-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IEZaZO/m+uU80tmL17qQKSLcIv93MiGhFvs0euO+6AEFZZnI3voRF8eB3sw3D37p q8etsW3cjmjgkZTy5Og/DQ== 0000075129-99-000007.txt : 19990301 0000075129-99-000007.hdr.sgml : 19990301 ACCESSION NUMBER: 0000075129-99-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990226 EFFECTIVENESS DATE: 19990226 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OTTER TAIL POWER CO CENTRAL INDEX KEY: 0000075129 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 410462685 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-73041 FILM NUMBER: 99552492 BUSINESS ADDRESS: STREET 1: 215 S CASCADE ST STREET 2: PO BOX 496 CITY: FERGUS FALLS STATE: MN ZIP: 56538-0496 BUSINESS PHONE: 2187398200 S-8 1 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 EX-5 2 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 EX-23 3 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 EX-24 4 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 -----END PRIVACY-ENHANCED MESSAGE-----