required by law and subject to the terms of any outstanding series of Preferred Stock, each outstanding share of Common Stock shall be entitled to one vote per share held of record by such holder on all matters presented to stockholders for a vote; provided, however, that holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation (as defined below)) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or the GCL.
4.3Preferred Stock. The Board of Directors is hereby expressly authorized, by resolution or resolutions thereof, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter referred to as a "Preferred Stock Designation"), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers (including voting powers, if any), preferences, and relative participating optional or other special rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The powers, preferences and relative, participating optional or other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. All shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except that shares of any one series issued at different times may differ as to the date from which dividends thereon, if any, shall be cumulative. The number of shares of any series of Preferred Stock may be increased (but not above the total number of authorized shares of Preferred Stock) or decreased (but not below the number of shares then outstanding) by a certificate executed, acknowledged and filed in accordance with the GCL setting forth a statement that such increase or decrease was authorized and directed by resolution or resolutions of the Board of Directors of the Corporation. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the Common Stock, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock Designation. Nothing contained herein shall be deemed to limit any rights of the holders of any series of Preferred Stock as expressly granted or indicated pursuant to the terms of the applicable Preferred Stock Designation.
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4.4Nonvoting Stock. Notwithstanding anything to the contrary in this Certificate of Incorporation, the Corporation shall not issue any nonvoting equity securities to the extent prohibited by Section 1123 or Section 365 of Title 11 of the United States Code (the “United States Bankruptcy Code”) as in effect on the effective date of the Plan of Reorganization of the Corporation, duly confirmed by the Bankruptcy Court in Jointly Administered Case No. 03-12872 (CGC) (the “Effective Date”); provided, however, that this Section 4.4 of Article 4, (a) shall have no further force and effect beyond that required under Section 1123 of the United States Bankruptcy Code, (b) shall have such force and effect, if any, only for so long as such Section is in effect and applicable to the Corporation, and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time in effect.
4.5Action in Lieu of Meetings. Subject to rights, if any, of any series of Preferred Stock then outstanding, any action required or permitted to be taken by the stockholders must be effected at an annual or special meeting of stockholders and may not be effected by any consent in writing of such stockholders.
ARTICLE 5
DIRECTORS
5.1Number and Election of Directors. Subject to rights, if any, of any series of Preferred Stock then outstanding, the number of Directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation. Within the limits specified herein and in the Corporation’s Bylaws, the election of Directors shall be determined by the stockholders of the Corporation by a plurality of the votes cast by the shares of capital stock present in person or represented by proxy at the meeting in which the election of Directors is considered and entitled to vote in the election of Directors. The Directors need not be stockholders of the Corporation.
5.2Term of Office. The Board of Directors elected at or as of the Effective Date shall hold office until the first annual meeting of stockholders held after the Effective Date and until their successors have been duly elected and qualified or until there is a decrease in the number of Directors. Thereinafter, Directors will be elected at the annual meeting of stockholders and shall hold office until the annual meeting of the stockholders next succeeding his election, or until his or her successor shall have been duly elected and qualified or until such Director’s death, resignation or removal. Any Director who is also an executive officer of the Corporation shall, immediately upon ceasing to be an executive officer of the Corporation for any reason whatsoever, be disqualified from continuing to serve as a Director and such Director's term of office as a Director shall thereupon automatically expire.
5.3Removal of Directors. Except for directors elected by a series of Preferred Stock then outstanding, any Director or the entire Board of Directors may be removed, with or without cause, and by the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation then entitled to vote at an election of Directors, voting together as a single class. Nothing in this Section 5.3 shall be deemed to affect any rights of the holders of any series of Preferred Stock to remove Directors pursuant to any applicable provisions of the Certificate of Incorporation.
5.4Vacancies. Subject to the rights, if any, of any series of Preferred Stock then outstanding, and except as otherwise provided in this Certificate of Incorporation, any vacancy, whether arising through death, resignation, retirement, removal or disqualification of a Director, and any newly-created directorship resulting from an increase in the number of Directors, shall be filled solely by a majority vote of the remaining Directors even though less than a quorum of the Board of Directors. A Director so elected to fill a vacancy or newly-created directorship shall serve until the next annual meeting of the stockholders, or until his or her successor shall have been duly elected and qualified or
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until such Director’s death, resignation or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
5.5Written Ballot. Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
ARTICLE 6
LIABILITY AND INDEMNITY
6.1Limitation of Liability of Directors. No Director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent that such elimination or limitation of liability is not permitted under the GCL, as the same exists or may hereafter be amended.
6.2Right to Indemnification. To the fullest extent permitted by law, the Corporation shall indemnify and hold harmless any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that such person, or the person for whom he is the legally representative, is or was a Director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans (any such person, a “Section 6.2 Indemnitee”), against all liabilities, losses, expenses (including attorney’s fees), judgments, fines and amounts paid in settlement (“expenses”) actually and reasonably incurred by such person in connection with such proceeding; provided, however, that except as otherwise provided in Section 6.4, the Corporation shall only be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person if the commencement of such proceeding (or part thereof) was authorized by the Board of Directors.
6.3Prepayment of Expenses. The Corporation shall pay the expenses incurred by a Section 6.2 Indemnitee in defending any proceeding in advance of its final disposition, provided that, to the extent required by law, the payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by such person to repay all amounts advanced if it should be ultimately determined that such person is not entitled to be indemnified under this Article or otherwise. The Corporation may pay the expenses incurred by any other person in defending any proceeding in advance of its final disposition upon such terms and conditions as the Board of Directors deems appropriate.
6.4Claims. If a claim for indemnification or advancement of expenses under Section 6.2 or Section 6.3 is not paid in full within sixty (60) days after a written claim therefor by a Section 6.2 Indemnitee has been received by the Corporation, such Section 6.2 Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Corporation shall have the burden of proving that such Section 6.2 Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable law.
6.5Repeal or Modification. Any amendment, repeal or modification of the provisions of this Article or applicable law shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring before the time of such amendment, repeal or modification regardless of whether the proceeding is brought or threatened before or after the time of such amendment, repeal or modification.
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6.6Non-Exclusivity of Rights. The right to indemnification and advancement of expenses conferred on any person by this Article shall not be exclusive of any other rights such person may have or acquire under any other provision hereof, the Bylaws or by law, agreement, vote of stockholders or disinterested Directors or otherwise.
6.7Survival of Rights. The right to indemnification and prepayment of expenses conferred on any person by this Article shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
6.8Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against any liability or expenses incurred by such person in connection with a proceeding, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article or by law.
6.9Other Sources. The Corporation's obligation, if any, to indemnify or advance expenses to any Section 6.2 Indemnitee who was or is serving at the Corporation's request as a director or officer of another corporation or a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, shall be reduced by any amount such Section 6.2 Indemnitee may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit entity.
6.10Other Indemnification and Advancement of Expenses. This Article 6 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Section 6.2 Indemnitees when and as authorized by appropriate corporate action.
ARTICLE 7
BYLAWS AND CERTIFICATE OF INCORPORATION
7.1Creation, Amendment and Repeal of Bylaws. In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power to adopt, alter, amend or repeal the Bylaws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any Bylaws whether adopted by them or otherwise.
7.2Amendment of Certificate of Incorporation. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, Directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Section 7.2 of Article 7.
ARTICLE 8
INTERESTED STOCKHOLDER TRANSACTIONS
8.1Purpose. In addition to any affirmative vote required by law or by this Certificate of Incorporation, any Business Combination (as defined in Section 8.2 of this Article 8) respecting the Corporation shall require the approval of the stockholders of the Corporation pursuant to Section 8.5 of this Article 8 or the approval of the Directors of the Corporation pursuant to Section 8.4 of this Article 8.
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8.2Certain Definitions. For the purposes of this Article 8:
(a)“Act” shall mean the Securities Exchange Act of 1934, as amended.
(b)“Affiliate,” “affiliated” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Act.
(c)A person shall be a “beneficial owner” of, or “beneficially own,” or have “beneficial ownership” of, any Voting Stock if such person has or shares, directly or indirectly, through any agreement, arrangement or understanding or otherwise:
(i)voting power which includes the power to vote, or to direct the voting of, such Voting Shares (other than pursuant to a revocable proxy given to such person or any of its Affiliates or Associates in response to a public proxy solicitation made pursuant to, and in accordance with, all applicable requirements of the Act and the rules and regulations promulgated thereunder); and/or
(ii)investment power which includes the right to acquire such Voting Stock (whether or not such right is immediately exercisable) pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or the power to direct the dispose or, or direct the disposition of, such Voting Stock.
(d)“Business Combination” shall include:
(i)any merger or consolidation of the Corporation or any Subsidiary with (A) an Interested Stockholder or (B) any other corporation (whether or not itself an Interested Stockholder) that is, or after such merger would be, an Affiliate of an Interested Stockholder;
(ii)any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with an Interested Stockholder or aft Affiliate of an Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value equal to 15% or more of either the aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all of the outstanding stock of the Corporation;
(iii)the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary to an Interested Stockholder or any Affiliate of an Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value equal to 15% or more of either the aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all of the outstanding stock of the Corporation;
(iv)the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of an Interested Stockholder; or
(v)any reclassification of the Corporation’s securities (including any reverse stock split), recapitalization of the Corporation, merger or consolidation of the Corporation with any Subsidiary or any other transaction (whether or not involving an Interested Stockholder) that has the effect, directly or indirectly, of increasing the proportionate beneficial ownership of an Interested Stockholder or any Affiliate of an Interested Stockholder in the outstanding shares of any class of equity or securities convertible into any class of equity securities of the Corporation or of any Subsidiary.
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(e)“Disinterested Director” shall mean any member of the Board of Directors of the Corporation who is not an Affiliate, Associate or representative of the Interested Stockholder and was a member of the Board of Directors prior to the time that such Interested Stockholder became an Interested Stockholder, and any successor of a Disinterested Director who is not an Affiliate, Associate or representative of the Interested Stockholder and is nominated for election as a Director or elected as a Director to succeed a Disinterested Director by a majority of the Disinterested Directors then on the Board of Directors.
(f)“Interested Stockholder” shall mean any person (other than the Corporation or any Subsidiary) that:
(i)is itself, or together with its Affiliates, the beneficial owner, directly or indirectly, of 10% or more of the Voting Stock;
(ii)is an Affiliate of the Corporation and at any time during the prior two years was the beneficial owner, itself, or together with its Affiliates, directly or indirectly, of 10% or more of the then outstanding Voting Stock; or
(iii)is an assignee of or has otherwise succeeded to any shares of Voting Stock of which an Interested Stockholder was the beneficial owner at any time during the prior two years, unless such assignment or succession occurs in a transaction that is a public offering within the meaning of the Securities Act of 1933;
provided however, that in determining whether a person is an Interested Stockholder, the number of shares of Voting Stock deemed to be outstanding shall include shares of which the Interested Stockholder is deemed to have beneficial ownership through application of Section 8.2(c) of this Article 8 but shall not include any other shares of Voting Stock that may be issuable pursuant to any agreement arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise.
(g)A “person” shall mean any individual, corporation, company, association, partnership, limited partnership, limited liability limited partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
(h)“Subsidiary” means, with respect to a party, any corporation, company, association, partnership, joint venture, limited partnership, limited liability limited partnership, limited liability company or other business association or entity, whether incorporated or unincorporated, of which (i) such party or any other Subsidiary of such party is a general partner or a managing member (excluding partnerships, the general partnership interests of which are held by such party and/or one or more of its Subsidiaries do not have a majority of the voting interest in such partnership), (ii) such party and/or one or more of its Subsidiaries holds voting power to elect a majority of the board of directors or other governing body performing similar functions, (iii) such party and/or one or more of its Subsidiaries, directly or indirectly, owns or controls more than 50% of the equity, membership, partnership or similar interests or (iv) such party and/or one or more of its Subsidiaries has the right to receive 50% or more of the distribution of profits or 50% or more of the assets on liquidation or dissolution.
(i)“Voting Stock” shall mean the outstanding shares of capital stock of the Corporation entitled to vote generally and shall not mean the shares of capital stock of any predecessor corporation.
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8.3Powers of the Board of Directors. For purposes of this Article 8, a majority of the Disinterested Directors of the Corporation present at a meeting at which a quorum is present shall have the power and duty to determine in good faith, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Article 8, including, without limitation, (i) whether a person is an Interested Stockholder, (ii) the number of shares of Voting Stock of which a person is the beneficial owner, and (iii) whether a person is an Affiliate or Associate of another.
8.4Approval by Board of Directors. A Business Combination that is approved by a majority of the Disinterested Directors shall not require the approval of the stockholders pursuant to Section 8.5 of this Article 8.
8.5Approval by Stockholders. Unless a proposed Business Combination is approved by the Directors of the Corporation pursuant to Section 8.4 of this Article 8, such Business Combination shall require, except as otherwise prohibited by applicable law, the affirmative vote of the holders of at least 66 2/3% of the Voting Stock, voting together as a single class, excluding shares of Voting Stock that are beneficially owned by the Interested Stockholder or any Affiliate of any Interested Stockholder. Such affirmative vote shall be required notwithstanding the fact that no vote or a lesser vote may be required by law, the Bylaws of the Corporation, by any agreement with any national securities exchange, or otherwise.
8.6No Effect on Fiduciary Obligations of Interested Stockholders. Nothing contained in this Article 8 shall be construed to relieve an Interested Stockholder from any fiduciary obligation imposed by law.
8.7Amendment, Repeal or Modification. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, but in addition to any vote of the holders of any class or series of Stock of the Corporation required by law or this Certificate of Incorporation, the affirmative vote of the holders of at least sixty six and two-thirds percent (66 2/3%) of the Voting Stock, voting together as a single class, shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article 8.
ARTICLE 9
SECTION 203 OF DELAWARE GENERAL CORPORATION LAW
The Corporation shall be governed by Section 203 of the General Corporation Law of the State of Delaware as it may be amended from time to time.
* * *
3. That the foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation in accordance with Section 228 of the General Corporation Law.
4. That this Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of this Corporation’s Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
5. This Amended and Restated Certificate of Incorporation shall be effective as of September 29, 2023.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 25th day of September, 2023.
| NORTHWESTERN ENERGY GROUP, INC. | ||||||||
| By: | /s/ Brian B. Bird | |||||||
| Name: | Brian B. Bird | |||||||
| Title: | President | |||||||
Signature Page to Amended and Restated Certificate of Incorporation of NorthWestern Energy Group, Inc.
Exhibit 3.2(a)
Effective September 29, 2023
AMENDED AND RESTATED BYLAWS
OF
NORTHWESTERN ENERGY GROUP, INC.,
A DELAWARE CORPORATION
ARTICLE I.
OFFICES
Registered Office. The registered office of the NorthWestern Energy Group, Inc. (the “Corporation”) shall be located in the City of Wilmington, County of New Castle, and State of Delaware.
Other Offices. The Corporation also may have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. All meetings of the stockholders for the election of Directors or for any other purpose shall be held at such place, within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, or if authorized by the Board of Directors may be held by means of remote communication in accordance with applicable law.
Section 2.2 Annual Meeting. The annual meeting of stockholders for the election of Directors and for such other business as may properly be conducted at such meeting shall be held at such time and date as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. The Board of Directors shall have the authority to postpone to a later date and/or time the annual meeting of stockholders.
Section 2.3 Special Meetings. Special meetings of stockholders of the Corporation may be called by the Chairman of the Board, the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board of Directors, or upon written notice to the Board of Directors by holders of 25% or more of the outstanding shares of voting capital stock of the Corporation, held individually or in the aggregate. For purposes of these Bylaws, the term “Whole Board of Directors” shall mean the total number of authorized Directors whether or not there exist any vacancies in previously authorized directorships. Business transacted at special meetings shall be confined to the purpose or purposes stated in the notice of meeting. Nothing in this Section 2.3 shall be deemed to affect any rights of the holders of any series of Preferred Stock to call special meeting pursuant to any applicable provisions of the Certificate of Incorporation.
Section 2.4 Notice of Meetings. Unless otherwise required by law or the Amended and Restated Certificate of Incorporation of the Corporation as the same may be amended from time to time (the “Certificate of Incorporation”), written notice of the date, time and place, if any, of the annual and of any special meeting of the stockholders shall be given to each stockholder entitled
to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Such written notice of any meeting of stockholders shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose of the meeting.
Section 2.5 Manner of Giving Notice. Except as otherwise required by the Certificate of Incorporation or as otherwise provided herein, notices to stockholders shall be in writing and delivered personally or mailed to stockholders at their address appearing on the books of the Corporation. Notice to stockholders may be given by telegram, telecopier, telephone, facsimile or any other means of electronic transmission.
Section 2.6 Waiver of Notice. A written waiver of any notice, signed by a stockholder, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of notice except attendance for the sole purpose of objecting to the timeliness of notice at the beginning of the meeting.
Section 2.7 Chairman and Secretary. The Chairman of the Board, or in the Chairman’s absence the Chief Executive Officer, or in the Chief Executive Officer’s absence the President, or in the President’s absence the Chief Operating Officer, or in the Chief Operating Officer’s absence a Vice President, or in the absence of a Vice President a chairman designated by the Board of Directors, shall preside over and act as chairman of the meeting of the stockholders. The Corporate Secretary, or an Assistant Corporate Secretary, of the Corporation shall act as secretary at all meetings of the stockholders, but in their absence, a secretary designated by the chairman of the meeting shall act as secretary of the meeting of the stockholders.
Section 2.8 Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date, unless otherwise required by law, shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 2.9 Persons Entitled to Vote. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of each such stockholder and the number of shares of capital stock registered in his or her name, shall be prepared and made by the officer who has charge of the stock ledger of the Corporation, at least ten (10) days before every meeting of stockholders, and shall be open to the examination of any such stockholder in the manner provided by law. The stockholder list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of
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any such stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.9 or to vote in person or by proxy at any meeting of stockholders.
Section 2.10 Quorum. Unless otherwise required by law or the Certificate of Incorporation, the holders of a majority in voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to be voted at a meeting of the stockholders represented in person or by proxy, shall constitute a quorum for the transaction of business at such meeting. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided by Section 2.11 of these Bylaws until a quorum shall attend. The stockholders present at a duly called or held meeting of the stockholders at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum; provided that any action taken (other than adjournment) is approved by the vote required by Section 2.12 of these Bylaws. In the absence of a quorum, no business other than adjournment may be transacted, except as described in this Section 2.10.
Section 2.11 Adjournment. Any meeting of the stockholders may be adjourned from time to time either by the Chairman of the meeting or by a majority in voting power represented by the stockholders entitled to vote at the meeting, present in person or represented by proxy. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted by a quorum of the stockholders at the meeting as originally convened. Notice need not be given of any adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment action is taken, unless the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, in which case a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.12 Voting and Proxies. Unless otherwise required by law or the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder. Each stockholder of record entitled to vote at a meeting of stockholders may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him or her by proxy. No such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by delivering a proxy in accordance with applicable law bearing a later date to the Corporate Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of Directors, a plurality of the votes cast by the shares of capital stock present in person and represented by proxy at the meeting at which the election of Directors is considered and entitled to vote in the election of Directors shall be sufficient to elect. All other elections and questions shall, unless otherwise required by law, the Certificate of Incorporation, or the rules or regulations of any stock exchange applicable to the Corporation, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Corporation which are present in person or by proxy and entitled to vote thereon.
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Section 2.13 Action at Meetings. The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by a duly appointed inspector or inspectors.
Section 2.14 Action in Lieu of Meetings. Subject to rights, if any, of any series of Preferred Stock then outstanding, any action required or permitted to be taken by the stockholders must be effected at an annual or special meeting of stockholders and may not be effected by any consent in writing of such stockholders.
Section 2.15 Remote Communications. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders, by means of remote communications may participate in a meeting of stockholders, and shall be deemed present in person and may vote at a meeting of stockholders; provided that (i) reasonable procedures have been implemented to verify that each person deemed present and permitted to vote at the meeting by means of remote communications is a stockholder or proxyholder, (ii) reasonable procedures are implemented to provide stockholders and proxyholders participating in the meeting by means of remote communications with a reasonable opportunity to participate in the meeting and to vote on matters submitted to stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with the proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communications, a record of such vote or other action shall be maintained by the Corporation.
Section 2.16 Nominations and Proposals. Subject to the next sentence, this Section 2.16 sets forth the procedures that stockholders must follow in connection with the nomination of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders at any annual or special meeting of stockholders of the Corporation. Notwithstanding any other provision of this Section 2.16 to the contrary, nothing in this Section 2.16 shall be deemed to affect any rights (i) of stockholders to request inclusion in the Corporation’s proxy statement of proposals pursuant to Rule 14a-8, or nominees for director in accordance with any rules as promulgated under Regulation 14A (or any successor rule[s] thereof) under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or (ii) of the holders of any series of Preferred Stock to elect Directors pursuant to any applicable provisions of the Certificate of Incorporation.
a) Nominations and Proposals at Annual Meetings. Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at any annual meeting of stockholders only (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors, or (iii) by any stockholder of the Corporation (A) who is a stockholder of record on the date the stockholder’s notice provided for in this Section 2.16 is delivered to the Corporate Secretary and on the record date for the determination of stockholders entitled to vote
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at such annual meeting, and (B) who complies with the applicable notice procedures set forth in this Section 2.16.
b) Stockholder Notice for Annual Meetings. For nominations or other business to be properly made by a stockholder at an annual meeting in accordance with this Section 2.16, such stockholder must have given timely notice thereof in proper written form to the Corporate Secretary and any such proposed business other than the nomination of persons for election to the Board of Directors must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice must be delivered to the Corporate Secretary at the principal executive offices of the Corporation not later than ninety (90) days nor earlier than one hundred twenty (120) days prior to the first anniversary date of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, a stockholder’s notice shall also be considered timely if it is so delivered not earlier than one hundred twenty (120) days prior to such annual meeting, nor later than the later of ninety (90) days prior to such annual meeting or ten (10) days after the day on which public announcement of the date of such meeting was first made; provided, further, that in the event that the number of Directors to be elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice shall also be considered timely, but only with respect to nominees for the additional directorships, if it is so delivered not later than ten (10) days after the day on which such public announcement is first made by the Corporation. All notices shall be received by the Corporate Secretary by the close of business on the specified date to be deemed to have been delivered on that date. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period or extend the foregoing time period.
c) Nominations and Proposals at Special Meetings. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the Board of Directors, or (ii) provided that the Board of Directors has determined that Directors shall be elected at such meeting, by any stockholder of the Corporation (A) who is a stockholder of record on the date the stockholders notice provided for in this Section 2.16 is delivered to the Corporate Secretary and on the record date for the determination of stockholders entitled to vote at such special meeting, and (B) who complies with the applicable notice procedures set forth in this Section 2.16.
d) Stockholder Notice for Special Meetings. For nominations to be properly made by a stockholder at a special meeting of stockholders called by the Corporation for the purpose of electing one or more Directors to the Board of Directors in accordance with this Section 2.16, such stockholder must have given timely notice thereof in proper written form to the Corporate Secretary. To be timely, a stockholder’s notice must be delivered to the Corporate Secretary at the principal executive offices of the Corporation not earlier than one hundred twenty (120) days prior to such special meeting, nor later than the later of ninety (90) days prior to such special meeting or ten (10) days after the day on which public announcement of the date of such meeting and the proposed nominees to be elected at such meeting was first made. All notices shall be received by the Corporate Secretary by the close of business on the specified
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date to be deemed to have been delivered on that date. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period or extend the foregoing time period.
e) Form of Stockholders Notice.
(i) To be in proper written form, a stockholder’s notice for both annual and special meetings must set forth:
(A) as to each person whom the stockholder proposes to nominate for election as a Director, (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) the class or series and number of shares of capital stock of the Corporation that are owned beneficially or of record by the person, (4) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder, and (5) such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a Director if elected;
(B) as to any other business that the stockholder proposes to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration, and, in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), (3) the reasons for conducting such business at the meeting, and (4) any material interest of such stockholder in the business being proposed and the beneficial owner, if any, on whose behalf the proposal is being made; and
(C) as to the stockholder giving this notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (1) the name and record address of such stockholder and any such beneficial owner, (2) the class or series and number of shares of capital stock of the Corporation that are owned beneficially or of record by such stockholder and beneficial owner, (3) a description of all arrangements or understandings between such stockholder and any such beneficial owner and each proposed nominee and any other persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (4) a representation that such stockholder is a stockholder of record entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the persons and/or conduct the business being proposed as described in the notice, and (5) a representation of whether such stockholder or any such beneficial owner intends or is part of a group which intends (I) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee, and/or (II) otherwise to solicit proxies from stockholders in support of such proposal or nomination.
(ii) The foregoing notice requirements shall be deemed satisfied by a stockholder with respect to an annual meeting if the stockholder has notified the Corporation of his or her intention to present a proposal at such annual meeting in compliance with Rule 14a-8 or in accordance with any rules set forth under Regulation 14A (or any successor rule[s] thereof)
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promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director of the Corporation.
f) General. Only such persons who are nominated in accordance with the procedures set forth in this Section 2.16 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as Directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.16. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (i) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.16 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by Section 2.16(e)), and (ii) if a proposed nomination or business was not made or proposed in compliance with this Section 2.16, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.16, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. Notwithstanding the foregoing provisions of this Section 2.16, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.16.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1 General Powers. The business of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
Section 3.2 Number of Directors. Subject to the rights, if any, of any series of Preferred Stock then outstanding, the Board of Directors shall consist of not less than five (5) nor more than eleven (11) Directors, with such number to be established, from time to time, by resolution of the Board.
Section 3.3 Term of Office. Directors will be elected at the annual meeting of stockholders and shall hold office until the annual meeting of the stockholders next succeeding his or her election, or until his or her successor shall have been duly elected and qualified or until such Director’s death, resignation or removal. Any Director who is also an executive officer of the Corporation shall, immediately upon ceasing to be an executive officer of the Corporation for any reason whatsoever, be disqualified from continuing to serve as a Director and such Director's term of office as a Director shall thereupon automatically expire.
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Section 3.4 Election. Within the limits specified herein and in the Corporation’s Certificate of Incorporation, the election of Directors shall be determined by the stockholders of the Corporation by a plurality of the votes cast by the shares of capital stock present in person or represented by proxy at the meeting in which the election of Directors is considered and entitled to vote in the election of Directors. The Directors need not be stockholders of the Corporation.
Section 3.5 Resignation. Any Director may resign by delivering a written resignation to the Corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Corporate Secretary or the Board of Directors. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. If the resignation specifies effectiveness at a future time, a successor may be elected pursuant to Section 3.7 of these Bylaws to take office on the date that the resignation becomes effective.
Section 3.6 Removal. Except for such additional directors, if any, elected by a series of Preferred Stock then outstanding, any Director or the entire Board of Directors may be removed, with or without cause, and by the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation then entitled to vote at an election of Directors, voting together as a single class. Nothing in this Section 3.6 shall be deemed to affect any rights of the holders of any series of Preferred Stock to remove Directors pursuant to any applicable provisions of the Certificate of Incorporation.
Section 3.7 Vacancies. Subject to the rights, if any, of any series of Preferred Stock then outstanding, and except as otherwise provided in the Certificate of Incorporation, any vacancy, whether arising through death, resignation, retirement, removal or disqualification of a Director, and any newly-created directorship resulting from an increase in the number of Directors, shall be filled solely by a majority vote of the remaining Directors even though less than a quorum of the Board of Directors. A Director so elected to fill a vacancy or newly-created directorship shall serve until the next annual meeting of the stockholders, or until his or her successor shall have been duly elected and qualified or until such Director’s death, resignation or removal. No decrease in the number of Directors shall shorten the term of any incumbent director.
Section 3.8 Place of Meetings. Any meetings of the Board of Directors may be held either within or without the State of Delaware.
Section 3.9 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors, provided that any Director who is absent when such determination is made shall be given notice of the determination.
Section 3.10 Special Meetings and Notice. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any two Directors, and shall be held at such time and place as may be specified by the officer or Directors calling the meeting. Unless otherwise required by law or the Certificate of Incorporation, notice stating the date, time and place of the meeting shall be given to each Director either by prepaid mail to such Director’s address appearing on the books of the Corporation not less than forty-eight (48) hours before the date of the meeting, or personally or by telegram, facsimile, electronic
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transmission or similar means of communication not less than twenty-four (24) hours before the date of the special meeting.
Section 3.11 Meetings by Telephone Conference Call. Unless otherwise required by law or the Certificate of Incorporation, members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone, electronic meeting system or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.12 Quorum and Adjournment. Unless otherwise required by law or the Certificate of Incorporation, at all meetings of the Board of Directors, the presence of majority of the Whole Board of Directors shall constitute a quorum for the transaction of business (except for the filling of vacancies, which shall be governed by the provisions of Section 3.7). Any meeting of the Board of Directors, or a committee thereof, whether or not a quorum is present, may be adjourned to another time and place by the affirmative vote of a majority of the Directors present. If the meeting is adjourned for more than 24 hours, notice of such adjournment to another time or place shall be given prior to the time of the adjourned meeting to the Directors who were not present at the time of the adjournment.
Section 3.13 Action at Meetings. Unless otherwise required by law or the Certificate of Incorporation, if a quorum is present at any meeting of the Board of Directors, the vote of a majority of the Directors present shall be sufficient to take any action. A meeting at which a quorum is initially present may continue, and Directors may transact business, notwithstanding withdrawal of Directors, if any action taken is approved by at least a majority of the number of Directors constituting a quorum for such meeting.
Section 3.14 Action in Lieu of Meetings. Unless otherwise required by law or the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if all Directors consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.15 Committees. The Board of Directors may, by resolution passed by a majority of the Whole Board of Directors, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may (subject to the committee charter, if any) unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may
Page | 9 | ||
require it. Each committee shall keep regular minutes and report to the Board of Directors when required.
Section 3.16 Meetings and Action of Committees. Meetings and action of committees shall be governed by and held and taken in accordance with the provisions of Sections 3.8 to 3.14, with such changes in the context thereof as are necessary to substitute the committee and its members for the Board of Directors and its members.
Section 3.17 Compensation. Unless otherwise required by law or the Certificate of Incorporation, Directors shall be entitled to receive such fees and expenses, if any, for attendance at meetings of the Board of Directors, and/or such fixed salaries for services as Directors, as may be fixed from time to time by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity as an officer, committee member, agent or otherwise, and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
Section 3.18 Chairman of the Board and Vice Chairman of the Board; Secretary. The Board of Directors shall appoint a Chairman of the Board and may appoint a Vice Chairman of the Board, in its discretion, from among its members. The Chairman of the Board shall preside at all meetings of stockholders and of the Board of Directors. If the Board of Directors appoints a Vice Chairman of the Board, in the absence or disability of the Chairman of the Board, the Vice Chairman of the Board shall preside at all meetings of stockholders and of the Board of Directors. The Corporate Secretary or an Assistant Corporate Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors, but in their absence, a secretary designated by the Chairman of the meeting shall act as secretary of the meeting of the Board.
ARTICLE IV.
OFFICERS
Section 4.1 Designation, Term and Vacancies. The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Corporate Secretary and a Chief Financial Officer and/or Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may elect a Chief Operating Officer, one or more Executive Vice Presidents, Senior Vice Presidents, or Assistant Vice Presidents, who shall have such authority and shall perform such duties as may from time to time be prescribed by the Board of Directors. The Board of Directors may appoint one or more Assistant Corporate Secretaries and one or more Assistant Treasurers, and such other officers as may be deemed necessary, who shall have such authority and shall perform such duties as may from time to time be prescribed by the Board of Directors. Vacancies occurring among the officers of the Corporation shall be filled by the Board of Directors. Subject to Section 4.2 of this Article IV, officers elected by the Board of Directors shall hold office until the next annual election of such officers by the Directors and until their successors are elected and qualified or until such officer’s death, resignation or removal. All other officers, agents and employees shall hold office during the pleasure of the Board of Directors or the officer appointing them. Any two or more offices may be held by the same person, with the exception that the Chief Executive Officer and President shall not also hold the office of Corporate Secretary or the office of Chief Financial Officer and/or Treasurer.
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Section 4.2 Resignation and Removal of Officers. Any officer may resign at any time upon written notice to the Corporation, without prejudice to the rights, if any, of the Corporation under any contract to which such officer is a party. Such resignation shall be effective upon its receipt by the Chairman of the Board, the Chief Executive Officer, the President, the Corporate Secretary or the Board of Directors, unless a different time is specified in the notice for effectiveness of such resignation. The acceptance of any such resignation shall not be necessary to make it effective unless otherwise specified in such notice. Any officer may be removed from office at any time, with or without cause, but subject to the rights, if any, of such officer under any contract of employment, by the Board of Directors or by any committee to whom such power of removal has been duly delegated, or, with regard to any officer who has been appointed by the Chief Executive Officer pursuant to Section 4.3 below, by the Chief Executive Officer or any other officer upon whom such power of removal may be conferred by the Board of Directors. A vacancy occurring in any office for any cause may be filled by the Board of Directors, in the manner prescribed by this Article IV of the Bylaws for initial appointment to such office.
Section 4.3 Chief Executive Officer. The Chief Executive Officer shall be chosen from among the members of the Board of Directors and, subject to the control and direction of the Board of Directors, shall have general charge of the affairs and business of the Corporation and general charge and supervision of all the officers, agents, and employees of the Corporation. He or she shall exercise all powers and perform all duties incident to the principal executive office of the Corporation, subject to the control and direction of the Board of Directors, and such other powers and duties as may from time to time be assigned to him or her by the Board of Directors or be prescribed by these Bylaws. Also in the absence or inability of the Chairman to act, he or she shall preside at all meetings of stockholders. He or she may sign and execute in the name of the Corporation all deeds, mortgages, bonds, contracts, powers of attorney, or other instruments authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation, and he or she may, without previous authority of the Board of Directors, make, in the name of the Corporation, such contracts, leases, and other agreements as the ordinary conduct of the Corporation’s business requires. He or she may sign and endorse notes, drafts, and checks. He or she shall have power to select and appoint all necessary officers and servants, except those elected or appointed or required to be elected or appointed by the Board of Directors, and he or she shall also have power to remove all such officers and servants and to make appointments to fill the vacancies. He or she may delegate any of his or her powers to the President or the Chief Operating Officer of the Corporation.
Section 4.4 President. The President shall perform all acts incident to the office of President, subject to the control and direction of the Board of Directors, and such other powers and duties as may from time to time be assigned to him or her by the Board of Directors or be prescribed by these Bylaws. In the absence or inability of the Chief Executive Officer to act, he or she shall be the Chief Executive Officer of the Corporation.
Section 4.5 Chief Operating Officer. The Chief Operating Officer of the Corporation, if elected, shall have general and active management of and exercise general supervision over the business and property of the Corporation, subject to the control and direction of the Board of Directors, and such other powers and duties as may from time to time be assigned to him or her by the Board of Directors or be prescribed by these Bylaws. He or she may delegate any of his or her powers to any Vice President of the Corporation. In the absence or disability of the President, the Chief Operating Officer shall exercise the powers and perform the duties of the President.
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Section 4.6 Vice Presidents. Each Vice President shall exercise such powers and perform such duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer, the President or the Chief Operating Officer.
Section 4.7 Chief Financial Officer and/or Treasurer. The Chief Financial Officer and/or Treasurer shall perform all acts incident to the office of Chief Financial Officer or Treasurer, subject to the control and direction of the Board of Directors, and such other powers and duties as may from time to time be assigned to him or her by the Board of Directors or be prescribed by these Bylaws. He or she shall have custody of such funds and securities of the Corporation as may come to his or her hands or be committed to his or her care by the Board of Directors. When necessary or proper, he or she shall endorse on behalf of the Corporation, for collection, checks, notes, or other obligations, and shall deposit the same to the credit of the Corporation, in such bank or banks or depositories as the Board of Directors, the Chief Executive Officer, the President, or the Chief Operating Officer may designate. He or she may sign receipts or vouchers for payments made to the Corporation, and the Board of Directors may require that such receipts or vouchers shall also be signed by some other officer to be designated by them. Whenever required by the Board of Directors, he or she shall render a statement of his or her cash accounts and such other statements respecting the affairs of the Corporation as may be requested. He or she shall keep proper and accurate accounts of receipts and disbursements and other matters pertaining to his or her office. In the discretion of the Board of Directors, he or she may be required to give a bond in such amount and containing such conditions as the Board of Directors may approve, and such bond may be the undertaking of a surety company, and the premium therefor may be paid by the Corporation. The Chief Financial Officer and/or Treasurer may delegate to an Assistant Treasurer any duties prescribed by this Section 4.7.
Section 4.8 Corporate Secretary. The Corporate Secretary shall perform all acts incident to the office of Secretary, subject to the control and direction of the Board of Directors, and such other powers and duties as may from time to time be assigned to him or her by the Board of Directors or be prescribed by these Bylaws. He or she shall record the votes and proceedings of the stockholders and of the Board of Directors in a book or books kept for that purpose, and shall attend all meetings of the Directors and stockholders. He or she shall keep in safe custody the seal of the Corporation, and, when required by the Board of Directors, or when any instrument shall have been signed by the Chief Executive Officer, the President, the Chief Operating Officer, or any other officer duly authorized to sign the same, or when necessary to attest any proceedings of the stockholders or Directors, shall affix it to any instrument requiring the same, and shall attest the same with his or her signature. Except as otherwise required by the Certificate of Incorporation or these Bylaws, he or she shall attend to the giving and serving of notices of meetings. He or she shall have charge of such books and papers as properly belong to his or her office or as may be committed to his or her care by the Board of Directors. Except as otherwise required by the Certificate of Incorporation or these Bylaws, in the absence of the Corporate Secretary, or an Assistant Corporate Secretary, from any meeting of the Board of Directors, the proceedings of such meeting shall be recorded by such other person as may be appointed at the meeting for that purpose.
Section 4.9 Assistant Vice President. Each Assistant Vice President shall exercise such powers and perform such duties as may be assigned to him or her by the Board of Directors.
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Section 4.10 Assistant Corporate Secretary. Each Assistant Corporate Secretary shall be vested with the same powers and duties as the Corporate Secretary, and any act may be done or duty performed by an Assistant Corporate Secretary with like effect as though done or performed by the Corporate Secretary. He or she shall have such other powers and perform such other duties as may be assigned to him or her by the Board of Directors.
Section 4.11 Other Officers. Such other officers as the Board of Directors may appoint shall perform such duties and have such powers as may from time to time be assigned by the Board of Directors. The Board of Directors may delegate to the Chief Executive Officer the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V.
INDEMNIFICATION
Section 5.1 Right to Indemnification. To the fullest extent permitted by law, the Corporation shall indemnify and hold harmless any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that such person, or the person for whom he or she is the legal representative, is or was a Director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans (any such person, a “Section 5.1 Indemnitee”), against all liabilities, losses, expenses (including attorney’s fees), judgments, fines and amounts paid in settlement (“expenses”) actually and reasonably incurred by such person in connection with such proceeding; provided, however, that except as otherwise provided in Section 5.4, the Corporation shall only be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person if the commencement of such proceeding (or part thereof) was authorized by the Board of Directors.
Section 5.2 Prepayment of Expenses. The Corporation shall pay the expenses incurred by a Section 5.1 Indemnitee in defending any proceeding in advance of its final disposition, provided that, to the extent required by law, the payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by such person to repay all amounts advanced if it should be ultimately determined that such person is not entitled to be indemnified under this Article or otherwise. The Corporation may pay the expenses incurred by any other person in defending any proceeding in advance of its final disposition upon such terms and conditions as the Board of Directors deems appropriate.
Section 5.3 Claims. If a claim for indemnification or advancement of expenses under Section 5.1 or Section 5.2 is not paid in full within sixty (60) days after a written claim therefor by a Section 5.1 Indemnitee has been received by the Corporation, such Section 5.1 Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Corporation shall have the burden of proving that such Section 5.1 Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable law.
Section 5.4 Repeal or Modification. Any repeal or modification of the provisions of this Article V or applicable law shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring before the time of such repeal or modification
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regardless of whether the proceeding is brought or threatened before or after the time of such repeal or modification.
Section 5.5 Non-Exclusivity of Rights. The right to indemnification and advancement of expenses conferred on any person by this Article V shall not be exclusive of any other rights such person may have or acquire under any other provision hereof, the Bylaws or by law, agreement, vote of stockholders or disinterested Directors or otherwise.
Section 5.6 Survival of Rights. The right to indemnification and prepayment of expenses conferred on any person by this Article V shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
Section 5.7 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against any liability or expenses incurred by such person in connection with a proceeding, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article or by law.
Section 5.8 Other Sources. The Corporation's obligation, if any, to indemnify or advance expenses to any Section 5.1 Indemnitee who was or is serving at the Corporation's request as a director or officer of another corporation or a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, shall be reduced by any amount such Section 5.1 Indemnitee may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit entity.
Section 5.9 Other Indemnification and Advancement of Expenses. This Article V shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Section 5.1 Indemnitees when and as authorized by appropriate corporate action.
ARTICLE VI.
STOCK
Section 6.1 Stock Certificates. Every holder of capital stock shall be entitled to have a certificate representing such stock in such form as shall be approved by the Board of Directors, signed by or in the name of the Corporation by (a) the President or a Vice President, and (b) the Corporate Secretary or an Assistant Corporate Secretary or Treasurer or Assistant Treasurer. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent, transfer clerk or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, transfer clerk or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, transfer clerk or registrar at the date of issue.
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Section 6.2 Lost, Stolen or Destroyed Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates or such person’s legal representative to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of any such Certificate or the issuance of such new Certificate.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 7.2 Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 7.3 Execution of Checks, etc. The funds of the Corporation shall be deposited in such banks or trust companies as the Board of Directors from time to time shall designate and shall be withdrawn only on checks or drafts of the Corporation for the purposes of the Corporation. All checks, drafts, notes, acceptances and endorsements of the Corporation shall be signed in such manner and by such officer or officers or such individual or individuals as the Board of Directors from time to time by resolution shall determine. If and to the extent so authorized by the Board of Directors, such signature or signatures may be facsimile. Only checks, drafts, notes, acceptances and endorsements signed in accordance with such resolution or resolutions shall be the valid checks, drafts, notes, acceptances or endorsements of the Corporation.
Section 7.4 Evidence of Authority. A certificate by the Corporate Secretary or an Assistant Corporate Secretary as to any action taken by the stockholders, the Board of Directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
Section 7.5 Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
Section 7.6 Nonvoting Stock. Notwithstanding anything to the contrary in the Certificate of Incorporation, the Corporation shall not issue any nonvoting equity securities to the extent prohibited by Section 1123 or Section 365 of Title 11 of the United States Code as in effect on October 19, 2004; provided, however, that this Section 7.6 of Article VII, (a) shall have no further force and effect beyond that required under Section 1123 of the United States Bankruptcy Code, (b) shall have such force and effect, if any, only for so long as such Section is in effect and applicable to the Corporation, and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time in effect.
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ARTICLE VIII.
AMENDMENTS
Section 8.1 Creation, Amendment and Repeal of Bylaws. In Furtherance And Not In Limitation Of The Powers Conferred Upon It By The Laws Of The State Of Delaware, The Board Of Directors Shall Have The Power To Adopt, Alter, Amend Or Repeal The Bylaws Of The Corporation, Subject To The Power Of The Stockholders Of The Corporation To Alter Or Repeal Any Bylaws Whether Adopted By Them Or Otherwise.
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CERTIFICATE OF ADOPTION
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned does hereby certify that the he is the Corporate Secretary of NorthWestern Energy Group, Inc., a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, that the above and foregoing Amended and Restated Bylaws of NorthWestern Energy Group, Inc. were duly and regularly adopted as such by the Board of Directors of NorthWestern Energy Group, Inc. on the date hereof, and that the above and foregoing Bylaws are now in full force and effect.
DATED this 29th day of September, 2023.
| By: | /s/ Timothy P. Olson | ||||
| Timothy P. Olson | |||||
| Corporate Secretary | |||||
Exhibits 5.1 and 23.1 Company Counsel Opinion and Consent
October 2, 2023
NorthWestern Energy Group, Inc.
3010 West 69th Street
Sioux Falls, South Dakota 57108
| Re: | 400,000 Shares of Common Stock, par value $0.01 per share | |||||||
Ladies and Gentlemen:
I serve as Senior Corporate Counsel and Corporate Secretary of NorthWestern Energy Group, Inc., a Delaware corporation (the “Company”), and in such capacity I have acted as counsel to the Company in connection with the Form S-3 Registration Statement (the “Registration Statement”) of the Company, to which this opinion is an exhibit, for the registration under the Securities Act of 1933 (as amended, the “Act”), of 400,000 shares of Common Stock, par value $0.01 per share (the “Shares”) of the Company, to be issued under the Company’s Dividend Reinvestment and Direct Stock Purchase Plan. I have examined all records, instruments, and documents which I have deemed necessary for the purposes of this opinion, including the Registration Statement and the corporate action taken and to be taken in connection with the issuance of the Shares (the “Corporate Proceedings”).
Based upon the foregoing and upon my general familiarity with the property and affairs of the Company, I am of the opinion that:
| 1. | The Company is a validly organized and legally existing corporation, in good standing under the laws of the State of Delaware and is authorized to conduct and operate its business in the States of Montana, Nebraska, and South Dakota. | |||||||
| 2. | When, as, and if the Shares have been registered and delivered, and the consideration for the Shares duly received by the Company, all in the manner contemplated by the Registration Statement, the Shares will be legally issued, fully paid and nonassessable. | |||||||
The foregoing opinions assume that at the time of delivery of the Shares, the Corporate Proceedings related thereto will not have been modified or rescinded, and the issuance and sale of the Shares will not violate any issuance limitation in the Corporate Proceedings, and the authorization provided by the Corporate Proceedings will continue to be in effect.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference with respect to this opinion under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving such consent, no admission is made that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
/s/ Timothy P. Olson
Timothy P. Olson
Senior Corporate Counsel and Corporate Secretary
NorthWestern Energy Group, Inc.
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 16, 2023, relating to the consolidated financial statements of NorthWestern Corporation and the effectiveness of NorthWestern Corporation's internal control over financial reporting, appearing in the Annual Report on Form 10-K of NorthWestern Corporation for the year ended December 31, 2022. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
| /s/ DELOITTE & TOUCHE LLP | ||
| Minneapolis, Minnesota | ||
| October 2, 2023 | ||
Exhibit 24.1
REGISTRATION STATEMENTS ON FORM S-8 AND S-3
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and officers of NorthWestern Energy Group, Inc., a Delaware corporation (the “Registrant”), does hereby constitute and appoint Brian B. Bird as the true and lawful attorney-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute and file (1) one or more Post-Effective Amendments to Registration Statements on Form S-8 (the “Form S-8 Registration Statements”) with respect to assumption by Registrant of the Amended and Restated Equity Compensation Plan (the “Equity Compensation Plan”) and the Employees Stock Purchase Plan (the “ESPP”) of NorthWestern Corporation and the registration under the Securities Act of 1933 of up to 1,300,000 shares of the Registrant’s common stock to be issued under the Equity Compensation Plan and up to 407,700 shares of the Registrant’s common stock, (2) one or more Registration Statements on Form S-3 (the “Form S-3 Registration Statements”) for the registration under the Securities Act of 1933 of up to 400,000 shares of the Registrant’s common stock to be issued and sold in connection with the Dividend Reinvestment and Stock Purchase Plan and an unspecified amount of debt securities, depositary shares representing preferred stock and common stock, (3) any and all amendments, including post-effective amendments, supplements and exhibits to the Form S-8 Registration Statements and Form S-3 Registration Statements, and (4) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-8 Registration Statements or Form S-3 Registration Statements, with full power and authority to do and perform any and all acts and things whatsoever necessary, appropriate or desirable to be done in the premises, or in the name, place and stead of the said director and/or officer, hereby ratifying and approving the acts of said attorney and any of them and any such substitute.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 29th day of September, 2023.
| /s/ Dana J. Dykhouse | Chairman of the Board | |||||||
| Dana J. Dykhouse | ||||||||
| /s/ Crystal D. Lail | Vice President and Chief Financial Officer (Principal Financial Officer) | |||||||
| Crystal D. Lail | ||||||||
| /s/ Jeffrey B. Berzina | Controller (Principal Accounting Officer) | |||||||
| Jeffrey B. Berzina | ||||||||
| /s/ Anthony T. Clark | Director | |||||||
| Anthony T. Clark | ||||||||
| /s/ Jan R. Horsfall | Director | |||||||
| Jan R. Horsfall | ||||||||
| /s/ Britt E. Ide | Director | |||||||
| Britt E. Ide | ||||||||
| /s/ Linda G. Sullivan | Director | |||||||
| Linda G. Sullivan | ||||||||
| /s/ Mahvash Yazdi | Director | |||||||
| Mahvash Yazdi | ||||||||
| /s/ Jeffrey W. Yingling | Director | |||||||
| Jeffrey W. Yingling | ||||||||
| /s/ Sherina Maye Edwards | Director | |||||||
| Sherina Maye Edwards | ||||||||
| /s/ Kent T. Larson | Director | |||||||
| Kent T. Larson | ||||||||