As filed with the Securities and Exchange Commission on February 26, 1999
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 56538-0496
Fergus Falls, Minnesota (Zip Code)
(Address of Principal Executive Offices)
OTTER TAIL POWER COMPANY
1999 STOCK INCENTIVE PLAN
(Full title of the plan)
John Erickson
Vice President, Finance and Chief Financial Officer
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
Proposed maximum
Title of Amount maximum aggregate Amount of
Securities to be offering price offering registration
to be registered registered per share (1) price (1) fee
Common Shares 1,300,000 shares $36.00 $46,800,000.00 $13,010.40
($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
February 19, 1999, 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, 1997;
(b) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998, June 30, 1998 and September 30,
1998;
(c) the Company's Current Report on Form 8-K filed September 29,
1998; and
(d) the description of the Company's Common Stock contained in any
registration statement filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 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
from 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Previously Filed
Number File No. Exhibit No. Description
4-A 10-K for year 3-A Restated Articles of Incorporation,
ended 12/31/96 as amended (including resolutions
creating outstanding series of
Cumulative Preferred Shares)
4-B 33-46071 4-B Bylaws, as amended through April 11,
1998
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
4-D Form 8-K 4.1 Amendment No. 1 dated as of August 24,
(filed 9/29/98) 1998 to Rights Agreement dated as of
January 27, 1997, between the Company
and Norwest Bank Minnesota, National
Association, as Rights Agent
5-A Opinion and consent of Dorsey & Whitney
LLP
23-A Consent of Deloitte & Touche LLP
23-B Consent of Dorsey & Whitney LLP
(included in Exhibit 5-A)
24-A Power of Attorney
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 1933;
(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 February 26, 1999.
OTTER TAIL POWER COMPANY
By /s/ John Erickson
John Erickson
Vice President, Finance and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on February 26, 1999 by the following
persons in the capacities indicated:
Signature Title
* Chairman, President and Chief Executive Officer
John C. MacFarlane and Director (principal executive officer)
/s/ John Erickson Vice President, Finance and Chief Financial Officer
John Erickson (principal financial officer)
* 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/ John Erickson
John Erickson
Attorney-in-Fact
EXHIBIT INDEX TO
FORM S-8
OTTER TAIL POWER COMPANY
Exhibit Description 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
4-D Amendment No. 1 dated as of August 24, 1998 Previously filed
to Rights Agreement dated as of January 27,
1997, between the Company and Norwest Bank
Minnesota, National Association, as Rights
Agent
5-A Opinion of Dorsey & Whitney LLP
23-A Consent of Deloitte & Touche LLP
23-B Consent of Dorsey & Whitney LLP Included in
Exhibit 5-A
24-A Power of Attorney
Exhibit 5-A
[Letterhead of Dorsey & Whitney LLP]
Otter Tail Power Company
215 South Cascade Street
Box 496
Fergus Falls, Minnesota 56538-0496
Re: Registration Statement on Form S-8
1999 Stock Incentive Plan
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 1,300,000 of its Common Shares, $5 par value (the "Shares"),
pursuant to the Company's 1999 Stock Incentive 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.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness
of all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or
otherwise) to execute, deliver and perform such agreements or instruments,
that such agreements or instruments have been duly authorized by all requisite
action (corporate or otherwise), executed and delivered by such parties and
that such agreements or instruments are the valid, binding and enforceable
obligations of such parties. As to questions of fact material to our
opinions, we have relied upon certificates of officers of the Company and of
public officials.
Based on the foregoing, 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 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.
Dated: February 26, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
GLT
Exhibit 23-A
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Otter Tail Power Company on Form S-8 relating to the Otter Tail Power
Company 1999 Stock Incentive Plan of our report dated February 2, 1998,
which report is incorporated by reference in Otter Tail Power Company's
Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
February 18, 1999
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, John Erickson
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 relating to the
Otter Tail Power Company 1999 Stock Incentive Plan, and any and all amendments
(including post-effective amendments) thereto, for the offer and sale of up to
1,300,000 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 the substitutes for such
attorneys-in-fact and agents or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on the 2nd day
of February, 1999, by the following persons:
/s/ John C. MacFarlane
------------------------
John C. MacFarlane
/s/ John Erickson
------------------------
John Erickson
/s/ Jeffrey J. Legge
------------------------
Jeffrey J. Legge
/s/ Thomas M. Brown
------------------------
Thomas M. Brown
/s/ Dayle Dietz
------------------------
Dayle Dietz
/s/ Dennis R. Emmen
------------------------
Dennis R. Emmen
/s/ Maynard D. Helgaas
------------------------
Maynard D. Helgaas
/s/ Arvid R. Liebe
------------------------
Arvid R. Liebe
/s/ Kenneth L. Nelson
------------------------
Kenneth L. Nelson
/s/ Nathan I. Partain
------------------------
Nathan I. Partain
/s/ Robert N. Spolum
------------------------
Robert N. Spolum
