SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
AMENDMENT NO. 1
OTTER TAIL POWER COMPANY
(Exact name of registrant as specified in its charter)
Minnesota 41-0462685
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
P. O. Box 496
215 South Cascade Street
Fergus Falls, Minnesota 56538-0496
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [___]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [___]
Securities to be registered pursuant to Section 12(b) of the Act:
None
(Title of class)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
(Title of class)
Item 1. Description of Registrant's Securities to be Registered
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As of August 24, 1998, Otter Tail Power Company (the "Company") executed
Amendment No. 1 (the "Rights Amendment") to the Rights Agreement dated as of
January 27, 1997 between the Company and Norwest Bank Minnesota, National
Association, as Rights Agent (as amended, the "Rights Agreement"). The Rights
Amendment modifies the requirement that a majority of the Continuing
Directors (as hereinafter defined) approve (i) the redemption of the Rights
(as hereinafter defined), (ii) the exchange of the Rights after any Person
becomes an Acquiring Person (as hereinafter defined) for Common Shares (as
hereinafter defined) and (iii) an amendment or supplement to the Rights
Agreement. The Rights Agreement, as amended, requires the approval of a
majority of the Board of Directors of the Company to effect the
aforementioned actions. As used herein, the term "Continuing Director" means
a member of the Board of Directors of the Company who was a member of the
Board on January 26, 1997, or who subsequently became or becomes a member of
the Board of Directors of the Company with the recommendation or approval of
a majority of the Continuing Directors. Continuing Directors do not include
any Acquiring Person or affiliate or associate of an Acquiring Person. A
summary of the Rights and the Rights Agreement, as amended, follows.
On January 27, 1997, the Board of Directors of Otter Tail Power Company
(the "Company"), declared a dividend of one preferred share purchase right (a
"Right") per share for each outstanding share of Common Stock, par value
$5.00 (the "Common Shares"), of the Company. The dividend was payable on
February 7, 1997 (the "Record Date") to shareholders of record on that date.
Each Right entitles the registered holder to purchase from the Company
one one-hundredth of a share of Series A Junior Participating Preferred
Stock, without par value (the "Preferred Shares"), of the Company at a price
of $70.00 per one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth
in the Rights Agreement.
Initially, the Rights will be evidenced by the certificates representing
Common Shares then outstanding and no separate Right Certificates will be
distributed. The Rights will separate from the Common Shares, and a
Distribution Date for the Rights will occur upon the earlier of: (i) the
first date of public announcement that a Person or group of affiliated or
associated Persons has become an "Acquiring Person" (i.e., has become, subject
to certain exceptions, the beneficial owner of 15% or more of the outstanding
Common Shares) (except pursuant to a Permitted Offer, as hereinafter defined)
and (ii) the 10th day following the commencement or public announcement of a
tender offer or exchange offer, the consummation of which would result in a
Person or group of affiliated or associated Persons becoming, subject to
certain exceptions, the beneficial owner of 15% or more of the outstanding
Common Shares (or such later date as may be determined by the Board of
Directors of the Company prior to a Person or group of affiliated or
associated Persons becoming an Acquiring Person) (the earlier of such dates
being called the "Distribution Date").
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Share certificates and will be transferred with and only with the
Common Shares, (ii) new Common Share certificates issued after the Record
Date upon transfer or new issuance of the Common Shares will contain a
notation incorporating the Rights Agreement by reference, and (iii) the
surrender for transfer of any Common Share certificate, even without such
notation or a copy of the Summary of Rights attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
As promptly as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on January 27, 2007, unless extended or earlier redeemed or
exchanged by the Company as described below.
The Purchase Price payable and the number of Preferred 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
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights, options or warrants to subscribe for or purchase Preferred
Shares or convertible securities at less than the then current market price
of the Preferred Shares, or (iii) upon the distribution to holders of the
Preferred Shares of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred Shares) or of
subscription rights or warrants (other than those described in clause (ii) of
this paragraph). With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an adjustment of
at least 1% in the Purchase Price.
No fraction of a Preferred Share (other than fractions in integral
multiples of one one-hundredth of a share) will be issued and, in lieu
thereof, an adjustment in cash will be made based on the closing price on the
last trading date prior to the date of exercise.
The number of outstanding Rights and the number of one one-hundredths of
a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $.01 per share but will be entitled to an
aggregate dividend of 100 times the dividend declared per Common Share. In
the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $.01 per share but
will be entitled to an aggregate payment of 100 times the payment made per
Common Share. Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Preferred Share will
be entitled to receive 100 times the amount received per Common Share. These
rights are subject to adjustment in the event of a stock dividend on the
Common Shares or a subdivision, combination or consolidation of the Common
Shares.
In the event that a person or group becomes an Acquiring Person (except
pursuant to a Permitted Offer (as defined below)), each holder of a Right,
other than the Acquiring Person or the affiliates, associates or transferees
thereof (whose Rights will thereafter be void), will thereafter have the
right to receive upon exercise thereof at the then current exercise price of
the Right that number of Common Shares having a market value of two times the
exercise price of the Right, subject to certain possible adjustments.
In the event that the Company is acquired in certain mergers or other
business combination transactions or 50% or more of the assets or earning
power of the Company and its subsidiaries (taken as a whole) are sold after a
person or group becomes an Acquiring Person (except pursuant to a Permitted
Offer (as defined below)), holders of the Rights will thereafter have the
Right to receive, upon exercise thereof at the then current exercise price of
the Right, that number of Common Shares of the acquiring company (or, in
certain cases, one of its Affiliates) having a market value of two times the
exercise price of the Right.
A "Permitted Offer" is a tender offer or an exchange offer for all
outstanding Common Shares of the Company at a price and on terms determined
by a majority of the Board of Directors of the Company who are not officers
of the Company and who are not Acquiring Persons or affiliates or associates
of an Acquiring Person and after receiving advice from one or more investment
banking firms, to be (a) fair to shareholders (taking into account all
factors which the Board of Directors deems relevant) and (b) otherwise in the
best interests of the Company and its shareholders, employees, customers,
suppliers and creditors and the communities in which the Company does
business, and which the Board of Directors determines to recommend to the
shareholders of the Company.
At any time after a Person becomes an Acquiring Person (subject to
certain exceptions), and prior to the acquisition by a Person of 50% or more
of the outstanding Common Shares, the Board of Directors of the Company may
exchange all or part of the Rights for Common Shares at an exchange ratio of
one Common Share per Right, subject to adjustment.
At any time before a Person has become an Acquiring Person, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption Price"), subject to adjustment.
The redemption of the Rights may be made effective at such time, on such
basis and with such conditions as the Board of Directors of the Company may,
in their sole discretion, establish.
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.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, a copy
of which is filed as an Exhibit hereto and is incorporated herein by
reference.
Item 2. Exhibits
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1. Rights Agreement dated as of January 27, 1997 between the
Company and Norwest Bank Minnesota, National Association, as
Rights Agent, which includes as Exhibit B thereto the form of
Right Certificate (incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement on Form 8-A filed
January 28, 1997).
2. Amendment No. 1 dated as of August 24,1998 to the Rights
Agreement, dated as of January 27, 1997, between the Company
and Norwest Bank Minnesota, National Association, as Rights
Agent.
SIGNATURE
- ---------
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
OTTER TAIL POWER COMPANY
Date: September 29, 1998
------------------
By /s/ Jay D. Myster
---------------------
Jay D. Myster
Senior Vice President, Governmental
and Legal and Corporate Secretary
EXHIBIT INDEX
-------------
Exhibit Description of Exhibit
- ------- -----------------------
1 Rights Agreement dated as of January 27, 1997 between the
Company and Norwest Bank Minnesota, National Association, as
Rights Agent, which includes as Exhibit B thereto the form of
Right Certificate (incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement on Form 8-A filed
January 28, 1997).
2 Amendment No. 1 dated as of August 24, 1998 to the Rights
Agreement, dated as of January 27, 1997, between the Company
and Norwest Bank Minnesota, National Association, as Rights
Agent.
EXHIBIT 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 dated as of August 24, 1998 (this "Amendment")
is between OTTER TAIL POWER COMPANY, a Minnesota corporation (the "Company"),
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of January 27, 1997 (the "Rights Agreement");
WHEREAS, the Rights Agreement may be amended subject to the procedures
set forth in Section 27 thereof; and
WHEREAS, a majority of the Continuing Directors (as defined in the
Rights Agreement) has approved the amendment of the Rights Agreement set
forth herein and the Company has provided the Rights Agent with a certificate
evidencing such approval.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 1. Section 1 of the Rights Agreement is
amended to delete the definition of "Continuing Director" in its entirety.
2. Amendment of Section 11(o). Section 11(o) of the Rights
Agreement is amended to read in its entirety as follows:
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23, 24
or 27, take (or permit any Subsidiary of the Company to take) any action
if at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights unless such action is
approved by a majority of the Board of Directors of the Company.
3. Amendment of Section 23. Section 23 of the Rights Agreement is
amended to read in its entirety as follows:
Section 23. Redemption.
-----------
(a) At least a majority of the Board of Directors of the Company
may, at their option, at any time prior to the earlier of (i) the Shares
Acquisition Date or (ii) the Final Expiration Date, redeem all but not
less than all of the then outstanding Rights at a redemption price of
$.01 per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of this Agree-
ment (such redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights by the Board of
Directors of the Company may be made effective at such time and on such
basis and with such conditions as the Board of Directors of the Company
in their sole discretion may establish. The Company may, at its option,
pay the Redemption Price in cash, Common Shares (based on the "current
market price", as defined in Section 11(d)(i), of the Common Shares at
the time of the redemption) or any other form of consideration deemed
appropriate by a majority of the Board of Directors of the Company;
provided, however, that if the Company elects to pay the Redemption
Price in Common Shares, the Company shall not be required to issue any
fractional Common Shares, and the number of shares issuable to each
holder of Rights shall be rounded down to the next whole number.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to paragraph (a)
of this Section 23, and without any further action and without any
notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public notice of any
such redemption; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of such
redemption. Within ten days after such action of the Board of Directors
ordering the redemption of the Rights, the Company shall mail a notice
of redemption to all the holders of the then outstanding Rights at their
last addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made.
Neither the Company nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any manner other
than that specifically set forth in this Section 23 or in Section 24,
and other than in connection with the purchase of Common Shares prior to
the Distribution Date.
4. Amendment of Sections 24(a) and 24(b). Sections 24(a) and 24(b)
of the Rights Agreement are amended to read in their entirety as follows:
Section 24. Exchange.
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(a) At least a majority of the Board of Directors of the Company
may, at their option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to
the provisions of Section 7(e)), for Common Shares at an exchange ratio
of one Common Share per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the
date of this Agreement, (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board
of Directors of the Company shall not be empowered to effect such
exchange at any time after any Person (other than an Exempt Person)
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of
This Section 24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights at their last addresses
as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Common Shares
for Rights will be effected and, in the event of any partial exchange,
the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of outstanding and
exercisable Rights (other than Rights which have become void pursuant
to the provisions of Section 11(a)(ii)) held by each holder of Rights.
5. Amendment of Section 27. Section 27 of the Rights Agreement
is amended to read in its entirety as follows:
Section 27. Supplements and Amendments.
---------------------------
Prior to the Distribution Date and subject to the penultimate
sentence of this Section 27, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend any provisions of this
Agreement without the approval of any holders of certificates represent-
ing Common Shares. From and after the Distribution Date and subject to
the penultimate sentence of this Section 27, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement or amend
any provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) to shorten or lengthen any time
period hereunder or (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided, this Agreement
may not be supplemented or amended to lengthen, pursuant to clause (iii)
of this sentence, (A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any
other time period unless such lengthening is for the purpose of protect-
ing, enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights (other than an Acquiring Person and its Affiliates and
Associates). Upon delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or amendment
has been approved by a majority of the Board of Directors of the Company
and is in compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Shares.
6. Amendment of Paragraph 14 of Exhibit C. Paragraph 14 of Exhibit C
to the Rights Agreement is amended to read in its entirety as follows:
At any time after a Person becomes an Acquiring Person (subject to
Certain exceptions), and prior to the acquisition by a Person of 50% or
more of the outstanding Common Shares, the Board of Directors of the
Company may exchange all or part of the Rights for Common Shares at an
exchange ratio of one Common Share per Right, subject to adjustment.
7. Amendment of Paragraph 15 of Exhibit C. Paragraph 15 of Exhibit C
to the Rights Agreement is amended to read in its entirety as follows:
At any time before a Person has become an Acquiring Person, the
Board of Directors of the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right (the "Redemption Price"),
subject to adjustment. The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as such
Board of Directors of the Company may, in their sole discretion,
establish.
8. Deletion of Paragraph 16 of Exhibit C. Paragraph 16 of Exhibit C
to the Rights Agreement is deleted in its entirety.
9. Effectiveness. This Amendment shall be deemed effective as of
August 24, 1998 as if executed by both parties on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected hereby.
10. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the state of Minnesota and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state. This
Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument. If any
term, provision, covenant or restriction of this Amendment is held by a court
of competent jurisdiction or other authority to be invalid, illegal, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
OTTER TAIL POWER COMPANY
/s/ Jay D. Myster
------------------------
Jay D. Myster
Senior Vice President, Governmental
and Legal and Corporate Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Barbara M. Novak
-----------------------
Its Vice President
