Item 1.01 Entry into a Material Definitive Agreement.
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The Agreement provides that, in addition to, or in lieu of, the issuance and sale of common stock by the Company through the Sales Agents, the Company may also enter into a forward sale agreement with the Forward Purchasers, substantially in the form set forth on Exhibit A to the Agreement and attached as Exhibit 1.2 hereto (the "Master Forward Sale Confirmation"). In connection with each forward sale agreement under the Master Forward Sale Confirmation, the relevant Forward Purchaser (or its affiliate) will, at the Company's request, attempt to borrow shares of common stock from third parties and, through the relevant Sales Agent, sell a number of Shares equal to the number of Shares that underlie the forward sale agreement to hedge its obligations under the forward sale agreement.
The Company will not initially receive any proceeds from the sale of borrowed shares of common stock by a Forward Seller. The Company expects to receive proceeds from the sale of Shares by a Forward Seller upon future physical settlement of the relevant forward sale agreement with the relevant Forward Purchaser on dates specified by the Company on or prior to the maturity date of the relevant forward sale agreement. If the Company elects to cash settle or net share settle a forward sale agreement, the Company may not (in the case of cash settlement) or will not (in the case of net share settlement) receive any proceeds, and the Company may owe cash (in the case of cash settlement) or shares of common stock (in the case of net share settlement) to the relevant Forward Purchaser.
Each Sales Agent will receive from the Company a commission of up to 2.0% of the sales price for all Shares sold through it as Sales Agent under the Agreement. The remaining sales proceeds, after deducting any expenses payable by the Company and any transaction fees or taxes imposed by any governmental, regulatory or self-regulatory organization in connection with the sales, will be the Company's net proceeds for the sale of such Shares. In connection with each forward sale agreement, the relevant Forward Seller will receive, in the form of a reduced initial forward price payable by the relevant Forward Purchaser under the related forward sale agreement, a commission of up to 2.0% of the sales price of all borrowed shares of common stock sold during the applicable forward hedge selling period by it as a Forward Seller. The Company has no obligation to sell any Shares and may at any time suspend solicitation and offers under the Agreement or terminate the Agreement.
The Shares will be offered and sold pursuant to the Company's Registration Statement on Form S-3 (Registration No. 333-253047) (the "Registration Statement").
The foregoing descriptions of the Agreement and the Master Forward Sale Confirmation are summaries and are qualified in their entirety by reference to the full and complete terms of the Agreement and the Master Forward Sale Confirmation, copies of which are attached to this Current Report on Form 8-K as Exhibit 1.1 and Exhibit 1.2, respectively, and are incorporated by reference in this Item 1.01 as though they were fully set forth herein.
Attached hereto as Exhibit 5.1 is an opinion of counsel regarding the legality of the Shares.
This Current Report on Form 8-K is being filed to file certain documents in connection with the offering as exhibits to the Registration Statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits EXHIBIT NO. DESCRIPTION OF DOCUMENT 1.1 Equity Distribution Agreement, datedApril 23, 2021 , by and amongNorthWestern Corporation ;J.P. Morgan Securities LLC ,BofA Securities, Inc. ,CIBC World Markets Corp. andCredit Suisse Securities (USA) LLC , as sales agents and forward sellers; andJPMorgan Chase Bank, National Association ,Bank of America N.A ., Canadian Imperial Bank of Commerce andCredit Suisse Capital LLC , as forward purchasers. 1.2 Form of Master Forward Sale Confirmation 5.1 Opinion ofTimothy P. Olson , Senior Corporate Counsel and Corporate Secretary,NorthWestern Corporation . 23.1 Consent ofTimothy P. Olson , Senior Corporate Counsel and Corporate Secretary,NorthWestern Corporation (included as part of Exhibit 5.1 hereto). 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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