AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1998
REGISTRATION NO. 333-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
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 58506-5650
(701) 222-7900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
HAROLD J. MELLEN, JR. WARREN L. ROBINSON RICHARD M. FARMER
President and Chief Vice President, Reid & Priest LLP
Executive Officer Treasurer 40 West 57th
MDU Resources Group, and Chief Financial Street
Inc. Officer New York, New
Schuchart Building MDU Resources Group, York 10019
918 East Divide Inc. (212) 603-2000
Avenue Schuchart Building
P.O. Box 5650 918 East Divide
Bismarck, North Avenue
Dakota 58506-5650 P.O. Box 5650
(701) 222-7900 Bismarck, North
Dakota 58506-5650
(701) 222-7900
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
With a copy to:
DOUGLAS E. DAVIDSON
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
(212) 704-0100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration
Statement, as determined by market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box [ ].
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box [X].
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering [ ].
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering
[ ].
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box [ ].
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CALCULATION OF REGISTRATION FEE
==========================================================================
TITLE OF
EACH CLASS
OF PROPOSED PROPOSED
SECURITIES AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
TO BE BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Common
Stock, $3.33 3,400,000
par value shares $35.4375(1) $120,487,500(1) $35,543.82
--------------------------------------------------------------------------
Preference
Share
Purchase 3,400,000
Rights rights -- -- -- (2)
==========================================================================
(1) Estimated pursuant to Rule 457(c) under the Securities Act
of 1933, as amended, solely for the purpose of calculating
the registration fee based on the average of the high and
the low prices of the Company's Common Stock as reported on
the New York Stock Exchange composite tape on March 18,
1998.
(2) 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.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell
or the solicitation of any offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
SUBJECT TO COMPLETION, DATED March 25, 1998
PROSPECTUS
----------
3,400,000 SHARES
MDU RESOURCES GROUP, INC.
COMMON STOCK
PAR VALUE, $3.33 PER SHARE
----------------
This Prospectus relates to the offering, from time to time, of
up to 3,400,000 shares of MDU Resources Group, Inc. (the
"Company") Common Stock, par value $3.33 per share (the "Common
Stock") and the appurtenant Preference Share Purchase Rights (the
"Rights", and together with the 3,400,000 shares of Common Stock,
the "Offered Shares") on terms to be determined at the time of
sale, of which 2,169,068 Offered Shares are being offered for sale
by the Company and 1,230,932 Offered Shares are being offered
for sale by certain shareholders of the Company (the "Selling
Shareholders"). This Prospectus will be supplemented by one or
more Prospectus Supplements ("Prospectus Supplement") which will
reflect any agreement entered into by the Company and, to the
extent applicable, the Selling Shareholders for the sale of the
Offered Shares and will set forth the number of Offered Shares,
proceeds to the Company and the Selling Shareholders, initial
offering price, and other specific terms of the applicable offering
of the Offered Shares in respect of which this Prospectus is being
delivered. The Company will not receive any of the proceeds from
the sale of Offered Shares by the Selling Shareholders. See
"Selling Shareholders." The Company will pay all expenses in
connection with the registration and offering of the Offered
Shares under the Securities Act of 1933, as amended (the
"Securities Act"), other than the following expenses of the
Selling Shareholders, which will be paid by the Selling
Shareholders: (i) underwriting discounts and commissions with
respect to the Offered Shares offered for sale by the Selling
Shareholders, (ii) placement agency fees or financial advisor
fees with respect to such Offered Shares and (iii) the fees and
expenses of their counsel.
The Company's outstanding shares of Common Stock and the
appurtenant Rights (including the Offered Shares offered for sale
by the Selling Shareholders) are, and the Offered Shares offered
for sale by the Company are expected to be, listed on the New York
Stock Exchange (the "NYSE") and the Pacific Exchange under the
symbol MDU.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Offered Shares may be sold directly by the Company or the
Selling Shareholders, through agents designated from time to time
or through underwriters. If an agent of the Company or the
Selling Shareholders or any underwriter is involved in the sale
of any Offered Shares in respect of which this Prospectus is
being delivered, the names of such agents or underwriters, any
applicable discounts, commissions or allowances and a description
of any indemnification arrangements will be set forth in a
Prospectus Supplement. See "Plan of Distribution."
----------------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy and
information statements, and other information with the Securities
and Exchange Commission (the "SEC"). Reports, proxy and
information statements, and other information filed by the
Company can be inspected and copied at the public reference
facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices at
Seven World Trade Center, Suite 1300, New York, New York, 10048,
and at 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can also be obtained from the
Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The SEC maintains a
Web site (http://www.sec.gov) that contains reports, proxy and
information statements, and other information filed
electronically by the Company. The Company's outstanding Common
Stock and the appurtenant Rights are listed for trading on the
NYSE and on the Pacific Exchange. Reports, proxy and information
statements, and other information concerning the Company can also
be inspected at the offices of the NYSE and the Pacific Exchange.
The Company has filed a Registration Statement on Form S-3
(herein, together with all exhibits and amendments thereto,
called the "Registration Statement") with the SEC under the
Securities Act with respect to the Offered Shares. This
Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC. For
further information, reference is made to the Registration
Statement. Statements contained herein concerning any document
filed as an exhibit to the Registration Statement are not
necessarily complete and, in each instance, reference is made to
the copy of such document filed as an exhibit to the Registration
Statement. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with
the SEC are hereby incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1997 (including portions of the Annual
Report to Stockholders); and
2. The Company's Registration Statement on Form 8-A dated
November 17, 1988.
All documents subsequently filed by the Company with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act prior to the termination of the offering made by this
Prospectus shall be deemed to be incorporated by reference in
this Prospectus.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a copy of
this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this
Prospectus by reference, other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference
into such documents. Requests for copies of such documents
should be addressed to Office of the Treasurer, MDU Resources
-2-
<PAGE>
Group, Inc., Schuchart Building, 918 East Divide Avenue, P.O. Box
5650, Bismarck, North Dakota 58506-5650, telephone (701) 222-
7900.
The information relating to the Company contained in this
Prospectus does not purport to be comprehensive and should be
read together with the information contained in any or all
documents which have been or may be incorporated in this
Prospectus by reference.
THE COMPANY
The Company is a diversified natural resource company
incorporated under the laws of the State of Delaware in 1924.
The Company's principal executive offices are located at the
following address: Schuchart Building, 918 East Divide Avenue,
P.O. Box 5650, Bismarck, North Dakota 58506-5650, telephone (701)
222-7900.
Montana-Dakota Utilities Co., the public utility division of
the Company, provides electric and/or natural gas and propane
distribution service at retail to 256 communities in North
Dakota, eastern Montana, northern and western South Dakota and
northern Wyoming, and owns and operates electric power generation
and transmission facilities. The Company, through its wholly
owned subsidiary, Centennial Energy Holdings, Inc., owns
Williston Basin Interstate Pipeline Company ("Williston Basin"),
Knife River Corporation ("Knife River"), the Fidelity Oil Group
("Fidelity Oil") and Utility Services, Inc. ("Utility Services").
Williston Basin produces natural gas and provides underground
storage, transportation and gathering services through an
interstate pipeline system serving Montana, North Dakota, South
Dakota and Wyoming and, through its wholly owned subsidiary,
Prairielands Energy Marketing, Inc., seeks new energy markets
while continuing to expand present markets for natural gas and
propane. Knife River, through its wholly owned subsidiary, KRC
Holdings, Inc. and its subsidiaries, surface mines and markets
aggregates and related construction materials in Alaska,
California, Hawaii and Oregon. In addition, Knife River surface
mines and markets low sulfur lignite coal at mines located in
Montana and North Dakota. Fidelity Oil is comprised of Fidelity
Oil Co. and Fidelity Oil Holdings, Inc., which own oil and
natural gas interests throughout the United States, the Gulf of
Mexico and Canada through investments with several oil and
natural gas producers. Utility Services, through its wholly
owned subsidiaries, International Line Builders, Inc. and High
Line Equipment, Inc., installs and repairs electric transmission
and distribution power lines in the western United States and
Hawaii and provides related supplies and equipment.
SELLING SHAREHOLDERS
The Company acquired all of the stock of Morse Bros., Inc.
("MBI") and S2 - F Corp. ("S2 - F") on March 5, 1998. As a
result of these transactions, shareholders of MBI and S2 - F
received an aggregate of 3,848,351 shares of Company Common
Stock. The terms of two separate, but substantially identical
Stock Disposition Agreements, each dated March 5, 1998, between
the Company and certain MBI shareholders (the "MBI Selling
Shareholders") and the Company and the S2 - F shareholders provide
that the Company will register for resale under the Securities Act
certain of the shares of Company Common Stock issued to the MBI
Selling Shareholders and the S2 - F shareholders listed in the
table below. Each Selling Shareholder is offering all shares of
Company Common Stock owned by such Selling Shareholder that it is
permitted to sell as of the date of this Prospectus under the
Stock Disposition Agreement to which it is a party.(1)
Pursuant to separate but substantially identical
Stockholders' Agreements dated as of March 5, 1998, the Common
Stock owned after the offering of the Offered Shares by each
Selling Shareholder is subject to certain restrictions, including
but not limited to (i) limitations on each Selling Shareholder's
ability to transfer its shares for a period of four years and
(ii) for a period of five years, requiring each Selling
Shareholder to (A) cause all of the shares to be present, in
person or proxy, for quorum purposes, at all meetings of
stockholders of the Company, (B) vote all shares entitled to be
----------------
(1) A group of previous MBI shareholders owning in the
aggregate 145,717 shares of Company Common Stock are not
parties to the MBI Stock Disposition Agreements and,
therefore, are not offering for sale shares of Company
Common Stock pursuant to this offering.
-3-
<PAGE>
voted by the Selling Shareholder in accordance with the
recommendation of the Board of Directors of the Company, other
than the election of directors, (C) not, alone or with any other
person, seek or accept a seat on the Board of Directors of the
Company, (D) not acquire any additional shares of Company Common
Stock except through (1) the reinvestment of dividends or (2)
compensation plans of the Company, (E) not solicit proxies to
vote any shares of Company Common Stock, (F) not form or
participate in a "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) with respect to the shares, (G) not solicit
or encourage any person to acquire shares of Company Common Stock
and (H) not make any proposal with respect to a merger or
business combination involving the Company or any of its
subsidiaries.
The aforementioned Stock Disposition Agreements provide that
the Company will issue to the MBI Selling Shareholders or the
S2 - F shareholders, as the case may be, additional shares of
Company Common Stock pursuant to a price formula if the gross
sale price for the Offered Shares sold by the Selling Shareholders
(or, in the event no sales are made, if the market price of the
Company Common Stock on September 1, 1998) is lower than $29.3125
per share. Each such Stock Disposition Agreement further provides
that the number of additional shares to be issued pursuant thereto
will in no event exceed a stated number which, in the case of the
MBI Selling Shareholders is 300,000 shares and, in the case of the
S2 - F shareholders is 5,000 shares. The share information set
forth in the Selling Shareholder Table below and in Note 1 thereto
assumes no such additional issuances occur.
The following table lists the Selling Shareholders, the number
of shares of Common Stock of the Company beneficially owned by
each Selling Shareholder as of the date of this Prospectus, the
number of Offered Shares to be offered for sale by each Selling
Shareholder and the number of outstanding shares of Common Stock
to be owned by each Selling Shareholder after completion of the
offering.
-4-
<PAGE>
COMMON COMMON
STOCK SHARES STOCK
OWNED TO BE OWNED
SELLING PRIOR TO OFFERED AFTER
SHAREHOLDER(1)(2) OFFERING HEREBY OFFERING
----------------------------------------------------------------
J. Franklin Morse(3) 380,841 100,238 280,603
The Joseph D. Morse
Revocable Trust, dated
January 25, 1993(4) 88,069 24,294 63,775
The Forrest W. Morse
Revocable Trust, dated
May 21, 1993(5) 104,187 28,739 75,448
The William F. Morse
Revocable Trust, dated
October 5, 1993(6) 96,127 26,516 69,611
Scot F. Morse 22,832 8,301 14,531
Kerry Lin Tong 22,832 8,301 14,531
Michael D. Morse(7) 393,491 143,117 250,374
Derek C. Morse(8) 8,293 3,018 5,275
Brock M. Morse(9) 8,293 3,018 5,275
Tari Morse as Custodian
for Tyler A. Morse Under
the Oregon Uniform
Transfer to Minors Act 8,293 3,018 5,275
The Tyler A. Morse
Trust, dated April 24,
1997 16,126 5,865 10,261
The Joy L. Morse
Irrevocable Trust, dated
December 24, 1996 19,867 7,224 12,643
The Brock M. Morse
Trust, dated April 24,
1997 16,126 5,865 10,261
The Derek C. Morse
Trust, dated April 24,
1997(8) 16,126 5,865 10,261
Steven G. Morse(10) 464,729 169,021 295,708
Jennifer L. Smith 12,094 4,398 7,696
Gregory F. Morse(11) 461,757 162,684 299,073
The Sara L. Morse Trust,
dated October 31, 1995 8,292 3,018 5,274
The Bryan T. Morse
Trust, dated October 31,
1995 8,292 3,018 5,274
Jonathan B. Morse(12) 304,403 110,712 193,691
Travis L. Morse 3,741 1,359 2,382
Gabriel J. Morse 3,741 1,359 2,382
Susan L. Morse as
Custodian for Justin W.
Morse Under the Oregon
Uniform Transfer to
Minors Act 3,741 1,359 2,382
Susan L. Morse as
Custodian for Amanda N.
Morse Under the Oregon
Uniform Transfers to
Minors Act 3,741 1,359 2,382
-5-
<PAGE>
COMMON COMMON
STOCK SHARES STOCK
OWNED TO BE OWNED
SELLING PRIOR TO OFFERED AFTER
SHAREHOLDER(1)(2) OFFERING HEREBY OFFERING
----------------------------------------------------------------
The Travis Lee Morse
Gift Trust, dated May
15, 1997 8,681 3,160 5,521
The Justin Wade Morse
Gift Trust, dated May
15, 1997 8,681 3,160 5,521
The Amanda Nicole Morse
Gift Trust, dated May
15, 1997 8,681 3,160 5,521
The Gabriel Jerome Morse
Gift Trust, dated May
15, 1997 8,681 3,160 5,521
Raymond W. Morse(13) 123,104 44,770 78,334
Phyllis J. Helland 123,084 44,770 78,314
Diana M. Perdue(14) 123,104 44,770 78,334
John G. Perdue 123,084 44,770 78,314
The Anne M. Novakovich
Family Trust, dated
October 29, 1996(15) 158,587 57,678 100,909
The Anne M. Novakovich
Children's Trust, dated
April 8, 1997(15) 56,447 20,532 35,915
Angela Andersen 4,418 1,606 2,812
Clinton D. Andersen 4,418 1,606 2,812
The McBride Family
Limited Partnership(16) 84,149 30,606 53,543
Debbie McCool 6,705 2,436 4,269
Richard Lyon(17) 6,705 2,436 4,269
Northwest Christian
College 60,150 60,150 0
Willamette Valley
Rehabilitation Center,
Inc. 8,270 8,270 0
R. Gary Ferguson(18) 95,981 14,225 81,756
Dennis L. Smallwood(19) 53,989 8,001 45,988
----------------------------------------------------------------
Totals 3,542,953 1,230,932 2,312,021
================================================================
(1) If the Company Common Stock holdings of the Selling Shareholders
were aggregated, then, based upon the number of shares of
the Company Common Stock outstanding on December 31, 1997
and giving effect both to the issuance on March 5, 1998 of
3,848,351 shares of Company Common Stock to former
shareholders of MBI and S2 - F, including 3,542,953 shares
issued to the Selling Shareholders, and to the sale of
1,230,932 of such shares pursuant to this Prospectus, the
total number of shares of Company Common Stock owned by the
Selling Shareholders would be 2,312,021 shares, or
approximately 7.00% of the outstanding Company Common
Stock.
-6-
<PAGE>
(2) The MBI Selling Shareholders, which comprise all of the
Selling Shareholders other than R. Gary Ferguson and
Dennis L. Smallwood, filed a Schedule 13G with the SEC on
March 13, 1998 to report their share ownership in the
Company but disclaimed the existence of a "group." If the
Company Common Stock holdings of the MBI Selling
Shareholders were aggregated, then, based upon the number
of shares of Company Common Stock outstanding on
December 31, 1997 and giving effect both to the issuance
on March 5, 1998 of 3,848,351 shares of Company Common
Stock to former shareholders of MBI and S2 - F, including
3,392,983 shares issued to the MBI Selling Shareholders,
and to the sale of 1,208,706 of such shares pursuant to
this Prospectus, the total number of shares of Company Common
Stock owned by the MBI Selling Shareholders would be 2,184,277
shares, or approximately 6.62% of the outstanding Company
Common Stock.
(3) President of MBI, now a subsidiary of the Company.
(4) Joseph D. Morse is a former officer and director of MBI.
(5) Forrest W. Morse is a former officer and director of MBI.
(6) William F. Morse is a former officer and director of MBI.
(7) Former director and current manager of MBI.
(8) Former employee of MBI.
(9) Former employee of MBI.
(10) Former director and manager of and consultant to MBI.
(11) Former director and current manager of MBI.
(12) Former director of and consultant to MBI.
(13) Former director of MBI.
(14) Former director of MBI.
(15) Anne M. Novakovich is a former director of MBI.
(16) Judith M. McBride, a partner of the McBride Family Limited
Partnership, is a former director of MBI.
(17) Current employee of MBI.
(18) Former director and current officer of S2 - F.
(19) Former director and current officer of S2 - F.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Offered
Shares by the Company may be used for the refunding of outstanding
debt obligations, for corporate development purposes (including
the potential acquisition of businesses and/or business assets),
and for other general corporate purposes. The Company will not
receive any of the proceeds from the sale of Offered Shares
offered for sale by the Selling Shareholders. See "Selling
Shareholders."
DESCRIPTION OF COMMON STOCK AND 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.
-7-
<PAGE>
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;"
-8-
<PAGE>
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 two-thirds
of one one-hundredth (one one-hundred-and-fiftieth) of a share of
Series A Preference Stock ("Preference Share") at an exercise
price of $50 per one one-hundredth ($33.33 per one one-hundred-
and-fiftieth) 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.
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
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<PAGE>
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 $.01333 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) 150 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 150 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
Common Stock are exchanged, each Preference Share will be
entitled to receive 150 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.
-10-
<PAGE>
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 $.01333 per
Right.
PLAN OF DISTRIBUTION
The Company and the Selling Shareholders may sell the Offered
Shares in one of four ways: (i) through the solicitation of
proposals of underwriters or dealers to purchase the Offered
Shares, (ii) through underwriters or dealers on a negotiated
basis, (iii) directly to a limited number of purchasers or to a
single purchaser or (iv) through agents. The applicable
Prospectus Supplement with respect to the Offered Shares will set
forth the terms of the offering of such Offered Shares, including
the name or names of any underwriters, the purchase price of such
Offered Shares and the net proceeds to the Company and the
Selling Shareholders from such sale, any underwriting discounts
and other items constituting underwriters' compensation, any
initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
In addition, any Offered Shares offered for sale by the Selling
Shareholders that qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this Prospectus.
If underwriters are used in the sale, such Offered Shares will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The Offered
Shares may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or
directly by one or more underwriting firms. The underwriter or
underwriters with respect to a particular underwritten offering
of Offered Shares will be named in the Prospectus Supplement
relating to such offering and, if an underwriting syndicate is
used, the managing underwriter or underwriters will be set forth
on the cover page of such Prospectus Supplement. Unless
otherwise set forth in a Prospectus Supplement, the obligations
of the underwriters to purchase the Offered Shares will be
subject to certain conditions precedent and the underwriters will
be obligated to purchase all such Offered Shares if any are
purchased.
The Offered Shares may be sold directly by the Company and the
Selling Shareholders or through agents designated by the Company
and the Selling Shareholders from time to time. The applicable
Prospectus Supplement will set forth the name of any agent
involved in the offer or sale of the Offered Shares and any
commissions payable by the Company or the Selling Shareholders to
such agent. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
The Selling Shareholders and any broker-dealer or agents that
participate with the Selling Shareholders in the distribution of
the Offered Shares offered for sale by the Selling Shareholders
-11-
<PAGE>
may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, and any commissions received by them
and any profit on the resale of such Offered Shares purchased by
them may be deemed to be underwriting commissions or discounts
under the Securities Act.
The Company has agreed to indemnify the Selling Shareholders
against certain liabilities, including liabilities under the
Securities Act. Agents and underwriters may be entitled under
agreements entered into with the Company and the Selling
Shareholders to indemnification or contribution by the Company
and the Selling Shareholders against certain liabilities,
including certain liabilities under the Securities Act.
The place and time of delivery for the Offered Shares in
respect of which this Prospectus is delivered will be set forth
in the accompanying Prospectus Supplement.
EXPERTS
The Company's audited consolidated financial statements
incorporated in this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1997,
have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto,
and are incorporated herein in reliance upon such report and upon
the authority of said firm as experts in accounting and auditing
in giving said report.
The information set forth in the reports, each dated January
12, 1998, of Ralph E. Davis Associates, Inc. concerning oil and
natural gas reserves, appearing in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, has been reviewed
and verified by Ralph E. Davis Associates, Inc. and has been
incorporated herein in reliance upon the authority of said firm
as experts.
The information set forth in the report, dated May 9, 1994, of
Weir International Mining Consultants relating to lignite coal
reserves of Knife River, appearing in the Company's Annual Report
on Form 10-K for the year ended December 31, 1997, has been
reviewed and verified by Weir International Mining Consultants
and has been incorporated herein in reliance upon the authority
of said firm as experts.
LEGAL OPINIONS
The validity of the Offered Shares has been passed upon for
the Company by Lester H. Loble, II, Esq., General Counsel for the
Company and also by Reid & Priest LLP, 40 West 57th Street, New
York, New York 10019, and will be passed upon for any
underwriter, dealer or agent by Berlack, Israels & Liberman
LLP, 120 West 45th Street, New York, New York 10036.
-12-
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
CONTAINED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY SELLING SHAREHOLDER. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE AS OF
WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
SEC Registration Fee . . . . . . . . . . . . $ 35,543.82
Listing Fees . . . . . . . . . . . . . . . . $ 47,360.00
Printing and Engraving Expenses . . . . . . $ 30,000.00
Transfer Agent Fees . . . . . . . . . . . . $ 3,800.00
Legal Fees and Expenses** . . . . . . . . . $125,000.00
Accountants' Fees and Expenses . . . . . . . $ 15,000.00
Miscellaneous . . . . . . . . . . . . . . . 3,296.18
-----------
Total . . . . . . . . . . . . . . . . . . $260,000.00
===========
----------
* All amounts other than the SEC registration fee are estimated.
** Includes $50,000 in legal fees and expenses to be paid by
the Selling Shareholders.
ITEM 15. 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
<PAGE>
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.
<PAGE>
(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.
<PAGE>
ITEM 16. EXHIBITS.
Exhibit
No. Description
-------- -----------
**1 Form of Underwriting Agreement.
*4(a) Restated Certificate of Incorporation of the
Company, as amended to date (filed as Exhibit 3(a)
to Form 10-K for the year ended December 31, 1994,
in File No. 1-3480).
*4(b) Bylaws of the Company, as amended to date (filed as
Exhibit 3(b) to Form 10-K for the year ended
December 31, 1997, in File No. 1-3480).
*4(c) 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(d) Forty-sixth, Forty-seventh and Forty-eighth
Supplements to the Indenture of Mortgage 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).
*4(e) Rights Agreement, dated as of November 3, 1988,
between the Company and Norwest Bank Minnesota,
N.A., Rights Agent, (filed as Exhibit 4(c) in
Registration No. 33-66682).
5(a) Opinion of Lester H. Loble, II, Esq., General
Counsel to the Company.
5(b) Opinion of 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) The consents of Lester H. Loble, II, Esq. and Reid &
Priest LLP are contained in their opinions filed as
Exhibit 5(a) and Exhibit 5(b), respectively, to this
Registration Statement.
24 Power of Attorney is contained on page II-7 of this
Registration Statement.
--------------
* Incorporated herein by reference as indicated.
** To be filed by Form 8-K.
<PAGE>
ITEM 17. UNDERTAKINGS.
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 SEC 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.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(a) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(b) 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 end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(c) 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 paragraphs (a) and (b) above do not
apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference in the registration statement.
(2) 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.
(3) 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.
(4) 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
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.
<PAGE>
(5) If the securities to be registered are to be offered at
competitive bidding, the undersigned registrant hereby undertakes
(i) to use best efforts to distribute prior to the opening of
bids, to prospective bidders, underwriters, and dealers, a
reasonable number of copies of a prospectus which at that time
meets the requirements of section 10(a) of the Securities Act,
and relating to the securities offered at competitive bidding, as
contained in the registration statement, together with any
supplements thereto, and (ii) to file an amendment to the
registration statement reflecting the results of bidding, the
terms of the reoffering and related matters to the extent
required by the applicable form, not later than the first use,
authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers
is proposed to be made.
<PAGE>
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 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 25th day of March,
1998.
MDU RESOURCES GROUP, INC.
By: /s/ Harold J. Mellen, Jr.
----------------------------
Harold J. Mellen, Jr.
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Harold J. Mellen, Jr. Chief Executive March 25, 1998
------------------------- Officer and Director
Harold J. Mellen, Jr.
/s/ Douglas C. Kane Chief Administrative March 25, 1998
------------------------- and Corporate
Douglas C. Kane Development Officer
and Director
/s/ Warren L. Robinson Chief Financial March 25, 1998
------------------------- Officer
Warren L. Robinson
/s/ Vernon A. Raile Chief Accounting March 25, 1998
------------------------- Officer
Vernon A. Raile
/s/ John A. Schuchart Director March 25, 1998
-------------------------
John A. Schuchart
(Chairman of the Board)
/s/ San W. Orr, Jr. Director March 25, 1998
-------------------------
San W. Orr, Jr.
(Vice Chairman of the Board)
/s/ Thomas Everist Director March 25, 1998
-------------------------
Thomas Everist
/s/ Richard L. Muus Director March 25, 1998
-------------------------
Richard L. Muus
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Robert L. Nance Director March 25, 1998
-------------------------
Robert L. Nance
/s/ John L. Olson Director March 25, 1998
-------------------------
John L. Olson
/s/ Harry J. Pearce Director March 25, 1998
-------------------------
Harry J. Pearce
/s/ Homer A. Scott, Jr. Director March 25, 1998
-------------------------
Homer A. Scott, Jr.
/s/ Joseph T. Simmons Director March 25, 1998
-------------------------
Joseph T. Simmons
/s/ Sister Thomas Welder, O.S.B. Director March 25, 1998
--------------------------------
Sister Thomas Welder, O.S.B.
<PAGE>
EXHIBIT INDEX
**1 Form of Underwriting Agreement.
*4(a) Restated Certificate of Incorporation of the Company, as amended to
date (filed as Exhibit 3(a) to Form 10-K for the year ended
December 31, 1994, in File No. 1-3480).
*4(b) Bylaws of the Company, as amended to date (filed as Exhibit 3(b) to
Form 10-K for the year ended December 31, 1997, in File No. 1-
3480).
*4(c) 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(d) Forty-sixth, Forty-seventh and Forty-eighth Supplements to the
Indenture of Mortgage 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).
*4(e) Rights Agreement, dated as of November 3, 1988, between the Company
and Norwest Bank Minnesota, N.A., Rights Agent, (filed as Exhibit
4(c) in Registration No. 33-66682).
5(a) Opinion of Lester H. Loble, II, Esq., General Counsel to the
Company.
5(b) Opinion of 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) The consents of Lester H. Loble, II, Esq. and Reid & Priest LLP are
contained in their opinions filed as Exhibit 5(a) and Exhibit 5(b),
respectively, to this Registration Statement.
24 Power of Attorney is contained on page II-7 of this Registration
Statement.
--------------
* Incorporated herein by reference as indicated.
** To be filed by Form 8-K.
EXHIBIT 5(A)
March 25, 1998
MDU Resources Group, Inc.
Schuchart Building
918 East Divide Avenue
P.O. Box 5650
Bismarck, ND 58506-5650
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-3 to
be filed on or about the date hereof with the Securities and Exchange
Commission by MDU Resources Group, Inc. (the "Company") under the
Securities Act of 1933, as amended (the "Act"), contemplating the
issuance and sale, from time to time, of up to 3,400,000 additional
shares of its Common Stock, par value $3.33 per share (the "New
Stock") and the Preference Share Purchase Rights attached thereto (the
"Rights"), of which 1,230,932 shares will be sold by certain selling
shareholders and 2,169,068 of which shares will be sold by the
Company, it is my opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the state of Delaware and is duly qualified
to do business as a foreign corporation in the states of Montana,
North Dakota, South Dakota and Wyoming.
2. When
(a) appropriate authorizations by the Federal Energy
Regulatory Commission, the Montana Public Service
Commission and the Public Service Commission of
Wyoming with respect to the issuance and sale by
the Company of the New Stock shall have been
granted;
(b) the Company's said Registration Statement on Form
S-3 shall have become effective;
(c) the Company's Board of Directors or a duly
authorized committee thereof shall have approved
the issuance and sale of the New Stock by the
Company; and
(d) the New Stock shall have been duly issued and
delivered by the Company for the consideration set
forth in the aforesaid Registration Statement and
in accordance with the actions hereinabove
mentioned,
the New Stock will be validly issued, fully paid and non-assessable.
3. The Rights, when issued as contemplated by the
Registration Statement, will be validly issued.
I am a member of the North Dakota and Montana Bars and do
not hold myself out as an expert on the laws of any other state.
Except as set forth in paragraph 2(a) above, my opinions expressed
above are limited to the law of the states of North Dakota and
Montana, the General Corporation Law of the state of Delaware, and the
Federal laws of the United States.
I hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the use of my name therein.
Very truly yours,
/s/ Lester H. Loble, II
-----------------------------
Lester H. Loble, II
General Counsel
and Secretary
Exhibit 5(b)
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019
March 25, 1998
MDU Resources Group, Inc.
Schuchart Building
918 East Divide Avenue
P.O. Box 5650
Bismarck, North Dakota 58506-5650
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-3 to
be filed on or about the date hereof with the Securities and Exchange
Commission (the "SEC") by MDU Resources Group, Inc. (the "Company")
under the Securities Act of 1933, as amended (the "Act"),
contemplating the issuance and sale, from time to time, of up to
3,400,000 additional shares of its Common Stock, par value $3.33 per
share (the "New Stock") and the Preference Share Purchase Rights
attached thereto (the "Rights"), of which 1,230,932 shares will be
sold by certain selling shareholders and 2,169,068 of which shares
will be sold by the Company, we are of the opinion that:
1. When
(a) the Registration Statement shall have become
effective;
(b) appropriate authorizations by the Federal Energy
Regulatory Commission, the Montana Public Service
Commission and the Public Service Commission of
Wyoming with respect to the issuance and sale of
the New Stock by the Company shall have been
granted;
(c) the Company's Board of Directors or a duly
authorized committee thereof shall have approved
the issuance and sale of the New Stock by the
Company; and
<PAGE>
MDU Resources Group, Inc.
March 25, 1998
Page 2
(d) the New Stock shall have been duly issued and
delivered by the Company for the consideration set
forth in the aforesaid Registration Statement and
in accordance with the actions hereinabove
mentioned,
the New Stock will be validly issued, fully paid and non-assessable.
2. The Rights, when issued as contemplated by the
Registration Statement, will be validly issued.
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of any other state. Our opinions expressed
above are limited to the law of the State of New York, the General
Corporation Law of the State of Delaware and the Federal laws of the
United States. As to all matters of Montana, North Dakota, South
Dakota and Wyoming law, we have relied upon the opinion to you of even
date herewith of Lester H. Loble, II, Esq., Bismarck, North Dakota,
the Company's General Counsel, which opinion is to be filed as an
exhibit to the Registration Statement.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement and to the use of our name, as counsel,
therein. In giving the foregoing consent, we do not thereby admit that
we belong to the category of persons whose consent is required under
Section 7 of the Act, or the rules and regulations promulgated by the
SEC thereunder.
Very truly yours,
/s/ Reid & Priest LLP
----------------------------
REID & PRIEST LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated January 22, 1998 incorporated by reference in the MDU Resources
Group, Inc. Annual Report on Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
March 25, 1998
Exhibit 23(b)
CONSENT OF ENGINEER
We hereby consent to the incorporation by reference in this
registration statement of our reports, each dated January 12, 1998, which
appear in the MDU Resources Group, Inc. Annual Report on Form 10-K for the
year ended December 31, 1997 and to all references to Ralph E. Davis
Associates, Inc. in this registration statement.
RALPH E. DAVIS ASSOCIATES INC.
/s/ Joseph Mustacchia, Jr.
Executive Vice-President
Houston, Texas
March 25, 1998
Exhibit 23(c)
CONSENT OF ENGINEER
We hereby consent to the incorporation by reference in this
registration statement of our report, dated May 9, 1994, which appears in
the MDU Resources Group, Inc. Annual Report on Form 10-K for the year ended
December 31, 1997 and to all references to Weir International Mining
Consultants in this registration statement.
WEIR INTERNATIONAL MINING CONSULTANTS
/s/ Kenneth J. Ginnard
---------------------------------------
Kenneth J. Ginnard, Chief Geologist
Des Plaines, Illinois
March 25, 1998
