As filed with the Securities and Exchange Commission on July 13, 1998
REGISRATION NO. 333-06105
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1*
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MDU RESOURCES GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-0423660
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identification
organization) No.)
Schuchart Building
918 East Divide Avenue
P.O. Box 5650
Bismarck, North Dakota
(Address of principal 58506-5650
executive offices) (Zip Code)
MDU RESOURCES GROUP, INC.
TAX DEFERRED COMPENSATION SAVINGS PLAN
(Full title of the plan)
MARTIN A. WHITE WARREN L. ROBINSON RICHARD M. FARMER
President and Chief Vice President, Thelen Reid
Executive Officer Treasurer and & Priest LLP
MDU Resources Chief Financial 40 West 57th
Group, Inc. Officer Street
Schuchart Building MDU Resources New York, New York 10019
918 East Group, Inc. (212) 603-2240
Divide Avenue Schuchart Building
P.O. Box 5650 918 East
Bismarck, North Dakota Divide Avenue
P.O. Box 5650 Bismarck, North Dakota
58506-5650 58506-5650
(701) 222-7900 (701) 222-7900
(Names, addresses, including zip codes, and
telephone numbers, including area codes,
of agents for service)
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* This Post-Effective Amendment No. 1 is filed pursuant to Rule
416(b) under the Securities Act of 1933, as amended, with respect
to shares of Common Stock of the registrant, and the Preference
Share Purchase Rights attached thereto, to reflect a three-for-
two split of the registrant's Common Stock effective July 13,
1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 4. DESCRIPTION OF COMMON STOCK AND PREFERENCE SHARE
PURCHASE RIGHTS.
The Company's authorized capital stock consists of 75,000,000
shares of Common Stock, $3.33 par value, 500,000 shares of
Preferred Stock, $100 par value, 1,000,000 shares of Preferred
Stock A, without par value, and 500,000 shares of Preference
Stock, without par value.
COMMON STOCK. The following statements are summaries of
certain provisions with respect to the Common Stock of the
Company contained in its Certificate of Incorporation, as
amended, as affected by certain rights of the holders, if any, of
the Company's Preferred Stock, Preferred Stock A and Preference
Stock and by certain provisions of its Indenture of Mortgage,
dated May 1, 1939, between the Company and The New York Trust
Company (The Bank of New York, successor Corporate Trustee) and
A.C. Downing (W.T. Cunningham, successor Co-Trustee), as restated
in the Forty-fifth Supplemental Indenture, dated as of April 21,
1992 and as further amended, (the "Indenture"). Such statements,
which do not purport to be complete, are subject in all respects
to the full provisions of the Certificate of Incorporation, as
amended, and the Indenture, to which reference is made.
Dividends may be paid on the Common Stock as determined by the
Board of Directors out of funds legally available therefor but
only if full dividends on all outstanding series of the Preferred
Stock, Preferred Stock A and Preference Stock for the then
current and all prior dividend periods and any required sinking
fund payments with respect to any outstanding series of such
Preferred Stock, Preferred Stock A or Preference Stock have been
paid or provided for. The Company's Indenture contains certain
restrictions upon, among other things, the payment or declaration
of cash dividends on shares of the Company's Common Stock.
The holders of the Common Stock have exclusive voting rights
on the basis of one vote per share, except as may be fixed and
determined by the Board of Directors in respect of series of the
Preferred Stock and Preferred Stock A, or as set forth in the
Certificate of Incorporation, as amended, with respect to the
Preference Stock or as otherwise provided by law.
Whenever the cumulative dividends on any outstanding series of
the Preferred Stock, Preferred Stock A or Preference Stock are
unpaid, in whole or in part, for a period of one year, the
holders of the Preferred Stock and Preferred Stock A, or
Preference Stock, as the case may be, shall be entitled to the
same voting rights as the holders of the Common Stock, namely one
vote for each share of Preferred Stock, Preferred Stock A or
Preference Stock held. Such voting rights remain in effect until
all arrears in the payment of the cumulative dividends shall have
been paid and the dividends thereon for the current dividend
period shall have been declared and the funds for the payment
thereof set aside. In addition, the consent of the holders, if
any, of specified percentages of certain series of the Preferred
Stock and Preferred Stock A is required in connection with
certain amendments to the Company's Certificate of Incorporation,
as amended, and certain increases in authorized amounts or
changes in stock senior to the Common Stock.
The holders of the Common Stock are entitled in liquidation to
share ratably in the assets of the Company after required
preferential payments to the holders of the Preferred Stock,
Preferred Stock A and Preference Stock.
The Common Stock has no preemptive or conversion rights and
there are no redemption or sinking fund provisions applicable
thereto. The outstanding Common Stock is fully paid and
nonassessable.
The Company's Certificate of Incorporation, as amended,
contains certain provisions which make it difficult to obtain
control of the Company through transactions not having the
approval of the Board of Directors, including:
A provision providing for classification of the Board into
three classes comprised of as nearly equal a number of
directors as possible, establishing the method of filling any
vacancies, and providing that directors may be removed only
for cause;
A provision requiring the affirmative vote of 80% of the
outstanding shares of all classes of capital stock of the
Company entitled to vote for directors in order to authorize
certain "Business Combinations." Any such Business Combination
will also be required to meet certain "fair price" and
procedural requirements. Neither an 80% stockholder vote nor
"fair price" will be required for any Business Combination
which has been approved by two-thirds of the "Continuing
Directors;"
A provision permitting the Board of Directors to consider
certain specified factors in determining whether or not to
approve certain Business Combinations;
A provision requiring that action by stockholders be taken
only at a stockholders' meeting and limiting the ability of
stockholders to call a special meeting; and
A provision providing that certain Articles of the
Certificate of Incorporation, as amended, cannot be altered
except by 80% of the stockholders entitled to vote unless
approved by two-thirds of the Continuing Directors.
The Transfer Agent and Registrar for the Common Stock is
Norwest Bank Minnesota, N.A., South Saint Paul, Minnesota.
RIGHTS. On November 3, 1988, the Board of Directors of the
Company declared a dividend of one Right for each outstanding
share of Common Stock. The description and terms of the Rights
are set forth in a Rights Agreement, dated as of November 3, 1988
(the "Rights Agreement"), between the Company and Norwest Bank
Minnesota, N.A., as Rights Agent. Each Right entitles the
registered holder, until the earlier of November 18, 1998 and the
redemption of the Rights, to purchase from the Company four-
ninths of one one-hundredth (one two-hundred-and-twenty fifth) of
a share of Series A Preference Stock ("Preference Share") at an
exercise price of $50 per one one-hundredth ($22.22 per one two-
hundred-and-twenty fifth) of a Preference Share (the "Purchase
Price"), subject to certain adjustments.
Capitalized terms used in the following description and not
otherwise defined herein have the meanings set forth in the
Rights Agreement.
The Rights initially are represented by the certificates for
Common Stock and will not be exercisable or transferable apart
from the Common Stock until the earlier to occur of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons ("Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership
of 20% or more of the outstanding Common Stock or (ii) 10 days
following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of
30% or more of such outstanding Common Stock (the earlier of such
dates being called the "Distribution Date").
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right will thereafter have
the right to receive, upon the exercise thereof at the then
current exercise price of the Right multiplied by the number of
one one-hundredths of a Preference Share for which a Right is
then exercisable, in accordance with the terms of the Rights
Agreement, such number of shares of common stock of the acquiring
company as shall be equal to the result obtained by (i)
multiplying the then current exercise price of a Right by the
number of one one-hundredths of a Preference Share for which a
Right is then exercisable, and (ii) dividing that product by 50%
of the then current per share market price of the common stock of
the acquiring company on the date of consummation of such merger
or other business combination.
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In the event that any Person becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right
to receive upon exercise thereof at a price equal to the then
current exercise price of the Right multiplied by the number of
one one-hundredths of a Preference Share for which a Right is
then exercisable, in accordance with the terms of the Rights
Agreement and in lieu of Preference Shares, such number of shares
of Common Stock of the Company as shall be equal to the result
obtained by (i) multiplying the then current exercise price of
the Right by the number of one one-hundredths of a Preference
Share for which a Right is then exercisable, and (ii) dividing
that product by 50% of the then current per share market price of
the Company's Common Stock on the date such person became an
Acquiring Person.
The Rights will first become exercisable on the Distribution
Date (unless sooner redeemed) and could then begin trading
separately from the Common Stock. The Rights will expire on
November 18, 1998 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier
redeemed by the Company, in each case as described below.
At any time prior to the time any person becomes an Acquiring
Person, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $.00889 per Right
(the "Redemption Price"). No redemption will be permitted after
the time any person becomes an Acquiring Person. Immediately
upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, including an amendment to extend the Final Expiration
Date, and, provided there is no Acquiring Person, to extend the
period during which the Rights may be redeemed, except that from
and after such time as any person becomes an Acquiring Person no
such amendment may adversely affect the interests of the holders
of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
The Purchase Price payable, and the number of Preference
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preference
Shares, (ii) upon the grant to holders of the Preference Shares
of certain rights or warrants to subscribe for or purchase
Preference Shares at a price, or securities convertible into
Preference Shares with a conversion price, less than the then
current market price of the Preference Shares or (iii) upon the
distribution to holders of the Preference Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in
Preference Shares) or of subscription rights or warrants (other
than those referred to above).
The number of outstanding Rights and the number of one one-
hundredths of a Preference Share issuable upon exercise of each
Right are also subject to adjustment in the event of a stock
split of the Common Stock or a stock dividend on the Common Stock
payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case,
prior to the Distribution Date.
Preference Shares purchasable upon exercise of the Rights will
not be redeemable. Each Preference Share will be entitled to a
preferential quarterly dividend payment equal to the greater of
(a) $1 per share or (b) 225 times the aggregate dividend declared
per share of Common Stock. In the event of liquidation, the
holders of the Preference Shares will be entitled to a
preferential liquidation payment of $100 per share, provided that
holders of the Preference Shares will be entitled to an aggregate
amount per share equal to 225 times the aggregate amount to be
distributed per share to the holders of shares of Common Stock.
Each Preference Share will have no vote, except as otherwise
provided for by law or as set forth in the Company's Certificate
of Incorporation, as amended. Finally, in the event of any
merger, consolidation or other transaction in which shares of
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Common Stock are exchanged, each Preference Share will be
entitled to receive 225 times the amount received per share of
Common Stock. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preference Shares' dividend and
liquidation rights, the value of the number of one one-hundredths
of a Preference Share purchasable upon exercise of each Right
should approximate the value of one share of Common Stock.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preference Shares will be issued (other than fractions which are
integral multiples of one one-hundredth of a Preference Share,
which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preference Shares
on the last trading day prior to the date of exercise.
One Right was distributed to shareholders of the Company for
each share of Common Stock owned of record by them on November
18, 1988. Until the Distribution Date, the Company will issue
one Right with each share of Common Stock that shall become
outstanding so that all shares of Common Stock will have attached
Rights.
The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Board of
Directors of the Company, except pursuant to an offer conditioned
on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business
combination approved by the Board of Directors prior to the time
that any person becomes an Acquiring Person, since until such
time the Rights may be redeemed by the Company at $.00889 per
Right.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-laws 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
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,
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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
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.
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(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(b) By-laws of the Company, as amended to date, filed as
Exhibit 3(b) to Form 10-K for the year ended
December 31, 1997, File No. 1-3480.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Ralph E. Davis Associates, Inc.
23(c) Consent of Weir International Mining Consultants.
The undersigned registrant has timely submitted the Plan and
any amendment thereto to the Internal Revenue Service (the "IRS")
and has made all changes required by the IRS in order to qualify
the Plan under Section 401 of the Internal Revenue Code.
-----------------------
* Incorporated by reference herein as indicated.
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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 Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Bismarck, State of North Dakota, on July 13, 1998.
MDU RESOURCES GROUP, INC.
By: /s/ Martin A. White
-------------------------------------
Martin A. White
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Post-Effective Amendment No. 1 to the Registration Statement has
been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Martin A. White
--------------------
Martin A. White Chief Executive Officer July 13, 1998
and Director
/s/ Douglas C. Kane
-------------------- Chief Administrative and July 13, 1998
Douglas C. Kane Corporate Development
Officer and Director
/s/ Warren L. Roinson
--------------------
Warren L. Robinson Chief Financial Officer July 13, 1998
*Vernon A. Raile
-------------------- Chief Accounting Officer July 13, 1998
Vernon A. Raile
*John A. Schuchart
-------------------- (Chairman of the Board) July 13, 1998
John A. Schuchart Director
*San W. Orr, Jr.
-------------------- (Vice Chairman of the July 13, 1998
San W. Orr, Jr. Board) Director
*Thomas Everist
-------------------- Director July 13, 1998
Thomas Everist
*H.J. Mellen, Jr.
-------------------- Director July 13, 1998
H.J. Mellen, Jr.
*Richard L. Muus
-------------------- Director July 13, 1998
Richard L. Muus
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*Robert L. Nance
-------------------- Director July 13, 1998
Robert L. Nance
*John L. Olson
-------------------- Director July 13, 1998
John L. Olson
-------------------- Director July 13, 1998
Harry J. Pearce
*Homer A. Scott, Jr.
-------------------- Director July 13, 1998
Homer A. Scott, Jr.
*Joseph T. Simmons
-------------------- Director July 13, 1998
Joseph T. Simmons
*Sister Thomas Welder,
O.S.B.
-------------------- Director July 13, 1998
Sister Thomas Welder,
O.S.B.
By: /s/ Warren L. Robinson
---------------------------
Warren L. Robinson, as
Attorney-in-fact for each
of the persons indicated by an asterisk
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the Tax Deferred Compensation Savings Plan Committee has
duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Bismarck,
State of North Dakota on July 13, 1998.
MDU RESOURCES GROUP, INC.
Tax Deferred Compensation Savings Plan
By: /s/ Douglas C. Kane
----------------------------------
Douglas C. Kane, Chairman
Tax Deferred Compensation Savings
Plan Committee
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EXHIBIT INDEX
Exhibit Description
------- -----------
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Ralph E. Davis Associates, Inc.
23(c) Consent of Weir International Mining Consultants.