AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 1999
REGISTRATION NO. 333-_______
=========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
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 41-0423660
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Schuchart Building
918 East Divide Avenue
P.O. Box 5650
Bismarck, North Dakota 58501
(701) 222-7900
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
MDU RESOURCES GROUP, INC.
401(k) RETIREMENT PLAN
(Full title of the plan)
MARTIN A. WHITE WARREN L. ROBINSON THOMAS J. IGOE, JR.
President and Chief Vice President, Thelen Reid & Priest
Executive Officer Treasurer LLP
MDU Resources Group, and Chief Financial 40 West 57th Street
Inc. Officer New York, New York
Schuchart Building MDU Resources Group, 10019
918 East Divide Avenue Inc. (212) 603-2000
P.O. Box 5650 Schuchart Building
Bismarck, North Dakota 918 East Divide Avenue
58501 P.O. Box 5650
(701) 222-7900 Bismarck, North Dakota
58501
(701) 222-7900
(Names, addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED BE REGISTERED(1) PER SHARE OFFERING PRICE FEE
- --------------------------------------------------------------------------------
Common Stock, 1 share (2) $23.28(4) $23.28(4) $0.00(5)
$3.33 par
value
- --------------------------------------------------------------------------------
Preference Share 1,444,947 - - - (6)
Purchase Rights rights (3)
================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, as amended, this registration statement also
covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
(2) Does not include 722,503 shares previously registered on
Registration Statement No. 333-06105 or 722,443 shares
previously registered on Registration Statement No. 333-
06103, which shares are moved and carried forward to this
registration statement.
(3) The number of Preference Share Purchase Rights registered
pursuant hereto includes the Preference Share Purchase
Rights appurtenant to the shares of Common Stock that are
being moved and carried forward to this registration
statement from Registration Statement No. 333-06105 and
Registration Statement No. 333-06103.
(4) Based on the average of the high and the low prices of the
Company's common stock on the composite tape on February 16,
1999, pursuant to Rule 457(c).
(5) The registration fees with respect to the shares of Common
Stock that are being moved and carried forward to this
registration statement from Registration Statement No. 333-
06105 and Registration Statement No. 333-06103 have been
previously paid with those Registration Statements.
(6) 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 Preference Share Purchase Rights,
if any, is reflected in the market price of the Common
Stock.
=================================================================
PART II
Pursuant to General Instruction E to Form S-8, the contents of
MDU Resources Group, Inc.'s Registration Statement on Form S-8
(Registration No. 333-06105), as amended by Post-Effective
Amendment No. 1 thereto, and MDU Resources Group, Inc.'s
Registration Statement on Form S-8 (Registration No. 333-06103),
as amended by Post Effective Amendment No. 1 thereto (together,
the "Prior Registration Statements"), are incorporated herein by
reference. This Registration Statement covers 1 share which,
together with the 1,444,946 shares being moved and carried
forward from the Prior Registration Statements constitute the
1,444,947 shares issuable under the MDU Resources Group, Inc.
401(k) Retirement Plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference
into this registration statement, and all documents subsequently
filed by MDU Resources Group, Inc. (the "Company") or the MDU
Resources Group, Inc. 401(k) Retirement Plan (the "Plan")
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (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 a part hereof from the respective dates of filing of such
documents; provided, however, that the documents subsequently
filed by the Company or the Plan pursuant to Section 13 or 15(d)
of the Exchange Act prior to the filing with the Securities and
Exchange Commission (the "Commission") of the Company's most
recent Annual Report on Form 10-K or the Plan's most recent
Annual Report on Form 11-K, as the case may be, shall not be
incorporated by reference in this registration statement or be a
part hereof from and after the date of filing of such Annual
Report on Form 10-K or Annual Report on Form 11-K, as the case
may be:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1998, June 30, 1998, and September 30,
1998;
(c) The Company's Current Reports on Form 8-K, filed by the
Company with the Commission on April 17, 1998, April 22, 1998,
July 7, 1998, December 1, 1998 and January 13, 1999;
(d) The Plan's Annual Report on Form 11-K for the year ended
December 31, 1997;
(e) The description of the Company's Common Stock contained in
a registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description; and
(f) The description of the Company's Preference Share Purchase
Rights contained in the registration statement on Form 8-A, dated
November 12, 1998, of the Company, including any amendment or
report filed for the purpose of updating such description.
Any statement contained in a document incorporated by reference
in this registration statement shall be deemed to be modified or
superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which 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.
II-1
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
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.
II-2
(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.
(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
II-3
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) Composite Certificate of Incorporation of the Company,
as amended to date, filed as Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994, in File No. 1-3480.
*4(b) By-laws of the Company, as amended to date, filed as
Exhibit 3(b) to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1998, in File
No. 1-3480.
*4(c) Rights Agreement, dated as of November 12, 1998,
between the Company and Norwest Bank Minnesota, N.A.,
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, 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), filed as Exhibit 4(a) in
Registration No. 33-66682.
*4(e) Forty-sixth, Forty-seventh and Forty-eighth Supplements
to the Indenture of Mortgage, dated as of May 1, 1939,
as restated in the Forty-fifth Supplemental Indenture,
dated as of April 21, 1992, 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), filed as Exhibits 4(e), 4(f) and
4(g), respectively, in Registration No. 33-53896.
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 Ralph E. Davis Associates, Inc.
23(c) Consent of Weir International Mining Consultants.
23(d) Consent of Lester H. Loble, II, Esq. (contained in
opinion filed as Exhibit 5(a) hereto).
23(e) Consent of Thelen Reid & Priest LLP (contained in
opinion filed as Exhibit 5(b) hereto).
24 Power of Attorney (see signature pages).
______________________
*Incorporated herein by reference as indicated.
The Company will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service (the "IRS") in
a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan, as amended, under Section
401 of the Internal Revenue Code.
II-4
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(A) 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;
(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 and 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 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 the registrant need not file a post-
effective amendment to include the information required to be
included by paragraphs (i) or (ii) if the information is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement;
(B) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment 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;
(C) 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; and
(D) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) 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 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-5
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature
appears below hereby appoints the Agents for Service named in
this registration statement, and each of them severally, as
his/her attorney-in-fact to sign in his/her 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 like authority to
sign and file any such amendment 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 18th day of February, 1999.
MDU RESOURCES GROUP, INC.
By:/s/ Martin A. White
-------------------
Martin A. White
President and Chief
Executive Officer
II-6
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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ Martin A. White Chief Executive February 18, 1999
-------------------- Officer and
Martin A. White Director
(President and Chief
Executive Officer)
/s/ Douglas C. Kane
--------------------- Chief February 18, 1999
Douglas C. Kane Administrative
(Executive Vice and Corporate
President, Chief Development
Administrative & Officer and
Corporate Development Director
Officer)
/s/ Warren L. Robinson
---------------------- Chief Financial February 18, 1999
Warren L. Robinson Officer
(Vice President,
Treasurer and Chief
Financial Officer)
/s/ Vernon A. Raile
--------------------- Chief February 18, 1999
Vernon A. Raile (Vice Accounting
President, Controller Officer
and Chief Accounting
Officer)
/s/ John A. Schuchart
---------------------- Director February 18, 1999
John A. Schuchart
(Chairman of the
Board)
______________________ Director February 18, 1999
San W. Orr, Jr. (Vice
Chairman of the Board)
/s/ Thomas Everist
---------------------- Director February 18, 1999
Thomas Everist
______________________ Director February 18, 1999
Harold J. Mellen, Jr.
/s/ Richard L. Muus
---------------------- Director February 18, 1999
Richard L. Muus
/s/ Robert L. Nance
----------------------- Director February 18, 1999
Robert L. Nance
/s/ John L. Olson
---------------------- Director February 18, 1999
John L. Olson
---------------------- Director February 18, 1999
Harry J. Pearce
/s/ Homer A. Scott, Jr.
---------------------- Director February 18, 1999
Homer A. Scott, Jr.
/s/ Joseph T. Simmons
---------------------- Director February 18, 1999
Joseph T. Simmons
/s/ Sister Thomas Welder
------------------------- Director February 18, 1999
Sister Thomas Welder,
O.S.B.
II-7
POWER OF ATTORNEY
The Plan hereby appoints the Agents for Service named in this
registration statement, and each of them severally, as its
attorney-in-fact to sign in its name and behalf and to file with
the Securities and Exchange Commission, any and all amendments
including post-effective amendments, to this registration
statement.
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the MDU Resources Group, Inc. 401(k) Retirement Plan
Committee 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 18th day of February, 1999.
MDU RESOURCES GROUP, INC.
401(k) Retirement Plan
By: /s/ Douglas C. Kane
-------------------------
Douglas C. Kane, Chairman
MDU Resources Group, Inc. 401(k)
Retirement Plan Committee
II-8
EXHIBIT INDEX
*4(a) Composite Certificate of Incorporation of the
Company, as amended to date, filed as Exhibit 3(a)
to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, in File No. 1-3480.
*4(b) By-laws of the Company, as amended to date, filed as
Exhibit 3(b) to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998,
in File No. 1-3480.
*4(c) Rights Agreement, dated as of November 12, 1998,
between the Company and Norwest Bank Minnesota,
N.A., 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, 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), filed as Exhibit
4(a) in Registration No. 33-66682.
*4(e) Forty-sixth, Forty-seventh and Forty-eighth
Supplements to the Indenture of Mortgage, dated as
of May 1, 1939, as restated in the Forty-fifth
Supplemental Indenture, dated as of April 21, 1992,
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), filed as Exhibits 4(e), 4(f) and 4(g),
respectively, in Registration No. 33-53896.
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 Ralph E. Davis Associates, Inc.
23(c) Consent of Weir International Mining Consultants.
23(d) Consent of Lester H. Loble, II, Esq. (contained in
opinion filed as Exhibit 5(a) hereto).
23(e) Consent of Thelen Reid & Priest LLP (contained in
opinion filed as Exhibit 5(b) hereto).
24 Power of Attorney (see signature pages).
______________________
*Incorporated herein by reference as indicated.