As filed with the Securities and Exchange Commission on March 25, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MDU RESOURCES GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE NO. 41-0423660
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
SCHUCHART BUILDING
918 EAST DIVIDE AVENUE
P.O. BOX 5650
BISMARCK, NORTH DAKOTA 58506-5650
(Address of principal executive offices, including zip code)
MDU RESOURCES GROUP, INC.
GROUP GENIUS INNOVATION PLAN
(Full title of the plan)
Martin A. White Warren L. Robinson
Chairman of the Board, Executive Vice President, Chief
President and Chief Executive Officer Financial Officer
MDU Resources Group, Inc. MDU Resources Group, Inc.
Schuchart Building Schuchart Building
918 East Divide Avenue 918 East Divide Avenue
P.O. Box 5650 P.O. Box 5650
Bismarck, North Dakota 58506-5650 Bismarck, North Dakota 58506-5650
(701) 222-7900 (701) 222-7900
(Name, address and telephone number, including area code, of agents for service)
Copies to:
Thomas J. Igoe, Jr.
Thelen Reid & Priest LLP
40 West 57th Street
New York, NY 10019
(212) 603-2000
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock, $1.00 par value 100,000 shares $29.70 $2,970,000.00 $273.24
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Preference Share Purchase Rights 100,000 rights -- -- -- (3)
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers any additional securities to be offered
or issued in connection with a stock split, stock dividend or similar
transaction.
(2) Determined on the basis of the average of the high and low sale price of
the common stock as reported in the consolidated reporting system on March
18, 2002, solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
(3) Since no separate consideration is paid for the preference share purchase
rights, the registration fee for such securities is included in the fee for
the common stock. The value attributable to the rights, if any, is
reflected in the market price of the common stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which MDU Resources Group, Inc. (the "Company")
has filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference in this registration statement:
1. Annual Report on Form 10-K for the year ended December 31, 2001,
including those portions of the Annual Report to Stockholders incorporated by
reference therein.
2. Current Reports on Form 8-K filed by the Company with the Commission on
January 3, 2002, January 25, 2002, and February 20,2002.
3. Description of the Company's common stock contained in the Company's
registration statement on Form 8-A/A, dated March 23, 2000, and any amendments
thereto.
4. Description of the Company's preference share purchase rights contained
in the registration statement on Form 8-A/A, dated March 23, 2000, and any
amendments thereto.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Lester H. Loble, II, Vice President, General Counsel and Secretary of the
Company, whose opinion with respect to the common stock and rights is filed as
Exhibit 5(a) hereto, is an officer of the Company and owns, as of December 31,
2001, approximately 99,887 shares of Common Stock, including shares that may be
acquired within 60 days pursuant to the exercise of stock options.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws include the following provision:
7.07 Indemnification of Officers, Directors, Employees and Agents; Insurance.
(a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that such person 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, partnership, joint venture,
trust or other enterprise, against 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 if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
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or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to the
best interest of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person 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, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in
good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable
to the Corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought, shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director, officer, employee or
agent of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee
or agent is proper in the circumstances because such person has met
the applicable standard of conduct as set forth in subsections (a) and
(b) of this Section. Such determination shall be made (1) by a
majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by a present or former
officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Section. Once the Corporation has
received the undertaking, the Corporation shall pay the officer or
director within 30 days of receipt by the Corporation of a written
application from the officer or director for the expenses incurred by
that officer or director. In the event the Corporation fails to pay
within the 30-day period, the applicant shall have the right to sue
for recovery of the expenses contained in the written application and,
in addition, shall recover all attorneys' fees and expenses incurred
in the action to enforce the application and the rights granted in
this Section 7.07. Expenses (including attorneys' fees) incurred by
other employees and agents shall be paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not
be deemed exclusive of any other rights to which those seeking
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indemnity or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding such office.
(g) 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,
partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such,
whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Section.
(h) For the purposes of this Section, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or
merger, as well as the resulting or surviving corporation, so that any
person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Section with respect to the resulting or surviving corporation as
such person would if such person had served the resulting or surviving
corporation in the same capacity.
(i) For purposes of this Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participant or beneficiaries;
and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided
when authorized or ratified, 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 a person.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification of the Company's directors and officers in a
variety of circumstances, which may include liabilities under the Securities Act
of 1933. The Company maintains liability insurance protecting it, as well as its
directors and officers, against liability by reason of their being or having
been directors or officers.
ITEM 8. EXHIBITS.
*4(a) Restated Certificate of Incorporation of the Company, as amended to
date, filed as Exhibit 3(a) to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1999, in File No. 1-3480.
*4(b) Bylaws of the Company, as amended to date, filed as Exhibit 4(b) to
Form S-8 on October 1, 2001, in Registration No. 333-70622.
*4(c) Rights Agreement, dated as of November 12, 1998, between the Company
and Wells Fargo Bank Minnesota, N.A. (f/k/a Norwest Bank Minnesota,
N.A.), Rights Agent, filed as Exhibit 4.1 to Form 8-A on November 12,
1998, in File No. 1-3480.
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*4(d) Indenture of Mortgage, dated as of May 1, 1939, as restated in the
Forty-fifth Supplemental Indenture, dated as of April 21, 1992, and
the Forty-sixth through Forty-ninth Supplements thereto between the
Company and The New York Trust Company (The Bank of New York,
successor Corporate Trustee) and A.C. Downing (Douglas J. MacInnes,
successor Co-Trustee), filed as Exhibit 4(a) in Registration No.
33-66682; and Exhibits 4(e), 4(f), and 4(g) in Registration No.
33-53896; and Exhibit 4(c)(i) in Registration No. 333-49472.
5(a) Opinion of Lester H. Loble, II, Esq., General Counsel to the Company.
5(b) Opinion of Thelen Reid & Priest LLP, counsel to the Company.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Lester H. Loble, II, Esq. (contained in opinion filed as
Exhibit 5(a) hereto).
23(c) Consent of Thelen Reid & Priest LLP (contained in opinion filed as
Exhibit 5(b) hereto).
24 Power of Attorney (see signature pages).
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*Incorporated herein by reference as indicated.
ITEM 9. 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
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange 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.
(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
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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 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 provisions described under Item 6 above, 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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POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named on the cover of this
registration statement, and each of them severally, as his attorney-in-fact to
sign in his name and behalf, in any and all capacities stated below, and to file
with the Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints each such agent for service as its attorney-in-fact with
the authority to sign and file any such amendments in its name and behalf.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Bismarck, State of North Dakota, on the 25th day
of March, 2002.
MDU RESOURCES GROUP, INC.
By /s/ Martin A. White
---------------------------------
Martin A. White
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Martin A. White Chairman of the Board, President March 25, 2002
------------------------------------------ and Chief Executive Officer
Martin A. White and Director
(Chairman of the Board, President
and Chief Executive Officer)
/s/ Douglas C. Kane Chief Administrative and Corporate March 25, 2002
------------------------------------------ Development Officer and Director
Douglas C. Kane
(Executive Vice President, Chief
Administrative and Corporate Officer)
/s/ Warren L. Robinson Chief Financial Officer March 25, 2002
------------------------------------------
Warren L. Robinson
(Executive Vice President, Treasurer
and Chief Financial Officer)
/s/ Vernon A. Raile Chief Accounting Officer March 25, 2002
------------------------------------------
Vernon A. Raile
(Vice President, Controller and
Chief Accounting Officer)
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/s/ Bruce R. Albertson Director March 25, 2002
------------------------------------------
Bruce R. Albertson
/s/ Thomas Everist Director March 25, 2002
------------------------------------------
Thomas Everist
/s/ Dennis W. Johnson Director March 25, 2002
------------------------------------------
Dennis W. Johnson
/s/ Robert L. Nance Director March 25, 2002
------------------------------------------
Robert L. Nance
/s/ John L. Olson Director March 25, 2002
------------------------------------------
John L. Olson
/s/ Harry J. Pearce Director March 25, 2002
------------------------------------------
Harry J. Pearce
/s/ Homer A. Scott, Jr. Director March 25, 2002
------------------------------------------
Homer A. Scott, Jr.
/s/ Joseph T. Simmons Director March 25, 2002
------------------------------------------
Joseph T. Simmons
/s/ Sister Thomas Welder, O.S.B. Director March 25, 2002
------------------------------------------
Sister Thomas Welder, O.S.B.
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EXHIBIT INDEX
*4(a) Restated Certificate of Incorporation of the Company, filed as Exhibit
3(a) to the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999, in File No. 1-3480.
*4(b) Bylaws of the Company, as amended to date, filed as Exhibit 4(b) in
Registration No. 333-70622.
*4(c) Rights Agreement, dated as of November 12, 1998, between the Company and
Wells Fargo Bank Minnesota, N.A. (f/k/a Norwest Bank Minnesota, N.A.),
Rights Agent, filed as Exhibit 4.1 to Form 8-A on November 12, 1998, in
File No. 1-3480.
*4(d) Indenture of Mortgage, dated as of May 1, 1939, as restated in the
Forty-fifth Supplemental Indenture, dated as of April 21, 1992, and the
Forty-sixth through Forty-ninth Supplements thereto between the Company
and The New York Trust Company (The Bank of New York, successor Corporate
Trustee) and A.C. Downing (Douglas J. MacInnes, successor Co- Trustee),
filed as Exhibit 4(a) in Registration No. 33- 66682; and Exhibits 4(e),
4(f), and 4(g) in Registration No. 33-53896; and Exhibit 4(c)(i) in
Registration No. 333-49472.
5(a) Opinion of Lester H. Loble, II, Esq., General Counsel to the Company.
5(b) Opinion of Thelen Reid & Priest LLP, counsel to the Company.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Lester H. Loble, II, Esq. (contained in opinion filed as
Exhibit 5(a) hereto).
23(c) Consent of Thelen Reid & Priest LLP (contained in opinion filed as Exhibit
5(b) hereto).
24 Power of Attorney (see signature pages).
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