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Registration No. 333-
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Delaware
(State
or other jurisdiction of
incorporation or organization) |
No.
41-0423660
(I.R.S.
Employer
Identification No.) |
Terry
D. Hildestad
President
and
Chief Executive Officer
MDU
Resources Group, Inc.
1200
West Century Avenue
Bismarck,
North Dakota 58506-5650
(701)
530-1000
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Vernon
A. Raile
Executive
Vice President, Treasurer and
Chief
Financial Officer
MDU
Resources Group, Inc.
1200
West Century Avenue
Bismarck,
North Dakota 58506-5650
(701)
530-1000
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Elizabeth
W. Powers, Esq.
Dewey
& LeBoeuf LLP
1301
Avenue of the Americas
New
York, New York 10019
(212)
259-8000
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(Name,
address and telephone number, including area code, of agents for
service)
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Large
accelerated filer
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þ
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Accelerated
filer
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o
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Non-accelerated
filer
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o
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Smaller
reporting company
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o
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Title
of securities
to
be registered(1)
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Amount
to be registered(2)
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Proposed
maximum
offering
price
per
share(3)
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Proposed
maximum
aggregate
offering price(3)
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Amount
of
registration
fee
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Common
Stock,
$1.00
par value
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3,000,000
shares
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$ 16.39
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$ 49,170,000
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$ 2,744
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(a)
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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
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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.
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(b)
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The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of
such action or suit if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation, unless and only
to the extent that the Court of Chancery or the court in which such action
or suit was brought, shall determine upon application that, despite the
adjudication of liability but in view of all 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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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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
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have
the power to indemnify such person against such liability under the
provisions of this Section.
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(h)
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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.
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(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 participants 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.
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*4.1
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Restated
Certificate of Incorporation of the Company, as amended, filed as Exhibit
3.1 to Form 8-A/A filed on June 27, 2007 in File No. 1-3480.
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*4.2
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Company
Bylaws, as amended to date, filed as Exhibit 3.1 to Form 8-K dated
November 13, 2008, filed on November 19, 2008, in File No.
1-3480.
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*4.3
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Indenture
of Mortgage, dated as of May 1, 1939, as restated in the Forty-fifth
Supplemental Indenture, dated as of April 21, 1992, and the Forty-sixth
through Fiftieth 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)
to Form S-3, in Registration No. 33-66682; and Exhibits 4(e), 4(f) and
4(g) to Form S-8, in Registration No. 33-53896; and Exhibit 4(c)(i) to
Form S-3, in Registration No. 333-49472; and Exhibit 4(e) to Form S-8, on
January 21, 2004 in Registration No. 333-112035.
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*4.4
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Indenture,
dated as of December 15, 2003, between the Company and The Bank of New
York, as trustee, filed as Exhibit 4(f) to Form S-8, on January 21, 2004
in Registration No. 333-112035.
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4.5
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MDU
Resources Group, Inc. 401(k) Retirement Plan, as restated December 1,
2006.
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4.6
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 12, 2006.
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4.7
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 28, 2006.
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4.8
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated February 2, 2007.
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4.9
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated May 30, 2007.
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4.10
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.11
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.12
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.13
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.14
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.15
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.16
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.17
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated February 13, 2008.
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4.18
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated June 16, 2008.
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4.19
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated November 24, 2008.
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4.20
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated November 24, 2008.
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4.21
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 29, 2008.
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5.1
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Opinion
of Paul K. Sandness, Esq., General Counsel to the Company.
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5.2
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Opinion
of Dewey & LeBoeuf LLP, counsel to the Company.
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23.1
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Consent
of Deloitte & Touche LLP.
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23.2
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Consent
of Virchow, Krause & Company, LLP.
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23.3
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The
consents of Paul K. Sandness and Dewey & LeBoeuf LLP are contained in
their opinions filed as Exhibits 5.1 and 5.2, respectively,
hereto.
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24
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Power
of Attorney (see signature pages).
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MDU RESOURCES GROUP, INC. | |||
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By:
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/s/ Terry D. Hildestad | |
Terry D. Hildestad | |||
President
and
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|||
Chief Executive Officer |
Signature
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Title
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Date
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/s/
Terry D. Hildestad
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Chief
Executive Officer and
Director |
April
13, 2009
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Terry
D. Hildestad
(President
and Chief Executive Officer)
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/s/
Vernon A. Raile
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Chief
Financial Officer
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April
13, 2009
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Vernon
A. Raile
(Executive
Vice President, Treasurer and
Chief
Financial Officer)
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Signature
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Title
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Date
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/s/
Doran N. Schwartz
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Chief
Accounting Officer
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April
13, 2009
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Doran
N. Schwartz
(Vice
President and Chief Accounting
Officer)
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/s/
Harry J. Pearce
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Director
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April
13, 2009
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Harry
J. Pearce
(Chairman
of the Board)
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/s/
Thomas Everist
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Director
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April
13, 2009
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Thomas
Everist
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/s/
Karen B. Fagg
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Director
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April
13, 2009
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Karen
B. Fagg
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/s/
A. Bart Holaday
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Director
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April
13, 2009
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A.
Bart Holaday
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/s/
Dennis W. Johnson
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Director
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April
13, 2009
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Dennis
W. Johnson
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/s/
Thomas C. Knudson
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Director
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April
13, 2009
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Thomas
C. Knudson
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/s/
Richard H. Lewis
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Director
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April
13, 2009
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Richard
H. Lewis
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/s/
Patricia L. Moss
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Director
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April
13, 2009
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Patricia
L. Moss
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/s/
John L. Olson
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Director
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April
13, 2009
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John
L. Olson
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/s/
Sister Thomas Welder
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Director
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April
13, 2009
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Sister
Thomas Welder
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/s/
John K. Wilson
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Director
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April
13, 2009
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John
K. Wilson
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MDU
RESOURCES GROUP, INC. 401(k)
RETIREMENT PLAN
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|||
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By:
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/s/ Vernon A. Raile | |
Vernon A. Raile, Chairman | |||
MDU
Resources Group, Inc. Employee Benefits Committee |
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*4.1
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Restated
Certificate of Incorporation of the Company, as amended, filed as Exhibit
3.1 to Form 8-A/A filed on June 27, 2007 in File No. 1-3480.
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*4.2
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Company
Bylaws, as amended to date, filed as Exhibit 3.1 to Form 8-K dated
November 13, 2008, filed on November 19, 2008, in File No.
1-3480.
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*4.3
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Indenture
of Mortgage, dated as of May 1, 1939, as restated in the Forty-fifth
Supplemental Indenture, dated as of April 21, 1992, and the Forty-sixth
through Fiftieth 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)
to Form S-3, in Registration No. 33-66682; and Exhibits 4(e), 4(f) and
4(g) to Form S-8, in Registration No. 33-53896; and Exhibit 4(c)(i) to
Form S-3, in Registration No. 333-49472; and Exhibit 4(e) to Form S-8, on
January 21, 2004 in Registration No. 333-112035.
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*4.4
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Indenture,
dated as of December 15, 2003, between the Company and The Bank of New
York, as trustee, filed as Exhibit 4(f) to Form S-8, on January 21, 2004
in Registration No. 333-112035.
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4.5
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MDU
Resources Group, Inc. 401(k) Retirement Plan, as restated December 1,
2006.
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4.6
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 12, 2006.
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4.7
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 28, 2006.
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4.8
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated February 2, 2007.
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4.9
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated May 30, 2007.
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4.10
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.11
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.12
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated August 29, 2007.
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4.13
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.14
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.15
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.16
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 14, 2007.
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4.17
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated February 13, 2008.
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4.18
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated June 16, 2008.
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4.19
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated November 24, 2008.
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4.20
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated November 24, 2008.
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4.21
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Instrument
of Amendment to the MDU Resources Group, Inc. 401(k) Retirement Plan,
dated December 29, 2008.
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5.1
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Opinion
of Paul K. Sandness, Esq., General Counsel to the Company.
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5.2
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Opinion
of Dewey & LeBoeuf LLP, counsel to the Company.
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23.1
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Consent
of Deloitte & Touche LLP.
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23.2
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Consent
of Virchow, Krause & Company, LLP.
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23.3
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The
consents of Paul K. Sandness and Dewey & LeBoeuf LLP are contained in
their opinions filed as Exhibits 5.1 and 5.2, respectively,
hereto.
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24
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Power
of Attorney (see signature pages).
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