As filed with the Securities and Exchange Commission on April 16, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
______________
OTTER TAIL POWER COMPANY
(Exact name of registrant as specified in its charter)
Minnesota 41-0462685
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(218) 739-8200 (Zip Code)
(Address, including zip code, and telephone number,
of principal executive offices)
OTTER TAIL POWER COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN
(Full Title of the Plan)
A. E. ANDERSON
Vice President, Finance
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
(Name and address of agent for service)
(218) 739-8200
(Telephone number, including area code, of agent for service)
______________
CALCULATION OF REGISTRATION FEE
Proposed
Title of Amount maximum Proposed maximum Amount of
securities to be offering price aggregate offering registration
to be registered registered per share (1) price (1) fee
Common Shares 250,000 shares $32.875 $8,218,750 $2,490.53
($5 par value)
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h)(1), the proposed maximum offering price per share
and the proposed maximum aggregate offering price are based upon the
average of the high and low sales prices of the Common Shares on April 10,
1997, as reported on the NASDAQ National Market System.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that have been filed by Otter Tail Power
Company (the "Company") with the Securities and Exchange Commission are
incorporated by reference in this Registration Statement, as of their
respective dates:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) the description of the Company's Common Stock contained in
any registration statement or report filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act, subsequent to the date hereof and prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers
Minnesota Statutes Section 302A.521 contains detailed provisions for
indemnification of directors and officers of domestic or foreign corporations
under certain circumstances and subject to certain limitations.
Article VIII of the Bylaws of the Company contains provisions for
indemnification of its directors and officers consistent with the provisions
of Minnesota Statutes, Section 302A.521.
Article X of the Company's Restated Articles of Incorporation
provides that a director shall not be liable to the Company or its
shareholders for monetary damages for a breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Sections 302A.559 or 80A.23 of the Minnesota Statutes, (iv)
for any transaction for which the director derived an improper personal
benefit, or (v) for any act or omission occurring prior to the date when said
Article X became effective.
The Company has obtained insurance policies indemnifying the Company
and the Company's directors and officers against certain civil liabilities and
related expenses.
Item 8. Exhibits
Previously Filed
Number File No. Exhibit No. Description
4-A 10-K for year ended 3-A Restated Articles of Incorporation, as
12/31/96 amended (including resolutions
creating outstanding series of
Cumulative Preferred Shares).
4-B 33-46071 4-B Bylaws, as amended through April
11, 1988.
4-C Form 8-A 1 Rights Agreement dated as of January 27,
(filed 1/28/97) 1997, between the Company and
Norwest Bank Minnesota, National
Association, as Rights Agent.
5-A Opinion and consent of Dorsey &
Whitney LLP.
23-A-1 Consent of Deloitte & Touche LLP.
23-A-2 Consent of Dorsey & Whitney LLP
(included in Exhibit 5-A).
24-A Power of Attorney.
The Company has submitted or will submit the Plan and any amendments thereto
to the Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify the Plan under
ERISA.
Item 9. Undertakings
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 of 1993;
(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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities 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 Securities and Exchange
Commission 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 this Registration
Statement or any material change in the information set forth
in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 other
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 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fergus Falls, State of Minnesota, on April 14, 1997.
OTTER TAIL POWER COMPANY
By /s/ A. E. Anderson
A. E. Anderson
Vice President, Finance and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on April 14, 1997 by the following
persons in the capacities indicated:
Signature Title
/s/ John C. MacFarlane Chairman, President and Chief Executive Officer
John C. MacFarlane (principal executive officer)
and Director
/s/ A. E. Anderson Vice President, Finance and Treasurer
A. E. Anderson (principal financial officer)
/s/ Jeffrey J. Legge Controller
Jeffrey J. Legge (principal accounting officer)
* Director
Thomas M. Brown
* Director
Dayle Dietz
* Director
Dennis R. Emmen
Director
Maynard D. Helgaas
* Director
Arvid R. Liebe
* Director
Kenneth L. Nelson
* Director
Nathan I. Partain
* Director
Robert N. Spolum
*By /s/ A.E. Anderson
A. E. Anderson
Pro Se and
Attorney-in-Fact
EXHIBIT INDEX TO
FORM S-8
OTTER TAIL POWER COMPANY
Exhibit Page No.
4-A Restated Articles of Incorporation, as Previously filed
amended (including resolutions creating
outstanding series of Cumulative Preferred
Shares)
4-B Bylaws, as amended through April 11, 1988 Previously filed
4-C Rights Agreement dated as of January 27, Previously filed
1997, between the Company and Norwest
Bank Minnesota, National Association,
as Rights Agent
5-A Opinion of Dorsey & Whitney LLP
23-A-1 Consent of Deloitte & Touche LLP
23-A-2 Consent of Dorsey & Whitney LLP
(included in Exhibit 5-A)
24 Power of Attorney
Exhibit 5-A
[DORSEY & WHITNEY LETTERHEAD]
April 14, 1997
Otter Tail Power Company
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
Ladies and Gentlemen:
Reference is made to the proposed issuance and sale from time to
time by Otter Tail Power Company, a Minnesota corporation (the "Company"), of
not to exceed 250,000 of its Common Shares, $5 par value (the "Shares"),
pursuant to the Company's Employee Stock Ownership Plan (the "Plan"), and the
Company's Registration Statement on Form S-8 (the "Registration Statement")
with respect to such proposed issuance and sale to be filed with the
Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act").
We are familiar with the proceedings to date with respect to the
proposed issuance and sale of the Shares and have examined such records,
documents and matters of law and satisfied ourselves as to such matters of
fact as we have considered relevant for the purposes of this opinion.
Based upon such examination, we are of the opinion that:
(1) The Company is duly incorporated, validly existing and in
good standing under the laws of the State of Minnesota.
(2) The Company is a public utility, as defined in the statutes
of the States of Minnesota, North Dakota and South Dakota, is authorized to
conduct its business in the States of Minnesota, North Dakota and South Dakota
as a public utility and, as such public utility, is subject to the
jurisdiction of the Minnesota Public Utilities Commission with respect to the
issuance of its securities and to the jurisdiction of the North Dakota Public
Service Commission with respect to the issuance of certain of its securities.
(3) The Shares have been duly authorized and will be legally
issued, fully paid and non-assessable when:
(a) the Registration Statement shall have become effective under
the Securities Act;
(b) the Shares shall have been duly executed, countersigned and
registered and shall have been duly delivered to Mellon Bank,
N.A., the trustee under the Plan, upon payment of the
consideration therefor;
(c) the Shares shall have been issued and sold in accordance
with the resolutions of the Board of Directors, the terms of
the Plan and the Order or Orders of the Minnesota Public
Utilities Commission; and
(d) the requirements of the securities laws of the various
states in which the Shares are to be offered shall have been
satisfied.
We hereby consent to the filing of this opinion as Exhibit 5-A to
the Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
Dorsey & Whitney LLP
GLT
Exhibit 23-A-1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Otter Tail Power Company on Form S-8 of our report dated January 29, 1997
incorporated in Otter Tail Power Company's Annual Report on Form 10-K for the
year ended December 31, 1996.
/s/ Deloitte & Touche LLP
April 11, 1997
Minneapolis, Minnesota
Exhibit 24-A
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John C. MacFarlane, Jay D.
Myster, Andrew E. Anderson and Charles E. Brunko, and each or any one of them,
his/her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign a Registration Statement on Form S-8,
and any and all amendments (including post-effective amendments) thereto, for
the offer and sale of up to 250,000 Common Shares, $5 par value, of Otter Tail
Power Company, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on the 14th
day of April, 1997, by the following persons:
John C. MacFarlane
________________________________ ____________________________
John C. MacFarlane Maynard D. Helgaas
Andrew E. Anderson Arvid R. Liebe
________________________________ ____________________________
Andrew E. Anderson Arvid R. Liebe
Jeff Legge Kenneth L. Nelson
________________________________ ____________________________
Jeff Legge Kenneth L. Nelson
Thomas M. Brown Nathan I. Partain
________________________________ ____________________________
Thomas M. Brown Nathan I. Partain
Dayle Dietz Robert N. Spolum
________________________________ _____________________________
Dayle Dietz Robert N. Spolum
Dennis R. Emmen
________________________________
Dennis R. Emmen
