form8a-a.htm
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-A/A
AMENDMENT
NO. 5
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
MDU
Resources Group, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State
of Incorporation or Organization)
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41-0423660
(I.R.S.
Employer Identification No.)
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1200
West Century Avenue
P.O.
Box 5650
Bismarck,
ND
(Address
of Principal Executive Offices)
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58506-5650
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If
this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. x
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If
this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. o
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Securities
Act registration statement file number to which this form
relates: ____________________ (if applicable)
Securities
to be registered pursuant to Section 12(b) of the Act:
Title
of Each Class
to be so Registered
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Name
of Each Exchange on Which
Each Class is to be Registered
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Common
Stock, $1.00 par value
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New
York Stock Exchange
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Securities
to be registered pursuant to Section 12(g) of the Act:
(Title of
Class)
Item
1.
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Description
of Registrant’s Securities to be
Registered.
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This
amendment no. 5 to the registration statement on Form 8-A/A amends the
registration statement on Form 8-A that MDU Resources Group, Inc. filed on
September 21, 1994, as amended by amendment No. 1 on Form 8-A/A filed on March
23, 2000, amendment No. 2 on Form 8-A/A filed on March 10, 2003, amendment No. 3
on Form 8-A/A filed on January 21, 2004 and amendment No. 4 on Form 8-A/A filed
on June 27, 2007.
DESCRIPTION OF COMMON
STOCK
Common
Stock – General
The
following is a description of all material attributes of our common
stock. This description is not complete, and we qualify it by
referring to our restated certificate of incorporation, amended bylaws and
indenture of mortgage, all of which we incorporate into this document by
reference, and the laws of the state of Delaware. We also refer you
to the rights agreement, dated as of November 12, 1998, between us and Norwest
Bank Minnesota, N.A., now Wells Fargo Bank, N.A., as rights agent, that we
incorporate into this document by reference.
Our
restated certificate of incorporation authorizes us to issue 502,000,000 shares
of stock, divided into four classes:
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500,000
shares of preferred stock, $100 par
value;
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1,000,000
shares of preferred stock A, without par
value;
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500,000
shares of preference stock, without par value;
and
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500,000,000
shares of common stock, $1.00 par
value.
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Dividend
Rights
Under our
restated certificate of incorporation, we may declare and pay dividends on our
common stock, out of surplus or net profits, only if we have paid or provided
for full cumulative dividends on all outstanding shares of preferred and
preference stock. As of September 30, 2008, we had no preference
stock outstanding.
In
addition to these provisions, our first mortgage bond indenture includes a
covenant generally to the effect that we may declare and pay dividends in cash
or property on our common stock only either (1) out of “surplus” or (2) in case
there is no “surplus,” out of net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year. For purposes
of this test, “surplus” means the excess of our net assets over our “capital”;
and “capital” means that part of the consideration received by us for any of our
shares of common stock which has been determined to be “capital.”
Voting
Rights
Our common stock has one vote per
share. The holders of our common stock are entitled to vote on all
matters to be voted on by stockholders. The holders of our common
stock do not have cumulative voting rights.
The
holders of our preferred stock, preferred stock A and preference stock do not
have the right to vote, except as our board of directors establishes or as
provided in our restated certificate of incorporation or bylaws or as determined
by state law.
Our
restated certificate of incorporation gives the holders of our preferred stock
and preferred stock A, and the holders of our preference stock, the right to
vote if dividends are unpaid, in whole or in part, on their shares for one
year. The holders have one vote per share until we pay the dividend
arrearage, declare dividends for the current dividend period and set aside the
funds to pay the current dividends. In addition, the holders of some
series of our preferred stock and preferred stock A, and/or the holders of our
preference stock, must approve amendments to the restated certificate of
incorporation in some instances.
Liquidation
Rights
If we
were to liquidate, the holders of the preferred stock, preferred stock A and the
preference stock have the right to receive specified amounts, as set forth in
our restated certificate of incorporation, before we can make any payments to
the holders of our common stock. After the preferred and preference
stock payments are made, the holders of our common stock are entitled to share
in all of our remaining assets available for distribution to
stockholders.
Other
Rights
Our
common stock is not liable to further calls or assessment. The
holders of our common stock have no preemptive rights. Our common
stock cannot be redeemed, and it does not have any conversion rights or sinking
fund provisions.
Effects
on our Common Stock if We Issue Preferred or Preference Stock
Our board
of directors has the authority, without further action by the stockholders, to
issue up to 500,000 shares of preferred stock, 1,000,000 shares of preferred
stock A and 500,000 shares of preference stock, each in one or more
series. Our board of directors has the authority to determine the
terms of each series of any preferred or preference stock, within the limits of
the restated certificate of incorporation and the laws of the state of
Delaware. These terms include the number of shares in a series,
dividend rights, liquidation preferences, terms of redemption, conversion rights
and voting rights.
If we
issue any preferred or preference stock, we may negatively affect the holders of
our common stock. These possible negative effects include diluting
the voting power of shares of our common stock and affecting the market price of
our common stock. In addition, the ability of our board of directors
to issue preferred or preference stock may delay or prevent a change in control
of MDU Resources Group.
As of
September 30, 2008, we had 158,000 shares of preferred stock outstanding, and we
have reserved 125,000 shares of Series B preference stock for issuance in
connection with our rights plan.
Provisions
of our Restated Certificate of Incorporation and our Bylaws That Could Delay or
Prevent a Change in Control
Our
restated certificate of incorporation and bylaws contain provisions which will
make it difficult to obtain control of MDU Resources Group if our board of
directors does not approve the transaction. The provisions include
the following:
Provisions Relating to our Board of
Directors
Board Elections
Our
restated certificate of incorporation was amended in 2007 to provide for a
declassified board of directors. Beginning with the annual meeting of
stockholders held in 2008, each director whose term is ending is elected
annually for a one-year term. Those directors elected at the annual
meetings of stockholders held in 2006 and 2007 shall continue to serve for the
full three-year term to which each such director was elected. The
declassification of the board of directors will be phased in from 2008 -
2010. During this period, the remaining classifications may prevent
stockholders from changing the membership of the entire board of directors in a
relatively short period of time.
Where
majority or supermajority board of directors approval is necessary for a
transaction, such as in the case of an interested stockholder business
combination, the inability immediately to gain majority representation on the
board of directors could discourage takeovers and tender offers.
Number of Directors, Vacancies,
Removal of Directors
Our
restated certificate of incorporation provides that our board of directors will
have at least six and at most 15 directors. Two-thirds of the
continuing directors decide the exact number of directors at a given
time. Two-thirds of the continuing directors fill any new
directorships created by the board and any vacancies.
Our
directors may be removed only for cause and then only by a majority of the
shares entitled to vote.
No
Cumulative Voting
Our
restated certificate of incorporation does not provide for cumulative
voting.
Majority Voting
Our
bylaws provide for a majority voting standard for the election of directors in
an uncontested election and retain a plurality voting standard in the event the
number of nominees exceeds the number of directors to be elected.
Advance
Notice Provisions
Our
bylaws require that for a stockholder to nominate a director or bring other
business before an annual meeting, the stockholder must give notice no later
than the close of business on the 90th day prior to the first anniversary of the
prior year’s annual meeting date.
Our
restated certificate of incorporation prevents stockholders from calling a
special meeting. In addition, our restated certificate of
incorporation provides that stockholder action may be taken only at a
stockholders’ meeting.
Amendment of Restated Certificate of Incorporation
Our
restated certificate of incorporation requires the affirmative vote of 80% of
the common stock entitled to vote in order to amend Articles Twelfth,
Thirteenth, Fourteenth, Fifteenth and Sixteenth of our restated certificate of
incorporation, unless two-thirds of the continuing directors approve the
amendment. Article Twelfth of our restated certificate of
incorporation specifies fair price and other requirements applicable to a
business combination involving an interested stockholder. Article
Thirteenth of our restated certificate of incorporation contains provisions
relating to our board of directors. Article Fourteenth of our
restated certificate of incorporation expressly permits our board of directors
to consider the factors described below under “Provisions Relating to the
Authorization of Business Combinations” in determining whether or not to approve
some types of business combinations. Article Fifteenth of our
restated certificate of incorporation contains the requirement described in the
first sentence of this paragraph that 80% of the common stock entitled to vote
must vote in favor of an amendment to the articles specified above unless
two-thirds of the continuing directors approve the
amendment. Finally, Article Sixteenth of the restated certificate of
incorporation prohibits stockholders from taking action by written consent and
describes the persons who may call special meetings of our
stockholders.
Provisions
Relating to the Authorization of Business Combinations
Our
restated certificate of incorporation requires the affirmative vote of 80% of
the common stock entitled to vote for directors in order to authorize business
combinations with interested stockholders. Any business combination
must also meet specified fair price and procedural
requirements. However, if two-thirds of our continuing directors
approve the business combination, then the vote of 80% of the common stock and
the fair price provisions will not be required.
There is
also a provision in our restated certificate of incorporation permitting our
board of directors to consider the following factors in determining whether or
not to approve some types of business combinations:
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The
consideration to be received by us or our stockholders in connection with
the business combination in relation not only to the then current market
price for our outstanding capital stock, but also to the market price for
our capital stock over a period of years, the estimated price that might
be achieved in a negotiated sale of us as a whole or in part through
orderly liquidation, the premiums over market price for the securities of
other corporations in similar transactions, current political, economic
and other factors bearing on securities prices and our financial
condition, future prospects and future value as an independent
corporation;
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The
character, integrity and business philosophy of the other party or parties
to the business combination transaction and the management of that party
or those parties;
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The
business and financial conditions and earnings prospects of the other
party or parties to the business combination transaction, including, but
not limited to, debt service and other existing or likely financial
obligations of that party or those parties, the intention of the other
party or parties to the business combination transaction regarding the use
of our assets to finance the acquisition, and the possible effect of the
conditions upon us and our subsidiaries and the other elements of the
communities in which we and our subsidiaries operate or are
located;
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The
projected social, legal and economic effects of the proposed action or
transaction upon us or our subsidiaries, employees, suppliers, customers
and others having similar relationships with us, and the communities in
which we and our subsidiaries do
business;
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The
general desirability of our continuance as an independent entity;
and
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Such
other factors as the continuing directors may deem
relevant.
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Preference
Share Purchase Rights
On
November 12, 1998, the board of directors declared a dividend of one preference
share purchase right for each share of our common stock outstanding as of
December 1, 1998. We will issue one right with each additional share
of common stock we issue until the rights expire, are redeemed or exchanged or
become exercisable. The rights will expire on December 31,
2008. The description of our preference share purchase rights is
contained in the Form 8-A/A dated March 23, 2000, in the rights agreement, dated
November 12, 1998, between Wells Fargo Bank, N.A., as rights agent, and us, and
in the certificate of adjustment to purchase price and redemption price, dated
July 26, 2006. We incorporate these documents herein by
reference.
Provisions
of Delaware Law that Could Delay or Prevent a Chamge in Control
We are
subject to the provisions of Section 203 of the General Corporation Law of
Delaware. With some exceptions, this law prohibits us from engaging
in some types of business combinations with a person who owns 15% or more of our
outstanding voting stock for a three-year period after that person acquires the
stock. This prohibition does not apply if our board of directors
approved of the business combination or the acquisition of our stock before the
person acquired 15% of the stock. A business combination includes
mergers, consolidations, stock sales, asset sales and other transactions
resulting in a financial benefit to the interested stockholder.
Exhibit Number |
Exhibit |
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*3.1
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Restated Certificate
of Incorporation of the Company, as amended, dated as of May 17, 2007,
filed as Exhibit 3.1 to Form 8-A/A on June 27, 2007, in File No.
1-3480. |
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*3.2
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Company Bylaws, as
amended, filed as Exhibit 3.1 to Form 8-K dated November 13, 2008, filed
on November 19, 2008, in File No. 1-3480. |
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*3.3 |
Rights Agreement,
dated as of November 12, 1998, between the Company and Wells Fargo Bank,
N.A. (formerly known as Norwest Bank Minnesota, N.A.), as rights agent,
filed as Exhibit 4.1 to Form 8-A on November 12, 1998, in File No.
1-3480. |
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*3.4 |
Certificate of
Adjustment to Purchase Price and Redemption Price, as amended and
restated, pursuant to the Rights Agreement, dated as of November 12, 1998,
filed as Exhibit 4(c) to Form 10-Q for the quarter ended June 30, 2006,
filed on August 4, 2006, in File No. 1-3480. |
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*3.5 |
Certificate of
Designations of Series B Preference Stock of the Company, as amended,
filed as Exhibit 3(a) to Form 10-Q for the quarter ended September 30,
2002, filed on November 14, 2002, in File No. 1-3480. |
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*3.6 |
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) to Form S-3 in Registration No. 33-66682; Exhibits 4(e), 4(f) and
4(g) to Form S-8 in Registration No. 33-53896; and Exhibit 4(c)(i) to Form
S-3 in Registration No. 333-49472. |
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*3.7 |
Fiftieth
Supplemental Indenture, dated as of December 15, 2003, filed as Exhibit
4(e) to Form S-8 on January 21, 2004 in Registration No.
333-112035. |
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*3.8 |
Indenture, dated as
of December 15, 2003, between the Company and The Bank of New York, as
trustee, filed as Exhibit 4(f) to Form S-8 on January 21, 2004 in
Registration No. 333-112035. |
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*
Incorporated herein by reference.
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
Registrant has duly caused this amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
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MDU Resources Group,
Inc. |
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By: |
/s/ Paul
K. Sandness |
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Paul
K. Sandness |
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General
Counsel and Secretary |
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Exhibit
Index
Exhibit
Number
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Exhibit |
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*3.1
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Restated
Certificate of Incorporation of the Company, as amended, dated as of May
17, 2007, filed as Exhibit 3.1 to Form 8-A/A on June 27, 2007, in File No.
1-3480.
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*3.2
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Company
Bylaws, as amended, filed as Exhibit 3.1 to Form 8-K dated November 13,
2008, filed on November 19, 2008, in File No. 1-3480.
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*3.3
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Rights
Agreement, dated as of November 12, 1998, between the Company and Wells
Fargo Bank, N.A. (formerly known as Norwest Bank Minnesota, N.A.), as
rights agent, filed as Exhibit 4.1 to Form 8-A on November 12, 1998, in
File No. 1-3480.
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*3.4
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Certificate
of Adjustment to Purchase Price and Redemption Price, as amended and
restated, pursuant to the Rights Agreement, dated as of November 12, 1998,
filed as Exhibit 4(c) to Form 10-Q for the quarter ended June 30, 2006,
filed on August 4, 2006, in File No. 1-3480.
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*3.5
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Certificate
of Designations of Series B Preference Stock of the Company, as amended,
filed as Exhibit 3(a) to Form 10-Q for the quarter ended September 30,
2002, filed on November 14, 2002, in File No. 1-3480.
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*3.6
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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) to Form S-3 in Registration No. 33-66682; Exhibits 4(e), 4(f) and
4(g) to Form S-8 in Registration No. 33-53896; and Exhibit 4(c)(i) to Form
S-3 in Registration No. 333-49472.
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*3.7
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Fiftieth
Supplemental Indenture, dated as of December 15, 2003, filed as Exhibit
4(e) to Form S-8 on January 21, 2004 in Registration No.
333-112035.
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*3.8
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Indenture,
dated as of December 15, 2003, between the Company and The Bank of New
York, as trustee, filed as Exhibit 4(f) to Form S-8 on January 21, 2004 in
Registration No. 333-112035.
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_______________
* Incorporated herein by
reference.