form8a-12b_a.htm
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-A/A
AMENDMENT
NO. 4
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
(Zip
Code)
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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]
|
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. [ ]
|
Securities
Act registration statement file number to which this form relates: ______________________
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(if
applicable)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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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:
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None
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Item
1.
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Description
of Registrant's Securities to be
Registered.
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This
amendment no. 4 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, as amended by amendment No. 2 on Form 8-A/A filed on March 10, 2003,
and as further amended by amendment No. 3 on Form 8-A/A filed on January 21,
2004.
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 the laws of
the
state of Delaware and our restated certificate of incorporation, amended bylaws
and indenture of mortgage. The restated certificate of incorporation is an
exhibit attached to this registration statement as exhibits 3.1. The
amended bylaws and the indenture of mortgage are exhibits 3.2 and 3.6,
respectively, and are incorporated into this registration statement by
reference. We also refer you to the rights agreement, dated as of November
12,
1998, between us and Norwest Bank Minnesota, NA (now, Wells Fargo Bank, N.A.),
as rights agent, that we incorporate into this registration statement by
reference to exhibit 3.3, as amended by the certificate of adjustment to
purchase price and redemption price, dated July 26, 2006, that we incorporate
into this registration statement by reference to exhibit 3.4.
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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·
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1,000,000
shares of preferred
stock A, without par value;
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·
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500,000
shares of preference
stock, without par value; and
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·
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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 June 21, 2007, 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
June 21, 2007, we had 161,000 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
At
the
annual meeting of stockholders hold on April 24, 2007, our stockholders approved
an amendment to our restated certificate of incorporation to provide for a
declassified board of directors. Beginning with the annual meeting of
stockholders to be held in 2008, each director whose term is ending will be
elected annually for a one-year term. Those directors elected at the
annual meetings of stockholders held in 2005, 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. At least two annual meetings, instead of one,
generally will be required to change the majority of directors. The classified
board provisions could have the effect of prolonging the time required for
a
stockholder with significant voting power to gain majority representation on
our
board of directors.
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
The
restated certificate of incorporation provides that the 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, and directors so chosen
shall hold office for a term expiring at the next annual meeting of
stockholders.
Our
directors may be removed only for cause and then only by a majority of the
shares entitled to vote.
Meetings
of Stockholders
No
Cumulative Voting
Our
restated certificate of incorporation does not provide for cumulative
voting.
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 not less
than 120 days prior to the date corresponding to the date on which we first
mailed our proxy materials for the prior year's annual meeting.
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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·
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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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·
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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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·
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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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·
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The
general desirability of our continuance as an independent entity;
and
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·
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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 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 Change 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
3.1
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Restated
Certificate of Incorporation of MDU Resources Group, Inc., dated
as of May
17, 2007.
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*3.2
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Company
Bylaws, as amended, filed in Exhibit 3.1 to Form 8-K dated November
16,
2006, filed on November 22, 2006.
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*3.3
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Rights
Agreement, dated as of November 12, 1998, between the Company and
Norwest
Bank Minnesota, N.A. (now, Wells Fargo Bank, 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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*3.4
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Certificate
of Adjustment to Purchase Price and Redemption Price, as amended
and
restated, pursuant to the Rights Agreement, 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 MDU Resources Group,
Inc.,
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) in Registration No. 33-66682, and as Exhibits 4(e), 4(f) and
4(g) in
Registration No. 33-53896 and Exhibit 4(c)(i) 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
3.5 to Form 8-A/A filed January 21, 2004 in File No.
1-03480.
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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:
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/s/ Doran
N. Schwartz |
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Doran
N. Schwartz |
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Vice
President and Chief
Accounting Officer |
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Date: June
27, 2007
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Exhibit
Number Exhibit
*3.2
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Company
Bylaws, as amended, filed in Exhibit 3.1 to Form 8-K dated November
16,
2006, filed on November 22, 2006.
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*3.3
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Rights
Agreement, dated as of November 12, 1998, between the Company and
Norwest
Bank Minnesota, N.A. (now, Wells Fargo Bank, 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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*3.4
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Certificate
of Adjustment to Purchase Price and Redemption Price, as amended
and
restated, pursuant to the Rights Agreement, 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 MDU Resources Group,
Inc.,
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) in Registration No. 33-66682, and as Exhibits 4(e), 4(f) and
4(g) in
Registration No. 33-53896 and Exhibit 4(c)(i) 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
3.5 to Form 8-A/A filed January 21, 2004 in File No.
1-03480.
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______________________
*Incorporated
herein by reference.