SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-A/A
AMENDMENT NO. 3
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 41-0423660
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
Schuchart Building
918 East Divide Avenue
P.O. Box 5650
Bismarck, ND 58506-5650
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A.(c), check the Instruction A.(d), check the
following box. [x] following box. [ ]
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 Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
Common Stock, $1.00 par value New York Stock Exchange
Pacific Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
Item 1. Description of Registrant's Securities to be Registered.
This amendment no. 3 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, and as further amended by amendment No. 2 on Form 8-A/A filed on March
10, 2003.
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, amended bylaws and indenture of mortgage are exhibits 3.1, 3.2
and 3.4, respectively, to this registration statement 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.
Our restated certificate of incorporation authorizes us to issue
252,000,000 shares of stock, divided into four classes:
o 500,000 shares of preferred stock, $100 par value;
o 1,000,000 shares of preferred stock A, without par value;
o 500,000 shares of preference stock, without par value; and
o 250,000,000 shares of common stock, $1.00 par value.
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 January 15, 2004, 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."
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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.
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As of January 15, 2004, we had 163,000 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
Classified Board
We have divided the members of our board of directors into three classes as
nearly equal in number as may be. Directors in each class are elected for a
three-year term.
This classification of our board of directors 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
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. Our
board fills any new directorships it creates and any vacancies.
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
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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 - for example, a stockholder who is our
affiliate. Article Thirteenth of our restated certificate of incorporation
contains provisions relating to our board of directors, including provisions
establishing a classified board. 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:
o 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
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and other factors bearing on securities prices and our financial
condition, future prospects and future value as an independent
corporation;
o 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;
o 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;
o 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;
o The general desirability of our continuance as an independent entity;
and
o Such other factors as the continuing directors may deem relevant.
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 and in the rights agreement,
dated November 12, 1998, between Wells Fargo Bank, N.A., as rights agent, and
us. 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.
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Item 2. Exhibits.
Exhibit
Number Exhibit
*3.1 Restated Certificate of Incorporation of the Company, filed as Exhibit
3(a) to Amendment No. 1 to Registration Statement on Form S-3, filed
on June 13, 2003 in Registration No. 333-104150.
*3.2 By-laws of the Company, as amended to date, filed as Exhibit 3.3 to
Amendment No. 2 to Form 8-A/A on March 10, 2003, in File No. 1-3480.
*3.3 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.
*3.4 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.
3.5 Fiftieth Supplemental Indenture, dated as of December 15, 2003.
3.6 Indenture, dated as of December 15, 2003, between the Company and The
Bank of New York, as trustee.
3.7 Officer's Certificate, dated as of December 23, 2003, establishing the
Form and Certain Terms of the 5.98% Senior Notes due 2033.
___________________________
*Incorporated herein by reference.
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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.
MDU Resources Group, Inc.
By: /s/ Warren L. Robinson
------------------------------------
Warren L. Robinson
Executive Vice President
and Chief Financial Officer
Date: January 20, 2004
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EXHIBIT INDEX
Exhibit
Number Exhibit
*3.1 Restated Certificate of Incorporation of the Company, filed as Exhibit
3(a) to Amendment No. 1 to Registration Statement on Form S-3, filed
on June 13, 2003 in Registration No. 333-104150.
*3.2 By-laws of the Company, as amended to date, filed as Exhibit 3.3 to
Amendment No. 2 to Form 8-A/A on March 10, 2003, in File No. 1-3480.
*3.3 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.
*3.4 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.
3.5 Fiftieth Supplemental Indenture, dated as of December 15, 2003.
3.6 Indenture, dated as of December 15, 2003, between the Company and The
Bank of New York, as trustee.
3.7 Officer's Certificate, dated as of December 23, 2003, establishing the
Form and Certain Terms of the 5.98% Senior Notes due 2033.
___________________________
*Incorporated herein by reference.
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